C A V Order

Per Parth Prateem Sahu, Judge

1. Appellant in this appeal has challenged the legality and sustainability of the order dated 07.01.2022, passed in W.P.(C) No. 4162 of 2021, whereby the learned Single Judge dismissed the writ petition, challenging the order of Appellate Authority dismissing the appeal against order of removal of the appellant from the post of Sarpanch under Section 40 of the Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the “Adhiniyam, 1993”).

2. Facts relevant for disposal of the appeal are that the appellant/petitioner was elected as Sarpanch of Gram Panchayat Sirsakhurd. Election certificate under Form- 25 was issued to him by the Returning Officer on 30.01.2020. Some villagers submitted a complaint before the District Collector, making 9 allegations therein. Copy of the complaint was also forwarded to the Chief Executive Officer, Zila Panchayat, District -Durg, Sub-Divisional Officer (Revenue) and Chief Executive Officer, Janpad Panchayat, Durg. Respondent No.3 directed respondent No.4 to submit parawise report on the complaint submitted by one elected member of Janpad Panchayat and villagers (Annexure R/ 7-1) dated 11-14/09/2020. Two members team submitted its report to respondent No.4 vide (Annexure P-5).

3. The Chief Executive Officer, Janpad Panchayat forwarded the preliminary enquiry report to the Sub-Divisional Officer on 06.11.2020 with a covering memo, agreeing with conclusion of enquiry team. Sub-Divisional Officer (R)/Prescribed Authority under the Adhiniyam, 1993, issued a show cause notice (Annexure P-8) to the appellant. Appellant replied to the show cause notice. Statements of both the members of the enquiry team were recorded and thereafter, the Prescribed Authority (respondent No.3) passed order of removal of the appellant from the post of Sarpanch under Section 40 of the Adhiniyam, 1993 and declared him ineligible for a period of six years for contesting any panchayat election. Appellant, aggrieved by the order passed by the Sub-Divisional Officer, preferred an appeal under Section 91 of the Adhiniyam, 1993 and Rules framed thereunder, before the Collector, Durg. The Appellate Authority dismissed the appeal vide order dated 23.09.2021. Appellant being aggrieved by the order of the Collector/Appellate Authority, had filed writ petition on 06.10.2021 bearing W.P.(C) No. 4162 of 2021, which also came to be dismissed vide order impugned.

4. Shri Prafulla N. Bharat, learned Sr. Counsel appearing on behalf of the appellant would submit that the appellant, who was an elected Sarpanch, was removed from his post under Section 40 of the Adhiniyam, 1993. Under this provision, Prescribed Authority is vested with the powers to remove office bearers but such powers can not be exercised without providing an opportunity of hearing. It is submitted that the basis of initiation of proceedings under Section 40 of the Adhiniyam, 1993 was a written complaint lodged by some of the villagers before the Collector and also Chief Executive Officer, Janpad Panchayat. The Chief Executive Officer directed for conducting preliminary enquiry on the compliant and it was enquired by team of two auditors of the Janpad Panchayat. Enquiry team recorded statements of villagers and submitted their report, but along with show cause notice, copy of enquiry report was not supplied. No separate charge-sheet was issued to the appellant specifying the charges. The persons based on whose statements the team of enquiry opined that the appellant has committed misconduct, were not examined before the Prescribed Authority. The Prescribed Authority has not followed the procedure prescribed under Section 40 of the Adhiniyam, 1993 and had passed the order of removal, disqualifying the appellant to contest election for six years. Appellant was even not provided with essential documents along with show cause notice like preliminary enquiry report submitted by team of two members, the statements of the witnesses recorded by