1 2025:CGHC:12664 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 3924 of 2022 1 - Smt Meena Khunte W/o Dilip Kumar Khunte Aged About 36 Years Sarpanch, Gram Panchayat Khudubhatha, Tahsil - Sarangarh, District - Raigarh (Now District - Sarangarh-Bilaigarh), Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Panchayat And Rural Development Department, Mahanadi Bhawan, Mantralaya, Nawa Raipur, Chhattisgarh. 2 - The Upper Commissioner Bilaspur Division, District - Bilaspur, Chhattisgarh. 3 - The Collector Raigarh, District - Raigarh (Now District - Sarangarh - Bilaigarh), Chhattisgarh. 4 - The Sub- Divisional Officer (Revenue) And Prescribed Authority Panchayat Sarangarh, District - Raigarh (Now District - Sarangarh - Bilaigarh), Chhattisgarh. Digitally signed by RAGHVENDRA JAT 2 5 - The Chief Executive Officer Janpad Panchayat, Sarangarh, District - Raigarh (Now District - Sarangarh - Bilaigarh), Chhattisgarh. 6 - Smt. Laxmi Bai Kurre W/o Kamaldev Aged About 36 Years R/o Village Khudubhatha, Tahsil - Sarangarh, District - Raigarh (Now District - Sarangarh - Bilaigarh), Chhattisgarh. 7 - Vedprakash Kurre S/o Late Jethuram Kurre Aged About 35 Years R/o Village Khudubhatha, Tahsil - Sarangarh, District - Raigharh (Now District - Sarangarh - Bilaigarh), Chhattisgarh. 8 - Ramdin Kurre S/o Late Hemlal Aged About 38 Years R/o Village Khudubhatha, Tahsil - Sarangarh, District - Raigarh (Now District - Sarangarh- Bilaigarh), Chhattisgarh. 9 - Smt. Kaleshwari Lahre W/o Jagdish Lahre Aged About 28 Years R/o Village Khudubhatha, Tahsil Sarangarh, District Raigarh (Now District Sarangarh Bilaigarh) Chhattisgarh. 10 - Smt. Bharti Mahilane W/o Pal Singh Mahilane Aged About 37 Years R/o Village Khudubhatha, Tahsil Sarangarh, District Raigarh (Now District Sarangarh Bilaigarh) Chhattisgarh. 11 - Smt. Pankjani Chouhan W/o Shri Dileshwar Aged About 30 Years Secretary, Gram Panchayat, Khudubhatha, Tahsil Sarangarh, District Raigarh (Now District Sarangarh Bilaigarh) Chhattisgarh. 12 - Ku. Saraswati Yadav D/o Bharat Lal Yadav Aged About 26 Years Gram Rojgar Sahayak, Gram Panchayat, Kauwatal, Additional Charge 3 Gram Panchayat, Khudubhatha, Tahsil Sarangarh, District Raigarh (Now District Sarangarh Bilaigarh) Chhattisgarh. ... Respondent(s) For Petitioner(s) : Mr. Roop Ram Naik, Advocate. For Respondent(s)/State : Ms. Upasana Mehta, Panel Lawyer. For Respondent Nos. 6, 8 to 10 : Mr. Ravipal Maheshwari, Advocate. For Respondent No. 7 : Mr. Syed Ishhadil Ali, Advocate. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 17/03/2025 1. The petitioner is an elected Sarpanch of Gram Panchayat, Khudubhatha is aggrieved by the impugned order dated 22.08.2022 passed by respondent No. 2/ the Upper Commissioner, Bilaspur Division, District-Bilaspur, Chhattisgarh by which an appeal has been filed by the complainants have been allowed and the petitioner who is/ was Sarpanch was held to be guilty of misappropriation and she was held to be violated provisions contained under Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter called as “the Act”) and hence the consequences for violation of Section 40 of the Act was followed holding her to be guilty of misconduct and discharge of her official duties and the consequences thereof that 4 the petitioner was seized to be member of any other Panchayat and she shall be disqualified for the period of 6 years to be elected under this Act. 2. By way of this petition, the petitioner has prayed for following reliefs:- “10.1 That this Hon'ble Court may kindly be pleased to issue an appropriate writ/order/ direction, thereby setting-aside the impugned order dated 22.08.2022 (Annexure P/1) and further be pleased to direct the respondent authorities not to take any coercive step against the petitioner pursuant to the impugned order dated 22.08.2022. 10.2 That any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the cost of the petition may be given.” 3. Facts of the case, is that, the petitioner is an elected Sarpanch of Gram Panchayat, Khudubhatha. The work for construction of drain under Gram Panchayat, Khudubhatha was sanctioned to the tune of Rs. 20,529/- was approved and similarly the work of digging of bore under Gram Panchayat, Khudubhatha was sanctioned to the tune of Rs. 1,50,000/- was approved, but due to lockdown on account of Pandemic Covid-19, the said work was not completed within time and the said works were 5 completed after resuming the normal work and the payments were made to the concerned persons/contractors. The respondents No. 6 to 10 has filed a complaint before the respondent no. 4- the Sub Divisional Officer (Revenue) alleging non-completion of construction of drain and digging of bore. On the basis of said complaint, the respondent No. 4 registered the case under Section 40 of Chhattisgarh Panchayat Raj Adhiniyam, 1993 and issued show cause notice to the petitioner as well as Secretary, Gram Panchayat, Khudubhatha on 10.06.2021. The respondent No. 4 called the enquiry report from respondent No. 5 and accordingly respondent No. 5 conducted enquiry and examined the records and submitted his report finding that there was no misappropriation found against the petitioner and further the amount sanctioned for the works were paid to the concerned labourers and contractor, who executed the works and the petitioner has not misappropriated any amount and the work was delayed on account of Covid-19 and lockdown, which is not gross negligence or misconduct. The respondent no. 4 has recorded the statements of concerned witnesses and carefully examined the report submitted by the respondent No. 5. After completion of proceedings, vide order dated 09.02.2022, the respondent No. 4 has discharged the petitioner from the allegation and only a warning was given to the petitioner to perform her duty with the 6 help and majority of other office bearers of Gram Panchayat. While passing the order dated 09.02.2022, the respondent No. 4 has specifically observed that the post of Sarpanch is Elected Post and the Office Bearer should not be removed from the office only on the basis of vague, general and omnibus allegations. Being aggrieved by the order dated 09.02.2022, the respondents No. 6 to 10 preferred an appeal before the respondent no. 3- the Collector, Raigarh, District-Raigarh and after hearing the parties has passed order dated 11.04.2022, whereby dismissed the appeal preferred by the respondents No. 6 to 10 and affirmed the well reasoned order passed by the respondent No. 4. Against the order dated 11.04.2022 the respondents No. 6 to 10 preferred an appeal U/s 21(4) of Chhattisgarh Panchayat Raj Adhiniyam, 1993 read with Section 5 of Chhattisgarh Panchayat (Appeal & Revision) Rules, 1995 before the respondent No. 2 and vide impugned order dated 22.08.2022 the respondent No. 2 has set aside the order passed by the Collector on 11.04.2022. The respondent No. 2 has overlooked the provisions under the appeal was filed by the respondents No. 6 to 10 is not maintainable and also without perusing the records in its true prospective, the impugned order has been passed. 4. Learned counsel for the petitioner submits that the complainants are not at all having any locus standi to prefer an appeal before 7 respondent No. 3- the Collector, Raigarh, District- Raigarh and it was not at all maintainable under Section 21 (4) of the Act. He further submits that Section 21 (4) of the Act can only be taken where no confidence motion has been passed successfully but it cannot be filed under Section 40 of the Act. He further submits that the Collector has examined the entire aspect of the matter and has exercised vested jurisdiction upon her under Section 40 (1) of the Act and has passed a well reasoned order which is not required to be interfered with. He further submits that no appeal can be preferred by the respondents No. 6 to 8 as they are not having locus standi to prefer an appeal and as such the appeal itself was not maintainable before the Upper Commissioner. He further submits that earlier an enquiry report has been submitted by respondent No. 5 in which it was categorically held that the petitioner who is/ was Sarpanch has not committed any misappropriation of funds and she is not liable to be punished under Section 40 of the Act. He further submits that the Sub Divisional Officer (Revenue) as well as the Collector has concurrently held that there is no misappropriation embezzlement of funds and as such the petitioner is not liable to be prosecuted under Section 40 of the Act. He further submits that some delay has occurred in completion of works which was mainly due to the 8 Pandemic Covid 19 situation and as such the same cannot be taken adversely against the petitioner. 5. On the other hand learned counsel for the respondents submitted that the impugned order passed by the Upper Commissioner is well reasoned order. The Upper Commissioner considered entire aspects of the matter and after considering the entire aspects has passed a detailed and reasoned order which cannot be set to be faulted with. The evidence goes to show that misappropriation and irregularities have been committed by the petitioner in the name of her relatives and as such the Petitioner has rightly been prosecuted under Section 40 of the Act. 6. I have heard learned counsel for the parties and perused the material available on record. 7. From the perusal of the record, it goes to show that the complainants have made complaint against the petitioner that she has misappropriated funds in the name of her relatives i.e. husband and brother-in-law. Section 40 of the Act is meant for taking action in respect of removal of officer bearers of panchayat. Relevant para of Section 40 of the Act is quoted below:- “40. Removal of office bearers of Panchayat. (1) The State Government or the prescribed authority may after such 9 enquiry as it may deem fit to make at any time, remove an office bearer- (a) if he has been guilty of misconduct in the discharge of his duties; or (b) if his continuance in office is undesirable in the interest of the public: Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. Explanation.- For the purpose of this sub-section "Misconduct shall include- (a) any action adversely affecting- (i) the sovereignty, unity and integrity of India; or (ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or (iii) the dignity of women; or (b) gross negligence in the discharge of the duties under this Act. (c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, 10 such as giving out any type of lease, getting any work done through them in the Panchayat by an office bearer of Panchayat. Explanation.- For the purpose of this clause the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law: Provided that the final order in the inquiry shall as far as possible be passed within 90 days from the date of issue of show cause notice to the concerned office bearer.” 8. Now, when the case is examined in light of aforesaid Section it was found that the Sub Divisional Officer (Revenue) during the course of enquiry has found that there were some irregularities, however, misappropriation and embezzlement was not found and, accordingly, the Sub Divisional Officer (Revenue) has found that the allegations were not serious one for which the action under Section 40 of the Act can be taken into consideration as such instead of removal from the post of Sarpanch, the petitioner as well as the Secretary of Gram Panchayat was warned for future and they were directed to act in accordance with law. With the consent of the villagers and the matter was closed by the Sub Divisional Officer (Revenue). An appeal was preferred by the 11 respondents, the Collector has also examined the matter it was found that the Sub Divisional Officer (Revenue) has rightly been passed an order while not initiating any action against the petitioner the complaint is of not such a serious for which the petitioner can be removed from the service. Loosing in all two forums, the complainants went before the Upper Commissioner, however, the Upper Commissioner without appreciating entire aspects of the matter has passed the order while holding that there is violation of Section 40 of the Act and has passed an order against the petitioner who is/ was Sarpanch. 9. From the bare perusal of the impugned order it seems that the complaints were mainly to this effect that some expenses have been made, however, works could not be found to be done but it was mainly with some delay and it is not the case that entire work has not been done may be there would be some delay in completion of works which can be at limited to Covid 19 situation the Sub Divisional Officer (Revenue) and the Collector have not passed any orders against the petitioner. Vide order dated 14.09.2022 the petitioner was granted an order of stay and thereafter her tenure has also been completed and after fresh election of the Panchayat newly body has been constituted. 10. Looking to the aforesaid aspect of the matter, the impugned order dated 22.08.2022 passed by the Upper Commissioner is liable to 12 be quashed on the premises that the Sub Divisional Officer (Revneu) and the Collector have examined the matter and have not found any irregularities to this effect that the action can be taken against the petitioner under Section 40 of the Act. 11. In light of aforesaid discussions, the writ petition is allowed. 12. No order as to cost(s). Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat