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2011 DIGILAW 1162 (PNJ)

Harjit Kaur v. State of Punjab

2011-05-05

MEHINDER SINGH SULLAR

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JUDGMENT MEHINDER SINGH SULLAR, J. - In the wake of general Gram Panchayat election, petitioner-Harjit Kaur was elected as a Sarpanch of Gram Panchayat Saholi, District Patiala, in view of the provisions of The Punjab Panchayati Raj Act, 1994(hereinafter to be referred as “the Act”). 2. The petitioner claimed that a false complaint was filed against her, for not taking any action against those persons, who have cut the trees from the shamilat land. The allegations were stated to have been found false, vide enquiry reports dated 16.10.2009 (Annexure P-1) and 13.11.2009 (Annexure P-2). During the course of further detailed enquiry, the Divisional Deputy Director, Panchayat, Patiala-respondent No.3 (for short “the Deputy Director”) held the petitioner guilty and submitted his report dated 06.04.2010 (Annexure P-4) to the Director, Rural Development and Panchayat, Punjab-respondent No.2 (for short “the Director”). 3. After considering the report (Annexure P-4) of the Deputy Director, the Director suspended the petitioner from the post of Sarpanch, by way of order dated 15.07.2010 (Annexure P-5). 4. Aggrieved by the order (Annexure P-5), the appeal filed by the petitioner was accepted, without impleading the complainant as a party or providing opportunity of being heard to him and she (petitioner) was reinstated by the Financial Commissioner, Department of Rural Development and Panchayat, Punjab-respondent No.1 (for brevity “the Appellate Authority”) through the medium of order dated 30.08.2010(Annexure P-6). 5. Sequelly, during the course of regular enquiry, the Additional Deputy Commissioner (Development)-cum-Enquiry Officer-respondent No.6 (for short “the Enquiry Officer”), directed the concerned parties, including the complainant, to appear before him, by means of impugned notice/summon dated 07.04.2011 (Annexure P-7). 6. Instead of cooperating, in the regular enquiry proceedings, the petitioner preferred the present writ petition, challenging the impugned summon/notice (Annexure P-7). 7. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant writ petition in this respect. 8. Ex facie, the argument of the learned counsel that since the petitioner was exonerated in the earlier enquiry reports (Annexures P-1 and P-2), so, the Enquiry Officer did not have the jurisdiction to summon her, by way of impugned notice (Annexure P-7), to join the regular enquiry proceedings, is not only devoid of merit but misplaced as well. 9. 8. Ex facie, the argument of the learned counsel that since the petitioner was exonerated in the earlier enquiry reports (Annexures P-1 and P-2), so, the Enquiry Officer did not have the jurisdiction to summon her, by way of impugned notice (Annexure P-7), to join the regular enquiry proceedings, is not only devoid of merit but misplaced as well. 9. As is evident from the record that the matter was duly inquired in detail by respondent No.3, who held the petitioner guilty and submitted his report of preliminary enquiry dated 06.04.2010 (Annexure P-4) to the Director, which in substance is, as under:- “Parties were heard and after hearing the parties and perusal of the record, the result comes to, that 50 trees were cut from the school ground of Gram Panchayat Saholi. Regarding cutting of these trees, complainant gave information to BDPO Nabha on 26.09.2009 for getting the trees cut by Harjeet Kaur Sarpanch. On this date itself Sarpanch Harjeet Kaur also intimated for cutting of trees from the school ground by the miscreants and for taking legal action. Thereafter, Sarpanch passed a resolution on 30.06.2009, in which the name of Bharpur Singh, Kulwant Singh and other names were mentioned and for taking legal action. The application given by the complainant is received at Sr.No.481 on 29.06.2009 and the complaint given by Smt. Harjeet Kaur regarding cutting of trees was received at Sr.No.478 dated 29.06.2009, but the resolution passed by the Panchayat on 30.06.2009, the evidence regarding receipt of which to the BDPO Nabha was not given by the Sarpanch. The complainant has written in their application regarding cutting of 50 trees from the school ground and the Sarpanch has written in her application that today from the spot it transpired that the trees/bushes standing in the school ground were got cut by the miscreants. In this way it is not made clear in both the applications that on what date the trees were cut. In this way it is not made clear in both the applications that on what date the trees were cut. BDPO Nabha has written in the report No.1380 dated 08.07.2009 to Hon'ble Director, Rural Development Panchayat, Punjab and in his report there is no mention about the resolution passed by the Panchayat on 30.06.2009 and in this letter it is written at Sr.No.1 that there were 60 trees which were standing and aat sr.no.2 it is written that on 23.06.2009 there were 10 trees and at sr.no.3 it is written that vide letter No.1379 dated 08.07.2009 it has been written by BDPO for registration of a case against the unidentified persons. It proves that either the Sarpanch has passed the resolution on 30.06.2009 for her defence because had the resolution been sent to the BDPO Office then the BDPO Nabha would have written for registration of a case against the persons mentioned in the resolution. The undersigned has inspected the spot and according to the spot trees have been cut from the school ground. Had the Sarpanch taken timely action, Panchayat would have been saved from the financial loss. Therefore, the allegation of dereliction of duties by Smt. Harjeet Kaur Sarpanch and causing financial loss to the Panchayat is proved.” 10. Taking cognizance of the report of the preliminary enquiry (Annexure P-4), the Director suspended the petitioner from the post of Sarpanch, as an interim measure and it was observed that if the aforementioned allegations are not proved against her during the course of regular enquiry, then the order of suspension will be re-considered, by virtue of order dated 15.07.2010 (Annexure P-5). No doubt, she was reinstated by the Appellate Authority, without impleading the complainant as a party or providing opportunity of being heard to him, on a technical ground by means of order (Annexure P-6), but that ipso facto is not a ground to exonerate her (petitioner) for such a serious charges, on the basis of preliminary enquiry, unless she is found innocent during the course of regular enquiry in this relevant connection. 11. To me, the scope of preliminary enquiry relevant for the purpose of suspension of Sarpanch, is entirely distinct, than that of the regime of regular enquiry, for the purpose of removal of Sarpanch. 11. To me, the scope of preliminary enquiry relevant for the purpose of suspension of Sarpanch, is entirely distinct, than that of the regime of regular enquiry, for the purpose of removal of Sarpanch. At the time of preliminary enquiry, a prima facie case is to be considered for a limited purpose of suspension, while during the course of regular enquiry, the matter has to be examined in detail, after receiving the evidence in support of respective stands of the parties, for the purpose of removal of a Sarpanch, as contemplated under Section 20 of the Act. The authority conducting the regular enquiry possesses a wider jurisdiction, as compared with the officer dealing with the preliminary enquiry, having comparatively limited jurisdiction. The preliminary enquiry conducted in a summary manner during the course of limited jurisdiction, cannot oust the larger jurisdiction of a officer conducting the regular enquiry, even if both the enquiries are manned by the same person. The authority dealing with the regular enquiry has to adopt the appropriate procedure and in the preliminary enquiry, summary procedure is to be followed. Reliance in this regard can be placed on a Division Bench judgment of this Court in case titled as Tara Chand and Fateh Singh Versus Gram Panchayat and Gram Sabha of Village Atail and others, 1979 P.L.J. 5. 12. In this manner, it cannot possibly be saith that once the petitioner was exonerated on the basis of preliminary enquiry by the Appellate Authority, without impleading the complainant as a party, then the Enquiry Officer becomes functus officio and cannot proceed with the regular enquiry, as urged on behalf of the petitioner. Therefore, the contrary arguments of the learned counsel for the petitioner “stricto-sensu” deserve to be and are hereby repelled under the present set of circumstances. 13. Thus, to my mind, the Enquiry Officer has rightly summoned the petitioner and he has power and jurisdiction to conduct the regular enquiry against her in this context. 14. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed in the obtaining circumstances of the case. Petition dismissed.