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2009 DIGILAW 1568 (PNJ)

Amar Singh v. State Of Haryana

2009-09-04

PERMOD KOHLI

body2009
Judgment Permod Kohli, J. 1. The petitioner who happens to be resident of Village, Tahliwali has filed this petition challenging the order dated 15.7.2008 passed by the financial Commissioner and Principal Secretary to Government Haryana, Development Panchayat Department, Chandigarh in appeal under Section 51(5) of the Haryana Panchayti Raj Act, 1994. Respondent No. 3 was the elected Sarpanch of the Chain Panchayat of Village Tahliwali Tehsil District Fatehabad. One Jarnail Singh lodged a complaint against Respondent No. 3 for embezzlement of the pension of her sister Parmeshwari. On the basis of the complaint, Jarnail Singh son of Fauja Singh resident of Tahliwali Dhani, an enquiry was entrusted to District Social Officer, Fatehabad. The enquiry officer after conducting the enquiry submitted the report and returned a finding that Respondent No. 3 has embezzled the pension of Smt. Parmeshwari for six months from February 2007 to March 2007 and May, 2007 to June, 2007. This pension Was not disbursed to Parmeshwari who was otherwise re-married in February, 2007. On the basis of the preliminary enquiry, Respondent No. 3 was put to notice with the following allegation: "Allegation :- Sarpanch has embezzled the government fund by showing the disbursement of pension illegally for the months of 02/2007 to 03/2007 and 05/2007 to 06/2007 to Parmeshwari whose marriage had solemnized in 02/2007 and committed irregularity by not remaining careful for performing his duties." 2 Respondent No. 3 was asked to reply to the show-cause notice. He submitted his reply wherein it is stated that Parmeshwari Devi herself was drawing the pension and thereafter she went to Punjab and asked on telephone to give her widow pension to her, brother Jarnail Singh. He further took stand in the reply that the pension was given by his son at his home. Respondent No. 3 also stated than he had no knowledge that Parmeshwari Devi was re-married and after dining to know this fact, he deposited the amount in the Panchayat. After receipt of the reply, a charge-sheet dated 15.1.2008 was served upon Respondent No. 3 and a regular enquiry was held. On conclusion of the regular enquiry again, a show-cause notice was issued to Respondent No.3 and he was ordered to be removed from the post of Sarpanch, after affording opportunity of personal hearing. 3. After receipt of the reply, a charge-sheet dated 15.1.2008 was served upon Respondent No. 3 and a regular enquiry was held. On conclusion of the regular enquiry again, a show-cause notice was issued to Respondent No.3 and he was ordered to be removed from the post of Sarpanch, after affording opportunity of personal hearing. 3. Respondent No. 3 has filed detailed reply today in the Court in which he has taken the following plea regarding disbursement of the amount of pension :- "2... That after leveling the aforesaid charge the Respondent No. 3 made the specific plea that prior to Feb-2007, the above named Parmeshwari Devi got the widow pension amounting Rs. 350/- per month and this fact tat she has been remarried in Feb-2007 was not aware to Respondent Nos. 3 and 4 in a good faith and because of brotherhood in the village, the Respondent No. 3 delivered the pension for the month of Feb-2007, May-2007 and June-2007 to the brother of the widow Parmeshwari Devi and as and when the Respondent No. 3 came to know about this fact, he immediately stopped giving the pension to her brother and the complainant brother of the widow annoyed with the aforesaid action of the Respondent No. 3 and made the false and frivolous complaint in order to put the pressure upon the Respondent No. 3 and the aforesaid contention of the Respondent No. 3 and the learned Deputy Commissioner (Respondent No. 2) without explaining the reasons for not accepting the aforesaid contention of the Respondent No. 3 passed an order of removal of the Respondent No. 3 from, the post of Sarpanch. It is specifically denied that the Respondent No. 3 has embezzled the pension of Parmeshwari Devi or caused/any loss to gram panchayat rather he deposited the amount of Rs. 1400/- which was negligently or in good faith disbursed to the brother of Parmeshwari Devi. From the above stand of Respondent No. 3, it is apparent that Respondent No. 3 disbursed the amount to the pensioner allegedly through her brother who was otherwise not authorized by any written authority to collect the pension. It is admitted case of Respondent when he came to know that Parmeshwari Devi is re-married, he stopped the pension and deposited the an punt of Rs. It is admitted case of Respondent when he came to know that Parmeshwari Devi is re-married, he stopped the pension and deposited the an punt of Rs. 1400/- from February 2 March, 2007 and May, 2007 to June, 2007 with the Gram Panchayat Respondent No. 3 has taken contradictory stand in the reply filed Court and in the reply filed to the show-cause notice. In the shoe notice, the stand was that Parmeshwari Devi was earlier revision personally and thereafter on the basis of telephone receiving the pension personally and thereafter on the basis of telephone received from her, the amount was paid to her brother. However, in the reply filed before this Court, he had not mentioned this fact of receipt of telephonic instructions from Parmeshwari Devi. The mere fact that Respondent No. 3 has deposited the amount with the Gram Panchayat itself establishes that he retained the public money illegally and this act of Respondent No. 3 prima facie amounts to embezzlement. In the impugned order, Respondent No. 1, without appreciating the fact properly and even while admitting that the amount was not disbursed to the brother of Parmeshwari Devi, has exonerated Respondent No. 3 without recording any valid reasons. The only reason seems to be is that the punishment of removal is too harsh for an elected representative. This reason is totally extraneous and is not based upon material/evidence on record, The impugned order (Anexure P-2) is thus not sustainable in law. 4. Learned counsel for Respondent No. 3 has further argued that the petitioner has no locus standi to file this petition. Suffice it to say that the petitioner is one of the Panches of the Village and resident thereof. Even if it is assumed that the petitioner is not a ranch, the embezzlement could be brought to the notice of the authorities and to this Court also by any citizen. It is pertinent to say, Respondent No. 3 being a public man, a duty was enjoined upon him to deal with public fund with caution and honest. On consideration of the reply of Respondent No. 3, the Deputy Commissioner, Faridabad vide order dated 13.6.2008 (Annexure P-l) recorded specific finding that the charge has been proved against Respondent No. 3 in the regular enquiry. On consideration of the reply of Respondent No. 3, the Deputy Commissioner, Faridabad vide order dated 13.6.2008 (Annexure P-l) recorded specific finding that the charge has been proved against Respondent No. 3 in the regular enquiry. Aggrieved of the aforesaid order, Respondent No. 3 preferred an appeal before Respondent No. 1 who has passed the impugned order setting aside the order of the Deputy Commissioner and reinstated Respondent No. 3 to the post of Sarpanch. Respondent No. 1 recorded following findings :- "I have heard the learned counsels and have gone through the record available on file. It is not disputed that the brother of Parmeshwari Devi has not received the pension amount and therefore, it will not be appropriate to hold that the appellant has embezzled the government funds. Moreover, the appellant has already deposited the amount which at, the most can be said to be said to be disbursed negligently. I am of the view that removal of an elected representative is too harsh punishment for such an act of negligence. Therefore, the impugned order of removal is set aside and appeal is allowed. However, the appellant, is warded to be careful in future in view of, the negligence and irregularity committed by him." Even though it has been recorded by Respondent No. 1 that non-disbursement of pension to the brother of Parmeshwari Devi is an admitted fact, he considered the act of Respondent No. 3 only a negligent act. Retention of amount is not only proved, but admitted by Respondent No. 3. It cannot be termed as mere negligence and is a serious offence of embezzlement of public money even if temporary. In such a situation, the plea of locus standi is not of any relevance. In view of the above, this petition is allowed. The impugned order dated 15.7.2008 (Annexure P-2) passed by the Financial Commissioner & Principal Secretary to Government Haryana, Development Panchayat Department, Chandigarh is hereby set aside. Consequently, the order of the Deputy Commissioner dated 13.6.2008 (Annexure P-1) is restored. As a result, Respondent No. 3 shall stand removed from the post of Sarpanch.