- (1.) INVOKING the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issuance of appropriate writ for quashment of the notice dated 12.6.97 (Annexure P -7), the order of suspension dated 19.6.97 (Annexure P -9) and the confirmation thereof by order dated 2.9.97 (Annexure P -20) all actions taken under Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') and for such other ancillary reliefs to which the petitioner is entitled to.
(2.) SANS unnecessary details the facts which are essential for disposal of the present writ petition may be stated thus : - - The petitioner was elected as Sarpanch of Village Panchayat Bankhedi, Pipariya in the district of Hoshangabad in the election held in May 1994. The aforesaid Panchayat comprises of 20 elected members and a Sarpanch. As 10 out of the 20 elected Panchas of the Panchayat continuously absented themselves from the meetings of the Panchayat Committee, they incurred the disqualification to continue as office bearers of the Panchayat by virtue of the provisions envisaged under section 36 (2) (c) of the Act. This fact was brought to the notice of the Collector, Hoshangabad, the respondent No.2, by the petitioner by his letter dated 30.8.95. As the District Collector showed no inclination to take action in -spite of the timely information, the petitioner under compelling circumstances had to tap the doors of this Court in a writ petition No. 2129/96 seeking therein issuance of a writ in the nature of mandamus commanding the Collector to take a final decision in the matter of disqualification of the said elected members. This Court by order dated 26.6.96 issued a direction to the Collector, Hoshangabad to dispose of the matter relating to disqualification of the Panchas within a period of four weeks from the date of the order. Thereafter the Collector passed an order on 13.3.97 in Revenue Case No. 181 -B/121/95 -96 disqualifying the 9 Panchas and the Up -Sarpanch from being the office bearer of the Gram Panchayat. The defensibility of the said order was called in question by the aggrieved Panchas in an appeal under section 36 (4) of the Act before the Additional Commissioner, Hoshangabad who passed a conditional stay order in favour of the appellants therein. As the petitioner was the main initiator, the dissatisfied members in a collective manner engaged themselves in making false and frivolous complaints against the petitioner before the Sub -Divisional Officer (Revenue), Pipariya, the respondent No.3. According to the petitioner the said SDO had an axe to grind against him as he (the SDO) wanted to do a favour to one Shri Ramvilas in regard to grant of permanent lease of some land situated near bus stand of Bankhedi but the said action of the SDO was not supported by the Gram Panchayat. This had irked the SDO, Pipariya who had borne it silent grudge against the petitioner. Therefore, after he received complaints against the petitioner, without making any preliminary inquiry with regard to correctness of the allegations, he issued a show cause notice dated 12.6.97 under section 40 of the Act along -with a charge -sheet. In the said show cause notice it was mentioned that Chief Executive Officer, Janpad Panchayat Bankhedi had submitted an inquiry report to the effect that on examination of records with reference to the complaints of the Panchas it was found there were irregularity in the functioning of the Village Panchayat and, therefore the petitioner was required to submit his reply to the show cause notice in promptitude. After receipt of the said show cause notice the petitioner submitted his reply on 17.6.97 denying the charges levelled against him and sought time to reply in detail to the charges as he was not equipped to file the detailed reply in absence of the documents, the complaints and the preliminary report. Without considering the preliminary reply submitted by the petitioner, as alleged, the concerned SDO with a mala fide intention passed an order on 19.6.97 placing the petitioner under suspension from the post of Sarpanch and directed him to hand over the charge of Sarpanch to Up -Sarpanch under intimation to him. After receipt of the said communication the Secretary of the Janpad Panchayat communicated to the Up -Sarpanch that the petitioner was out of station and charge would be handed over after his retum. As other members of the Village Panchayat were aware about the desire and design of the SDO they made a representatioJ1""to him informing that the Up -Sarpanch was disqualified by the Collector and the conditional stay order granted by the Additional Commissioner, Hoshangabad was deemed to have been vacated by flux of time. As the SDO did not receive the said representation it was sent by registered post. When the matter stood thus, the petitioner challenged the aforesaid action of the SDO before this Court. During the pendency of the writ petition, the State Government by order dated 2.9.97 confirmed the order of suspension passed by the SDO. It has also been brought to the notice of this Court that in the confirmation proceeding the competent authority of the Stale Government had issued a notice to the petitioner for personal hearing fixing the date to 15.9.97 but passed the impugned order of confirmation on 2.9.97. The show cause notice, the order of suspension and the confirmation of the same by the State Government are the subject -matter of challenge in the present petition. A return has been filed by the respondents No.1 to 3, contending, inter alia, that the order of suspension has been passed in accordance with the provisions contained under section 39 (1) (b) of the Act and there is strict compliance of the said provision, hence the action taken by the competent authority does not warrant any interference. The plea of the petitioner that the State Government has confirmed the order without hearing him has been opposed to by the answering respondents on the ground that there is no requirement for complying with the principles of natural justice and, therefore, the order of confirmation passed by the State Government is invulnerable the further stand taken in the counter affidavit is that the petitioner should have preferred an appeal under section 92 of the Act.
(3.) MR . Vivek Tankha, learned counsel for the petitioner, has contended that though the competent authority, the SDO has the authority to pass an order of suspension under section 39 of the Act but before doing so, it is required of him to be satisfied with regard to the prima facie sustainability of the allegations made against the incumbent and as the same has not been done in the present case the whole action of the competent authority is sensitively susceptible. It is further proponed by the learned counsel that the overwhelming materials and the obtaining factual matrix do clearly establish that initiation of proceeding and the order of suspension have surfaced because of the mala fide of the competent authority; and any action which is founded on mala fide, is vulnerable in law. It is also contended by Mr. Tankha, that the order of confirmation passed by the State Government is vitiated inasmuch as the same has been passed without affording an opportunity to the petitioner though a date was fixed for personal hearing. Resisting the aforesaid contentions, Mrs. Shobha Menon, learned Govt. Advocate has contended that there has been no violation of any statutory provision by the competent authority and, therefore, the action taken by him cannot be found fault with. She has urged with vehemence that while confirming the order of - suspension the State Government is not required to afford an opportunity of personal hearing to the Sarpanch concerned and in absence of any statutory contemplation in that regard the principles of natural justice cannot be said to be attracted. She has also submitted that though it is ture the State Government initially issued a notice for personal hearing of the petitioner but as that is not the requirement of law, the same was given a go -bye and an order . has been passed in accordance with section 39 of, the Act. ;