ASPUR Writ Petition (0 No. 5651 ot'2008 Gaiikaran Da.s Banjare VERSUS RESPQNDENTS : State ofChhattisgarh and otfaers /. •>' Post for pronouacement ofthe iudsment and Order on ^-11-2008 Sd/- Satish K. Agnihotri Judge >(;1; /.H^ H1GH COURTOF CHHATTISGARH AT B-fLASPUR Wnti!*e<iti(>n(ONo.S6Slof20y8 Gaukaran Das Banjare S/o Shri Hirwa Das Banjare ased about 50 years Up-Sarpanch villaee: Rajpalpur Tahsii Lomii, Distt. Bilaspur (CG). 1. State of Cfahattisearh, throueh the Secretary. Deoartnient of Panchayat & Rural Development, Mantralaya, DKS Bhawan, Raipur (CG). 2. 'The Director. Panchavat, Mantralava, DKS Bhawan. Raipur (CG). 3. The Additional Collector, Bilaspur Distt. Bilaspur (CG). 4. Sadaram Patel S/o Not known to the petitioner aeed not known to fhe petitioner San)anch Villaee Rainalpur Tahsii Lormi, Distt. Bilaspur (CG). (WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDlA:! (SB: Hon'Me &'Ir. Satish K. Agmtiotri, J.) Present : Shri JN.N. Rov, Advocate tbr the petrtioner. i5Hn 15iiSSK.aT i ySiSl, 1 rtHSi l^aWyCT lOi TJLI£ ISIdTe/TeSpOHueHI 1 '< O. 1 IQ Shri P.P. Sahu, Advocate forthe resoondent No. 4. (Passed on .^.'"day ofNovember, 2008) 1. The petitioner seeks to challenge the leeaiity ofthe order dated 19.09.2008 (Annexure P/l), passed bv the Director, Panchavat in Revision Case No. 137/A-89/07-08. wherebv and whereunder the order dated 23.04.2008, passed by tfae Additional Collector, Bilaspur, was upheld and the revision prefeiTed bvthe petitioner was dismissed. 2. The indisputable facts, necessary for disposal of the case, ai-e fhat, the respondent No. 4 was eiected as Sarpaach in Gram Panchayat, Rajpalpur, /"e^ 'i~i' i TahsiL LormL District-Bilasour. A complaint of financial irreKiilarities and misappropriation of public monev was made bv the petitioner to the Sub Divisional Qificer, Lormi (for short 'the SDO'). According to the petitioner. the SDO conducted a detailed enquin/ tbj-oueh the Chief Executive Officer and Fisheries Inspector of Janpad Paachavat, Lomii. On the basis ofreport submitted by mquuv officer i.e. Chief Executive Officer and Fisheries Inspector of Janoad Panchavat Lormi. a show cause notice dated 16.01.08 (Aimexiire P/2) was issued under the provision of Section 40 of the CKhattisearh Panchavat Rai Adhinivam, 1993 (for short 'the Adhimyam') calling upon the respQndent No. 4 to submit his reply on the allegatioas oftinancial m-eeiilarities. on or befbre 23.01.08. The SDO. on 15.02.08 (Aimeaire P/3). aS.er havine recorded that the respondent No. 4 failed to file his reply on the earlier dates i.e. 06.02.08 and 12.02.08, in exercise of powers corferred bv Section 40 of the Adhinivam. removed the respondent No. 4 from the post of Sarpancfa- and fiirther disaualitied tfae respondent No. 4 for a period of six vears. The Chief Executive Officer, Lflmii was farther directed to take apprQpriate steps under Section 91 ofthe Adhmiyam for recovery ofmoney. Being aga-ieved, the respondent No. 4 preferred an appeal before the Additional Collector, Bilaspiir in Panchayat Appeal Case No. 89/A-89 (15V07-08. Tlie Additional Collector, Bilaspur, after having examiaed all the aspects ofthe matter, allowed the appeal on 23.04.08 (Annexiu-e P/4) holdine that the SDO has passed the order in haste without affordias proper ooDorhimtv of hearine to the respondent No. 4. It was fiu-ther held that witnesses were not examined, even the complainant. and the enqutry officers were not examined and the respondent No. 4 was not aftorded oooortunitv to cross-examine them. 5. Further, beine as.aleved, a revisioa was preferred bv the petitioner before the Director. Panchavat. The Director, Panchavat, bv impusned order dated 19.09.08 (Annexure P/l) a&iimed the fiadines recorded, and the order dated 23.04.2008, passed bv the Additional Collector, Bilaspur. and dismissed the revision. Hence this Detition. 6. Shri N.N. Roy, leamed eounsel appearine for the petitioner would submit ia the oreliminarv enauirv conducted bv the Chief Executive Officer and Fisheries Inspector of Janpad Panchavat Lonni, the respondent No, 4 was directed to produce certain records. The respoadent No. 4 has failed to do SQ in spite ofthe fact that amole opportunities to produce records were sranted to the petitioner. The allesations are very serious in nature of financial irreeularities and misappropriation/embezzlement of the fiind for oavment towards works ofPanchavat and to the Pensioners. It was further contended that tbe respondent No. 4 had tailed to file reply to the show cause notice dated 16.01.08 issued under Section 40 ofthe A<ttiimyam by the SDO. Thus, fhe petitioner v/as afforded opportunity ofhearing and no prejudice is caused to the petitioner. The findines of the Additional Collector and fhe Director. Paachavat, are without any basis, as the respondent No. 4 has waived his right ofhearins by not responding to the notice. He relies on decision ofSupreme Court inttie matter ot'Jagit Siogh Vs. State ofHaryana. 7. Oa fhe other haad, Shri P.P. Sahu, learaed counsel appearing tbr the respondetit No. 4 would submit that in fhe preltminary enquiry, no oooortunitv ofhearine was afibrded. On receipt ofshow eause notice dated Ai^/uu/ su^yu ^!s=€"*% •ts S a s ls?f 'V 'Vss^'^/ •^^'-•""^^' ^ov\l 16.01.08, issued hy the SDO sranting six days time to file respoase, the respondent No. 4 appeared before the SDO and made a request fbr supply of relevaat documents i.e. preliminarv enauuv report, on basis of which, sfaow cause notice was issued and the statemeats recorded by Ihe enquiry ofiicei-s. The respondent No. 4 further made request to exanrine the complamant, enquiry ollicers and permit the respondent No. 4 to cross- examine them. Without suDplvine the relevant documents and atfoi-dina an opportunity to tfae respondent No. 4 to cross-exanrine the complainant and eaautrv officers, the SDO oassed the order in violation of princroles of naturai justice. The Additional Collector. Bilaspur. has riahtlv found that the respondent No. 4 was not afforded opportunity of hearing ia its letter and spirit. Therefore, the order passed bv the SDO was quashed and the appeal was allowed. The Director, Panchayat has rightly and legally aflGnned the findings and order passed bv tfae Additional Collector, rejecting revision filed bv the petitioner on 19.09.08 (Annexure P/l). He relies on judements of the Supreme Court in the matter of Town Area ComFnittee Jalalabad Vs. Jagdish Prasad and Others , State Bajik ofPatia'a Vs. S.K. Sharma aad Kuldeep Singh Vs. Commissioner of Police aad Othsrs4 8. I have heard leamed counsel appearing for the parties, peruse the pleadings and documents aopended thereto. 9. In order to aporeciate rival submissions advanced bv the leamed counsel appearine fbr the petitioner and respondent No. 4, it is necessary to quote Section 40 ofthe Adhinivam. Section 40 ofthe AdhiniYatn reads as under: -AlK.iS/SSC i40/ 3AIR1996SCi669 4 1999 (2) SCC 10 v> 'i^^^^. ^ r ^ '•••\. f^y (ii) "40. Removal ofQffiee bearers of Pandiayat.- (1) The State Govemment or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an ofiice bearer- (a) ifhe has beea guilty ofmisconduct in fhe discharge of his duties: or (b) if' his continuance in oftice is undesirable in the interest ofthe public: Provided fhat no person shall be removed unless he has been given aa opportunity to show cause why he should not be removed fi-om his office. Explanation: For the purpose of ttus sub-section "Misconduct" shall iaclude- (a) aav action adverselv affecting- (i^ the sovereigntv, unitv and inteeritv oflndia; or flie harmonv and the soirit of common brolherhood amongst all fhe people of State transcending religious, lineuistic, regional, caste or sectioinal diveisities, or (iii) the dianity ofwomen; or (b) gross neeligence in the discharge of the duties under this Aet. [(c) the use of position or influence directly or indirectly to secure employment tbr any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as giving out any type of lease, getting any work done through them in the Panchayat by an oftlce bearer of Panchayat. Explanation : For tbe purpose of this clause the expression 'relative' shall mean father, mother, brother, sister, husband, wite, son, dauatiter. mother-in-law, fafher-m-law, brotiier-m-law, sister-in-law son-in-law or daughter-in-law:] ?Provided farther that the fmal order in the iaquiry shall be passed within 90 days from the date of issue of show cause notice to the concemed ottice bearer and where the ••w&. pendine case is u.ot decided within 90^iavs, fhe presci-ibed aufhority shali intbrm all facts to Ms next senior officer in writine and request extension of time for disposal of the inquirv but such extension oftime shall not be more than 30 davs.1 (2) A person who has beea removed under sub-section (1} shall forfhwifh cease to be a member ofanv ofher Panchavat ofwhich he is a member, such person shall also be disqualified for a period of six vears to be elected under this Act." lO.Proviso to Sub-section 1 of' Section 40 prescribed that no person shall be removed unless he has been eiven aii opportunitv to show cause whv ne should not be removed from his otfice. Thus, the followiag ofprinciples of natura! justice is a condition precedent before passiag a penai order, as orescribed under Section 40 ofthe Adhinivam. ll.The enquirv report of Chief Executive Oflicer dated 12.09.08 (Annexure P/6) does not iadicate that au opportumty of hearing was givea to Ifae resoondent No. 4 to out forward his case. Amiexure P/7 indicates fhat resoondent No. 4 and Secretarv have not produced fhe reievant records earlier. On pemsal of the order dated 15.02.08, passed by ttie SDO, whereby, the respondent No. 4 was removed from the postof Sarpanch, aad was disaualified for a ueriod of six years. it is clearlv stated that the counsel for resoondent No. 4 had demanded a copv offhe documents, it is recorded as under : "i.8 . ..vswtva siRNt wT u(<na gRi^e^? wi^ <»} R-nw 23.1 soos tSI SW •^WIfi^i ^' -8TarF yfF^ %fi i^fSjs Qfaf iraT w i f^itcs e 2.3008 1?a 1222008 cra. diWui ^iTTait -Ttf&fl %! uRW afl.n^q> ^ aih iS vvsd ^t ia;OT ^rgr i SFn^eawnff CTCT an-aiT? uraRi t^ WETO ffrd uTFt ilft WT QKV vfl^ ^ VS v 3 W iTSff fe 3i^!^tf<S wlSffil ^l ^•TT WtSA 1 fS-11'4) 6.2 2008 'git aift^O 3(<r«itgR ^t, arr?l$Rf tten tfsv w f^Tf 's'nsi wKf 3(ftrrt<s ®TgRfah&.T. ^T ' \ "-" 7 C\ C9y / 1»w tnn\ ai'iijdtb <& 3{8ld<tdi 3nT/<f'wi4ui!r %t iTeTq wy4 ^r tftf ^S TfS I VTf vams -nur ari&pr.TH. 1993 ^f eTRT 4n ^ treCT ^•rtfew ^ WTST ariiT^sT CBT :-ig,vi ysps wyri %! yi'jWM •TA f! PiSyff A aTgure ai!^d<t>^ur¥ q5t sstf ^t aiBt^s 3re<?f1<t)i •a>T-t w vfm ^rSt vSSTSf ~fvit swRre gifilst^ <!ft -psa v?ro wr-t ^ ante-r v) afrftor? gi? Ta?Tur aji<i»i ^ti f^iRr f8>ar ^roi i" 12.It is evident that the respondent No. 4 was not supplied necessarv documents which were the basis tbr imposine the penaltv of remova! as weil as disqualification from contestine election for a period ofsix years. 13.In the matter ofJasiit Sineh (Supra), relied on bv leamed counsel for the petitioner, Their Lordships held that neither the Speaker nor the committee shall come to any finding that a Member has become subject to disaualitieation under the Tenth Schedule without atfordine a reasonable opportunity to such member to represent his case and to be heard in person. la fhat ease, enquiry was conducted by the Speaker. Thus, it was heid tbat the eaquirv under Tenth Schedule is aot comparable to either a trial in a Court oflaw or departmental proceedings for disciplinary action against an emolovee. as the proceedmes was conducted bv fhe holder of the indeDendent hish office of Speaker. The instant case is distinsuishable from the facts of the above stated case, as in the case of Jagjit Siaeh (Supra), eaquiry was conducted by the Speaker of the Leeislative Assembly, and in the present case, enquiry was conducted by tfae aovermnent ofiicer ofthe raiik ofSDO. l4.The Hon'ble Supreme Court in case ot'D.K. Yadav Vs. .I.M.A. Industries Ltd., & "thers , considering the concept of opportunity of hearing observed as under." S.Iy".a)3sCC25y f'€ 9 ®i- ^ '^. 1 I SS^iSlai'S^ 'The cardiaal point that has to be bome in mind, in every i/dsc. .--1- ^^t- ^^ ^.t^ „ ^. /.—„— -.„— „ ^^.- ^ J -.1^ ^^^U '(-„•-- 1E> WllCllACi UlC pCrSOii ^OIik/ClTitfU yiiuaiu riuvc a reasonable opportunity of presentina his case and the uuiiionrv suouiu a^t lauiy, JUSU^, Jl CUSUilitUlV <U1U impartially. In other words application offhe principles of Batural justice uiat no uiati shouSd be conueuiiieu utuieat'u ifltends to prevent the autlioritv from actine arbitranlv uie ngiiis of flie coucci'ticu persoi'i. K is a fundameatal rule of law that no decision must be taken which will affect the right of anv person wittiout lirst beiag ofthe ease aud giviug hini/Sier an oppoitumty of puttme forward his/her case. An order involvmg civil ^/UU»S;qUi./UUC»UlUKl UC iliUUfc; ^UUKl&LCiAU^ WiUi UiV i U-iCS VI uaturai justice. Therefore. fair plav in-action requires that thc; procedure adoptcd iiiust bc just; fair aiid rsa.soiiubl&. The manner ofexereise ofthe power and its impact oa the rights ofthc pd'son alFccted would uc iiicoiifomiity witli ' the prmciples ofnatural histice." 15.The said prmciple is reaflirmed by the Hon'ble Supreme Court in ioe matter of Basadeo Tiwary Vs. Sido Kanhu University & otfeers, wherein it is held fhat: 'The law is settled fhat non arbitramiess is essentia! tacet of Article 14 forwarduig the entire realm of State action gdJVCAAiCU Uy ^dU^iS; I'T. Afc iia& ^^UlC LU C&UAUiASAl, <*,*•> a.AUiU.ACi coroUan'. that the audi atterm partem tacet ofnatural nistice -isticc is the is also a reqi.lu©iiic'iitoiATticlc 14; for, 112 of arbitrarmess. In the sphere of pubiic iieiit, it is wdi ssttled Uist siiy uctioii tsjcefi by Uie emplover aaainst an emplovee must be fair, iust and reasonable whicla. ai"e compoiiciits 01 fair trcatmeiit. Tlie conferment of absolute nower to tenmnate the services ot an ©iuployee'is aiitithesis to fuir,just siid rsasoiia.ble trss.uTjLciit. 16.Furtfaer, ia the matter of Kuldeep Singh (Supra), fhe Hon'ble Supreme Court observed as uader: "32. Apart from the above, Rule 16 (3) has to be considered itt thc liglit of tlie provisions eontained ui Article 311 (2) of the Constitution to find out whettier it purports to provide reasoaablc oppoi'fruiiity of hcai':ir>g to tSic Reasonable opportunitv contemplated bv Articie 311 ui accordyiice with tlie priiiciplcs 01 B&tural lllGdl'iy iustice under which one of the basic reauM-ements is that all y sh-ull L>C sxailliiicd the witii€;sses ui tuc uci in the presence of tlie delinquent who shall be aven an • AIK iyys s^j^oi ^ ^, ';' ";:- -^^.^_ ^,-r-r^/ opportunitv to cross-exatnine them. a statement previousiy iiiacic 'oy & wiTSiess, c-iiii^r uuruig Tiie coursc 01 prelimmarv enquirv or investieation, is proposed to be urougiii on IKCOFG iii uic ucpsTuucui&i pro'cccuin^s, uie iaw as laid down by this Court is that a copv ofthat statement should &st be supplicd to thc deliiiqueat who should 'tliereafter be eiven an opportumtv to cross-examine that witaess." 17.Further. m the matter of Canara Bank & others Vs. Debasis Others , the Hon'ble Supreme Court obsen'ed as under: "The first and foremost principle is what is commonly Ajiiuwii ub uuui aiLUHli paitciii tuic. it £>uyis uias, liu tjjtic should be condemned uiiheard. Notice is the fcst limb of this principle. It must be precise and unambisuous. It sliould appiise th& pai'ty detc;iuiiiiativclyortii6 case 116 lias to meet. Time given for the purpose should be adequate so as to eiiablc liiiii to makc iiis reprcsexitcitiou. Li tlic abseiicc 01 a notice of the kiiid and such reasonable opportumty, ttie order passed uccoiiic.s wholly vitiatsd. nius, it is but essential that a oaitv should be put oa notice ofthecase before aiiy adverse oi'uer is passeu agaitist luru. H is a&ct' a51 an approved mle of fau- play and one ofthe most important pfuiciples of iiatut'a! ju&tice. It is au.er all aii approvcu rulc offa.il· plav. The conceot has eained sienificance and shades witSitmic." IS.This is not a case where the tacts are adnritted and holdine an enquiiy wouid be an emptv formalitv (See Viveka Nand Sethi Vs. Chairman, J&K Baak Ltd. and Others8 and P.D. Agrawal Vs. State Bank of India & Others V 2tt at no no1rst of^ time the oetitioner was &iven 3tiv OT?r?ortunit\ /? after supplvine the requisite documents to him. 19.ADplvinethe well settled principles oflawto the facts ofthe case on hand, it is evident that no ODDortunity ofhearina was eiven to the respondent No. 4, as admittedly the relevant doeuments were not supplied to put forward his case properly. Thus, the ordei- dated 19.09.2008 (Aimexure P/l), passed by the Director Panchayat as well as order dated 23.04.2008, passed by the Additional Collector. Bilaspur. are iust, proper and unexceptionable. ^ ^- - - -^ ' (2003) 4 SCC 557 8 2005 (5) SCC 337 9 2006 (8) SCC 776 20-Forthe reasons mentioned hereinabove. this pefition is dismissed. No order as to costs. Since the allegations of financial in-eeularities are of very serious nature, liberty is reserved to fhe concemed authority to take approDriate steps m accordance with law, if so advised. without beme irtHuenced bv the observations. if anv, made bv fhe Court. Sd/- Satjsh K. Aghihotri Judge Sahu