Allowed

Mahadini Devi v. The State Of Bihar and Ors.

Patna HC22 Dec 2014CWJC/13463/2014

Case brief

AI extract

What is this about?

Petitioner challenged her removal as Mukhiya. The High Court held that the removal order was passed mechanically without specific reasons and violated mandatory procedural requirements under Section 18(5) of the Bihar Panchayat Raj Act, 2006. The petition was allowed, and the order of removal was set aside, restoring her office.

What did the court decide?

The impugned order of removal dated 17.7.2014 was set aside, and the petitioner was restored to the post of Mukhiya.

Mahadini Devi Vs The State Of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.13463 of 2014

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=========================================================== 1. Mahadini Devi W/o Rajendra Ram Resident of village - Balbhadra Sarai, P.O. Hilsa, P.S. Hilsa, District - Nalanda, presently Mukhiya of Gram Panchayat Raj Kawa, Block Hilsa, District - Nalanda

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.... .... Petitioner/s Versus

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The State of Bihar

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

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The Director, Panchayati Raj Department, Government of Bihar, Patna

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The Joint Director, Election, Panchayati Raj,

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The Divisional Commissioner, Patna Division, Patna

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The District Magistrate, Nalanda

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The Director, Accounts, Administration and Self Employment, District Rural Development

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.... .... Respondent/s =========================================================== Appearance :

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For the Petitioner/s : Mr. S.B.K.Mangalam, Adv. For the Respondent/s : Mr. Mr. Rabindra Kumar, A.C. to AAG 10

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=========================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT

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Date: 22-12-2014

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Heard Mr. S.B.K. Mangalam learned counsel for the petitioner

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and Mr. Rabindra Kumar A.C. to AAG 10 for the State.

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The petitioner is aggrieved by the order dated 17.7.2014 passed by the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna as contained in Memo No. 5041 dated 17.7. 2014 whereby the petitioner has been removed from the post of Mukhiya, Gram Panchayat Raj Kawa, Block Hilsa in the District of Nalanda in exercise of power vested in the Principal Secretary under Section 18(5) of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as

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‘the Act’) and ‘the Rules’ framed thereunder.

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With consent of the parties the writ petition has been taken up for final disposal at the stage of the admission itself.

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Mr. Mangalam with reference to the order impugned placed at Annexure-7 submits that in a sweeping manner and without identifying the illegalities/violations committed by the petitioner that the order has been passed even when the Director, District Rural Development Agency, Nalanda in his letter dated 7.7.2012 and 23.7.2012 has not found any illegality or violation in the functioning of the petitioner. He submits that in a cyclostyle manner, the order has been passed and which is not the requirement of law in as much as any order under Section 18(5) of ‘the Act’ has a far reaching effect of unseating an elected representative.

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Responding to the argument of Mr. Mangalam, Mr. Rabindra Kumar learned State Counsel has referred to a report of the District Magistrate present at Annexure-G/2 as well as the report of the District Magistrate addressed to the Joint Director, Panchayati Raj Department dated 23.7.2013 whereby he has recommended for removal of the Mukhiya, to submit that the materials are present against the petitioner and supporting his removal.

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I have heard learned counsel for the parties and I have perused the materials on record.

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It is not in dispute that the petitioner was charged with abuse

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of powers and held guilty of misconduct. It is a matter of record that the petitioner stood charged on three counts:

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(a) Having committed illegality while implementing the MANREGA Scheme.

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(b) Not filing show cause within the prescribed period; and

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The report submitted by the District Magistrate dated 23.7.2013 placed at Annexure-G/6 to the counter affidavit of respondent Nos. 6 and 7 as well as Annexure-8 of the writ petition which is the letter dated 5.12.2013 of the District Magistrate, Nalanda are almost identical and relies upon certain letters of the District Magistrate to support the allegations. It is perhaps on account of vagueness of the charges, which has prompted the Director, Panchayati Raj to seek information from the District Magistrate as to the specific charges, against the petitioner and which is manifest from the letter No. 1731 dated 28.2.2014 present at Annexure-F/2 of the counter affidavit filed on behalf of the respondent Nos. 2 to 4. It is in response to the query made by the Joint Director ( Anushrawan ), Panchayati Raj Department that the District Magistrate, Nalanda vide his letter dated 4.4.2014 has for the first time specified the infirmities found in the functioning of the petitioner. The details reflected in the letter dated 4.4.2014 of the District Magistrate present at Annexure-G/2 to the counter

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affidavit of the respondent Nos. 2 to 4 is neither found in the memo of charges discussed in the report of the District Magistrate dated 23.7.2013 (Annexure-G/6) or the subsequent letter dated 5.12.2013 (Annexure-8) but is sought to be clarified when the matter has reached the Principal Secretary for final adjudication.

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The charges being vague the petitioner could not have been proceeded in such casual manner for imposing the extreme penalty of removal. Surprisingly even when the petitioner has relied upon the report of the District Rural Development Agency, Nalanda which finds mentioned in the report of the District Magistrate dated 5.12.2013, the Principal Secretary has conveniently omitted to deal with the same rather in a mechanical manner has passed impugned orders by simply holding the petitioner guilty of abuse of his position.

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The provisions of Section 18(5) of the Act provides for the circumstances in which the Mukhiya can be removed by the Principal Secretary and which are; if:

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(a) he absents himself without sufficient cause for more than three consecutive meetings or sittings; or

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(b) willfully omits or refuses to perform his duties and functions under this Act; or

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(d) becomes physically or mentally incapacitated for

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performing his duties; or

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(e) is absconding being an accused in a criminal case for more than six months.

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These are the circumstances in which a Mukhiya can be removed and the material on record of the proceedings manifests that the authorities under the act have charged the petitioner of abuse of powers in discharge of duties which amounts to misconduct.

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Allegations of misconduct cannot be made in a generalized manner rather the person charged, has to be made aware of the specific reasons for imputation of such allegation which is manifestly absent in the present case. To say that the charges are vague against the petitioner would be an under statement. In fact in the opinion of this Court no charge is made out against the petitioner on the perusal of the charges so referred to in the recommendation of the District Magistrate. On the other hand the order of the Principal Secretary hardly reflects complete non application of mind rather he has mechanically endorsed the recommendation of the District Magistrate without discussing the reasons for such endorsement. The fabric of the order impugned does not reflect the performance of the quasi judicial duty, as desired of a statutory functionary under the provisions of the Act especially where his order unseats an elected representative.

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For the reasons aforementioned, the order impugned dated

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17.7.2014 passed by the Principal Secretary, Panchayati Raj Department, Government of Bihar, Patna cannot be upheld and is accordingly set aside. The writ petition is allowed.

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The petitioner stands restored to the post of Mukhiya.

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Bibhash/-
U

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(Jyoti Saran, J)

Mahadini Devi v. The State Of Bihar and Ors.

Case brief

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Mahadini Devi v. The State Of Bihar and Ors.

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