IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12032 of 2011 ====================================================== Pramod Kumar Rai S/O Shital Rai R/O Vill.- Jitbaria, P.S.- Kalyanpur, Distt.- Samastipur .... .... Petitioner/s Versus 1. The State of Bihar 2. The Principal Secretary, Panchayat Raj Department, Govt. Of Bihar Patna 3. The Director, Panchayat Raj Department, Govt. Of Bihar Patna 4. The Deputy Director, Panchayat Raj Department, Govt. Of Bihar Patna 5. The District Magistrate, Samastipur, Distt.- Samastipur 6. The Sub- Divisional Officer, Samastipur, Distt.- Samastipur 7. The Executive Magistrate, Samastipur, Distt.- Samastipur 8. The Block Development Officer, Kalyanpur Block, P.S.- Kalyanpur, Distt. Samastipur 9. Sunil Kumar Sah S/O Sri Rameshwar Sah R/O Vill.- Lakshrampur, P.O.- Jitbaria, P.S.- Kalayanpur, Distt.- Samastipur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bijay Bhushan Prasad For the Respondent/s : Mr. Gautam Bose, AAG-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 27 16-07-2012 The petitioner prays for quashing the order contained in letter no.164 dated 17.06.2011 of the Principal Secretary, Panchayati Raj Department, Bihar, Patna, whereby the petitioner was removed from the post of Mukhia in exercise of power under Section 18 (5) of the Bihar Panchayat Raj Act, 2006. 2. Before I consider the rival submissions of the parties, it would be necessary to notice the facts of the case in brief. The petitioner was elected as Mukhia of Gram Panchayat Raj, Jitbaria in Kalyanpur Block in the district of Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 2 / 9 2 Samastipur in Gram Panchayat Election 2006 and took oath of office of Mukhia on 25.06.2006. The term of five years of Mukhia came to an end on 24.06.2011. The petitioner again contested for post of Mukhia, Gram Panchayat, Jitbaria in 2011. The election was notified for the post of Mukhia on 27.02.2011. The petitioner filed his nomination on 29.03.2011. The election was held on09.05.2011 and the result was declared on 24.05.2011. The petitioner was declared elected as Mukhia by margin of over 327 votes. The petitioner took oath of the office of the Mukhia of Jitbaria Gram Panchayat on 25.06.2011. The impugned order removing him from the post of Mukhia was passed on 17.06.2011 prior to taking of oath, on 25.06.2011. 3. In 2006 election, the petitioner defeated one Santosh Kumar Jha by margin of 317 votes. A difference arose with Sunil Kumar Sah in 2006 Panchayat election, an ardent supporter of Santosh Kumar Jha. Sunil Kumar Sah lodged a complaint against the petitioner, leading to a proceeding before the District Magistrate, Samastipur who recommended for his removal to the State Government under Section 18 (5) of the Bihar Panchayat Raj Act. The petitioner was ultimately removed from the post of Mukhiya on 03.08.2009. 4. The order of removal was passed on following three charges namely; (a) the petitioner was appointed Panchayat Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 3 / 9 3 Teachers on the basis of certificate granted by Hindi Sahitya Sammellan, Allahabad, which was not a recognized institution, (b) the petitioner appointed a lady as Anganbari Savika when her husband was a fair price shop dealer and (c) he granted old age pension to his mother and other relations. The petitioner challenged the removal vide C.W.J.C. No.9673 of 2009. This Court by order dated 04.11.2009 found the charges baseless and struck down the removal order. The said Sunil Kumar Sah had intervened and opposed the writ application. 5. The said Sunil Kumar Sah also filed a P.I.L. bearing C.W.J.C. No.6326 of 2010. The writ application was disposed of with a direction to the District Magistrate, Samastipur to look into the irregularities alleged to be committed by the petitioner. 6. The District Magistrate vide notice dated 20.05.2010 asked the petitioner to show cause in respect of alleged illegalities committed in distribution of compensation allotted for crops damaged in the year 2007 in view of report of Sub- Divisional Officer, Samatipur contained in letter no.888 dated 31.12.2009. The District Magistrate also annexed letter no.123 dated 03.04.2010 of Sub-Divisional Officer, Samastipur. 7. The petitioner filed his detailed show-cause on 08.06.2010 (Annexure-15) denying the allegations. Not being Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 4 / 9 4 satisfied with the show-cause, the District Magistrate vide letter no. 986 dated 19.08.2010 recommended to the Government for taking appropriate action under Section 18 (5) of the Act. 8. It is relevant to state that some additional allegations like not granting compensation for damage of crops to Mansoor Alam, Rupa Devi, Dinesh Rai, Chaturbhuj Rai, Devi Narayan Sharma, Vishwanath Rai and Ram Naresh Rai were also added. The Panchayati Raj Department vide letter dated 20.10.2010, issued show cause under Section 18(5) of the Act. The department relied upon letter no. 888 dated 31.12.2009, which is an enquiry report of Sub-Divisional Officer, Samastipur. The petitioner replied to the show-cause on 16.11.2010 (Annexure-18) The Panchayati Raj Department called for the opinion of the District Magistrate on show-cause reply of the petitioner. The District Magistrate vide Memo no.1350 dated 22.12.2010 submitted his opinion. The Department vide letter no.2219 dated 29.03.2011 forwarded the opinion of District Magistrate, Samastipur to petitioner for his comment. Again vide letter no.3224 dated 27.04.2011, the petitioner was granted opportunity to submit explanation within 15 days to the response of the District Magistrate. The petitioner’s case is that 2nd show-cause dated 29.03.2011 and 27.04.2011 of the department of Panchayati Raj Department was never served upon him, thus denying him Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 5 / 9 5 opportunity to meet those charges. The respondent no.2 (Principal Secretary, Panchayati Raj Department) on the basis of materials on record, passed order removing him from the post of Mukhia vide letter no.164 dated 17.06.2011, as contained in Annexure-23, which is impugned in this writ application. 9. It appears that respondent no.2 on perusal of materials on record came to a finding that while paying compensation the petitioner and the Panchayat Secretary illegally took money from the farmers. The respondent no.2 observed that petitioner recommended compensation to the family of Bhola Sharma and Sitaram Sharma separately and a sum of Rs.7200/- was paid to Sarpanch as compensation. Furthermore, compensation was denied to Mansoor Alam, Rupa Devi, Dinesh Rai, Chaturbhuj Rai, Devi Narayan Sharma, Vishwanath Rai and Ram Naresh Rai, as they did not give the money to the petitioner, as contained in report of Executive Magistrate in letter no.1220 dated 05.12.2008. Besides this, the respondent no.2 noticed that there were some corrections in the compensation list which did not bear the signature of the Mukhia. Further more, four more persons were awarded compensation, whose name did not find mention in the list prepared at the Panchayat level by Revenue Clerk, Panchayat Secretary, Circle Inspector. 10. The petitioner submits that respondent no.2 has Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 6 / 9 6 committed an error of record in stating that the Executive Magistrate in his letter no. 1220 dated 05.12.2009 has reported that Mansoor Alam, Rupa Devi and others were denied compensation, as they failed to oblige him. The petitioner next submits that Vishwajeet Sharma, his wife Mewena Devi were granted separate compensation besides Bhola Sharma (father of Vishwajeet Sharma), as Jamabandi of land ran separately in their names. Similarly, Sitaram Sharma, his wife Kamni Kaushal and his son Kaushal Kishore were granted compensation, as their names separately appeared in Jamabandi. The compensation was granted to Umesh Chaudhary, Sarpanch of Jitwaria Gram Panchaya, as his name figured in the list of farmers prepared by the Revenue clerk, Panchayat Secretary, Circle Inspector on direction of District Magistrate, Samastipur and Circle Officer – cum-Block Development Officer, Kalyanpur Block. 11. In respect of charge that compensation was paid only when illegal gratification was offered, reference has been made to only one witness Chaturbhuj Rai. The name of no other witnesses has been cited in respect of these charges, though a large number of persons have been granted compensation. 12. In my view, reliance on evidence of solitary witness for pinning guilt on a person particularly when the petitioner did not get an opportunity to cross-examine him would Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 7 / 9 7 be like walking on a thin rope. So far as matter involving irregularity in preparation of list of beneficiaries or the illegalities in making payment of compensation is concerned, the A.D.M., Samastipur in his enquiry report contained in letter no.204 dated 27.04.2011 has absolved the petitioner of committing any act of omission and commission in that regard. The A.D.M., Samastipur in this context has held that the others are responsible for wrong distribution or illegalities in various registers. 13. The stand of the petitioner is that compensation was paid for damages of crop to all, whose name appeared separately in Jamabandi and thus no favour were shown either to the family of Bhola Sharma and Sitaram Sharma. The recommendation was made by committee and not petitioner alone. Furthermore, compensation was given to Sarpanch, as he too suffered damage of crops and his name appeared separately in Jamabandi. The grant of compensation to different members of a family can be a bona fide error of reasoning in absence of any clear guidelines that even if the name of members appear separately in Jamabandi, still compensation would be provided to only one member of the family. 14. Another charge against the petitioner is that he recommended compensation for the family of Bhola Sharma and Sitaram Sharma separately and a sum of Rs. 7200/- was paid to Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 8 / 9 8 Sarpanch as well. Furthermore, he alone did not make the recommendation. An error of judgment or a wrong decision unless influenced by ulterior consideration may not be adequate for fixing guilt. In this case such evidence is lacking. In the circumstances, I am inclined to grant benefit of doubt so far as this charge is concerned. 15. The other charge is that compensation was not paid to 5 to 6 persons, as they refused to pay illegal gratifications either to the petitioner or to the Panchayat Secretary. The statement of such witnesses were duly incorporated in the enquiry report and have also been taken into consideration by respondent no.2. The petitioner has not been able to controvert the charge, such charge would amount to misconduct. On this charge alone, the order of removal under Section 18 (5) of the Act is sustainable and thus requires no interference. 16. The petitioner lastly contended that the second show-cause dated 29.03.2011 and 27.04.2011 were not served upon him and as such the order of removal is bad. The contention of the respondents is that the petitioner deliberately avoided service of second show-cause in order to delay the proceeding under Section 18 (5) of the Act. There is nothing on record to disbelieve the version of the respondents. Thus the plea of petitioner is rejected. Patna High Court CWJC No.12032 of 2011 (27) dt.16-07-2012 9 / 9 9 17. The petitioner submits that a recovery proceeding has been initiated and an F.I.R. has been instituted against him without sufficient cause and reason. It will be open for the petitioner to take all such pleas in the concerned proceeding by filing his reply which would be considered in accordance with law. 18. With the aforesaid observation, this application is disposed of. Uday/- (Samarendra Pratap Singh, J)