Punjab-Haryana High Court
Kashmir Singh vs Financial Commissioner And Secretary on 9 May, 2013
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Civil Writ Petition No. 21677 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No. 21677 of 2010
Date of Decision: May 09, 2013
(1)
Kashmir Singh
........Petitioner
Versus
Financial Commissioner and Secretary,
Department of Rural Development and Panchayat,
Punjab and others
.........Respondents
Civil Writ Petition No. 14098 of 2011
(2)
Sukhwinder Singh
........Petitioner
Versus
Financial Commissioner and Secretary,
Department of Rural Development and Panchayat,
Punjab and others
.........Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. B.P.S. Virk, Advocate
for the petitioner.
Mr. Suresh Singla, Additional A.G., Punjab.
Mr. Vipin Mahajan, Advocate
for respondent No.4.
*****
RAMESHWAR SINGH MALIK J. (ORAL)
The short issue involved in these two identical writ petitions is whether any Sarpanch or Panch can be removed for absenting for less than two consecutive months from the Civil Writ Petition No. 21677 of 2010 2 meetings of the Gram Panchayat in view of the provisions contained in Section 20 of the Punjab Panchayati Raj Act, 1994.
These two writ petitions bearing CWP No. 21677 of 2010 (Kashmir Singh Vs. Financial Commissioner and others) and CWP No. 14098 of 2011 (Sukhwinder Singh Vs. Financial Commissioner and others) are directed against the same removal order dated 22.07.2010 (Annexure P-5) passed by Director, Rural Development and Panchayat, Punjab and appellate order dated 11.10.2010 (Anenxure P-
6) passed by Financial Commissioner. However, for the facility of reference, the facts are being culled out from CWP No. 21677 of 2010 (Kashmir Singh Vs. Financial Commissioner and others).
The facts of the case are that the petitioners were elected as Panches of the Gram Panchayat, Kailey Kalan in the Gram Panchayat elections held in the year 2008. It seems that there were two groups of the Panches, as usual, and both the groups had been trying to outsmart each other. The allegation of the petitioner was that the respondent-Sarpanch was not in majority but he usurped the office of Sarpanch by way of manipulation and political patronage. He used to be in the search of an opportunity to get the petitioner falsely implicated in one or the other case, Civil Writ Petition No. 21677 of 2010 3 so that the petitioner may be got removed from the Office of Panch. Petitioner used to attend each and every meeting of the Gram Panchayat but he was illegally shown absent on two-three dates without any prior information. The reports of service of notice were procured against the petitioner only to create evidence against him. With these allegations, inquiry was conducted against the petitioner by the Divisional Deputy Director, Rural Development and Panchayats, Jalandhar, District Jalandhar. The inquiry was based on ill-founded presumptions against the petitioner and others. He submitted his inquiry report dated 21.05.2010(Annexure P-1). Thereafter, a show cause notice dated 21.05.2010(Annexure P-2) was issued to the petitioner and he submitted his self contained reply thereto dated 10.06.2010, vide Annexure P-3. He also filed his additional affidavit dated 15.07.2010 (Annexure P-4). However, the Director misdirected himself while passing impugned removal order dated 22.07.2010 (Annexure P-5). The appeal was filed against this order but the Financial Commissioner proceeded on an erroneous approach while dismissing the appeal of the petitioner, vide impugned order dated 11.10.2010 (Annexure P-6). Hence, this writ petition.
Exactly similar are the allegations taken by Sukhwinder Singh in CWP No. 10498 of 2011, against the Civil Writ Petition No. 21677 of 2010 4 same impugned order passed by the Director and same appellate order passed by the Financial Commissioner. That is why both the writ petitions are being decided together.
Notice of motion was issued and pursuant thereto written statement has been filed by Sukhwinder Singh, Block Development and Panchayat Officer, Dhariwal on behalf of respondents No. 1 to 3, whereas a separate written statement was filed on behalf of respondent No.4, in both the cases.
Learned counsel for the petitioner submits that on a bare perusal of the inquiry report dated 21.05.2010 (Annexure P-1) and particularly at page 27 of the paper- book, would show that the respondent-Sarpanch manipulated the record against the petitioner. Even the alleged notices for the meeting of the Gram Panchayat were issued to the petitioner through Gurbhej Singh son of Swinder Singh, who was none else but the cousin of the Sarpanch. No effort was made to serve these notices through the Chowkidar of the village, thus, the petitioner and three other Panches were kept in total dark, by not effecting due service of the notices for informing them about the meeting of the Gram Panchayat. It was got intentionally done by the respondent-Sarpanch with a view to create evidence against the petitioner and three other Panches, Civil Writ Petition No. 21677 of 2010 5 who were not supporting the Sarpanch in his illegal activities, thereby embezzling huge amount of Panchayat funds. Since the petitioner and three other Panches, namely, Sarabjit Singh, Smt. Biro Lady Panch and Sukhwinder Singh were not succumbing to the illegal pressure of the Sarpanch, they were made scapegoat so that the respondent-Sarpanch may enjoy free hand in his illegal activities. Relying upon this factual background, learned counsel for the petitioner submitted that in their unwarranted anxiety, even the statutory authorities i.e. respondents No. 1 and 2, passed the patently illegal orders, which were contrary to the provisions of law contained in Section 20 (1) (d) of the Punjab Panchayati Raj Act, 1994 (for short "the Act") because even as per the calculation of the respondents, requirement of time of more than two consecutive months was not fulfilled. Finally, he prays for setting aside the impugned orders by allowing both these writ petitions.
On the other hand, learned counsel for the State submits that the notices were issued to the petitioners through Gurbhej Singh, which were duly received because the Chowkidar was not available at that point of time. The petitioner was fully aware about the dates of meetings of the Gram Panchayat, however, he did not bother to attend Civil Writ Petition No. 21677 of 2010 6 the meetings for the reasons best known to him. On the basis of the inquiry report, the impugned removal orders were passed which were not suffering from any illegality and deserve to be upheld. Learned counsel for the respondents No. 4 also supported the arguments raised by the learned counsel for the State. Both of them pray for dismissal of both these writ petitions.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that the impugned orders cannot be sustained and both these writ petitions deserve to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.
The Inquiry Officer-cum-Divisional Deputy Director, Rural Development and Panchayats, Jalandhar, has nowhere recorded in his inquiry report, that the petitioner did not attend the meeting of the Gram Panchayat for more than two consecutive months, as envisaged under Section 20(1) (d) of the Act. No such allegation or misconduct has been alleged nor any show cause notice has been served upon the petitioners, vide Annexure P-2. Further, while passing the impugned removal order, the Director, Rural Civil Writ Petition No. 21677 of 2010 7 Development and Panchayats, Jalandhar-respondent No.2, also did not record any finding in this regard that the petitioner had not been attending the meeting of the Gram Panchayat for more than two consecutive months, as envisaged under Section 20(1) (d) of the Act.
Similarly, Financial Commissioner also failed to appreciate this question of law involved in the present case. In this view of the matter, the answer to the question posed at the outset is and has to be in favour of the petitioner. It is held that no Sarpanch or Panch can be removed solely on the allegation that he absented himself/herself from meeting of the Gram Panchayat, unless it is duly proved that the Sarpanch or Panch absented for more than two consecutive months, as envisaged under Section 20(1) (d) of the Act. Having said that, this Court feels no hesitation to conclude that the impugned orders passed by the Director as well as the Financial Commissioner were without jurisdiction.
During the course of hearing, the above said factual and legal aspect of the matter was brought to the notice of this Court and thereafter, learned counsel for the State sought time to get instructions from the respondents, on the issue of reconsideration of the matter. However, learned counsel for the State expressed his inability placing Civil Writ Petition No. 21677 of 2010 8 the communication dated 01.04.2013 before this Court which was issued from the Office of respondent No.2, stating that it was not possible for the authorities to reconsider the matter.
A pointed query was put to the learned counsel for the State and respondent No.4, as to how the statutory period of two months, as required under Section 20(1) (d) of the Act, was complete for initiating the proceedings against the petitioners. Learned counsel for the State, on instructions from Shri Baldev Singh, Junior Assistant, office of the Financial Commissioner and Secretary, Department of Rural Development Panchayat, Punjab-respondent No.1, fairly states that the statutory period of two months, as envisaged under Section 20(1) (d) of the Act, was not fulfilled in the present case. Thus, in view of the above said factual as well as legal aspect of the matter, it is unhesitatingly held that the impugned orders suffers from patent illegality and perversity which cannot be sustained.
In view of the given fact situation of the present case, possibility cannot be ruled out that the respondent- Sarpanch had been trying to get the petitioner and three more Panches, referred to hereinabove, removed from their respective posts of Panches. Learned counsel for the respondents failed to give any satisfactory explanation as to Civil Writ Petition No. 21677 of 2010 9 why the alleged notices informing the petitioner about the meeting of the Gram Panchayat, were got allegedly served on the petitioners through Shri Gurbhej Singh Son of Swinder Singh, cousin of the respondent-Sarpanch. In this view of the matter, possibility also cannot be ruled out that the alleged service reports, in this regard, were the procured documents. However, this Court refrain itself from commenting upon this issue, any further. This factual aspect apart, the requirement of law under Section 20(1) (d) of the Act has since not been fulfilled, which has been fairly admitted by the respondents as well, the impugned orders cannot be sustained.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the impugned order dated 22.07.2010 (Annexure P-5) passed by Director, Rural Development and Panchayat, Punjab-respondent No.2 and order dated 11.10.2010 (Annexure P-6) passed by the Financial Commissioner- respondent No.1, are patently illegal and the same are hereby ordered to be set aside. The petitioners, in both the writ petitions, are directed to be reinstated forthwith. Civil Writ Petition No. 21677 of 2010 10
Resultantly, both these writ petitions stand allowed, however, with no order as to costs.
MAY 09, 2013 (RAMESHWAR SINGH MALIK) ANJAL JUDGE