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2004 DIGILAW 790 (PNJ)

Rame v. State of Haryana

2004-07-29

G.S.SINGHVI, MEHTAB S.GILL

body2004
JUDGMENT G.S. Singhvi, J. - This is a petition for quashing order dated 17.10.2003 (Annexure P-4) vide which Deputy Commissioner, Rohtak (respondent No. 2) suspended the petitioner from the post of Sarpanch, Gram Panchayat, Bohar Milwan, Tehsil and District Rohtak and order dated 9.6.2004 (Annexure P-7) vide which Financial Commissioner and Secretary to Government, Haryana, Development amd Panchayats Department (hereinafter described as the Financial Commissioner) dismissed the appeal filed by her against the order of suspension. 2. The petitioner was elected as Sarpanch of Gram Panchayat, Bohar Milwan in February, 2000. On receipt of a complaint of financial and other irregularities allegedly committed by the petitioner, respondent No. 2 got a preliminary enquiry conduct through Additional Deputy Commissioner-cum-Chief Executive Officer, District Rural Development Agency, Rohtak, who submitted report dated 11.3.2003 with the following conclusions :- "1. That in the digging of Rituwala pond an amount of Rs. 22,000/- has been paid in excess; 2. That in the digging of Mandewala pond an amount of Rs. 19,000/- has been embezzled; 3. That in the work of filling of mud on the Baliana road an amount of Rs. 24,000/- has been embezzled; 4. That in the filling of mud in Anganwari, Veterinary Hospital and streets an amount of Rs. 13,000/- has been embezzled; 5. That in the above mentioned development works no technical assessment has been taken and before starting the work level was also not taken. Likewise, mockery has been made of the schemes run by the Government for village development." 3. Respondent No. 2 tentatively accepted the report of preliminary enquiry and issued notice dated 9.5.2003 to the petitioner to show cause as to why action may not be taken against her under Section 51(1)(b) of the Haryana Panchayati Raj Act, 1994 (for short, the Act). The petitioner filed reply dated 27.5.2003 (Annexure P-2). She categorically denied all the allegations. The relevant extracts of her reply are reproduced below :- "In regard to your letter No. 1027/Panchayat dated 9.5.2003 it is respectfully submitted that in development works in village Bohar Milwan under the Gramin Rojgar Schemes, they all have been done by the full panchayat cooperation and support and were passed by their consent. Village panchayat has paid the wages of labourer in front of the panches and for each work technical assessment was mentioned by block J.E. and S.D.O. Panchayati Raj in the measurement book:- 1. Village panchayat has paid the wages of labourer in front of the panches and for each work technical assessment was mentioned by block J.E. and S.D.O. Panchayati Raj in the measurement book:- 1. The first allegation against the appellant is that in the digging of the Rituwala pond an amount of Rs. 22,000/- has been paid in excess, whereas it is pertinent to mention here that according to the muster roll page No. 1 to 21 Rs. 1,65,200/- and muster roll No. 33 to 38 Rs. 1,08,106/- i.e. a total of Rs. 2,73,306/- have been paid whereas for the above mentioned pond at M.B. page No. 3-5 technical assessment is Rs. 2,91,700/-. So likewise in the digging of the pond according to muster roll page No. 39 to 43 Rs. 1,00,800/- have been paid, whereas assessment is Rs. 1,01,299/-, so this allegation is baseless and false. 2. That the second allegation is that in the digging of Mandewala pond an amount of Rs. 19,000/- has been embezzled whereas according to muster roll page No. 22 to 26 an amount of Rs. 1,00,400/- has been paid whereas technical assessment M.B. page No. 5 to 7 is Rs. 1,07,600/- according to muster roll page No. 27 to 32 whereas, according to M.B. page No. 8 to 10 technical assessment is 1,10,780/-, so this allegation is baseless and false. 3. That the third allegation is that on the road leading to Baliana an amount of Rs. 24,000/- has been embezzled for its filling, whereas according to muster roll page No. 3 to 13 Rs. 2,46,400/- have been paid whereas according to M.B. page No. 8 to 10 technical assessment is Rs. 2,46,072/-. In this way, Rs. 328/- have been paid in excess whereas the allegation is that in the work, Rs. 24,000/- have been paid in excess. 4. That the fourth allegation is that in the filling work of Anganwari, Veterinary Hospital and streets an amount of Rs. 13,000/- has been embezzled. Whereas, according to muster roll page No. 2 to 7 Rs. 1,04,000/- have been paid whereas according to M.B. page No. 1-2 a technical assessment is Rs. 1,05,500/-. So, this allegation is also false and baseless. Whatever works I have done were done with full panchayat majority and their consent and for each work technical assessment was done. Whereas, according to muster roll page No. 2 to 7 Rs. 1,04,000/- have been paid whereas according to M.B. page No. 1-2 a technical assessment is Rs. 1,05,500/-. So, this allegation is also false and baseless. Whatever works I have done were done with full panchayat majority and their consent and for each work technical assessment was done. Inquiry against me for development works done by me was done by Executive Engineer, Panchayati Raj, Rohtak after about 6 months to 1 year of the finishing of work whereas even after one rain there is effect of the mud level and in this period rain has fallen many times and both the ponds are full of water at present." 4. Thereafter, respondent No. 3 passed two orders dated 17.10.2003. By the first order (Annexure P-3) passed under Section 51(3) of the Act, he directed the holding of regular enquiry against the petitioner and appointed Sub- Divisional Officer (Civil), Rohtak as the enquiry officer. By the second order, he placed the petitioner under suspension by invoking Section 51(1)(b). The appeal filed by the petitioner against the order of suspension was dismissed by the Financial Commissioner vide order annexure P-7. 5. The petitioner has challenged order Annexure P-4 on the ground of violation of Section 51(1)(b) of the Act and the rules of natural justice by asserting that before suspending her from the post of Sarpanch, respondent No. 2 did not objectively consider the reply filed by her in response to the show cause notice. 6. Looking to the nature of the grievance made by the petitioner and the judicial precedents on the subject, notice of motion is given to Ms. Ritu Bahri, learned Deputy Advocate General, Haryana for final disposal of the writ petition. 7. Shri S.P. Chahar has handed over copy of the writ petition to Ms. Bahri. 8. We have heard learned counsel for the parties and perused the record. Ritu Bahri, learned Deputy Advocate General, Haryana for final disposal of the writ petition. 7. Shri S.P. Chahar has handed over copy of the writ petition to Ms. Bahri. 8. We have heard learned counsel for the parties and perused the record. A reading of order annexure P-3 shows that after making reference to report dated 11.3.2003 and show cause notice dated 9.5.2003, respondent No. 2 proceeded to pass order for regular enquiry by recording the following observation :- "The reply dated 27.5.2003 of Sarpanch in regard to the show cause notice is not satisfactory and the allegations below mentioned as alleged against her are prima facie found to be correct." Simultaneously, respondent No. 2 passed order Annexure P-4 and placed the petitioner under suspension. 9. The question whether rules of natural justice are applicable to an action taken under Section 51(1)(b) of the Act and some reasons are required to be recorded by the competent authority for rejecting the reply/explanation of the Sarpanch or Panch, as the case may be, before passing an order of suspension was considered and answered in the affirmative in Raguwar Dayal v. State of Haryana and others, CWP No. 5409 of 1999, decided on 28.5.1999; Om Parkash v. Deputy Commissioner, Sirsa, 2000(3) PLR 453; Dharam Pal v. Financial Commissioner and Secretary to Government, Development and Panchayat Department, Haryana, C.W.P. No. 13650 of 2003, decided on 3.7.2004 and Rajinder Singh v. State of Haryana and others, C.W.P. No. 9233 of 2003, decided on 27.7.2004. 10. In Om Parkash v. Deputy Commissioner Sirsa (supra), this Court interpreted Section 51(1)(b) of the Act and held as under :- "That apart, we are of the considered view that the order passed by respondent no. 1 is vitiated due to violation of the principles of natural justice embodied in Section 51(1)(b) of the Act. The duty cast upon the Director/Deputy Commissioner concerned to give adequate opportunity to Sarpanch to explain, in our opinion, not only requires giving of a notice and/or an opportunity of hearing but also enjoins upon him to objectively consider the reply, if any, filed by the Sarpanch. This necessarily implies that after considering the reply of the Sarpanch against whom the action is proposed to be taken, the concerned authority must record reasons indicating its application of mind to the contents of the reply. This necessarily implies that after considering the reply of the Sarpanch against whom the action is proposed to be taken, the concerned authority must record reasons indicating its application of mind to the contents of the reply. The Court will seek strict compliance of his requirement in the cases in which the competent authority decides to reject the points/submissions contained in the reply." 11. The Court then made a reference to the decision in Raguwar Dayal v. State of Haryana and others (supra) and observed :- "In view of the above discussion and the observations made in Raghuwar Dayals (supra), we hold that the order of suspension passed by respondent No. 1 is clearly contrary to the spirit of Section 51(1)(b) read with Section 51(3) of the Act. What he has done is nothing more than to make a show of the compliance of Section 51(1)(b) of the Act. The bald observation of respondent No. 1 that he has given personal hearing to the petitioner and has found that the reply submitted by him is not satisfactory cannot be considered as sufficient compliance of the principles of natural justice. In our opinion, he ought to have objectively considered the explanation given by the petitioner and then briefly recorded reasons for not accepting the same. It, however, appears that respondent No. 1 did not like the petitioners bravado of having invoked writ jurisdiction for quashing the orders dated 18.3.1998 and 1.6.1998 which ultimately led to the passing of order dated 28.9.1998 by respondent No. 2 resulting in the knocking down of order dated 10.3.1998 and, therefore, he decided the issue of petitioners suspension with a prejudged mind. No doubt, the appellate authority has tried to give an impression that it has objectively dealt with the points urged on behalf of the petitioner but a careful scrutiny of the order dated 1.6.1999 leaves no manner of doubt that in the guise of making a show of recording the reasons, respondent No. 2 has also done nothing more than to use stock phrases without making an objective and critical analysis of the points raised by the petitioner." 12. In Rajbir Singh v. Commissioner and Secretary to Govt. In Rajbir Singh v. Commissioner and Secretary to Govt. of Haryana (supra), this Court interpreted the expression "adequate opportunity to explain" appearing in Section 51(1)(b) of the Act and observed as under :- "The expression "adequate opportunity to explain" appearing in clause (b) of Section 51(1) of the Act has not been defined in the Act or the rules framed thereunder, but on the basis of the jurisprudence which has developed in this country in the last five decades, we can, without any hesitation of contradiction, say that the said expression represents statutory embodiment of one of the fundamental postulates of natural justice i.e. auti alteram partem which signifies that an authority entrusted with a power to take action against any person should give an action-oriented notice to that person, consider his reply and pass order indicating application of mind." 13. After taking cognizance of the orders impugned in that petition, the Court observed :- "The orders impugned in these petitions are illustrative of the abuse of power vested in the officers concerned. They have deprived the petitioners of their elective offices on extremely trivial allegation of not attending the meetings of the Gram Panchayat. Respondent No. 2 did give notice to the petitioners to explain their position qua the allegation of not attending the meetings of the Gram Panchayat, but without considering the detailed reply filed by them and without assigning any reason worth the name for not accepting the same, he suspended them enblock. The one line observation contained in orders dated 10.1.2003 that there is no substantial proof in the reply to show cause notices and the reply of the Panches is not satisfactory shows that respondent No. 2 had acted with a pre-determined mind. He conveniently overlooked the assertion made by the petitioners that they had went to Panchayat Ghar to attend meetings on 20.5.2000, 10.6.2000, 26.6.2000 and 4.7.2000 and met the Sarpanch and the Panchayat Secretary, but no meeting was conducted and they were asked to sign blank papers and that the Sarpanch had misbehaved with them. He also overlooked the fact that the petitioners had made complaints in that regard to the Block Development and Panchayat Officer. The explanation given by the petitioners for not signing the proceedings of the meeting held by the Block Development and Panchayat Officer on 28.6.2000 has also been ignored. He also overlooked the fact that the petitioners had made complaints in that regard to the Block Development and Panchayat Officer. The explanation given by the petitioners for not signing the proceedings of the meeting held by the Block Development and Panchayat Officer on 28.6.2000 has also been ignored. Thus, there is no escape from the conclusion that the orders passed by respondent No. 2 suspending the petitioners from the posts of Panches are vitiated by arbitrariness and violation of the rules of natural justice." In Dharam Lals case (supra), the Court quashed the order of suspension on various grounds including the one that the Deputy Commissioner concerned had not objectively considered the reply filed by the Sarpanch in response to the show cause notice. 14. Reverting back to the facts of this case, we find that after making a bald reference to the preliminary enquiry report, the show cause notice and the reply filed by the petitioner, respondent No. 2 arbitrarily passed the order of suspension without applying mind to the plea taken by her that the allegations mentioned in the report of the preliminary enquiry were wholly unfounded. He overlooked the fact that the works with reference to which allegations were levelled against the petitioner had been got done by the Gram Panchayat as a whole under the supervision of the Junior Engineer and the Sub-Divisional Officer, Panchayati Raj and the enquiry was conducted after six months to one year of the completion of the work during which period the mud level of the works may have been adversely affected on account of rain. Not only this, he has not assigned any reason whatsoever in support of his conclusion that the reply of the petitioner is not satisfactory. Therefore, by applying the ratio of the judgments noted above, we hold that order Annexure P-4 is vitiated due to violation of Section 51(1)(b) of the Act and the rules of natural justice. 15. The appellate order passed by the Financial Commissioner is also liable to be quashed because it is nothing but confirmation of a patently illegal and unjust order passed by the respondent No. 2. For the reason mentioned above the writ petition is allowed. Orders Annexure P-4 and P-7 are declared illegal and quashed. The petitioner shall be reinstated forthwith as Sarpanch of Gram Panchayat, Bohar Milwan. For the reason mentioned above the writ petition is allowed. Orders Annexure P-4 and P-7 are declared illegal and quashed. The petitioner shall be reinstated forthwith as Sarpanch of Gram Panchayat, Bohar Milwan. However, it is made clear that the competent authority shall be free to pass fresh order under Section 51(5)(b) of the Act after giving notice and opportunity of hearing to the petitioner. Petition allowed.