IN THE HIGH COURT OF JUDICATURE AT PATNA

(Civil Writ Jurisdiction Case)

C.W.J.C. No. _________ of 2014

Bechan Paswan ............... Petitioner

Vs.

The State of Bihar & Ors. ............. Respondents

Statement of Facts for filing Counter Affidavit on behalf of Respondent

no. 2, the Principal Secretary, Panchayati Raj Department, Govt. of Bihar,
Patna and Respondent no. 3, the Director, Panchayati Raj, Govt. of Bihar,
Patna

1. That the present writ application has been filed on behalf of the
petitioner for issuance of appropriate direction(s)/order(s)/writ(s) for
following reliefs:

(i) For direction upon the respondents to conduct an enquiry of the

developmental work taken place in Pirhi Gram Panchayat at the
instance of Mukhiya and the Panchayat Secretary as allegedly no
work has taken place.
(ii) For other consequential reliefs.

2. That it is humbly submitted that the petitioner did not file any petition
under Rule 4(3) of the Bihar Panchayat (Inspection of Offices and
Inquiry into Affairs, Supervision and Guidelines) Rules, 2014 before the
concerned District Magistrate and as such the present writ petition is not
maintainable as an alternate statutory remedy has not been exhausted by
the Petitioner. Rule 4(3) provides that “The District Magistrate may
order inquiry only into such affairs in which complaints have been
received against Mukhiya or Up- Mukhiya or members or Executive
officer of a Panchayat Samiti with regard to not discharging functions
according to the Provisions of the Act, ignoring or wilfully omitting the
directions of the government or competent authority or committing
financial irregularities. Such an inquiry may be initiated on the basis of
complaints directly to the District Magistrate or complaints given to Sub
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Divisional Officer/District Panchayat Raj Officer/Deputy Development

Commissioner and or other officials /Public Servants/ public
representatives during filed visits or forwarded to the District
Magistrate. Order for inquiry on the basis of vague and misleading
complaints shall be avoided. The District Magistrate may also order for
necessary and appropriate inquiry on order by the State Government.”

3. That it is humbly submitted that in view of the nature and contents of the
writ application para-wise reply is not being given and in place thereof
only the necessary and relevant facts are being submitted which concern
the answering respondents and are necessary for proper adjudication of
this case.

4. That without prejudice to the generality of the statements made

hereinafter in this counter affidavit, the answering respondents deny and
refute all contentions and allegations of the petitioner in the writ
application under reply, which are either against provisions of
Acts/Rules/Government decisions or are contrary to the interest of the
answering respondents except to the extent that the same are specifically
admitted hereinafter.

5. That, it is pertinent to mention here that the removal of Mukhiya is a

quasi judicial procedure and the procedural paraphernalia have been
settled in law by this Hon’ble Court as well as the Apex Court. In view
of the issues settled in law, a general direction has been issued by the,
Panchayati Raj Department, Government of Bihar vide letter no 8088
dated 07.11.2014 to all the District Magistrates to proceed in the matter
of any allegation against elected Mukhiya of a Gram Panchayat. It is
provided there that before initiating enquiry the DM shall verify and
obtain an affidavit from the complaint that the complains are true and he
is already to furnish evidences/documents in support of the complaint, if
required so the enquiry must be conducted in accordance with the
provisions of the Bihar Panchayat (Inspection of offices and enquiry into
affairs, suspension and evidence) Rules, 2014. It is, however, submitted
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that a Mukhiya can be removed by the State Government as per

provision under Sub-section 5 of Section 18 of the Bihar Panchayat Raj
Act, 2006 on the following charges:

(i) a Mukhiya or Up-Mukhiya of Gram Panchayat absents himself

without sufficient cause for more than three consecutive meetings or
sittings or
(ii) willfully omits or refuses to perform his duties and functions under
this Act, or
(iii) abuses the power vested in him or
(iv) is found to be guilty of misconduct in the discharge of his duties or
(v) becomes physically or mentally incapacitated for performing his
duties or
(vi) is absconding being an accused in a criminal case for more than six
months,
A photocopy of Letter no. 8088 dated
07.11.2014 is annexed hereto marked
as Annexure A.

6. That it is also submitted that it has been clarified in para 7 of the

departmental letter 8088 dated 07.11.2014 that the complaint of a
cognizable offence may be registered directly with the police by any
person. It shall be mandatory for the police under Cr.P.C to register an
FIR and make necessary investigation if a clear complaint regarding
corruption or misappropriation of government money by Panchayats.
After Completion of investigation, it’s mandatory for the police to file a
charge sheet against the public servant after sanction of prosecution
from the competent authority, otherwise no cognizance may be taken by
Court even after filing of charge sheet and no prosecution can be carried.
7. That it is humbly submitted that the Rule 4(3) of the Bihar Panchayat
(Inspection of Offices and Inquiry into Affairs, Supervision and
Guidelines) Rules, 2014 provides that “The District Magistrate may
order inquiry only into such affairs in which complaints have been
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received against Mukhiya or Up- Mukhiya or members or Executive

officer of a Panchayat Samiti with regard to not discharging functions
according to the Provisions of the Act, ignoring or wilfully omitting the
directions of the government or competent authority or committing
financial irregularities. Such an inquiry may be initiated on the basis of
complaints directly to the District Magistrate or complaints given to Sub
Divisional Officer/District Panchayat Raj Officer/Deputy Development
Commissioner and or other officials /Public Servants/ public
representatives during filed visits or forwarded to the District
Magistrate. Order for inquiry on the basis of vague and misleading
complaints shall be avoided. The District Magistrate may also order for
necessary and appropriate inquiry on order by the State Government.”
8. That in respect to the prayer made in the writ petition regarding
direction to the respondents for lodging FIR, the following observation
of the Division Bench of the Hon’ble Patna High Court in the writ
petitions CWJC No. 21443/2012 Nagrik Adhikar Manch Vs the State of
Bihar and others with CWJC No. 12456/2013 Rajneesh Kumar Vs the
State of Bihar and others, in its judgment dated 23.02.2015 is pertinent-
“We are of the view that except that a general direction be issued to be
ensure that purchases are made in Accordance with law, it is not at all
possible to issue any specific direction such as institution of FIR or
passing of orders for taking any penal actions. If such proceedings are
initiated under compulsion through the Court the rights of genuine
persons are bound to suffer.
We, therefore, dispose of CWJC No. 21443 of 2012 directing that in the
event of purchase of any solar lights turning to be not in accordance
with law, necessary steps be taken strictly in accordance with law.
CWJC No. 12456 of 2013 is disposed of with a direction that steps must
be taken for installation of solar lights of standard quality in the villages
mentioned therein within a period of three months following the
prescribed procedure, if not already installed.
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We make it clear that whenever action is taken, it shall be tested on its

own merits unimpressed by any observations made by this Court at any
stage. Both the writ petitions are disposed of with the above
observations”
9. With due regard to the Hon’ble Court, it is humbly submitted that
Section 39 of the Criminal Procedure Code (Act II of 1974) provides
that every person aware of the commission of, or of the intention of any
other person to commit, any offence punishable under any of the
prescribed sections of Indian Penal Code (Act 45 of 1860) shall, in the
absence of any reasonable excuse, the burden of proving which excuse
shall lie upon the person so aware, forthwith given information to the
nearest Magistrate or police officer of such commission or intention.
10. That it is further submitted that Panchayat Secretary is a district level
post, appointed under Section 32 of the Bihar Panchayat Raj Act 2006
(hereinafter referred to as ‘the Act, 2006’) and their service conditions
are regulated by the Bihar Gram Panchayat (Appointment of Secretary,
Rights and Duties) Rules, 2011 (hereinafter referred to as ‘the Rules,
2011’) made under the Act, 2006. Under rule 4(3) of the Rules, 2011,
District Magistrate concerned is the appointing authority. Under rule 9
of the Rules, 2011, Panchayat Secretary is a State employee, hence, the
matter related to their services shall be disposed of in accordance with
the provisions of the relevant service rules, especially matter of
disciplinary action against Panchayat Secretary is to be taken in
accordance with the provisions of the Bihar Government Servant
(Classification, Control and Appeal) Rules, 2005 (hereinafter referred to
as ‘the Government Servant Classification Rules, 2005’) as per
provision under rule, 12 of the Rules, 2011.
11. That in view of the statutory provisions as stated above, it is humbly
submitted that the answering respondent has no role to play in the
disciplinary proceeding against Mukhiya or Panchayat Secretary. It is
humbly submitted that concerned District Magistrate is the competent
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authority to take action Mukhiya or Panchayat Secretary and thus

answerable to this Hon’ble Court.
12. That the Hon’ble Court may appreciate that the answering Department
vide Letter No. 9881 dated 17.12.2014 to the District Magistrate,
Madhubani requested to enquire into the allegations raised by the
Petitioner and file a counter affidavit in the instant case.
A photocopy of 9881 dated
17.12.2014 is annexed hereto marked
as Annexure B.

13. That the Deponent craves leave of this Hon’ble Court to file a detailed
reply as and when need arises or so directed by this Hon'ble Court.

14. That in view of the facts and circumstances as stated above this Hon’ble
Court may kindly be pleased to dispose of the writ application.