IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9673 of 2009 PRAMOD KUMAR RAI S/o Late Shital Rai Resident of Village Jitwaria P.S. Kalyanpur Dist. Samastipur Petitioner Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Panchyati Raj Department, Government of Bihar, Patna 3. The Director, Panchayati Raj Department, Government of Bihar, Patna 4. The Deputy Director, Panchayati Raj Department, Government of Bihar, Patna 5. The District Magistrate, Samasstipur 6. The Subdivsisonal Officer, Samastipur Dist. Samastipur 7. Sunil Kumar Sah S/o Rameshwar Sah Resident of Village Lakshrampur P.S. Kalyanpur Dist. Samastipur Respondents --------- For the petitioner: Mr Basant Kumar Chaudhary, Sr. Advocate Mr Bijay Bhushan Prasad, Advocate For the State :Mr Binit Kumar AC to GA 4 For the Respondent no.7: Mr Vikas Kumar Advocate Mr M.K.Thakur, Advocatde -------- 04 04.11.2009 The petitioner having been elected Mukhiya of Gram Panchayat, Jitwaria, Block Kalyanpur District Samastipur has been removed by the State Government under purported exercise of power under section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟). The order is contained in annexure 21 being order dated 3.8.2009 passed by the Secretary, Department of Panchyati Raj, Government of Bihar, Patna. A counter affidavit has been filed by the State in support of its action. All that the counter affidavit states that before taking action due enquiry was made and the petitioner was issued proper show cause and on consideration thereof, action was taken. To the specific averments of the petitioner in regard to the charges levelled and found there is not any contradiction. Respondent no.7 is an intervenor - 2 - respondent who is piloting cause of the public as against the petitioner. He has filed a detailed counter affidavit. In the counter affidavit filed by respondent no.7 various facts have been alleged. As pleadings are complete with the consent of the petitioner writ petition is being for the purpose of disposal at this stage itself. Firstly, it is to be noted that the State has not controverted the averments as made in the writ petition in regard to the charges. This was material as would be apparent from the facts noted herein. On the other hand respondent no.7 has sought to urge that there were several other allegations as against the petitioner and that the petitioner was not a person desirable to be continued as Mukhiya. All that I can say is that when an action is taken based on certain grounds then the validity of the said action has to be judged on those grounds alone. This proposition is well settled by the decision of the Apex Court in the case of Mahineder Singh Gill & another vs. The Election Commissioner and others reported in AIR 1978 SC page 851. The ground or the reason contained in the order can not be supplemented by an affidavit and other documents. Before proceeding I must refer to the statutory provisions of the scheme in regard thereto. Under the Bihar Raj Panchayat Raj Act, 2006 which contemplates a form of local self government in terms of part IX of the Constitution a Panchayat is a democratic body elected by the people who are eligible to vote in a Panchayat Mukhiya is their elected head. Thus, it would be seen that the Mukhiya enjoys virtually the constitutional post being people‟s representative duly elected and - 3 - he is neither an employee of the State Government nor the employee of the Panchayat. He is an elected public representative. This distinction is very important. We are not dealing with a public servant and/ or his removal from employment in pursuant to disciplinary proceeding. Mukhiya can be removed primarily by three processes; (1) by being eliminated (death), (2) by being voted out (vote of no confidence) and (3) by removing by the State Government in terms of section 18(5) of the Act. The ordinary course for removal or Mukhiya for his misdeed would be in the Gram Panchayat by the people who elected him. Removal by the State Government is an exception where notwithstanding will of the people action is taken against will of the people. Thus seen the action has to be viewed in a very strict manner where will of people gets superceded by the action of Government. Mr Basant Kumar Chaudhary, learned senior counsel for the petitioner in this regard relied upon a decision of the Apex Court in the case of Tarlochan Dev Sharma vs State of Punjab & others reported in AIR 2001 SC page 2524 wherein similar provision of Punjab Municipal Act was being considered. There also the provision to remove councillor was based upon “abuse of power/ authority”. The Apex Court has elaborately discussed the matter and held that mere wrong decision or erroneous decision is not an abuse of power or authority. Even a decision not in accordance with law is not an abuse of power or authority. It is something more. Their lordships has held that a singular or causal aberration or failure in exercise of power is not enough. A course of conduct or plurality of aberration or failure in - 4 - exercise of power and that too involving dishonesty of intention is‟ abuse of powers‟ within the meaning of Section 22 of the Act. [Section 18(5) in our Act] While doing so, the Apex Court noted that the legislature could not have intended the occupant of an elective office seated by popular verdict to be shown the exit for a single innocuous action or error of decision. Keeping in view these matters, let us now examine the order in question. Order apparently is an elaborate order but when we come to the findings it lacks in material particular. There is no dispute that the petitioner was granted several opportunities to defend himself but what is found is what is being questioned. The petitioner has been dismissed on three counts. Firstly, it is stated that for the purpose of appointing Panchayat teachers the petitioner had used educational qualification certificate granted by Hindu Sahitya Sammellan, Allahabad which was not recognized institution and thus, abused his power, position and authority. Second charge was that he appointed a lady as Anganbari Savika when her husband had already a fair price shop under government which should not have been done and lastly that he was a party to the grant of old age pension to his mother and other relations. To the three charges aforesaid, petitioner has given explanation but it is specifically not controverted in the counter affidavit. That so far as Hindu Sahitya Sammellan, Allahabad is concerned, as per the circular issued by the District Superintendent of - 5 - Education (Annexure 9) though of a different district, Hindu Sahitya Sammellan, Allahabad was shown duly recognized institution. The petitioner himself has annexed orders of this court in several writ petitions (Annexure 10) by which where appointments based on certificates granted by Hindu Sahitya Sammellan, Allahabad were cancelled and was challenged before this court. Such cancellation of appointments were set aside by this court and the Government was directed to re-consider the matter. It is not in dispute that upon re- consideration the Government re-appointed all those Panchayat teachers who have been shown dismissed. As a matter of fact, these have not been contradicted by the State nor by the private respondent. If that be so, then this ground is not a valid ground for taking any action and is non est. Now we come to the second ground, the appointment of a lady as Anganbari Sevika. The State urges that her husband already held a fair price shop under government and as such she could not be appointed. Reply to this reliance is placed on the order of the Divisional Commissioner (Annexure 18) wherein the appointment of the said Anganbari Sevika having been cancelled the matter was taken in an appeal to the Divisional Commissioner. The Divisional Commissioner in the order in question clearly held that she was competent to be appointed as such, notwithstanding her husband having a fair price shop under government. In view of this finding which has attained finality there is nothing that can be said to be abuse of power or authority in this matter and the ground is again non est. - 6 - Now, we come to the third ground whereby it is stated that the petitioner had granted old age pension to his mother and other relations. The petitioner has stated that he is himself a person below the poverty line. His name is there in the list prepared for this purpose which is annexure-1. The said list was prepared which included the names of three bothers of the petitioner. If all sons of a lady are below poverty line. Can it be said that the widow lady was far above the poverty line?. The list is prepared before even the petitioner was elected Mukhiya. From the impugned order, there is no finding of the State Government, whatever may be the finding in the enquiry, that the persons were not qualified to receive the same. Thus, on these facts, in my opinion, it can not be urged that the petitioner was guilty of “abuse of power/authority“ as contemplated within the meaning of section 18(5) of the Act specially if we keep in view the ratio of the judgment of the Apex Court as noted above. In view of the aforesaid position, it is not possible to uphold the impugned order of the State as contained in Annexure 21 which is accordingly set aside. That being so, there is no vacancy. There can not be any election in this regard. The application stands allowed. shahid (Navaniti Prasad Singh, J)