PHOOL BAI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE petitioner calls in question the legality of order dated 26-11-2007, 7-1-2008 and 5-3-2008 in this petition filed under Article 226/227 of the constitution of India. By order dated 26-11-2007 the Sub Divisional Officer (Revenue) Manpur, District Umaria in exercise of the power under Section 40 of M. P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 disqualified the petitioner for holding any post under Gram Panchayat for next six years. The said order has been upheld by the Appellate and Revisional Authority respectively by their orders dated 7-1-2008 and 5-3-2008. The challenge put-forth by the petitioner is on the anvil that, the order of disqualification has been passed by the Prescribed Authority without adhering to the norms of principles of natural justice.

(2.) THE facts briefly are that the petitioner was elected for the post of sarpanch for the Gram Panchayat, Mahroi in the year 2004. There were certain complaints lodged against the petitioner in respect of the construction of WBN road, in respect of certain purchases made by the petitioner and certain repairs undertaken and the favour extended to her son and sister under Kapildhara yojna. The said complaints lodged against the petitioner led to a fact finding enquiry conducted by the Deputy Director, Panchayat and Social Justice District umaria and Chief Executive Officer, Janpad Panchayat, Manpur District umaria (M. P.), wherein charge of misuse of fund in respect of construction of wbn Road found substantiated. Thereafter the proceedings were initiated against the petitioner before Prescribed Authority. In the said proceeding evidence were led by both parties, i. e. , by the complainant as well as by the petitioner. During the proceedings, petitioner filed an application before the prescribed Authority for summoning the officials who have conducted the fact-finding enquiry for cross- examination. The said application was allowed by order dated 31-8-2007. However, on 14-9-2007 when the matter was posted for cross-examination of the officers who were summoned by order dated 31 -7-2007 the Prescribed Authority recorded a finding that since the concerning officers are not available, therefore, the right of the petitioner to cross-examine was closed and the matter was posted for argument. Thereafter the impugned order dated 26-11-2007 was passed whereby the petitioner was disqualified for a period of six years to hold any post under the Panchayat. The appeal preferred by the petitioner was dismissed by the Appellate Authority by order dated 7-1 -2008 and the revision against the said order was also negatived by Revisional authority vide its order dated 5-3-2008. Aggrieved whereof the petitioner has approach this Court in the present petition.

(3.) THE challenge put-forth by the petitioner to the order is on the ground that the same has been passed without affording a reasonable opportunity of hearing. It is contended by the learned Counsel for the petitioner that even the opportunity to cross-examine the prosecution witnesses who prepared the report on the basis of which the Prescribed Authority has arrived at a conclusion that disqualification, was not extended to the petitioner. To substantiate the aforesaid submissions, the learned Counsel for the petitioner has taken this Court through the proceedings before Prescribed Authority. It is contended that the provisions contained under Section 40 of the Act of 1993 contemplates an opportunity of hearing before any order is passed under the said provision. It is urged that, though the Prescribed Authority has extensively relied upon the report of the fact finding enquiry, however, the petitioner was deprived to cross-examine the officers who recorded the said finding and the concerning Authority though aware of this fact went on to arrive at an adverse conclusion on the basis of said document. This action, it is contended, of the prescribed Authority has resulted in deprivation of proper opportunity of hearing. The petitioner in support of his contention relied on a judgment rendered by this Court in the cases of Kailashchandra Jain Vs. State of M. P. and others, 2003 (3) MPLJ 260, Rajendra Singh Raghuwanshi Vs. State of M. P. and others, 2004 (3) M. P. H. T. 373 and Smt. Babita Lilhare Vs. Shri Surendra Rana and others, 2004 (5) M. P. H. T. 79. It is on the anvil of these submission the petitioner seeks quashment of order of removal and disqualification and the subsequent order passed in revision.