The Gram Panchayat Kamalpur vs The Deputy Commissioner, District Jind and others

Tek Chand, J.—The petitioner Gram Panchayat Kamalpur, tehsil Narwana, District Jind, has presented this writ petition under Articles 226 and 227 of the Constitution of India seeking quashing of the order of respondent No. 1, the Deputy Commissioner, Jind dated 13th of June, 1967, by issuance of an appropriate writ, order or direction. The second respondent is the State of Haryana and the third respondent is Bir Singh, formerly Sarpanch of the petitioner Gram Panchayat.

It is stated in the petition that respondent No. 2, No. 3, Bir Singh, had illegally encroached upon the common land of the village and the Gram Panchayat passed a resolution on 30th of March, 1961, and issued notice to Bir Singh to show cause as to why he should not be punished for illegal encroachment alleged to have been made by him on a public place. Bir Singh refused service and did not take part in the proceedings. The Gram Panchayat imposed a fine of Rs. 25/- on Bir Singh, Sarpanch and asked him to remove the encroachment on the public place. Bir Singh then filed a petition of revision before the ilaqa Magistrate which was dismissed on 27th of June, 1963. Then Bir Singh filed a petition under Article 227 of the Constitution of India in this Court praying that the Magistrate''s order referred to above should be set aside. This petition under Article 227 was dismissed by the High Court on 22nd of May, 1964.

The Gram Panchayat then moved the District Commissioner, Sangrur, to hold an enquiry against Bir Singh, Sarpanch, that he had not deposited in the treasury the panchayat money and had not vacated the illegal possession of the public place. The Deputy Commissioner, Sangrur, by his order dated 25rd of April, 1965, suspended Bir Singh and ordered an enquiry against him. It may he mentioned at this stage that prior to 1st of November, 1966, Kamalpur was in the district of Sangrur and subsequent to the bifurcation it is now in the district of Jind in Haryana. It is alleged that after the formation of Haryana State, the Deputy Commissioner of Jind District did not held any enquiry as directed by the Deputy Commissioner, Sangrur. The case was transferred to the Deputy Commissioner, Jind, who without holding any enquiry order the presure of the Minister passed an order on 13th June, 1967, reinstating Bir Singh Sarpach, with immediate effect." The name of the Minister has not been mentioned. The order of the Deputy Commissioner, Jind, is reproduced below in extensor:

ORDER.

No. 2386-83/DA dated 13th June, 1967.

Shri Bir Singh Sarpanch Gram Panchayat Kamalpur who was placed under suspension vide Deputy Commissioner Sangrur endst. No. 6648-49/RCD(i)/DA, dated 23rd April, 1965 is hereby reinstated with immediate effect.

(Sd.) M. KUTTAPPAN. Deputy Commissioner, Jind, 14-6-67.

On receipt of the order of the Deputy Commissioner, the Gram Panchayat at its meeting dated 25th of June, 1S67, passed a resolution to the effect that the order of the Deputy Commissioner, Jind, was ex parte. Neither any enquiry was held nor any investigation was made and the members of the Panchayat were not heard and that no notice was given to the Panchayat. It was also mentioned in the resolution that Bir Singh had not vacated the illegal possession of the public place for which he was fined Rs. 25/- by the Gram Panchayat and the order was maintained up to the High Court and the restoration of ex-Sarpanch without enquiry was illegal. It was also stated in the resolution that a sum of Rs. 1402/29 nP was outstanding against him and he had not deposited the amount in the panchayat funds despite several demands and thus he had misappropriated the panchayat funds. It was then resolved that the High Court be moved in a writ petition vide Annexure B. On the basis of the above facts, the writ petition has been filed impugning the order of the Deputy Commissioner Jind, dated 13th/14th of June, 1967 on the ground that it was illegal and without jurisdiction and the Deputy Commissioner, Jind, ought to have held an enquiry as was ordered by his predecessor when suspending respondent No. 3 and he ought not to have been reinstated without holding an enquiry. That the impugned order was passed against principals of natural justice and without holding any enquiry and without giving any reasons for reinstating Bir Singh. A written statement of respondent No. 1 by way of affidavit has been filed. Most of the factual paragraphs have been admitted. It was stated in the affidavit that no Inquiry Officer was appointed by the Deputy Commissioner, Sangrur, on the suspension of Bir Singh. The explanation of Bir Singh was examined by the Deputy Commissioner, Jind and that he was satisfied that the charges were not established against him. The allegation that any Minister had exercised any influence was denied. It was also said that the impugned order was in accordance with law and within jurisdiction. The Deputy Commissioner was satisfied that the charges had not been established and he accepted the explanation of respondent No. 3. It was also stated in the affidavit that respondent No. 3 had paid the fine imposed on him and the encroachment over the Shamlat land has also been removed.

I have heard counsel for the parties. Mr. Anand Sarup, Advocate General, Haryana, during the course of argument raised five contentions. His first point was that no legal right vested in the petitioner Panchayat which could be said to have been violated. With respect to this point, it has been urged by Mr. Puran Chand, counsel for the petitioner, that this plea was not taken in the return filed by the Deputy Commissioner, Jind. No return was filed on behalf of the State of Haryana or on behalf of Bir Singh. It was further maintained that in para 11(f) of the petition it was specifically alleged that the Gram Panchayat was directly interested and a Sarpanch who was charged with misconduct and of misappropriating of Panchayat funds could not be allowed to hold such an office. The Gram Panchayat was interested because it was the custodian of its funds alleged to have been misappropriated by Bir Singh. It has also to protect public land in its charge from encroachment. The contention of the learned Advocate General that no right of the petitioner has been violated from which it could ask relief from this Court, does not appear to me to be sound.

The second contention of the learned Advocate General was that neither the Government nor the Deputy Commissioner could be compelled to hold an enquiry. Again, this contention was not raised in the affidavit of the Deputy Commissioner. Moreover, this contention is devoted of merit. Section 102 sub-section 1 of the Punjab Gram Panchayat Act, 1952, empowers the Deputy Commissioner during the course of an enquiry to suspend a Panch for any of the reasons for which he could be removed and debarred from taking part in any act or proceedings of the Panchayat. Further the Deputy Commissioner may order him to hand over the records, money or any property of the Panchayat. It cannot be seriously urged that the conduct of a Sarpanch against whom there is an allegation of misappropriation of public funds and of encroachment on public Jand and on whom a fine has been imposed, cannot be enquired into by the Government or the Deputy Commissioner. It has also been mentioned that so such contention was raised in the affidavit. This contention must, therefore, be rejected.

Thirdly, it was urged that the initial order of the Deputy Commissioner, Sangrur, dated 23rd of April, 1965, was illegal, and, therefore, it was the duty of the Deputy Commissioner, Jind, to reinstate a Sarpanch who had been illegaly suspended. The affidavit of respondent No. 1 is silent and no such plea had been taken. The impugned order which has been reproduced above, does not refer to any alleged illegality of the Deputy Commissioner, Sangrur. Bir Singh apparently did not feel aggrieved from the order of the Deputy Commissioner Sangrur and never questioned it in this Court by seeking its quashing in a writ petition. It does not appeal from the record that he made any such representation to the Government challenging the illegality of the order suspending him and ordering enquiry against him. My attention has been drawn by the Learned Counsel for the petitioner to a decision of this Court reported in Ratti Ram v. The Deputy Commissioner. Patiala (1965) 67 P.L.R. 529 Shamsher Bahadur J. held that the Deputy Commissioner could during the course of an enquiry suspend a Sarpanch for any of the reasons for which he could be removed. It was also observed that there was no breach of the statutory provisions or the rules of the natural justice in making the order of suspension without a show cause notice. An order of suspension endures till it is decided that a person is not to be charged with a disciplinary offence or until disciplinary proceedings are concluded.

The fourth point urged was that it was the Government and not the Deputy Commissioner who has the power to remove a Sarpanch. There is no doubt on this question and the petitioner has not asked this Court to pass an order for the removal of the Sarpanch, respondent No. 3 All that is being asked is that the order of the Deputy Commissioner, Jind, i not holding an enquiry as directed by his predecessor was liable to be set aside.

The last point urged by the learned Advocate General is that there is an alternative remedy available to the petitioner which has not been resorted to in the form of a representation to the Government u/s 100, sub-section (1). Under that provision, Government may call for and examine the record of proceedings of any Gram Panchayat for the purposes of satisfying itself as to the legality of propriety of any executive order passed therein and may confirm, modify or rescind the order. This power of the Government is restricted to an executive order passed by the Panchayat. This power of the Government to call for the proceedings of any Gram Panchayat in order to examine the legality or propriety of any order passed therein cannot cover the matter arising in these proceedings. What the Panchayat, in this case, wants is that an enquiry as ordered by the Deputy Commissioner, Sangrur, ought to have been held. The order of the Deputy Commissioner, Sangrur, is definitely not of an executive character. In a decision of a Full Bench of this Court reported in The State of Punjab and another v. Bijay Singh (1967) 65 P.L.R. 908, it was held that section 102(2) of the Act which conferred upon the Government the power to remove any Panch provides that the power is to be exercised after such enquiry as it may deem fit and where on the material placed before the High Court, the only finding possible was that there had been no enquiry as contemplated by the statute before the Sarpanch and the Panches were removed, it quashed the orders of removal of the Sarpanch and the Panches. It is, therefore, wrong to contend on behalf of the respondents that an alternative remedy u/s 100 was available which could be resorted to and not by means of the present writ petition.

In this case, after the order passed by the Deputy Commissioner, Sangrur, suspending Bir Singh, Sarpanch and directing an enquiry against his alleged misconduct, it was the duty of his successor (respondent No. 1) to institute an enquiry. From the criptic order of the Deputy Commissioner, Jind, it cannot be seriously contended that he held any enquiry. There is no attempt made by the Deputy Commissioner to give any reason for his order. All that has been stated in one sentence order of the Deputy Commissioner, Jind, is that Bir Singh is hereby reinstated with immediate effect. He has not referred to the fact that Bir Singh had been fined and the sentence of fine was maintained by the ilaqa Magistrate and was not disturbed by this Court. It is haroly comprehensible that when a Sarpanch has been fined for encroachment on public land and the sentence has been maintained right upto the High Court, the Deputy Commissioner while reinstating the Sarpanch should not even allude to this circumstance and given an indication why that circumstance is of no moment. It was also alleged that Bir Singh, Sarpanch, had misappropriated Panchavat funds and to this again, there is no reference in the impugned order of the Deputy Commissioner, Jind- After Bir Singh had unsuccessfully tried to get the order of fine imposed upon him quashed and had been unsuccessful right upto the High Court, the Gram Panchayat then moved the Deputy Commissioner, Sangrur, for action being taken against the Sarpanch. The Deputy Commissioner naturally was influenced by the established facts and ordered his suspension to be followed by an enquiry. The Deputy Commissioner, Jind, does not care even to notice these facts and just passed an order reinstating him. It is stated in the affidavit that he did take into consideration the explanation of respondent No. 3. This fact that Bir Singh had submitted any explanation and where such an application was written or oral is not alluded to in the order. In this case, the Panchayat who was the custodian of the public land was an interested party. It was also an aggrieved party in the sense that its funds had been misappropriated by the Sarpanch. This decision of reinstatement ought not to have been passed behind the back of the Panchayat and without giving the Panchayat an opportunity to place material before the Deputy Commissioner, Jind, on which his removal could be justified. The impugned order cannot be justified on any ground.

The petition of writ is allowed and the impugned order of the Deputy Commissioner, Jind, dated 13th/14th of June, 1967, is quashed. Let a proper enquiry be held as contemplated in the statute and the final order passed after giving an opportunity to the petitioner Gram Panchayat to substantiate its allegation against Bir Singh. A writ of certiorari to that effect is issued. There will be no order as to costs.