Sarpanch Booked For Rape Can't Be Dismissed From Service For 'Misconduct' Under MP Panchayat Raj Avam Gram Swaraj Adhiniyam 1993: High Court

The Gwalior bench of the Madhya Pradesh High Court has recently held that there is a difference between removal of Panchayat office bearers for "misconduct" and their suspension if charged for offences like rape, which are under separate provisions of the state panchayat law. 

In stating so, the court dismissed an appeal against a single judge bench's order pertaining to a plea seeking removal of a Panchayat Sarpanch booked in a rape FIR. 

Legislative intent clear, section 39 and 40 in distinct spheres

A division bench of Justice Anand Pathak and Justice Hirdesh in its order said, "Perusal of Section 40 reveals that one of the grounds for removal is misconduct, and in explanation, one of the attributes of misconduct is undermining the dignity of a woman". The issue before the bench pertained to whether the registration of an FIR under Section 376 of the Indian Penal Code against the Sarpanch justified his removal under Section 40 of the 1993 Act.

For context, Section 39 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam 1993, pertains to suspension of a Panchayat's office bearers against whom charges have been framed in any criminal proceedings under various IPC provisions including Section 302 (murder), and 376 (rape).

Section 40 pertains to removal of office-bearers of Panchayat, on the ground of being "guilty of misconduct" while discharging duties provided the office bearer is not removal without being given an opportunity of hearing.

The explanation to the section states that 'misconduct' includes any action which adversely affects the sovereignty, unity and integrity of India; or harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or the dignity of women.

The term also includes any gross negligence in the discharge of the duties under the act, use of position or influence to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative. 

Taking note of the two provisions the bench said that if the legislative intent would have been to incorporate the alleged commission of rape to be included in Section 40 as well, then Section 39 "would not have been framed or at least offence under Section 376 of IPC" would not have been included in the enactment.

"Legislative intent appears to be clear. Sections 39 and 40 of Act 1993 move in two distinct spheres," the bench underscored. It further said that if a Sarpanch commits an offence as prescribed under Section 39 then he would certainly be proceeded as per this provision. 

"Once the Section 39 of Act 1993 deals in respect of commission of certain offences which includes offence of rape which is against a woman, then it means Section 40 of Act 1993 contemplated the concept of 'Misconduct' (by way of undermining the dignity of a woman) quite distinct from Section 39 of Act 1993 or what counsel for the appellant has argued. This misconduct is having attributes something different than commission of offence of rape. Therefore, contentions of appellant are bereft of merits, hence, rejected," the bench added. 

Background

The court was hearing an appeal against an order of the single judge bench passed in a writ petition, which had remanded back the matter to the authority for a relook. 

The petitioner appellant argued that respondent No.6 being Sarpanch of Gram Panchayat, Kaimra, Sarai Chhola, District Morena is a "fit person" to be removed under Section 40 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. The petitioner said that this was so because as per Section 40 (1) Explanation (a) (iii) the Sarpanch had caused misconduct by undermining the dignity of a woman.

The petitioner however said that, from the record, it appeared that no opportunity of hearing was provided before proceeding against the Sarpanch. 

Counsel for the respondents which includes the State, opposed the prayer and submitted that only on the pretext of registration of FIR for the offence under Section 376 of IPC, respondent No.6 was subjected to removal.

"However, if FIR is registered against Sarpanch and charge-sheet is filed, thereafter, if charges are framed only then proceedings under Section 39 of Act 1993 can be initiated and not proceedings under Section 40 of Act 1993. Therefore, approach of authority was erroneous, Even otherwise, matter was remanded back to the authority for re-look," the respondents contended as noted in the order. 

Single judge bench's order well reasoned, no interference required

The bench noted that admittedly no opportunity of hearing was provided to the Sarpanch, and so, on the point of opportunity of hearing as contemplated under Section 40 of 1993 Act and while being guided by principles of natural justice, "case of respondent No.6 gains grounds". 

Calling the single judge's order as well reasoned, the bench refused to interfere with it noting that the single judge bench had remanded the matter back to the concerned authority.

"Therefore, parties are always having opportunity to present their case. No interference is required. Appeal bereft of merits is hereby dismissed," the bench said. 

Case title: Smt. Sunita Jatav Versus The State Of Madhya Pradesh And Others

Case no: WRIT APPEAL No. 1814 of 2024

Citation: 2024 LiveLaw (MP) 229

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