Yashpal vs Divisional Commissioner, Mandi & Anr

Sandeep Sharma, J

By way of instant petition filed under Article 227 of the Constitution of India, challenge has been laid to order dated 23.3.2019, passed by the

Divisional Commissioner, Mandi, District Mandi, H.P., affirming the order dated 15.3.2019, passed by Deputy Commissioner, Kullu, District Kullu,

Himachal Pradesh, whereby order of suspension of the petitioner from the post of Up-Pradhan, Gram Panchayat, Dehra, District Kullu, came to be

passed.

Precisely, the facts of the case as emerge from the record are that the petitioner was elected as Up-Pradhan, Gram Panchayat, Dehra, District

Kullu, H.P., in December, 2015, but before he could complete his normal tenure, he came to be convicted and sentenced vide judgment dated

28.12.2017, passed by learned Judicial Magistrate 1st Class, Anni, District Kullu, H.P., for having committed offence punishable under Section 420 of

IPC, as a consequence of which, Deputy Commissioner, Kullu while exercising power under Sections 145 (1(a) and 2(a) of the H.P. Panchayat Raj,

Act,1994, suspended him from the office of Up-Pradhan, Gram Panchayat, Dehra, District Kullu, H.P., till the time appeal having been filed by the

petitioner against the judgment of conviction is not decided by the Appellate Court. In the aforesaid background, petitioner approached this Court in the

instant proceedings, praying therein to set-aside the aforesaid order of suspension dated 15.3.2019, which has been further upheld by the Divisional

Commissioner, Mandi, District Mandi, H.P. vide order dated 23.3.2019.

Material available on record reveals that prior to election of the petitioner as Up-Pradhan, Gram Panchayat Dehra in the year, 2015 person namely,

Prem Lal had lodged a complaint to the Vigilance Department in the year, 2004, alleging therein that the petitioner in the year, 1998 fraudulently

procured IRDP certificate and thereafter on the basis of same got himself registered as Contractor in Public Works Department. On the basis of

aforesaid complaint, FIR bearing No.60/2007, dated 15.7.2007 came to be registered against the petitioner under sections 420, 467, 468 and 471 of

IPC. Learned Judicial Magistrate 1st Class, Anni, District Kullu, H.P., though acquitted the petitioner of the offence alleged to have been committed

by him under sections 468 and 471 of IPC but convicted and sentenced him to undergo simple imprisonment for a period of two years and to pay fine

of Rs. 10,000/- vide judgment dated 28.12.2017 for having committed offence under Section 420 of IPC.

Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, petitioner

preferred an appeal in the Court of learned Additional Sessions Judge, Kinnaur at Rampur Bushehar, District Shimla, H.P., but before same could be

decided on its own merit, Deputy Commissioner, Kullu vide order dated 15.3.2019 (Annexure P-3) exercising power under sections 145(1)(a) and

2(a), suspended the petitioner from the office of Up-Pradhan, Gram Panchayat, Dehra, District Kullu, H.P. till the final disposal of the appeal having

been filed by the petitioner against the judgment of conviction and sentence recorded by learned trial Court.

Mr. Sanjeev Bhushan, learned Senior Counsel representing the petitioner, while placing on record judgment dated 7.11.2020 passed by learned

Additional Sessions Judge, Kinnaur at Rampur Bushehar, District Shimla, H.P., contends that since judgment of conviction and order of sentence

dated 28.12.2017 passed by learned trial Court in Criminal Case No.105-2 of 2008, has been set-aside by learned Additional Sessions Judge, Kinnaur

at Rampur Bushehar, District Shimla, H.P., impugned order of suspension dated 15.3.2019, which has been further upheld by Divisional

Commissioner, Mandi deserves to be quashed and set-aside.

Though, Mr. Sudhir Bhatnagar, learned Additional Advocate General has not been able to dispute aforesaid judgment of acquittal recorded by

learned Additional Sessions Judge, Kinnaur at Rampur Bushehar, District Shimla, H.P., but he contends that since there is specific remedy of

appeal/revision available under the statute to lay challenge to the impugned order, present petition deserves dismissal being not maintainable.

Having carefully perused provisions contained under Sections 147 and 148 of the H.P. Panchayati Raj Act, 1994, though this Court finds force in

the submission made on behalf of learned Additional Advocate General that petitioner ought to have filed appeal/ revision before the Secretary

Panchayati Raj against the order dated 23.3.2019 passed by the Divisional Commissioner, Mandi, whereby order dated 15.3.2019 passed by Deputy

Commissioner, Kullu, H.P., suspending the petitioner from the post of Up-Pradhan, Gram Panchayat Dehra, District Kullu, H.P. came to be passed,

but no fruitful purpose would be served by relegating the petitioner to the revisionary authority at this stage, especially when judgment of conviction

and sentence dated 28.12.2017 passed by trial Court stands quashed and set-aside vide judgment dated 7.11.2020 by learned Additional Sessions

Judge, Kinnaur at Rampur Bushehar, District Shimla, H.P.

No doubt, as per the provisions contained under Sections 147 and 148 of the Act, petitioner ought to have availed alternate remedy available to him

prior to approaching this Court in the instant proceedings, but this Court while exercising power under Article 227 of the Constitution of India has

otherwise general power of superintendence to look into the correctness and genuineness of the orders passed by the quasi judicial authorities. In case

submission made by learned Additional Advocate General is accepted at this stage, great prejudice would be caused to the petitioner, who in the event

of being relegated to the revisionary authority may have to wait for couple of months more for disposal of his revision.

Leaving everything aside, this Court finds from the bare reading of order dated 15.3.2019 that the petitioner came to be suspended from the post of

Up-Pradhan, Gram Panchayat, Dehra, merely on account of recording of judgment of conviction and order of sentence dated 28.12.2017 passed by

learned trial Court. Otherwise also, it stands clearly recorded in the order of suspension passed by the Divisional Commissioner, Mandi that order of

sentence shall remain in force till the time appeal having been filed by the petitioner against the judgment of conviction is not decided. Now, since vide

judgment dated 7.11.2020, learned Additional Sessions Judge, has quashed and set-aside the judgment of conviction dated 28.12.2017 passed by

learned trial Court, order dated 15.3.2019 passed by Deputy Commissioner, Kullu, cannot be allowed to sustain, which has otherwise lost its efficacy

on account of subsequent developments.

Consequently, in view of the detailed discussion made hereinabove, the present petition is allowed and impugned order dated 15.3.2019 passed by

Deputy Commissioner, Kullu, District Kullu, H.P. and order dated 23.3.2019, passed by Divisional Commissioner, Mandi, H.P. are quashed and set-

aside. The respondents are directed to permit the petitioner to discharge his duty as Up-Pradhan, Gram Panchayat, Dehra, District Kullu, H.P.,

forthwith till the expiry of his normal tenure. Pending applications, if any, also stand disposed of.

Copy dasti.