Himachal Pradesh High Court
Digvijay Singh vs State Of H.P. And Ors. ...Repondents on 2 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 7659 of 2010
Date of Decision: 02.8.2016
.
______________________________ _________________________
[
Digvijay Singh ......Petitioner.
Versus
State of H.P. and Ors. ...Repondents
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioner: Mr. B.C. Negi, Senior Advocate, with Mr.
rt P.P. Singh, Advocate, for the petitioner.
For the respondents: Mr. Rupinder Singh Thakur, Additional
Advocate General, with Mr. Rajat
Chauhan, Law Officer, for respondents
No. 1 to 3.
Mr. Dibender Ghosh, Advocate, for
respondent No.4.
_________________________________________________________
Sandeep Sharma, J. (Oral)
By way of present writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for following reliefs:-
(i) Issue a writ of certiorari to quash Annexure P-3 i.e. order dated 29.4.2010 passed by the Deputy Commissioner Kinnaur at Recong-Peo, Annexure P-4 i.e. order dated 4.11.2010 passed by the Divisional Commissioner Shimla Division and Annexure P-5 i.e. order dated 24.11.2010 Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -2-
passed by the Secretary Panchayati Raj Himachal Pradesh, Shimla.
(ii) Issue a writ of mandamus directing the respondent .
authorities not to implement Annexure P-3 i.e. order dated 29.4.2010 passed by the Deputy Commissioner Kinnaur at Reckong-Peo, Annexure P-4 i.e. order dated 04.11.2010 passed by the Divisional Commissioner Shimla Division and Annexure P-5 i.e. order dated of 24.11.2010 passed by the Secretary Panchayati Raj Himachal Pradesh, Shimla.
(iii) Issue a writ of mandamus directing the removal of rt respondent No.4.
(iv)Issue a writ of certiorari to call for the records pertaining to the case at hand.
(v) Direct the respondent authorities to pay the cost of the petition.
(vi)Such other order, which this Hon'ble Court deems fit and proper, may also be passed in favour of the petitioner, in the interest of justice and fair play.
2. Key facts necessary for the adjudication of the present case as emerge from the pleadings as well as record are that present petitioner, who was Up-Pradhan of Gram Panchayat Kafnoo, Tehsil Nichar, District Kinnaur, Himachal Pradesh lodged a complaint against respondent No.4-Smt. Rajeshwari Negi, who was the Pradhan of Gram Panchayt Kafnoo, Tehsil Nichar, District Kinnaur, Himachal Pradesh at that relevant time, alleging ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -3- misappropriation, mis-utilization of Government/ Panchayat funds by respondent No.4. Pursuant to aforesaid complaint, inquiry was .
conducted into omissions and commissions of respondent No.4 by the Inquiry Officer i.e. District Audit Officer (Panchayat) Kinnaur at Reckong-Peo. Record reveals that the Inquiry Officer found three cases of misappropriations, mis-utilization of Government/ of Panchayat funds and misconduct in so far as respondent No.4 was concerned. Accordingly, on 21.8.2009, on the basis of inquiry rt report submitted by the Inquiry Officer, show cause notice was issued to respondent No.4, which is reproduced herein below:-
"1. As per last para mentioned at Sr. No. 5 of Inquiry Report the decision to celebrate the function of 15th August, 2006 was taken by Gram Panchayat and the function was celebrated. Shri B.R. Mehta was invited as chief guest in this function. A sum of Rs. 10,000/- was donated to the Panchayat by the chief guest. Since 15th August, 2006 Pradhan kept the money with her till date the money was not deposited in Panchayat account after issuing from-3. Hence misuse of Rs. 10,000/-
2. As per Sr. No.6 of inquiry report Pradhan Smt. Rajeshwari Negi has distributed 151 DTH dishes to the local people. Out of which 25 DTH dishes were distributed to the families of people who are in Government/Non-Government jobs and thus ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -4- disobeyed the Government orders. She has misutilized the powers of her post and issued the fake certificate of non-employment to 25 persons. Besides this four .
names out of the list of 151 persons submitted to the office of SDM (C) Nichar for demanding dishes were cut and new names were added to the list by herself without informing SDO (C) Nichar. Thus misused her authority.
of
3. According to Serial Number 8 (3) of Inquiry Report no approval is being obtained from work execution committee for releasing payment of any work whereas rt work execution committee has an important role in transparency of work execution."
Respondent No. 4 filed reply to the aforesaid show cause notice but same was rejected being frivolous and devoid of merit.
3. Vide order 29.10.2009 (Annexure P-1), District Panchayat Officer in exercise of power vested under Sub-Section (1) (c) of Section 145 of Himachal Pradesh Panchayati Raj Act (In short 'the Act') read with Rule 142 of Himachal Pradesh Panchayati Raj Rules ( in short 'the Rules') placed respondent No. 4 under suspension. Careful perusal of the order ibid discloses that authority came to the conclusion that charges framed against her prima-facie discloses misappropriation or embezzlement of Government/Panchayat funds and she had been misutilizing her ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -5- authority as Pradhan Gram Panchayat to do illegal acts and mis-
conduct. In the aforesaid background, District Panchayat Officer, .
found the findings of the inquiry officer based on record and accepted the same and placed respondent No.4 under suspension with immediate effect. Subsequent to passing of aforesaid order, regular inquiry in terms of provisions of Section 146 of of the Act was ordered into charges framed against respondent No.4 and Sub-Divisional Officer, (Civil) Nichar at Bhawa Nagar rt (Kinnaur) was appointed as an Inquiry Officer and he submitted report (Annexure P-2), which was further accepted by Deputy Commissioner, Kinnaur. Deputy Commissioner after hearing respondent No. 4 passed order dated 29.4.2010 (Annexure P-3).
Deputy Commissioner while revoking suspension of respondent No.4, debarred her from taking part in any act or proceedings of the Gram Panchayat for a period of six months with a warning to be vigilant in discharge of duty in future.
4. Being aggrieved and dissatisfied with the order (supra), present petitioner preferred an appeal under Section 148 read with Rule 143 of the Act before the Court of Divisional Commissioner, Shimla specifically laying challenge to the ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -6- revocation of suspension of respondent No.4 on the ground that Deputy Commissioner has fallen in grave error while revoking .
suspension of respondent No.4 despite holding him guilty of mis-
conduct and as such, prayed for quashing and setting aside of the order passed by the Deputy Commissioner. But Divisional Commissioner, Shimla vide order dated 4.11.2010 of rejected/dismissed the appeal filed by the present petitioner and upheld the order passed by the Deputy Commissioner.
5. rt Present petitioner being dis-satisfied with the order dated 4.11.2010 passed by the Divisional Commissioner Shimla filed revision petition under Section 148 read with Rule 143 of the HP Panchayati Raj (General) Rules, 1994 before the Secretary Panchayati Raj, Himachal Pradesh, Shimla-9, however, the Secretary, Panchayati Raj, vide order dated 24.11.2010 dismissed the same and upheld the orders passed by the authorities below.
Hence this civil writ petition.
6. As per the petitioner, all the charges leveled against respondent No.4 were duly proved and same were accepted by the Deputy Commissioner but despite that suspension of respondent No.4 was revoked on very flimsy grounds. Petitioner ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -7- further averred in the petition that Deputy Commissioner while passing order dated 29.4.2010 has fallen in grave error while .
revoking suspension of respondent No.4 because bare perusal of order dated 29.10.2009, passed by the District Panchayat Officer, Kinnaur, HP and inquiry report submitted by Inquiry Officer clearly suggest that all the charges framed against respondent No. 4 of were duly proved and she was rightly placed under suspension by the District Panchayat Officer. Petitioner further averred that rt once the report was accepted by the Deputy Commissioner, he ought to have initiated action against respondent No. 4 under Section 146 of Himachal Pradesh Panchayati Raj Act, which is reproduced herein below:-
"146. Removal of office bearers of Panchayats:-
(1) The State Government, in the case of office bearers of Panchayats, the Divisional Commissioner having jurisdiction, in the case of office bearers of Zila Parishad, and the Deputy Commissioner having jurisdiction, in the case of office bearers of Panchayat Samiti and Gram Panchayat, as the case may be, after such enquiry as it may deem fit to make at any time, remove an office bearer.
a) if he has incurred any disqualification under this Act.::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -8-
b) if he has been guilty of misconduct in the discharge of his duties; or
c) if he refuses to act or becomes incapable of .
acting or is adjudged an insolvent;
d) If he without reasonable cause absents himself from more than half of the meetings convened within a period of six months;
e) if his continuance in office is undesirable in the of interest of the public:
Provided that no person shall be removed unless he has been given an opportunity to show cause why rt he should not be removed from his office. Explanation- For the purpose of this sub-section "misconduct" shall include-
a) any action which adversely affects-
(i) the sovereignty, unity and integrity of India; or
(ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste, or sectional diversities ; or
(iii) the dignity of women; or
(b) gross negligence in the discharge of the duties under this Act;
(c) the failure of the Pradhan of a Gram Panchayat, or Chairman of Panchayat Samiti or Zila Parishad, to convene the meeting of the Gram Sabha, Gram Panchayat, Panchayat ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP -9- Samiti or Zila Parishads, as the case may be, at regular intervals as specified under this Act.
1[(1-A) The State Government, the Divisional .
Commissioner or the Deputy Commissioner, as the case may be, may, on consideration of the enquiry report or if it thinks proper, for reasons to be recorded in writing, revoke the suspension order and instead of removing an office bearer, warn him to of be vigilant in the discharge of his duties or may also debar him from taking part in any act or proceedings of the Panchayat for the period of six rt months.] (2) A person who has been removed under sub-
section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected as office bearer of a Panchayat under this Act.
7. The petitioner also stated in his petition that in view of the charges, which stand duly proved on record against respondent No.4, Deputy Commissioner while exercising power under Section 146 (reproduced herein above) should have removed respondent No. 4 from the post of Gram Panchayat.
Since Deputy Commissioner despite finding respondent No. 4 guilty of mis-conduct, revoked her suspension and only debarred ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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her from taking part in any act or proceedings of Gram Panchayat for the period of six months with warning to be vigilant .
in discharging her duties in future, present petition has been filed specifically laying challenge to the impugned order as referred above.
8. I have heard learned counsel for the parties as well of carefully gone through the record.
9. It is undisputed that on the basis of complainant filed rt by the present petitioner, inquiry was conducted against respondent No.4 by District Audit Officer, who found respondent No. 4 guilty of misappropriation, embezzlement of Government/Panchayat funds and mis-conduct and accordingly, issued show-cause notice dated 21.8.2009. It is also undisputed that subsequent to issuance of show cause notice, respondent No. 4 filed reply but same was rejected being devoid of any merit.
On 29.10.2009, District Panchayat Officer in exercise of power vested under Section 146 of the Act, placed respondent No. 4 under suspension and passed following orders:-
Order:-
"On the basis of complaint made by Up-Pradhan, Gram Panchayat Kafnoo, Tehsil Nichar, District Kinnaur, ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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Himachal Pradesh, an inquiry was conducted into the alleged acts of omission and commission of Smt. Rajeshwari Negi, Pradhan, Gram Panchayat Kafnoo .
and District Audit Officer (Panchayat), Kinnaur at Reckong Peo was appointed as Inquiry Officer. On due inquiry, in which Smt. Rajeshwari Negi, participated, the Inquiry Officer found 3 cases of misappropriations, misutilization of Government/ of Panchayat funds and misconduct against Smt. Rajeshwari Negi, Pradhan Gam Panchayat, Kafnoo.
A clarification in the matter was sought from the rt directorate of Panchayati Raj Department vide letter No: KNR (GP) Kafnoo-178 dated 09-04-2009 and the undersigned was directed vide letter No. PCH-HA(5) 48/95-Kafnoo-9241 dated 27/7/2009 to discuss the matter with Deputy Commissioner, Kinnaur.
Subsequently the matter was discussed. After going through the enquiry report, record of the case and discussion with higher authorities, the inquiry report was accepted and Show Cause Notice under Section 145(2-A) of HP Panchayati Raj Act, 1994 was issued upon said Smt. Rajeshwari Negi vide this office letter No. 2701-03 dated 21-08-09. Three instances of misappropriation, embezzlement, misconduct and other illegalities were enumerated. The Charge Sheet along with copy of inquiry report and related document were also provided to Smt. Rajeshwari Negi with the Notice. The reply filed by the Pradhan Smt. ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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Rajeshwari Negi was examined carefully and was found frivolous and devoid of merit hence rejected.
For the sake of convincing and ready reference, the .
charges as enumerated in the notice dated 21.8.2009 against Smt. Rajeshwari Negi are as follows:-
"1. As per last para mentioned at Sr. No. 5 of Inquiry Report the decision to celebrate the function of 15th August, 2006 was taken by of Gram Panchayat and the function was celebrated. Shri B.R. Mehta was invited as chief guest in this function. A sum of Rs. 10,000/- was rt donated to the Panchayat by the chief guest. Since 15th August, 2006 Pradhan kept the money with her till date the money was not deposited in Panchayat account after issuing from-3. Hence misuse of Rs. 10,000/-
2. As per Sr. No.6 of inquiry report Pradhan Smt. Rajeshwari Negi has distributed 151 DTH dishes to the local people. Out of which 25 DTH dishes were distributed to the families of people who are in Government/Non-Government jobs and thus disobeyed the Government orders. She has misutilized the powers of her post and issued the fake certificate of non-employment to 25 persons. Besides this four names out of the list of 151 persons submitted to the office of SDM (C) Nichar for demanding dishes were cut and new names were added to the list by ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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herself without informing SDO (C) Nichar. Thus misused her authority.
3. According to Serial Number 8 (3) of Inquiry .
Report no approval is being obtained from work execution committee for releasing payment of any work whereas work execution committee has an important role in transparency of work execution."
of The above charges prima-facie discloses misappropriation or embezzlement of Government/ Panchayat funds on the part of said Smt. Rajeshwari rt Negi, Pradhan. Smt. Rajeshwari Negi has been misusing her authority as the Pradhan of Gram Panchayat Kafnoo to do illegal acts and misconduct. The findings of the Inquiry Officer are based on record and there are sufficient reasons to accept these findings.
For the reason recorded heretofore in this order it is clear that continuation of Smt. Rajeshwari Negi as a Pradhan of Gram Panchayat Kafnoo is prejudicial to the interest of proper function of the Panchayat and Public.
Therefore in exercise of the powers vested under sub-
Section (1) (c) of Section 145 of Himachal Pradesh Panchayati Raj Act, 1994 and Rule 142 of Himachal Pradesh Panchayati Raj (General ) Rule 1997 the said Smt. Rajeshwawri Negi, Pradhan Gram Panchayat Kafnoo is placed under suspension with immediate effect.
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Issued under my hand and seal of the office on 29th day of October, 2009."
10. Subsequent to passing of aforesaid order passed by .
District Panchayat Officer, Deputy Commissioner Kinnaur, in terms of Section 146 of the Act ordered regular inquiry into the charges framed against respondent No.4. S.D.O. (Civil) at Bhawa Nagar conducted inquiry and submitted his report, wherein he of concluded that all the three charges framed against respondent No.4 are proved as genuine.
rt However, Deputy Commissioner vide order dated 29.4.2010 passed under Section 146 of the Act, wherein suspension of respondent No. 4 was revoked and debarred her from taking part in any act or proceedings of Gram Panchayat for six months with the warning to be vigilant in discharge of her duties in future. It is also matter of record that being aggrieved with order dated 29.4.2010 passed by learned Deputy Commissioner, present petitioner filed appeal before Divisional Commissioner Shimla, which was dismissed on 4.11.2010.
Present petitioner filed appeal and revision before Divisional Commissioner, Shimla and Secretary, Panchayati Raj, but fact remains that both were dismissed by the authorities mentioned above vide orders dated 4.11.2010 and 24.11.2010 respectively.
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11. Before ascertaining the genuineness and correctness of the order dated 29.4.2010 passed by the Deputy Commissioner .
Kinnaur, it would be profitable to reproduce herein below order passed by the Deputy Commissioner:-
"Whereas Smt. Rajeshwari Negi, Pradhan Gram Panchayat Kafnoo, Tehsil Nichar, District Kinnaur, Himachal Pradesh was placed under suspension by the of Audit Officer (Panchayat) under Section 145 of HP Panchayati Raj Act, 1994. After suspension a regular inquiry was ordered into the charges framed against rt her and Sub-Divisional Officer (Civil) Nichar at Bhawanagar, District Kinnaur was appointed Inquiry Officer. The Inquiry Officer has submitted his report. Whereas going through the inquiry report submitted by the Sub-Divisional Officer (C) Nichar, District Kinnaur, in the case of Smt. Rajeshwari Negi, suspended Pradhan of Gram Panchayat Kafnoo, Dev. Block Nichar, District Kinnaur, under section 146 of Himachal Pradesh Panchayati Raj Act, 1994, the report was accepted. Whereas in person hearing of the said Pradhan on dated 26.4.2010, and keeping in view facts of the case and other circumstances, the charges framed against suspended Pradhan, Smt. Rajeshwari Negi has not been found of serious nature. It appears that she has failed to discharge her duties properly due to ignorance on her part. But ignorance cannot be accepted as an excuse.::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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Whereas for the reason recorded herewith in the order, it is clear that she is guilty of misconduct, hence punisahable under provisions of Panchayati Raj Act .
and Rules.
Therefore in accordance with the provisions under Section 146(1-A) of the Himachal Pradesh Panchayati Raj Act, 1994, I Mamta, (IAS), Deputy Commissioner, Kinnaur, HP, hereby revoke the suspension and of debarred Smt. Rajeswari Negi, Suspended Pradhan. Gram Panchayat Kafnoo from taking part in an act or proceedings of Gram Panchayat for the period of six rt months with the warning to be vigilant in discharging of her duties in future."
12. Careful perusal of aforesaid order clearly suggests that Deputy Commissioner had accepted the report given by Inquiry Officer appointed by her, for conducting proceedings under Section 146 of HP Panchayati Raj Act 1994. However, Deputy Commissioner while passing aforesaid order though observed that "keeping in view the facts of the case and other circumstances, the charges framed against suspended Pradhan has not been found of serious nature." But she further concluded that it appears that Pradhan failed to discharge her duties appropriately due to ignorance on her part but ignorance cannot be accepted as an excuse. Findings, if any returned by the Deputy ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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Commissioner while passing aforesaid order nowhere suggests that Deputy Commissioner at any point of time applied her mind .
to the findings returned by the Inquiry Officer, in his report. I.O.
categorically returned the finding that all the three charges framed against respondent No.4 are proved as genuine. At this stage, it is not understood that on what basis, Deputy of Commissioner, despite there being inquiry report, came to conclusion that charges framed against suspended Pradhan has rt not been found of serious nature. It is also not understood that how Deputy Commissioner, ignoring the report of Inquiry Officer could conclude that "It appears that Pradhan has failed to discharge her duties due to ignorance on her part". Moreover, in the order dated 29.4.2010, Deputy Commissioner specifically concluded that "It is clear that she is guilty of mis-conduct hence punishable under provisions of Panchayati Raj Act and Rules."
13. Now, at this stage, question which remains to be determined by this Court is "whether punishment imposed by Deputy Commissioner vide 29.4.2010 was appropriate or not, specifically in view of the fact that respondent No. 4 was held ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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guilty of mis-conduct. At this stage, it would be apt to reproduce herein below Section 146.
.
"146. Removal of office bearers of Panchayats:-
(2) The State Government, in the case of office bearers of Panchayats, the Divisional Commissioner having jurisdiction, in the case of office bearers of Zila Parishad, and the Deputy Commissioner having jurisdiction, in the of case of office bearers of Panchayat Samiti and Gram Panchayat, as the case may be, after such enquiry as it may deem fit to make at any time, remove an office rt bearer.
f) if he has incurred any disqualification under this Act.
g) if he has been guilty of misconduct in the discharge of his duties; or
h) if he refuses to act or becomes incapable of acting or is adjudged an insolvent;
i) If he without reasonable cause absents himself from more than half of the meetings convened within a period of six months;
j) if his continuance in office is undesirable in the interest of the public:
Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. Explanation- For the purpose of this sub-section "misconduct" shall include-
a) any action which adversely affects-
(i) the sovereignty, unity and integrity of India; or ::: Downloaded on - 15/04/2017 20:56:48 :::HCHP
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(ii) the harmony and the spirit of common brotherhood amongst all the people of State transcending religious, linguistic, regional, caste, or sectional diversities ; or .
(iii) the dignity of women; or
(b) gross negligence in the discharge of the duties under this Act;
(c) the failure of the Pradhan of a Gram Panchayat, or Chairman of Panchayat Samiti or Zila Parishad, to of convene the meeting of the Gram Sabha, Gram Panchayat, Panchayat Samiti or Zila Parishads, as the case may be, at regular intervals as specified under this rt Act.
1[(1-A) The State Government, the Divisional Commissioner or the Deputy Commissioner, as the case may be, may, on consideration of the enquiry report or if it thinks proper, for reasons to be recorded in writing, revoke the suspension order and instead of removing an office bearer, warn him to be vigilant in the discharge of his duties or may also debar him from taking part in any act or proceedings of the Panchayat for the period of six months.] (2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected as office bearer of a Panchayat under this Act."
14. Careful perusal of aforesaid section clearly suggests that Deputy Commissioner having jurisdiction in the case of office ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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bearers of Gram Panchayat, as the case may be, after inquiry, may remove an office bearer, if he/she is held guilty of mis-
.
conduct in the discharge of his/her duties. Further word "misconduct" has been interpreted in the explanation to the Section-146, wherein clause-B of explanation "gross negligence in the discharge of the duties under this Act has also been termed as of mis-conduct." However Section 1[1-A] which has been brought in by amendment suggests that Deputy Commissioner on rt consideration of inquiry report or if it thinks proper, for reasons to be recorded in writing can revoke the suspension order and instead of removing an office bearer warn him to discharge his duties or may also debar him from taking any part in any act or proceedings of the Panchayat for a six months but before passing any order under Section 1 (A), Deputy Commissioner while revoking suspension, needs to record reasons for the same.
Further perusal of clause-2 of Section 146 clearly suggests that person removed under Section (1) would cease to be a member of any other Panchayat of which he is a member and such persons shall be disqualified for a period of six years to be elected as office bearer of Panchayat under this Act.
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15. In the present case, Mr. B.C. Negi Senior Advocate assisted by Mr. P.P. Singh, Advocate, representing the petitioner .
while inviting attention of this Court to the order dated 29.10.2009 passed by the District Panchayat Officer, Kinnaur and inquiry report dated 29.10.2009 submitted by Inquiry Officer, vehemently argued that bare perusal of the inquiry report suggests that of charges framed against respondent No.4 were duly proved as genuine and as such, she was rightly found guilty of mis-conduct rt by the Deputy Commissioner, Kinnaur. Mr. Negi vehemently contended that bare perusal of order dated 29.4.2010, nowhere suggests that while revoking suspension of respondent No.4, Deputy Commissioner recorded reasons much less plausible reasons, which could be sufficient to conclude that charges framed against suspension of respondent No.4 were not of serious nature. Mr. Negi also argued that it is not borne out of record that on what basis Deputy Commissioner came to conclusion that respondent No. 4 failed to discharge her duties due to ignorance on her part and same cannot be accepted as an excuse. Mr. Negi, strenuously argued that Deputy Commissioner, Divisional Commissioner and Secretary Panchayati Raj, while passing ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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impugned orders have fallen in grave error and have wrongly revoked the suspension of respondent No.4 despite the fact that .
she was found to be guilty of mis-conduct. Mr. Negi further argued that Deputy Commissioner ought to have disqualified respondent No.4 for a period of six years to be elected as office bearer of Panchayat under Act strictly in terms of Section 146 (2) of in the given facts and circumstances of the case, where it stood proved that respondent No.4 was guilty of mis-conduct in rt discharge of her duties.
16. On the other hand, Mr. Dibender Ghosh, Advocate representing respondent No. 4 stated that Deputy Commissioner on the basis of inquiry report, revoked the suspension but with the rider that respondent No. 4 would not be taking part in any act or proceedings of Gram Panchayat for a period of six months and as such, it cannot be said that Deputy Commissioner has failed in discharging her duties strictly in terms of Section 146 of the Act.
He also invited attention of this Court to the Sub-Section 1 (A) of Section 146 to substantiate his plea that Deputy Commissioner was well within his powers to revoke suspension after considering ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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the inquiry report and as such, same cannot be termed to be illegal as is being projected by the petitioner.
.
17. Mr. Rupinder Singh Thakur, Additional Advocate General, duly assisted by Mr. Rajat Chauhan, Law Officer, representing respondents No. 1 to 3 also supported the impugned orders passed by the Deputy Commissioner, Divisional of Commissioner and Secretary, Panchayati Raj. Mr. Thakur vehemently argued that petitioner has no right whatsoever, to determine rt the mode and extent of punishment awarded/imposed by the authorities under the Act. Mr. Thakur, contended that it duly stands proved on record that on the complaint of the petitioner, action was initiated against respondent No. 4 and on the basis of inquiry report, adequate punishment was awarded by the Deputy Commissioner and as such, no interference, whatsoever, of this Court is warranted in the present facts and circumstances. He also invited attention of Section 1(A) of Section 146 to suggest that Deputy Commissioner while passing order dated 29.4.2010 was well within rights to revoke the suspension.
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18. However, this Court after perusing order dated 29.4.2010 passed by the Deputy Commissioner is not in position to .
accept the aforesaid contention having been put forth on behalf of respondents because bare perusal of impugned order passed by the Deputy Commissioner nowhere suggests that there is any application of mind, rather, close scrutiny of aforesaid order of passed by the Deputy Commissioner suggests that Deputy Commissioner completely ignored the report of Inquiry Officer and rt came to conclusion that charges framed against respondent No. 4 have not been found of serious nature. At the cost of repetition, it is also not understood that on what basis Deputy Commissioner concluded that respondent No. 4 failed to discharge duties due to ignorance on her part. It is not understood when Deputy Commissioner while accepting the report of the inquiry Officer came to conclusion that respondent No. 4 is guilty of mis-conduct as punishable under provisions of Act and Rules, how she could observe that charges framed against the suspended Pradhan have not been found of serious nature. This Court had an occasion to see into the charges framed against respondent No. 4 as well as inquiry report, perusal whereof clearly suggests that ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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charges were of serious nature. Apart from above, this Court was unable to lay its hand to any document suggestive of the fact .
that act of omission and commission was committed by respondent No. 4 due to ignorance on her part and as such, reasons assigned by the Deputy Commissioner in the impugned order dated 29.4.2010 are not tenable at all. No doubt perusal of of Sub-Section 1(A) Section 146 of the Act though empowers Deputy Commissioner to revoke suspension order and instead of removing rt office bearer may pass order in writing warning him/her to be vigilant in discharge of his/her duties or may also debar him/her from taking part in any act or proceedings for the six months but in that eventuality, Deputy Commissioner needs to assign reasons in writing for the same. But in the present case, perusal of order dated 29.4.2010, passed by Deputy Commissioner nowhere discloses any reasons, much less sufficient reasons, to revoke suspension and debarring respondent No.4 from taking part in proceedings of Gram Panchayat for a period of six months instead of awarding punishment of removal as provided under Section 146 (2). Similarly, perusal of orders passed by the Divisional Commissioner and Secretary, Panchayati Raj also nowhere, ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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suggests that they examined the aforesaid illegality committed by the Deputy Commissioner while passing order dated 29.4.2010, .
rather both the authorities in stereotyped manner without specifically dealing with grounds taken by the petitioner in appeal as well as revision petition agreed with penalty imposed upon respondent No.4 in terms of Section 146 1 (A) of the Act debarring of respondent No. 4 from taking part in the proceedings for a period of six month.
19. rt This Court is at loss to fathom that on what basis aforesaid authority came to conclusion that respondent No. 1 committed minor irregularities. Once it stands duly proved on record that respondent No. 4 being Pradhan of Gram Panchayat misusing her authority as Pradhan indulged in illegal acts and mis-
conduct, this Court is of the view that no grounds were available with the authorities referred herein above to conclude that respondent No.4 committed minor irregularities. Perusal of inquiry report leaves no doubt that respondent No.4 mis-
appropriated/embezzled Govt./Panchayat funds misusing her authority as Gram Panchayat Pardhan of Kafnoo and as such, this Court finds it difficult to accept the reasoning, if any, given in the ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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order dated 29.4.2010 passed by the Deputy Commissioner while revoking suspension of respondent No.4.
.
20. Though this Court after going through the records is of the view that learned Deputy Commissioner has not acted in accordance with Section 146 of the Act while revoking suspension of respondent No. 4 and debarring her from taking part in of proceedings of Gram Panchayat for six months because no reason, whatsoever, has been assigned in aforesaid order while rt passing aforesaid punishment. Though this is the domain of the disciplinary authority to award punishment, if any, commensurating the alleged irregularity. But after perusing inquiry report, which was duly accepted by Deputy Commissioner, this Court is of the view that punishment imposed against respondent No. 4 by the Deputy Commissioner is not adequate. It is well settled law that when disciplinary proceedings are initiated and findings of fact are recorded in such inquiry, they cannot be interfered with unless such are not based on any evidence or are perverse. But similarly, if court comes to conclusion that action taken by the authority is contrary to law, improper, irrational or otherwise unreasonable, it can interfere with such action by ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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exercising powers under judicial review and one such mode of exercising power known to law is the doctrine of proportionality. In .
this regard reliance is placed on judgment passed by Hon'ble Apex Court in Coimbatore District Central Cooperative Bank vs. Coimbatore District Central Cooperative Bank Employees Assn. and Another. (2007) 4 SCC 669, which is as under:-
of "DOCTRINE OF PROPORTIONALITY
17. So far as the doctrine of proportionality is rt concerned, there is no gainsaying that the said doctrine has not only arrived at in our legal system but has come to stay. With the rapid growth of Administrative Law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the 'doctrine of proportionality'.
18.'Proportionality' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in .
focus true nature of exercise - the elaboration of a rule of permissible priorities.
19. de Smith states that 'proportionality' involves 'balancing test' and 'necessity test'. Whereas the former ('balancing test') permits scrutiny of excessive onerous of penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter ('necessity test') requires infringement of human rt rights to the least restrictive alternative. ['Judicial Review of Administrative Action'; (1995); pp. 601-605; para 13.085; see also Wade & Forsyth; 'Administrative Law'; (2005); p.366].
20. In Halsbury's Laws of England, (4th edn.); Reissue, Vol.1(1); pp.144-45; para 78, it is stated;
"The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a .
separate ground for review in English law, but is regarded as one indication of manifest unreasonableness."
21. The doctrine has its genesis in the field of Administrative Law. The Government and its of departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with rt full personal consideration without abuse of discretion. There can be no 'pick and choose', selective applicability of Government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a 'sledge- hammer to crack a nut'. As has been said many a time;
"Where paring knife suffices, battle axe is precluded".
29. DOCTRINE OF PROPORTIONALITY : WHETHER APPLICABLE:-
From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been .
recorded in such inquiry, it cannot be interfered with unless such finding is based on 'no evidence' or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding. In the present case, four of charges had been levelled against the workmen. An inquiry was instituted and findings recorded that all the four charges were proved. The rt Labour Court considered the grievances of the workmen, negatived all the contentions raised by them, held the inquiry to be in consonance with principles of natural justice and findings supported by evidence. Keeping in view the charges proved, the Labour Court, in our opinion, rightly held that the punishment imposed on workmen could not be said to be harsh so as to interfere with it.
34. As observed by this Court in M.P. Gangadharan & Anr. v. State of Kerala & Ors., (2006) 6 SCC 162, the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straight-jacket formula. It must be considered keeping in view the doctrine of flexibility. Before ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court .
observed that we are not unmindful of the development of the law that from the doctrine of 'Wednesbury unreasonableness', the Court is leaning towards the doctrine of 'proportionality'. But in a case of this nature, the doctrine of of proportionality must also be applied having regard to the purport and object for which the Act was enacted."
21. rt Reliance is placed on judgment rendered by this Court in Duni Chand Dhiman v. State of HP , Latest HLJ, 789, relevant paras are reproduced herein below:-
"3.Heard. The petitioner has been placed under suspension under Section 145 of the H.P. Panchayati Raj Act, 1994 (for short: the Act). The suspension order as well as the notice preceding suspension order clearly stated that the petitioner is being placed under suspension in terms of Sub-section (2) of Section 145 of the Act. Even during the course of hearing of the case today, Mr. Chandel, learned Advocate General appearing for the respondents specifically stated before us that the suspension order was passed in terms of sub Section (2) of Section 145 of the Act.
4. Sub- Section (2) (supra), inter-alia, provides that the Prescribed Authority may suspend an office bearer of a ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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Panchayat where the inspection or an audit report discloses the misappropriation, misutilization or embezzlement of Panchayat funds by such an office .
bearer and the Prescribed Authority is satisfied that continuance in office of such a person will prejudice the enquiry under Section 146 and that the Prescribed Authority apprehends tampering of record and witnesses by such an office bearer.
of Sub-section (2) is reproduced hereunder for ready reference. It reads thus:
rt (2) Where the inspection or an audit report discloses the misappropriation, misutilization or embezzlement of Panchayat funds by an office bearer of a Panchayat and the prescribed authority is satisfied that continuance in office of such a person will prejudice the enquiry under Section 146 and apprehends tampering with record and witnesses, may suspend such a person and in case he is in possession of any record, money or any property of the Panchayat, order him to handover such records, money or property to the Secretary of the Panchayat.
4. A perusal of the show cause notice as well as the impugned suspension order clearly suggests and reveals that the Prescribed Authority has not at all recorded its satisfaction in any manner about the aforesaid twin requirements of law, viz. that the ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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continuance in office of the petitioner (as an office bearer of the Panchayat) will prejudice the enquiry under Section 146 of the Act and that the Prescribed .
Authority also apprehends that the petitioner may tamper with the record and the witnesses. Recording of the satisfaction in the aforesaid terms in the suspension Order itself as also in the show cause notice preceding the same is a sine qua non to the passing of the of suspension order under Sub-section (2) of Section 145 of the Act and this admittedly not having been done in the present case, the suspension order suffers from a rt patent error of law on the face of it. On this ground alone, it deserves to be quashed and set aside."
22. Reliance is also placed on judgment rendered by the Hon'ble Apex Court in Raghubir Singh v. General Manager, Haryana Roadway, Hissar, (2014) 10 SCC 301, which reads as follows:-
"38. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the Rule of the 'Doctrine of Proportionality' in ensuring preservation of the rights of the workman. The principle of 'Doctrine of Proportionality' is a well recognized one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The above said important doctrine has to be followed by the employer/employers at the time of taking ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen.
.
39. The above said "Doctrine of Proportionality" should be applied to the fact situation as we are of the firm view that the order of termination, even if we accept the same is justified, it is disproportionate to the gravity of misconduct. In this regard, it would be appropriate of for us to refer to certain paragraphs from the decision of this Court in the case of Om Kumar and Ors. v. Union of India, wherein it was held as under:- (SCC pp.410-11, rt paras 66-68) "66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Hence the Court deals with the merits of the balancing action of the administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority.
67. But where, an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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indisciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the .
Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from of consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action rt does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan vs. Jalgaon Municipal Council] AIR 1991 SC 1153)]. Venkatachaliah, J.
(as he then was) pointed out that
'reasonableness' of the administrator under
Article 14 in the context of administrative law has to be judged from the standpoint of Wednesbury rules. In Tata's Cellular vs. Union of India (SCC at pp. 679-80), Indian Express Newspapers (P) Ltd. v.
Union of India (SCC at p. 691), Supreme Court Employees' Welfare Association vs. Union of India and Anr. (SCC at p.241) and U.P. Financial Corporation v. GEM CAP (India) Pvt. Ltd. ( SCC at p.307 ), while Judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying .
proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles apply."
40. Additionally, the proportionality and punishment in of service law has been discussed by this Court in the Om Kumar case (supra) as follows:- (SCC pp.411-12, paras 69-70) rt "69. The principles explained preceding paragraph in respect of Article 14 are in the last now to be applied here where the question of 'arbitrariness' of the order of punishment is questioned under Article14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur vs. Union of India, this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was hockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v.Union of India, this Court stated that the Court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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award an alternative penalty. It was also so stated in Ganayutham."
41. With respect to the proportionality of the .
punishment of 'censure', it was further observed by this Court in the Om Kumar case that:- (SCC p.413, para75) "75. After giving our anxious consideration to the above submissions and the facts and the legal principles above referred to, we have finally of come to the conclusion that it will be difficult for us to say that among the permission minor punishments, the choice of the unishment of rt 'censure' was violative of the Wednesbury rules. No relevant fact was omitted nor irrelevant fact was taken into account. There is no illegality. Nor could we say that it was shockingly disproportionate. The administrator had considered the report of Justice Chinnappa Reddy Commission, the finding of the Inquiry Officer, the opinion of the UPSC which was given twice and the views of the Committee of Secretaries. Some were against the officer and some were in his favour. The administrator fell that there were two mitigating factors (i) the complicated stage at which the officer was sent to DDA and (ii) the absence of malafides. In the final analysis, we are not inclined to refer the matter to the Vigilance Commissioner for upward revision of punishment."
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23. Though, it is the complete domain of the competent authority to award adequate punishment on the basis of inquiry .
report and Court has no role, whatsoever, to substitute its own view to that of disciplinary authority for the purpose of awarding punishment. But, as has been discussed above, Court is shocked to see the punishment which has been awarded to respondent of No.4. It is well settled law that if some orders passed in disciplinary proceedings shocks the conscious of the Court, Courts can pass rt order directing the authority to pass appropriate adequate punishment which commensurate with the offence committed by the delinquent officer/official. Since decision qua the punishment, if any, keeping in view the gravity of offence involved in the present case, is ultimately to be taken by the authority, this Court sees no occasion, whatsoever to propose some penalty which can be imposed in the case of respondent No.4. But, admittedly, in plenty of cases Hon'ble Apex Court has repeatedly held that what should be the adequate penalty/punishment in the case of embezzlement/ mis-appropriation. In the present case, since this Court is of the view that adequate penalty, if any, to be imposed by the authority concerned, does not deem it proper to propose ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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any penalty, rather thinks it fit to leave it to the wisdom of the authority.
.
24. In this regard reliance is placed on the following decisions, which can be a guiding factor to the authority while imposing punishment. (See: Municipal Committee, Bahadurgarh vs. Krishnan Behari and Others, AIR 1996 SC 1249, Janatha Bazar of (South Kanara Central Cooperative Wholesale Stores Ltd.) and Others vs. Secretary, Sahakari Noukarara Sangha and Others, rt (2000)7 SCC 517, Regional Manager, RSRTC vs. Ghanshyam Sharma, (2002)10 SCC 330, Narendra Nath Bhalla vs. State of Uttar Pradesh and Others, (2007)15 SCC 775 , Dharam Swaroop vs. Hon'ble High Court of H.P. and another, 2010(2) HLJ 846, and Sh.Madan Lal Sharma vs. H.P. Khadi & Village Industries Board, Cleave Land, Shimla through its Chairman, Latest HLJ 2012 (HP) 1432.)
25. In view of the facts and circumstances, this Court deems it fit to leave it to the authority concerned to re-examine the matter in view of the observations made herein above as well as law laid down by the Hon'ble Apex Court as well as this Court from time to time.
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26. Reliance is also placed on judgment rendered by the Hon'ble Apex Court in South Bengal State Transport Corporation v.
.
Ashok Kumar Ghosh and Others, (2010) 11 SCC 71, which reads as follows:-
20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or of service, he cannot be reverted to a post lower than the post in which he entered service (See: Nyadar Singh vs. Union of India - AIR 1988 SC 1979). Further it is also well rt settled that reversion to a lower post or service does not permit reversion to a post outside the cadre that is from regular post to a daily wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law.
21. However we are of the view that the reasoning of the High Court for quashing the order of punishment is not sustainable. While we do not agree with the High Court that the enquiry is to be set aside on the ground of bias, we agree that the punishment imposed by the disciplinary authority requires to be modified. Though, normally, in such a situation the matter should be referred back to the disciplinary authority for imposition of fresh penalty, having regard to the facts and ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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circumstances and to do complete justice, we propose to impose the penalty.
22. We accordingly allow this appeal in part with the .
following directions:
(a) The judgment of the High Court is set aside and the finding of guilt recorded by the Disciplinary Authority is upheld.
(b) The punishment imposed by the appellant is of set aside and the direction for reinstatement is upheld.
(c) However as the punishment is being set aside rt and reinstatement is directed on a technical ground, the respondent-employee will not be entitled to any back wages.
(d) Instead of reversion to the post of daily wage conductor we substitute the punishment as reduction to the lowest stage of the time scale applicable to the post of conductor with effect from the date of imposition of punishment.
27. Consequently, in view of the aforesaid discussion, impugned order dated 29.4.2010 (P3), 4.11.2010 (P4) and 24.11.2010 (P5) are quashed and set-aside and concerned authority is directed to pass order on the basis of inquiry report i.e. (Annexure-P2) afresh in accordance with law as well as observations made by this Court within one month from the date ::: Downloaded on - 15/04/2017 20:56:49 :::HCHP
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of passing this judgment. The petition is allowed and disposed of, so also pending applications, if any.
.
August 02, 2016 (Sandeep Sharma),
manjit Judge.
of
rt
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