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1998 DIGILAW 62 (HP)

ASHWANI KUMAR v. STATE OF H. P.

1998-05-12

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body1998
JUDGMENT KAMLESH SHARMA, A.C.J.—The petitioner was working with Respondent No 4 Rori Kori Co-operative Agriculture Service Society Ltd. (hereinafter called the Society) as Assistant Secretary/Secretary with effect from 3.3.1992. He successfully contested the election of Pradhan, Gram Panchayat, in December 1995. in its Resolution dated 31.1.1996, the Managing Committee of the Society expressed its full faith in the working of the petitioner and allowed him to continue as Secretary of the Society as well as Pradhan of the Gram Panchayat. Thereafter at the instance of Assistance Registrar Co-operative Societies, Dehra, the Managing Committee of the Society terminated the services of the petitioner on the ground that being Pradhan of the Gram Panchayat, he could not continue to hold the post of Secretary in the Society. On the other hand, the Deputy Commissioner, Kangra at Dharamshala also asked the petitioner to clarify how he was holding the office of Secretary of the Society being Pradhan of the Gram Panchayat within 15 days failing which further action will be taken against him under the Himachal Pradesh Panchayati Raj Act. In his reply dated 20.11.1996, the petitioner took the stand that since he was suspended from the office of Secretary of the Society against which he had filed an appeal before the Joint Secretary (Co-operation) to the Government of Himachal Pradesh, he was continuing working as Pradhan of the Gram Panchayat. He also expressed that no action will be taken against him under the Himachal Pradesh, Panchayati Raj Act as he intended to hold the office of Pradhan and resigned from the post of Secretary of the Society. However, since his termination as Secretary of the Society was bad. he had filed appeal against it. The petitioner challenged his termination before the Joint Secretary (Co-operation) to the Government of Himachal Pradesh, under Section 93 of the H.P. Cooperative Societies Act, 1968 (hereinafter referred to as the Act). 2. The appeal of the petitioner challenging his termination was allowed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh holding that the petitioner could retain only one post and issued the following directions : . "I, therefore, order and direct the appellant to intimate the Respondent Nos. 2. The appeal of the petitioner challenging his termination was allowed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh holding that the petitioner could retain only one post and issued the following directions : . "I, therefore, order and direct the appellant to intimate the Respondent Nos. 1 and 2 in writing that which post he wants to retain either of the two within 10 days from today failing which the decision of the Respondent No. 2 society terminating his services will be treated as final and the society will be at liberty to take further action to fill-up the post of Secretary on regular basis. But in case the appellant decides to continue as Secretary of the Society and resigns from the post of Pradhan of Gram Panchayat, in that case the Managing Committee of the society is also directed to take notice of his activities from time to time and if he takes part in political activities directly or indirectly, immediate action be initiated against him." Feeling aggrieved, the Society filed C.W.P. No. 1978 of 1996 challenging the order dated 20.12.1996 of the Joint Secretary (Co-operation) to the Government of Himachal Pradesh, but failed, A Division Bench of this Court by its judgment dated 30.12.1996 threw out the writ petition of the society on the ground of ssuppressi veri; suggestio falsi holding that the Society had withheld its Resolution dated 31.1.1996 whereby it had permitted the petitioner to hold both the posts, namely, the post of Secretary of the Society as well as the post of Pradhan of Gram Panchayat and also the communication dated 30.4.1996 whereby it was directed by the Assistant Registrar to terminate the services of the petitioner. The Division Bench of this Court had also held that the appeal of the petitioner against his termination was maintainable and the order dated 20.12.1996 passed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh was within his jurisdiction. 3. Further case of the petitioner is that in pursuance of the direction of the Joint Secretary (Co-operation) to the Govt. of Himachal Pradesh issued in his order dated 20.12.1996 he sent a telegram to the Deputy Commissioner, Kangra at Dharamshala on 30.12.1996 intimating his resignation from the post of Pradhan, Gram Panchayat. 3. Further case of the petitioner is that in pursuance of the direction of the Joint Secretary (Co-operation) to the Govt. of Himachal Pradesh issued in his order dated 20.12.1996 he sent a telegram to the Deputy Commissioner, Kangra at Dharamshala on 30.12.1996 intimating his resignation from the post of Pradhan, Gram Panchayat. On the same day, he had sent a letter to the Assistant Registrar, Co-operative Societies, informing him that as he had resigned from the post of Pradhan, Gram Panchayat, the charge of the post of Secretary might be handed over to him. According to him, he also wrote to Up-Pradhan of the Society on 30.12.1996 itself for accepting his joining report as the Pradhan of the Society had refused to accept the same. According to the petitioner, in continuation of his telegram, a letter was also sent to the Deputy Commissioner on 30.12.1996 submitting his resignation from the post of Pradhan, Gram Panchayat, a copy whereof was also sent to the Block Development Officer, Paragpur. The petitioner has placed on record, U.P.C. receipt, under which these letters were allegedly sent to the Deputy Commissioner, Kangra at Dharamshala and Block Development Officer, Paragpur, Tehsil Dehra, District Kangra, as well as copies of the telegram and other communications, which are Annexures P-4 to P-8 to the writ petition. 4. The grievance of the petitioner is that the Assistant Registrar, Cooperative Societies, by his letter dated 14.3.1997 has informed the Pradhan of the Society that since the petitioner has failed to resign from the post of Pradhan within 10 days from the date of decision of the Joint Secretary (Co-operation) to the State of Himachal Pradesh, which period expired on 29.12.1996, his services as Secretary of the Society stand terminated and there is no question of handing him over the charge of the said post. Besides this, the petitioner has also challenged the order dated 22.9.1997 passed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh on his application that the petitioner continued functioning as Pradhan of the Gram Panchayat and his stand that he resigned by telegram dated 30.12.1996 within 10 days from the order 20.12.1996 cannot be accepted. Besides this, the petitioner has also challenged the order dated 22.9.1997 passed by the Joint Secretary (Co-operation) to the Government of Himachal Pradesh on his application that the petitioner continued functioning as Pradhan of the Gram Panchayat and his stand that he resigned by telegram dated 30.12.1996 within 10 days from the order 20.12.1996 cannot be accepted. Besides praying for quashing these orders (Annexures P-9 & P-10), the petitioner has also sought direction to the Respondents that he may be treated in service as Secretary of the Society throughout and entitled to all the consequential benefits thereof. 5. The Respondents-State of Himachal Pradesh and Joint Secretary (Co-operation) to the Government of Himachal Pradesh as well as the Society have filed separate reply affidavits to oppose the writ petition. They have categorically denied having received the telegram and other communications dated 30.12.1996 (Annexures P-4 to P-7) whereby the petitioner had allegedly submitted his resignation from the post of Pradhan, Gram Panchayat and joining report for the post of Secretary of the Society. The Society has placed on record its Resolutions No. 1 and 4 dated 30.12.1996 (Annexure R4/E) the proceedings of which show that they have waited for the intimation of resignation of the petitioner from the post of Pradhan, Gram Panchayat and his joining report as Secretary on 29.12.1996 till 5 p.m. as well as on 30.12.1996 up to 5.10 p.m. and sought guidance from the Assistant Registrar Co-operative Societies, Dehra, for taking further action in pursuance of the decision dated 20.12.1996 of the Joint Secretary (Co-operation) to the Govt. of Himachal Pradesh. They have placed on record a certificate dated 1.5.1997 (Annexure R-lll-A) issued by the Panchayat Inspector, Paragpur, which is counter-signed by the Block Development Officer, Paragpur that neither the petitioner nor Smt. Kamla Devi, Up-Pradhan of the Gram Panchayat, have tendered their resignations from the respective posts nor any resolution or resignation letter was received from them in the office. District Panchayat Officer, Kangra at Dharamshala vide letter dated 11.6.1997 (Annexure R-IV) has also informed the Pradhan of the Society that the petitioner has not tendered his resignation from the post of Pradhan, Gram Panchayat and proceedings under Section 122(2) of the Himachal Pradesh Panchayati Raj Act, 1968 for his removal from the post of Gram Panchayat were under consideration in the office of Deputy Commissioner. The Society with its reply-affidavit has annexed a certificate dated 9.1.1998 from Gram Panchayat and Development Officer, counter-signed by the Block Development Officer, Paragpur, that the petitioner continued presiding over the meetings of the Panchayats since January 1996. A copy of Resolution No. 6 dated 7.1.1998 passed by the Gram Panchayat presided over by the petitioner is also placed on record as Annexure R-4/B. 6. After hearing the learned Counsel for the parties and going through the record, we are of the view that the petitioner was disqualified to contest the election for the post of Pradhan, Gram Panchayat, having been in the employment of the Society as Secretary as provided under Clause (g) of sub-section (1) of Section 122 of the Himachal Pradesh Panchayat Raj Act, 1968. Section 122 is:— "122.(1) A person shall be disqualified for being chosen as, and for being, an office-bearer, of a Panchayat— (a)................................................... (b)................................................... (c)..................................,................ (d)................................................... (e)................................................... (f................................................... (g) if he is in the employment or service under any Panchayat or of any other local authority or Co-operative Society or the State Government or Central Government or any Public Sector Undertaking under the control of the Central or the State Government. Explanation.—For the purposes of this clause, the expression "service" or "employment" shall include persons appointed, engaged or employed on whole time, part time, casual, daily or contract basis. (h)................................................... (i)................................................... 0)................................................... (k)................................................... (I)................................................... (m).................................................... 2. The question whether a person is or has become subject to any of the disqualifications under sub-section (1), shall after giving an opportunity to the person concerned of being heard, be decided— (i) if such question arises during the process of an election, by an officer as may be authorised in this behalf by the State Government, in consultation with the State Election Commission; and (ii) if such question arises after the election process is over, by the Deputy Commissioner." 7. In view of this, the election of the petitioner as Pradhan, Gram Panchayat was void ab initio but since election petition challenging his election is pending before the Deputy Commissioner, Kangra at Dharamshala, we restrain ourselves to declare it so. In view of this, the election of the petitioner as Pradhan, Gram Panchayat was void ab initio but since election petition challenging his election is pending before the Deputy Commissioner, Kangra at Dharamshala, we restrain ourselves to declare it so. However, the conduct of the petitioner that he wanted to hold both the posts as far as possible, is clear from the fact that even after the order dated 20.12.1996 passed by the Joint Secretary (Co-operation) to the Government, whereby he was asked to intimate which post he wanted to retain and according to the petitioner, he had resigned from the post of Pradhan on 30.12.1996, he still contested the election petition by filing his reply on 23.3.1997 and continued working as Pradhan, Gram Panchayat as is apparent from the documents Annexures R-lll, R-IV, R-4/A and R-4/B. On the other hand, as per one of the terms of Employment and Working Conditions of Secretaries of Primary Agricultural Credit Societies in Himachal Pradesh, framed by the Registrar Co-operative Societies, Himachal Pradesh in exercise of the powers vested under Rule 56(1) of the H.P. Co-operative Societies Rules, 1971 (Annexure R-4/J), the petitioner was debarred from contesting the election for the post of Pradhan, Gram Panchayat. The relevant condition is as under:— "(27) The Secretary shall not contest or convass for any election to Central or State Legislatures or Municipal Corporation, Municipal Board, Panchayat/Co-operative society or other elected bodies constituted under the Himachal Pradesh State laws." In view of this condition, we have no hesitation to hold that by contesting the election for the post of Pradhan, Gram Panchayat, the petitioner had committed misconduct for which he could be terminated by the Society. Even if, the Gram Panchayat vide its Resolution dated 31.1.1996 had permitted the petitioner to continue as Secretary of the Society as well as Pradhan of the Gram Panchayat apparently under the influence of the petitioner, it was of no consequence being against the provision of clause (g) of subsection (1) of Section 122 as well as in violation of one of the terms and conditions of the employment of the petitioner being the Secretary of the Co-operative Society as prescribed by the Registrar of the Co-operative Societies. Ignoring this aspect of the matter, the Joint Secretary (Co-operation) to the Government of Himachal Pradesh was very liberal in his order dated 20.12.1996 in permitting the petitioner to give his option for one of the posts within 10 days, No doubt, the petitioner has claimed that he has intimated his decision to resign from the post of Pradhan, Gram Panchayat to the Deputy Commissioner, Kangra at Dharamshala and submitted his joining report to the Pradhan/Up-Pradhan of the Society and requested the Assistant Registrar, Co-operative Societies, to get him the charge of the post of the Secretary, vide Annexures P-4 to P-8, on 30.12.1996, that is, the last date of the period of 10 days granted to him vide order dated 20,12 1996 (Annexure P-1), but these do not inspire confidence in view of the stand taken by the Respondents in their reply-affidavits that these documents were never received by them and the petitioner continued working as Pradhan, which is supported by documents Annexures R-III, R-IV and R-4/AB, The petitioner has failed to place on record the postal receipt to show that he had sent telegram on 30.12.1996 and also the receipt of his communications Annexures P-5 to P-7. He has heavily relied upon the endorsement of receipt dated 30.12.1996 allegedly made on his letter (Annexure P-5) addressed to the Assistant Registrar, Co-operative Societies, Dehra, but he has not been able to prove it by giving any corroborative evidence. Even the name of the person making the’ alleged endorsement has not been disclosed. Moreover, it is strange that the petitioner had waited for 10 days for exercising his option though he was present before the Joint Secretary (Co-operation) to the Government of Himachal Pradesh when the order dated 20.12.1996 was passed by the said authority. 8. Therefore, from the totality of the facts and circumstances on record, we have no hesitation to hold that the petitioner on his contesting election for the post of Pradhan became disqualified to continue as Secretary of the Society as his services were rightly terminated as such. 8. Therefore, from the totality of the facts and circumstances on record, we have no hesitation to hold that the petitioner on his contesting election for the post of Pradhan became disqualified to continue as Secretary of the Society as his services were rightly terminated as such. Even after ; the decision of the Joint Secretary (Co-operation) to the Government of Himachal Pradesh he failed to exercise his option to retain the post of Secretary of the Society after tendering resignation from the post of Pradhan in accordance with law Therefore, he cannot be given the relief sought for that he continues to be the Secretary of the Society is entitled to all the consequential reliefs 9. In the result, we do not find any merit in this writ petition and it is dismissed. There is, however, no order as to costs. CMP No. 881 of 1997 In view of the dismissal of the writ petition, present application is also dismissed. Petition dismissed.