Janki Bai vs State Of Chhattisgarh
2022 Latest Caselaw 1423 Chatt

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                                                                              NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                             WPC No. 5041 of 2021
     • Janki Bai W/o Shri Gyandas Banjare, Aged About 52 Years, R/o Village
       Khamhariya, Tahsil Mungeli, District Mungeli, Chhattisgarh
                                                                    ---- Petitioner
                                      Versus
     1. State Of Chhattisgarh through its Secretary, Department of Panchayat &
        Rural Development, Mahanadi Bhawan, Nawa Raipur, Atal Nagar, P.O.-
        Rakhi, Distrct- Raipur, Chhattisgarh
     2. The Collector District- Mungeli, Chhattisgarh
     3. Sub Divisional Officer (R), Mungeli, District Mungeli, Chhattisgarh
     4. Nayab Tahsildar Mungeli, District Mungeli, Chhattisgarh
     5. Gram Panchayat Khamhariya through its Secretary, Gram Panchayat
        Khamhariya, Tahsil Mungeli, District Mungeli, Chhattisgarh
     6. Mahendra Dhruv, working as Upsarpanch, Gram                    Panchayat
        Khamhariya, Tahsil & District Mungeli, Chhattisgarh
     7. Suresh Ratrey, working as Panch, Gram Panchayat Khamhariya, Tahsil
        & District Mungeli, Chhattisgarh
     8. Ram Jhol Dhruv, working as Panch, Gram Panchayat Khamhariya,
        Tahsil & District Mungeli, Chhattisgarh
     9. Kamlesh Jatwar, working as Panch, Gram Panchayat Khamhariya,
        Tahsil & District Mungeli, Chhattisgarh
     10. Sunita Dhruv, working as Panch, Gram Panchayat Khamhariya, Tahsil &
         District Mungeli, Chhattisgarh
     11. Bisahin, working as Panch, Gram Panchayat Khamhariya, Tahsil &
         District Mungeli, Chhattisgarh
     12. Sarita Patre, working as Panch, Gram Panchayat Khamhariya, Tahsil &
         District Mungeli, Chhattisgarh
     13. Santosh Jatwar, working as Panch, Gram Panchayat Khamhariya, Tahsil
         & District Mungeli, Chhattisgarh
                                                                ---- Respondents

For Petitioner - Shri Anish Tiwari, Advocate.

For State/Respondents No.1 to 4 - Shri Ashish Tiwari, Govt. Advocate. For Respondents No.5, 6, 8, 9, 10, 11 and 12 - Shri Rajeev Kumar Dubey, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 21-03-2022

1. This petition has been brought praying for issuance of appropriate writ

and also for quashing the impugned order dated 16-11-2021 (Annexure-P/1).

2. It is submitted that the petitioner was elected as Sarpanch of Gram

Panchayat Khamhariya, District Mungeli, Chhattisgarh. A complaint was made

by respondents No.6 to 13 against the petitioner before respondent No.3

making allegations of financial irregularities. The copy of the complaint was not

supplied to the petitioner, however, the case was registered. Without holding

any preliminary inquiry respondent No.3 issued a show cause notice

(Annexure-P/4) under Section 40 of the Chhattisgarh Panchayat Raj

Adhiniyam, 1993 (in short 'the Adhiniyam, 1993') to the petitioner. The

petitioner submitted reply vide Annexure-P/5. Respondent No.3 then directed

the CEO, Janpad Panchayat Mungeli for submitting a report, but the same was

not complied. Thereafter, a committee was constituted for inquiry. The

committee headed by respondent No.4 submitted a report.

It is submitted by learned counsel for the petitioner, that report

(Annexure-P/8) was a preliminary inquiry report. On submission of this report

respondent No.3 directly passed the impugned order dated 16-11-2021 without

holding any inquiry and without giving proper opportunity of hearing. By the

impugned order the petitioner has been removed from her post under the

provision of Section 40 of the Panchayat Raj Adhiniyam and she has also been

disqualified to participate in further elections for a period of six years. It is

submitted that it is a case of clear violation of principles of natural justice. The

petitioner was never served with copy of the inquiry report and neither she was

given any opportunity of hearing as provided under Section 40 of the

Adhiniyam, 1993.

Reliance has been placed on the order of this Court passed in WPC

No.2675/2017 between Smt. Kamti Bai Vs. State of Chhattisgarh and

others decided on 11-12-2017 and the judgment of M.P. High Court in the case

of Kailash Kumar Parmanand Dangi Vs. State of M.P. and others, 1999 (2)

M.P.L.J. 722. It is submitted that although the impugned order is appellable, but

present case is an exception, as it is a case of violation of principles of natural

justice, regarding which reliance has been placed on the judgment of Hon'ble

the Supreme Court in the case of Harbanslal Sahnia and another Vs. Indian

Oil Corpn. Ltd. and others, (2003) SCC 107 and on the judgment of Hon'ble

the Supreme Court in the matter of Magadh Sagar & Energy Ltd. Vs. State of

Bihar and others, 2021 SCC OnLine SC 801. Hence, this petition is

maintainable without pursuing the alternative remedy as provided under the

Adhiniyam, 1993. Therefore, it is prayed that the petitioner may be granted

relief.

3. The State counsel representing respondents No.1, 2, 3 and 4 opposes

the submission and raises ground on the maintainability of the petition. It is

submitted that there is alternative remedy available to the petitioner under the

provisions of the Chhattisgarh Panchayat (Appeal and Revision) Rules, 1995.

Hence, for this reason the present petition is not maintainable, which may be

dismissed and disposed off.

4. Learned counsel for respondents No.5, 6, 8, 9, 10, 11 and 12 opposes

the submission and submits that the petitioner has not filed the copy of all the

order sheets. The order sheets that are filed clearly mention that the petitioner

has chosen to remain absent on the dates of hearing, therefore, now she

cannot make claim that she was not afforded opportunity of hearing. On the

basis of illegal activities of the petitioner one FIR has also been lodged against

her. There is no case of violation of principles of natural justice. Therefore, the

petition may be dismissed.

5. Considered on the submissions. On making scrutiny of the proceeding

initiated, it is found that on 25-08-2021 a complaint was received by

respondent No.3 on the basis of which the proceeding was initiated under

Section 40 of the Adhiniyam, 1993. By the order passed on this date notice

was issued to the petitioner under Section 40 of the Adhiniyam, 1993. The

petitioner gave appearance and submitted her reply. On subsequent dates, 29-

09-2021, 22-10-2021 and 28-10-2021 the petitioner remained absent before

respondent No.3. Respondent No.3 called for a report from the CEO, Janpad

Panchayat and after filing of the report the impugned order was passed on 16-

11-2021.

The petitioner may have chosen to remain absent in the proceeding

before respondent No.3, but filing of report by the CEO, Janpad Panchayat

Mungeli was a new development in this case, regarding which the petitioner

was required to be notified. There is mention in the impugned order that the

petitioner has not submitted any reply regarding the findings of the inquiry

report, but there is no mention that copy of the inquiry report was served upon

the petitioner and her reply was sought.

Compliance of principle of natural justice is a serious business which

cannot be done away with. This Court has in the case of Smt. Kamti Bai Vs.

State of Chhattisgarh and others (supra) observed in paragraph No.15 of the

said order that:-

"15. Reverting back to the facts of the case in hand, it is quite

apparent that upon receipt of preliminary enquiry report which the Sub

Divisional Officer (Revenue) got conducted beyond the back of the

petitioner and which was submitted on 16-6-2016, the show cause

notice was issued to the petitioner and after getting reply from the

petitioner, straightway, the order of removal was passed. In fact, this is a

case where no enquiry was done and mainly relying upon the report of

ex parte preliminary enquiry, the Sub Divisional Officer (Revenue) has

removed the petitioner from the post of Sarpanch. In order to establish

the charge alleged against the petitioner, the Sub Divisional Officer

(Reveue) has examined none and thus, no opportunity of hearing much

less reasonable opportunity of hearing was granted to the petitioner to

refute the said charges. Thus, the order of removal has been passed

without following the mandate of Section 40(1) of the Act of 1993 and

therefore it suffers from illegality as well as the principles of natural have

been followed in its full breach and such illegality and non-compliance of

audi alteram partem remain unnoticed by the learned Collector and the

learned Commissioner as well."

6. On the basis of the facts as present and mentioned hereinabove, it is a

clear case of violation of principles of natural justice by respondent No.3.

Hence, the present case has to be deemed as a case of exception to the rule

of alternative remedy as held by Hon'ble the Supreme Court in the case of

Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others

(supra) and also in the case of Magadh Sagar & Energy Ltd. Vs. State of

Bihar and others (supra). Therefore, I am of this view that the impugned order

is not sustainable. Accordingly, this petition is allowed and the impugned order

passed by respondent No.3 is quashed. Respondent No.3 shall be however at

liberty to proceed against the petitioner in accordance with law and by following

the principles of natural justice on the basis of complaint present against the

petitioner. With these observations the petition is disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Aadil