Punjab-Haryana High Court
Hazari Lal, Sarpanch, Gram Panchayat vs The Financial Commissioner And ... on 31 March, 2003
Equivalent citations: (2003)135PLR596
JUDGMENT G.S. Singhvi, J.
1. This is a petition for quashing orders dated 6.5.2002 (Annexures P.3 and P.4) passed by Deputy Commissioner, Sonepat (respondent No. 2) and order dated 3.7.02 (Annexure P.5) passed by Financial Commissioner and Principal Secretary to Government, Haryana, Development and Panchayats Department (respondent No. 1) under Sections 51(1)(b) and 51(5) of the Haryana Panchayati Raj Act, 1994 (for short, 'the Act) respectively.
2. The petitioner was elected as Sarpanch of Gram Panchayat, Harsana Kalan, Block Sonepat in the year 2000. In January, 2002, the Gram Panchayat received grant from the State and Central Government for digging ponds in the village under JGSY and EAS schemes. The work under those scheme was to be done by engaging labourers who were to be paid wages in the form of wheat. Accordingly, the Gram Panchayat started the work of digging the ponds. On 19.2.2002, Block Development and Panchayat Officer, Sonepat (respondent No. 3) sent letter No. 358 to the petitioners to clarify his position against the alleged use of JCB machine for digging the ponds in violation of the provisions of the schemes. On 21.12.2002, the Economist from the office of Additional Deputy Commissioner, Sonepat, Sub Divisional Officer (Panchayati Raj), Sonepat and Junior Engineer are said to have visited the spot and found that digging was being carried out by JCB machine. They are said to have asked the petitioner to stop the use of JCB machine but he did not comply with their directive. Upon this, respondent No. 3 sent report to respondent No. 2 incorporating the alleged violation of the scheme by the petitioner. Vide letter dated 27.3.2002, respondent No. 2 asked respondent No. 3 to conduct preliminary enquiry. The latter submitted report with the finding that the petitioner is prima facie guilty of the following allegations:
"That vide letter No. 358 dated 19.2.2002 of Block Development and Panchayat Officer, you were asked to give clarifications and not to use JCB machine and getting the pond dug manually in accordance with the Government procedure but despite the receipt of the letter you continued the work of digging the pond with the JCB machine. On 21.2.2002, the economist from the office of Addl. D.C. Sonepat, Sub Divisional Officer (Panchayat Raj), Sonepat and Junior Engineer went to the spot. At that time also, the digging of the pond was being carried on by JCB machine. At the spot despite told not to do so, you continued to dig the pond with the help of JCB machine. Thereafter, BDPO and Social Education Officer went to the spot, the digging was being conducted with the JCB machine and dampers were also employed. And the filling of the plots was being carried on by the villagers with the help of the dampers. The machine and the dampers were stopped at the spot but you did not cooperate in stopping the same. Rather, you instigated the villagers by using inciting words for doing illegal acts and tried to spoil the social atmosphere of the village. Thus, you have misused your position by not getting the pond dug manually and by getting the same done with the help of JCB machine which is not in accordance with the government instructions for which you are guilty,"
Acting on the report of respondent No. 3, respondent No. 2 issued notice dated 25.3.2002 (Annexure P.1) to the petitioner to show cause as to why proceedings may not be initiated against him under Section 51(1)(b) and 51(3) of the Act on the ground of misuse of the office of Sarpanch and refusal to cooperate with the administrative authorities. The petitioner filed detailed reply dated 9.4.2002 (Annexure P.2) to controvert the allegations levelled against him. He categorically stated that the digging up of the ponds had been done by engaging labourers and poor people of the village and JCB machine had been engaged by some villages who wanted to fill up their plots from the earth excavated from the ponds. He also averred that not a single penny had been paid out of the Gram Panchayat fund on account of the so-called use of JCB machine. For the sake of reference, the extracts of the reply submitted by the petitioner are reproduced below:
"That sir, I am replying to letter No. 1148 within stipulated time and it is submitted that all the above mentioned allegations are absolutely wrong, false and baseless. I have nothing to do with these allegations. All these allegations have been imputed against me after due deliberation in furtherance to the conspiracy. I am aware about getting the digging of the pound by labourers and I have complete knowledge about that, I also know that there is no provision for employing JCB machine for digging. In compliance with the directions of the Government, the work of digging has been conducted by labourers and poor people, which has been got done under the scheme food grains in lieu of work (Kaam ke badle annaj) scheme. JCB machine has not been used in the above mentioned work. The money for digging with the help of machine has neither been given by the Gram Panchayat from its account nor has it been paid out of any other income of the Gram Panchayat nor from any grant received from Government. Rather on the other hand when the digging of the pond was being carried out, the villagers tried to fill their plot with the mud on which I (Sarpanch) directed them that whosoever wants to utilize the mud, he should not use the mud of the Panchayat rather he can get the mud dug at his own expenses and can utilize the same and can fill their plot which is beneficial to both the villagers as well as the Panchayat, Thereupon the villagers hired JCB machine and dampers on their own expenses, got the mud dug from the pond and filled their plots. The Gram Panchayat has nothing to do with this. In this connection, those people, who had filled their plots etc., had personally informed the BDPO, Sonepat. In this, the expenses of the JCB machine and Damper were made by the people themselves which was beneficial to both the parties. The digging which had been got conducted by the Panchayat was done through labourers and in lieu of this, the labourers were to be supplied with food grains. That entire work has been done in accordance with the scheme of the Government."
Thus, the above mentioned allegations are completely wrong, false and baseless and is pure mendacity. The Gram Panchayat and the Sarpanch has nothing to do with the JCB machine and the Dampers nor has the Sarpanch borne the rent etc of the above mentioned machine out of his own account or from the account of Gram Panchayat or out of any other Government grant.
That it is also correct that when District Block Development and Panchayat officer and Social Education officer had visited the pond in the village for spot inspection, the JCB machine was conducting the job of digging and the damper was doing its job and the villages were filing their respective plots with them. But it is absolutely wrong that the Sarpanch did not cooperate with the above mentioned officers. So far as the allegation of trying to spoil the atmosphere of the village by speaking inciting words is concerned, Sir, it is submitted that one person Bhagirath S/o Sh. Sheelak Ram, who had been a Sarpanch many times earlier also, it was his supporters who had gathered at the pond forcibly at that time. When the above said officers reached the spot, then these persons only had used the inciting words deliberately to give an impression to the higher officials so that the officers could initiate proceedings against me. These persons have no respect in the village and have nothing to do with the prosperity of the village. They are inclined to ruin the image of the village. They do not have the majority in the village. The above said accused/persons visit the courts daily and stand as false sureties for the people and used to get the poor and innocent people implicated in false cases. We did not allot the fishery tender in their favour though the above said persons wanted the pond illegally for fishery which I did not permit. And, I allotted the pond to the highest bidder in auction held as the Chaupal of the Village. But the above said person instigated his brother against me and got registered a false case against me regarding cancellation of the lease of the pond under Section 10A of Punjab and Village and Common Land Act, through his brother which is pending in the court of CJM Sonepat and is fixed for 19.4.2002. If so desired by your goodself, I can produce the papers regarding the above mentioned cases before your goodself. In addition to this Bhagirath gets the dirty water of his house and brother's house discharged into the pond meaning thereby they have opened the outlet of the dirty water of their houses into the pond. I tired my level best to stop it but he did not mend his ways and gets the dirty water discharged continuously. This person is vindictive to me. This person does not have the majority in the village."
However, without even adverting to his reply, what to say of objectively considering the same, respondent No. 2 passed two orders dated 6.5.2002 (Annexures P.3 and P.4). By one order (Annexure P.3), he placed the petitioner under suspension. The relevant extracts of that order are reproduced below:
"As per the preliminary enquiry report of BDPO Sonepat, Shri Hazari Lal Sarpanch, Harsana Kalan, Block Sonepat has been found guilty of following allegations:
The order for conducting a regular enquiry has already been passed vide letter No. 1732-36/Panchayat dated 6.5.2002 under Section 51(3) of Haryana Panchayati Raj Act, 1994 against Shri Hazari Lal Sarpanch.
Therefore, I, S.N. Rai, IAS am convinced that the allegation levelled against Hazari Lal Sarpanch is so serious in nature that he can be removed from the post of Sarpanch. Therefore, exercising the powers conferred under Section 51(1)(b) Haryana Panchayati Raj Act, 1994, I hereby suspend Shri Hazari Lal Sarpanch, Harsana Kalan, Block Sonepat, from his post. Shri Hazari Lal Sarpanch, Harsana Kalan, Block Sonepat is directed to hand over all movable/immovable properties to the Panch in majority forthwith."
3. By the other (Annexure P.4), he directed that regular enquiry be held against the petitioner. Appeal filed by the petitioner against his suspension was dismissed by respondent No. 1 with the observation that non-compliance of the government instructions regarding digging of pond is undoubtedly a misconduct falling within the scope of Section 51(3)(e) of the Act warranting removal of the Sarpanch.
4. The petitioner has challenged the impugned order on various grounds including violation of rules of natural justice as embodied in Section 51(1)(b) of the Act and arbitrary and mala fide exercise of power by the respondents.
5. The respondents have put up usual defence. Their plea is that the action was taken against the petitioner on the basis of fact finding report prepared by respondent No. 3. According to them, the petitioner had misused the funds made available to the Gram Panchayat under JGSY and EAS schemes and, therefore, it had become necessary to temporarily remove him from the office. Along with the written statement, the respondents have annexed copy of the instructions issued by the State Government for implementation of the schemes and a copy of notice dated 19.2.2002 sent to the petitioner to clarify his position. Copy of letter dated 28.2.2002 sent by respondent No. 3 to respondent No. 2 has also been placed on record as Annexure R.3.
6. We have heard Shri Hemant Bassi, learned counsel for the petitioner and Shri Jaswant Singh, Senior Deputy Advocate General, Haryana. Section 51 of the Act provides for suspension and removal of a Sarpanch or Panchayat. Sub-section (1) thereof, which empowers the Director or the Deputy Commissioner concerned to suspend Sarpanch or Panch reads as under:
"(1) The Director or the Deputy Commissioner concerned may, suspend any Sarpanch or Panch, as the case may be,
(a) where a case against him in respect of any criminal offence is under investigation, enquiry or trial, if in the opinion of the Director, or Deputy Commissioner concerned the case made or proceeding taken against him, is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character;
(b) during the course of an enquiry for any of the reasons for which he can be removed, after giving him adequate opportunity to explain."
An analysis of the provision reproduced above shows that the Director or the Deputy Commissioner concerned can suspend any Sarpanch or Panch in either of the two eventualities specified in Clauses (a) and (b) of Sub-section (1) of Section 51. The expression "after giving him adequate opportunity to explain" appearing in Clause (b) of Section 51 (1) represents the statutory embodiment of the most important facet of the rule of natural justice, i.e., audi alteram partem. The phrase "adequate opportunity to explain" has not been defined in the Act, but having regard to the grave consequences which flow from an order of suspension of an elected representative at the grass-root level, it is appropriate to take the view that before ordering suspending of a Sarpanch or Panch during the course of enquiry, the Director or the Deputy Commissioner concerned is duty-bound to give a reasonable opportunity to him/her to explain the allegation on which the enquiry is proposed to be held. This necessarily means that the Director or the Deputy Commissioner concerned, as the case may be, must give to the Sarpanch or the Panch a notice of the material and circumstances appearing against him/sought to be used against him with a clear indication that he/she can make representation against his/her proposed suspension. The Director or the Deputy Commissioner concerned is also under an obligation to consider the representation, if any, made or explanation, if any, given by the Sarpanch or Panch and men pass order giving reasons, howsoever briefly for not accepting the explanation/representation. In other words, the order passed by the Director or the Deputy Commissioner must reflect application of mind by the officer concerned to the explanation offered by the concerned Sarpanch or Panch. If an order of suspension is passed without adverting to or considering the explanation given by the Sarpanch or Panch, then the same is liable to be invalidated on the ground of violation of Section 51(1)(b) of the Act. The order of suspension is also liable to be nullified if the consideration of the explanation given by the Sarpanch or Panch lacks objectivity or the order passed by the Director or the Deputy Commissioner is devoid of reasons or the reasons recorded by the officer are extraneous or irrelevant.
7. In the backdrop of the above, we shall now consider whether order Annexure P.3 passed by respondent No. 2 satisfies the requirement of Section 51(1)(b). A perusal of the record shows that respondent No. 2 did issue notice to the petitioner to show cause against the proposed initiation of action under Section 51 of the Act on the allegation that he had violated the provisions of JGSY and EAS schemes. However, without even making a reference to the detailed reply filed by the petitioner to controvert the allegation and the assertion that the complaint was motived and that the finding recorded in the preliminary enquiry report was not based on correct facts, he passed order Annexure P.3 by assuming that whatever had been mentioned in the report of respondent No. 3 was gospel truth. He also ignored the petitioners' plea that JCB machine was used by the villages for taking out earth from the pond which was used for filling their plots and not a single penny had been paid out of Gram Panchayat funds for the alleged use of JCB machine for digging the ponds and that digging work had, in fact, been carried out by engaging labourers and poor persons who were paid wages in the form of food grains. Therefore, it must be held that the order of suspension passed by respondent No. 2 is violative of Section 51(1)(b).
8. We are further of the view that the exercise of power by respondent No. 2 under Section 51(1)(b) of the Act is vitiated due to arbitrariness and non-application of mind. The respondents have not explained as to why he ignored the reply filed by the petitioner to controvert the allegation levelled against him. They have not placed any material on the record of the writ petition to prima facie show that the petitioner had not engaged labourer and poor persons for digging up ponds and had not paid wages in the form of food grains. They have also not placed any evidence before the Court to show that anything was paid out of Gram Panchayat fund for the alleged use of JCB machine for digging the pond. It is also not their case that some villages had not engaged JCB machine for digging earth for filling their plots. Therefore, we are inclined to agree with the learned counsel for the petitioner that respondent No. 2 did not have any tangible material before him which could justify suspension of the petitioner from the elective office of Sarpanch.
9. Unfortunately, respondent No. 1 also committed the same illegality. He too did not refer to the reply filed by the petitioner and yet he recorded a conclusion that he was prima facie guilty of misconduct. In our considered view, the approach adopted by the two functionaries of the government in dealing with the case of the petitioner smacks of arbitrariness and, therefore, the impugned orders are liable to be nullified.
10. In the result, the writ petition is allowed. Orders Annexures P. 3 and P. 5 are quashed.
11. Before parting with the case, it is appropriate to observe that we have refrained from adjudicating upon the legality of order Annexure P.4 at this stage because the enquiry being held against the petitioner has not been finalised so far.