Rakesh Kumar Singh @ Rakesh Kumar vs The State Of Bihar
2022 Latest Caselaw 836 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No. 5522 of 2021
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Rakesh Kumar Singh @ Rakesh Kumar son of Late Krishnandan Singh (wrongly described as Rajesh Kumar in the impugned order) son of Late Krishnandan Singh, resident of Village and P.O. Kadhan, Police Station- Keshariya, District- East Champaran at Motihari (The Pramukh of Block Panchayat Samiti), Keshariya, District- East Champaran at Motihari.

... ... Petitioner Versus

1. The State of Bihar.

2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna.

3. The Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna.

4. Additional Chief Secretary, Panchayati Raj Department, Bihar, Patna.

5. The District Magistrate, East Champaran at Motihari.

6. The Block Development Officer, Keshariya-cum- Executive Officer, Block Panchayat Samiti, Keshariya, P.O. and Police Station- Keshariya, District- East Champaran at Motihari.

7. Dushyant Kumar son of Late Ravindra Pratap Narayan Singh resident of Village and P.O. Tajpur Patkhauliya, Police Station- Keshariya, District- East Champaran at Motihari, presently Up-Pramukh of Block Panchayat Samiti, Keshariya, District- East Champaran at Motihari.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Radha Mohan Pandey, Advocate Mr. Niranjan Prasad Singh, Advocate For the Respondent/s : Mr. Prateek Kumar Sinha, AC to GA-5 For Respondent No. 7 : Mr. S.B.K. Manglam, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 01-02-2022

Heard Mr. Radha Mohan Pandey, learned counsel for the Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

petitioner, Mr. Prateek Kumar Sinha, learned AC to GA-5 for

the State of Bihar and Mr. S.B.K. Manglam, learned counsel for

respondent No. 7.

2. The petitioner was an elected Pramukh of Block

Panchayat Samiti, Keshariya, East Champaran. He is aggrieved

by an order dated 04.01.2021, passed by the Additional Chief

Secretary, Panchayat Raj Department, Government of Bihar in

exercise of power under Section 44(4) of the Bihar Panchayat

Raj Act, 2006 (hereinafter referred to as 'Act'). It is the

petitioner's own case that the said impugned order came to be

passed two months before the petitioner's tenure as Pramukh

was coming to an end. It is an admitted position thus that, even

if the grounds raised in the writ petition to challenge the

impugned order are accepted, he cannot be restored to his

position, his tenure having come to an end.

3. The petitioner's challenge to the impugned order is

mainly on the ground that there was no valid service of notice of

the proceeding of his removal in exercise of power under

Section 44(4) of the Act and, therefore, the action violating

principles of natural justice, deserves to be interfered with, in

exercise of the power of judicial review under Article 226 of the

Constitution of India.

Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

4. In response to the Court's query as to why the

Court should entertain this application now as the petitioner

may not get any relief by way of restoration of his position as

Pramukh, Mr. Radha Mohan Pandey, learned counsel appearing

on behalf of the petitioner has submitted that if the said order is

allowed to continue, the petitioner shall suffer disqualification

for election to any panchayat bodies till five years from the date

of removal in exercise of power under Section 44(4) of the Act.

He has accordingly submitted that this writ application cannot

be said to have become infructuous with termination of the

tenure of the petitioner's office as Pramukh of the Panchayat

Samiti.

5. In view of the aforementioned submission, we have

examined the nature of the allegation against the petitioner

leading to passing of the impugned order dated 04.01.2021 and

the consequence of the said order on the point of petitioner's

disqualification to contest elections to panchayat bodies in

future.

6. It is evident from the impugned order that the

proceeding for taking action against the petitioner under Section

44(4) of the Act was initiated based on a complaint made by

respondent No. 7 to the Principal Secretary, Panchayat Raj Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

Department, Government of Bihar, to the effect that the

petitioner had failed to convene the requisite number of

meetings of the Panchayat Samiti under the statutory provisions

contained under Section 46 of the Act.

7. It is noteworthy that respondent No. 7 had earlier

approached this Court by filing a writ application giving rise to

CWJC No. 6776 of 2019 alleging inaction on the part of the

Department on the application made by him for taking action

against the petitioner under Section 44(4) of the Act. The said

writ petition was disposed of by an order dated 21.11.2019 with

a direction to the Principal Secretary, Panchayat Raj

Department, Government of Bihar to look into the petitioner's

grievance and pass appropriate order thereon, after hearing all

concerned within three months. It is in compliance of the said

order of the Court that the impugned order has been passed.

8. It is reiterated, which is evident from the impugned

order, that the petitioner's removal from the post of Pramukh

under Section 44(4) of the Act is on the ground that he failed to

convene meetings of Panchayat Samiti as required under the

provisions of the Act. Sub Section 4 of Section 44 of the Act

reads as under:-

"(4) Without prejudice to the provisions under this Act, if in opinion of the Government Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

having territorial jurisdiction over the Panchayat Samiti, a Pramukh or an Up-

Pramukh of Panchayat Samiti 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 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 Pramukh or Up-Pramukh, as the case may be, a reasonable opportunity for explanation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office;

The Pramukh or Up-Pramukh 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 five years from the date of such removal. The Pramukh or Up-Pramukh so removed on rest of the charges shall not be eligible for re-election as Pramukh or Up-Pramukh during the remaining terms of office of such Panchayat Samiti."

9. In our considered view, the answer to the

petitioner's apprehension that he shall stand disqualified for Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

future elections to Panchayat bodies lies in the provision itself,

relevant portion of which has been underlined hereinabove for

emphasis. For better appreciation of this aspect, it would be

useful to analyze briefly the scope of Section 44(4) of the Act.

10. Sub Section 4 of Section 44 confers upon the State

Government jurisdiction to remove a Pramukh or Up-Pramukh,

after giving him reasonable opportunity for explanation on

following grounds:-

(i) He absents himself without sufficient cause for more than three consecutive meetings or sittings,

(ii) He willfully omits or refuses to perform his duties and functions under the Act,

(iii) He abuses the power vested in him,

(iv) He is found to be guilty of misconduct in the discharge of his duties,

(v) He disobeys any order of an authority established by law,

(vi) He becomes physically or mentally incapacitated for performing his duties,

(vii) He is absconding, being accused in a criminal case for more than six months.

Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

11. Further, it is easily discernible, on a plain reading

of Section 44(4) of the Act that a Pramukh or Up-Pramukh

removed under the said provision, shall not be eligible to

election of any Panchayat bodies till further five years from the

date of such removal in following circumstances:-

(i) He has been found guilty of misuse of vested powers, or

(ii) He has been found guilty of misconduct in the discharge of his duties.

12. It is manifest that the petitioner's removal by the

impugned order is not on the ground of having been found

guilty of 'misuse of vested powers' or 'of misconduct in the

discharge of his duties', to attract disqualification for future

election by operation of any provision under Section 44(4) of

the Act. Therefore, the petitioner's apprehension that he stands

disqualified for future elections is, in our opinion, completely

misplaced.

13. Mr. Radha Mohan Pandey, learned counsel for the

petitioner, has argued that since the impugned order is in

violation of principles of natural justice, inasmuch as, the notice

of the proceeding under Section 44(4) of the Act was not validly

served on him and, therefore, the impugned order deserves to be Patna High Court CWJC No. 5522 of 2021 dt.01-02-2022

set aside, being patently illegal in violation of principles of

natural justice and the procedural requirement under Section

44(4) of the Act.

14. In our considered view, it would be an exercise in

futility to go into the validity of the impugned order which has

become inconsequential as on date, the term of the petitioner's

office has already come to an end. No useful purpose would be

served by going into such a dispute at this stage, given the

aforementioned discussions.

15. This writ application, in our opinion, has become

infructuous and stands disposed of accordingly.

(Chakradhari Sharan Singh, J)

Madhuresh Prasad, J :- I agree.

( Madhuresh Prasad, J)

K.K.RAO/-

AFR/NAFR                NAFR
CAV DATE                24.01.2022
Uploading Date          04.02.2022
Transmission Date       N/A