IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1967 of 2011 ARJUN PASWAN . Versus THE STATE OF BIHAR & ORS . ----------- 03. 28.02.2011 Heard learned counsel for the petitioner and learned counsel for the State. No counter affidavit has been filed despite the order dated 2.2.2011. The petitioner is stated to be an elected Mukhiya of Raghopur Panchayat under Meenapur Block, District- Muzaffarpur. He is aggrieved by the order dated 31.12.2010 unseating him from that post in exercise of powers under Section 18 (5) of the Bihar Panchayati Raj Act by the Principle Secretary, Department of Panchayati Raj. Learned counsel submits that earlier he was unseated by an order dated 26.4.2010 leading to the institution of C.W.J.C. No. 8954 of 2010. Noticing infirmities in the decision making process, the Court on 15.7.2010 set aside the order observing at paragraph-9 as follows:- “9. Keeping in view the nature of the power and the consequences that flows on its exercise, such power should be invoked by the State Government only in a very extreme case with strong reason and should not be exercised for minor irregularities in discharge of duties by the holder of the elected post namely Mukhiya specially because he occupies the said post by election and he is deprived of the 2 office by an executive order in which electorate has no chance for participation. In this regard reference may be made to two decisions of the Apex Court in the case of Sharda Kailash Mittal Vs State of M.P. & Ors. reported in 2010 (1) Supreme To-day 102 as well as in the case of Tarlochan Dev Sharma Vs. State of Punjab reported in 2001 (6) Supreme Court cases 260.” Notwithstanding the observations of this Court, the fresh order is cryptic, non-speaking in nature and does not consider the guidelines laid down in the two judgments of the Supreme Court as observed in the order of the Court. It is next submitted that the singular allegation was of delay in payment of the honorarium of a teacher which was subsequently paid also. The issue of a single act not constituting abuse of powers or misconduct has been noticed in paragraph-10 of the case in A.I.R. 2001 (SC) 2524 (Tarlochan Dev Sharma) (supra). Had the Principle Secretary, obtained proper legal advise before passing the order and apprised himself of the correct law as laid down by the Supreme Court, perhaps an order of the present nature may not have been passed by him. The Court can do no better than quote the following extract at paragraph-15 of the judgment in Tarlochan Dev Sharma (supra) of the manner in which the Principle Secretary, has exercised his powers. The Court is pained to observed that the Principle Secretary, while 3 passing the impugned order appears to have proceeded on the premise that the passing of fresh orders by him was a mere empty formality without appreciating the seriousness of the observation made by this Court in C.W.J.C. No. 8954 of 2010. “15. ….. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue.” The impugned order dated 31.12.2010 is set aside. The application stands allowed. P.K ( Navin Sinha, J.)