IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8954 of 2010 Arjun Paswan s/o late Fakira Paswan resident of village Methnapur, P.S. Minapur Dist Muzaffarpur Petitioner Versus 1. The State of Bihar 2. The Principal Secretary, Panchayati Raj, Govt. of Bihar, Patna 3. The Conducting Officer, Panchayati Raj Department, Govt. of Bihar 4. The District Magistrate, Muzaffarpur 5. The District Education Officer, Muzaffarpur 6. The Sub-divisional Officer, East, Muzaffarpur 7. The Block Development Officer, Minapur, Muzaffarpur 8. The Headmaster, Primary School, Musachak, Raghopur Panchayat, Minapur, Muzaffarpur Respondents --------- For the petitioner: Mr Ramakant Sharma, Sr. Advocate Mr Arvind Kumar, Advocate For the State: Mr Ranjan Kumar, AC to AAG IV --------- 04/ 15.07.2010 Heard learned counsel for the petitioner and learned counsel for the State of Bihar and its authorities. 2. This petition has been filed by the petitioner challenging order dated 26.04.2010 (Annexure 1) vide Memo no. 3242 under the signature of the Principal Secretary Panchayti Raj, Government of Bihar removing the petitioner from the post of Mukhiya Raghopur Panchayat (Minapur Block, Muzaffarpur District) under the provision of section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’ for the sake of brevity). 3. Learned counsel for the petitioner has stated that he was duly elected as Mukhiya of the aforesaid Panchayat in the year 2006 and since then he has been functioning as such. He further states that the petitioner received complaint (Annexure 2) in the month of January, 2009 duly signed by the member of Panchayat Shiksha Samiti, Panchayat member and large number of the local residents - 2 - making allegation therein that one Pawan Kumar panchayat teacher at Primary School, Musachak was throughout absent from the school but was receiving payment in connivance with the Headmaster of the concerned school. It is also stated that in pursuance of the aforesaid complaint petitioner requested the Headmaster of the said school to produce attendance register so that the allegation made against the said teacher could be verified but the said Headmaster did not produce the register in spite of repeated request. It is also stated that the said teacher Pawan Kumar happens to be close relative of local MLA and was using the clout and in connivance with the Headmaster of concerned school a new attendance register of panchayat teachers was prepared showing attendance of the said panchayat teacher whereas the original attendance register prior to September, 2007 was claimed to be destroyed in flood of 2007. This report was made by the Headmaster much later on 28.08.2009(Annexure 3). It is further stated in the said circumstances, petitioner kept the salary of the aforesaid panchayat teacher pending for verification of the allegation made against him and when higher authorities directed the petitioner to make payment to the said teacher, salary was paid to the said panchayat teacher on 12.11.2009 and it was conveyed by the petitioner to respondent no.2 and other concerned authorities. 4. Learned counsel for the petitioner further submits that on the request of the Block Development Officer vide letter dated 17.06.2009( Annexure 6) proceeding was initiated against the petitioner on the aforesaid ground whereafter on the direction of respondent no.2 show cause was submitted by the petitioner on - 3 - 22.09.2009 (Annexure 9) and 12.11.2009 (Annexure 5). He further states that subsequently on 27.01.2010 respondent no.2, the Principal Secretary, Panchayati Raj Government of Bihar, Patna asked detailed report from the District Magistrate, Muzaffarpur whereafter the District Magistrate submitted a report on 16.03.2010 against the petitioner and the said report was accepted by respondent no.2 without giving any notice or information thereof to the petitioner and passed his impugned order on 26.04.2010 (Annexure 1) removing the petitioner from the post of Mukhiya. He thus submits that this act of the authorities was completely violative of the Rule of natural justice and hence the said order is fit to be quashed. 5. On the other hand learned counsel for the respondents vehemently contests the claim of the petitioner and submits that admittedly the said panchayat teacher was not paid his salary since September, 2008 till February, 2009 which is quite serious matter as it affects livelihood of the teacher and his family also causing mental agony to them. He further states that even after the direction of the authorities concerned dated 30.05.2009 payment was not made to the said teacher and said payment was subsequently made in November, 2009 when the proceeding started against the petitioner. Learned counsel for the respondents also submits that orders were passed in accordance with the provision of law and the authorities had ample jurisdiction to pass the said order after due enquiry. 6. Considering the arguments of learned counsel for the parties as well as materials on record, it is quite apparent that the impugned order was passed under section 18(5) of the Act and the - 4 - authorities concerned respondent no.2 and respondent no.4,namely, the Principal Secretary, Panchyati Raj, Government of Bihar, Patna as well as District Magistrate, Mizaffarpur were authorities to take necessary steps under the Act. But the question involved in this case is whether they have exercised their jurisdiction in accordance with law not violating any principle of natural justice as clause 3 of the notification dated 26.08.2008 (Annexure A) provided that Enquiry Officer shall enquire and decide the matter on the basis of the evidence and the proceeding in accordance with the Code of Civil Procedure, 1908. 7. It is quite apparent from the impugned order dated 26.04.2010 (Annexure 1) that although the petitioner was noticed in the case earlier in response to which he filed his show cause dated 22.09.2009 (Annexure 9) and 12.11.2009 (Annexure 5) but thereafter when the matter was sent to the District Magistrate for further enquiry who submitted his report on 16.03.2010, it was the duty of respondent no.2 the Principal Secretary, Panchyati Raj, Government of Bihar, Patna to issue notice to petitioner about the said report and only thereafter he could have passed any order in accordance with law. The said exercise not having been done the said authority has clearly violated the principle of natural justice as the petitioner was deprived from contesting the report of the District Magistrate dated 16.03.2010. 8. In addition to the above facts the aforesaid section 18(5) of the Act power is conferred upon the State Government for removal of Mukhiya with no provision of appeal and furthermore, the said removal casts a serious stigma on the personal and public life of the - 5 - concerned person and results in his disqualification to hold such office in future. In the said circumstances, power exercised under section 18(5) of the Act has serious civil consequences on the status of Mukhiya. There being no sufficient guidelines in the said provisions as to the manner in which power has to be exercised except that it requires that a reasonable opportunity of hearing should be afforded to the office bearer proceeded against. 9. Keeping in view the nature of the power and the consequences that flows on its exercise, such power should be invoked by the State Government only in a very extreme case with strong reason and should not be exercised for minor irregularities in discharge of duties by the holder of the elected post namely Mukhiya specially because he occupies the said post by election and he is deprived of the office by an executive order in which electorate has no chance for participation. In this regard reference may be made to two decisions of the Apex Court in the case of Sharda Kailash Mittal Vs State of M.P. & ors reported in 2010(1) Supreme To-Day 102 as well as in the case of Tarlochan Dev Sharma Vs State of Punjab reported in (2001)6 Supreme Court Cases 260. 10. Furthermore, the consequences of order being very distressful, it should not have been passed in such a casual manner and if order passed suffers from casual approach, it is violation of the Rule of natural justice. After the enquiry report of the Collector to the Government for removal of the petitioner was received, issuance of notice subsequent to the report of the Collector was essential so that the petitioner could have the opportunity to reply on the issues raised - 6 - by the Collector. No such opportunity having been allowed to the petitioner, the Rule of natural justice has clearly been violated and hence the removal of petitioner from the post of Mukhiya can not be held to be legal, valid and proper. In this regard reference may be made to a decision of a bench of this court in case of Abhinyata Kumari Vs The State of Bihar & Ors reported in 2010 (2) PLJR 119. 11. In view of the aforesaid facts and circumstances, this Court is constrained to quash the impugned order of the Principal Secretary, Panchyati Raj, Government of Bihar, Patna as contained in Memo no.3242 dated 26.04.2010 (Annexure 1). Accordingly this writ petition is allowed. However, if the respondents find sufficient materials they may issue fresh notice to the petitioner and pass a fresh order keeping in view of the aforesaid observations/directions after giving due opportunity to the petitioner to place his case . Till any such further order is passed by the said respondent no.2, the petitioner shall continue as Mukhiya of the aforesaid Gram Panchayat. 12. Let a copy of this order be handed over to learned counsel for the respondents for needful. shahid (S.N. Hussain, J)