Patna High Court
Akhtar Ali vs The State Of Bihar on 21 January, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4559 of 2020
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Akhtar Ali, Son of Md. Haidar Ali, Resident of Village Kazipur, Post Dumri,
Police Station Semri, District Buxar.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Panchayati Raj Department,
Bihar, Patna.
2. The Principal Secretary, Panchayati Raj Department, Government of Bihar,
Patna.
3. The District Magistrate, Buxar.
4. The Deputy Development Commissioner, Buxar.
5. The Sub Divisional Officer, Dumraon
6. The Block Development Officer, Simri, Buxar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Singh, Advocate
Mr.Vinod Kumar, Advocate
For the Respondent/s : Mr. Manish Kumar, AC to AAG-6
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date : 21-01-2021
Heard learned counsel for the petitioner and learned
counsel for the State.
In the present case, the petitioner is challenging the
order dated 28.01.2020/04.02.2020 passed by the Principal
Secretary, Panchayati Raj Department, Bihar, Patna whereby and
whereunder he has found that charge has been proved against the
petitioner, thereby applying Section 18 (5) of Bihar Panchayat Raj
Act, 2006, he has been terminated from the post of Mukhiya.
The petitioner was Mukhiya of Kazipur Gram
Panchayat in Simri Block under Buxar District. A complaint was
Patna High Court CWJC No.4559 of 2020 dt.21-01-2021
lodged against him by issuance of show cause, in which three
charges were mentioned, which are as follows :
(i) 14oha foRr vk;ksx ds ;kstuk la[;k&[email protected]&17]
;kstuk la0 [email protected]&17] ;kstuk la0
[email protected]&17 ,oa ;kstuk la0 [email protected]&17 esa
izkDdyu ds vuqlkj dk;Z ugha djk;k x;k gSA
(ii) ,d gh LFky ij nks ;kstukvksa (eujsxk ,oa 14oha
foRr vk;ksx) ds uke ls jkf"k dh fudklh dh xbZA
(iii) fcuk dk;Z djk;s gh ljdkjh jkf"k dh fudklh dj
yh xbZ gS tks fd xaHkhj foRrh; vfu;ferrk ,oa
xcu dk ekeyk gSA
Whereafter, the petitioner has filed show-cause and
with respect to charge no.1, he himself accepted that in soling
works, in place of bricks, he used small piece of bricks and
when an enquiry was conducted, he was directed to deposit
Rs. 44,806/- with respect to work order no. 01/2016-17 and
with respect to work order no. 2/2016-17, he was directed to
deposit Rs. 20,598/- and in pursuance of that, the same has
been deposited. Again, an enquiry was conducted at the level
of DDC and he has found that still he has to deposit
Rs.26,053/- in connection with work order no.2/2016-17.
Accordingly, Rs. 46,651/- has been deposited. With regard to
two charges, it has been found that the State has failed to
prove the charge beyond reasonable doubt and with respect to
charge no.1, as he has accepted, in that circumstances,
Patna High Court CWJC No.4559 of 2020 dt.21-01-2021
applying Section 18 (5) of Bihar Panchayat Raj Act, 2006, he
has been removed from the post of Mukhiya.
It will be relevant to quote Section 18(5) of the
Bihar Panchayat Raj Act, 2006, which is as under:-
"18(5) Without prejudice to the provisions under this Act,
if, in opinion of the Commissioner having territorial
jurisdiction over the Gram Panchayat, a Mukhiya or an
Up-Mukhiya of Gram Panchayat absents himself without
sufficient cause for more than three consecutive meetings
or sittings or willfully omits or refuses to perform his
duties and functions under this Act, or abuses the power
vested in him or is found to be guilty of misconduct in the
discharge of his duties [Disobedience of order of an
authority established by law or] or becomes physically or
mentally incapacitated for performing his duties or is
absconding being an accused in a criminal case for more
than six months, the [Government] may, after giving the
Mukhiya or Up-Mukhiya a reasonable opportunity for
explanation, by order, remove such Mukhiya or Up-
Mukhiya, as the case may be, from office.
Provided when a system of Lok Parhari, instituted
under sub-section (5) of Section 152 comes into force by a
valid notification of the State Government, the Government
may only pass order of removal of such Mukhiya or Up-
Mukhiya, as the case may be, in the light of inquiry and
recommendation of Lok Prahari for the removal.
[The Mukhiya or Up-Mukhiya so removed on the charge of
being found guilty of misuse of vested powers or of
misconduct in the discharge of his duties shall not be
eligible for election to any Panchayat bodies till further
Patna High Court CWJC No.4559 of 2020 dt.21-01-2021
five years from the date of such removal. The Mukhiya or
Up-Mukhiya so removed on rest of the charges shall not be
eligible for re-election as Mukhiya or Up-Mukhiya or
Member of Gram Panchayat during the remaining term of
office of such Gram Panchayat]".
Counsel for the petitioner submits that he was not
given proper opportunity of hearing to defend his case. In
support of his contention, he has placed reliance at paragraph
11 of the writ application, which is reproduced hereinbelow:-
(i) 19.02.19 There was holiday and hence next date was
fixed as 26.02.2019.
(ii) 26.02.19 The petitioner appeared and submitted his
show cause explanation. Then, District
Magistrate was asked to submit reply on points
raised by the petitioner on next date i.e.
26.03.19.
(iii) 26.03.19 Though the report was submitted, the matter
was not heard and next date was fixed as
09.04.19.
(iv) 09.04.19 Again in view of points raised by the
petitioner, District Magistrate was asked to
conduct spot enquiry and submit the report on
next date i.e. 16.07.19.
(v) 16.07.19 The matter was not heard and next date was
fixed as 13.08.19.
(vi) 13.08.19 Due to Bakrid festival, petitioner did not
appear. Next date was fixed as 27.08.19.
(vii) 27.08.19 The matter was not heard and next date was
fixed as 17.09.19.
(viii) 17.09.19 The matter was not heard and next dae was
fixed as 01.10.19.
(ix) 1.10.19 Though the enquiry report was submitted, the
matter was not heard and next date was fixed
as 22.10.2019.
(x) 28.01.20 Impugned order removing the petitioner from
the post of Mukhiya has been passed on the
Patna High Court CWJC No.4559 of 2020 dt.21-01-2021
basis of enquiry report and no opportunity was
given to the petitioner.
Counsel for the State has submitted that so far as
two charges are concerned, both have been found not proved
by the State. So far as charge no.1 is concerned, he himself
accepted the same. In such a situation, when he himself
accepted the charge, there is no need to prove the same and,
as such, the authority has passed the impugned order
removing the petitioner from the post of Mukhiya, which
does not require any interference.
Having considered the rival contention of the
parties, it is apparently clear that out of three charges, two
charges could not have been proved, but in one charge, as he
has accepted the same, he himself deposited Rs. 46, 651/- as
he used small pieces of bricks in place of bricks for soling of
road.
In such view of the matter, this Court does not find
any error in the impugned order of the authority.
Accordingly, this writ petition is dismissed.
(Shivaji Pandey, J)
V.K.Pandey/-
AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 23.01.2021
Transmission Date N.A.
