Alexinho Shri Agnelo Lobo v. The Director of Panchayats

(B) The expression "opportunity" before being removed and made ineligible for re-election is not restricted only to defend the allegation on merits, but also to show cause against the penalties proposed to be imposed; (C) Opportunity must mean reasonable opportunity and this opportunity must be meaningful and effective. The person likely to be adversely affected has to be informed not only of the ground on which the action is proposed to be taken together with the material relied upon, but also necessarily be informed precisely and specifically - 10 - of the nature of penalty to be imposed. This reasonable opportunity would include the opportunity to defend the allegation by cross- examining the complainant, if any, and witnesses, if any, whose statements are relied upon in support of the allegations as also to lead both documentary and oral evidence by examining himself on material and relevant witnesses to refute the allegations; (D) At the stage of issue of Show Cause Notice, the Authority has to form only a tentative or prima facie opinion based on the material that the person in respect of whom the show cause notice is issued has been persistently remiss in the discharge of his duties or misconducted himself or misused or abused the powers or exercised powers not expressly vested in him by Rules framed thereunder.

The Authority cannot foreclose its mind at that stage before considering the reply filed by the petitioner. In the instant case, the Show Cause Notice would indicate that the Respondent No.1 had already come to the conclusion and, consequently the opportunity offered was sham; (E) The Director of Panchayats exercising powers under Section 50(4) and 50(5) and Section 210 of - 11 - the Panchayat Raj Act, acts as a quasi-judicial authority and that being the case, he ought not to be a Judge in his own cause. In the instant case, the Respondent No.1 has relied on material gathered at the inspection conducted by himself. This by itself indicates that Respondent No.1 was biased. Considering the definition of "Director" in Section 2 of the Act, the doctrine of necessity also is not attracted. Inasmuch as the Respondent NO.1 did not recluse himself the Order is liable to be quashed and set aside. (F) The Respondent No.1 when discharges functions under Section 50(4) and 50(5) and Section 210-A of the Act has to act as quasi-judicial authority and the order passed must disclose reasons, more so in the absence of any remedy of appeal or revision.

Apart from disclosing the reasons in respect of the first part of sub-section (4) and (5) of Section 50 as to whether the petitioner is guilty, reasons have also to be given in support of the order disqualifying a party for a period upto five years; (G) The Show Cause Notice which has to be read into sub-section (4) and (5) of Section 50, apart from calling on the person to whom the notice is issued - 12 - to show cause in the matter of removal, must also call on the party to show cause as to why the maximum period of disqualification or ineligibility for election should not be imposed. In the instant case, this has not been done and, consequently, the order is liable to be quashed and set aside; On the other hand, on behalf of the Respondents it is contended that the Petitioner has been given sufficient opportunity. That it is not a requirement of this opportunity considering the Section that the Petitioner should be allowed to cross-examine the witnesses and/or to lead oral evidence.

It is next contended that sub-section itself provided for an opportunity. The question therefore of reading the principles of natural justice need not be gone into. It is the case of the Respondent No.1 that sub-section (4) and (5) themselves contemplate the maximum period for which a person can be disqualified or made ineligible for election which period can even go beyond the period of the term for which he was elected and that being the case, such a person knows the period for which he can be removed and, in these circumstances, it is not a requirement that a party must also be given an opportunity of showing cause in the Show - 13 - Cause Notice itself as to why he should not be removed for a period of five years. It is further clear from the said Show Cause Notice itself that it is not a decision and further does not foreclose or renders redundant the opportunity given to the Petitioner.

The Show Cause Notice is based on the materials on which the Respondent No.1 has come to prima facie conclusion and which have been dissolved to the petitioner. It is then contended that once reasons have been given for removal, no separate reasons are required to be given in so far as the period of disqualification or re-election as Sarpanch or a Member is concerned as it is purely consequential and at any rate reading of the order would disclose that there are reasons. The plea of bias as contended is merely an afterthought and raised belatedly and, at any rate, unsupported by material. It is further contended that the doctrine of necessity will apply as the power is conferred on the petitioner by Statute and it is the Director and the Director alone, who can exercise powers under sub-sections (4) and (5) of Section 50 of the Act. For the aforesaid reasons, it is contended that the order is not liable to be interfered with. - 14 -

Even from the application considering the averments set out therein, it is impossible to arrive at a conclusion that based on the said pleadings it is possible to accept the plea of bias. The plea of bias basically is based on the ground that materials gathered at the inspection were used to issue the show cause notice. The Section itself confers power on the Director of removal. This power can be exercised by the Director on complaint made or exercising his statutory duties by examining the records of the Panchayat that the Sarpanch or Deputy Sarpanch is not persistently remiss in the discharge of duties, etc. The Director is the watchdog on these matters. It is his duty to see that the Sarpanch/Deputy Sarpanch acts according to law. This would require inspection to be conducted. If such power is exercised it cannot lead to the conclusion of likelihood of bias. At any rate, that application was rejected after hearing the petitioner.

The Petitioner chose not to challenge the said order nor, for that matter, did the Petitioner chose to - 18 - participate under protest. The contention sought to be advanced is that there was hardly any time and in these circumstances that should not be held against the Petitioner. It is now a settled proposition of law that bias can be waived. See A. Sarana Vs. Lucknow University, A.I.R. Dr.Dr.Dr. A. Sarana Vs. Lucknow University, A. Sarana Vs. Lucknow University, 1976 S.C.2428 In the instant case, the Petitioner did not initially plead bias. In other words, it was not a case of initial bias. The objection was raised later on. In other words, it could only be on account of acts committed during the course of the proceedings. There is no material to show that the conduct of the Respondent No.1 was biased. It often happens that a party dissatisfied with orders merely with a view to prolong the proceedings raise a plea of bias to prevent a quasi judicial or judicial authority from passing orders.

The Authorities whether judicial, or quasi judicial, ordinarily should not succumb to such pressure tactics unless the the Authority was required to disclose some material which possibility could lead to a plea of likelihood of bias and for some reason or lapse could not disclose it or has a personal interest or proprietary interest or business interest or institutional interest in which event it is a normal rule that the Authority, judicial or - 19 - quasi-judicial, should recluse itself. In the instant case, there is no material which warranted the Respondent No.1 from reclusing himself. There is no difficulty in holding that the plea of bias could be raised against the Respondent No.1 even if he is discharging official duties and a writ of certiorari would be issued if a case is made out of real likelihood of bias. More importantly, the decision-making process has been conferred on Respondent No.1 as a statutory authority by the Panchayat Raj Act.

The legislature has conferred the power on the Director of Panchayats and not on any other person. That power also cannot be delegated. In other words, the doctrine of necessity would apply and the matter has to be heard and Show Cause Notice can be issued by the Respondent No.1 and the Respondent No.1 alone. The mere fact that the Director under the Act has to be appointed by the Government can be no answer. It is impossible to hold that merely because a plea of bias is taken the Government should go on changing the Director under the Act. To my mind, considering all these facts, no case has been made out insofar as the plea of bias is concerned and consequently, that contention is - 20 - liable to be rejected.