BIJAY SHANKAR SINGH S/O LATE SRI KAILASH PRASAD SINGH Vs. STATE OF BIHAR THROUGH THE SECRETARY, PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA

JUDGEMENT

(1.) The petitioner was elected Mukhiya of Gram Panchayat Raj, Amarpur under Suryagarha Block in the district of Lakhisarai. He was elected to the post of Mukhiya in June 2006. Under the Bihar Panchayat Raj Act a vote of no confidence cannot be moved against the Mukhiya within the first two years of his assuming office nor can the same be done within one year of the no confidence motion being moved. For moving the no confidence motion charges have to be levelled and disclosed. That is one of the ways of the removal of Mukhiya. But it has a time restriction before which it cannot be done. It seems that there were disputes between the Mukhiya and the Up-Mukhiya. Up-Mukhiya, being in no position to move for removal of the Mukhiya by vote of no confidence, chooses to move the State bureaucracy by making complaints against the Mukhiya. Complaints were basically of two types. One that the Mukhiya is negligent and neglects carrying out work properly in relation to various schemes and secondly that for a certain scheme, Mukhiya had issued a cheque on 16.06.2007 of about Rs. 2 lacs, which was not encashed for four months. On 22.10.2007, the amount was withdrawn by the petitioner but on 31.10.2007 it was deposited. The State Government became active and a special three men Vigilance Committee was appointed to look into the allegations consisting of the Superintendent of Police, a person from the Vigilance Cell and another from Statistical Cell. The Collector was also asked to look into the matter. All reports having been received, show cause was issued to the petitioner, as stated above, on those counts simply stating the negligence in carrying out duty and non-encashment of cheque for a long period and then encashing and re-depositing the amount, which is allegedly suggestive of embezzlement. Mukhiya filed his show cause. Considering his show cause and the reports, by the impugned order, the State Government has dismissed the Mukhiya in terms of Section 18(5) of the Bihar Panchayat Raj Act, which is quoted hereunder:

(2.) Counter affidavit has been filed. Heard the parties and with their consent, the writ petition is being disposed of at this stage itself.

(3.) The challenge to the order of the State Government is on the ground that the conditions contemplated by Section 18(5) are not satisfied. The action of the State itself is an abuse of power. Before adverting to fact in detail, which may really not be necessary, I may notice a judgment of the Apex Court in regards to similar situation being the case of Tarlochan Dev Sharma v. State of Punjab and Ors., 2001 AIR(SC) 2524. Here also was the question of removal of the President under the Punjab Municipal Act in terms of Section 22 thereof, which is also to Section 18(5) of the Bihar Panchayat Raj Act. The provisions of the Punjab Act is to be found in paragraph-5 of the said judgment, where also it will be seen that the President could be removed by resignation or by vote of no confidence or by the State Government on grounds of abuse of power and being habitual failure to perform his duties, which is similar to abuse of power and guilty of misconduct in discharge of his duties, as found in the Bihar Statute. The Apex Court has noticed the political bureaucrat relationship. In such matters, the role of bureaucrats and then elaborated what is meant by the abuse of power, as used in the said provision, which discussion, inter alia, is to be found in paragraph-10, which is quoted hereunder: