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2011 DIGILAW 1015 (PNJ)

Ashok Kumar v. State of Punjab

2011-04-06

MEHINDER SINGH SULLAR

body2011
JUDGMENT Mehinder Singh Sullar, J. - The compendium of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that in the wake of general Grain Panchayat elections held on 26.5.2008, petitioner Ashok Kumar was elected as a Sarpanch, while Gurcharan Dass (respondent No. 5) alongwith Kulwinder Singh and Kamlesh Chander were elected as Members of Gram Panchayat of village Tajpur, District Jalandhar, in view of the provisions of The Punjab Panchavati Raj Act, 1994 (hereinafter to be referred as "the Act"). The respondent No. 5 and other Members panchayat intentionally blocked the disposal of water entering into the village pond with empty cement and plastic bags. They have also broken the water course, culminating in accumulation of the water near the newly constructed boundary wall around the pond, which was felled in it, causing huge loss to the property of the Panchayat amounting to Rs. 87,500/-. 2. The petitioner-complainant Ashok Kumar Sarpanch claimed that he made a complaint dated 6.6.2008 (Annexure P-l) in this regard to District Development and Panchayat Officer (for brevity "DDPO") (respondent No. 4). The Block Development and Panchayat Officer (for short "BDPO") conducted the inquiry and submitted his report dated 24.12.2008 (Annexure P2). The Divisional Deputy Director, Village Development and Panchavat (respondent No. 3) referred the matter to the Director, Department of Rural Development and Panchayat, Punjab (for brevity "Director") (respondent No. 2), by virtue of report dated 24.5.2010 (Annexure P3). Taking cognizance of this report, the Director removed respondent No. 5 and others from the posts of Panches, in exercise of his powers under section 20 of the Act, by way of order dated 23.7.2010 (Annexure P4). 3. Dis-satisfied with the order (Annexure P4), respondent No. 5 filed the appeal without impleading the petitioner-complainant as a party (respondent). The appeal was accepted by the Financial Commissioner and Secretary, Department of Rural Development and Panchayats, Punjab (respondent No. 1) (for short "appellate authority") and reinstated him (respondent No. 5) on the post of Panch, by means of impugned order dated 30.8.2010 (Annexure P5). 4. The petitioner-complainant did not feel satisfied and instituted the present writ petition, challenging the impugned order (Annexure P5), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. 4. The petitioner-complainant did not feel satisfied and instituted the present writ petition, challenging the impugned order (Annexure P5), invoking the provisions of Articles 226 and 227 of the Constitution of India. 5. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration over the entire matter, to my mind, the instant writ petition deserves to be accepted in this behalf. 6. As is evident from the record, that the Director after considering the reports (Annexures P2 and P3) of the Field Officers, based on inspection of the site and other material on record, recorded a finding of fact that the members have caused damage to the panchayat property, amounting to Rs. 87,500/- and removed them from the posts of Panches, vide order (Annexure P4). 7. As it revealed from the impugned order (Annexure P5), the appellate authority did not adhere to the grounds of removal indicated in the order of the Director and illegally accepted the appeal of respondent No. 5 without impleading the petitioner-complainant as a party, vide impugned order dated 30.8.2010 (Annexure P5), the operative part of which is as under :- After hearing arguments of both the parties, it is concluded that in the present case the appellant is panch of the village and the respondent has failed to prove that how the panch has caused damage to the retaining wall of pond. This retaining wall of pond was not prepared by the appellant and if due to water season any damage has caused to the retaining wall then this guilt is required to be leveled against those who had prepared this retaining wall. Therefore, the blame leveled against the appellant is not proved. Therefore, the suspension order of the appellant issued by the Director Panchayat is cancelled and by accepting the appeal of the appellant reinstated on the rank of Panch." 8. It is not a matter of dispute that the Director removed respondent No. 5 on two counts that he and other Members Panchayat have caused huge loss to the government grant and damage to the panchayat property. It is not a matter of dispute that the Director removed respondent No. 5 on two counts that he and other Members Panchayat have caused huge loss to the government grant and damage to the panchayat property. The appellate authority just ignored the cogent indicated grounds of removal with impunity and accepted his appeal in a very casual and routine manner, without deciding the subject matter of the lis by passing a non-speaking and non-reasoned order, which is the result of non-application of mind in this behalf. 9. Meaning thereby, the appellate authority ought to have discussed the material on record relatable to the huge loss caused by respondent No. 5 and other members to the Panchayat property and was legally required to record valid reasons for arriving at a right conclusion, in order to decide the real controversy between the parties in the right perspective. Such statutory appellate authority, exercising the powers under the Act, should act independently instead of functioning as a representative of the State. It is now well settled principle of law that every action of such authority must be informed by reasons. The order must be fair, clear, reasonable and in the interest of justice and fair play. Every order must be confined and structured by rational and relevant material on record because the valuable rights of the parties are involved. 10. Exhibiting the importance of passing speaking and reasoned order, the Honble Supreme Court in case Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and others, (2009)4 Supreme Court Cases 240 has held (para 8) as under :- "The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must hove confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation." 11. There is another aspect of the matter, which can be viewed from a different angle. Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation." 11. There is another aspect of the matter, which can be viewed from a different angle. What is not disputed here is that in pursuance of the complaint (Annexure P-1) made by the petitioner-complainant and on the basis of reports (Annexures P2 and P3), the Director removed respondent No. 5 from the post of Panch. He filed the appeal, which was decided by the appellate authority, without impleading the petitioner-complainant as a party. That means, since the petitioner-complainant was the aggrieved party, so the appellate authority slipped into a legal error in accepting the appeal of respondent No. 5, even without issuing notice to him (petitioner), who was a necessary party, in view of law laid down by Full Bench of this Court in case Darshan Singh v. State of Haryana and others, 2006(1) RCR (Civil) 170, Ram Phal v. Financial Commissioner and Secretary to Govt. Har., 1996(1) PLR 233 and again reiterated by this Court in CWP No. 15751 of 2010 titled as "Guddu Sarpanch Gram Panchavat Saunti, Block Amloh and others v. State of Punjab and others, decided on 8.2.2011. Hence, the appellate authority ought to have issued notice and provided adequate opportunity of being heard to the petitioner-complainant before deciding the appeal against him on the doctrine of audi alteram partem. 12. In other words, all the essential ingredients/requirements of passing speaking order, issuing notice and providing adequate opportunity to the petitioner-complainant are deeply lacking in the instant case, which form an integral part of concept of rule of law. 13. Therefore, the argument of learned counsel for the petitioner that the impugned order (Annexure P5) is not only illegal, arbitrary and against the statutory provisions of the Act, but contrary to the principle of natural justice as well, has considerable force and the contrary contentions of learned counsel for the respondents "stricto sensu" are liable to be repelled. Thus seen from any angle, the impugned order (Annexure P5) cannot legally be sustained in the obtaining circumstances of the case. 14. Thus seen from any angle, the impugned order (Annexure P5) cannot legally be sustained in the obtaining circumstances of the case. 14. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of subsequent hearing of the appeal, the instant writ petition is accepted. The impugned order (Annexure P5) is hereby set aside. The case is remitted back to respondent No. 1 (appellate authority) to decide the appeal afresh, after impleading and affording an opportunity of being heard to the petitioner-complainant and by passing a speaking order, in view of aforesaid observations and in accordance with law. 15. The parties through their counsel are directed to appear before the appellate authority (respondent No. 1) on 16.5.2011 for further proceedings. 16. Needless to say that nothing observed here-in-above would reflect on the merits of the case, in any manner, as the same has been so recorded for a limited purpose of deciding the instant petition. .