Ram Phal vs Financial Commissioner and Secretary to Govt. Har.

A.L. Bahri and N.K. Kapoor, JJ.—After hearing counsel for the parties we are of the view that a question of law arising in this case is of great importance and is likely to arise in the other cases also.

Present is the case where an enquiry was ordered to be conducted against the Sarpanch at the instance of the petitioner but charges were not proved and order was passed not to remove him, though earlier he was suspended. Thus, the Sarpanch was reinstated. This order was challenged by the petitioner who was a complainant in appeal under Section 102(5) of the Act. The appeal was dismissed on January 18, 1994 as not being maintainable at the instance of the petitioner which order is challenged in this writ petition. Written statements have been filed by the State as well as the private respondents. Inter alia the stand taken in the written statement is that though the Act was amended in order to give right of appeal to other aggrieved persons (complainants), the interpretation of the provisions aforesaid by the Courts indicate that the complainant was not an aggrieved party to file an appeal. Reliance has been placed on a Division Bench decision in C.W.P. No. 9872 of 1992 (Annexure P3) as well as decision of the Full Bench in Saktu Ram v. State of Haryana and others, 1988(2) RRR 123 : 1988(2) P.L.R. 65. The observations in these cases are to the effect that the complainant was not a necessary party upto the stage of suspension of the Sarpanch. In these circumstances, we are of the view that the question involved in this case being of great importance requires determination by a Larger Bench. Such question, as stated above, is likely to arise in many cases whereafter the stage of suspension, order of reinstatement may follow which could be challenged by the complainant at whose instance the inquiry was initiated. Let this case be placed before Hon''ble the Chief Justice for constitution of a Larger Bench to decide the matter.

FULL BENCH JUDGMENT (Dated 10.11.1995)

N.C. Jain, J. For answering the question of law referred to the us by the Division Bench of this Court, it is necessary to have a brief look at the factual matrix.

The petitioner being a Panch of Gram Panchayat Shahr Malpur tehsil Samalkha District Panipat filed some complaints against respondent No. 3 who was the Sarpanch of the aforesaid Gram Panchayat. Respondent No. 3 was suspended on the basis of the complaints and during the suspension, the petitioner was elected as acting Sarpanch. The Sub Divisional Officer (Civil), Panipat was appointed as Inquiry Officer to go into the allegations made against respondent No. 3. On the basis of the report of the Inquiry Officer, Sarpanch respondent No. 3 was exonerated from all the charges and as a consequence thereof he was reinstated by respondent No. 2 Director, Development and Panchayats, Haryana. The petitioner filed an appeal against the order of reinstatement under Section 102(5) of the Punjab Gram Panchayat Act (as applicable to Haryana) (hereinafter referred to as `the Act''). On the basis of the preliminary objections taken in the appeal, the Financial Commissioner and Secretary to Government Haryana, Development and Panchayat Department, Chandigarh, dismissed the appeal holding that the complainant had no locus standi to prefer appeal in view of the two judgments given by this Court in C.W.P. No. 9872 of 1992 Mahavir Singh Sarpanch v. State of Haryana decided on August 28, and C.W.P. No. 15423 of 1992 Pritam Singh and another v. State of Haryana and others decided on 24.11.1992. It was held that the complainant is just an informant and that he does not come into picture at all when the inquiry is initiated on the basis of a complaint and that he has no locus standi to be heard regarding the matter of suspension of a Sarpanch or the revocation thereof. It was further observed by the Financial Commissioner that the complainant was not a necessary or even a proper party in the proceedings initiated on the basis a complaint. He was further of the view that the withdrawal of the suspension order does not affect the complainant in any way nor the complainant suffers from any injustice muchless substantial injustice. It is this order of the Financial Commissioner which is the subject matter of challenge in this writ petition.

During the course of hearing, the learned counsel for the petitioner brought to the notice of the Division Bench an amendment made by the Haryana Act No. 16 of 1981 along with the objects and reasons in order to contend that the petitioner had the right of appeal against the order of reinstatement. At this stage, it is necessary to extract out the amendment along with the objects and reasons which reads as under :

"Haryana Act No. 16 of 1981 an Act to amend the Punjab Gram Panchayat Act, 1952 in its application to the State of Haryana.

Be it enacted by the Legislature of the State of Haryana in the Thirty Second Year of the Republic of India as follows :

Short title. This Act may be called the Punjab Gram Panchayat (Haryana Amendment) Act, 1981."

NOTES

STATEMENT OF OBJECTS AND REASONS.

At present the remedy of appeal is available to the Panch or Sarpanch against whom removal order is passed. Where the Sarpanch or Panch is exonerated remedy of appeal is not available to the complainant party. The Bill seeks to provide remedy of appeal to both the parties."

Amendment of Section 102 of Punjab Act 4 of 1953 In sub Section (5) of section 102 of the Punjab Gram Panchayat Act, 1952, for the words "by an order of removal", the words "by an order" shall be substituted.

The Division Bench in view of the two judicial pronouncements i.e. in Mahavir Singh Sarpanch''s case (supra) and Saktu Ram v. State of Haryana and other, 1988(2) RRR 123 (P&H) (FB) : 1988(2) P.L.R. 65 (F.B.) thought that the point involved in the case was of great importance and that the same is likely to arise in a large number of cases, referred the matter to the Full Bench. This is how the matter has been placed before us.

The precise and significant question of law which arises is whether an appeal of a complaint at whose instance a Sarpanch is suspended is maintainable under Section 102 of the Act after the Sarpanch is ordered to be reinstated ? Before dilating upon the aforementioned question of law, it is necessary to examine the bare provisions of subsection (5) of Section 102 before its amendment, which reads as under :

"Any persons aggrieved by an order of removal 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."

After examining the unamended subsection (5) of Section 102, the Statement of Objects and Reasons, the amended subsection (5) of Section 102, Saktu Ram, Mahavir Singh Sarpanch and Pritam Singh''s cases (supra) we are of the firm view that the complainant is entitled to file an appeal against the order of reinstatement. The very wording occurring in amended sub Section (5) `any person aggrieved by an order passed under this Section'' clearly envisages that a complainant can file an appeal against any order passed under Section 102 of the Act. Such orders need not be the orders of removal. The statement as has been given in the Objects and Reasons is a clear pointer to the intention of the legislature that it wanted to confer the rights upon the complainant and it is for this reason that it has further been stated in the statement of Objects and Reasons that at present the remedy of appeal is available to the Panch or Sarpanch against whom removal order is passed and that where the Sarpanch or Panch is exonerated, remedy of appeal is not available to the complainant party. The Bill was introduced in the Legislature only to provide remedy of appeal to both the parties. The true interpretation after the introduction of the amendment in subsection (5) which can safely be placed by us is that a Sarpanch or Panch who has been removed can file an appeal under subsection (5) and the right of filing appeal has been made available in similar manner to the complainant in the case of exoneration of such a Sarpanch or Panch. The amended Section does not, in our considered view, admit of any ambiguity whatsoever particularly when the same is interpreted in the light of the Objects and Reasons.

The aforementioned discussion brings us to the case law which has been noticed in the reference and the impugned order. The ratio of law laid down by the Full Bench of this Court in Saktu Ram''s case (supra) does not have the slighest application to the facts of the instant case. The Full Bench in Saktu Ram''s case (supra) was called upon to decide whether a complainant is to be afforded an opportunity of hearing before the Director orders suspension of a Sarpanch or Panch under Section 102 of the Act. On an examination of the case law, referred before the Bench, it was held that the Director who has the power to suspend is entitled to revoke the order of suspension under the General Clauses Act and that a complainant at whose instance a Sarpanch or Panch is suspended is not to be afforded an opportunity of hearing before revoking the order of suspension. While deciding the case of Saktu Ram (supra), the Full Bench has neither directly nor indirectly referred to Section 102(5) of the Act either before amendment or after amendment.

In Mahavir Singh Sarpanch''s case (supra) the facts in short were that the petitioner who was elected as Sarpanch of the Gram Panchayat Adhyana, Tehsil and District Panipat was suspended and the suspension was challenged in appeal by him under Section 102(A) of the Act. The complainant in this application under Order 1 Rule 10 C.P.C. was allowed to the be impleaded as party. The order passed under Order 1 Rule 10 C.P.C. by the appellate authority was challenged in a writ petition. While allowing the writ petition the Bench held that the complainant was neither a necessary nor proper party. It was held that the complainant only furnished material to the competent authority to take action against a particular Panch or Sarpanch and thereafter it was for the Director to act on the basis of the complaint. For the aforementioned proposition of law reliance was placed by the Division Bench on Saktu Ram''s case (supra) and another case reported as Ram Saroop v. The Director of Panchayats, Haryana, Chandigarh and others, 1985 RRR 488 (P&H) : 1983 Punjab Law Journal 350. Although, the point arising in this writ petition was directly involved before the Division Bench in Mahavir Singh''s case (supra) but the view taken on the question of law is correct in view of the amendment of subsection (5) of Section 102 of the Act. As noticed by us in the earlier part of the judgment, the decision given in Saktu Ram''s case (supra) is inapplicable to the facts of the instant case as the question involved therein was altogether different. Similarly, the ratio of law laid down in Ram Saroop''s case (supra) is equally inapplicable to the facts of the case in hand as the question involved therein was also different. The Division Bench in Ram Saroop''s case (supra) was called upon to decide whether the notice to the complainant at whose complainant the Sarpanch was suspended was necessary or not before revoking the order of suspension. This is not the precise question involved herein.

In view of the aforementioned discussion and the interpretation placed by us upon the amended provisions of subsection (5) of Section 102 of the Act it inevitably follows that the decision of the Division Bench in Mahavir Singh Sarpanch''s case (supra) does not lay down the correct law and the same deserves to be overruled. The Full Bench and the Division Bench decisions in Saktu Ram and Mahavir Singh Sarpanch cases (supra) are inapplicable as the questions involved in the aforementioned cases were altogether different.

For the reasons recorded above, the writ petition is allowed. Resultantly, the question of law referred to us would stand answered in the following manner :

"The complainant at whose instance action is taken against a Sarpanch or Panch is entitled to file an appeal before the appellate authority and subsection (5) of Section 102 of the Act is wide enough to include the appeal both by the Sarpanch and the complainant against the order passed under Section 102 of the Act. The aggrieved party would mean not only the Panch and the Sarpanch against whom action is taken but also the complainant."

Consequently, the case is remanded to the Commissioner and Secretary Development and Panchayat Department, Chandigarh for taking fresh decision after hearing the petitioner and respondent No. 3.

The parties through their counsel are directed to appear before the Commissioner and Secretary Development and Panchayat Department, Chandigarh on 18.12.1995. He is directed to decide the appeal expeditiously. No costs.