Gokal Chand vs The State

R.S. Pathak, C.J.—The Petitioner was elected Sarpanch of the Gram Panchayat Syri in 1964 and was elected as Chairman, Panchayat Samiti, Kandaghat in 1965. He has been suspended by the State Government by an order dated May 25, 1971 u/s 54 and Section 153 of the Himachal Pradesh Panchayati Raj Act, 1968. The Petitioner prays for the quashing of that order.

At the outset, the terms of the impugned order may be set out. It reads:

Whereas Shri Gokal Chand, while functioning as Sarpanch Gram Panchayat, Syri-cum-Chairman, Panchayat Samiti, Kandaghat, District Simla has not exhibited a good conduct in the discharge of his duties, as such, and is alleged to have misappropriated the funds of the Panchayat;

And whereas an inquiry u/s 54 and Section 153 of the Himachal Pradesh Panchayat Raj Act, 1968 is contemplated against him;

Now, therefore, the Government in terms of the provisions of Sections 54 and 153 of the Himachal Pradesh Panchayat Raj Act, 1968 hereby, place the said Shri Gokal Chand under suspension with immediate effect and order that the Sub-Divisional Officer (Civil), Kandaghat will conduct the inquiry and furnish his report to the Government through the Deputy Commissioner, Simla within one month. Shri Gokal Chand will hand over the complete charge of the offices of both the Sarpanch of the Gram Panchayat as well as Chairman, Panchayat Samiti, Kandaghat to the vice-President and vice-Chairman respectively of the Panchayat and Samiti.

P.K. MATTOO, Secretary to the Government of Himachal Pradesh.

The Petitioner challenges the validity of the order on the following grounds:

(1) There is no power in the State Government to suspend a Sarpanch of the Gram Panchayat or a Chairman of a Panchayat Samiti except during the course of an enquiry against him, and admittedly no enquiry had been commenced against the Petitioner on the date of the impugned order;

(2) Rule 77, Himachal Pradesh Gram Panchayat Rules, 1971 requires the State Government to give an opportunity to a Panch before suspending him to show cause why he should not be suspended, and admittedly no such opportunity was given before the impugned order was passed;

(3) as the Petitioner was elected Sarpanch of the Gram Panchayat and Chairman of the Panchayat Samiti before the Himachal Pradesh Panchayati Raj Act, 1968 was enacted, no action under that Act can be taken against him;

(4) the terms of the impugned order do not disclose any misconduct on the part of the Petitioner;

(5) the impugned order does not contain the record of the reasons for suspending the Petitioner; and (6) the impugned order has been made mala fide. Section 54 provides:

Suspension and removal of Panches of Gram Panchayat.--(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 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.

(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.

Explanation.--The expression ''misconduct'' in Clause (d) includes the failure of the Pradhan, without sufficient cause, to supply a copy of the order of the Gram Panchayat in an administrative case decided by it, within two weeks from the receipt of a valid application therefor....

Section 153 provides:

Suspension and removal of members (1) The Government may, during the course of an inquiry or for any reason if it so thinks proper, otherwise, suspend a member, Vice-Chairman or Chairman of a Panchayat Samiti or a member, Vice-Chairman or Chairman of Zila Parishad 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 enquiry.

(2). The Government may, after such enquiry as it may deem fit, remove any member, Vice-Chairman or Chairman of a Panchayat Samiti or member, Vice-Chairman or Chairman of a Zila Parishad who, in the opinion of the Government, has been guilty of misconduct in the discharge of his duties during his current tenure or any past tenure in such body ....

Section 54 deals with the suspension and removal of a Panch of a Gram Panchayat, while Section 153 deals with the suspension and removal of, among others, the Chairman of a Panchayat Samiti. In material particulars, the two provisions correspond substantially. Section 54 (1) confers the power to suspend a Panch. He may be suspended during the course of an enquiry. Or he may be suspended otherwise, that is to say, not during the course of an enquiry, and such suspension can be effected if the State Government or the Deputy Commissioner thinks it proper to suspend the Panch and for reasons to be recorded in writing. In either case, the suspension can only be for any of the reasons for which a Panch can be removed. On passing the order of suspension, the State Government or the Deputy Commissioner can debar the Panch from taking part in any act or proceedings of the Gram Panchayat during the period of suspension. The grounds for removing a Panch are detailed in Section 54 (2).

Section 153, as I have already pointed out, is in terms analogous to Section 54 except that it does not specifically provide for the recording of reasons in writing where the Government makes an order of suspension otherwise than during the course of an enquiry and further that the power of removal is exercised on the ground of mis-conduct in the discharge of duties.

The first contention that an order of suspension can be made only during the course of an enquiry is without force because plainly on the language of the section the suspension may also be otherwise than during the course of an enquiry. In other words, suspension may be ordered before the enquiry commences. There is good reason for providing that power. Not infrequently it may happen that the immediate suspension of the Panch or Chairman is necessary because of the peculiar circumstances of the case with a view to safeguard the property of the institution or to protect the effectiveness of the enquiry. I have been referred to the judgment of my brother C.R. Thakur, J. in Narain Singh v. State of Himachal Pradesh and Ors.19711 C.W.P. 123 of where he appears to have held that an decided on 7-3-1972. order of suspension can be made u/s 54 (1) only during the course of an enquiry. It seems that his attention was not drawn to that part of Section 54 (1) which sets out that suspension may be ordered even otherwise. Moreover, he observed in that case that there were no reasons disclosed in the impugned order which would justify placing the Petitioner under suspension.

The second contention that the Petitioner is entitled to an opportunity of showing cause why he should not be suspended is also without force. Such an opportunity is ordinarily contemplated in law where an order prejudicial to the rights of a person is passed. In the context, it can only be an order by way of punishment. In a case where the immediate suspension of the person is necessary, even before the commencement of an enquiry, compliance with Rule 77 could defeat the purpose of the suspension and could render it futile. That suspension can be imposed under the Act as a measure of punishment is clear from Section 57. u/s 57, the State Government or the Deputy Commissioner may suspend a Panch on the ground of a dishonest act committed by him during the period of 5 years preceding the date from which he assumed office as a Panch. It was suggested at one stage that the order of suspension contemplated u/s 54(1) could also be made by way of punishment, but it seems unnecessary to express any opinion on this point in the present case.

The third contention is that no order of suspension can be made under the Himachal Pradesh Panchayati Raj Act, 1960 because the Petitioner was elected Sarpanch of the Gram Panchayat and Chairman of the Panchayat Samiti before that Act was brought into force. It is not disputed that the Petitioner was elected to the offices which he holds under one or the other Act mentioned in Section 2 of the Himachal Pradesh Panchayati Raj Act, 1968 Section 257(a) of the Act of 1968 provides that notwithstanding the repeal of any of those Acts u/s 2, all Gram Sabhas, Gram Panchayats, Nyaya Panchayats and Panchayat Samitis constituted and functioning immediately before the commencement of the Act of 1968 would be deemed to be Gram Sabhas, Gram Panchayats, Nyaya Panchayats and Panchayat Samitis constituted and functioning under the provisions of the Act of 1968. Section 257(b) declares that anything done or any action taken including the Gram Sabhas, Gram Panchayats, Nyaya Panchayats and Panchayat Samitis constituted, shall be deemed, unless the State Government directs otherwise, to have been respectively done or taken or constituted under the corresponding provisions of the Act of 1968. Section 257(d) declares that the members elected or appointed to any Gram Panchayat, Nyaya Panchayat or Panchayat Samiti under any of the repealed Acts, shall continue to hold office till the expiry of their present term of office. Accordingly, the Petitioner as a Sarpanch and as a Chairman, being a member of the respective bodies mentioned u/s 257, would be deemed to be such member under the Act of 1968 and proceedings under that Act could be taken against him. In my opinion, the impugned order of suspension could be validly made against the Petitioner under the Act of 1968 even though he was elected before the Act came into force.

The fourth contention is that even if Section 54 applies, no reasons have been recorded in writing for making the order of suspension and, therefore, there is a contravention of Section 54. It is said that while Section 54 (1) requires the State Government to apply its mind before making the order of suspension, the impugned order does not disclose that it has done so. From the impugned order of suspension, it appears that the State Government was of opinion that the Petitioner had not "exhibited a good conduct in the discharge of his duties and was alleged to have misappropriated the funds of the Panchayat" and an enquiry was contemplated u/s 54 and Section 153 against him and, therefore, his immediate suspension was considered necessary. These are reasons good enough upon which the order of suspension could be made. Section 54 (1) and Section 153 (1) provide for an order of suspension for any of the reasons for which the person could be removed. One of the grounds detailed in Section 54 (2) is mis-conduct in the discharge of duties. That is also the ground set out in Section 153 (2). It cannot be denied that misappropriating the funds of the Panchayat would amount to such mis conduct. It is said that the word "misconduct" has not been used and instead the Petitioner was considered as not exhibiting good conduct. The language is no doubt inexact, but inexactitude apart, there is no reason to doubt what was intended to be conveyed. I would hold that according to the impugned order the Petitioner has been suspended for misconduct in the discharge of his duties.

For the same reasons, the fifth contention that the impugned order does not contain the record of reasons for the suspension can be shortly disposed of. The recitals in the order to which I have adverted, plainly set out the reasons.

Finally, it has been urged that the impugned order has been passed mala fide. It is alleged that the third Respondent, who belongs to the ruling Congress Party and is a Deputy Minister, was opposed in his election to the Legislative Assembly by the Petitioner who belongs to the Opposition Party, the Lok Raj Party, and for that reason, the Petitioner is being harassed. As an instance it is alleged that one Shri Krishan Singh was set up by the third Respondent to create trouble in a General Meeting of the Gram Sabha on November 15, 1970 when the Petitioner was present discharging his duties as the Sarpanch. It is said that instead of apprehending Shri Krishan Singh alone for breach of peace, the local police arrested the Petitioner also. The allegations have been denied by the third Respondent in the affidavit filed by him. In the absence of any definite material clearly pointing to that truth, the allegation made by the Petitioner cannot be accepted. It is then pointed out that the mala fide is proved from the circumstance that the Government did not apply its mind before making the order of suspension. Now, the original record placed before me by the learned Advocate-General, who appears for the Respondents, discloses that on March 17, 1969, the Director of Panchayats, Himachal Pradesh, wrote to the Inspector General of Police, Himachal Pradesh, mentioning that complaints had been received against the Petitioner alleging serious allegations of misappropriation of funds of the Gram Panchayat and the Panchayat Samiti and requesting that the matter should be enquired into through the Anti-Corruption Wing. A copy of the complaint from one Keshav Ram Verma alleging embezzlement of Panchayat funds was also forwarded subsequently. It appears that the Police commenced an enquiry and even seized certain Panchayat records. The Anti-Corruption Wing then submitted a detailed report covering several pages which is said to contain the details of misappropriation alleged to have been committed by the Petitioner. The letter of the Superintendent Police (Vigilance), Anti-Corruption Wing, to the Director of Vigilance is Annexure ''RX'' to the supplementary affidavit of Shri S.M. Kanwar, Joint Secretary to the State Government. The record also discloses a report dated May 12, 1971 by the Block Development Officer, Kandaghat. That report was considered by the Minister, Shri Hari Ram, on the next day. It was shortly thereafter that the impugned order of suspension was made. Upon that material, it is difficult to hold that the impugned order has been made arbitrarily and without the State Government applying its mind to the matter. There is nothing to suggest that the order of suspension was made mala fide.

Towards the end, it was urged that the allegation merely referred to the conduct of the Petitioner as Sarpanch of the Gram Panchayat and not in respect of his office as Chairman of the Panchayat Samiti and, therefore, the Petitioner could not be suspended from the latter office. This ground has not been taken in the writ petition and cannot, therefore, be allowed to be raised.

As none of the contentions appear to have substance, the writ petition fails and is accordingly dismissed. In the circumstances, however, there is no order as to costs.