SHARDA PRASAD GAUTAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) For the reasons assigned, I.A. No.111012 of 2022 - application for taking additional documents on record is allowed. Additional documents be taken on record. Aggrieved by the order dtd. 20/1/2022 passed by the learned Single Judge in dismissing the Writ Petition No.20570 of 2020, the writ petitioner is in appeal.

(2.) The case of the writ petitioner is that he was an elected Sarpanch of Gram Panchayat Manpur, Janpad Panchayat Manpur, District Umariya. The term of Gram Panchayat was over but due to the spread of Coronavirus i.e. Covid-19 there was delay in conducting the elections of the Gram Panchayat, therefore, the writ petitioner was notified as Pradhan of Gram Panchayat Manpur by the Collector in terms of Sec. 83 (3)(b) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short 'the Adhiniyam of 1993'). One complaint was made against the writ petitioner with respect to construction work. The Collector has issued a show-cause notice on 24/10/2020 and writ petitioner was supposed to file his reply by 29/10/2020. It is argued that the show-cause notice was never served to the petitioner. The respondents have not conducted any enquiry as contemplated under Sec. 89 of the Adhiniyam of 1993 nor taken up any proceedings under Sec. 92 of the Adhiniyam of 1993 being a mandatory procedure and in a predetermined manner has passed the order removing the writ petitioner from the post of Pradhan. The petitioner has filed an application under the Right to Information Act before the Collector and requested for supplying the material to enable him to file response, but the same was never provided to him. He filed an application seeking further time to file response to the show-cause notice. The Collector has extended some time and sought reply by 11/11/2020. It is argued that none of the procedures with respect to regular enquiry as contemplated under Ss. 40 and 89 of the Adhiniyam of 1993 is being followed which is a mandatory provision. Certain directions/instructions have been issued with respect to removal of Pradhan which has also not been properly followed by the authorities, therefore, the writ petition has been filed. He has placed reliance upon the judgment passed in the case of Babita Lilhare Vs. Surendra Rana and others, (2004) 1 MPLJ 27 and argued that the Collector, Umariya with a malice intention has targeted the writ petitioner, therefore, the order of removal was passed. The learned Writ Court has not taken note of the aforesaid aspect of the case that in case some allegations with respect to financial irregularities are being made against the petitioner, it is a basic requirement that regular enquiry be conducted into the matter. In absence of any such enquiry no order of removal could have been passed violating or bypassing the procedure as contemplated under Ss. 40 and 89 of the Adhiniyam of 1993. Therefore, the writ appeal was filed. The learned Writ Court considering the fact that the procedure as contemplated under Ss. 40 and 89 of the Adhiniyam of 1993 are not applicable to the case of the petitioner. The same are only applicable to the case of Panchayat Secretaries or Members of the Panchayat and not to the case of Pradhan. Admittedly, writ petitioner's tenure as Sarpanch was over and thereafter, by exercising powers the writ petitioner was appointed as Pradhan on that pretext the writ petition was dismissed.

(3.) Per contra, counsel appearing for the State has supported the impugned order and has argued that no illegality has been committed by the Writ Court in dismissing the writ petition. The writ petitioner's tenure as a Sarpanch was over and as a stopgap arrangement till the subsequent elections are being notified the writ petitioner was appointed as Pradhan. The procedure for removal of Pradhan is being provided in a Circular issued by the Government wherein, a show-cause notice was required to be issued to the Pradhan and thereafter, receiving the reply the order of removal can be passed. The show-cause notice was admittedly issued to the writ petitioner vide show-cause notice dtd. 24/10/2020, which is reflected in the order of Collector itself. The writ petitioner has chosen not to file any reply during the period therefore, the authorities are left with no other option except to pass the impugned order removing him from the post of Pradhan and further for recovery of the amount. A show-cause notice was issued to him on 24/10/2020. In pursuance to the application, the records were also made available to him and he was again asked to file his response to the show-cause notice. Despite opportunity to file response to the show-cause notice the writ petitioner has chosen not to file the same, therefore, the authorities are left with no other option except to pass the order of removal. It is argued that the provisions of Ss. 40 and 89 of the Adhiniyam of 1993 are not applicable to the case of the writ petitioner, which has rightly been considered and observed by the Writ Court. He has supported the impugned order and prays for dismissal of the writ appeal.