Om Parkash Sarpanch vs Deputy Commissioner, Sirsa

G.S. Singhvi, J.—This is a petition for quashing the orders Annexures-P.9 dated 4.3.1999 and P.10 dated 2.6.1999 passed by the Deputy Commissioner, Sirsa (respondent No. 1) and the Financial Commissioner and Secretary to Government, Haryana, Development and Panchayat Department (respondent No. 2) respectively under the Haryana Panchayati Raj Act, 1994 (hereinafter described as ''the Act'').

Some of the facts on which there is no dispute between the parties are that on receipt of a complaint allegations of commission of irregularities by the petitioner, the Block Development and Panchayats Officer, Sirsa made a preliminary enquiry. He found that as many as 14 allegations have been found prima facie established against him. After considering the report of preliminary enquiry, respondent No. 1 issued notice dated 21.1.1998 to the petitioner requiring him to show cause as to why action be not taken against him u/s 51 of the Act. In his reply dated 16.2.1998, the petitioner not only controverted the allegations levelled against him but also challenged the findings recorded by the District Development and Panchayats Officer. Thereafter, respondent No. 1 passed two orders on 18.3.1998, one for holding regular enquiry against the petitioner u/s 51(3) of the Act and the other for his suspension u/s 51(l)(b) of the Act. The appeal filed by the petitioner u/s 51(5) of the Act was dismissed by respondent No. 2 by order dated 1.6.1998.

Feeling aggrieved by the orders dated 16.2.1998 and 1.6.1998, the petitioner filed C.W.P, No. 9837 of 1998 titled as Om Parkash v. State of Haryana. When the said petition was taken up for hearing on 17.8.1998, learned Counsel appearing for the State of Haryana made a statement that the order dated 1.6.1998 passed by respondent No. 2 may be deemed to have been withdrawn and the matter shall be decided afresh after hearing the petitioner. In view of that statement, the writ petition was disposed of by the Court as infructuous with a direction that the petitioner and respondent No. 3 should appear before respondent No. 2 on September 7, 1998.

By an order dated 28.9.1998, respondent No. 2 accepted the petitioner''s appeal and remanded the case to respondent No. 1. Operative portion of that order reads as under:

"In view of the above mentioned discussion, the impugned suspension order is set aside and case is remanded to the respondent No. 1 to pass the order, if required, latest by 31.10.1998 strictly in accordance with law after going through the entire relevant record available with him. Regular enquiry shall continue."

In the purported compliance of the direction contained in the order dated 28.9.1998, respondent No. 1 gave personal hearing and then passed order Annexure P.9 dated 4.3.1999 reiterating his earlier decision to suspend the petitioner. The relevant extracts of the order dated 4.3.1999 is reproduced below :

"Keeping in view of the decision of the Hon''ble Financial Commissioner and Secretary to Government of Haryana, Development and Panchayats Department, Chandigarh, an opportunity of personal hearing was given to Sh. Om Parkash Sarpanch, Gram Panchayat, Mehna Khera on 18.11.1998. The Sarpanch came present for personal hearing and he was heard. During the course of hearing, the reply submitted by Sh. Om Parkash, Sarpanch, Gram Panchayat, Mehna Khera, Block Rania, District Sirsa was pursued. On perusal, it was found that the reply of the Sarpanch was not satisfactory. The Sarpanch stated that the reply itself to the Show Cause Notice dated 16.2.1998 may be treated as his statement."

The appeal filed by the petitioner against the order dated 4.3.1999 has been dismissed by respondent No. 2 on the ground that it is time barred and also on the ground that it is without merit.

The petitioner has challenged the impugned orders on the ground of violation of the principles of natural justice and also on the ground that the same are patently illegal and arbitrary. He has averred that while exercising the power vested in him u/s 51(1) of the Act, respondent No. 2 has not only flouted the direction given by respondent No. 2 but has also acted in violation of the principles of natural justice which are embodied in Section 51(l)(b) of the Act. He has further averred that respondent No. 2 dismissed the appeal as time barred even though no such plea was raised on behalf of the department either at the time of admission of appeal or at the time of final hearing.

In the written statement filed by respondents No. 1 and 2 through Dr. Avtar Singh, Deputy Commissioner, Sirsa, an attempt has been made to justify the suspension of the petitioner on the premises that the allegations found prima facie proved against him are quite serious and the continuance of the petitioner in the office of Sarpanch is not in the interest of the Gram Panchayat.

Shri L.N. Venna, learned Counsel for the petitioner challenged the correctness of the appellate order by arguing that the finding recorded by respondent No. 1 on the issue of limitation is perverse. He submitted that the appeal, which was filed on 12.4.1999, should have been treated as within limitation because the registered envelope containing the copy of order dated 4.3.1999 passed by respondent No. 1 was delivered to the petitioner on 14.3.1999. Learned counsel invited our attention to the registered envelope (Annexure-P-11) sent by the office of respondent No. 1 to the petitioner and the certificate dated 10.6.1999 (Annexure-P.12) given by the Post Master, Kharian, District Sirsa to show that the registered envelope containing the order of suspension passed by respondent No. 1 was, in fact, delivered to the petitioner on 14.3.1999. Still further he argued that respondent No. 2 could not have declared the appeal as time bared because no such objection was raised by the departmental representative at the hearing of the appeal. On the other hand, Shri Jaswant Singh and Shri K.S. Godara submitted that the order dated 4.3.1999, which was sent to the petitioner by registered post should be presumed to have been delivered to him well within time and as the petitioner has not given any explanation for his failure to file appeal within 30 days, the appellate order should not be disturbed,

We have thoughtfully considered the respective contentions and have carefully perused the documents available on the record of the writ petition. We have also gone through the file produced by Shri Jaswant Singh. A bare perusal of Annexure P-11 (registered envelope) shows that the same was delivered to the petitioner on 14.3.1999. Learned counsel for the respondents tried to create some doubt in our mind about the date of delivery by stating that the date contained in the postal stamps affixed on the envelope appear to have been tampered with. However, in view of the certificate Annexure. P-11 given by the Post Master, Kharian, we are unable to accept the submission of the learned Deputy Advocate General that the registered envelope must have been delivered to the petitioner prior to 14.3.1999. Another reason for our disinclination to accept the argument of learned Counsel for the respondents is that the copy of the order Annexure-P.9 sent to the petitioner through the District Development and Panchayats Officer, Sirsa was, in fact, delivered to him on 13.3.1999. This is clearly borne out from a bare perusal of the documents which are available at pages 375 and 377 of the file produced by the learned Deputy Advocate General, who conceded that the copy of the order dated 4.3.1999 sent to the petitioner through departmental channel was delivered to him on 13.3.1999. In our opinion, if the period of limitation is counted from that date, the appeal filed by the petitioner on 12.4.1999 cannot be treated as time barred.

In view of this decision, we hold that the Appellate Authority has gravely erred in holding that the appeal filed by the petitioner is time barred.

We also agree with Shri Verma that respondent No 2 could not have dismissed the appeal as time barred because no such plea was raised by the departmental representative either at the time of admission of the appeal or at the time of hearing. To this effect a categoric averment has been made by the petitioner in paragraph 14 of the writ petition, which reads as under :-

"Para 14 of the writ petition. - That respondent No. 2 has gone wrong in holding that the appeal was barred by limitation. The period for filing appeal against any order passed under sub-sections (1), (3) and (4) of Section 51 of the Act is 30 days from the date of communication of the order. The copy of the impugned order P.9 had initially been sent to the petitioner at his village Mehna Khera address by the District Development and Panchayats Officer by registered letter No. 360 on 8.3.1999. However, the postal authorities returned the said letter with a note thereon that it be distributed via village Kharian. The letter was received back in the post office of village Kharian on 11.3.1999 and it was distributed to the petitioner on 14.3.1999. The village Mehna Khera has no facility of post office of its own and the post is distributed to this village from the post office, Kharian and the Postman from village Kharian goes to village Mehna Khera to distribute the post on holidays also and the aforesaid letter was distributed to the petitioner on 14.3.1999. A copy of the cover of the said registered letter No. 360 is annexed hereto as Annexure-P. 11 with its English translation as P. 11/T. In order to dispel all doubts in this behalf, the petitioner has also obtained a certificate dated 10.6.1999 from the postal authorites of Post Office, Kharian which is to the effect that registered letter No. 360 received in the Post Office on 11.3.1999 was distributed to the petitioner on 14.3.1999. A copy of this certicicate is also attached as Annexure-P. 12 with its English translation as P. 12/T. The appeal was admitted by respondent No. 2 on 19.4.1999 after hearing the counsel for the Panchayats also and no objection as to limitation was raised by him. Even at the stage of final hearing of the appeal, no objection as to limitation was raised either by the counsel for the Panchayats or by the counsel for respondent No. 3 nor was the counsel for the petitioner contronted with the question of limitation by respondent No. 2 himself and the order was reserved and appeal held barred by time."

Respondents No. 1 and 2 have not specifically controverted the above extracted assertion made by the petitioner. For the sake of convenience, paragraph 14 of the reply is reproduced below :

"That contents of para 14 of the petition, as given, are wrong and incorrect, hence denied. The appeal preferred by the petitioner before the respondent No. 2 was hopelessly time barred. The order dated 4.3.1999 was communicated to the petitioner vide endst. No. 933-37/Panchayat dated 4.3.1999 through registered post. It is highly unbelievable that the petitioner received the copy of said order on 14.3.1999, because 14.3.1999 was a Sunday and no Postal Authority delivers the letters on Sunday. The other contents of this para are the mere imagination and concoction of the petitioner and have no legs to stand upon."

A bare reading of these pleadings shows that the plea of limitation was not raised at the stage of admission of appeal or at the time of final hearing and, therefore, the counsel for the petitioner could not get an opportunity to demonstrate that the appeal was within limitation and further that there was nothing unusual in the delivery of registered envelope on Sunday.

On the basis of above discussion, we hold that the order passed by respondent No. 2 declaring the appeal of the petitioner as time barred suffers from an error of law apparent on the face of it and on this ground alone, it deserves to be quashed.

In view of the above conclusion, we may have remanded the case to respondent No. 2 for deciding the petitioner''s appeal fresh but after having gone through the contents of the impugned orders, we are convinced that the matter deserves to be remanded to respondent No. 1 for fresh consideration. A careful reading of the order dated 4.3.1999 leaves no room for doubt that respondent No. 1 had not only disregarded the direction given by the Appellate Authority but he had also acted in violation of Section 51(1)(b) of the Act which contemplates giving of adequate opportunity to the Sarpanch concerned before an order of his/her suspension can be passed.

There is no dispute between the parties that while deciding the petitioner''s appeal, respondent No. 2 had given categorical direction to respondent No. 1 that he shall pass fresh order after going through the entire relevant record available with him. This he did in the backdrop of the petitioner''s plea that the reply filed by him was not taken into consideration by respondent No. 1 when he passed the order of suspension. Therefore, it was the duty of respondent No. 1 not only to hear the petitioner but also to objectively consider the reply submitted by him but the said respondent has singularly failed to do.

That apart, we are of the considered view that the order passed by respondent No. 1 is vitiated due to violation of the principles of natural justice embodied in Section 51(1)(b) of the Act. The duty casts upon the Director/Deputy Commissioner concerned to give adequate opportunity to Sarpanch to explain, in our opinion, not only requires giving of a notice and/or an opportunity of hearing but also enjoins upon him to objectively consider the reply, if any filed by the Sarpanch. This necessarily implies that after considering the reply of the Sarpanch against whom the action is proposed to be taken, the concerned authority must record reasons indicating its application of mind to the contents of the reply. The court will seek strict compliance of this requirement in the cases in which the competent authority decides to reject the points/objections/submissions contained in the reply.

we are further of the view that Section 51(l)(b) read with Section 51(3) of the Act does not empower the Director/the Deputy Commissioner concerned to suspend the elected representatives of local bodies in an arbitrary fashion. In Raghuwar Dayal v. The State of Haryana and others, C.W.P. 5409 of 1999 decided on 28.5.1999, this Court observed that the power of suspending the elected representative should not be exercised casually by the administrative authorities. Some of the observations made in that decision are extracted below:

"Before concluding, we wish to emphasise that the executive authorities who are entrusted with the power to suspend or remove the elected repre- sentatives of the local bodies like Municipalities and Gram Panchayats must bear in mind that those who win the confidence and trust of the people through the process of elections and occupy public positions are often made targets of vilification campaign by the opposite group(s). In a majority of cases, the allegations of commission of irregularities are made. If the power of suspension and/or removal of the elected representatives is exercised liberally in such cases, then the mandate of the people will be indirectly frustrated, a situation which will not be good for the health of the democracy at the grass root level. It will be doing greater harm than good to the institution of local bodies. Therefore, unless the allegations of financial irregularities or gross misconduct are found proved, the authorities concerned must exercise restraint and as and even in those cases in which it becomes imperative to exercise the power of suspension or removal, cogent reasons must not only be recorded but must be communicated to the affected person. In our considered view, the elected representatives cannot be treated worst than the government employees in whose cases the requirement of passing a reasoned order has been consistently insisted by the Courts in the last 40 years."

In view of the above discussion and the observations made in Raghuwar Dayal''s case (supra), we hold that the order of suspension passed by respondent No. 1 is clearly contrary to the spirit of Section 51(l)(b) read with Section 51(3) of the Act. What he has done is nothing more than to make a show of the compliance of Section 51(1)(b) of the Act. The bald observation of respondent No. 1 that he has given personal hearing to the petitioner and has found that the reply submitted by him is not satisfactory cannot be considered as sufficient compliance of the principles of natural justice. In our opinion, he ought to have objectively considered the explanation given by the petitioner and then briefly recorded reasons for not accepting the same. It, however, appears that respondent No. 1 did not like the petitioner''s bravado of having invoked writ jurisdiction for quashing the orders dated 18.3.1999 and 1.6.1998 which ultimately led to the passing of order dated 28.9.1998 by respondent No. 2 resulting in the knocking down of order dated 10.3.1998 and, therefore, he decided the issue of petitioner''s suspension with a prejudged mind. No doubt, the appellate authority has tried to give an impression that it has objectively dealt with the point urged on behalf of the petitioner but a careful scrutiny of the order dated 1.6.1999 leaves no manner of doubt that in the guise of making a show of recording the reasons, respondent No. 2 has also alone nothing more than to use stock phrases without making an objective and critical analysis of the points raised by the petitioner.

Shri Jaswant Singh made an attempt to convince us not to interfere with the order of suspension by arguing that the allegations found prima facie proved against the petitioner are quite serious. However, we have not felt persuaded to agree with him. It is true that on a reading of the findings recorded by the District Development and Panchayats Officer one gets an impression thai allegations of grave nature have been found prima facie established against the petitioner. However, while considering this aspect of the matter, we cannot overlook the fact that the preliminary enquiry was conducted without associating the petitioner and, therefore, he did not get opportunity to project his version. Moreover, by their own conduct the official respondents have considerably diluted the gravity of the case. Admittedly, the enquiry initiated against the petitioner vide order dated 18.3.1998 has not progressed even an inch. In reply to Court''s query, learned Deputy Advocate General stated at the Bar that no evidence has been recorded by the Estate Officer i.e. the Sub Divisional Officer (Civil), Ellenabad. This is sufficiently indicative of lack of resolution on the part of the authorities concerned to prove the allegations after giving opportunity of hearing to the petitioner. In view of this, we do not consider it proper to deny relief to the petitioner.

For the reasons mentioned above, the writ petition is allowed. The orders Annexures-P.9 and P.10 are declared illegal and quashed. As a consequence, the petitioner shall be reinstated as Sarpanch of Gram Panchayat, Mehna Khera. The issued of petitioner''s suspension shall now be considered afresh by respondent No. 1. The petitioner is directed to appear before respondent No. 1 on or before 6.9.1999 and within next three weeks the officer concerned shall, after hearing the petitioner pass appropriate order in accordance with law keeping in view the observations made in this order.

Copy of this order be given dasti on payment of the fee prescribed for urgent applications.

Petition allowed.