Jeet Ram vs The State of Himachal Pradesh

R.S. Pathak, C.J.—The Petitioner prays for relief under Article 226 of the Constitution against an order removing him from the office of Sarpanch and debarring him from contesting elections to any office of the Panchayat for three years.

The Petitioner held the office of Sarpanch in the Gram Panchayat, Kanair, Tehsil Kandaghat. The Director of Panchayats, Himachal Pradesh served a notice dated May 31, 1968 on the Petitioner stating that on enquiry made by the Assistant Director of Panchayat in April, 1968 on a complaint made against the Petitioner, it had been found that he was guilty of misconduct in the discharge of his duties on five counts detailed in the notice and directed him to show cause why he should not be removed from the office of Panch of the aforesaid Panchayat u/s 102 of the Punjab Gram Panchayat Act, 1952. The Petitioner replied to the notice on June 27, 1968 and explained the circumstances in which he had acted in respect of the facts mentioned in each count. He denied that he was guilty of misconduct in the discharge of his duties. Thereafter, on October 11, 1968 the Director of Panchayats made an order u/s 102 (2) of the aforesaid Act stating that it was expedient to conduct a further enquiry in the matter against the Petitioner, and he appointed the Sub-Divisional Officer (C), Kandaghat as the enquiry officer for that purpose. Subsequently, it appears the Sub-Divisional Officer expressed his inability to discharge that function and consequently on May 31, 1969 the Director of Panchayats appointed the Tehsildar Kandaghat in his place as the enquiry officer. The Tehsildar Kandaghat, conducted the enquiry and submitted his report to the Director of Panchayats. On June 30, 1970 the Director of Panchayats issued a notice to the Petitioner intimating that the Petitioner had been found guilty in the discharge of his duties on three of the five counts. They were:

he did not follow the prescribed procedure laid down under the Punjab Village Common Lands (Regulation) Rules, 1964 while leasing out the lands from the shamlat-deh of his Panchayat to various persons;

contrary to the provisions contained in Rule 6(1) (b) of the Punjab Village Common Lands (Regulation) Rules, 1964 he leased out a piece of land to his son, Shri Devi Ram, which was most serious and objectionable; and

while leasing out the lands from out of the shamlat-deh in Sari he had not kept in view the grazing rights of the people of that area with the result that public of that area has been put to great inconvenience in so far as their grazing rights were concerned.

These acts, it was stated, amounted to misconduct in the discharge of his official duties and, it was stated, his continuance as Sarpanch of the Panchayat was not considered desirable in the public interest. Accordingly, he was directed to show cause why he should not be removed from the office of Sarpanch of Kanair Panchayat u/s 102 of the aforesaid Act.

On receipt of the notice, the Petitioner applied to the Director of Panchayats against the conduct of the enquiry by the Tehsildar, Kandaghat alleging that he had not conducted it impartially. He followed this up with a letter reiterating that the enquiry should be assigned to the Sub-Divisional Officer (Civil), Kandaghat and also submitted a reply in respect of the three counts said to have been proved against him. The Petitioner says that he applied twice to the Director of Panchayats for a copy of the enquiry report of the Tehsildar, Kandaghat, but he was not given a copy. Instead, the Director of Panchayats passed an order dated November 12, 1970 u/s 102 (2) of the aforesaid Act removing the Petitioner from the office of Sarpanch and debarring him from contesting the election to any office of the Panchayat for three years.

The first contention of the Petitioner is that the enquiry proceeding was vitiated because it was conducted by the Tehsildar Kandaghat whereas the Director of Panchayats had, by his order dated October 11, 1968, appointed the Sub-Divisional Officer (Civil), Kandaghat as the enquiry officer. The contention is without substance, because it is clear from the record that by a subsequent order dated May 31, 1969 the Director of Panchayats appointed the Tehsildar, Kandaghat for that purpose in place of the Sub-Divisional Officer.

The second contention of the Petitioner is that the Tehsildar did not give notice to the Petitioner of the enquiry proceeding and did not allow him to cross examine the witnesses produced against him. As to that, there is no definite allegation to that effect in the writ petition and indeed in the course of his submissions learned Counsel for the Petitioner did not press this contention seriously.

The original records have been placed by the learned Advocate-General before me and they show that the Tehsildar, Shri Madan Sarup, summoned the Petitioner as well as Roop Ram and Smt. Mahu Panch, who had made allegations against the Petitioner, and gave them an opportunity to produce evidence in support of their respective cases. A number of witnesses were produced. The Petitioner produced the relevant Panchayat records in his defence. I have perused the enquiry report. It shows that the Tehsildar afforded adequate opportunity to the Petitioner to participate in the enquiry proceeding and there is nothing to justify the inference that any principle of natural justice was contravened. On the contrary, it gives evidence that an unprejudiced mind was applied and that the Tehsildar came to his conclusions fairly and impartially.

The third contention of the Petitioner is that even before the formal enquiry proceeding was commenced by the Tehsildar, the Director of Panchayats had already determined that the Petitioner was guilty of misconduct, and I have been referred to what is said in the notice dated May 31, 1968. The notice merely recites that in the preliminary enquiry made by the Assistant Director of Panchayats on April 19, 1968, it was found that the Petitioner was guilty of misconduct but that, as is plain from a reading of the document, merely refers to the opinion expressed by the Assistant Director as a result of the preliminary enquiry. There is no evidence whatever to show that the Director of Panchayats had made up his mind that the Petitioner was guilty of misconduct. For this reason, the case relied on by the Petitioner, G.P. Ghosh v. State of West Bengal 1968 (2) S.L.R. 625, is clearly distinguishable.

The fourth contention of the Petitioner is that after he was held guilty of misconduct by the Tehsildar, no opportunity was given to him to show cause against the penalty proposed. This contention is plainly without force. By the notice dated May 31, 1968, he was given an opportunity to present his case against the charges framed against him. It is true that the notice directed him to show cause why he should not be removed from the office of Panchayat, but there is no doubt that the intention disclosed was that he should produce his defence against those charges. The Petitioner submitted his reply to the different charges on June 27, 1968. Thereafter the Tehsildar, Kandaghat commenced the enquiry and the Petitioner participated in it. After the submission of the enquiry report by the Tehsildar, containing evidence that some of the charges had been proved, a further notice dated June 30, 1970 was given to the Petitioner that he had been found guilty of misconduct in respect of three charges and he should show cause why he should not be removed from office. It was thereafter that the impugned order dated November 12, 1970 removing him from office was made. The Petitioner relies upon State of Assam and Another Vs. Bimal Kumar Pandit, but on the facts of the present case it cannot be said that the principles laid down there have not been complied with.

The fifth contention of the Petitioner is that a copy of the enquiry report of the Tehsildar was not given to him although he had applied for it, and therefore, he could make no adequate reply against the proposal to remove him from office. It is admitted by the Respondents that a copy of the enquiry report was not supplied to the Petitioner. The question is whether the omission to do so has prejudiced the Petitioner. On a perusal of the enquiry report it is clear that the findings are based upon facts admitted by the Petitioner. Upon those facts he was found guilty of misconduct on three counts. Having regard to the facts specifically admitted by the Petitioner, in my opinion, it is not possible to say that the Petitioner was prejudiced by the omission to give him a copy of the report. It is not necessary that in every case a copy of the enquiry report must be given to the person against whom the enquiry is made. See Suresh Koshy George Vs. University of Kerala and Others, Learned Counsel for the Petitioner relies upon and State of Maharashtra v. Baishankar Avalram Joshi 1969 S.L.R. 268. The facts in those two cases do not bear any analogy with those of the present case.

The sixth contention is that when making the impugned order dated November 12, 1970 the Director of Panchayats did not set out the reasons upon which it was based and therefore, it is urged, the order is invalid. It is also urged that the reply of the Petitioner on the merits to the notice dated June 30, 1970 was not considered when making that order. Reliance is placed on Mehar Singh v. The State of Punjab 1971 P.L.R. 96 . It was held there that proceedings u/s 102(d) of the Punjab Gram Panchayat Act were quasi judicial in character and the reasons for an order under that provision should be disclosed. From a perusal of the original record it is clear that the office of the Directorate of Panchayats put up a note setting out the findings of the Tehsildar in complete detail as regards each charge. The Director apparently perused the note and approved the issue of a notice to the Petitioner to show cause against his removal. After receipt of the Petitioner''s reply a note was put up by the office on September 18, 1970 referring to the history of the case and the allegations of the Petitioner against the Tehsildar. It does appear that the note does not refer to the reply of the Petitioner dated September 22, 1970, but that apparently is because the Petitioner had been allowed time up to September 15, 1970 by the Director for submitting his reply and after the time granted had expired the note in question was prepared on September 18, 1970. The reply of the Petitioner dated September 22, 1970 was sent after the period granted for the purpose had expired, and clearly no complaint can be founded on the basis that it was not considered. Reference has been made by learned Counsel for the Petitioner to Ram Sarup Mohan Singh Vs. The Deputy Commissioner, Rohtak and Others, That case does not support the Petitioner at all. On the contrary, it lays down that if the Petitioner (who in that case was also a delinquent Sarpanch) does not take objection to the findings of the enquiry officer at the proper stage he cannot challenge those findings in a writ petition.

In my opinion, having regard to the reasons set out in the notes before the Director of Panchayats and his approval thereto, it cannot be said that no reasons were recorded for the impugned order. The reasons were also briefly recited in the opening portion of the order itself.

Therefore, none of the contentions raised by the Petitioner against the validity of the order removing him from the office of Sarpanch have any force. In my judgment, it has not been shown that the order of removal is invalid.

However, the impugned order dated November 12, 1970 does not merely remove the Petitioner from office. It also debars him from contesting elections to any office of the Panchayat for three years. The Petitioner urges that no opportunity was given to him to show cause against such an order and therefore that order cannot be sustained. Section 102(3) of the Punjab Gram Panchayat Act provides that a person removed u/s 102 (2) of the Act may be disqualified for re-election for such period not exceeding 5 years as the Government may fix. There is no evidence to show that an opportunity was given to the Petitioner to show cause against any action proposed u/s 102 (3) of the Act. In my opinion, the Petitioner was entitled to such an opportunity. The disqualification deprived the Petitioner of a right given to him by the Act, and there is nothing in the Act which says or necessarily implies that a person can be deprived of that right without notice to show cause against such deprivation. An order u/s 102 (3) of the Act does not automatically follow upon the order of removal u/s 102 (2). A discretion has been conferred upon the authority in the matter of imposing the disqualification contemplated by Section 102 (3), and it is open to a person against whom action is proposed to show cause either that the disqualification should not follow or that it should not extend over a long period. In my opinion, the circumstance that the Petitioner was not afforded such an opportunity invalidates the order disqualifying him for contesting an election to an office of the Panchayat. In that view I am fortified by the decision in Bijay Singh v. The Punjab State 1962 C.L.J. 32.

Accordingly, the writ petition is partly allowed. The order dated November 12, 1970 is quashed only in so far as it debars the Petitioner from contesting an election to an office of the Panchayat for three years. In the circumstances, there is no order as to costs.