Smt. Girija Devi Agrawal vs State Of Chhattisgarh
2022 Latest Caselaw 755 Chatt

                                     1




                                                                     N/AFR

           HIGH COURT OF CHHATTISGARH AT BILASPUR
                          WPC NO. 491 OF 2022

1.       Smt. Girija Devi Agrawal, aged 49 years, W/o Kamal Agrawal,
Sarpanch, R/o Gram Panchayat, Jairam Nagar, Masturi, District Bilaspur
(C.G.)
2.     Kamal Agrawal, aged 52 years, S/o Shri Ram Niwas Agrawal,
Panch, R/o Gram Panchayat, Jairam Nagar, Masturi, District Bilaspur
(C.G.)
                                                               ... Petitioners
                                    versus
1.     State of Chhattisgarh, through: the Secretary, Department of
Panchayat and Rural Development, Mantralaya, Mahanadi Bhawan, New
Raipur, District Raipur (C.G.)
2.     The Collector, Bilaspur, District Bilaspur (C.G.)
3.     Sub Divisional Officer (Revenue), Masturi, District Bilaspur (C.G.)
4.     Deputy Director, Panchayat, District Bilaspur (C.G.)
5.     Janpad Panchayat Masturi, through Chief Executive Officer, Masturi,
District Bilaspur (C.G.)
6.     Madan Patre, Secretary, Gram Panchayat, Jairam Nagar, Masturi,
District Bilaspur (C.G.)
7.     Chandraprakash Sonwani, Ex-Sarpanch, Gram Panchayat, Jairam
Nagar, Masturi, District Bilaspur (C.G.)
                                                            ... Respondents

For Petitioners : Mr. Devershi Thakur, Advocate. For Respondents/State : Mr. Pawan Kesharwani, P.L. For Respondent/Caveator : Mr. Mateen Siddiqui, Advocate.

Hon'ble Shri Justice P. Sam Koshy Order on Board [14/02/2022]

1. Challenge in the present Writ Petition is to the Order dated 5.1.2022

passed by Respondent No.3 - Sub Divisional Officer (Revenue), Masturi.

2. Vide the said Order, the Petitioner No.1 and the Respondent No.2,

the elected Sarpanch and Panch respectively of Gram Panchayat Jairam

Nagar, Block Masturi, District Bilaspur, have been placed under

suspension invoking the provisions of Section 39(1) of the Chhattisgarh

Panchayat Raj Adhiniyam, 1993 (henceforth shall be referred to as, "the

Act of 1993").

3. Challenge to the impugned order of suspension is primarily on the

ground that the order of suspension does not meet the mandatory

requirements otherwise envisaged under Section 39 of the Act of 1993.

4. Learned Counsel for Petitioners submits that it is mandatorily

required under the law that along with the show-cause-notice the

Petitioners be also provided with the charge-sheet mentioning in details of

all the charges leveled against them and calling upon the explanation of

the Petitioners to the show-cause proposing their removal from the post of

Sarpanch and Panch. This mandatory requirement is not followed,

inasmuch as the Petitioners have been served with the show-cause-notice

alone and that no charge-sheet as such has been issued along with the

show-cause-notice, therefore, the action on the part of the Respondents is

bad. Learned Counsel for Petitioners relies upon the decision of this Court

rendered in W.P.(C). No.24/2022 [Smt. Sushma Lakda Vs. State of

Chhattisgarh & Others] in support of his contentions.

5. Per contra, learned Counsel for Respondent-State Government as

also the learned Counsel appearing for the Caveators have strongly

contended on the maintainability of the present Writ Petition on the ground

that there being an alternative efficacious remedy of appeal available to

the Petitioners. According to them, the order of suspension is an

appealable order and the appeal would lie to the Collector and the

Petitioners ought to have first exhausted the remedy of appeal before

approaching the Writ Court for exercising the Writ jurisdiction. They have

also relied upon the decision of the Division Bench of this High Court

rendered in W.A. No.555/2016 [Smt. Ramkali Raj Vs. State of

Chhattisgarh & Others] reported in 2017 (2) C.G.L.J. 371.

6. Learned Counsel appearing for the Caveators however further

contended that the plain reading of the show-cause-notice would clearly

reflect that though it is termed as the show-cause-notice but the contents

of the same are nothing sort of a charge-sheet enumerating the specific

allegations and charges leveled against the Petitioners. Therefore the

show-cause-notice dated 14.9.2021 issued to the Petitioners be also

treated as compliance of the mandatory requirements under Section 39 of

the Act of 1993. According to him, only because the show-cause-notice

does not enumerate it to be a charge-sheet anywhere it does not mean

that the Petitioners have not been issued with a charge-sheet highlighting

the charges and allegations against them. Thus, the object and intention of

the provisions of law are met from the show-cause-notice itself and

therefore it cannot be said that the order of suspension was without

issuance of the charge-sheet.

7. At this juncture, on a query put to the learned State Counsel, he

makes a submission on instructions that admittedly the charge-sheet has

not been issued to the Petitioners. This, in other words, means that the

issuance of charge-sheet is yet to be undertaken by the State Authorities,

which dilutes the whole contention raised by the learned Counsel for

Caveators of the show-cause-notice also being the charge-sheet itself.

8. At this juncture, it would be relevant to refer to Section 39 of the Act

of 1993 which deals with the suspension of office-bearer of Panchayat. For

ready reference, sub-section (1)(b) of Section 39 which is relevant for the

present Writ Petition is being reproduced herein below:

"39. Suspension of office-bearer of Panchayat - (1) The prescribed authority may suspend from office any office bearer, -

(a) xxx xxx xxx

(b) on whom, show cause notice along with charge sheet under this Act, has been served for removal from office."

9. Plain reading of the aforesaid sub-Section 1(b) of Section 39 would

clearly reflect that the Legislature when the law was being enacted clearly

intended that if at all if an office-bearer was to be suspended and he was

being issued with a show-cause-notice that show-cause-notice should be

enclosed along with the charge-sheet highlighting the allegations that were

leveled against the concerned office-bearer. As per the instructions

received by the learned State Counsel, admittedly the charge-sheet has

not been issued in the instant case. Thus, the action on the part of the

Respondents in placing the Petitioners under suspension without the

charge-sheet violates the requirement prescribed under Section 39(1)(b) of

the Act of 1993 and thus the action would stand vitiated.

10. Now coming to the judgment of the Division Bench rendered in the

case of Ramkali Raj (supra) which has been relied upon by the learned

Counsels appearing for the Respondents/Caveators, the said Writ Appeal

and the Writ Petition were decided under an entirely different contextual

background where the Writ Petition was dismissed on the ground of

availability of alternative remedy, which has been upheld by the Division

Bench in the Writ Appeal. The said judgment of the Division Bench does

not lay down the principles of the Writ Court being barred from exercising

its Writ jurisdiction under an exceptional case where the impugned order is

per-se in violation of mandatory requirement under the concerned Act.

True it is that the law is well-settled that once when there is an alternative

remedy available, under the normal circumstances, the person aggrieved

of the action must be relegated to the alternative remedy available under

the statute. But, that does not mean that the High Court in exercising its

power under Article 226 of the Constitution of India does not have the

authority to exercise the power of judicial review of an order which is

primarily on the ground of it being violative to the provisions of the Act of

1993 and the mandatory requirements under the provisions of law. With all

due respect, the said judgment of the Division Bench is therefore

distinguishable on its facts itself.

11. As regards the mandatory compliance under Section 39(1(b) of the

Act of 1993, this High Court has in various other Writ Petitions set-

aside/quashed a large number of suspension orders where the order of

suspension was issued without issuance of the charge-sheet. This Court,

in the case of Smt. Sushma Lakda (supra), in paragraphs 6 to 8 dealing

with law on Section 39(1)(b) of the Act of 1993, has held as under :-

"6. This High Court in the case of Umashankar Porte Vs. State of Chhattisgarh and others, WPC No. 745 of 2017, decided on 29.03.2017 had already decided an identical issue whereby the order of suspension without any charge sheet and notice of removal from office, served upon the petitioner was questioned and the High Court while dealing with the issue in paragraphs - 6 to 11 held as under:

"6. The provision contained in Section 39 (1) of the Act of 1993 exhaustively provides for circumstances, the manner and the condition under which, the office bearer of Panchayat can be placed under suspension. The first eventuality under which the office bearers could be placed under suspension is that the charges have been framed in any criminal proceedings under Chapter V-A, VI, [IX], IX-A, X, XII, Section 302, 303, 304- B, 305, 306, 312 to 318, 366-A, 366-B, 373 to 377 of Chapter XVI, Section 395 to 398, 408, 409, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) or under any Law for the time being in force for the prevention of adulteration of food stuff and drugs, [suppression of immoral traffic in women and children protection of civil rights and Prevention of Corruption]. The other contingency under which the office bearer of Panchayat could be placed under suspension is that a show cause notice along with charge-sheet under the Act, has been served for removal from office.

7. The aforesaid provision unmistakably reflects the statutory scheme of the Act of 1993, placing fetter upon the exercise of power of suspension of an office bearer

of Panchayat. The legislature does not allow the prescribed authority to place an office bearer of Panchayat, unless one of the two preconditions are fulfilled. The office bearers of Panchayat namely Sarpanch and Panchs are elected by a democratic process. Keeping in view the above status as elected representative of the people, the Act of 1993 makes special provision in the matter of removal or suspension. While an office bearer could be removed from his office by the State Government or the Prescribed Authority, as provided under Section 40 of the Act of 1993, in appropriate cases, he could also be placed under suspension but the exercise of power of suspension is circumscribed by the precondition engrafted in Section 39 of the Act of 1993.

8. In the present case, there is no allegation of framing of charges for alleged commission of any of the offences as prescribed under Section 39(1) (a) of the Act of 1993. In order to invoke power of suspension under Section 39(1)(b), the Prescribed Authority is required to give a show cause notice along with the charge-sheet for removal from office. The law further provides that it should be served. The show cause notice as contemplated under Section 39(1)(b), must be one requiring the office bearer to show cause why he should not be removed from the office. Further, the other statutory requirement, which is mandatory in nature is that the show cause notice must be served along with the charge-sheet. The legal requirement of giving notice along with the charge-sheet is clearly indicative of the legislative mandate that the office bearer, against whom, removal is proposed, must clearly know as to what are the allegation along with the material on which those allegations as based as also the witnesses and documentary evidence by which those allegations are proposed to be proved against him. The word 'charge-sheet' would not mean that only allegation are leveled and the office bearer is expected to file his reply. The requirement of giving show cause notice along with charge-sheet, therefore, it is a necessary precondition of exercise of power of suspension.

9. If the notice dated 08.03.2017 is examined in the light of aforesaid statutory requirement, there is no iota of doubt that it does not fulfill the requirement of law of giving a show cause notice along with charge-sheet. The show cause notice, read as it is, requires the petitioner to show cause as to why action should not be taken under Section 39 of the Act of 1993.

10. Curiously enough, the Prescribed Authority under the misconceived notion of law, thinks that the petitioner could be punished under Section 39 of the Act of 1993, which is patent misleading of the provision of law. Section 39 of the Act of 1993 does not provide for any penalty but only provides for suspension. The only other provision under the Act of 1993 under which an office bearer could be removed is the provision contained in Section 40 of the Act of 1993. The notice does not even mention Section 40 of the Act of 1993, much less requiring the petitioner to show cause against removal. It appears that the Prescribed Authority has completely misconstrued the provision of law and the precondition for exercise of power of suspension.

11. The submission of State counsel that the details given in the order of suspension by itself should be treated as charge-sheet, cannot be accepted. The impugned order of suspension shows that the allegations against the petitioner were inquired into and impugned order shows that the authority got some inquiry made and has also prejudged the whole issue."

7. Given the aforesaid legal statutory position as is reflected from the plain reading of Section 39(1) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 and also the legal position that has been laid down in the case of Umashankar Porte (supra), this Court is of the opinion that the impugned order of suspension in the given set of facts also would not be sustainable and the same therefore deserves to be and is accordingly set aside/quashed.

8. However, the quashing of the order of suspension Annexure P-1 dated 29.12.2021 would not preclude the respondent authorities from initiating appropriate proceedings against the petitioner in accordance with law particularly keeping in view the provisions of Section 39 of 6 the CG Panchayat Raj Adhiniyam, 1993."

12. Given the aforesaid factual matrix of the case and the legal position

as it stands and also the statement made by the learned State Counsel

that the charge-sheet in the instant case has not been issued, this Court is

of the opinion that the order of suspension thus stands vitiated only for

non-compliance of the mandatory requirement as is otherwise under

Section 39(1(b) of the Act of 1993.

13. Under the circumstances, the impugned Order dated 5.1.2022

(Annexures P-1 & P-2)) would not be sustainable and the same thus

deserves to be and is accordingly set-aside/quashed. However, the

quashment of the impugned order of suspension only on the ground of not

being issued along with the charge-sheet would not preclude the

Respondent Authorities from initiating appropriate proceeding afresh

strictly in accordance with law, particularly keeping in view the

requirements under Section 39 of the Act of 1993.

14. Writ Petition is allowed and disposed of accordingly.

Sd/-

                                                                 (P. Sam Koshy)
sharad                                                                 JUDGE