Swaran Dass vs State of Himachal Pradesh and Others

Kuldip Singh, J.—The petitioner has prayed for quashing of show cause notice dated 21.3.2009 issued by the District Panchayat Officer with a further prayer that respondents be directed to permit the petitioner to continue functioning as Pradhan, Gram Panchayat, Takka, Tehsil and District, Una.

The necessary facts as emerged from the petition are that petitioner was elected as Pradhan of Gram Panchayat, Takka in December, 2005. The petitioner had been discharging his duties earnestly and without any complaint. The work and conduct of the petitioner was appreciated by superior authorities.

It has been stated that the petitioner belongs to a particular political party. On the change of Government, the respondent No. 3 had been unnecessarily harassing the petitioner. The petitioner is finding difficult to discharge his duties fearlessly. The respondent No. 3 had earlier issued show cause notice dated 25.8.2008 against which the petitioner had filed CWP No. 1563 of 2008. This Court on 4.9.2008 had stayed the operation of show cause notice dated 25.8.2008. It has been alleged that respondent No. 3 is putting hindrances for smooth discharging his functions as Pradhan on the directions of political bosses. The action of respondent No. 3 smacks of malice and legal malafides.

It has been stated that show cause notice has been issued to petitioner and he is at liberty to file reply and respondent No. 3 can discharge the show cause notice also. The petitioner has apprehension that as soon as the petitioner would file reply the respondent No. 3 would put the petitioner under suspension for which there is a procedure of appeal, revision etc. However, the petitioner is not taking said recourse when show cause notice dated 21.3.2009 issued to petitioner is without any basis. The show cause notice has been issued by over-stepping the jurisdiction and the same is without jurisdiction and therefore, the petitioner has filed the writ petition.

The further case of the petitioner is that the Panchayat had passed resolution and authorized the petitioner to have advance money so that various works qua which resolutions were passed in the Panchayat can be started. There is no allegation that petitioner had mis-appropriated the amount in any manner. The show cause notice was issued to petitioner on the basis of some inquiry conducted by Gurvachan Dass Sandhu, Panchayat Inspector, in which the petitioner was not associated. The inquiry report of Gurvachan Dass Sandhu can not be relied for issuing show cause notice to petitioner.

It has been alleged that petitioner has reasons to believe that respondent No. 3 first appointed the Inquiry Officer at the back of the petitioner. The petitioner has also alleged that respondent No. 3 manipulated complaints against the petitioner. The Inquiry Officer submitted the inquiry report to respondent No. 3 under the directions of respondent No. 3 and respondent No. 3 has coined method for issuing show cause notice to petitioner. The respondent No. 3 has threatened the petitioner that he will not be allowed to remain as Pradhan of the Gram Panchayat.

It has been stated that there is an allegation in the show cause notice that petitioner being Pradhan of Gram Panchayat and on the basis of resolutions of the Gram Panchayat withdrew some amount as advance. As per the resolution of the Gram Panchayat, the works were to be executed under direct supervision of concerned Wards members. The works were delayed despite the members were put to notice verbally by petitioner and when works were not started then some complaint was filed to respondent No. 3, who at the back of the petitioner got inquiry made and show cause notice was issued to petitioner. The Panchayat members for the reasons best known to them did not start the works, the advance withdrawn by petitioner in these circumstances could not be utilized and petitioner deposited the said amount back alongwith interest. It has been stated that the facts are such where alternative remedy provided in the H.P. Panchayati Raj Act, 1994 (for short ''Act'') is not efficacious remedy. The petitioner has thus filed the petition.

The respondents No. 1 & 2 have filed joint reply in which preliminary objection has been taken that there is alternative remedy under the Act, hence the petition is not maintainable. On merits, the case of the petitioner has been denied. It has been stated that Inquiry Officer was appointed on the complaint against petitioner by his fellow Panchayat members. The inquiry was conducted on the spot in which it was revealed that Gram Panchayat, Takka vide resolution No. 15 to 18 & 20 dated 25.11.2008 had withdrawn an amount of Rs. 70,000/-from the Kangra Central Co-operative Bank Ltd. Una from account No. 127 and this amount was given to the Pradhan, Gram Panchayat, Takka as advance amount. The petitioner without utilizing the said amount kept the same amount with him from 27.11.2008 to 20.12.2008. The petitioner had also kept a sum of Rs. 54,205/- from 20.12.2008 to 6.1.2009 without assigning any reason. On 7.1.2009 a sum of Rs. 54,205/- alongwith Rs. 1220/- on account of interest was deposited by petitioner which clearly indicates that petitioner had mis-utilised the Government money for his personal gain. In these circumstances, the petitioner was served with show cause notice. The respondents No. 1 & 2 denied rest of the case put forward by the petitioner.

The respondent No. 3 has filed separate reply and has taken preliminary objection of maintainability of the writ petition on the ground of alternative remedy. In the reply, respondent No. 3 has stated that being a functionary of the State, he was duty bound to look into the illegal acts or omissions committed by the Panchayat representatives. He has submitted that he had acted in lawful discharge of his duties and, therefore, it cannot be said that he acted malafide. The petitioner was found defaulter in the inquiry hence show cause notice was issued to him legally. The inquiry officer was appointed on the complaint against petitioner by his fellow panchayat members. The respondent No. 3 has denied the allegations levelled against him in the petition.

I have heard the learned Counsel for the parties. The petitioner had earlier filed CWP No. 1563 of 2008 against show cause notice dated 25.8.2008 which was dismissed on 10.11.2009. The present writ petition has been filed against show cause notice dated 21.3.2009 Annexure P-1. On behalf of the respondents, it has been submitted that there is alternative statutory remedy under the Act available to the petitioner and in presence of alternative remedy this Court may not like to invoke extra-ordinary jurisdiction under Article 226 of the Constitution of India in the facts and circumstances of the case, it has been submitted that writ petition is not maintainable.

The petitioner has raised grievance against respondent No. 3. It has been admitted at the time of hearing that respondent No. 3 has been transferred and now some other officer is holding the post of Deputy Commissioner, Una. The respondent No. 3 has denied the allegations levelled against him in the petition. He has stated that the show cause notice was issued to the petitioner on the basis of inquiry report. The respondent No. 3 has also stated that in discharge of his duties the action was taken against the petitioner on the basis of complaint lodged by his fellow panchayat members. There is no reason to disbelieve the stand taken by respondent No. 3. The allegations of malafides against respondent No. 3 are vague and therefore, it cannot be said that respondent No. 3 has acted malafide against the petitioner.

The learned Counsel for the petitioner has submitted that the show cause notice issued to the petitioner is only a formality. In these circumstances, alternative remedy of appeal is not efficacious remedy to the petitioner. The learned Counsel for the petitioner has relied Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, in support of his submission that the Court can interfere against show cause notice. It has been submitted that alternative remedy is no bar for invoking jurisdiction under Article 226 of the Constitution if there is violation of fundamental right or there is violation of principles of natural justice or where the order or proceeding are wholly without jurisdiction or the vires of the Act has been challenged.

The show cause notice was issued to the petitioner on 21.3.2009. He was given 15 days time to file the reply. The petitioner instead of filing the reply has filed the present petition on 30.3.2009. On the basis of show cause notice dated 21.3.2009 and the reply in response to show cause notice the competent authority would have taken a decision but the petitioner without filing the reply rushed to this Court and filed the petition. The petitioner has failed to make out a case that the show cause notice dated 21.3.2009 is without jurisdiction or is against the principles of natural justice. The violation of fundamental rights and vires of the Act are not involved in the present petition. In the facts and circumstances of the case Whirlpool Corporation (supra) is not applicable. There is no worth believing material on record regarding malafides against respondents.

The petitioner had earlier filed CWP No. 1563 of 2008 on 2.9.2008 against the show cause notice dated 25.8.2008. He filed reply to that show cause notice on 9.9.2008 after filing CWP No. 1563 of 2008 which was dismissed on 10.11.2009. It was held that the petition was pre-mature inasmuch as the petitioner was issued a show cause notice to which he had filed the reply and no decision was taken after filing of the reply. In the present case also after the show cause notice dated 21.3.2009 petitioner has filed the writ petition without waiting decision on the show cause.

In view of the above, there is no merit in the petition which is accordingly dismissed. The interim orders dated 1.4.2009 and 10.9.2009 stand vacated. The competent authority shall be at liberty to proceed further in the matter on the basis of show cause notice dated 21.3.2009 Annexure P-1.