IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1525 of 2011 SHYAMLI DEVI . Versus THE STATE OF BIHAR & ORS . ----------- 2. 25.02.2011 Heard learned counsel for the petitioner and the State. The petitioner was elected as Mukhiya of Gram Panchayat Raj, Dariyapur under Sahkund Block in the District of Bhagalpur. She is aggrieved by the order dated 8.12.2010, passed by the Principal Secretary, Department of Panchayati Raj, unseating her from that post in exercise of powers under Section 18(5) of the Bihar Panchayati Raj Act (hereinafter referred to as the „Act‟) after giving a show cause notice and consideration of the reply with regard to 12 charges. Learned counsel for the petitioner contends that comments of the District Magistrate had been called for on the cause shown by the petitioner. A copy of the same was not given to the petitioner with opportunity to rebutt the same but it has been relied upon by the Principal Secretary to indict the petitioner amounting to admission of evidence behind her back. The next submission is that no sooner that the alleged excess withdrawal 2 was pointed out, it has been deposited. It was not misappropriation but only temporary excess withdrawal in anticipation of expenses. Learned counsel for the State refers to the cause shown by the petitioner read with the discussion in the impugned order of the manner of defence taken by the petitioner before the Principal Secretary. Section 18(5) of the Act provides for the removal of a Mukhiya if she abuses the powers vested in her or is found guilty of misconduct in discharge of duties after giving reasonable opportunity. The dictum laid down by the Supreme Court in 2001 SC 2524 (Tarlochan Dev Sharma Vs. State of Punjab & Ors.) at Paragraph-10 for the yardstick of misconduct has no application to the facts of the present case in view of the admission of the charges by the petitioner. The words “reasonable opportunity” used in the statute cannot have a uniform meaning or yardstick. Its requirement and fulfillment as a facet of natural justice shall depend on the facts and circumstances of each case. Therefore, the facts of each case will have to be looked into to decide whether reasonable opportunity was provided or not. 3 If the allegations are of misconduct in discharge of the office of a Mukhiya to the satisfaction of the State Government, the Court cannot sit as an appellate authority over the State Government to decide whether it constitutes a misconduct or not. Even it were to examine in a fit case, the present certainly does not appear to be one such case as each of the 11 charges relates to discharge of duties as Mukhiya with regard to public schemes to be executed in the village alleging excess withdrawal without completion of works. The question of non furnishing of the comments of the District Magistrate denying reasonable opportunity to the petitioner has to be examined also in light of the fact whether any prejudice has been caused to the petitioner. If no prejudice has been caused, non furnishing of the report of the District Magistrate may not be sufficient to vitiate the decision. In her reply to the show cause notice at Annexure-4, the petitioner states that in the on going schemes some irregularities in payment were noticed by the Deputy Development Commissioner in excess of the work. In pursuance of the letter of the Deputy Development Commissioner dated 7.1.2009, a sum of Rs. 4 1,47,957.60 paisa had been directed by the petitioner to be deposited by the concerned contractor. The sum of Rs. 1,47,957/- had been deposited. To the Court, this deposit made after the allegations were made amounts to an admission of the charges. It has to be kept in mind that the money for the scheme is withdrawn under the signature of the Mukhiya. The Mukhiya therefore cannot express ignorance or claim absolving her of liability. That others may also be liable is a different matter but shall not be sufficient to absolve the Mukhiya when matters of financial misappropriation as distinct from administrative misadventure are concerned. This aspect of the mater has already been considered by this Court in C.W.J.C. No. 923 of 2011 holding as follows:- “Section-18(5) of the Act provides for removal of a Mukhiya abusing the power or found guilty of misconduct after grant of reasonable opportunity for explanation. What shall be the connotation of the words “after reasonable opportunity for explanation” cannot be put in a straight jacket formula and the connotation thereof shall necessarily depend on the facts of each case. When a Mukhiya is removed in exercise of executive powers under Section-18(5) of the Act, on alleged grounds of dereliction in discharge of duties, the position becomes akin to that of a departmental proceeding 5 where a delinquent is proceeded with for misdemeanours committed on duty. The law stands well settled that where a charge is admitted, procedural infirmities, if any, are irrelevant. The question of a personal hearing may have assumed importance if the petitioner had denied the charge. Once the petitioner has admitted the charge and the misappropriated money has been deposited with the Government, any explanation that she may have had seeking to cast the burden on others, unacceptable to the State Government, cannot be re-examined by the Court to arrive at a different conclusion only because such a conclusion may also be possible. In AIR (2008) 5 SCC 569 (V.S.P. v. Goparaju Sri Prabhakara Hari Bab) it has been held at paragraphs 16, 17 and 18 as follows:- “16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct. 17. In Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad1 this Court noticing Section 58 of the Evidence Act held at Paragraph-214 as follows:- “214. In terms of the aforementioned provision, things admitted need not be proved. In view of the admission of Respondent 1 alone, the issue as regards allotment of 6475 6 shares should have been answered in favour of the appellants. The company petitioner at a much later stage could not be permitted to take a stand which was contrary to or inconsistent with the original pleadings nor could she be permitted to resile from her admissions contained therein.” 18. It was observed that judicial admissions can be made the foundation of the rights of the parties.” The petitioner acknowledges that money was withdrawn under her joint signature. That it may have been done on the recommendation of the Panchayat Secretary, becomes irrelevant insofar as the question of exercise of powers of judicial review over such an order is concerned. The answerability for the present proceedings remains vicarious. The impugned order does not accept her explanation with regard to Plan Case No.8/06-07. The area of the work was the same block and excess withdrawals were by the same Panchayat Secretary of Rs.81,785/-. There is no occasion for the Court to go into that question as the Court is satisfied that on the finding as discussed above with regard to Plan Case No.7/06-07, the present case calls for no interference in exercise of the discretionary jurisdiction of this Court. IN AIR 1966 SUPREME COURT 951 "R. Jeevaratnam v. State of Madras" it has been held at paragraph- 5 as follows:- “5. ……Our attention is drawn to similar observations in Sudhir Ranjan Haldar v. State of West Bengal, AIR 1961 Cal 626. With respect, we are unable to agree with this line of reasoning. An order of dismissal with retrospective effect is, in substance an order of dismissal as from the date of 7 the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order.” If there were two grounds and even if one of them fails, as the petitioner urges, yet in the nature of the first charge itself, coupled with the admitted stand of deposit taken by the petitioner, the Court is satisfied that the order calls for no interference. A Mukhiya holds an elected post in trust to the electorate. Allegations of misconduct and abuse of powers under Section 18 (5) of the Act can be varied in nature, purely administrative or financial involving public funds. The criteria for examination of the two acts shall necessarily have to be different. A solitary act in the case of administrative misadventure can not be put at par with allegation of financial misdemeanors. Considering the position of trust held by the Mukhiya and that he deals with public funds, a single misadventure on financial aspects, if proved can be sufficient to dislodge him.” Once the charge is admitted, the law stands well settled that any procedural infirmities in the decision making process is not relevant as admitted charges need not be proved. From the impugned order in context of 8 the 11 charges it appears that the petitioner has answered and deposited the amount in question with regard to charge no. 1. She never submitted any reply to the charges 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12. If the petitioner gave no denial to the allegation in her reply to the show cause notice, she cannot make a grievance of the final order. In so far as charge no. 7 is concerned, there appears to be no consideration whether the petitioner had filed any reply to the same or not. Even if the argument on behalf of the petitioner is accepted and charge no. 7 is held not be to proved, the impugned order is still capable of severance from the good part and the bad part, if out of 12 charges, charge no. 7 is not proved and 11 charges stands proved on which the order is sustainable, the Court finds no reason to interfere with the same. The writ application is dismissed. P. Kumar ( Navin Sinha, J.)