Allowed

Renu Devi v. the State of Bihar and Ors.

Patna HC18 Mar 2011CWJC/4276/2011

Case brief

AI extract

What is this about?

The High Court of Patna quashed the mandatory retirement order against the petitioner, Mukhiya of Gram Panchayat Raj. The Court held the unseating was illegal due to lack of personal hearing, reliance on District Magistrate's comments, and failure to include essential materials in the notice. The matter was remanded to the Secretary for fresh proceedings.

What did the court decide?

Order dated 7.2.2011 set aside; matter remanded to the Secretary for personal hearing and fresh decision complying with natural justice and statutory provisions.

Renu Devi Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2011)

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 IN THE HIGH COURT OF JUDICATURE AT PATNA

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 CWJC No.4276 of 2011
 RENU DEVI .
 Versus

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 THE STATE OF BIHAR & ORS .
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18.03.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State.

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The petitioner is stated to be the Mukhiya of Gram Panchayat Raj, Bhabhata, unseated from the post by the Principal Secretary, Department of Panchayat Raj in exercise of statutory powers under Section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter called ‘the Act’).

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The consequence is that under the aforesaid provision she is debarred from contesting election for the post of Mukhiya in the present election which have already been announced and filing of nomination commenced.

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Learned Counsel for the State acknowledges that he had sought adjournment on 15.3.2011 to seek instructions and file a counter affidavit. He submits that he has no instruction but urges that in the nature of the order passed if the Court is not satisfied with the same the matter may be remanded.

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It is submitted on behalf of the petitioner that no notice from the statutory authority provided for under Section 18(5) of the Act was received by the petitioner to show cause. Any notice from the Monitoring Officer of the Department shall not fulfill compliance of the statutory provisions. The Secretary was the sole repository of the powers by the legislature and could not have delegated it. Apart from the same while considering the cause shown by the petitioner, the Secretary has relied upon materials beyond the show cause notice by taking evidence behind the back of the petitioner and considering the

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cause shown by the petitioner vis a vis the comments furnished by the District Magistrate on the cause shown. The petitioner had no opportunity to even know what comments the District Magistrate had made. It is further submitted that there was a report of the SDM, Narkatiaganj referred to in the impugned order which was also not made available to the petitioner.

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Counsel for the State submits that no prejudice has been caused to the petitioner as he does not deny that show cause notice was given to him duly received and after consideration of which the order has been passed.

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If the statutory power was vested in the Secretary alone, the only mode of performance permitted was giving of a show cause notice by the statutory authority himself. All other modes for performance for proceeding under Section 18(5) of the Act were strictly prohibited. The show cause notice given to the petitioner on 12.8.2010 by the Monitoring Officer of the Panchayat Raj Department was therefore no show cause notice at all under Section 18(5) of the Act.

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The Court could have left the matter at this stage. But, since the parties have argued on merits of the order dated 7.2.2011, the Court considers it appropriate to deal with the same.

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Counsel for the petitioner has rightly pointed out that Charge no. 1 was for non-summoning of the Aam Sabha in accordance with the procedure. The District Magistrate in his comments on the cause shown stated that the Aam Sabha was called but the Gram Sabha meeting was not called. That was not the charge. In any event, these are matters which pertain to the realm of the members to call a no confidence motion against the petitioner allowing grass root democracy to have full operation and play rather than usurping grass root

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democracy by executive power. This one act does not qualify as an abuse of power or misconduct to invoke Section 18(5) of the Act. If the petitioner was not conducting Gram Sabha / Aam Sabha in accordance with law, those who had elected him had the powers in their hands by removing him through a no confidence motion.

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The second and third charges related to irregularities in the appointment of Panchayat Teacher and Anganwari Sevikas and Sahaikas.

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Apart from referring to the comments of the District Magistrate there is no discussion in the impugned order of the nature of the irregularities committed in the appointment by the petitioner, his defence, application of independent mind by the authority containing the process of reasoning and discussion to arrive at his independent conclusion that the petitioner had committed irregularities in the appointment. The statutory authority has completely abdicated his statutory powers and acted at the behest of the District Magistrate. That vitiates the complete order.

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The order dated 7.2.20112 is set aside. The matter is remanded to the Secretary, Department of Panchayat Raj. He shall grant a personal hearing to the petitioner along with furnishing to him all such information and materials on which the Principal Secretary proposes to rely as held by this Court in CWJC Nos. 18905 of 2010 and 10659 of 2009.

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The Secretary shall then adequately deal and discuss the judgments of the Supreme Court reported in AIR 2001 SC 2524 (Tarlochan Deo Sharma Vs State of Punjab) particularly paras 6, 10 and 15 of the same as also the judgment of the Supreme Court reported in

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(2010) 2 SCC 319 at paragraphs 25 and 26 and the applicability or inapplicability thereof in his final order.

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The writ application stands allowed.

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Snkumar/-

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(Navin Sinha,J.)

Renu Devi v. the State of Bihar and Ors.

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Renu Devi v. the State of Bihar and Ors.

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