Shankar Lal Uikey vs The State Of Madhya Pradesh
2021 Latest Caselaw 8904 MP

                                                        1                                WP-9896-2020
                              The High Court Of Madhya Pradesh
                                        WP No. 9896 of 2020
                                (SHANKAR LAL UIKEY Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                      Jabalpur, Dated : 16-12-2021
                            Mr. Shivendra Pandey, learned counsel for petitioner.

                            Mr. Prashant Mishra, learned PL for respondent-State.

Mr. K.L.Prajapati, learned counsel for Intervener. Petitioner has filed this writ petition challenging the order dated 04.07.2021 contained in Annexure-P/5. By said order, petitioner who was

Sarpanch of Gram Panchayat Noni was removed from his post exercising powers under Section 40 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Adhiniyam, 1993). Counsel appearing for petitioner challenged the impugned order on the ground that no enquiry was conducted before removal of petitioner from the post of Sarpanch, no opportunity of hearing was given to petitioner, order was arbitrary in nature and was unreasonable and passed mechanically. Petitioner was not given any notice or documents and report prepared behind back of petitioner relied for passing of impugned order. Case of petitioner is

covered by judgment passed by this Court in case of Kailash Kumar Parmanand Dangi Vs. State of MP & Ors., 1999 (2) MPLJ 722. It was further argued that full-fledged enquiry ought to have been conducted as per Provision of Section 40 of Act of 1993. Petitioner has been disqualified for a period of six years. Passing of order under Section 40 is a serious matter because petitioner is an elected Sarpanch and compliance of Act and rules made thereunder has to be made strictly. In view of aforesaid submission, counsel appearing for petitioner made a prayer for setting aside the impugned order so far as it relates to disqualification of petitioner under Section 40 (2) of the Adhiniyam, 1993.

Respondents have filed their return and have stated thereunder that many complaints were received against the petitioner, while he was working Signature SAN Verified Not as Sarpanch of Gram Panchayat, Noni. Petitioner was not available in Digitally signed by NEETI TIWARI Date: 2021.12.20 14:39:48 IST 2 WP-9896-2020 concerned village and was not working in interest of Gram Panchayat. On 04.05.2020, a Panchnama was prepared, which shows that petitioner was not residing in the village. Competent authority has opened the case against the petitioner under Section 40 of the Adhiniyam, 1993. Show-cause notices were issued to petitioner on 04.06.2020, 15.06.2020 & 24.06.2020, said notices are

placed on record vide Annexure-R/1, R/2 & R/3 but petitioner did not appear before the authority and in absence of petitioner, authority had no option but to pass the impugned order. It is submitted that an amount of Rs.20,31,750/- was withdrawn but on spot, no work has been done. It is further submitted that recovery proceedings under Section 92 of the Act are also initiated against the petitioner. In view of aforesaid submission, respondents supported the order passed by the competent authority.

Heard learned counsel for parties as well as respondents. In case of Kamal Koshore Krishna Gopal Khandelwal Vs. Janpad Panchayat Nalkheda & Ors. reported in 1999 (2) MPLJ 470, it has been held that if any action has to be taken against an office bearer of a Panchayat for his removal, then the prescribed authority will have to hold an enquiry for purpose of finding out whether delinquent happens to be guilty of misconduct or other contingencies mentioned in provision of Section 40 of the Adhiniyam, 1993. Misconduct of a person or contingencies mentioned in Section 40 of the Adhiniyam is to be proved and concerned person/office bearer ought to have been given an opportunity of hearing before passing of order of removal from the post.

From a perusal of impugned order, it is clear that no enquiry was conducted before passing the order of removal. Respondents had failed to show that petitioner, even after receipt of show-cause notices under Section 40 of the Adhiniyam, 1993, did not appear before the authorities. In view of facts and circumstances of the case, disqualification clause in impugned order dated 04.07.2020 is set-aside and no other relief is granted as term of elected officer bearer is over. Respondents are free to take action against petitioner Signature SAN Not Verified

Digitally signed by NEETI TIWARI Date: 2021.12.20 14:39:48 IST 3 WP-9896-2020 for recovery of loss caused to the Gram Panchayat by action of the petitioner after compliance of procedure prescribed under the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.

With aforesaid directions, this writ petition stands disposed off.

                                                                              (VISHAL DHAGAT)
                                                                                   JUDGE

                      nd




Signature
 SAN      Not
Verified

Digitally signed by
NEETI TIWARI
Date: 2021.12.20
14:39:48 IST