IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.520 of 2010 RAMBHA DEVI W/O RAMESHWAR DAS R/O VILL CHANDPUR BHANGAHA, P.S.JANKI NAGAR, DISTT-PURNEA. ----------PETITIONER-APPELLANT. Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ DEPARTMENT GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR , PANCHAYATI RAJ DEPARTMENT BIHAR , PATNA 4. THE DEPUTY DIRECTOR ( ELECTION) PANCHAYATI RAJ DEPARTMENT BIHAR, PATNA 5. THE COMMISSIONER PURNEA 6. THE DISTRICT MAGISTRATE PURNEA 7. THE DEPUTY DEVELOPMENT COMMISSIONER PURNEA 8. THE SUB DIVISIONAL OFFICER BANMANKHI, DISTT- PURNEA 9. THE BLOCK DEVELOPMENT OFFICER null BANMANKHI , DISTT-PURNEA 10. KAMESHWAR RISHIDEO S/O LATE DEBDUTTA RISHIDEO R/O VILL CHANDPUR BHANGHA, P.S. JANKI NAGAR, DISTT-PURNEA. -----------RESPONDENTS-RESPONDENTS. ----------- For the Appellant: Mr. Y.V. Giri, Sr. Advocate & Mr. Uday Chand Prasad, Advocate. For the Respondents: Mr. Nirmal Kumar, G.P.4 Mr. Vishwambhar Prasad & Mr. Suresh Pd. Sinha No.4 A.C. to G.P.4. PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA. ORDER (27.04.2010) 2 As per Mihir Kumar Jha, J. Heard Mr. Y.V. Giri, learned Senior counsel for the appellant, Mr. Suresh Prasad Singh, learned counsel appearing on behalf of the contesting respondent no.10 as also Mr. Nirmal Kumar, Government Pleader No.4 on behalf of the State. (2)In this intra-Court appeal the appellant-writ petitioner has assailed the order of the learned Single Judge dated 23.2.2010 passed in C.W.J.C. No. 262 of 2010, whereby and whereunder, her writ application challenges the order passed by the State Government dated 14.12.2009 removing her from the post of Mukhiya of Gram Panchayat, Chandpur Bhangha in Banmankhi Block of Purnea district has been affirmed while dismissing the aforementioned writ application. (3)Mr. Giri, learned Senior counsel appearing on behalf of the appellant would submit that the power under section 18(5) of the Bihar Gram Panchayat Raj Act being far reaching consequence of unseating/removing an elected Mukhiya or Up-Mukhiya of Gram Panchayat and therefore the same has to be 3 applied cautiously and only when the statutory requirements are fully satisfied. Explaining further Mr. Giri submits that the allegation in the show cause notice dated 31.3.2009 as with regard to willful refusal on the part of the appellant-writ petitioner in performing her duties and function on the post of Mukhiya under Panchayat Raj Act or abusing the power of Mukhiya vested in her as also her being found to be guilty of misconduct in discharge of her duty on the post of Mukhiya being absolutely vague in nature, there was no effective and reasonable opportunity for submission of her explanation and as such the consequential order dated 14.12.2009 could not have been sustained. (4)On the other hand, counsel for the State as also the private respondent no.10 while supporting the order of the learned Single Judge has submitted that requirement of section 18 (5) of the Bihar Panchayat Raj Act was fully met in course of passing of the impugned order and as such view taken by the learned Single Judge that this Court while making judicial review of such order would not be sitting in appeal as an appellate 4 authority would require no interference. (5)In order to appreciate the aforementioned submissions it would be necessary to first understand the scope of a rather severe provision made under section 18 (5) of the Bihar Panchayat Raj Act (hereinafter referred to as „the Act‟). It cannot be found that the Mukhiya in a Gram Panchayat is elected by direct election by the voters of the Panchayat. Such Mukhiya who enjoys the confidence of people can be removed in terms of section 18 only in a given contingency, namely, either he may resign from the office or he may be removed by a No Confidence Motion by total number of voters of the Gram Panchayat at a meeting specially convened for the purpose. It is then also envisaged under section 18 (5) of the Act that a Mukhiya or Up-Mukhiya can be removed from the office in certain other contingency as may be better appreciated from the wordings of section 18 (5) of the Act which reads as follows:- “18 (5).Without prejudice to the provisions under this Act, if, in opinion of the Commissioner having territorial jurisdiction over the Gram Panchayat, a Mukhiya or an Up-Mukhiya of Gram Panchayat absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct 5 in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Commissioner may, after giving the Mukhiya or Up-Mukhiya a reasonable opportunity for explanation, by order, remove such Mukhiya or Up-Mukhiya, as the case may be, from office. The Mukhiya or Up-Mukhiya so removed shall not be eligible for re-election as Mukhiya or Up-Mukhiya or Member of Gram Panchayat during the remaining term of office of such Gram Panchayat.” (6)It is not in dispute that the power which was earlier vested in the Commissioner for removal of Mukhiya or Up-Mukhiya under section 18(5) of the Act has now been amended and it is the State Government alone which can take a decision for removal of the Mukhiya. (7)Such reasons which may emanate from reading of section 18(5) of the Act leading to removal of Mukhiya under the orders of the State Government are as follows:- (a)If he absents without sufficient cause for more than three consecutive meetings, or (b)willful omits or refuses to perform his duties and functions under the Gram Panchayat Act or, (c)abuse the power vested in him, or 6 (d)is found to be guilty of misconduct in discharge of his duties, or (e)becomes physically or mentally incapacitated for performing his duties, or (f)founder absconder being an accused in a criminal case for more than six months. (9)All the aforesaid grounds or any one of them can lead to removal of Mukhiya by order of the State Government. Thus can it to be said that such drastic power of removal of elected representative can be resorted to by the State Government to displace of people‟s verdict by replacing the elected Mukhiya, by indiscrete use of its power. The Legislature has, therefore, very carefully used the word „Without sufficient cause‟ as with regard to the Mukhiya absenting himself for more than three consecutive meetings. The Mukhiya being the head of the Gram Panchayat and the meeting of the Gram Panchayat to be held at least once in two months, the Legislature has ensured that if a Mukhiya does not attend more than three consecutive meetings, i.e, remains absenting for more than six 7 months and thereby paralyses the functioning of the Gram Panchayat, he incurs the liability of being removal from the post of Mukhiya. That is how even the other disqualifying criteria in section 18 (5) of the Act such as with regard to his absconding, being an accused in the criminal case for more than six months, or his loosing of mental position and thus incapacitating from performing his duties, has to be understood in the context of his removal for the post. (10)Judged in this context, when the Legislature has provided grounds of wilful omission or refusal in performing of duties and functioning under the Act or abusing power vested in him or is found to be guilty of misconduct in discharge of his duties, such seriousness allegation have to be by itself be grounded on specific instances, concrete materials and unrebuttable conclusion in this regard. (11)This aspect of the matter stands settled in the judgment of the Apex Court in the case of „Tarlochan Dev Shasrma Vs. State of Punjab & Ors’ reported in (2001) 6 SCC 260, wherein while dealing 8 with the similar provision of removal of the precedent of the Municipal Council under the Punjab Municipal Act, 1911, it was held as follows:- “In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A president may be removed from office by the State Government, within the meaning of section 22, on the ground of “abuse of his powers” (of President), inter 9 alia. This is the phrase with which we are concerned in the present case.” “The expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councillor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is “abuse of his powers or of habitual failure to perform his duties”. The use of plural powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase “abuse of powers” must take colour from the next following expression- “or habitual failure to perform duties”. A singular or casual aberration or failure in exercise of power is not enough; a 10 course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is “abuse of powers” within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” (12)The ratio in Tarlochan Dev Sharma (Supra) has again been recently followed with approval in the case of „Sharda Kailash Mittal Vs. State of Madhya Pradesh & Ors’ reported in 2010 (2) SCC 319, wherein it was held as follows:- “For taking action under Section 41-A for removal of the President, Vice- President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office-bearer. There are no sufficient guidelines 11 in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.” (13)In the present case, the show cause notice dated 31.3.2009 had enumerated eight allegations against the appellant-writ petitioner which were brought to the notice of the State Government by letter of the District Magistrate, Purnea vide letter No.6090 dated 26.12.2008, namely:- (1) In the general meeting of the Zila Parishad 12 Purnea held on 19.12.2008 one Manoj kumar, Councilor of Banmankhi had made certain allegations of irregularities committed by the appellant-writ petitioner in the employment of Panchayat Teacher/Panchayat Sevika and allotment of Indira Awas, whereafter the Zila Parishad had taken a decision for removal of the appellant-writ petitioner from the post of Mukhiya; (2) Irregularioties in employment of Panchayat Sikshak in Chandpur Bhangaha Gram Panchayat; (3) Irregularities in allotment of Indira Awas; (4) Violation of directions issued by the Director of Accounts Administration; (5) Not presiding the meeting of School Education Committee and allowing one Dand Narain Yadav to preside the same; (6) Son of the appellant-writ petitioner, a Panchayat Teacher is absenting from the School and in fact he is working on the post of Mukhiya in place of the appellant-writ petitioner; (7) The appellant-writ petitioner has produced a false certificate of Annexure-I, though she belongs to 13 Annexure-II and thereby has been elected on a reserved seat of Annexure-I; (8) Reply to an explanation called for by the Zila Parishad, Purnea from the appellant-writ petitioner dated 11.4.2008 was unsatisfactory. (14)In the opinion of this Court, all the aforesaid allegations by themselves were either bald with no specific details and were incapable of being effectively replied. The appellant-writ petitioner could not have replied to Charge No.1 as with regard to the resolution of the Zila Parishad dated 19.2.2008, inasmuch as, same was wholly without jurisdiction in view of the provisions contained in the Bihar Panchayat Raj Act vesting no power to even make recommendation much less taking a decision with regard to removal of Mukhiya of Gran Panchayat on any ground. Similarly, there was no justification for explaining the wholly an out of text explanation called by the Zila Parishad, Purnea on 11.4.2008. The Charge No.1 and Charge No.8 in the show cause notice on the basis of records were unsustainable and in fact the State Government ought to 14 have not taken cognizance thereof, but then as records would bear it out they too form the basis of satisfaction of the State Government for issuance of show cause notice in terms of section 18 (5) of the Act. (15)It is in this regard that this Court has also gone into the charge/allegation against the appellant-writ petitioner in the show cause notice as with regard to the alleged irregularities in the employment of the Panchayat Teacher in the Gram Panchayat, Chandpur Bhangaha. One would fail to understand from the bald nature of Charge No.2 as to what were the actual irregularities and in whose appointment such irregularities were being alleged which could be singularly scribed against the appellant-writ petitioner ?. The rules framed by the State Government for appointment of Panchayat Teacher do not give free hand to the Mukhiya alone rather there is a decision making process in which functionaries of the State are also required to play their role. There is however no allegation that the appellant-writ petitioner had made any specific appointment on her own and when in fact any one appointed regularly on the post of 15 Panchayat Teacher the person was not named in the show cause notice, nothing was left for the appellant-writ petitioner but to file an equally vague show cause reply. (16)Similar is the position as with regard to Charge No.3 regarding the alleged irregularities in allotment of Indira Awas which also lacks any details much less the name of the person who was allotted such Indira Awas by causing irregularities. (17)Charge No.4 as with regard to ignoring the direction of the Director of Accounts Administration is equally unspeaking, inasmuch as, not even his letter number containing such direction had been disclosed nor even the nature of direction violated by the appellant- writ petitioner was made known to her. (18)One fails to understand as to how the Charge No.5 as with regard to not chairing the meeting of Vidhyalaya Siksha Samittee by the appellant-writ petitioner in the capacity of Mukhiya, can be made a ground for her removal especially when even the date of such meeting and the circumstances in which one Dand Narain Yadav was allowed to chair the meeting of 16 School Education Committee was not disclosed. (19)It is really amazing for this Court to find that the misconduct committed by son of the Mukhiya, namely, Sanjiv Kumar by not attending the School as reported by Panchayat Secretary has been made a charge against the appellant-writ petitioner specially when it also lacks any detail as to when it is said that the said son of the appellant-writ petitioner was actually working as Mukhiya. The Mukhiya has statutory powers, but then no document was even referred which could have established that even when such cheque for withdrawal of the amount was to be signed by the appellant-writ petitioner in the capacity of Mukhiya, but actually her son had issued such cheques. (20)Charge No.7, to say the least, as with regard to clause of disqualification for being elected on the post of Mukhiya, which could have been gone into only by the Election Tribunal as with regard to caste declaration of the caste of the appellant-writ petitioner, in the opinion of this Court being a pre-election disqualification could not have been even made subject 17 matter of a show cause notice under Section 18 (5) of the Act. (21)Unfortunately, such vague, insufficient and in fact wholly un-relatable allegations became the basis of satisfaction of the State Government to issue show cause notice dated 31.3..2009 and such mechanical application of mind at the stage of issuance of show cause notice by the State Government gets further reflected when it is found that out of eight charges three of them were straight way were even not referred to in the final impugned order wherein only Charge Nos. 1, 2, 5, 6 and 8 were taken in cognizance for her removal and thereby it becomes clear that even before an order could be passed the State Government became satisfied that there was no irregularities as with regard to allotment of Indira Awas vide Charge No.3 to the show cause notice, as also there was no merit in the alleged violation of the directions of the Director, Accounts Administration or the Zila Parishad‟s action of asking an explanation from the petitioner on 11.4.2008 was wholly unauthorized act. (22)In this background, if now the Charge 18 No.1 and the findings are examined, it would become difficult for this Court to even hold that there was any prior intimation to the petitioner to explain either with regard to appointment of Ruby Kumari or Madhu Kumari in the meeting held on 13.3.2007. The findings which have been arrived at in respect of Charge No.1 pertaining to removal of the appellant-writ petitioner as per resolution of the Zila Parishad dated 19.2.2008 could not have been substantiated by holding that Naresh Mohan Jha was not a Panchayat Secretary on 13.3.2007 and the decision of appointment of Madhu Kumari by replacing the decision of Ruby Kumari on the post of Sevika was an act of personal misconduct on the part of the appellant-writ petitioner. (23)Similarly, when nothing was disclosed as with regard to details for the irregularities committed in the appointment of the Panchayat Teacher, any finding arrived on the basis of a report of the District Magistrate as with regard to appointment of Ruby Kumari having lesser marks than the other candidates have no meaning especially when this meeting was never confronted to us 19 in the show cause notice. (24)One would again fail to understand that when nothing was disclosed as with regard to Charge No.3 pertaining to Chairing of the meeting of the School Education Committee by Indra Narain Yadav in place of the appellant-writ petitioner and even this much was not disclosed as to on which date such meeting was chaired by Indra Narain Yadav, any subsequent development made on the basis of the explanation of the Collector of the district that such meeting was held on 18.10.2006, will only make the charge not only vague but also incapable of being replied. (25)Charge No.4 as with regard to son of the appellant-writ petitioner being absenting from the School and doing the work of Mukhiya, again has been sought to be substantiated by such materials which was never disclosed along with the show cause notice and the best proof of the same is borne out that a report of the District Education Officer has been relied to substantiate that son of the appellant-writ petitioner was not attending the School and was mainly interested in doing the work of 20 Mukhiya, one may appreciate such report of the District Education Officer as with regard to absence of the teacher from the School but on what basis he could have reported that such son of the appellant-writ petitioner was mainly involved in doing the work of Mukhiya. Was the District Education Officer doing the work of Panchayat Raj Officer ?. (26)The manner in which Charge No.5 as with regard to false caste certification has been dealt with by the State Government in the impugned order would only go to show as to how badly some one was after the blood of the Mukhia, the appellant-writ petitioner. The State Government in the impugned order has held that such allegation of the appellant-writ petitioner having contested the election by claiming to be belonging to Annexure-I, though hailing from Annexure-II was beyond the jurisdiction of the State Government in terms of Section 18 (5) of the Act and yet it had given the seal of approval and an observation that the District Magistrate, Purnea if so advised and satisfied that the appellant-writ petitioner had contested the election on a 21 false caste certificate, he could get the election of the appellant-writ petitioner cancelled by filing an election petition. The manner in which the finding of Charge No.5 has been recorded leaves nothing for this Court to hold that respondent no.10 the Up-Mukhiya was in a position to over power and take the Collector of the District in collusion for filing an adverse report against the appellant-writ petitioner so that on being unseated after being removal from the post of Mukhiya he could become a Mukhiya for the remainder of the term in view of the provisions made in the Act. (27)Thus, on an over all analysis this Court is satisfied that none of the eight charges brought in the show cause notice were quite specific in nature and had contained specific details on the basis of which the appellant-writ petitioner could have been shown to be given a reasonable opportunity for submitting her explanation. As a matter of fact, when out of eight charges three of them were dropped from the zone of consideration under the final order and even those five charges had lacked details, there would be no difficulty 22 for this Court in coming to a conclusion that there was absolute want of any material on the basis of which it could be held that the appellant-writ petitioner had wilfully omitted or refused to perform her duty and function under Gram Panchayat Act or had abused the power of Mukhiya vested in her or had been found to be guilty of misconduct in discharge of her duty. The charges being quite serious could not and should not have been paraphrased by