Gopal Singh vs State Of Bihar And Ors. on 26 March, 1984

Patna High Court
Gopal Singh vs State Of Bihar And Ors. on 26 March, 1984
Equivalent citations: AIR 1984 Pat 294
Bench: S S Ali, P S Mishra


JUDGMENT

1. This appeal under the Letters Patent is directed against the judgment and order of N. P. Singh, J. dismissing a writ application under Article 226 of the Constitution. Appellant moved this Court against an order dated 16th February, 1976 passed by the State Government in the Department of Planning and Development (Rural Development), Directorate of Panchayati Raj, removing him from the office of Mukhia, Gere Gram Panchayat, in purported exercise of powers conferred under Section 13 (2) of the Bihar Panchayat Raj Act. N. P. Singh, J., found no merit in the application and dismissed the same
by his judgment and order dated 30-6-1976.

2. The appellant was elected as the Mukhia of Gere Gram Panchayat in the year 1970. District Panchayat Officer, Gaya reported certain acts of commission and omission on the part of the appellant and the District Development Officer under this letter dated 1-10-1973 forwarded the same to the Deputy Director, Panchayati Raj. The Deputy Director of Panchayati Raj, enquired into the said allegations and submitted a report to the. State Government, According to the appellant, the Deputy Director did not recommend the removal of the appellant from the office as he was not satisfied that the charges levelled against him were proved. Notice calling upon the appellant to show cause why should he not be removed from the office of Mukhiya was served upon the appellant under a memo of the Panchayati Raj Directorate. On receipt of the notice the appellant requested the State Government to stay the proceedings on the ground that a criminal case had been lodged against him but also stated that in case the State Government thought it necessary to proceed with the enquiry then he should be furnished with the copies of certain documents. The Deputy Director, Panchayati Raj, under his letter, dated 13-5-1975 enclosed copies of the documents demanded by the appellant and again emphasised that if cause was not shown within 15 days, it would be presumed that the appellant had no cause to show. The appellant, however, reiterated what he had said earlier that the enquiry should be stayed until the disposal of the criminal case. This time he also stated

that a copy of the report submitted by the District Magistrate, Gaya, should be furnished to him so that he could prepare his defence. Nothing, however, was said about the demand of the appellant for a copy of the report submitted by the District Magistrate, Gaya, or on his request to stay the enquiry until the disposal of the criminal case. The appellant was served, however, with the order dated 16-2-1976, removing him from the office of Mukhiya. In his application under Article 226 of the Constitution the appellant raised several contentions. The learned single Judge found no merit in the application and dismissed the writ application.

3. Although several contentions have been raised before us on behalf of the appellant, Mr. Shree Nath Singh, appearing for him, has, however, primarily emphasised upon the contention that the order removing the appellant from the office of Mukhia, is without jurisdiction because the respondents, before making the impugned order neither did accord fair and proper hearing to him nor record any reason in support thereof and thus violated the principles of natural justice in more than one way. Right of hearing, acknowledged under the proviso to Sub-section (2) of Section 13 of the Act, was observed only in the form and not in the substance. This alone according to Mr. Singh was sufficient for this court to quash the impugned order.

4. The learned single Judge has noticed in his judgment that the appellant was called upon to show cause but in spite of that no show cause was filed by him for one reason or the other and held that a person who had been given more than one opportunity to show cause could not make a grievance regarding the breach of principles of natural justice, merely on the ground that he was waiting for copies of certain documents to be supplied as asked for, or that he was under the impression that the proceeding under Section 13 (2) had been stayed, as requested by him.

5. The impugned order is on the record at p. 20 of the brief as Annexure 1 to the writ application. The report of the District Panchayat Officer with the forwarding letter of the District Development Officer, Gaya, is at page 22 as Annexure 2 to the writ application. Report of the Deputy Director, Panchayati Raj, submitted to the Director Pancha

yati Raj is at page 26 as Annexure 3 to the writ application. The show cause notice is at page 30 as Annexure 4 to the writ application. The appellant’s letters are at pages 35 and 38 as Annexures 5 and 7 to the writ application and the explanation dated 13-5-1975, referred to above, is at page 37 as Annexure 6 to the writ application.

6. Mr. Shree Nath Singh has drawn our attention to the report of the Deputy Director (Annexure 3) in particular. It shows that he could not find any substantial material to support the allegations against the appellant, the appellant had absolute majority in the Executive Committee of the Panchayat and the Deputy Director opined that it was difficult to say anything conclusively until the decision in the criminal case lodged against the appellant was concluded. Mr. Singh, however, has drawn our attention to a reference in the said report to a letter of the District Magistrate, Gaya, dated 19-12-73. The ‘Deputy Director had said with reference to the said letter that, District Magistrate’s report, if accepted as correct, the State Government could take appropriate action against the appellant. Since action was taken against the appellant, despite the report of the Deputy Director, it is obvious that the basis for the action was the report of the District Magistrate. The appellant demanded a copy of the report of the District Magistrate dated 19-12-1973 because he found a reference to the said letter in the report of the Deputy Director.

7. Mr. Singh has also drawn our attention to the contents of Annexure-1. This order only recites that there are serious allegations against the appellant and on being satisfied the Governor exercising Ms powers under Section 13 (2) of the Bihar Panchayat Raj Act, 1947, removes the appellant from the office of Mukhiya. There is no word showing that there has been any application of mind and that the allegations against the appellant were processed in accordance with law. It was contended that an order removing a person from the office of Mukhiya is one which visits him with a civil consequence. The State Government, therefore, exercised a quasi-judicial function in deciding whether the appellant should be removed or not. Since no reasons have been assigned for passing the order of removal of the petitioner,

the said order was liable to be quashed, as it is now well settled that a quasi judicial order must contain clear and explicit reasons for the passing of the order. In view of the fact that this point has not been specifically raised in the writ application, it is not necessary to
consider this submission, particularly in view of the fact that we arc of the option that the impugned order is liable to be quashed for the reasons discussed hereinafter.

We are of the view that the contention of Shri Singh that the appellant was not accorded a fair and proper hearing is correct and has to be accepted.

8. Certain allegations were levelled against the appellant primarily on the basis of what the District Magistrate said in his letter to the Government dated 19-12-73. This letter, therefore, could not be withheld from the appellant. Unless its contents were made known to him he could not know what was operating against him. A fair opportunity of hearing, a principle so often repeated, will always require disclosure – of all that goes against the affected person. Although not tike admitting evidence in a Court of law none the less to accord opportunity to the appellant to meet the allegations, disclosure of the contents of the letter of the District Magistrate, Gaya was necessary. The rule of audi alteram partem was complied only in pretence as allegations were communicated to the appellant without disclosing their basis. Perhaps, attention of N. P. Singh, J. was not drawn to the substantial infirmities in the
proceeding that was taken against the appellant. None the less these infirmities are such that the impugned order cannot be allowed to stand.

9. In the result this appeal is allowed The judgment and order in C. W. J. C. No. 928 of 1976 dated 30-6-1976 is hereby set aside. The impugned order published in the official gazette of the State Government dated 17-2-1976. (order dated 16-2-1976) is quashed. The appellant shall be deemed to have continued in the office of Mukhiya as if there has been no order removing him from the said office. Let a writ in the nature of certiorari and/or mandamus accordingly issue. There shall be no order as to costs.

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