Mangtu Ram vs State of Haryana and others

M. Rama Jois, C.J.—In all these writ petitions, in which the orders of suspension passed by the Deputy Commissioner of the concerned district, suspending members of the Panchayats during the pendency of an enquiry instituted against each of them under S. 102 of the Punjab Gram Panchayat Act, 1953, as applicable to the State of Haryana, the following two questions of law arise for consideration :--

Whether a Deputy Commissioner to whom the power to remove a Panch conferred on the Director of Panchayat under subsection (2) of S. 102, is delegated by notification issued under S. 95(2) of the Act, has no power to pass an order instituting an enquiry against a Panch and to pass an order of suspension pending such enquiry; and

Whether the power to remove a Panch under sub-section (2) of S. 102 of the Act delegated to a Deputy Commissioner, in conformity with Section 95(2) of the Act, comes to an end on the transfer of the person who was the Director at the time of issuing the notification under S. 95(2).

The above common questions of law arise for consideration in CWP 12830 of 1989 as also in other petitions numbered above, and therefore, they are being disposed of by this common order. For the purpose of answering the questions, it is sufficient to refer to the facts in one of the cases. Therefore, in this order, we refer to the facts as given in C.W.P. No. 12830 of 1989.

2-3. The petitioner in this writ petition was elected as a Sarpanch of the Panchayat Dab Dhani in the election held in August, 1988. S. 102 of the Act, as applicable to the State of Haryana provides for the suspension and removal of Panches. The relevant portion of the said section reads:--

"The Director may suspend any Panch where a case against him in respect of any criminal offence is under investigation, enquiry or trial, if in the opinion of the Director the charges made or proceedings taken against him is likely to embarass him in the discharge of his duties or involves moral turpitude or defect of character.

(1-A) The Director (or Deputy Commissioner) may during the course of an enquiry, suspend a Panch for any of the reasons for which he can be removed.

(1-B) A Panch suspended under this section shall not take part in any act or proceedings of the Panchayat during the period of suspension and shall hand over the records, money or any other property of the Panchayat in his possession or under his control to the person authorised by the (Panch commanding majority in the Panchayat).

The Director may, after such enquiry as he may deem fit remove any Panch,--

(a) on any of the grounds mentioned in subsection (5) of Section 5;

(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, or the Adalti Panchayat, as the case may be;

(d) who, in the opinion of the Director has been guilty of misconduct in the discharge of his duties during his past or present tenure;

(e) whose continuance in office is, in the opinion of the Director, undesirable in the interests of the public.

Explanation-- ** ** *

(i) and (ii) *** **

(3) to (4) *** **

(5) Any person aggrieved by an order passed under this section may, within a period of thirty days from the date of communication of the order, prefer an appeal to the Government."

As can be seen from the above, sub-sec. (I-A) empowers the Director or the Deputy Commissioner to suspend a Panch for any of the reasons for which he can be removed, but the said power can be exercised only duing the course of enquiry. Therefore, there is no controversy that the power to place a Panch under suspension could be exercised under S. 102(A) of the Act only after an enquiry for his removal is instituted and is pending. Under sub-section (2), the power to remove a Panch is conferred on the Director for the reasons set out in clauses (a) to (e) of subsection (2) and the order of removal could be made only after such enquiry as the Director may deem fit.

Section 95 of the Act, provides for the delegation of powers. Sub-section (2) of S. 95, which is relevant to these cases reads:

"(2) The Director may, with the previous permission of Government, delegate any of his powers, other than those delegated to him, to an officer not below the rank of District Panchayat Officer."

In view of sub-sec. (2), the Director is given the power to delegate any of his powers under the Act with the previous permission of the Government excepting the powers delegated to him. Such delegation could only be made in favour of an officer not below the rank of District Panchayat Officer. On June 3, 1980, the Director, Panchayats, Haryana, delegated his powers exercisable under sub-sections (2) and (3) of S. 102 of the Act, to the Deputy Commissioners within their respective jurisdiction. That notification reads:

"In exercise of the powers conferred by sub-sec. (2) of S. 95 of the Punjab Gram Panchayat Act, 1952, Punjab Act 4 of 1953 and with the previous permission of the Govt. I, K.S. Bhoria, Director of Panchayat, Haryana, do hereby delegate my powers, in respect of removal and disqualification of any Panch exercisable under sub-sections (2) and (3) of S. 102 of the said Act, to the Deputy Commissioner within their respective jurisdiction."

By this notification, the power to remove a Panch on any of the grounds, mentioned in clauses (a) to (e) of sub-sec. (2) of S. 102 of the Act, stood conferred on the Deputy Commissioner of the District concerned.

The Deputy Commissioner in the exercise of his powers under sub-sec. (2) of S. 102 of the Act, as delegated to him by notification issued under sub-sec. (2) of S. 95, made an order on September 18, 1988, against the petitioner. The order reads: --

"A preliminary enquiry against Shri Mangtu Ram Sarpanch, Gram Panchayat, Dab Dhani, Block Tosham, was conducted through S.D.O. (C) Bhiwani and the following charges were prima facie proved against him :

That on khasra No. 69(3/1) and (8/2) measuring 9 kanals 11 marlas Dhan Raj S/o Mangtu Ram was found in cultivating possession. As per revenue records this land has been shown in verbal exchange with khasra No. 4/17. Khasra No. 4/17 belongs to Dhan Raj S/o Mangtu Ram and khasra No. 69(7/5) and (8/1) is the common land of Mandir Radhe Shyam and Panchayat. This exchange has been done on verification of Sarpanch and Lambardar Banwari. In this way you have caused loss to the Panchayat by the exchange without following the rules.

That the common land of the village is in unauthorised occupation of the villagers. The Sarpanch has not performed his duties satisfactorily by not initiating action for eviction.

That the Sarpanch has misused his power by taking some pan of the land of Hawa Singh included in the Gau Ghat.

Therefore, I, Ranjit Singh, IAS, Deputy Commissioner, Bhiwani by exercising the powers u/ S. 102(2)(d) of the Gram Panchayat Act, order the enquiry against Sh.Mangtu Ram, Sarpanch, Gram Panchayat Dab Dahni and appoint S.D.O. (Civil) Shiwani as the Enquiry Officer, I also order that the Sarpanch will send his reply to the charges within 15 days direct to the Enquiry Officer failing which the Enquiry Officer shall be competent to proceed ex parte."

As can be seen from the contents of the order, the Deputy Commissioner was of the opinion that there was a prima facie case for holding enquiry into the charges set out in the order against the petitioner and by the same order he appointed Sub-Divisional Officer (Civil) Shiwani, as the Enquiry Officer. The Deputy Commissioner having passed the above order made another order on the same date placing the petitioner under suspension. A copy of the order is produced as Annexure P.5. It reads :--

"Shri Mangtu Ram, Sarpanch, Gram Panchayat, Dab Dhani Block Tosham has, vide this office order No. 11967-70/Panchayat, dated 26-9-1989, been charge sheeted u/S. 102(2) of the Punjab Gram Panchayat Act, 1952, and S.D.O. (C) Shiwani, has been appointed as Enquiry Officer.

The charges arc of serious nature and under these charges the Sarpanch can be removed from bis post under the provisions of Section 102(2) of the Gram Panchayat Act, 1952. For carrying out the work of the Gram Panchayat and for conducting the enquiry proceedings properly, I deem it fit to place the Sarpanch under suspension.

Therefore, I Ranjit Singh, IAS, Deputy Commissioner, Bhiwani, exercising the powers u/S. 102(I-A) of the Punjab Gram Panchayat Act, 1952, suspend Shri Mangtu Ram, Sarpanch, Gram Panchayat, Dab Dhani, under the provisions of S. 102(1-B) of the Gram Panchayat Act, 1952. I debar him from taking part in meeting of the Gram Panchayat. I also hereby order that the Sarpanch will hand over the cash, record and other articles of Panchayat in his possession, to a Panch having majority."

It is the legality of the order instituting the enquiry as also the order of suspension made against him, that is questioned in this writ petition.

The learned counsel for the petitioner contended that the power to institute an enquiry is vested in the Director only, under sub-sec. (2) of S. 102 of the Act and that the said power has not been delegated by the notification issued by the Director under sub-sec. (2) of S. 95 of the Act. Elaborating the submission on the first question the learned counsel for the petitioners submitted as follows:--

Sub-sec. (2) of S.102 of the Act, confers on the Director, two specific powers. Firstly, it confers the power on the Director to institute an enquiry against a panch; secondly, it confers power on the Director to pass an order of removal of a Ranch on any of the grounds mentioned in clauses (a) to (e) of sub-section (2) of Section 102. Under the notification dated June 3, 1980 (Annexure P-6), issued under sub-section (2) of Section 95 of the Act, only one of the powers, i.e., the power to remove a Panch has been delegated to the Deputy Commissioner, and, therefore, the power to institute an enquiry continued with the Director. As under S. 102(1-A), an order suspending a Panch could only be made during the pedency of an enquiry and as no enquiry had been instituted by the Director who alone was competent to do so, the order of suspension has to be declared as having been made without authority of law.

On the second question, the learned counsel submitted as follows:

The notification issued under S. 95(2) reads:--

"...I, K.S. Bhoria, Director of Panchayat Haryana, do hereby delegate my powers, in respect of removal and disqualification of any Panch exercisable under sub-sections (2) and (3) of S. 102 of the said Act, to the Deputy Commissioners within their respective jurisdiction."

In view of the wording of the notification, it is clear that Shri K. S. Bhoria, who was the Director at the relevant point of time, delegated his powers and, therefore, the moment he was transferred from the post of Director, the delegation ceased to have any effect.

We consider the second question first. In our opinion, there is no substance in this submission made by the learned counsel for the petitioners. Sub-sec. (2) of S. 95 of the Act expressly confers powers on the Director to delegate any of his powers except the powers delegated to him under the Act. The power of removal of a Panch under sub-sec. (2) of S. 102 of the Act is one of the powers conferred on him. For delegating the powers, the only condition imposed in sub-sec. (2) of S. 95 of the Act, is to secure the permission of the Government before issuing a notification under S. 95(2) of the Act. In the notification it is expressly stated that the Director had secured the previous permission of the Government to effect the delegation. The delegation made is, therefore, in conformity with sub-sec. (2) of S. 95. When in the notification it is stated that the Director was delegating his powers to the Deputy Commissioner, it clearly means that it was the power of the Director that was delegated to the Deputy Commissioner, and not the power of the then Director and only for the period during which he continued in the said office. Therefore, the second question has to be answered in the negative.

Now coming to the argument addressed with reference to the first question, we are of the view that there is no merit in the arguments advanced by the learned counsel for the petitioners. In our opinion, the power to remove conferred under sub-sec. (2) of S. 102 of the Act, having regard to the language of the said provision, has to be exercised only after an enquiry. Therefore, it there was no delegation of powers conferred under sub-section (2) of S. 102 of the Act, on the Director, to the Deputy Commissioner by issuing a notification under sub-section (2) of Section 95, it would be the Director and the Director alone who would be competent to institute an enquiry for the purpose of removal of a Panch and after such an enquiry if the Director were to be of the opinion that having regard to the findings on the charges against a Panch, he should be removed from the office of the Panch, he alone could proceed to pass an order of removal. If, on the other hand, as has happended in this case, the power of the Director to remove a Panch, is delegated to the Deputy Commissioner, the same condition mentioned in sub-section (2) of Section 102 of the Act applies; namely, that the removal of the Panch could be made only after an enquiry by the Deputy Commissioner. In other words, the power to remove and power to hold an enquiry are inseparable powers. Therefore, we are of the view that the contention of the petitioner that only the power to remove a Panch has been delegated to the Deputy Commissioner and the power to institute an enquiry is retained with the Director, is without merit Such a bifurcation of powers is impossible for the reason that no order of removal can be made either by the Director or by a Deputy Commissioner without holding a valid enquiry and, therefore, when the power to remove has been delegated to a Deputy Commissioner, it means that the power to institute and to hold an enquiry which is a condition precedent for the exercise of the power of removal also stands delegated to the Deputy Commissioner. The accep-'' tance of the contention raised by the learned counsel for the petitioner would lead to absurd results in that a Deputy Commissioner would have the power to remove a Panch but without the power to order enquiry and, therefore, that power would be futile and the Director will have the power to institute an enquiry without having the power to remove a Panch which again would be futile. For these reasons the first question also has to be answered in the negative.

The learned counsel for the petitioner relied upon Ram Ditta Singh v. The Deputy Commissioner 1968 Cri LJ 207 (Punj and Har), Ujagar Singh Vs. State of Punjab and Others, ; Duli Chand Vs. State of Haryana and Others, . In none of these cases, the precise questions which arise for consideration in these cases, had arisen. In the first two cases relied on by the learned counsel for the petitioner, the question for consideration was, whether the power to suspend could be exercised without enquiry having been instituted by the competent authority and the answer was in the negative. Such a situation does not exist in the present case. In the present case, as a result of the issue of the notification under sub-sec. (2) of S. 95 of the Act, the Deputy Commissioner on whom the power to pass an order suspending a Panch during the pendency of an enquiry was vested u/s 102(1-A), was also invested with the power to institute an enquiry for the purpose of removing a Panch and to pass an order of his removal in accordance with sub-sec. (2) of S. 102 of the Act. As can be seen from the facts of the instant case, the Deputy Commissioner exercised his powers to institute an enquiry against the Sarpanch concerned on the charges set out in the order instituting the enquiry and also appointed Enquiry Officer for holding the enquiry. Thereafter, he proceeded to pass the order of suspension which he was competent to do under S. 102(1-A) of the Act. Once we come to the conclusion that the order of the Deputy Commissioner instituting an enquiry against the Sarpanch u/s 102 of the Act is valid, it follows that the order of suspension made under sub-sec. (1-A) of S. 102 of the Act is also valid.

For the reasons recorded as above our answer to the two questions set out in the first paragraph are as below:-

The Deputy Commissioner to whom the power to remove a Panch conferred on the Director of Panchayat under sub-sec. (2) of S. 102 of the Act is delegated by notification issued under S. 95(2) of the Act, has the power to pass an order instituting an enquiry against a panch and to pass an order of suspension pending such enquiry; and

The power to remove a Panch under sub-sec. (2) of S. 102 of the Act delegated to a Deputy Commissioner, in conformity with S. 95(2) of the Act, does not come to an end on the person who was the Director at the time of issuing the notification under S. 95(2) ceasing to be the Director. Accordingly, we make the following order. The writ petitions are dismissed without any order as to costs.

Petitions dismissed.