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Sanjay Yadav, J.
Phool Bai (Smt.) v. State of M.P. and others
Writ Petition No.3186 of 2008, M.P. High Court at Jabalpur;
Decided on 12.1.2009.
Proviso to clause (b) of sub-section (1) of section 40 contemplates that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. The requirement for affording an opportunity of hearing is because, an order of removal entails a disqualification for a period of six years to be elected under the Act of 1993 as is contemplated under sub-section (2) of section 40. Thus, the person against whom an order of removal is passed under section 40 is also burdened with disqualification for a period of six years. These stipulations call for a close observation of the principles of natural justice or in other words an effective opportunity of hearing. Thus, when a person is charged for a misconduct under the aforesaid provisions, it is incumbent upon the prescribed authority to extend the opportunity of hearing to the persons so charged so that he can put an effective defence towards the charge.
The prescribed authority though aware of the fact that the officers who prepared the enquiry report did not appear for crossexamination, yet proceeded to hold the petitioner guilty of charges on the basis of same enquiry report. The procedure, therefore, as adhered to by the prescribed authority cannot, in the considered opinion of this Court, by any stretch of imagination be termed as a fair trial. It is not the case that because the concerning officials who have furnished the enquiry report were not cross-examined, the report was not taken into consideration. On the contrary the prescribed authority has heavily relied upon the findings recorded in the enquiry report and in the considered opinion of this Court not affording of an opportunity to cross-examine the officers who prepared the enquiry report has resulted in miscarriage of justice and denial of a reasonable opportunity of hearing. An order of removal/disqualification based on such defective enquiry cannot be given the stamp of approval. 2003(1) MPWN 136, 2005(1) Vidhi Bhasvar 237 and 2004(II) MPWN 91 relied on. AIR 2001 SC 2319 followed.
[Paras 7 & 11
(2) Natural Justice -- principles of -- object and purpose is to secure justice.
The aim of the rules of natural justice is to secure justice or to put in negatively to prevent miscarriage of justice ..... what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of person appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. AIR 1970 SC 150 followed. [Para 6
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk 40¼1½ ijarqd rFkk 40¼2½ && iapk;r in/kkjh dks gVkus dh dkjZokbZ && uSlfxZd U;k; dk vuqlj.k gksuk pkfg, && ,slk blfy, D;ksafd /kkjk 40¼2½ ds vuqlkj lacaf/kr in/kkjh 6 o"kZ rd fuo"kZpu esa Hkkx ysus ls oafpr gks tkrk gSA /kkjk 40 dh mi/kkjk ¼1½ ds [kaM ¼c½ ds ijarqd esa vuq/;kr gS fd dksbZ O;fDr rc rd ugha gVk;k tk,xk rc rd mls dkj.k crkus dk volj ugha ns fn;k x;k gS fd mls mlds in ls D;ksa gVk fn;k tk,A lquokbZ dk volj nsus ds fy, vis{kk blfy, gS D;ksafd gVkus dk vkns‘k 1993 ds vf/kfu;e ds v/khu fuo"kZfpr fd, tkus ls 6 o"kZ dh dkykof/k ds fy, fujgZ gks tkrk gS tSlk /kkjk 40 dh mi/kkjk ¼2½ ds v/khu vuq/;kr gSA bl izdkj O;fDr dks] ftlds fo:) /kkjk 40 ds v/khu gVk;s tkus dk vkns‘k ikfjr gksrk gS] 6 o"kZ dh dkykof/k ds fy, fujfgZr dj fn;k tkrk gSA bu vuqca/kksa ds fy, uSlfxZd U;k; ds fl)karksa dk lw{e izs{k.k ;k nwljs ‘‘kCnksa esa lquokbZ dk izHkkoh volj vko‘;d gSA bl izdkj] vc O;fDr ij iwoksZDr mica/kksa ds v/khu dnkpj.k dk vkjksi yxk;k tkrk gS] fofgr izkf/kdkjh ds fy, O;fDr;ksa dks lquokbZ dk volj fn;k tkuk vko‘;d gS ftlls og vkjksi gsrq izHkkodkjh izfrj{kk dj ldsA fofgr izkf/kdkjh us ;g rF; tkurs gq, Hkh] fd vf/kdkjh ftUgksaus tk¡p fjiksVZ rS;kj dh izfrijh{kk ds fy, mifLFkr ugha gq,] mlh tk¡p fjiksVZ ds vk/kkj ij ;kph dks vkjksiksa dk nks"kh vfHkfu/kkZfjr djus dh dk;Zokgh dh xbZA blfy,] izfdz;k] ftldk fofgr izkf/kdkjh }kjk ikyu fd;k x;k] bl U;k;ky; dh jk; esa] dYiuk dh fdlh Hkh mM+ku ls _tq fopkj.k ugha dh tk ldrhA i{kdFku ;g ugha gS fd D;ksafd lacaf/kr vf/kdkfj;ksa dh] ftUgksus tk¡p fjiksVZ nh Fkh] izfrijh{kk ugha dh xbZ Fkh] fjiksVZ ij fopkj ugha fd;k tk ldrkA blds foijhr fofgr izkf/kdkjh us tk¡p fjiksVZ esa vfHkfyf[kr fu"d"kksZa dk iwjk&iwjk voyac fy;k gS rFkk bl U;k;ky; dh jk; esa vf/kdkfj;ksa dks] ftUgksaus tk¡p fjiksVZ rS;kj dh] izfrijh{kk dk volj u nsuk ?kksj vU;k; rFkk ;qfDr;qDr lquokbZ ds volj ls badkj lkfcr gqvk gSA ,slh =qfViw.kZ tk¡p ij vk/kkfjr gVkus@fujgZrk ds vkns‘k ij vuqeksnu dh eqgj ugha yxkbZ tk ldrhA 2003¼1½ e-iz- ohDyh uksV~l 136] 2005 ¼1½ fof/k HkkLoj 237 rFkk 2004¼2½ e-iz- ohDyh uksV~l 91 voyafcrA , vkb vkj 2001 ,l lh 2319 vuqlfjrA ¼iSjk 7 ,oa 11½ ¼2½ uSlfxZd U;k; && fl)kar && mn~ns‘; rFkk iz;kstu U;k; lqfuf‘pr djuk gSA uSlfxZd U;k; ds fu;eksa dk mn~ns‘; U;k; lqfuf‘pr djuk vFkok fuks/kkRed :i ls dgk tk,] ?kksj vU;k; jksdus dk gS --------- uSlfxZd U;k; dk dkSu&lk fof‘kV fu;e fdlh ekeys esas ykxw gksuk pkfg, ;g foLr`r lhek rd ekeys ds rF;ksa rFkk ifjfLFkfr;ksa] ml fof/k dh lajpuk ftlds v/khu tk¡p dh xbZ rFkk ml iz;kstu ds fy, fu;qDr vf/kdj.k ;k fudk; ij fuHkZj djrk gSA tc dHkh U;k;ky; ds le{k f‘kdk;r dh tkrh gS fd uSlfxZd U;k; ds fdlh fl)kar dk mYya?ku fd;k x;k gS] U;k;ky; dks fofuf‘pr djuk gksrk gS fd D;k ml fu;e dk vuqikyi ekeys ds rF;ksa ij mfpr fofu‘p; ds fy, vko‘;d FkkA , vkb vkj 1970 ,l lh 150 vuqlfjrA ¼iSjk 6½
1. The petitioner calls in question the legality of order dated 26.11.2007, 7.1.2008 and 5.3.2008 in this petition filed under Article 226/227 of the Constitution of India. By order dated 26.11.2007 the Sub- Divisional Officer (Revenue) Manpur, District Umaria in exercise of the power under section 40 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 disqualified the petitioner for holding any post under Gram Panchayat for next six years. The said order has been upheld by the appellate and revisional authority respectively by their orders dated 7.1.2008 and 5.3.2008. The challenge put-forth by the petitioner is on the anvil that, the order of disqualification has been passed by the prescribed authority without adhering to the norms of principles of natural justice.
2. The facts briefly are that the petitioner was elected for the post of Sarpanch for the Gram Panchayat, Mahroi in the year 2004. There were certain complaints lodged against the petitioner in respect of the construction of WBN Road, in respect of certain purchases made by the petitioner and certain repairs undertaken and the favour extended to her on and sister under Kapildhara Yojna. The said complaints lodged against the petitioner led to a fact finding enquiry conducted by the Deputy Director, Panchayat and Social Justice District Umaria and Chief Executive Officer, Janpad Panchayat, Manpur District Umaria (M.P.), wherein charge of misuse of fund in respect of construction of WBN Road found substantiated. Thereafter the proceedings were initiated against the petitioner before prescribed authority. In the said proceeding evidence were led by both parties, i.e., by the complainant as well as by the petitioner. During the proceedings, petitioner filed an application before the prescribed authority for summoning the officials who have conducted the fact-finding enquiry for cross-examination. The said application was allowed by order dated 31.8.2007. However, on 14.9.2007 when the matter was posted for cross-examination of the officers who were summoned by order dated 31. 7 .2007 the prescribed authority recorded a finding that since the concerning officers are not available, therefore, the right of the petitioner to cross-examine was closed and the matter was posted for argument. Thereafter the impugned order dated 26.11.2007 was passed whereby the petitioner was disqualified for a period of six years to hold any post under the Panchayat. The appeal preferred by the petitioner was dismissed by the appellate authority by order dated 7.1.2008 and the revision against the said order was also negatived by revisional authority vide its order dated 5.3.2008. Aggrieved whereof the petitioner has approached this Court in the present petition.
3. The challenge put-forth by the petitioner to the order is on the ground that the same has been passed without affording a reasonable opportunity of hearing. It is contended by the learned counsel for the petitioner that even the opportunity to cross-examine the prosecution witnesses who prepared the report on the basis of which the prescribed authority has arrived at a conclusion that disqualification, was not extended to the petitioner. To substantiate the aforesaid submissions, the learned counsel for the petitioner has taken this Court through the proceedings before prescribed authority. It is contended that the provisions contained under section 40 of the Act of 1993 contemplates an opportunity of hearing before any order is passed under the said provision. It is urged that, though the prescribed authority has extensively relied upon the report of the fact finding enquiry, however, the petitioner was deprived to cross-examine the officers who recorded the said finding and the concerning authority though aware of this fact went on to arrive at an adverse conclusion on the basis of said document. This action, it is contended, of the prescribed authority has resulted in deprivation of proper opportunity of hearing. The
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