Research › Search › Judgment

Uttarakhand High Court · body

2018 DIGILAW 129 (UTT)

Hirdesh Devi v. State of Uttarakhand

2018-03-22

SUDHANSHU DHULIA

body2018
JUDGMENT : 1. Petitioner was elected as “Pradhan” of Village Aurangabad, Tehsil and District Haridwar. She claims to be a member of Scheduled Caste community i.e. “Dhangar” and successfully contested the election of “Village Pradhan”, Aurangabad. Thereafter, on a complaint made by some private individual, the Scrutiny Committee vide its order dated 01.10.2016 recommended to cancel the caste certificate of the petitioner and ultimately by the order dated 27.10.2016, the Scheduled Caste certificate of the petitioner was cancelled. This order was challenged by the petitioner before this Court in a writ petition being WPMS No.3106 of 2016. This Court vide its judgment and order dated 16.02.2018 allowed the said writ petition and set aside the orders dated 01.10.2016 and 27.10.2016. 2. Meanwhile, since on a complaint of some private individual, the Scheduled Caste certificate of the petitioner was cancelled, an enquiry was constituted and the petitioner was suspended by the District Magistrate, Haridwar by order dated 05.03.2017 pending final outcome of the enquiry. The petitioner challenged the suspension order dated 05.03.2017 before this Court in a writ petition and during the pendency of that writ petition, the District Magistrate removed the petitioner from the post of “Pradhan” vide order dated 27.11.2017, which is under challenge before this Court in the present writ petition. 3. Learned counsel for the petitioner submits that under Section 138 of the Act, powers have been given to the State Government to remove a member or office bearer of the three tier Panchayats. Section 138 of the Act reads as under:- “138. 3. Learned counsel for the petitioner submits that under Section 138 of the Act, powers have been given to the State Government to remove a member or office bearer of the three tier Panchayats. Section 138 of the Act reads as under:- “138. Separation from their posts to the officers of the three tiers panchayat- (1) The State Government may remove a member of the Panchayats on any of the following grounds- (a) that he has acted as a member of the Gram Panchayat, Kshettra Panchayat and Zila Panchayat or member of any committee by voting or taking part in the discussion of any matter in which he has directly or indirectly, a personal interest or in which he is professionally interested on behalf of a client, principal or other person; (b) that he has become physically or mentally incapacitated for performing his duties as such member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Up Chairman; (c) that he has been guilty, whether in his present or an earlier term of office, of misconduct in the discharge of his duty as such member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman or has contravened any of the provisions of this Act or caused loss or damage to the fund or property of the State Government or Panchayats and such misconduct, contraventions or causing of loss or damage renders due to conduct of work as unauthorized in place by women representative, her husband or family members or relatives, such women shall be ineligible as member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman in such case they may be suspended up to the departmental final enquiry and their work and duties may be hand over to a committee of three elected members of the concerning Panchayat. In addition to the disciplinary action also may be taken against the departmental employees/officer, if found guilty in the enquiry. In addition to the disciplinary action also may be taken against the departmental employees/officer, if found guilty in the enquiry. (2) Notwithstanding anything in any other enactment, where a member specified in any member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice chairman in clause (c) of sub-section (1) of section 29 is removed from membership under this section he shall with effect from the date of publication of notification of removal under section (c), cease to hold the office of respectively member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice chairman and a vacancy shall be deemed to have been created in that office. (3) A person who has been removed from membership of the Panchayat under clause (a) or clause (c) of sub-section (1) shall be disqualified for being chosen a member of the Panchayat and being elected a member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman, Up chairman of a Panchayats for a period of five years from the date of his removal: Provided that the State Government may, at any time by order, remove the disqualification. (4) Suspension-(a) If after the preliminary enquiry, the Pradhan, Up Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman found guilty in prima facie then till the final enquiry, the State Government may be suspended to him. (b) If it is proved that the meeting of Gram Sabha/Gram Panchayat is convened in the house of Pradhan/Up Pradhan then after enquiry against the concerning person, the State Government may be suspended to him; Provided that shall not pass any order adversely affecting a person by the State Government/designated authority unless such person has been given an opportunity of making his representation.” 4. The powers contained under the proviso to Section 138 of the Act are quasi-judicial powers, whether these powers can be delegated can be a matter which may be examined by this Court. However, nothing is being argued by the learned counsel for the petitioner on this aspect. His argument is that even the District Magistrate acting under the delegated powers cannot pass the order of termination as he has done. 5. What has been argued before this Court is that the District Magistrate while passing the impugned order has given two reasons. However, nothing is being argued by the learned counsel for the petitioner on this aspect. His argument is that even the District Magistrate acting under the delegated powers cannot pass the order of termination as he has done. 5. What has been argued before this Court is that the District Magistrate while passing the impugned order has given two reasons. One is that the Scrutiny Committee vide order dated 01.10.2016 has already made its recommendation for cancellation of the caste certificate of the petitioner and secondly against the said order, the petitioner has filed a writ petition before this Court and there is no interim relief granted to the petitioner in that writ petition. 6. In view of this Court, since the orders dated 01.10.2016 and 27.10.2016, whereby the Scheduled Caste certificate of the petitioner has been cancelled, have already been set aside by this Court and the Scrutiny Committee has been directed to take a fresh decision in the light of the fact that “Dhangar” community, to which the petitioner belongs, is notified as a Scheduled Caste. Therefore what formed the basis for the removal of the petitioner has already been set aside by this Court. The present writ petition is hence allowed. The order dated 27.11.2017 is hereby quashed.