Dalip Azad vs State Of H.P. & Ors

Jyotsna Rewal Dua, J

The petitioner has laid challenge to an order passed by the Divisional Commissioner, Shimla on 25.11.2023, dismissing his appeal against an order passed by the Deputy Commissioner, District Sirmaur on 28.06.2022. In terms of the order passed by the Deputy Commissioner, District Sirmaur, suspension of Pradhan, Gram Panchayat, Koti Dhiman (respondent No.5), was revoked.

The case of the petitioner is that;

2(i) Certain complaints against respondents no.5 to 7 i.e. Pradhan, Vice-Pradhan and Ward Members of Gram Panchayat, Koti Dhiman, Tehsil Dadahu, District Sirmour, respectively, were made by some villagers. One such complaint was filed by the petitioner. The allegation levelled against the aforementioned respondents was that they had mis-appropriated 600 cement bags, which were to be utilized for the development works of Panchayat Koti Dhiman.

2(ii) A preliminary inquiry was conducted in the complaints. The preliminary inquiry report was submitted on 27.01.2022. On the basis of preliminary inquiry report, the District Panchayat Officer, Sirmaur, suspended respondent no.5, vide office order dated 30.03.2022 under Section 145 of the Himachal Pradesh Panchayati Raj Act 1994 (The Act in short).

2(iii) Feeling aggrieved against her suspension, respondent no.5 assailed the order dated 30.03.2022, before the Deputy Commissioner, District Sirmaur, by filing appeal under Section 148 of the Act. Her appeal was accepted on 28.06.2022. While accepting her appeal, the appellate authority held that the inquiry report demonstrated that the cement bags had not been sold by the appellant (present respondent no.5). The cement bags were issued to the Up-Pradhan and Ward Member of Gram Panchayat, Koti Dhiman, under proper receipts. These cement bags were found actually stored at different places as per the availability of space. Apprehension of the complainants (including the present petitioner) that storage of cement bags in different places would mean that the same were intended to be sold, was not accepted by the appellate authority. It was also observed that for want of any evidence in that regard, no such intention could be discerned from the documents on record. The appellate authority also found that there was no notified godown available in Gram Panchayat, Koti Dhiman. Under the circumstances, the storage of cement meant for development works of Gram Panchayat, Koti Dhiman in other locations of Gram Panchayat was not unlawful, since, there was no evidence on record that Gram Panchayat, Koti Dhiman had its own store. The appellate authority also observed that the elected members of the concerned Gram Panchayat were not conversant with the Act, Rules and the procedure to be followed, therefore, it was the duty of Secretary, Gram Panchayat, to bring the procedure to the knowledge of elected members of the Gram Panchayat. No such communication of the Secretary, Gram Panchayat guiding the elected members of the Gram Panchayat in discharging their duties was found on the record. Taking note of facts and the submissions, the appellate authority i.e. Deputy Commissioner, District Sirmour, revoked the suspension of the Pradhan of concerned Gram Panchayat vide order dated 28.06.2022. Consequently, the order passed by the District Panchayat Officer Sirmaur on 30.03.2022, suspending respondent no.5 (Pradhan, Gram Panchayat, Koti Dhiman) was set aside.

2(iv) The petitioner assailed the order passed by the appellate authority by filing further appeal under Section 148 of the Act read with Rule 143 of the Himachal Pradesh Panchayati Raj Rules 1997 before the Divisional Commissioner Shimla. This appeal was dismissed on 25.11.2023.

In the above background, the petitioner has preferred this writ petition against the order dated 25.11.2023 inter-alia, seeking following substantive reliefs:-

“………….revocation of suspension vide order dated suspension of the respondent No. 5 to vide order dated 25.11.2023 and order dated 28.06.2022 passed by Deputy Commissioner Sirmour, H.P. in case No. 1 to 3/2022 and dismissal of the appeal Nos. 179 to 181/2022 by Ld. Divisional Commissioner Shimla-2 may kindly be quashed and set aside and the revocation of suspension of respondents No. 5 to 7 may kindly be maintained and the respondents No. may be removed from the posts of Panchayat President, Vice-President and Panchayat ward member on ground of violation of Panchayati Raj Act, which make respondent no. 5 to 7 guilty under section 146 of Panchayati Raj Act, 1994 for embezzlement of funds/ misappropriation of funds as well as similar other illegal acts.”

We have heard learned counsel for the petitioner.

In our considered view, no case for interference with the impugned order, is made out. This is for the following reasons:-

4(a) The petitioner is aggrieved against revocation of suspension of respondents no.5 to 7. In essence, the relief prayed for by the petitioner is that these respondents should remain suspended as “they are guilty of embezzlement of funds/mis-appropriation of funds as well as similar other illegal acts.”

4(b) As per the impugned order passed by the Divisional Commissioner, Shimla, neither the petitioner nor his learned counsel had attended the effective hearings of the case before the Divisional Commissioner on 24.06.2023, 22.07.2023, 28.07.2023, 11.08.2023 and 26.08.2023, when the arguments were heard and the matter was listed for final order.

Significantly, against the impugned order passed by the Divisional Commissioner, the petitioner has not even availed the alternative remedy available to him under the provisions of Section 148 of the H.P. Panchayti Raj Act 1994 and Rule 143 of H.P. Panchayati Raj Rules 1997. At the insistence of the petitioner, we have, however, examined the matter.

4(c) The Deputy Commissioner in his order dated 28.06.2022 revoking suspension of respondent No.5 had observed as under on facts:-

“7. I have gone through the record placed on case file as well as file of District Panchayat Officer, Sirmaur and given thoughtful consideration to the arguments heard. It is revealed from the enquiry reports that no cement bags were found sold by the Pradhan G.P. Koti Dhiman i.e. present appellant as indicated in the enquiry report dated 27-01-2022 submitted by the Block Development Officer, Sangrah. It is further found that these cement bags were issued to the Up Pradhan and Shri Kuldeep Singh, Member Ward No. 3 of G.P. Koti-Dhiman under proper receipts. These cement bags were found stored at different places as per the space available. The apprehension of the respondent including the caveator that the cement bags stored in different places were meant for sale purpose could not be accepted/proved as no such evidences were produced by them as well as no such record is on file; which substantiate these pleadings. Further, it is also found that there is no notified godown of G.P. Koti Dhiman to store the cement. Therefore, the storage of cement in other locations of G.P. is not illegal as there is no evidence on record that the G.P. Koti Dhiman has its own store. However, in the enquiry report it has been revealed that there is procedural lapses on the part of the present appellant such as there is no Gram Panchayat Resolution regarding issuing of cement bags to the Up-Pradhan and concerned members or storage of cement bags in the places where it has been stored. It is a fact that the elected members of the G.P.'s are not conversant with the Acts, Rules & procedures to be followed. It is the duty of the Secretary Gram Panchayat to bring all these procedures in the knowledge of the elected members of the Gram Panchayat. Further the Secretary Gram Panchayat has to see that all provisions of the Act, Rules and bye-laws made there under and all orders Issued by the Govt. or Director or any other competent authority are complied with by the Gram Panchayat. However, in this case no such advisory or communication is found on the record to have been issued by the Secretary, Gram Panchayat guiding the Gram Panchayat in discharging its duty as elected representatives. If any procedural irregularities are found despite his/her guidance then the Secretary who is responsible to the elected body for guiding/apprising it about the existing law and regulations should inform the competent authority to take action against the Gram Panchayat. But there is no evidence on record which shows that Secretary G.P. Koti-Dhiman has brought anything into the notice of the Gram Panchayat in this regard nor any communication was made to the Block Development Officer, Sangrah for taking action. Further, the contention of the Id. counsel for the appellant is that suspension of the Pradhan will lead to hampering of the developmental works of Gram Panchayat. These contentions of the Id. counsel also carry weight as the democratically elected representative is unable to discharge duties due to suspension. The Sub-Divisional Magistrate, Nahan has also reported vide letter dated 28-06-2022 that enquiry has been completed, however the report will be sent at the earliest possible. Thus, the revocation of suspension of the appellant will not lead to any interference/ obstruction in the enquiry.”

The Deputy Commissioner had held on facts that 600 cement bags, which as per petitioner’s allegations had been sold by respondents No.5 to 7, were actually found stored at different places in the concerned Gram Panchayat; Storage of 600 cement bags at different places was on account of there being no notified godown of Gram Panchayat, Koti Dhiman and the procedural requirements having not been brought to the notice of the elected members of the Gram Panchayat by the Secretary of the concerned Gram Panchayat. There was no embezzlement of the cement bags. There had been no mis-appropriation of the funds as alleged by the petitioner.

4(d) The impugned order dated 25.11.2023, passed by the Divisional Commissioner, Shimla, dismissing petitioner’s appeal against the Deputy Commissioner’s order dated 28.06.2022 makes it evident that during the pendency of the proceedings, the regular inquiry against the respondents was got conducted. In the regular inquiry, respondent No.5 was exonerated from the charges levelled against her. Respondent No.7-Ward Member of concerned Gram Panchayat was issued a warning to be careful in future.

In the given facts, when the regular inquiry had been concluded in the complaint filed by the petitioner, wherein respondent No.5 was exonerated and such inquiry report has been accepted by the competent authority, learned Divisional Commissioner, Shimla, was justified in observing that the appeal filed by the petitioner seeking continuation of suspension of the respondents on the strength of preliminary inquiry report had lost its sting. Petitioner’s appeal had been rendered infructuous on account of intervening developments. There was no option for the Divisional Commissioner, but to dismiss the appeal filed by the petitioner against revocation of respondent No.5’s suspension ordered by the Deputy Commissioner, District Sirmaur.

In view of above discussion, we fail to understand as to why the petitioner has moved this Court invoking Article 226 of the Constitution of India. The petition is nothing but an abuse of process of Court. For the aforesaid reasons, we do not find any merit in this writ petition and the same is dismissed with a cost of Rs.10,000/- to be deposited by the petitioner in the Chief Minister’s ‘Apda Rahat Kosh’ within four weeks. Pending miscellaneous applications, if any, shall also stand disposed of.