IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7546 of 2009 ABHINYATA KUMARI w/o Vinod kumar, resident of village- Makarpur, P.S. Makhdumpur, District- Jehanabad. Versus 1. THE STATE OF BIHAR 2. The Principal Secretary, Panchayati Raj Department, Govt. of Bihar, Patna. 3. The Secretary, Human Resources Development Department, Bihar, Patna. 4. The Dy. Director Election, Panchayati Raj Department, Bihar, Patna. 5. The Commissioner, Magadh Division ,Gaya. 6. The District Magistrate, Jehanabad. 7. The District Education Officer, Jehanabad. 8. The Block Development Officer, Makhdumpur, District- Jehanabad. ----------- For the Petitioner : Mr. Ramakant Sharma, Sr.Adv. Mr. Laxmikant Sharma & Mr. Uma Shankar Sharma. For the State : G.P. 11 For Intervener : Mr. Bindhyachal Singh Mr. Umesh Kumar 5 14.1.2010 The petitioner is the Mukhiya of Makarpur Gram Panchayat within Makhdumpur police station in the district of Jehanabad. By order of the Principal Secretary, Panchayati Raj, Govt. of Bihar, dated 29.7.2009, as contained in Annexure 6, the petitioner has been removed from the post of Mukhiya in terms of Section 18(5) of the Panchayati Raj Act for alleged irregularity committed in appointment of Panchayat Shikshaks. The petitioner challenges the order on two grounds. Firstly, the procedure that was adopted for passing the said order, which was serious repercussion and adverse civil consequences, is not in accordance with the principle of natural justice inasmuch as the Government had given an undertaking in the legislative body for action against the petitioner and thereafter asked the matter to be enquired into by the Collector requesting the 2 Collector to send recommendation for initiating a proceeding for removal of the petitioner pursuant whereto the Deputy Director issued notice to the petitioner, which petitioner replied and the order impugned would show that that was an empty formality because the State had already undertaken to remove the petitioner and had sought specific recommendation in this regard from the Collector. All of which were done prior to the order itself and is noted in the order itself. The second ground is that even otherwise the order talks of all actions taken including the proceedings of Legislative Assembly, the enquiry got done from the Collector ,the allegation as against the petitioner but there is not a single line of any consideration and for that matter petitioner’s show cause nor any reason disclosed for finding the petitioner guilty, which vitiates the order. It is on these initial submissions that an interim order was passed by this Court staying the impugned order. A counter affidavit has been filed on behalf of the State justifying their action. While the writ petition was pending, an intervention petition was filed by one Hari Narain , asserting that it is on his complaint that the matter was taken up by the State and it is on his representation that the petitioner has been removed. Petitioner did not oppose the intervention but stated that the wife of the intervener had contested and lost as against the petitioner and therefore the personal grudge , which has actuated the whole thing. Stay having been granted, intervener has filed application for vacating the stay. 3 As pleadings are complete, with the consent of the parties the, writ petition itself is being disposed of at this stage itself. As to the first issue, as noted above, prima facie, it appears that the Government was more concerned about undertaking given to the legislature in the matter . It is because of that Government directed the Collector of the district, without itself issuing notice to the petitioner or without itself making any enquiry that the Collector should make enquiry and make a recommenation to the Government for removal of the petitioner. Thus seen, the matter had already been pre- judged even before the notices were issued to the petitioner. The Collector was then entrusted with the enquiry and he made recommendation accordingly to soothe the Government. The recommendation having been received, as the Government wanted, a notice was issued to the petitioner. He responded and holding the response to be unsatisfactory. In view of the findings of the Collector, petitioner’s candidature as Mukhiya has been cancelled in purported exercise of power under Section 18(5) of the Bihar Panchayat Raj Act, 2006. However, I can only note that what was stated by the Apex Court in the case of Gullapalli Nageswara Rao & ors –v- Andhra Pradesh State Road Transport Corporation & anr. since reported in A.I.R 1959 SC 308 at para 31: “ The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose 4 a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear- up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.” But I do not propose to pass my final order on that ground because the order suffers from a more fundamental flaw. Today, it cannot be doubted that the power that the State exercises in terms of Section 18(5) of the Act is a quasi judicial. The consequences are grave as a person is sought to be removed from the post and subsequently barred to contest the election for a period. If consequences are so drastic, can an order be passed in such a casual manner ? My answer is no. If any thing law requires, such an order is to be a speaking order or a reasoned order. A perusal of the entire order would show that it deals with the history leading to issuance of show cause i.e. the question raised in the Legislative Assembly undertaking given by the State therein. The enquiry that a fixed recommendation to be made by the Collector to the Government for removal of the petitioner, issuance of notice to the petitioner and receipt of petitioner’s reply and then the 5 operative portion is one line that the show cause is unsatisfactory and as such the petitioner is removed from the post of Mukhiya . In my view, such an order goes ill to the provisions , as contained in Section 18(5) of the Act. It is absolutely non speaking and unreasoned order. In the case of Union of India –Vrs- M.L.Capoor & ors. since reported in AIR 1974 Supreme Court 87 the Apex Court has clearly led down what is a reasoned order. The Apex Court has pointed out that reasoned order is practically only remaining visible safeguard against possible injustice and arbitrariness in making selection. They have held- “ Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi- judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable.” This clearly applies to vitiate the present order. I may then refer to another decision of the Apex Court in the case of Mahindra and Mahindra Ltd. –v- Union of India since reported in AIR 1979 Supreme Court 798 wherein the order of M.R.T.P. Commission was under challenged. The Commission had passed orders in respect of different clauses of agreement holding some to be restrictive and some not restrictive. This , in view of the 6 Apex Court, clearly shows that there had been a detailed application of mind, yet there being no reason given why certain clauses were held to be restrictive . The whole order was set aside by the Apex Court. It may be noted that the order of the Commission was an ex parte order , still the Apex Court held that notwithstanding application of mind, ex parte nature of order, the Commission was obliged to support its findings by reasons. In the words of the Apex Court it consisted merely of bald directions given by the Commission and did not set out any reasons whatsoever why the Commission had decided to issue those directions. It had a sphinx- like face, which goes ill with the judicial process. In view of the aforesaid, I have no option but to set aside the order impugned and direct that respondent- Principal Secretary, Panchayati Raj Department, Govt. of Bihar, Patna would issue fresh notice to the petitioner and after granting him an opportunity of hearing pass fresh order in accordance with law. This application thus stands allowed. Singh (Navaniti Prasad Singh, J.)