SHRIRAM GARARE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This writ petition has been filed under Article 226 of the Constitution of India by the petitioners against the order order dated 4.9.2019 (Annexure P-5) passed by the respondent No.2/Commissioner, Jabalpur whereby the order passed by the prescribed authority under Section 40(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short "Adhiniyam, 1993") is set aside and the matter is remanded back for its consideration afresh however, instead of directing the authority to pass the order in accordance with law, it is directed to the competent authority to recover the amount from the petitonier if found due from him. Thus, the petitioners are aggrieved of the last observation made by the Commissioner which according to them is contrary to the penal provisions of s.40 of the Adhiniyam, 1993.

(2.) In brief the facts of the case are that the petitioners are the residents of Gram Panchayat Bharbeli, Janpad Panchayat Balaghat and the respondent No.5 is the elected Sarpanch of the aforesaid Gram Panchayat. The petitioners and other persons filed a complaint against the respondent No.5 regarding the misuse of his powers and embezzlement. On this complaint, the competent authority conducted an enquiry and found misappropriation of the amount by the respondent No.5 and thus recovery was also proposed. Subsequently, on 27.8.2018 a show cause notice was issued to the respondent No.5 under Sections 40 and 92 of the Adhiniyam, 1993 and after reply was filed by the respondent No.5, the competent authority passed its order directing removal of the respondent No.5 from the post of Sarpanch with a further disqualification for six years to contest the election and also ordered for the recovery of the amount, which was defalcated by the respondent No.5.

(3.) Being aggrieved of the order dated 3.6.2019 the respondent No.5 preferred an appeal before the Commissioner, Jabalpur and the Commissioner, vide its order dated 4.9.2019 (Annexure P-5) set aside the order and remanded back the matter to the competent authority, also directing that if the defalcation on the part of the respondent No.5 is proved, the same may be recovered from him.