Avinash Chand vs The State of Himachal Pradesh

V.K. Mehrotra, J.—Petitioner Shri Avinash Chand was elected as Pradhan of Gram Panchayat, Chanaur, in Tehsil Dehra, District Kangra and was reelected as Pradhan of the same Gram Panchayat in the month of September, 1985. He has been removed from the office of Pradhan by the State Government by an order dated July 6, 1988. A copy of that order is Annexure P-13 to the present writ petition.

The case of the Petitioner is that the order aforesaid is unsustainable on facts, as also on the ground that he was not allowed to participate in the inquiry said to have been conducted by the State Government, after issuance of the show cause notice, which rendered the order bad. In the view that I am taking, it is not necessary to notice the facts further or express any opinion on the plea raised by Shri K.D. Sood that the inquiry in the present case was vitiated for want of proper opportunity to the Petitioner.

Section 54 of the H.P. Panchayat Raj Act, 1968 (Act No. 19 of 1970) provides for suspension and removal, inter-alia of Pradhan from his office. It runs thus:

(1) The State Government or the Deputy Commissioner may, during the course of an enquiry or, if the State Government or the Deputy Commissioner so thinks proper, for any reason to be recorded in writing, otherwise, suspend a Pinch in the prescribed manner for any of the reasons for which he can be removed and debar him from taking part in any act or proceedings of the said body during the period and in case he is in possession of any records, money or any property of such body, order him to hand over such records, money or property to the Panchayat Secretary.

(2) The Government may, after such enquiry, as it may deem fit, remove any Panch:

(a) on any of the grounds mentioned in Sub-section (5) of Section 9;

(b) who refuses to act, or becomes incapable of acting, or is adjudged an insolvent;

(c) who, without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat;

(d) who in the opinion of the Government has been guilty of misconduct in the discharge of his duties.

(3) A person who has been removed under Sub-section (2) may be disqualified for re-election for such period not exceeding five years as the Government may fix.

(4) The Government may at any time revise, rescind or modify any order passed by it under Sub-section (1)(2) and (3) or by the Deputy Commissioner under Sub-section (1).

A perusal of this provision shows that the removal of a Panch, which includes a Pradhan on account of the definition of Panch contained in Section 3(1)(s) saying that:

"Panch" means a member of Gram Panchayat elected, appointed, or co-opted under this Act and includes a Pradhan or Up-Pradhan

can be ordered only if the State Government, after such inquiry as it may deem fit, finds that any of the grounds contemplated by Clause (a) to (d) of Section 54 (2) is made out.

Section 9 (5), referred to in Clause (a) mentions that:

No person who is not a member of the sabha and/or who:

(a) (i) is not a citizen of India, and

(ii) is less than 25 years of age;

(b) has been convicted of any offence involving moral turpitude unless a period of five years has elapsed since his conviction; or

(c) has been subjected to an order by a criminal court and which order, in the opinion of the officer to whom the Government has delegated its powers of removal, implies a defect of character unfitting him to be a Pradhan, Up-Pradhan or Panch unless a period of five years has elapsed since the date of orders; or

(cc) has been fond to have encroached upon any land belonging to, or taken on lease or requisitioned by, or on behalf, the State Government, Municipal Corporation, Municipal Committee, Notified Area Committee, Gram Panchayat, Panchayat Samiti, a Zila Parishad or a Co-operative Society;

(d) has been convicted of an election offence under any law for the time being in force; or

(e)has been ordered to give security for good behaviour u/s 110 of the Code of Criminal Procedure, 1973; or if

(f) has been notified as disqualified for appointment in public service, except on medical ground; or

(g) is a whole time salaried servant other than the persons employed casually or on daily wages, of any local authority or State Government or the Union of India; or

(h) is registered as a habitual offender under the Himachal Pradesh Habitual Offenders Act, 1969, or

(i) is an undercharged insolvent or

(j) has not paid the arrears of any tax imposed by the Gram Panchayat or the Panchayat Samiti; or

(k) is an employee of Sabha or Gram Panchayat; or

(l) is a member of either House of Parliament or of the Legislative Assembly of Himachal Pradesh; or

(m) is a tenant or lessee holding a tenancy or lease under the Gram Sabha or is in arrears of rent of any lease or tenancy held under the Gram Sabha, or is contractor of the Gram Sabha; or

(n) has been convicted of an offence punishable under the Protection of Civil Rights Act, 1955, unless a period of six years has elapsed since his conviction;

shall be entitled to stand for election as or continue to be, a Pradhan, Up-Pradhan or Panch.

Unless the State Government concludes, on the basis of the material before it and giving reasons there for, that any of the grounds envisaged by the various clauses of Section 54(2) is found established against a Pradhan, it cannot pass an order of his removal under that provision.

The fact that the State Government has found one or more of the factors envisaged by Clause (a) to (d) established in a case should appear from the order which it passes. The order, therefore, should not only contain enumeration of the accusation against the Pradhan but should also contain reasons, as known to law, for the JP conclusion arrived at by the State Government on the basis of the material on the record of the case before it.

''Reasons'', to borrow the words of the Supreme Court in Union of India (UOI) Vs. Mohan Lal Capoor and Others,

..are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose,how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable..

The requirement for giving of reasons by the State Government, for an order of removal u/s 54 (2), becomes all the more necessary because the order can visit the Pradhan not only with the penalty of losing his elective office for the term for which he is elected but may also visit him with a more drastic consequence of being disqualified for re-election for such period, not exceeding five years, as the Government may fix as is evident from Section 54 (3).

Where, as in the case of an order u/s 54 (2), the exercise of power is made dependent upon existence of certain exigencies alone, it is all the more necessary that the order should disclose application of mind on the part of the authority concerned to the relevant factors, ex-facie. The principle in this regard is hardly in doubt. Reference need only be made to the decisions of the Supreme Court in R.P. Bhatt v. Union of India and others MR 1986 S.C.1040) and Ram Chander Vs. Union of India (UOI) and Others,

The impugned order is in these terms:

Office order

Whereas Sh. Avinash Chand Pardhan suspended/Gram Panchayat Chanaur, Teh. Dehra Distt. Kangra has been found guilty of fixing his unauthorised lock in the Panchayat Ghar, taking away at his own will the current cash book, proceeding book. Pass book and muster roll register due to which the fixed meetings of 11-3-1986 and 15.3.1986 of Panchayat and Gram Sabha could not be held and due to the non-availability of record. The smooth working of Panchayat became impossible.

Whereas the said Pardhan has created obstruction for the set procedure of Rule 30 of Himachal Pradesh Panchayati Raj (General) Finance, Audit etc. Rules 1975, by keeping the audit note of Panchayat for the period 4/76 to 3/85 which was issued in Dec, 1985.

Whereas the said Pardhan is the guility of retaining Rs. 12,668.66 of Panchayat fund unauthorisedly and withdrawing money from Bank, Post Office and Co-Op. Society and depositing the same with the State Bank of India Badhal and Agriculture Co-Op. Society Badhal and thus disobeying the rules.

Whereas Addl. Deputy Commissioner Kangra suspended Sh. Avinash Chand from the post of Pradhan for above said activities on 18th Aug., 1986, with the result an enquiry was conducted which clears that Sh. Avinash Chand has disobeyed the Rule 4, 7, 30 of Himachal Pradesh Panchayati Raj (General) Finance, Budget, Accounts Audit Rules, 1975.

Where he was issued show cause notice with the even number dated 19th Nov., 1987 for termination to represent his side and the reply submitted by him was found unsatisfactory after consideration.

For the above said situation his remaining at the post of Pardhan is not in the public interest because Sh. Avinash Chand has been unable to run the working of the Panchayat smoothly.

Therefore, Governor, Himachal Pradesh u/s 54/2/D/of Panchayati Raj Act, 1968 is pleased to order immediately the termination of Sh. Avinash Chand Pardhan/Suspended/Gram Panchayat, Chanaur from his post.

Whereas he will handover the charge to Up-Pardhan, Gram Panchayat Chanaur. He will hand over the all record, property, if any, with him to Secy. Panchayat.

What is it that this order says. It only recites the accusations against the Petitioner and asserts, by way of reasons, that:

Whereas he was issued show cause notice with the even number dated 19th Nov., 1987 for termination to represent his side and the reply submitted by him was found unsatisfactory after consideration.

For the abovesaid situation his remaining at the post of Pardhan is not in the public interest because Sh. Avinash Chand has been unable to run the working of the Panchayat smoothly.

The recital in the aforesaid two paragraphs is a mere conclusion. There is hardly anything in this order to suggest that the State Government even attempted to go into the question whether the Petitioner could be said to have incurred liability for removal for any of the reasons contemplated by. Clause (a) to (d) of Section 54(2). There is not even a suggestion about the existence of any of the exigencies on the grounds contemplated by these clauses in the impugned order. Such an order can not be permitted to stand.

In conclusion, the petition succeeds. The order dated July 6, 1988 (Annexure R-13) removing the Petitioner from the office of Pradhan is quashed. The Petitioner will be entitled to his costs.