27 September 2020

For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

"Delegatus non potest delegare"


    The wording of the first proviso is in the form of a protection given to a person sought to be removed and therefore will have to be interpreted strictly. This is what precisely been discussed and laid down by this Court in the case of Nimba Yadav Bhoi (supra). After referring to various decisions for interpreting the scope and mandate of Section 39 of the Act, this Court has made following observations in paragraph no.26.
"26] Considering the provisions contained in Section 39(1) of the said Act, and the law on the subject matter discussed hereinabove, it is apparent that the enquiry under Section 39 of the said Act has necessarily to be conducted by the Chief Executive Officer and none else. Such enquiry has to be preceded by necessary order directing the Chief Executive Officer to hold the enquiry and such order should be necessarily issued by the President of the Zilla Parishad. Pursuant to such appointment, the Chief Executive Officer himself has to hear the person against whom the enquiry is to be conducted and based on such enquiry, the Chief Executive Officer has to prepare a report and submit the same to the President of the Zilla Parishad. All these requirements are mandatory in nature and any failure in that regard on the part of the authorities, the proceedings under Section 39(1) of the said Act would be vitiated and any order passed on the basis of such proceedings which are vitiated would be rendered null and void. Reverting to the facts of the case, undisputedly, the order of the removal of the petitioner from the office of Sarpanch was not preceded by any enquiry by the Chief Executive Officer. There was no order of the President appointing the Chief Executive Officer to enquire into the mater."
 
For removal of Sarpach from his post in Maharashtra, enquiry should be conducted by CEO of Z.P. himself and not by enquiry committee directed by him

  Since no contrary authority having been cited before me, I find no reason and justification from taking any other view. When it is a matter of taking a drastic action against a Sarpanch and the provision requires inquiry to be conducted by a Chief Executive Officer to whom it is delegated by the Commissioner respondent no.2 he could not have overlooked the fact that instead of the Chief Executive Officer, the inquiry was conducted by a 3 member committee as per the directions of the Chief Executive Officer. It is trite that delegatus non potest delegare. The Chief Executive Officer being the delegate of the Commissioner cannot further delegate the powers of holding the inquiry. When the Legislature in its wisdom has expected a superior officer to undertake the inquiry, in all probabilities because a drastic action against an elected Sarpanch is to be taken, the inquiry ought to have been conducted by the Chief Executive Officer himself. That having not been done, the lapse in my considered view goes to the root of the validity of the entire process.[Para No.13]

Bombay High Court

Amar Pundlik Nade
Vs.
State Of Maharashtra

Decided on 25/09/2020

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