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2013 DIGILAW 748 (HP)

BABITA RANI v. STATE OF HIMACHAL PRADESH

2013-08-19

A.M.KHANWILKAR

body2013
JUDGEMENT 1. HEARD counsel for the parties. 2. RULE. Rule made returnable forthwith, by consent. Counsel for the respondents' waives notice. As short question is involved, the petition is taken up for final disposal forthwith, by consent. This petition under Article 226 of the Constitution of India, essentially takes exception to the order passed by the Deputy Commissioner, Una dated 11.1.2013, Annexure P-9, whereby the Deputy Commissioner in exercise of discretion under Section 146(1A) of the Himachal Pradesh Panchayati Raj Act, 1994, reinstated respondent No.6 on the post of Pradhan. The grievance of the petitioner is that respondent No.6 had faced inquiry for a serious charge of embezzlement of substantial amount and the inquiry report acknowledges that position, having found that respondent No.6 had embezzled about Rs. 37,370/-, which were earmarked for the improvisation of the Panchayat Office. It has come on record that respondent No. 6, later on deposited the amount to the extent of her share, to make good the embezzled amount. Notwithstanding this serious . charge of mis-appropriation and embezzlement, the Deputy Commissioner, for reasons best known to him, exercised discretion in favour of respondent No. 6, without recording any reason, whatsoever. That order on the face of it is contrary to the letter and spirit of Section 146(1A) of the Act. 3. AFTER having considered the rival submissions, we have no manner of doubt that the order which is impugned in this petition, except referring to the provision under Section 146(1A), does not record any reason, whatsoever, why the discretion was exercised in favour of respondent No. 6 by the Deputy Commissioner. Section 146(1A) of the Act in no uncertain terms mandates that the Deputy Commissioner on consideration of the inquiry report, may revoke the suspension order, but for that, has to record reasons in writing. The impugned order, as aforesaid, does not record any reason whatsoever, but only refers to the existence of authority to exercise discretion by virtue of Section 146(1A). That is not enough. Without expressing any opinion on other contentions raised before us by both the parties, we deem it appropriate to quash and set aside the impugned order on this count alone. 4. WE are not impressed by the preliminary objection taken by respondent No.6 about availability of alternative statutory remedy by way of revision against the impugned order. Without expressing any opinion on other contentions raised before us by both the parties, we deem it appropriate to quash and set aside the impugned order on this count alone. 4. WE are not impressed by the preliminary objection taken by respondent No.6 about availability of alternative statutory remedy by way of revision against the impugned order. The order has been passed in excess of jurisdiction by the Authority, which can be questioned by way of Writ Petition under Article 226 of the Constitution of India. Availability of statutory remedy will be no impediment for the High Court to consider that challenge. In the circumstances, the impugned order is quashed and set aside. Instead, the Deputy Commissioner is free to examine the matter afresh, on its own merits and dispose of the proceedings by recording reasons in writing, expeditiously. The parties to appear in the Office of the Deputy Commissioner, Una on 9.9.2013 at 11:00 AM. The Writ petition is disposed of, so also the pending application(s), if any.