Gokal Chand vs The State of H.P. etc.

Chet Ram Thakur, J.—Shri Gokal Chand has challenged the order (Annexure P), dated 26th December, 1973, whereby he had been placed under suspension from the Office of the Pradhan Gram Panchayat, Syri.

Syri village in Tehsil Kandaghat was prior to the 1st of November, 1966, a part of the State of Punjab and in the year 1964 he had been appointed as a Sarpanch of the Gram Panchayat Syri. Thereafter no fresh elections could be held till October/November, 1972, and as such he continued to be a Sarpanch of Gram Panchayat Syri. On 25th May, 1971, Shri P.K. Mattoo, the then Secretary to the Government of Himachal Pradesh passed an order purporting to be one under Sections 54 and 153 of the Himachal Pradesh Panchayati Raj Act (hereinafter referred to as the Act) to the effect that the Petitioner had not exhibited a good conduct in the discharge of his duties as a Sarpanch of the Gram Panchayat Syri and as a Chairman Panchayat Samiti Kandaghat. Further that he had been alleged to have misappropriated the funds of the Panchayat and it was averred that an enquiry was contemplated against him under Sections 54 and 153 of the Act and, therefore, he was placed under suspension, a copy of the same is Annexure ''A'' to this petition. The Petitioner filed a writ petition challenging this order. However, that writ petition was dismissed on the 3rd August, 1972, and against that order the Petitioner filed a Letters Patent Appeal No. 39 of 1972 which is still pending.

According to the Petitioner the previous order had been passed after collecting certain material behind his back at the instance of Shri Nek Ram Negi, who was elected to the Himachal Pradesh Assembly from the Kandaghat Reserved Constituency on Congress ticket. The Petitioner belonged to the Lok Raj Party and, therefore, Shri Nek Ram Negi got enquiry conducted against him and according to him the enquiry was conducted on as many as thirteen allegations and that on the basis of that enquiry under which there were certain allegations of embezzlement, F.I. Rs. Nos. 15 and 16 of 1971 had been registered against the Petitioner on the report submitted by the Inspector Vigilance and that these cases are still pending in the Court of the Judicial Magistrate, Kandaghat. It was on the basis of this enquiry, according to the Petitioner, that he was placed under suspension vide order Annexure ''A''. The enquiry proceedings initiated earlier on the basis of Annexure ''A'' are still pending before the Respondent No. 3.

In October/November, 1972, fresh elections to the Gram Panchayat Syri were held and the Petitioner was again elected as a Panch and thereafter as a Pradhan. After the elections the Petitioner had again started performing the functions of Pradhan of Gram Panchayat Syri but on the 5th of June, 1972, some interested persons, namely, Sarvshri Romesh Chand, Uttam Chand, Bharat Ram, Lachhmi Ram, Sunder Singh and Ram Rattan lodged a representation to the Revenue Minister to the Government of Himachal Pradesh, a copy of the same is Annexure ''C. The Petitioner was handed over a copy of this representation and he repudiated the charges. An inspection of Gram Panchayat Syri was conducted by the Respondent No. 3 on 29th March, 1973, but the inspection note was prepared mala fide at the instance of the interested persons including Shri Bhagwan Singh, M.L.A. The Petitioner submitted his reply to this inspection note also.

Respondent No. 3 on 16th October, 1973, issued a notice under Rule 77 of the Rules framed under the Himachal Pradesh Panchayati Raj Act and the Petitioner sent his reply repudiating the correctness of the same. But the Respondent No. 2 without considering the explanation furnished by the Petitioner and without applying his mind passed an order suspending the Petitioner, vide the impugned order Annexure ''P''.

The submission of the Petitioner is that the order (Annexure P) repeats the allegations and reasons detailed in Annexure ''A''. He had been re-elected as a Pradhan in November, 1972. Even before his re-election the enquiry proceedings were already pending before the Respondent No. 3. No act of misconduct was attributed to the Petitioner after his re-election and the orders of suspension had been repeated on the basis of old allegations. The misconduct in discharge of duties must be attributable to the Petitioner after his re-election and that the order is beyond the provisions of Section 54 of the Act.

The reply of the Respondents is that due to the misconduct of the Petitioner in the discharge of his duties and due to the fact that serious charges of misappropriation were under enquiry against him, his continuance in the office of the Pradhan was not considered desirable in the public interest as there were apprehensions of tempering with the record of the Panchayat which were the subject-matter of enquiry against the Petitioner. The power to suspend the Petitioner vests in Respondent No. 2 u/s 54 of the Act and is perfectly within jurisdiction. In these circumstances, the question is whether a Pradhan or a Panch who has been placed under suspension and against whom an enquiry is being conducted and is not completed and he is re-elected as a Panch or a Pradhan could he be placed under suspension u/s 54 of the Act. It is a common ground between the parties that the Petitioner has been placed under suspension under the provisions of Section 54 of the Act. However during the course of argument, the learned Advocate-General contended that this power was exercised u/s 57 of the Act. He was placed under suspension because of his misconduct during the period of five years preceding the date from which he assumed office as a Panch. But the learned Advocate-General cannot be permitted to cross the barriers of his pleadings as contained in Para 17 of the return wherein it is stated that the power to suspend the Petitioner vests in Respondent No. 2 u/s 54 of the Act and is perfectly within jurisdiction. Further in sub-para (b) of Para 17 of the return it has clearly been stated that Clause (d) of Sub-section (2) of Section 54 fully covers the action of Respondent No. 2 and that the impugned order is perfectly legal. Again the same contention is repeated in sub-paras (d), (g) and (i) of Para 17 of the return. Therefore, the learned Advocate-General cannot be permitted to contend that the action taken is u/s 57 of the Act. The action taken is clearly under the provisions of Section 54 or the Act as is the pleading of the Respondents.

Now, we have to see whether in these circumstances the Petitioner could be placed under suspension under the provisions of Section 54 of the Act when once he had been re-elected. Section 54 of the Act states that 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 Panch 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 that period and order him to hand over the records, money or any property of the said body to the persons authorised in this behalf. The grounds for removal are those as contained in Sub-section (2) of Section 54 of the Act. The reading of this section would, therefore, reveal that the action can be taken against a Panch under this section only for his lapses or for his misconduct committed by him during the tenure of his office as such and not for any lapses on his part or any act of misconduct committed by him during the previous tenure of his office as a Panch or as a Pradhan for which there is a specific section enacted as Section 57 of the Act. But the reply of the Respondents makes it specifically clear that it is not an action taken u/s 57 of the Act rather it is an action taken u/s 54 of the Act. In a Division Bench case Din Dayal v. The State of Punjab and Ors. 1966 C.L.J. 775 while considering the scope of Sections 102 and 6 (5) of the Punjab Gram Panchayat Act which is quite pari materia to Sections 54 and 9(5) of the Act relying on a decision in L.P.A. No. 23 of 1959, the State of Punjab v. Bakhtawar Singh where the scope of Section 16 of the Punjab Municipal Act and Rule 7 of the Rules framed thereunder which were identical to Section 102 and 6 (5) of the Punjab Gram Panchayat Act fell for consideration, it was held that a Panch could not be suspended or removed for misconduct committed by him during the tenure of his previous office. The facts of this case are on all fours with the facts of the case in hand. In these circumstances, I am of the view, that when the Respondents themselves aver that this was an action taken by the Respondents u/s 54 of the Act it must be shown that the Act was committed for which he was suspended during the tenure of his present office and not during the tenure of his previous office. It is apparent from a comparison of Annexure ''P'' and Annexure ''A'' as also the complaint (Annexure ''C'') that the allegations are the same, therefore, no action can be taken for any such past lapses. Action u/s 54 of the Act could be taken if the requirements mentioned thereunder had been satisfied.

These allegations as are contained in Annexure ''C relate to the lapses committed in the previous tenure and which had been a subject-matter of the writ petition which had been dismissed and which is still under appeal. Therefore, on that account also unless that matter is finally disposed of no action can be taken on the same cause of action under the provisions of Section 54 of the Act.

Therefore, in my opinion, the action taken vide Annexure ''P'' by the Respondent 2 is wholly had in law and the same is, therefore, liable to be quashed and which I hereby do. The Petitioner shall get his costs assessed at Rs. 100/- from the Respondents.