^s®" TK-@i A- ^•'•^•^;'''^' Sai.K L(r \-o 7_ ^fe-r^'- IN THE HIGH COURT OF JUDICATURE AT BIIASPUR(C.G.) .?-.6.41.... W'EIT PETITION(C) N0. PETITIONEB : / -^* ^^: 'l/.-^. ..•••' ./•"' ••" „%.'• y-r' ^*'' •»' . ^"-••' ^-\-- OF 2007 Narad Rara sahu.son of sbri Badh Ram sahu.aged about 38 years,Ex. sarpanch of Gram Panchayat Nawagaon,Tehsll- Magarlod,District-Dhsmtari(c.G.) RESPONDENTS .^*w r^y" ^ VE R SU S '• ^l' State of Chhattisgarh.through secretary, Panchayat.D.K.s.Bhawan, Raipur(C.G.) ^2. Director, panchayat, Ralpur,Distrlct-Ralpur(C.G.) 3. Collector,Dhamtari, D-l.strj.ct-Dhamtari(C.G.) ^4. Additional Collector,Dhamtari, Dlstrict-DhaTBtari,(C.G.) 5. sub Divisional Offlcer/ Prescribed Gfficer.Dhamtari, Dlstrlct-Dhamtari(C.G.) 6. Chhummanlal Sahu,son of shrj. Ghaslram sahu.resident of Village-Nawagaon ,Tehsil- Magarlod,District-Dhamtari(C.G.) WS^L-PST^T^-W TOJDER ARTICLE_227 OF THE CONSTITUTION OF mniA. y HIGH COURT OF CHHATTISGARH : BILASPUR S.B. : HO BLB SHRI MAMNDRA MOHAN SHRIVASTAVA. J. Writ Petition (Cj No.3061 of 2007 Narad Ram Sahu RESPONDENTS Versus State ofChhattisgarh & Ors. Petition u/Article 227 of the ConstitutionM India Shri Awadh Tripatlii, counsel for the petitioner. Shri Survaxant Mishra, Panel Lswryer for the State/respondents No. 1 to 5. Shri Prateek Sharma, coi.msel for respondent No-6. (Passedon7.4.2011) 1. This petition has been filed by flie petitioner aggrieved by the order dated 13th March, 2007 (Annexiire P-6) passed in revision by the Director, Panchayat, whereby, the order passed by fhe Collector on 30th October, 2006, remanding the inatter to fhe Sub-Divisional Ofiicer, has been set aside. 2. Case of fhe petitioner is that while fhe petitioner was working as Sarpanch of Gram Panchayat- Navagaon, certaia complaints were inade, on which, proceedings were initiated against the petitioner and a charge sheet (Araiexure P-lj was given which was replied by tfae petiuoner vide Annexure P-2. Thereafter, the Sub Divisional Officer on 1.9.2006 passed an order holdfaig fhat an amount ofRs.1,19,230/- is recoverable from the petitioner. That w -2- !A order was challenged by fhe petitioner by filing an appeal bel'ore the Additional CoUector, who, initiaUy, vide order dated 11.9.2006 (Annexure P-4) stayed the operation of the order of Sub Divisional Ofilcer and fhereafter vide his final order dated 30tfa October, 2006 (Annexure P-5) set aside the order of Sub Divisional Ofllcer and remanded the matter for proper consideration and enquiry in the manner directed fherein. The order of the Addl. Collector was thereafter challenged in revision at the instance of respondent No. 6 -com.plainant. The Director, Panchayat, vide impugned order dated 13U1 March 2007 set aside fhe order of fhe CoUector upholding the order dated 1.9.2006 passed by the Sub Divlsional Officer (R)/Prescribed Authoritv, against which, this petition has been ffled. 3. Assailiag the correctness and validity of fhe order of the Director, which has affirmed fhe order passed by the Sub-Divisional Officer/Prescribed Aufhonty, learned coi.msel for the petitioner submitted that the order passed by the Addl. CoUector did not warrant any interference because fhe Addl. Collector, in its order, clearly recorded fhat the petitioner had submitted certain records relattng to construction and upon perusal ot' the sain.e, fhe Addl. Collector formed an opinion that the matter requires proper consideratiion on fhe basis of tlie records and the matt.er was therefore remanded for proper consideration. Leamed counsel for the petitioner further submits (hat fhe order of ttie Sub Divisional Officer is also bad in law, because, the Sub Divisional Ofiicer E^. s 4. ^ •WSSS':. ' S e-ssasa, s -3- u<a *' heavity reiied on an enqiriry report, which report was never supplied to the petitioner and he was not shown any document and was also not given any opportunity to adduce his evideiice. Leamed counsel for the petitioner, fherefore, submits fhat the opinion formed by the Sub Dhdsional Oflicer was periunctoiy and was rightly interfered with by the Additional CoUector. 4. On the ofher hand, leamed counsel for the State/respondents No. 1 to 5 submits that fhe petitioner was afforded due and proper opportunity before the decision was taken by the Sub Divisional Officer fhat an amouiit of Rs.1,19,230/- is recoverable against the petitioner. He submits that a notice was given to the petitioner to show cause and the petltioner submitted his detailed reply. The Sub Divisional Ofii.cer considered the report of the Chief Executive Officer and also heard the concemed authorit\' namely- Paiichayat Inspector and the Enquiry Ofiicer on 1.9.2006. Therefore, the order of recoveiy against fhe petitioner was justiiied. He furfher submits fhat even though fhe order of recovery was based on niaterial coUected during enquiiy, on fhe basis of which, the charges were foijnd proved by the enquir^' officer, the Addl. CoUector was not justt&ed in' interfering witli such order and tlierefore tlie Revisional Aufhority was justified in interfering with the order of the Addl. Coflector and upholding fhe order passed by tfae Sub Divisional Ofiicer. 5. Leamed counsel for fhe respondent No.6 argued that fhe petitioner while working as Sai-panch caused loss to the Gram ^^^^3fe;. ^K^M^ -4- 8- ^- Panchayat and was also found keeping various articles and propert}7 belonging to Panchayat, in respect of which, on compliajit made by respondent No.6, a detailed enquir}' was made by the Chief Executive Officer. In fhat enquiry, the petitioner was also allowed to participate and his own statements were also recorded. He furtlier submits that on many aspects, the petitioner had no answer aad he completety failed to explain for certsan irregularities, particularly those relating to tlie log -woods and submersible pump kept by hmi hi fhe nam.e of safe custod}7. He further submits that the petitioner has filed this petition statin^ fhat fhe proceedfaigs against him have been taken iinder Section 40 offhe Panchayat Raj Adhmiyam, 1993 (hereinafter referred to as "the Act of 1993") and has chailenged the same on such an assum.ption, which is completely erroneous, because, in fact, the Sub Divisional Officer proceeded against the petitioner under Section 92 of fhe Act of 1993 for the lim.ited pi-upose of recoveiy. The Sub Divisional Ofilcer formed an opinion based on material available on record and, fherefore, it cannof be said that he acted in any mamier which is arbita-aiy or violative of principles of naUiral justice. Lastly, it is submitted that the petition is not properly const-ituted inasmuch as though the petitioner has titled the petition as petition under Article 227 of the Constitution of India, in the relief clause, the petltioner has prayed for issuance of writ in the nature of certiorari. '^ ^- -5- gu 6. I have heard leamed counsel for the parties and perused fhe records. 7. In fhe petition before fhis Court, (he petitioner has raade very specific averments of fact tn para-3 of the petition tliat the order irapugned is in violatioii of pruiciples of natural justice based on secret/prelimmar}.' enquiry and that he was not suppBed fhe copy of enquiry report and was not shown any dociunent nor given aaay opportunity to adduce evidence. These averments have gone i-m- rebutted by respondents 1 to 4. In para-6.1 of the grounds also, the petitioner has raised grievance that he was not aflbrded opportunity of being heard in respect of chai^es and the evidence of the opponents should have been taken in his presence and should have been allowed. to see all the relevant evidence and given opportLirdU' of CToss-examination of witnesses. In fhe absence of any specific denial of these facts, one tMng is clear fhat the enquin' report, which was heavUy relied by the Sub Divisional Officer, was not supplied to the petitioner. The order of the Sub Divisional ofBcer shows that it was enqutry report on the basis of which the Sub Divisional officer formed an opinion fhat the charges are proved. i. The order passed by fhe Sub Divisional Officer on l.9.2006 shows that the Sub Divisional Ofiicer himself has not considered the chai^es against the petitioner nor has recorded any finding with regard t.o ea.Gb of the charges after considering the evidence/material on record, nor he has taken into consideration iy 'fi-i '•*-. -6- the defence of fhe petitioner. Taldi-^ mto consideration the scheme of Section 92 of the Act of 1993, fhe Sub Divisional OtBcer is required to form an opinion. Such opuiion is required to be based on obiective consideration of the material on record. Therefore, fhe Sub Divisional Ofiicer is required to undertake an exercise and consider material on record and record its own finding with regard to the fact fhat recoverv of monev is to be made. However, I find fhat the Sub Divisional Officer has not considered the matter and by merely referrtng to the report of the Chief Executive Officer, he has held the petitioner liable for recovery. 9. The Addl. Collector m its order dated 30tt> October, 2006 (Annexure P-5) recorded fhat the petitioner has submitted various docuinents, which show that the matter reqiiires proper enquir^r and after recording such finding, fhe niatter was remanded to the Sub Divisional Ofiicer. The Revisinonal Authority has interfered with fhe order of fhe Collector by recordtng that the Sub Divisional Ofiicer considered the material on record to come to the conclusion fhat fhe ainount of Rs. 1,19,230/- was recoverable from the petitioner, based on the report of the Chief Executive Officer, who found those charges as proved and that. some other officers were heard by the Sub Divisional Ofiicer before fastenins UabUity on the petitioner. It has also been held that the complainant was not heard by fhe Collector and that the Sub Divisional Officer after inspection and assessment of detailed •i'^ enquir;^ report, muster-roU and Panchayat records, passed fhe order on 1.9.2006. As I have held hereinabove, the Sub Divisional OfGcer really did not enter tnto any exercise of examination and assessinent of material available on record and, therefore, the fmding of the Director, Panchayat in that regard is not coiTect. The other reason assigned by the Director, Panchayat, was that tn the enquiry held by the Chief Executive Ofiicer charges were found proved. However, in view of what has been stated above, that there is no denial of respondents No. 1 to 4 that. copy of enqufay report was not supplied to the petitioner, interference in revision on fhat ground was not warranted. The fhird ground for interierence that complainant was not heard, at the m.ost, cozild be made a basis to remand the matter for consideration. 10. As far as the objection raised by learned counsel for the respondent No.6 that the petitioner has challenged the order of recovery as one passed in the proceedmgs for removal, I do not. think it is such a substantial defect as to throw fhe petition on that grouiid. The contents of the petition, ground raised therein and the relief sought, show that fhe petitioner intends and has in fact, assailed the correctness and validity of the order of recovery and subsequent orders passed iji revision by the Revisional Autliority. As far as the objection wifh regard to the maintainability of the petition on tlie ground that fhough tfae petition is styled as petition under Article 227 of the Constitution of India, yet, a relief in fhe nature of certiorari has been sought, -8- suffice to say, the supervlsory jurisdiction of this Court is wide enough to grant appropriate relief once it is found fhat fhe Tribunal has failed to act wifhin fhe bounds of its jurisdiction. Therefore, notmthstanding that tlie petitioner has sought issuance of writ in the nature of certiorari, in the circumsfances, fhis Court is having ample jurisdiction to treat the petition as petition under Article 227 of the Constitution of India and pass appropriate orders. 11. As a result 01 discussions hereinabove, I ain of fhe view that the order dated 13.3.2007 (Annexure P-6) passed by the Director, Panchayat is not sustainable m law. The same is liable to set aside and is accordingly set aside. The matter shall now be remanded to the Sub Divisional Officer as per fhe order passed by the Addl. Collector on 30. 10.2006 (Annextire P-5). 12. The Sub Divisional Officer shaU supply to fhe petitioner, copy of the enquuy report and the documents attached therewith. The petitioner would be at liberty to submit his evidence on record. The Sub Divisional Officer shall consider the entire material on record and then decide the matter with regard to fhe recoveiy in accordance with the provision contained in Section 92 of the Act of 1993. The entire exercise shall be completed by the Sub Divlsional Officer within an outer lunit of 6 months from the date of receipt of copy of fhis order. 13. The petition is accordingly partly allowed. Pfav^n. ^lan.todta sdLsw'vastava ^lottao' 3udfee