Hari Singh Sarpanch vs Commissioner-cum-Secretary, Govt of Haryana

G.S. Singhvi, J.—This is a petition for quashing the orders dated 1.12.1998 and 15.3.1999 passed by the Deputy Commissioner, Bhiwani (respondent No. 2) and the Financial Commissioner-cum-Secretary to Government, Haryana, Panchayats and Development Department (respondent No. 1) respectively.

The facts necessary for deciding the issue raised in the petition are that on the basis of findings recorded in the preliminary enquiry, respondent No. 2 directed the Sub Divisional Officer (Civil), Dadri to conduct a regular enquiry into the following allegations levelled against the petitioner:

" 1) That you have committed dereliction in your duty and have also misused your post by making a statement against the interest of Gram Panchayat in the Court of Shri R.K. Dogra, Civil Judge (Junior Division), Charkhi Dadri in case Sh. Ram- sarup son of Ramji Lal, Hansraj son of Shri Chand, Civil Suit No. 208 of 1996.

2) That you have promoted illegal possessions on the Shamlat land of Gram Panchayat and hence you have committed dereliction in your duty and have also misused your post."

In his report, the enquiry officer held the petitioner guilty of both the charges. After considering the said report, respondent No, 2 issued notice dated 8.10.1998 to the petitioner requiring him to show cause as to why he may not be removed from the office of Sarpanch. In the reply dated 27.10.1998 filed by him, the petitioner not only controverted the allegations levelled against him but also challenged the finding recorded by the enquiry officer. However, without considering his assertion that he had not made any statement in the Court of Shri R.K. Dogra, Civil Judge (JuniorDivision),Charki Dadri in Civil Suit No. 208 of 1996, respondent No. 2 passed the order (Annexure P.1) dated 1.12.1998 u/s 51 (3) of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as ''the Act'') removing the petitioner from the office of Sarpanch of Gram Panchayat Dhanasari. Respondent No. 1 upheld the petitioner''s removal and dismissed his appeal,

The petitioner has challenged the impugned orders mainly on the grounds of violation of the principles of natural justice, arbitrary exercise of power and non-application of mind by respondent No. 1 and 2.

In the written statement filed by respondent No. 2 on behalf of himself and respondent No. 1, it has been averred that the petitioner has been removed from the office of Sarpanch on being found guilty of having connived with unauthorised occupants of shamlat land.

We have heard Shri S.S. Dinarpur, learned counsel for the petitioner and Shri Jaswant Singh,.Deputy Advocate General, Haryana and have perused the record.

At the outset, we deem it proper to take notice of the statement made by the learned Deputy Advocate General that the allegation levelled against the petitioner of having made statement in the Court of Shri R.K. Dogra, Civil Judge (Junior Division), Charkhi Dadri against the interest of the Gram Panchayat cannot be treated as proved because no evidence was produced to prove that the petitioner had made a statement in the Court adversely affecting the interest of the Gram Panchayat. We appreciate the candidness with which the learned Deputy Advocate General has stated that charge No. 1 levelled against the petitioner cannot be held as proved, but at the same time, we deem it necessary to observe that if the learned Deputy Advocate General had not made such statement, we would have quashed the finding recorded by the respondents because the petitioner had, in fact, not made any statement in the Court adversely affecting the interest of the Gram Panchayat. The enquiry file produced by Shri Jaswant Singh clearly supports this conclusion. In fact, the Gram Panchayat had filed written statement opposing the claim made by plaintiffs-Ram Sarup and Hans Raj.

In respect of the second charge, it is sufficient to observe that not an iota of evidence was produced by the department before the enquiry officer to prove that the petitioner had promoted illegal possession on the shamlat land of Gram Panchayat. In the impugned orders also, respondents No, 1 and 2 have not referred to any such evidence. Thus, there is no escape from the conclusion that the finding recorded by the enquiry officer in respect of charge No. 2 is not based on any evidence and as such it has to be regarded as perverse. As a logical corollary to this, it has to be held that the impugned order suffers from an error of law apparent on the face of record.

In so far as the appellate order is concerned, we are of the view that the same deserves to the nullified on an additional ground i.e. violation of the rule of audi al-teram partem. A careful reading of the order passed by respondent No. 1 shows that in his anxiety to sustain the petitioner''s removal from the office of Sarpanch, the said respondent recorded a finding on an allegation which was not subject matter of enquiry. He held the petitioner guilty of having failed to take steps to challenge the order passed by the Civil Court in favour of Ram Sarup and Hans Raj. This is clearly borne out from the following observations made in the appellate order:

"....Instead of not opposing the stay application the appellant was supposed to challenge the order of the civil Court on the ground of jurisdiction because as per Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961 the civil Court has no jurisdiction qua the land vested in the Gram Panchayat and the order passed by officer without jurisdiction can be ignored and there is no need to set aside such order as per the ruling cited as 1977 P.L.J. 81, Head Note (f) Chanan Mal Newar and others v. State of Haryana and others......"

In our opinion, respondent No. 1 could not have recorded an adverse finding against the petitioner on a charge in respect of which the Sub Divisional Officer did not make any enquiry and qua which the petitioner did not get an opportunity of defence. We, therefore, hold that the order passed by respondent No. 1 is vitiated due to violation of the principles of natural justice.

For the reasons mentioned above, the writ petition is allowed. Order Annexures P.1 and P.2 are quashed. Consequently, the petitioner shall automatically become entitled to be reinstated in the office of Sarpanch.

Writ petition allowed.