IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.720 of 2011 (Arising out of C.W.J.C. No. 1346 of 2011) 1. The State of Bihar. 2. The Principal Secretary, Panchayati Raj Department, Bihar, Patna. 3. The Secretary, Human Resources Development Department, Bihar Patna. 4. The Deputy Director, Election, Panchayat Raj Department, Bihar, Patna. 5. The Commissioner, Magadh Division, Gaya. 6. The District Magistrate, Jehanabad. 7. The District Education Officer, Jehanabad. 8. The B.D.O., Makhdumpur, District- Jehanabad………………………………..Respondents/Appellants Versus Abhiyanta Kumari @ Abhinyata Kumari, wife of Vinod Kumar, resident of village-Makarpur, Police Station-Makhdumpur, District Jehanabad……………………………………Petitioner, Respondents. For the State : Mr. Rajendra Kumar Jha, G.P.-18 Mr. Mukund Mohan Jha, A.C. to G.P.-18 ----------- 3. 19.9.2011 Heard learned counsel for the appellants. In spite of notice, nobody has appeared on behalf of the respondent/writ petitioner. 2. The facts available on record show that the writ petitioner was removed from the post of Mukhiya of Makarpur Gram Panchayat in Makhdumpur police station, Jehanabad district. By an order of the Government of Bihar through the Principal Secretary of Panchayati Raj Department, dated 29th July 2009. That order was passed on account of adverse report received from the district officials including the District Magistrate, Jehanabad in respect of allegations that the Mukhiya had committed bungling in the matter of appointment of Panchayat Teachers. Upon a challenge made to that order before this Court, petitioner succeeded and writ petition preferred by her bearing C.W.J.C. No. 2 7546 of 2009 was allowed by an order dated 14th January, 2010 contained in Annexure-1. 3. A perusal of Annexure-1 shows that this Court found that the order for removal of the writ petitioner from the post of Mukhiya was passed at the level of the Government, but it did not show full application of minds to the charges and the materials collected during enquiry, the findings of the district officials were simply adopted. According to the Writ Court, the power of removal is of serious significance hence the Principal Secretary should have passed an order showing that he had come to independent conclusions on the basis of available materials that the charges were proved and they required non sitting of an elected representative like Mukhiya. It is not in dispute that removal of a Mukhiya entails further consequence of debarring him from contest in the consequent election for that post. 4. In view of directions contained in Annexure-1, the Principal Secretary, Panchayati Raj Department has passed a fresh order dated 03.01.2011 contained in Annexure-2. That order is under challenge and has been examined by the Writ Court. It has held that again the same mistakes have been committed and the order fails to show independent application of mind to the charges and the materials; the conclusions are clearly only those of the district officials and not of the Principal Secretary or the Government. 3 5. The Writ Court, finding similar mistake being repeated, has denied any further opportunity to the State Government to pass a fresh order in the matter. Such order of the Writ Court dated 14th February, 2011 passed in C.W.J.C. No. 1346/2011 is under appeal. 6. Learned counsel for the State who represents the appellant has submitted that a notification dated 26.8.2008 published in the Bihar Gazette was annexed as Annexure-9 to the writ petition and it shows that the State Government, who is required to pass an order for removal of the Mukhiya under the amended Section 18 (5) of the Panchayati Raj Act, 2006 has invoked its power under Section 152 of the said Act to authorise Subordinate officials of specified ranks posted in the districts or the Divisional Commissioner to hold enquiry and submit report. 7. It is submitted that when the enquiry held as per the notification was available before the Government, an order agreeing with the reports and recommendations need not be elaborated judgement and it was sufficient if the reports and materials mentioned in the reports in respect of charges were noticed by the Principal Secretary and he agreed with the findings of the district Authorities regarding misconduct of the Mukhiya. 8. The enquiry reports, in view of notification dated 24th September, 2008 have become part of the statutory scheme and cannot be treated as extraneous materials. However, the satisfaction recorded by the enquiry officials cannot be sufficient 4 substitute for the satisfaction of statutory authority, the State Government. The exercise of power under Section 18 (5) of the Act can have serious adverse consequences upon an elected public representative, depriving him of his office on account of charges of misuse of office. It may not be necessary for the State Government to reproduce the entire discussion made in the reports but the final order for removal of an elected representative like Mukhiya must show that the Principal Secretary or the Government was aware of the exact nature of charges, the materials available on record to support the charges, the defence materials brought on record by the charged Mukhiya and the reasons for opting to accept the materials and reports against the Mukhiya. 9. Although, we are in agreement with the view of the Writ Court that the Principal Secretary failed to appreciate the earlier judgment of the Writ Court dated 14th January, 2010 and has committed same nature of mistake again, we accept the submission on behalf of the appellants that the matter should have been once again remitted to the Principal Secretary so that the correct legal position may be appreciated by him and he may pass a fresh and proper order keeping in view the requirement of passing an independent reasoned order. The Principal Secretary shall pass a fresh order in accordance with law as early as possible, preferably within three months. In case the Principal Secretary 5 feels the necessity to re-hear the writ petitioner in respect of defence, he may issue notice to the writ petitioner and grant him an opportunity of hearing. The Principal Secretary shall pass a reasoned order showing application of mind to the charges, to the materials available for and against Mukhiya and reasons for his coming to a particular conclusion. 10. Even if the writ petitioner is no longer the Mukhiya on account of fresh elections, that would not stand in the way of the Principal Secretary in passing of a fresh order as per this order. The appeal is disposed of accordingly. Mkc/ (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)