IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.923 of 2011 ARSHIZZAMAN . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 07/02/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to be the Mukhiya of Sabbait Panchayat, Block- Silao, Nalanda aggrieved by the order dated 3.1.2011 unseating her from the post of Mukhiya in exercise of powers under Section- 18(5) of the Bihar Panchayat Raj Act ((hereinafter referred to as the Act). Learned counsel for the petitioner submits that the impugned order is illegal as no personal hearing was given to the petitioner. If a personal hearing had been given, the petitioner could have demonstrated that the fault lay with the Panchayat Secretary who appoints the contractor and releases payments. The excess payment has been deposited in the government coffers. Of the two allegations those relating to Plan Case No.8/06-07 was outside her jurisdiction and she was not answerable for the same. Comments were called for from the District Magistrate on the cause shown by the petitioner. The comments were not provided to the petitioner with opportunity to meet the same. The - 2 - comments have been considered while passing the final order. The order was therefore bad for violation of natural justice admitting evidence behind the back of the petitioner. Learned counsel for the State submits that show cause notice was given to the petitioner which was replied and after consideration of which final orders have been passed. The petitioner has acknowledged excess payment of Rs.33,000/- under Plan Case No.7/06-07. The fact that the money have been deposited subsequently in the government coffer does not wipe out the illegality. There is no occasion for the Court to interfere in exercise of discretionary powers under Article-226 of the Constitution of India as there has been no illegality. This Court while exercising powers of judicial review under Section-18(5) of the Act shall primarily examine whether there has been any infirmity in the decision making process causing serious prejudice to the petitioner when only the Court may interfere. The final decision may be looked into by the Court provided allegations of perversity in the findings is made out. Section-18(5) of the Act provides for removal of a Mukhiya abusing the power or found guilty of misconduct after grant of reasonable opportunity for - 3 - explanation. What shall be the connotation of the words “after reasonable opportunity for explanation” cannot be put in a straight jacket formula and the connotation thereof shall necessarily depend on the facts of each case. When a Mukhiya is removed in exercise of executive powers under Section-18(5) of the Act, on alleged grounds of dereliction in discharge of duties, the position becomes akin to that of a departmental proceeding where a delinquent is proceeded with for misdemeanours committed on duty. The law stands well settled that where a charge is admitted, procedural infirmities, if any, are irrelevant. The question of a personal hearing may have assumed importance if the petitioner had denied the charge. Once the petitioner has admitted the charge and the misappropriated money has been deposited with the Government, any explanation that she may have had seeking to cast the burden on others, unacceptable to the State Government, cannot be re-examined by the Court to arrive at a different conclusion only because such a conclusion may also be possible. In AIR (2008) 5 SCC 569 573 (V.S.P. v. Goparaju Sri Prabhakara Hari Bab) it has been held at paragraphs 16, 17 and 18 as follows:- “16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 - 4 - of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct. 17. In Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad1 this Court noticing Section 58 of the Evidence Act held: (SCC p. 380, para 214) “214. In terms of the aforementioned provision, things admitted need not be proved. In view of the admission of Respondent 1 alone, the issue as regards allotment of 6475 shares should have been answered in favour of the appellants. The company petitioner at a much later stage could not be permitted to take a stand which was contrary to or inconsistent with the original pleadings nor could she be permitted to resile from her admissions contained therein.” 18. It was observed that judicial admissions can be made the foundation of the rights of the parties.” The petitioner acknowledges that money was withdrawn under her joint signature. That it may have been done on the recommendation of the Panchayat Secretary, becomes irrelevant insofar as the question of exercise of powers of judicial review over such an order is concerned. The answerability for the present proceedings remains vicarious. The impugned order does not accept her explanation with regard to Plan Case No.8/06-07. The area of the work was the same block and excess withdrawals were by the same Panchayat Secretary of Rs.81,785/-. There is no occasion for the Court to go into that question as the Court is satisfied that on the finding - 5 - as discussed above with regard to Plan Case No.7/06-07, the present case calls for no interference in exercise of the discretionary jurisdiction of this Court. IN AIR 1966 SUPREME COURT 951 "R. Jeevaratnam v. State of Madras" it has been held at paragraph-5 as follows:- “5. ……Our attention is drawn to similar observations in Sudhir Ranjan Haldar v. State of West Bengal, AIR 1961 Cal 626. With respect, we are unable to agree with this line of reasoning. An order of dismissal with retrospective effect is, in substance an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order.” If there were two grounds and even if one of them fails, as the petitioner urges, yet in the nature of the first charge itself, coupled with the admitted stand of deposit taken by the petitioner, the Court is satisfied that the order calls for no interference. A Mukhiya holds an elected post in trust to the electorate. Allegations of misconduct and abuse of powers under Section 18 (5) of the Act can be varied in nature, purely administrative or financial involving public - 6 - funds. The criteria for examination of the two acts shall necessarily have to be different. A solitary act in the case of administrative misadventure can not be put at par with allegation of financial misdemeanors. Considering the position of trust held by the Mukhiya and that he deals with public funds, a single misadventure on financial aspects, if proved can be sufficient to dislodge him. The application is dismissed. KC ( Navin Sinha, J.)