Madhya Pradesh High Court
Kum. Nidhi Raja Parmar vs The State Of Madhya Pradesh on 6 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6 th OF JANUARY, 2025
WRIT PETITION No. 40958 of 2024
KUM. NIDHI RAJA PARMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Jitendra Kumar Sharma, Sr. Advocate with Shri Yashika Nayak -
Advocate appeared for the petitioner.
Shri M S Jadon - GA appearing on behalf of State.
Shri Vivek Khedkar - AAG appeared for respondent.
ORDER
The present petition under Article 226 of the Constitution of India is
preferred against the order dated 13.12.2024 passed by respondent no.3, whereby
by invoking provisions under Section 40 (1)(Kha) of the Panchayat Raj Avam
Gram Swaraj Adhiniyam, 1993, the petitioner who was the Sarpanch of Gram
Panchayat, Orina, District Datia has been found guilty under the aforesaid section
and by invoking the provisions of Section 40 (1)(Kha)(iv and v) of Adhiniyam,
1993 was removed from the post of Sarpanch.
2. At the outset, learned Sr. Counsel, Shri Jitendra Sharma along with Shri
Yashika Nayak had argued before this Court that the very order impugned herein
is against the settled principles of natural justice as firstly, the said order has been
passed dehors the allegations which were levelled against the petitioners in the
show cause notice dated 12.11.2024 as in the said show cause notice a solitary
allegation was levelled with regard to non-completion of the work of Nala Nirman
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(runnel) from the house of Jasoda Adiwasi for which the amount was withdrawn
and the said work was kept pending for last one year, whereas from bare perusal of
impugned order it would be reflected that the same was passed in light of certain
report of CEO Janpad Panchayat, Datia dated 03.12.2024 wherein certain other
irregularities and illegalities were alleged against the petitioner for which no
opportunity of hearing was granted and no explanation was called for, thus, the
very order is perverse and illegal.
3. While referring to the judgment of Coordinate Bench of this Court in the
matter of Kailashchandra Jain vs. State of M.P. and Ors. reported in 2003 (3)
MPLJ 260, in the matter of Kailash Kumar Parmanand Dangi vs. State of M.P.
and Ors, reported in 1992 (2) MPLJ 722, in the matter of Raja Raj Singh vs. State
of M.P. and Ors, reported in 2001 (4) MPLJ 364 , it was argued that enquiry under
Section 40 of the Adhiniyam 1993 is not an empty formality, therefore, there
should be compliance of necessary provisions of Section 40 of Adhiniyam, 1993
and person should be punished legally and for that person against whom the
allegations have been levelled should be given opportunity of defending himself
by conducting enquiry in the presence of said person against whom action is
proposed to be initiated.
4. It was further argued that herein case the said person is a Sarpanch and
while conducting enquiry against the Sarpanch opportunity of hearing was
required to be granted so also the opportunity of cross-examination of the
witnesses who were supposed to be examined in support of the allegations leveled
against him were to be given, but as the said opportunity was not granted, the
impugned order, therefore, deserves to be quashed.
5. While referring to the judgment of the Apex Court in the matter of
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Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai & Ors reported in
1998 (8) SCC 1, it was argued that since the very principles of natural justice has
not been followed, the alternative remedy available to the petitioner against the
impugned order cannot be said to be an absolute bar and the present petition in
that context is very well maintainable.
6. On the other hand, Shri Vivek Khedkar, learned AAG along with Shri
M.S. Jadon on advance copy has argued that no illegality or perversity has been
committed by the authority in passing the impugned order as the fact of non
completion of the alleged construction work and disbursement of the amount in
lieu thereof had been very well accepted by the petitioner and once the said fact
has already been admitted, then nothing further remains to be proved by way of
adducing further evidence, thus, it was prayed that the present petition in wake of
availability of alternative remedy, deserves to be dismissed.
7. It was further argued that after issuance of show-cause notice which was
based upon preliminary enquiry, the petitioner was called to file a response which
was filed on 21.11.2024 and only after considering the contents of the reply, the
impugned order came to be passed which cannot be faulted with, thus, it was
prayed that the present petition deserves to be dismissed.
8. After hearing the rival contentions and going through the contents of the
petition, this Court finds that the show-cause notice dated 12.11.2024 issued under
Section 40 of Adhiniyam, 1993 only mentions of one allegation with regard to
non-completion of certain construction work of a Nala (runnel) in the Gram
Panchayat though the amount of said construction work was disbursed or taken. In
pursuance to the said show-cause notice, reply dated 21.11.2024 was submitted by
the petitioner, wherein in para-2 it was mentioned that the work which was said to
be not completed was already completed and the valuation of the said work was
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also been carried out by the sub-engineer and even the photographs of the
construction and the report of the sub-engineer has been submitted as a proof
therein.
9. In context of the said show-cause notice and reply, if the impugned order
is seen it appears that the order passed by CEO, District Panchayat, Datia is not
based upon the show-cause notice and its reply rather appears to be based upon a
report of CEO, Janpad Panchayat, dated 03.11.2024 in which apart from the
charge/allegations levelled against the petitioner in the show-cause notice other
illegalities or irregularities had been addressed and based upon the said report, the
impugned order appears to have been passed, which to this Court doesn't appears
to be correct, as it is a settled preposition of law that any delinquent shall not be
condemned un-heard and herein case the impugned order is not based solely upon
the charge/allegations levelled against the petitioner, but is based upon certain
other allegations to which the petitioner was never put to notice or was show-
caused and as such the petitioner was taken by surprise at the time of so called
behind the back enquiry conducted in the matter.
10. It also appears from the record that even in the report dated 03.12.2024
which was obtained from CEO, Janpad Panchayat it is not reflect that the
petitioner had participated or the petitioner was called and was put to notice about
the allegations upon which the report was based, thus, it can very well be said that
the impugned order based upon the report of CEO, Janpad Panchayat which was
called behind the back of the petitioner, cannot be said to be made a ground for
taking adverse inference against her and removing her.
11. Since this Court has already come to the conclusion that the impugned
order is dehors the principles of natural justice as the impugned order is not based
upon the allegations as levelled in the show-cause notice rather is based upon
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some inquiry report of CEO, Janpad Panchayat, conducted behind the back of the
petitioner and as no proper opportunity of hearing was afforded to the petitioner to
rebut the fresh allegations, the availability of alternative remedy to the petitioner
of appeal cannot be said to be a bar for filing the present petition.
12. Accordingly, the present petition is hereby allowed, the impugned order
Annexure P/1 dated 13.12.2024 is hereby set aside.
13. The matter is remitted back to the respondent authorities with a
direction to issue proper show-cause notice to the petitioner mentioning all the
allegations and, thereafter, giving proper opportunity of hearing are at liberty to
pass order afresh.
14. Let the aforesaid exercise be completed within a period of three months
from the date of receipt of certified copy of this order.
(MILIND RAMESH PHADKE)
JUDGE
Chandni
