Indumati W/O Vishwanath ... vs State Of Maharashtra And Ors.
2004 Latest Caselaw 634 Bom

JUDGMENT

B.H. Marlapalle, J.

1. Heard.

2. Rule.

3. Shri K.B. Choudhary, learned Assistant Government Pleader, waives service for the respondents No. 1, 2 and 5.

4. With the consent of the learned Advocates for the parties, the writ petition is taken up for final hearing forthwith.

5. The petitioner came to be elected as Chairperson (Sabhapati), Panchayat Samiti, Bhoom, on 14-3-2003 and with a statutory period of two and half years. However, an inquiry was initiated against the petitioner under Section 73 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. It was alleged that on or about 29-4-2003, she had called one Shri B.R. Shinde, Block Development Officer, Panchayat Samiti in her chamber and used derogatory language against him. This behaviour amounted to misconduct or disgraceful conduct. She was issued a charge-sheet on 16-6-2003 by the Additional Divisional Commissioner, Aurangabad, being the competent authority. She had submitted her defence statement and the competent authority conducted an inquiry. He recorded his findings, held the petitioner guilty of the charges levelled against her and recommended her removal from the office of Chairman of the Panchayat Samiti.

6. The Honourable Minister for Rural Development issued the show cause notice on 9-1-2004. The petitioner submitted her reply to the same and stated that the allegations levelled against her were vague, they were not proved, the principles of natural justice were not followed and the proposed action of removal was not warranted. However, by the impugned Order dated 10-5-2003 passed by the respondent No. 5, the petitioner came to be removed from her office (Chairperson) of Panchayat Samiti, Bhoom under Section 73 of the Act. The said Order has been assailed in this petition.

7. In his arguments Shri S.B. Talekar, learned Advocate, has referred to number of grounds assailing the Order of removal including the preliminary point regarding breach of the doctrine of audi alteram partem. He submitted that the disciplinary authority or the Additional Divisional Commissioner had never supplied a copy of the inquiry report holding the petitioner guilty and therefore, she was handicapped in submitting her defence in reply to the second show cause notice dated 9-1-2004 issued by the respondent No. 1. She was not able to submit the written defence in reply to the said show cause notice in the right manner as she did not have the findings recorded by the Additional Commissioner in her possession, urged the petitioner.

8. This preliminary point raised has substantial force and if the same is decided in favour of the petitioner, only on that ground alone the impugned Order would have to be set-aside and the proceedings would have to be remanded for fresh decision.

9. Proviso to Section 73 of the Act states that no Chairman or Deputy Chairman shall be removed from office unless he or she has been given an opportunity to furnish his/her explanation. By Maharashtra Amendment Act No. 43 of 1962, the words "tender explanation" were substituted by the words "furnish his explanation". The intention of the Legislature is thus clear in the said amendment which indicated that mere tender of the explanation would not be sufficient and the explanation was required to be furnished. The word "furnish" would take in its amplitude the final statement of defence statement and also an opportunity of hearing. Even in the show cause notice dated 9-1-2004 such an opportunity of hearing is contemplated and in a way was, provided. However, it was stated that the petitioner should contact the appropriate authority and seek an appointment of the Honourable Minister in case she wanted to be heard. It is evident that no date was fixed for such hearing and if such a date was fixed it was for the petitioner to appear before the disciplinary authority. Without fixing any such date she was called upon to get in touch with the officer concerned to fix an appointment with the Minister. An opportunity of hearing must be effective and meaningful and it should not be a mere formality so as to meet the requirements of the principles of natural justice.

10. From the file from the office of the Additional Divisional Commissioner placed before this Court by Shri K.B. Choudhary, learned Assistant Government Pleader, it is apparent that the inquiry report was marked as confidential and submitted to the State Government with the recommendations but a copy of the same was never made available to the petitioner. It is not necessary that she ought to have demanded a copy of the same. The disciplinary authority while issuing the second show cause notice dated 9-1-2004 ought to have furnished a copy of the said report to the petitioner so that she could have been offered an adequate opportunity to submit her defence before the disciplinary authority. This has not been done. Thus, the impugned Order fails on two basic grounds namely;

(a) the petitioner was not offered a personal hearing as required under proviso to Section 73 of the Act and

(b) a copy of the inquiry report was not made over to her.

11. Shri K.B. Choudhary, learned Assistant Government Pleader, states that a copy of the inquiry report has been handed over to Shri S. B. Talekar, learned Advocate for the petitioner in the Court to enable the petitioner to file her defence statement and appear before the disciplinary authority on the given date for being heard. Shri K.B. Choudhary, on the basis of a fax message received from the concerned department, further states that the disciplinary authority will hear the petitioner afresh on 22-6-2004 at 1 pm in Chamber No. 208, Mantralaya (Extension) Second Floor at Mumbai. A copy of the fax message dated 17-6-2004 issued by the Section Officer has also been handed over to Shri S.B. Talekar, learned Advocate, today in the Court.

12. In the result, the writ petition is partly allowed. The impugned Order dated 10-5-2004 is hereby quashed and set aside. The petitioner shall appear before the respondent No. 5 on 22-6-2004 at 1 pm for personal hearing. She may submit her statement of defence afresh if so desired during the same proceedings. The disciplinary authority to hear the petitioner and pass a final Order on its own merits within a period of two weeks from 22-6-2004. Rule is made partly absolute in above terms.