LETTERS PATENT APPEAL NO.643 OF 2010 ---------- IN THE MATTER OF AN APPEAL UNDER CLAUSE -X OF THE PATNA HIGH COURT RULES. ------------- PANCHA DEVI W/O RUDAL RAI R/O VILL.- TIK RAMPUR, BHAIYARAM RAI TOLA, P.S.- MUFASSIL, DISTT.- MUNGER. …… APPELLANT VERSUS 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA. 2. THE PRINCIPAL SECRETARY OF PANCHAYAT RAJ, GOVERNMENT OF BIHAR, PATNA. 3. THE SECRETARY OF STATE ELECTION COMMISSION, BIHAR, PATNA. 4. THE DIVISIONAL COMMISSIONER, MUNGER DIVISION. 5. THE DISTRICT MAGISTRATE, MUNGER. 6. THE DISTRICT PANCHAYAT RAJ OFFICER, MUNGER. 7. THE BLOCK DEVELOPMENT OFFICER, MUNGER. 8. THE PANCHAYAT SECRETARY OF TIKARAMPUR GRAM PANCHAYAT, MUNGER. 9. THE PRAMUKH, SADAR BLOCK, MUNGER. 10.THE DIRECTOR OF GRAM PANCHAYAT RAJ, GOVERNMENT OF BIHAR, PATNA. ……. RESPONDENTS. --------- FOR THE APPELLANT:- MR AMISH KUMAR FOR THE STATE :- MR M.K.SINHA, AC TO GP 10 FOR THE INTERVENOR:- MR. S.K.MISHRA. ---------- PRESENT THE HON'BLE MR JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR JUSTICE SAMARENDRA PRATAP SINGH S.P.Singh,J. The instant appeal has been preferred against order dated 3.3.2010, passed in C.W.J.C.No. 17422 of 2009, whereby the learned Single judge has upheld the order of removal dated 29.10.2009, passed by the State Government exercising power under section 18(5) of the Bihar State Panchayati Raj - 2 - (Amendment) Act, 2006 (in short the Act). 2. The facts of the case in short are as follows:- 3. The appellant was elected as Mukhia of Tika Rampur, Gram Panchayat Raj, Munger in the year 2006. Earlier her husband Rudal Rai was the Mukhia of the panchayat. Defalcation of public money came to light for the period 2001-08 and a criminal case, being Mufassil Police Station Case No. 252 of 2007, was lodged under sections 467,468 & 420 I.P.C. on 5.12.2007 against the appellant, her husband and others. The appellant was taken into custody on 1.3.2008. She was granted bail on 30.6.2010 on her depositing a sum of Rs. 1,75,000/- being her share of alleged defalcation, subject to the final outcome of the criminal case. The appellant is also an accused in a case under sections 302/34 I.P.C. and 27 of the Arms Act, being Mufassil Police Station Case No. 112 of 2007 dated 18.6.2007, in which she is on anticipatory bail. A show cause bearing letter no. 1454, dated 2.4.2009 appended as annexure A to the supplementary affidavit to the LPA, was issued by the Deputy Director (Election), Panchayati Raj, Government of Bihar as to why, she be not removed from the post of Mukhia in terms of section 18(5) of the Act for alleged misconduct, acts of omissions and commissions, having skipped three consecutive - 3 - meetings, being imprisoned on criminal charges, etc. The appellant submitted her reply which is contained in annexure 7 to the writ petition. The Government did not find the explanation to be satisfactory, and passed order of her removal from the post of Mukhia in terms of section 18(5) of the Act. Being aggrieved by the order of her removal, appellant filed writ petition in the High court bearing C.W.J.C.No. 17422 of 2009. The appellant submitted before the learned Single judge hearing the writ petition that the criminal case instituted against her is totally false and concocted. She stated that she was in custody between 21.2.2008 to 30.6.2008, for a period much less than six months required for removal. She submitted that as she was imprisoned it cannot be said that the appellant willfully absented herself from three consecutive meetings of Panchayat. The learned Single judge held that order of removal u/s 18(5) of the Act does not suffer either from procedural or legal infirmity. 4. Learned counsel for the appellant has challenged both the orders of Government removing her from post of Mukhia and that of learned single judge upholding the removal. She stated that learned single judge erred in not considering that appellant did not remain in jail for a period much less than six months to incur - 4 - disability u/s 18(5) of the Act. Further as she was in jail for about four months there was justifiable explanation for not attending the Panchayat meetings. Thus it cannot be said that she deliberately absented herself for three consecutive meetings. She stated that the allegation of misappropriation contained in FIR is false and motivated. 5. Learned counsel for the appellant submits that power conferred u/s 18(5) of the Act should be exercised sparingly as it entails extreme civil consequences of removal. In support of his submissions, learned counsel has placed reliance upon decisions rendered in case of Tarlochan Dev Sharma Vs. State of Punjab and others, reported in (2001)6 SCC 260 and Sharda Kailash Mittal Vs. State of M.P., reported in (2010)2 SCC 319. 6. Learned counsel for the respondents submits that the impugned order of Government removing the appellant from the post of Mukhia does not suffering from any illegality. He submits that the learned single judge had rightly dismissed the writ application. 7. We have perused the materials on record and considered the submissions of the parties. Section 18(5) of the Act lays down grounds and the circumstances in which a Mukhia can be removed - 5 - from his or her post. Section 18(5) of the Act is quoted herein below for easy reference. 18(5). Without prejudice to the provisions under this Act, if, in opinion of the Commissioner having territorial jurisdiction over the Gram panchayat, a Mukhia or an Up-Mukhiya of Gram Panchayat absents himself without sufficient cause for more than three consecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or abuses the power vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the (Government)1 may, after giving the Mukhia or Up-mukhia a reasonable opportunity for explanation, by order, remove such Mukhiya or Up- Mukhia, as the case may be, from office. 1.(The Mukhiya or Up-Mukhia so removed on the charge of being found guilty of misuse of vested powers or of misconduct in the discharge of his duties shall not be eligible for election to any Panchayat bodies till further five years from the date of such removal. The Mukhia or Up-Mukhia so removed on rest of the charges shall not be eligible for re-election as Mukhia or Up-Mukhia or member of Gram Panchayat during the remaining term of office of such Gram Panchayat). 8. It would appear from perusal of the provision that an incumbent can be removed after providing a show cause, on any of the following grounds:- (1) If the Mukhia absents himself without sufficient cause for more than three consecutive meetings. (2) willfully omits or refuses to perform his duties and functions under the Act or abuses the power vested in him or - 6 - (3) is found to be guilty of misconduct in the discharge of his duties or (4) becomes physically or mentally incapacitated for performing his duties or (5) is absconding being an accused in a criminal case for more than six months. 9. We are not concerned with the disability the Mukhia will incur consequent to his removal and as such we need not refer to the part of the provisions incorporated in Section 18(5) under Amending Act, 2008. It would appear from the impugned order dated 29.10.2009, passed by the Department of Panchayati Raj, Government of Bihar that the appellant remained absent from 7.12.2007 to 20.2.2008 and again from 21.2.2008 to 19.7.2008 and from 1.12.2007 to 19.7.2008. It has been contended by respondent- State that the appellant is an accused in Mufassil Police Station Case No. 252 of 2007, dated 5/12/2007 lodged under sections 420,467,468,471 and 420 I.P.C. for illegal withdrawal of a sum of Rs.4,53,827/-. It also appears from the impugned order of removal dated 29.10.2009, passed by the Panchayati Raj Department that her conduct as a Mukhia was most unbefitting and un becoming of the post, she occupied. Apart from this, it has also been stated by - 7 - the respondents that the appellant was granted bail on deposit of a sum of Rs.1,75,000/- half of the alleged misappropriated amount, which would be subject to final adjudication in the criminal case. Besides this, they state that the appellant is also an accused in a murder case. 10. From the impugned order of removal of the Government as well as of the learned single judge, it appears that the appellant has remained absent and at large for more than six months being accused in a criminal case. Apart from this, serious allegation of misappropriation has been made in the criminal case being Mufassil Police Station Case No. 252 of 2007. In view of the above, we do not find any illegality in the impugned order of the removal passed by the Government under section 18(5) of the Act duly upheld by the learned Single judge. The appellant can be removed from the post of Mukhia on any of the grounds provided in section 18(5) of the Act. The appellant has placed reliance upon the decision in case of Tarlochan Dev Sharma Vs. State of Punjab and others. 11. The cases relied upon by the appellant would not be of much help to her as they were rendered in different facts and circumstances. In case of Tarlochan Dev Sharma (Supra), the - 8 - charge was that the President of the Council had stopped payment to the supplier of a fogging machine as the machine did not work well. On advice of the Municipal council, the machine was returned. The appropriate authority passed order of removal of President of the Council from his office in view of section 22 of the Punjab Municipal Act, 1911. There was no finding in the impugned order of removal that the explanation of appellant was factually incorrect or that he in any manner disrupted the working of the Council. Furthermore, the removal order was issued on the basis of events which took place after the date of show-cause notice and also after the date of appellant’s written reply. The Hon’ble Apex court held that casual infraction or failure or misuse of power would not be sufficient ground for removing the President of the council. The facts of the case in hand is different. The appellant herein has been charged with serious allegations of misappropriation of Government money and of being at large for more than six months being accused in a criminal case and of having not attended three consecutive meetings. 12. The decision in case of Sharda Kailash Mittal Vs. State of M.P. would also not apply in the instant case. The appellant Sharda Kailash Mittal was removed from the post of the - 9 - President of Nagar Palika under section 41-A of the MP Municipalities Act, 1961 (37 of 1961) (in short the MP Act) for alleged violation of section 51 of the MP Act. The charge was that the appellant caused monetary loss to the Nagar Palika by publishing advertisement of more than Rs. 1500. Besides this, there were some other charges against her. The appellant Smt. Mittal denied the charges and asserted that she had not issued any direction for publication of advertisements or messages in the news paper rather it was the Chief Medical Officer, A.K.Bansal who had placed order for advertisement after approval of Council as a whole. She denies the charge of making any alteration in the proceeding register. However, on 4.10.2007, she was removed from the post for alleged violation of section 51 of the MP Municipalities Act. Section 41-A of the MP Act empowers State Government to remove the President, Vice-President or Chairman of a Committee on four broad grounds, namely, (1) public interest (2) interest of the council (3) incapability of performing his duties and (4) working against the provisions of the Act or the Rules made thereunder. 13. Being aggrieved, Smt Mittal moved the Hon'ble Madhya Pradesh High Court in writ, which was dismissed. An - 10 - appeal was carried to the Hon’ble Supreme Court. The Hon’ble Apex court quashed the order removing her from the post of President of Nagar Palika, holding that no ground for such removal has been made out, as required Under the MP Municipalities Act, 1961. The Hon’ble Apex court noticed that the decision for publication of advertisements, calling for tenders and payment of salaries were made by entire President-In-Council. The Act being one of collective responsibility, the appellant cannot be singled out for publication of the advertisement. The Hon’ble Apex court was of the view that the actions of the appellant, even if proved would only constitute irregularities and not grave illegalities. Besides this, no charge of financial loss to Palika could be established. The appellant herein has been charged of misappropriating money causing financial loss to the Panchayat and of remaining at large for more than six months being an accused in criminal case and for having absented herself from three consecutive meetings. There is no denial of the last two allegations which alone separate would form a ground for removal. The allegation of criminal misappropriation is also of a grave nature. It is true that the order of removal of Mukhia has to be passed very circumspectively and cautiously as it entails extreme step of unseating an elected - 11 - representative. However, in the case in hand, the appellant has been removed on grounds which are squarely covered under Section 18(5) of the Act and as such her removal from the post of Mukhia does not suffer from any legal or procedural illegality. 14. In the result, the appeal is dismissed. . (Samarendra Pratap Singh,J). I agree. (Sudhir Kumar Katriar,J) (Sudhir Kumar Katriar,J). Patna High Court Dated, March 26, 2011. Shashi/NAFR