Dhanwanti vs State of M. P. - 2012 Supreme(MP) 395

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(MP) 395

IN THE HIGH OF MADHYA PRADESH
Sujoy Paul, J.
Dhanwanti v. State of M.P. and others
Writ Petition No.4719 of 2012 (Gwalior);
Decided on 13.7.2012.

Advocates:
Gaurav Samadhiya for petitioner;
Mrs. Sangeeta Pachauri, Deputy Government Advocate for respondents/State.

Headnote:Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 -- S.40(1) Proviso -- removal of office bearer of Panchayat -- enquiry started with show cause notice -- non-passing of final order in enquiry within stipulated time will not render the whole enquiry void ab initio.
       Held : In the light of aforesaid judgments, I am unable to hold that even new proviso aforesaid has an impact of attaching impermissibility to passing of final order beyond stipulated time. It cannot be forgotten that section 40 is inserted in the statute book to take action against the office bearers of the Panchayat, who were guilty of misconduct and whose continuance is undesirable in the interest of public. Thus, in public interest and with a view to ensure accountability, section 40 was inserted in the statute book. If a too technical and too narrow interpretation is adopted, the very purpose and power of conducting the enquiry will be frustrated after the stipulated time. This can neither be the intention of the Legislature, nor the object behind provision of section 40. Thus, it can be safely concluded that proviso aforesaid is part of the procedure and at best it has to be read as “desirable” provision for conducting enquiry within a stipulated time. Non-compliance of enquiry and non-passing of final order within the stipulated time will not lead to conclusion of impermissibility of enquiry after the stipulated time. AIR 1955 SC 425, (2002)6 SCC 33, (2005)4 SCC 480 and AIR 1959 SC 198 followed. “Principles of Statutory Interpretatrion” by Justice G.P. Singh, 12th edition relied on.
        [Para 14
       iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 && /kkjk 40¼1½ ijarqd && iapk;r ds inkf/kdkjh dk gVk;k tkuk && dkj.k crkvks lwpuk ls tk¡p izkjaHk && vuqc) le; esa tk¡p esa vafre vkns’k ikfjr djus ls laiw.kZ tk¡p izkjaHk ls ‘kwU; ugha gksxhA

       vfHkfu/kkZfjr % iwoksZDr fu.kZ;ksa ds izdk’k esa] eSa ;g vfHkfu/kkZfjr djus esa vleFkZ gw¡ fd iwoksZDr u;k iajrqd Hkh vuqc) le; ds ijs vafre vkns’k ikfjr djus ij lacaf/kr vuuqKs;rk dk la?kkr j[krk gSA ;g ugha Hkqyk;k tk ldrk fd /kkjk 40 dkuwuh iqLrd esa iapk;r ds mu inkf/kdkfj;ksa ds fo#) dkjZokbZ djus ds fy;s varfoZ”V dh xbZ gS tks vopkj ds nks”kh Fks rFkk ftudk cuk jguk yksdfgr esa vokaNuh; gSA bl izdkj] yksdfgr esa rFkk nkf;Rok/khurk lqfuf’pr djus dh n`f”V ls dkuwuh iqLrd esa /kkjk 40 varfoZ”V dh xbZA ;fn vR;ar rduhdh rFkk vR;ar ladh.kZ fuoZpu fd;k tk,xk rd tk¡p djus dk lgh iz;kstu rFkk ‘kfDr vuqc) le; ds i’pkr~ O;FkZ gks tk;saxsA ;g u rks fu/kkueaMy dk vk’k; gks ldrk gS u gh /kkjk 40 ds mica/k ds ihNs ;g mn~ns’; gks ldrk gSA bl izdkj] ;g fujkin fu”d”kZ fudkyk tk ldrk gS fd iwoksZDr ijarqd izfdz;k dk Hkkx gS rFkk vf/kd ls vf/kd bls vuqc) le; esa tk¡p djus ds fy;s ^^okaNuh; mica/k ds :i esa i<+k tkuk gksxkA vuqc) le; ds Hkhrj tk¡p dk vuqikyu u gksus rFkk vafre vkns’k ikfjr u djus ls vuqcaf/kr le; ds i’pkr~ tk¡p dh vuuqKs;rk dk fu”d”kZ ugha fudysxkA , vkb vkj 1955 ,l lh 425] ¼2002½ 6 ,l lh lh 33] ¼2005½ 4 ,l lh lh 480 rFkk , vkb vkj 1959 ,l lh 198 vuqlfjrA U;k- th-ih- flag d`r ^^fizfUliYl vkWQ LVsV~;wVjh baVjfizVs’ku] ckjgok¡ laLdj.k voyafcrA

ORDER

1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 4.7.2012 passed by Sub-Divisional Officer, Dabra under section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (Adhiniyam).

2. Shri Gaurav Samadhiya, learned counsel for the petitioner fairly submits that the impugned order is an appealable order but since the order is without jurisdiction, he has chosen to file this writ petition directly before this Court. The learned counsel submits that a complaint was filed against the petitioner on 4.9.2011 and on the strength of which a show cause notice was issued on 6.2.2012. This show cause notice was issued under secttion 40 of the Adhiniyam. The petitioner submitted his reply on 6.3.2012. Thereafter, the impugned order is passed on 4.7.2012. The learned counsel heavily relied on proviso to section 40(1)(c) which reads as under :

“40. Removal of office bearers of Panchayat. -- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer --

(a)

(b)

(c)

[Provided further that the final order in the inquiry shall be passed within 90 days from the date of issue of show cause notice to the concerned office bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days].

3. Shri Gaurav Samadhiya, learned counsel for the petitioner submits that this proviso is substituted for the following by M.P. Act 20 of 2005 :

“Provided that the final order in the inquiry shall as far as possible be passed within 90 days from the date of issue of show cause notice to the concerned office bearer.”

4. Shri Samadhiya submits that earlier the proviso contained the words “as far as possible”. The Legislature has chosen to substitute this proviso by the new proviso which shows that there is a deliberate omission of the words “as far as possible”. To elaborate, Shri Samadhiya submits that the earlier language of the proviso was couched in a directory language whereas the new proviso w.e.f. 2005 contains a mandatory provision. He also relied on the word “shall” repeatedly used in the said proviso to submit that the entire proviso is mandatory in nature. By pressing this proviso into service, Shri Samadhiya submits that admittedly the proceedings under section 40 of the Adhiniyam is started on issuance of show cause notice on 6.2.2012 and final order is passed on 4.7.2012. He submits that the final order was required to be passed within 90 days and at the best, time could have been extended beyond 90 days only for another 30 days. In total the final order in all situations could have been passed within 120 days. The learned counsel submits that the final order is passed much after 120 days and, therefore, by operation of the proviso the impugned action has to be held as null and void. In other words, the learned counsel submits that after 120 days, by operation of proviso aforesaid, no final order was permissible or could have been passed. He further fairly submits that in 2006(2) BLJ 242=2006(4) MPHT 76 (CG) (Manjeet Ram Kewat v. State of Chhattisgarh and others), the Chhattisgarh High Court had an occasion to consider unamended proviso in para 8. He submits that Chhattisgarh High Court has interpreted the unamended proviso which contained the words “as far as possible”. Because of availability of those directory words, Shri Samadhiya submits that the provision was held to be directory by Chhattisgarh High Court. He submits that after deleting those words, the provision became mandatory.

5. Shri Samadhiya submits that once those words “as far as possible” are omitted, the intention of the Legislature and context of the statute is crystal clear that it is mandatory in nature and if final order is not passed

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2012 Supreme(MP) 395

IN THE HIGH OF MADHYA PRADESHSujoy Paul, J.Dhanwanti v. State of M.P. and othersWrit Petition No.4719 of 2012 (Gwalior);Decided on 13.7.2012.

IN THE HIGH OF MADHYA PRADESH
Sujoy Paul, J.
Dhanwanti v. State of M.P. and others
Writ Petition No.4719 of 2012 (Gwalior);
Decided on 13.7.2012.