1 2025:CGHC:8833 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 4558 of 2021 Order Reserved On : 28.11.2024 Order Delivered On : 20.02.2025 1 - Dolly Sahu W/o Ajay Kumar Sahu, Aged About 43 Years Sarpanch, Gram Panchayat, Kopra, Block Fingeshwar, District Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh 2 - Uttam Kumar Sahu S/o Heeraram Sahu, Aged About 43 Years R/o Ward No. 6, Semhartara, District Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh 3 - Deenu Ram Yadu Aged About 51 Years R/o Bangala Bhatha, Ward No. 13, Civil Line, Fingeshwar, P.S. Fingeshwar, District Gariyaband Chhattisgarh, District : Gariyabandh, Chhattisgarh ... Petitioners versus 1- State Of Chhattisgarh Through The Secretary, Panchayat And Rural Development Department, Mantralaya, Atal Nagar, Nawa Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2- The Collector, District Gariyaband Chhattisgarh 3- The Sub Divisional Officer (Revenue), Rajim, District Gariyaband Chhattisgarh 4- The Chief Executive Officer, Janpad Panchayat, Fingeshwar, District Gariyaband Chhattisgarh. 5- Rajesh Yadav S/o Tikamlal Yadav, R/o Village Kopra, Block Fingeshwar, District Gariyaband Chhattisgarh. 6- Vijay Kumar S/o Late Jethanlal Sahu, R/o Village Kopra, Block Fingeshwar, District Gariyaband Chhattisgarh. 7- Dihuram S/o Late Kanhaiyaram Sahu, R/o Village Kopra, Block Fingeshwar, District Gariyaband Chhattisgarh. ... Respondents BHUMIKA ANGARE Digitally signed by BHUMIKA ANGARE Date: 2025.02.20 14:47:20 +0530 2 For Petitioners : Mr. Sushil Dubey, Advocate For State : Mr. Pramod Shrivastava, Dy. Government Advocate For Respondents No. 5 to 7 : Mr. Rajesh Tiwari, Advocate Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER 1. The instant writ petition is preferred against the impugned order dated 25.10.2021 passed by respondent No. 2 The Collector, District Gariyaband Chhattisgarh in case No. 202012220600004 (Annexure P/1), whereby the respondent No. 2 has allowed the appeal filed by the respondents No. 5 to 7 and directed the respondent No. 3 to issue removal order to petitioner No. 1 who was working on the post of Sarpanch, Gram Panchayat Kopra, Block – Fingeshwar, District – Gariyaband and also directed to take disciplinary action against the petitioner Nos. 2 & 3 respectively. 2. The brief facts, as reflected from the record are that the petitioner No. 1 was working as Sarpanch against whom a complaint regarding illegal sand transportation was submitted before respondent No. 4 Chief Executive Officer as well as Collector and District Mining Officer. On the basis of said complaint the Chief Executive Officer conducted inquiry and held that the charges leveled against petitioner No. 1 were found proved, accordingly, the inquiry report along with the documents were sent to the Chief Executive Officer Gariyaband, District Panchayat by the Chief Executive Officer, Janpat Panchayat, Fingeswar on 09.04.2019 . Thereafter, the Sub-Divisional Officer started proceeding under Sections 40 and 92 of the Chhattisgarh 3 Panchayat Raj Adhinimum, 1993 on 12.06.2019. The Sub-Divisional Officer issued notice to petitioner No. 1 and also granted opportunity to file reply, evidence, and cross-examination of the witnesses. Thereafter, vide order dated 09.11.2020 has dismissed the complaint and closed the proceeding under Section 40 of the Act of 1993. Against that respondents No. 5,6 and 7 have preferred an appeal under Section 91 of the Act, 1993 which was allowed by the Collector on 25.10.2021 and directed the Chief Executive Officer, District Panchayat, Gariyaband to pass the order of removal of petitioner No. 1 and to take disciplinary action against petitioners No. 2 and 3. Being aggrieved with this order, the writ petition has been preferred by the petitioners mainly contending that the respondent 3 has conducted the inquiry in violation of principle of natural justice and respondent No. 2 has committed illegality in reversing the well reasoned order passed by respondent No. 3. It has also been contended that no material is available on record to demonstrate that any irregularity or illegality has been committed by the petitioner No. 1. It has also been contended that respondent No. 2 failed to consider that there was no demarcation of land, as such, it cannot be determined that the sand were dug from other places which were not notified and it is political motivated action against petitioner No. 1, thus, it has been prayed for quashing of the impugned order. 3. The respondents No. 1 to 3 have filed their return wherein it has been contended that they are formal parties and no relief has been claimed against them, as such, prayed for dismissal of the writ petition. 4 4. The respondent No. 4 has filed separate return mainly contending that office of Respondent No. 4 received certain complaints against petitioner no. 1 regarding illegal excavation of the sand as well as illegal and irregular transportation of sand on the basis of forged royalty slips and vehicles. Similarly, on the same facts complaints were also filed before the Department of Mining, District Gariyaband. It has also been contended that the Mining Department examined the complaint and physically inspected the spot and after due satisfaction stopped the work of sand excavation since 16.12.2017 and also imposed a fine of Rs. 34,600/- against Sarpanch & Secretary of Gram Panchayat Kopra, Block Fingeshwar District Gariyaband. It is further submitted that on basis of the complaint jointly lodged by Hori Lal Sahu, Vijay Kumar Sahu, Rajesh Yadav, Deehuram Sahu and Domeshwar Yadav the respondent constituted a committee headed by Sub Divisional Officer Rural Engineering Department in which the members are Assistant Engineer, Water Resources Division Fingeshwar, Senior Accounts Officer Janpad Panchayat Fingeshwar and Patwari Halka No. 30 Village Kopra, the said committee after examining the complainants prepared a panchnama, verified the various documents like documents pertaining to mining department, vehicles involved in the transportation of sand and also included the Naksha Khasra of the concerned Khasra and reached to the conclusion that there is irregularity on the part of petitioners, thereafter the said enquiry committee submitted the report before CEO Zila Panchayat, Gariyaband and subsequently which has been forwarded to competent authority Sub Divisional Officer Revenue 5 for taking action. Accordingly, an order dated 09.11.2020 was passed by which the petitioner No. 1 Smt. Dolly Sahu was exonerated from the charges for the alleged proceeding under Section 40 of Chhattisgarh Panchayati Raj Adhiniyam. Being aggrieved with the above discharge the complainants respondents No. 5 to 7 have preferred an appeal under Section 91 of Chhattisgarh Panchayat [Appeal and Revision] Rules, 1995 before the Collector Gariyaband and by impugned order it has been allowed. The appellate authority has considered the entire evidence, material of the inquiry and thereafter well reasoned order has been passed which cannot be held to suffer from perversity or illegality which warrants interference by this Court and would pray for dismissal of the writ petition. 5. The respondents No. 5 to 7 in its reply would support the impugned order and would submit that in the inquiry all the opportunity of hearing was extended to the petitioners, even before the Sub-Divisional Officer opportunity to lead evidence was also given to the petitioners, therefore, it cannot be held that principle of natural justice has been violated while conducting the inquiry, thus, they would pray for dismissal of the writ petition. 6. Learned counsel for the petitioners would submit that the impugned order dated 25.10.2021, is bad in law, being perverse and erroneous, as such it is liable to be set-aside/quashed. He would further submit that the respondent No. 2 has committed grave error of law in reversing the well reasoned order passed by the respondent No. 3. He would further submit that while passing the order, respondent No. 3 6 has clearly mentioned that the passes were issued in incorrect vehicle number, which is bonafide mistake and due to said mistake no loss has been caused to the Government. He would further submit that the respondent No. 2 has not issued any show cause notice and no opportunity of hearing was afforded to the petitioners No. 2 & 3 before passing order for initiating disciplinary proceedings against the petitioners No. 2 & 3, as such impugned order is against the violation of principles of natural justice, which cannot be sustained in the eyes of law. Even otherwise there is no material available on record to show that petitioners have committed any irregularity or illegality as such impugned order deserves to be quashed. He would further submit that the respondent No. 2 has failed to appreciate that there is no demarcation of land therefore without any demarcation, it cannot be determined that sands were being dug from other place. 7. He would further submit that the excavation was started by the former Sarpanch Chitteshwari Sahu which was continued by the Petitioner No. 1 and she has no knowledge that the sand excavation was being done in land bearing Kh. No. 3755 instead of Kh. No. 3756. The petitioner No. 1 has no role in issuance of transport passes which were in fact issued by the Panchayat Sachiv whose signatures were present in the transport passes. He would further submit that the enquiry report shows that no financial loss was caused to the State Government and also the findings of the SDO (R) Rajim shows that no any individual advantage has been occurred to the Petitioner No. 1 Sarpanch as well as no allegation of corruption was made out against her on the basis of 7 the statement of the complainant recorded by the Enquiry Committee. He would further submit that Excavation was stopped on 16.02.2017 and Fine of Rs. 34,600/- was imposed on Adarsh Shrivastava on 08.03.2018 for excavating of sand outside of permissible area. The complainant wanted action against the Sarpanch and Sachiv also. He would further submit that the Respondent Collector Gariyaband himself was politically influenced as per the newspaper publications. Therefore, proceedings for removal of Sarpanch is illegal and arbitrary. 8. Learned counsel for the respondents would support the impugned order and reiterate the stand taken by them in the return as well as inquiry proceedings conducted by them and would pray for dismissal of the writ petition. 9. This Court vide order dated 17.10.2024 has directed the State to produce the record pertaining to the proceedings initiated against the petitioners in the inquiry. In pursuance of direction, the State has submitted the records and from the perusal of the records the following facts reveal:- 17.01.2019 The villagers filed complaint against petitioner No. 1 regarding illegal excavation of the sand as well as illegal and irregular transportation of sand on the basis of forged royalty slips and vehicles before respondent No. 4 as well as District Mining Officer, Gariyaband. 18.01.2019 On the basis of the complaint the CEO Janpad Panchayat, Fingeshwar constituted a committee headed by Sub Divisional Officer Rural Engineering Department, Sub Division Fingeshwar in which the members are Assistant Engineer Water Resources Division Fingeshwar, Senior Accounts Officer Janpad Panchayat Fingeshwar and Patwari Halka No. 30, Village Kopra. 8 29.01.2019 Panchnama had been prepared and statements were recorded by respondent authority. The statement of Sarpanch Smt. Dolly Sahu, the the Secretary Shri Dinu Yadav, present Secretary Shri Uttam Kumar Sahu, documents regarding environment clearance, permission for transportation, letter of approval by district transport officer, map of patwari Halka No. 30, imposition of fine by the Mining Inspector, Register of Transport pass, Account Book of Panchayat Kopra and Statements. The details of transport pass which were incorrect. 08.04.2019 The said committee after examining the records given its finding that by fabricated forged documents in place of Hywa truck No. of motor cycles, car, pickup, scooty No. has been mentioned and royalty has been shown at Rs. 60/-. It has also been recorded that the sand excavation was done for two years and 41 books of transport pass have been utilised for 4100 trips of sand which can provide royalty to the Panchayat to the tune Rs. 13,12,000/-. The committee has also recorded its finding that the transport pass which have been issued on inquiry from RTO Gariyaband it is found it is either motor cycle, bolero, pickup, motorcycle car, scooty and one of the vehicle number does not pertain to registered number, accordingly, it has recorded its finding that the petitioner No. 1, the then Secretary and present Secretary have violated the rules. 10. Thereafter, the Chief Executive Officer has forwarded the record to the Sub-Divisional Officer for initiating proceeding under the Panchayat Raj Adhinium against the petitioners. On 12.06.2019, the Sub-Divisional Officer Rajim issued notice to the petitioner No. 1 and the proceeding was conducted. On 19.07.2019, the counsel for the petitioner sought documents. Thereafter, the matter was adjourned on 27.07.2019. On that date the petitioner No. 1 submitted reply. Thereafter, the matter was adjourned to 08.08.2019. On the said date the complainants were present and sought time to lead evidence. Again the proceedings were adjourned to 22.08.2019. Again on the said date an opportunity was 9 granted to the petitioner to submit fresh reply. Thereafter, the proceedings were continued and on 29.11.2019, the complainant- Rajesh Yadav’s statements were recorded and he was cross- examined. The Sub-divisional Officer thereafter issued summon evidence of inquiry officers – Sumit Goswami, L.K. Kanaujje, C.L. Dewangan and Rakesh Sahu and fixed the case on 23.03.2020. The inquiry officer – Sumit Goswami, Rakesh Sahu and C.L. Dewangan were examined and cross-examined. Thereafter, the complainant has submitted written argument. The petitioners have never prayed for examining themselves before the Sub-Divisionsal Officer. Thereafter, the Sub-Divisional Officer on perverse finding without considering the evidence, material on record has set aside the proceedings initiated under Section 40 of the Panchayat Raj Adhinium. Being aggrieved with the order, respondents No. 5 to 7 have preferred appeal before the Collector who vide impugned order dated 25.10.2021 has allowed the appeal and directed the respondent No. 4 to initiate proceeding against the petitioners. 11. From the above submissions made by the counsel for the petitioners and respondents, the record of the case, the points emerged for determination by this Court are; 1. Whether the statement of the witness recorded in the inquiry proceeding who has been cross-examined in the proceedings initiated under Section 40 of the Panchayat Raj Adhinium will amount to sufficient compliance of principle of natural justice ? 10 2. Whether the order passed by the Collector dated 25.10.2021 (Annexure P/1) suffers from perversity and illegality and liable to be quashed by this Court. Discussion and finding on Point No. 1 12. To appreciate the Point No. 1 is expedient for this Court to extract Section 40 of the Chhattisgarh Panchayat Adhinium, 1993 which reads as under :- 40. Removal of office-bearers of Panchayat. (1) The State Government or the prescribed authority may after such 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, 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 11 as possible be passed within 90 days from the date of issue of show cause notice to the concerned office-bearer. (2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected under this Act. 13. Rule 9 of the Chhattisgarh Panchayat (Appeal and Revision) Rules, 1995 reads as under:- 9. Power of appellate or revisional authority - The appellate or revisional authority after giving an opportunity to parties to be heard and after such further enquiry, if any, as it may deem necessary subject to the provisions of the Act and the rules made thereunder, may confirm, vary or set aside the order or decision appealed against. 14. From the bare perusal of Section 40 it provides that any office bearer of the Panchayat can be removed if he or she has been found guilty of misconduct in discharge of his duties and mis-conduct has been defined in the explanation clause which includes gross negligence in the discharge of duties under the Act. The record of the case would demonstrate that on the basis of complaint made by respondents No. 5 to 7, inquiry was conducted and the Chief Executive Officer on the basis of report has given his opinion that the petitioners were responsible for committing the said misconduct which has been duly forwarded to the Chief Executive Officer, District Panchayat Gariyaband. Thereafter, the Chief Executive Officer, District Panchayat Gariyabad vide its memo dated 25.05.2019 has forwarded the entire documents to the Sub-divisional Officer(R), Rajim District Gariyaband for initiating proceedings against the petitioners. Thereafter, the Sub- divisional Officer (R), Rajim has initiated proceeding against the petitioners. The record of the proceedings further provides that the 12 inquiry conducted against the petitioners by the officers were duly summoned before the Sub-divisional Officer (R) for recording their statements and they were subjected to cross-examination but the petitioners have not made any attempt to rebut the same. Thereafter, the learned Sub-divisional Officer without considering the evidence, material already placed on record has closed the proceedings for initiation of proceedings under Section 40 of the Act of 1993. As such, the Collector considering the evidence, materials on record and considering the reply submitted by the petitioner No. 1 has recorded its finding that the petitioners are involved in excavation of sand from the land bearing Khasra No. 3756 and have excavated the sand from Khasra No. 3755 and the transportation pass which has been issued relating to two wheelers and four wheelers and thus, prepared forged documents and committed irregularity in transportation of sand, accordingly, it has quashed the order of the Sub-divisional Officer (R) and directed for taking action against them. The record clearly demonstrates that the petitioners were given opportunities of hearing and they were also given to cross-examine the witnesses. Even otherwise, it is well settled position of law that in the enquiry proceeding previous recorded statement of witnesses are subjected to cross-examination, then it is sufficient compliance of natural justice. The Hon’ble Supreme Court in case of Kuldeep Singh Vs. Commissioner of Police {1999 (2) SCC 10} has held as under:- 32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to 13 the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness. 33. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with. 34. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross- examination by the delinquent. 15. The Hon’ble Supreme Court in case of M.V. Bijlani vs. Union of India and Others {2006 (5) SCC 88} has considered the nature of disciplinary proceedings, interference of the Court in disciplinary matters and held that the charge has to be proved by preponderance of probabilities. The Hon’ble Supreme Court held as in under :- 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he 14 cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 16. From the above factual and legal position, it is quite vivid that the witnesses who are examined in the inquiry proceeding conducted by the Executive Officer were examined and cross-examined by the petitioner No. 1 and the petitioners have decided not to lead any evidence to rebut the materials placed on record. Thus, it is quite vivid that petitioners were given opportunities of hearing to defend themselves which is compliance of Section 40 of the Act of 1993. 17. The High Court of Madhya Pradesh in case of Ratiram Vs. State of M.P. {W.P. No. 22078/2023 decided on 10th April, 2024} considering the provisions of Section 40 of the Act has held that issuance of show cause notice is sufficient compliance Section 40 of the Act. Thus, it is held that petitioners were given sufficient opportunities of hearing to defend their case. Accordingly, the point No. 1 is answered against the petitioners. Discussion and findings on Point No. 2 18. The Collector while passing of the impugned order has categorically recorded its finding that the petitioner No. 1 has committed misconduct and has categorically mentioned in paragraph 5 of its judgment that the manner in which sand has been excavated from Khasra No. 3755 though the environment clearance was granted for Khasra No. 3756, as such they have committed misconduct and accordingly, the petitioner No. 1 who was Sarpanch and other petitioners are 15 secretaries are responsible, as such, so far as petitioner No. 1 is concerned, Section 40 of the Act is applicable and for other petitioners who are secretaries of the Panchayat against them he has directed for disciplinary proceeding. The Sub-divisional Officer (R) while passing the impugned order has not considered the materials placed on record and has recorded its finding that the inquiry committee has not recorded its finding that petitioner No. 1 has committed and corruption personally without considering the entire evidence and considering the fact that at the relevant time she was the Sarpanch and was responsible for excavation, she has not taken any steps to prevent the illegal excavation of sand. Thus, she has been made rightly responsible for misconduct and the order passed by the Collector is legal, justified and does not suffer from perversity, illegality warrants interference by this Court. Consequently, the point No. 2 is answered against the petitioners. 19. The petitioners are unable to point out any perversity or illegality in the impugned order Annexure P/1 dated 25.10.2021 which warrants interference by this Court. Consequently, the writ petition deserves to be dismissed and accordingly it is dismissed. Sd/- (Narendra Kumar Vyas) Judge Bhumika