MW 9K5 1 \2/ HIGH COURT OF CHHATTISGARH, BILASPUR W.P.[C) 2846/ 2009 WRIT PETITION UNDER ARTICLE 225(227 OF THE CONSTITUTION OF INDIA PETITIONER RishikeSh Demath, S/o Late Shanti D60nath, agad abcut 35 years, working as Sarpanch, Gram Panchayat Chanakyapuri, Tahsil Pankajur, Distt. Kanker (CG) Versus ‘ RESPONDENTS 1. State of Chhattisgarh through - Secretaly, Government of e Chhattisgarh, Panchayat and Rural Development Department, D.K. S. Bhawan, Raipur (CG) 2. Director, Directorate of I‘Panchayat, Chhattisgarhg Raipur ‘* (CG) 3. The Collector, Distt. Kanker (CG) 4. Sub Divisional Ofiicer, Tehsil Pakhanjur, Distt. Kanker (CG) 5. Chief Executive OElcer, Janpad Panchayat, Koailibeda Tehsil Pakhanjur, Distt. Kanker (CG) Shri Vivek Verma, Adv; for the petitioner. Shri Satish Gupta, Govt. Adv. for the State. None for respondent No. 5. : HOD’BLE SHRI JUSTICE N.K. AGARWAL SB ORDER (24-6-2009) Shri Gupta submits that the matter is under Article 227 of the Constitution of India and may be heard Without filing any return on behalf of the State. ., 2. With the consent of the parties, the matter is heard finally. 3. The instant petition is directed against the order dated 13-5- 2009 (Annexure P—) passed by the Dlrector Panchayat Chhatt1sgarh 1n Remswn base No 280/A 89/2008 09 whereby the rev1310n preferred by the petitioner has been dismissed and the order passed by the Sub Divisional Omcer / Ppescribed Authority dated I— 10—2008 (Annexure P—6) passed under Section 40 of the Panchayat Raj Adhiniyam, 1993 (for short ‘Act, 1993’) and also appellate order passed by the Additional Collector, Uttar Basna dated 1 1-2—2009 (Annexure P’S) are affirmed 4. Bnef facts of the case are that Vlllagers of vmage Pakhangur subnntted an appdcation before the Sub D1v1s1ona1 Othcer (Revenue) that irregularities are being committed by the Sarpanch of Gram Panchayat Chanakyapura and on the basis of which, a show cause notice was issued to him. He tiled reply on 12~9~2008. On the basis of enquiry report submitted by Sub Divisional Officer (Revenue), since the charges were found proved, the petitioner was removed from the post of Sarpanch. 5. The said order has been affirmed by’the Additional Collector, Kanker in appeal vide order dated 11—2-2009, and also alfirmed by the Director, Panchayat, in Revision Case No. 280/A-89/08-09 vide order dated 13-5—2009 (Annexure P/ 1). Hence this petition. 6. Shri Vivek Verma learned counsel appearing for the petitioner submits that the imougned order has been passed Violating the princ1ples of natural Justlce m as much as neither proper opportunity of hearing was anorded to the petitioner for putting his case and adducing evidence nor evidence of the enquiry officer was recorded, and thus, the impugied order deserves to be set aside. In support of his contention; he placed reliance on judgment of MP High Court in case of Kailash Kumar angi v. State of MP 85 Others ( reported in 2000 (1) MPHT 143). In the said case, Single Bench of MP High Court observed in para 7 as under: “Removal aim disquaiification of an offlce—bearer of a Panchayat under Section 4O of the Act on the ground of misconduct is not less injurious and stigmatic as the removal of a Civil servant under Article 311 of the Constitution of India or a workman under the industrial law. Article 31 1 also envisages as ‘inquiry’ in which the delinquent employee is informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The celebrated rule of audi alteram partem has been incorporated therein. What principles of natural justice should be applied depends upon the facts and circumstances of each case. Broadly stated a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be g‘ven the opportunity of cross—examining the witnesses examined bythat party, and that on materials should be relied on against him Without his being givenr an opportunity of explaining them.” ’47-, D 7. Having haard learned counsel for the parties, having perused the records, I am of the considered opinion that this petition deserves to be allowed on the following gounds: The words “after such inquiry as it may deem flt to make” in the main part of Section 4O of the Act would mean an inquiry which is held in the presence of the oii‘ice—bearer and not behind his back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. n Admittedly, in the present case, neither evidence of inquiry oh‘icer was recorded by the prescribed authority nor opportunity was granted to the petitioner to adduce his evidence, and therefore, the order has been passed violating the principles of natural justice. Although, notice was issued to the petitioner for which the petitioner has filed his reply, but as the charges leveled against the petitioner were grave in nature, the evidence of enquiry ohicer ought to have been taken in presence of the petitioner by affording opportunity of cross—examination to him, but the same was not done. 8. Single Bench of MP High Court in case of Smt. Babita Lilhare v. Shri Surendra Rana and Others (reported in 2004 (5) MPHT 79), observed in para 7 as under: ‘lt is clear that the SDO has illegally relied upon the preliminary enquiry report. Fair procedure required that to establish the charges against the V petitioner witnesses ought to have examined independently by‘ the SDO in proceedings under Section 4O of the Act, the preliminary enquiry which was conducted in the year 2000 was not part of the proceedings under Section 4O of the Act. When the proceedings under Section 40 of the Act are initiated the witnesses are required to be examined before the SDO and opportunity has to be given to the Sarpanch against whom removal proceedings are taken to cross~examine the witnesses, that has not been done in the instant case. Even the report of the preliminary enquiry has’not been supplied to the petitioner and it is clear that during the course of preliminary enquiry witnesses were not cross—examined and that was not proceeding under Section 40 of the Act. SDO committed basis error in asking the petitioner to‘adduce evidence iirst to prove innocence the SDO ought to have first recorded evidence of the witnesses who were supposed to prove the ' charge against the petitioner, if preliminary enquiry was to be used as evidence by the SDO the petitioner ought to have been given the copy of same and if the statements of the witnesses who were not cross-examined during preliminary enquiry were to be relied upon petitioner ought to have gven opportunity to cross-examine then in proceeding under Section 40 of the Act. They ought to have been examined afresh in proceedings under Section 4O and were required to state of facts. Thus, in my opinion when no enquiry has been conducted by the SDO to establish the charges and there is no legal and acceptable evidence to establish the charges against the petitioner and basis procedure adopted is faulty. Removal of petitioner is bad in law. Thus, in my opinion, orders (P-3,P-11 and P- 13) are liable to be set aside and are quashed. ” 9. In the aforesaid circnm stances, I find merit in this petition and it is allowed. The orders dated 13-5-2009 (Annexure P/ 1), 11-2—2009 (Annexure ,P/S) and 1—10—2008 (Annexure P—6) are hereby quashed and the matter is remitted back to the SDO i.e. prescribed authority to proceed in the matter after supplying copy of enquiry report submitted by the enquiry oiiicer to the petitioner and the same shall be examined with opportunity of cross-examination to the petitioner. The petitioner be granted one opportunity to submit his evidence, if any, and thereafter, the SDO shall proceed to decide the matter in accordance with law. The petitioner has to continue as Sarpanch as removal is illegal and consequent to quashment of orders (P-l, P~6 and P~ 8). 10. No order as to costs. Sd/- N.K.Agarwa1 Judge /