High Court Patna High Court - Orders

Bindeshwar Prasad vs The State Of Bihar &Amp; Ors on 1 September, 2010

Patna High Court – Orders
Bindeshwar Prasad vs The State Of Bihar &Amp; Ors on 1 September, 2010
                   IN THE HIGH COURT OF JUDICATURE AT PATNA
                                    CWJC No.9374 of 2010

                   BINDESHWAR PRASAD, S/O LATE BHAGWAN SAH, R/O VILL.
                   AND P.O.- BASANTPUR BANGALA, P.S.- AMNOUR, DISTT.-
                   SARAN AT CHAPRA, PRESENTLY MUKHIYA OF GRAM
                   PANCHAYAT RAJ, BASNATPUR BANGALA, BLOCK- AMNOUR,
                   DISTT.- SARAN AT CHAPRA.
                                                                 .......PETITIONER.
                                                Versus
                   1. THE STATE OF BIHAR.
                   2. THE PRINCIPAL SECRETARY, PANCHAYATI RAJ
                        DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.
                   3. THE DIRECTOR, PANCHAYATI RAJ DEPARTMENT,
                        GOVERNMENT OF BIHAR, PATNA.
                   4. THE         DEPUTY    DIRECTOR,         PANCHAYATI    RAJ
                        DEPARTMENT, GOVERNMENT OF BIHAR, PATNA.
                   5. THE DISTRICT MAGISTRATE, SARAN AT CHAPRA, DISTT.-
                        SARAN AT CHAPRA.
                   6.    THE DISTRICT PANCHAYAT RAJ OFFICER, SARAN AT
                        CHAPRA, DISTT.- SARAN AT CHAPRA.
                   7. THE DEPUTY COLLECTOR LAND REFORMS, MARHAURA
                        DISTT.- SARAN AT CHAPRA.
                   8. THE BLOCK DEVELOPMENT OFFICER, AMNOUR, DISTT.-
                        SARAN AT CHAPRA.
                                                                .....RESPONDENTS.
                                               -----------
                   For the petitioner    : Mr. S.B.K.Manglam, Advocate.
                   For the State         : Mr. Santosh Kumar Singh, S.C.22.
                                           Ms. Kalpana, A.C. to S.C.22.
                                                ---------

                                               ORDER

09/ 01.09.2010 This writ petition has been filed by the petitioner

challenging order dated 27.05.2010 passed by the Principal

Secretary, Panchayati Raj Department, Govt. of Bihar, Patna

(respondent no.2) which was communicated vide memo no.4014

dated 27.05.2010 (Annexure-11) under the signature of the Deputy

Director, Panchayati Raj Department, Govt. of Bihar, Patna

(respondent no.4) by which the petitioner was removed from the

post of Mukhiya of Gram Panchayat Basantpur within Block
-2-

Amnour in the district of Saran under the provision of Section

18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to

as ‘the Act’ for the sake of brevity).

2. Learned counsel for the petitioner argued that the

power under Section 18(5) of the Act has to be exercised by the

executive authorities only when the State Government is armed

with cogent and sufficient materials in support of charges and not

merely on the basis of mere allegation against an elected

representative of the people. In this respect, he relied upon a

decision of the Apex Court in case of Sharda Kailash Mittal Vs.

State of Madhya Pradesh and others, reported in (2010) 2

S.C.C.319.

3. Learned counsel for the petitioner further submitted

that there were no complain from the beneficiaries against the

petitioner and it was only the Panchayat Secretary Dineshwar

Prasad who sent letter dated 19.11.2008 (Annexure-2) along with

affidavit dated 15.11.2008 (Annexure-3) to the District Magistrate,

Saran (respondent no.5) alleging that the Mukhiya (petitioner)

forged the signature of the said Panchayat Secretary and obtained

Indira Awas for 52 persons from the Block Development Officer,

Amnour and by force realised Rs.15,000/- from each of the

beneficiaries and hence it was requested that legal action be taken

against the petitioner. It is also stated that on the same date the

District Magistrate asked the Deputy Collector, Land Reforms,

Marhaura, Saran (respondent no.7) to enquire into the matter and
-3-

report, whereafter the said Deputy Collector made inquiries and

submitted his report dated 03.12.2008 (Annexure-4) to the District

Magistrate recommending legal action against the Mukhiya

(petitioner) and issuance of show cause notice to Block

Development Officer, Amnour, Saran (respondent no.8) for the

irregularities alleged to have been committed by him detailed in

column nos. 1 to 4 of the said report.

4. On the very next date, FIR bearing Amnour P.S.Case

No.67 of 2008 dated 04.12.2008 (Annexure-6) was lodged by the

Anchal Adhikari, Amnour on the directions of the District

Magistrate against Anchal Adhikari, Tariya, the Mukhiya of

Basantpur Gram Panchayat (petitioner), Nazir, Block Development

Office, Amnour, Branch Manager, North Bihar Regional Gramin

Bank, Basantpur and Block Co-operative Extension Officer,

Amnour for offences punishable under Sections 166, 167, 418,

420, 467, 468, 471 and 379 of the Indian Penal Code as well as

Sections 3(2) (v) of the Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) Act.

5. Furthermore, the District Magistrate, Saran

(respondent no.5) sent letter dated 04.12.2008 to the Principal

Secretary, Rural Development Department, Bihar, Patna

(respondent no.2) recommending initiation of disciplinary

proceeding against the Block Development Officer, Taraiya and

also stating that with regard to other guilty persons, the District

Magistrate was taking necessary action.

-4-

6. It further transpires that on 31.12.2008, the District

Magistrate, Saran issued show cause notice to the Mukhiya

(petitioner) who sent his detailed show cause on 12.01.2009

(Annexure-5) stating the entire matter in detail and requesting that

he may be discharged from the allegations levelled against him,

which according to him, were absolutely baseless and frivolous

and were levelled only because of enmity.

7. The District Magistrate, Saran sent letter dated

20.03.2009 (Annexure-7) to the Director, Panchayati Raj

Department, Govt. of Bihar (respondent no.3) requesting that steps

for removal of the Mukhiya (petitioner) be taken under the

provision of Section 18(5) of the Act. Thereafter, show cause

notices dated 13.05.2009 (Annexure-9) and 01.06.2009

(Annexure-8) were issued under the signature of Deputy Director,

Panchayati Raj Department, Govt. of Bihar, Patna (respondent

no.4) to the petitioner, where upon the petitioner submitted his

detailed show cause dated 11.06.2009 (Annexure-10) to the

Principal Secretary, Panchayati Raj Department, Govt. of Bihar

(respondent no.2) giving reply on each of the points raised against

the petitioner. Finally, the impugned order dated 27.05.2010

(Annexure-11) was passed by the Secretary, Panchayat Raj

Department, Govt. of Bihar, Patna (respondent no.2) holding that

the allegation against the Mukhiya was proved and hence he was

removed from the post of Mukhiya with immediate effect under

the provision of Section 18(5) of the Act.

-5-

8. Learned counsel for the petitioner submitted that

allegation against the petitioner is that he only assisted the Block

Development Officer and others in noting the names of the

beneficiaries, whereas there was no allegation that the petitioner

had himself forged the signature of the Panchayat Secretary. It is

also argued that no complain had been raised by the beneficiaries

against the Mukhiya (petitioner) for extraction of any money and it

was only the Panchayat Secretary who had raised such objection,

but in the inquiry report also no material had been found with

respect thereto. Learned counsel for the petitioner also argued that

the impugned order of respondent no.2 is contradictory in nature

and was against the materials on record and even the investigating

officer in the police case has submitted its report (Annexure-12)

that allegation against the petitioner appeared to be false.

9. Learned counsel for the petitioner also averred that

the Supreme Court in case of Sharda Kailash Mittal (supra) had

clearly held that holder of office, being democratically elected

office bearer, his removal from office, which is an extreme step,

must be resorted to only in grave and exceptional circumstances

and not for minor irregularities, especially when the action of

removal castes a serious stigma on personal and public life of

office bearer concerned and may even result in his disqualification

to hold office for the next term. Hence, learned counsel for the

petitioner prayed that the impugned action of the authorities is

directly in the teeth of the said decision of the Apex Court.
-6-

10. On the other hand, it is claimed on behalf of the

respondents that the then Panchayat Secretary of Basantpur, Gram

Panchayat gave written application to the then District Magistrate,

Chhapra supported by an affidavit clearly stating that the Mukhiya

(petitioner) after forging his signature had withdrawn money of 52

beneficiaries of Indira Awas Yojna and on information, the Block

Development Officer was not taking any action against him. It is

also averred that the Panchayat Secretary had categorically stated

that the Mukhiya (petitioner) had realised Rs.15,000/- from each

beneficiary and had also stated that the Block Development Officer

had also received money in the said transaction.

11. It is further stated by learned counsel for the

respondents that the facts of the case clearly disclosed that the

Panchayat Secretary recommended names of only few

beneficiaries, but the petitioner named 53 beneficiaries after

forging the signature of the Panchayat Secretary and the

beneficiaries in collusion with the Government officers and out of

them 4 beneficiaries came forward to give statement during inquiry

against the petitioner, whereas rest were all fake persons. Hence,

action taken against the petitioner is quite legal and justified.

12. It was also stated by learned counsel for the

respondents that show cause notice and sufficient opportunities

were given by the District Magistrate as well as by the Panchayati

Raj Department, Govt. of Bihar, Patna to the petitioner to place his

case and the petitioner submitted his show cause before the
-7-

concerned authorities, considering which final order was passed by

the Panchayati Raj Department, which is under challenge in the

instant writ petition.

13. It is further averred that Section 18(5) of the Act

gives ample power to the authorities to take such steps after

observing due process of law and it is quite apparent from the

record that the authorities concerned had adopted the proper

procedure in accordance with law and only thereafter had passed

the impugned order. Hence, the authorities concerned have not

committed either any illegality in law or any irregularity in the

procedure while passing the impugned order.

14. Considering the entire facts and circumstances of

this case as well as the pleadings of the parties and the materials on

record, it is quite apparent that at first the District Magistrate and

thereafter the Panchayati Raj Department had taken all due steps in

the matter and impugned order had been passed after fulfilling all

the formalities, including issuance of show cause notice to the

petitioner and also after considering the show cause of the

petitioner. Merely by showing a report of the investigating officer

in the criminal case the petitioner cannot prove that the entire

proceeding adopted by the authorities was illegal and baseless. In

the said circumstances, this court does not find any illegality or

irregularity in the process adopted by the authorities concerned.

15. Furthermore, it is quite apparent that inquiries were

made in which it was specifically found that some of the
-8-

beneficiaries appeared and gave their statements supporting the

allegation against the petitioner, whereas with respect to the

remaining beneficiaries, it was found that they were fake persons.

This was a very serious allegation against the petitioner who was

the Mukhiya of the Gram Panchayat, but his action was

detrimental to the interest of the people of the Gram Panchayat

which he represented. Hence, it is quite apparent that he not only

committed grave illegality, but also eroded the confidence of the

people who had elected him as their Mukhiya.

16. So far the decision of the Apex court relied upon

by the petitioner in case of Sharda Kailash Mittal (supra) is

concerned, it is quite apparent that the petitioner had not

committed any minor irregularity, rather he had committed a very

serious illegality detrimental to the system of Panchayat Raj and

basic democracy itself. Furthermore, the allegations having been

well proved as is apparent from the impugned order as well as

inquiry report and the communications of the District Magistrate

and other materials available on record, the authority concerned

was quite justified in passing the impugned order against the

petitioner.

17. Accordingly, this court does not find any illegality

in the impugned order nor does it find any merit in this writ

petition which is, accordingly, dismissed.

(S. N. Hussain, J.)

Sunil