t ^af HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, J) PETITIONER RESPONDENTS 1 2 3 4 W.P.(QNo.06of2010 Smt. Jasmatiya . Devi, W/o Shri Bhadai Singh, aged 55 years, Occupation- Sarpanch, Gram Panchayat- Bhala, Tahsil- Ramanujganj, District- Sarguja (C.G.) Versus State of Chhattisgarh, through its Secretary, Department of Panchayat and Rural Development, D.K.S. Bhawan, Raipur, Chhattisgarh Collector, Sarguja, District- Sarguja (C.G.) Deputy Director of Panchayat, Ambikapur, District- Sarguja (C.G.) Sub Divisional Officer (Revenue), Ramanujganj, District Sarguja (C,G.) 53 (Writ Petition under Article 226 of the Constitution of India) Appearance: Mr. Sameer Shrivastava, Advocate for the petitioner. Mr. Shashank Thakur, Panel Lawyer for the State/respondents. ORDER (04.01.2011) Sunil Kumar Sinha. J. (1) The petitioner is elected Sarpanch of Gram Panchayat, Bhala. It appears that special audit was conducted on 13.1.2009 and certain financial irregularities were pointed out by the Audit Team. After perusal of the audit report, respondent No.2 on 25.8.2009 sent a communication to respondent No.4 directing respondent No.4 to '.^. jl%^ %. -l;^--^i | ^ ^..,^, ^•^jsy <5^\ ^^IN^: W.P.fQ No. 06 of2010 register a case against the petitioner u/ss 40 & 92 of the Chhattisgarh Panchayat Rajaya Adhiniyam, 1993 (hereinafter referred to the 'Act'). On the basis of said communication, a proceeding was registered by respondent No.4 and a show-cause notice dated 12.10.2009 was issued to the petitioner. (2) Mr. Sameer Shrivastava, learned counsel appearing on behalf of the petitioner, argues that the petitioner in reply to the show- cause notice demanded copy pf theaudjt ,report. Hpwever without passing anyorder in this regard, respondent No.4, on 15.12.2009, issued the impugned order (Annexure-P/1 ) saying that the reply filed by the petitioner was not satisfactory, therefore, the petitioner is directed to deposit the amount of Rs.9,98,402/- prior to 23.12.2009. It was also directed that if the amount is not deposited in time, action shall be taken u/s 92 (2) ofthe Act and the petitioner shall be sent td civil jail and the aforesaid amount shall be recovered as arrears of land revenue. His submission is that proper opportunity of hearing has not been granted to the petitioner and the impugned order has been passed on the basis of audit report even without giving a copy ".-1;- !' • -T °- '': ::-: .:;0- .- ••••.. • 1 • of the report to the petitioner thereby violating the principles of natural justice. (3) Reply has been filed on behalf of the respondents. (4) Respondents have contended that special audit was conducted by a committee from 13.1.2009 to 15.1.2009 and i^'y^., 1"€,.^ w s^ W.P.CQ No.06of2010 financial irregularities were reported by the committee. On the special audit report, the respondent No.2 issued a show-cause notice to all the concerned persons including the petitioner. They contended that the show-cause notice contains gist of the audit report which arespecific and sufficient for the petitioner to give her explanation to the show-cause. Even after that the petitioner has not filed her explanation to show-cause notice and she did not appear before the authority concerned, therefore, the impugned order has been passed. ^KM^' (5) Section 40 of the Act, 1993 relates to removal of office bearers of Panchayat. Sub-section (1) of Section 40 provides that the State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer if he has been guilty of 'misconduct' in the discharge of his duties or if'his continuance in office is undesirable in the interest of the public. It has also been provided that no person shall be removed unless he has been given an opportunity to show-cause why he should not be removed from his office. What would include 'misconduct' has also been given in the explanation to sub-section (1). The above provisions contained in Section 40 would show that the opportunity to show-cause should be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the materials which are sought to be used against him in support of charges, so that he may offer his ^ W.P.m No.06of2010 r explanation in respect of those materials. It should be kept in mind that a person who holds an elected office has a right to continue in his office until the expiry of the term. The order passed u/s 40 has far reaching affects, as the finding of 'misconduct' on which an order is to be based casts a stigma in the public life of the person. Taking into overall nature of the above provisions of Section 40 along with consequences thereof, the action to be undertaken is a quasi- judicial action. Therefore, it was not only desirable but also essential that the authority proceeding u/s 40 of the Act must given reasonable and proper opportunity to show-cause to the person concerned. (6) In the present case, we find that the entireaction was taken in haste-hurry on the recommendation of the Minister. In fact, proper opportunity of hearing was not awarded to the petitioner before passing the impugned order. Therefore the principles of natural justice are violated. (7) For the foregoing reasons, the petition is allowed. The impugned order dated 15.12.2009 (Annexure-P/1) is quashed. However, the respondents would be free to take action against the petitioner in accordance with law after giving due opportunity of hearing to her. (8) No cost. Sd/- Sunil Kumar Sinha Judge vatti