Daduram vs State of M.P. and Others

K.K. Lahoti, J.

Petitioner who was Vice President, Janpad Panchayat, Gotegaon, Narsinghpur was removed from the office u/s 40 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as ''Panchayat Act'') on the ground of misconduct in the discharge of his duties. Petitioner has sought following relief:

It is, therefore, humbly prayed that this Hon''ble Court be pleased to quash the orders dated 22.4.1999 passed by the Collector and order dated 18.1.1999 passed by Additional Commissioner, Jabalpur.

Facts in short for the decision of the case are that petitioner was elected Vice President, Janpad Panchayat, Gotegaon, District Narsinghpur. A complaint was lodged before the Collector, Narsinghpur against petitioner by R.P. Patel. Complaint was in respect of irregularities in the process of selection of Shikshakarmi Grade III by Janpad Panchayat. The Collector on the basis of complaint found that in the selection there was interpolation in the marks allotted to the candidates and the marks of experience were not awarded as per the settled criteria. Some eligible candidates could not get appointment and some ineligible candidates were selected. Sub-Divisional Officer''s report was accepted by the Collector, Narsinghpur and it was decided to take action against the Chairman, Standing Education Samiti, Chief Executive Officer and Block Education Officer, Janpad Panchyat, Gotegaon. Order of Collector dated 5.11.1998 is Annexure P/1.

The report of S.D.O. dated 13.10.1998 is on record as Annexure A/2 in which he has recorded different findings in detail. From the perusal of the report it appears that apart from the aforesaid irregularities, some ineligible candidates who were close members of the selection committee were also appointed. Thereafter, a show cause notice dated 24.3.1999 (Annexure A/3) was issued to the petitioner to show cause why on the ground of misconduct stated in the notice, he be not removed from the office of Vice President, Janpad Panchayat, Goatgaon. The grounds stated in the notice are as under:

(a) Smt. Mamta Patel who was Shikshakarmi in last three educational sessions was not awarded marks of experience.

(b) Application of Rekha Rajput was not registered in inward register of Janpad Panchayat.

(c) Shri Anil Kumar Chouksey was also Shikshakarmi in last three educational sessions but he was not awarded marks of experience and in the tabulation sheet, his experience has been shown as nil while he was entitled for marks of experience.

(d) Alka Rajput was having no experience but she has enclosed experience certificate which does not fall within the purview of experience certificate.

(e) Anita Gupta was not eligible for the appointment as she got only 52.06 points while cut off point of general candidate was 53.70.

(f) Asraf khan was also much below of the cut off point but he was selected.

(g) Shri J.P. Koshti was Block Education Officer and Smt. Chandrakanta Pathak was member of interview committee. Two daughters of Shri J.P. Koshti namely Ku. Shrutibala Koshti and Ku. Rachna Koshti were selected and Ashwani Pathak son of Smt. Chandrakanta Pathak was selected. Apart from this, there was serious interpolation in the interviews sheet in respect of marks awarded to Komal Singh Gond and Kishoribai Neekhra.

(h) The selection committee was not constituted as per gazette notification dated 1.1.1998 and the members of the committee have selected their own children. They have also awarded marks to them in the interview.

(i) In Janpad Panchayat, Gotegaon, previous selection of Shikshakarmi Grade III was cancelled and the matter was reprocessed but the same was also found defective.

On the aforesaid grounds, the Collector found that the entire selection on both occasions was defective. Petitioner being the Chairman of the selection committee has remained gross negligent in the discharge of his duties and has permitted aforesaid irregularities. On these grounds it was noticed to the petitioner why he be not removed from the office u/s 40(1)(a) of the Panchayat Act.

Petitioner filed reply and contended that the joint reply submitted by the petitioner along with Chief Executive Officer and Block Education Officer be treated as his reply. In the reply, petitioner has stated that:

(A) It was duty of the gazette officer to verify the record and if a wrong information was submitted then it ought to have been pointed out by them,

(B) The calculation of the marks in the interview was the duty of the Members of the Committee.

(C) Calling of the children of the Members of Committee in the interview was the duty of the aforesaid Members and they ought to have disclosed this fact,

(D) That, proper documents were not provided to the petitioner which ought to have been provided. Before the S.D.O., statement of petitioner was not recorded.

After considering the reply, the Collector passed order (Annexure P/ 5) dated 22.4.1999 by which it was held that petitioner being the Chairman of the selection committee is liable for the aforesaid irregularities and the selection of the children of the members of the committee. He remained gross negligent at the time of the selection of Shikshakarmis and because of this, twice process for selection was called. On the aforesaid grounds, he was removed from the office u/s 40(1) (a) of the Panchayat Act.

Against order passed by the Collector, a revision was preferred to the Additional Commissioner, Jabalpur but it was also rejected by order (Annexure P/6) dated 13.11.1999. These orders are under challenge in this petition.

Learned counsel for petitioner submitted:

(i) That, the entire order is based on the basis of the report submitted by the S.D.O. But the petitioner was not afforded any opportunity to place and prove his defence. The order is in violation of principles of natural justice.

(ii) That, in respect of the alleged irregularities of interpolation of marks, there is no finding that the petitioner was instrumental of it and until and unless there is some finding in this regard, petitioner cannot be removed from the office.

(iii) That, there is no allegation that the petitioner in any manner took personal benefit in the said process.

(iv) The members of the selection committee ought to have disclosed this fact that their children were participating in the process. Petitioner was not aware about the fact that the children of the Members of the selection committee were appearing in the process and were selected. In these circumstances, if the Sub-Divisional Officer would have afforded an opportunity to the petitioner to place his case before him then there was no question of removal of the petitioner from the office.

On the aforesaid grounds, impugned orders have been challenged.

In this case, State has not filed any return in spite of various opportunities. Notices were issued in this case on 26.02.2001 and thereafter, on 21.4.2004, application for urgent hearing was allowed. Even then State has not filed any return in this case.

Learned counsel for respondents supported the orders on the following grounds:

(a) That, petitioner being the Chairman of the selection committee was under an obligation to see that the selection should be fair and there should not be any interpolation in the process, but he was grossly negligent throughout the process and had permitted Members of the selection committee to interpolate the record to appoint the children of the members of the selection committee.

(b) That, this was the second selection. The first selection was set aside on similar ground. Then, it was expected to the petitioner to remain vigilant for the discharge of his duties and ought not to have permitted the aforesaid irregularities in the selection process.

To appreciate the rival contentions of the parties, it is not in dispute that before the Sub-Divisional Officer, petitioner was not afforded any opportunity to submit his case. Petitioner and other two persons submitted their reply, but no action against the Chief Executive Officer and Block Education Officer has been taken by the respondents so far. The selection process was manipulated by the aforesaid two members who were interested in the appointment of their children as Shikshakarmi Grade III. Petitioner who was the Chairman of the committee though was under an obligation to see that there is no manipulation or interpolation in the process, but ultimately out of the three members, one was the Chief Executive Officer and another was Block Education Officer in the selection committee, this fact was not disclosed by them that they are selecting their children in the selection committee and the fact that petitioner was knowing or having knowledge that the aforesaid persons are being selected in the selection committee is not on record. In this regard, there is no finding by any of the authorities that the petitioner was knowing it well that the aforesaid three persons who were selected are the children of the members of the selection committee. Until and unless aforesaid finding is recorded, petitioner cannot be said to be grossly negligent in discharge of his duties. Apart from this, there was some interpolation in the marks, but these marks were interpolated by whom or by the petitioner is not on record. The Chief Executive Officer and Block Education Officer both are gazetted officers and they ought to have brought this fact into the notice of the petitioner that there is some interpolation in the record. At what stage this interpolation was made is also not on record. From the perusal of the record, it also appears that the aforesaid Chief Executive Officer and Block Education Officer were having some influence on the petitioner. This also reflects from the joint reply filed by them. Petitioner did not get proper opportunity before S.D.O. to substantiate his case. Principle of natural justice requires that the petitioner should be given due opportunity. But no witness was examined by the S.D.O. in support of the charge in the presence of the petitioner. The impugned order of removal shows that the reply to the show-cause notice was considered in the light of the report submitted by the S.D.O. In fact there was denial of fair opportunity to the petitioner in respect of aforesaid allegations. The removal of an office-bearer of Panchayat u/s 40 of the Panchayat Act is a serious one and also stigmatic. Consequence of the removal is that he is disqualified for six years to contest the election of Panchayat. In aforesaid circumstances, an appropriate legal inquiry ought to have been conducted by the authorities. This Court in Kailash Kumar Parmanand Dangi Vs. State of M.P. and Others, considering similar circumstances held thus:

Removal of Sarpanch or office bearer of Gram Panchayat on ground of misconduct- Enquiry- Though it is not specifically provided in section 40 of 1993 Adhiniyam that principles of natural justice should be followed while holding such enquiry, it is implicit in this provision that the office bearer who is sought to be removed will be given a fair hearing.

Considering the aforesaid, in the present case though the petitioner owes moral responsibility being the Chairman of selection committee, but looking to the fact that the children of other two members of the committee were appearing and selected was not within his knowledge and before S.D.O. petitioner was not afforded due opportunity of hearing, the order passed by the Collector, Narsinghpur dated 22.4.1999 (Annexure P/5) and order passed by the Additional Commissioner, Jabalpur dated 18.11.1999 (Annexure P/6) by which petitioner has been removed from the office of Vice President, Janpad Panchayat, Gotegaon, District Narsinghpur are not sustainable under the law and are hereby quashed, with no order as to costs.