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2018 DIGILAW 99 (UTT)

SAVITA CHAUDHARY v. STATE OF UTTARAKHAND

2018-03-12

SUDHANSHU DHULIA

body2018
JUDGMENT : SUDHANSHU DHULIA, J. 1. Petitioner is an elected Chairman of Zila Panchayat, Haridwar. She was elected as Chairman in May 2016. On complaint against the petitioner, a preliminary enquiry was done by the District Magistrate, Haridwar. Preliminary enquiry against the petitioner reveals that there are serious charges of financial irregularities against the petitioner. On the basis of said enquiry, a notice was given to the petitioner by the District Magistrate, Haridwar asking for her reply as to why she should not be suspended. 2. Admittedly, petitioner did not reply to the show cause notices dated 25.10.2017 and 12.11.2017. Vide letter dated 14.11.2017, petitioner sought time to file the reply to the show cause notice, but admittedly the reply was not given by the petitioner and ultimately the impugned order was passed on 4.12.2017, by which the petitioner was suspended from the post of Chairman of the Zila Panchayat pending final enquiry. Petitioner has challenged the said order dated 4.12.2017 (Annexure No. 10 to the writ petition) before this Court. 3. The main contention of the petitioner before this Court is purely legal which is as follows. 4. Under Section 138 of the Uttarakhand Panchayati Raj Act, 2016, powers have been given to the State Government to remove a member or office bearer of the three tier Panchayats. 3. The main contention of the petitioner before this Court is purely legal which is as follows. 4. Under Section 138 of the Uttarakhand Panchayati Raj Act, 2016, powers have been given to the State Government to remove a member or office bearer of the three tier Panchayats. Section 138 reads as under: "(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, Kshetra 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, contravention or causing of loss or damage renders due to conduct of work as unauthorised in place by woman representative, her husband or family members or relatives, such woman shall be ineligible as member, Pradhan, UP Pradhan, Pramukh, UP Pramukh, Chairman, Vice Chairman, in such case they may be suspended upto the departmental final enquiry and their work and duties may be handed 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 sub-section (c), cease to hold the office of respective 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 Panchayat 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, 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 pass any order adversely affecting any person by the State Government/designated authority unless such person has been given an opportunity of making his representation." (Emphasis provided) 5. The contention of the petitioner is focused on the proviso to sub-section (4)(b) of Section 138 which says that pending enquiry against the Chairman, he/she can only be suspended provided the State Government or its designated authority gives an opportunity of making his/her representation. This proviso is nothing but simply an application of the principle of natural justice and fair play which mandates prior hearing. 6. The case of the petitioner before this Court is that prior to suspending the petitioner, the State Government did give any opportunity to make her representation, as contemplated under the law. 7. This proviso is nothing but simply an application of the principle of natural justice and fair play which mandates prior hearing. 6. The case of the petitioner before this Court is that prior to suspending the petitioner, the State Government did give any opportunity to make her representation, as contemplated under the law. 7. The argument of the petitioner would be that exercising powers under Section 146 read with Section 185 of the Uttarakhand Panchayati Raj Act, a notification has been issued whereby certain powers have been delegated under Section 138 of Uttarakhand Panchayati Raj Act. 8. The aforesaid sections broadly are the sections by which the State Government has been given power to delegate its authority to other officers. For the sake of convenience, Sections 146 and 185 are reproduced as under: "146- The State Government may delegate all or any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. 185- The State Government may delegate all or any of its powers under this Act to appointed authority to it subject to the Zila Panchayat or Zila Panchayats or Kshetra Panchayat or Khetra Panchayats or Gram Panchayats." 9. Under the said notification the State Government has retained with itself the power under Section 138 of the Uttarakhand Panchayati Raj Act regarding removal or suspension of Chairman of Zila Panchyat. Admittedly, in the present case, the powers have been delegated and, in fact, have been retained by the State Government. In any case, the powers contained under the proviso to Section 138 are quasi-judicial powers which cannot be delegated and wherein an opportunity of hearing is to be given to a Chairman by the State Government, before any adverse order is passed against him. 10. It is the settled position of law that judicial or quasi judicial powers cannot be delegated. Therefore, in any case, even under Section 146 or Section 185, the State Government could delegate these powers to any other person. These powers have to be retained and exercised by the State Government. This being the admitted position of law, this Court has to examine whether these powers have been exercised by the State Government as required under the law, or there is violation of the same? 11. These powers have to be retained and exercised by the State Government. This being the admitted position of law, this Court has to examine whether these powers have been exercised by the State Government as required under the law, or there is violation of the same? 11. Learned Additional Advocate General would argue that what has been done prior to passing of the impugned order dated 4.12.2017 is that only a notice was given to the petitioner by the District Magistrate which was ministerial in nature and whereby no decision has been taken by him. By the two orders dated 25.10.2017 and 12.11.2017, the petitioner has been asked to submit her explanation. By the order dated 18.10.2017, the Principal Secretary has delegated this power to the District Magistrate. 12. In my considered view, since the power has to be exercised by the State Government under Section 138 and it is a power which is quasi judicial in nature, therefore, the Principal Secretary cannot delegate this power, even for the purposes of seeking reply or show cause from the petitioner. This is more so in view of the fact that the State Government in the first place was acting against the petitioner on the report of the District Magistrate who is now seeking explanation from the petitioner. Therefore, on the face of it, this is violation of principles of natural justice and fair play. Moreover, in my considered view, the impugned order is an order which is in violation of the aforementioned proviso inasmuch as the petitioner has not been given opportunity to make her representation. It is only the State Government which could have asked for a reply from the petitioner. This has not been done by the State Government, but by the District Magistrate. Such power cannot be delegated. Therefore, the impugned order dated 4.12.2017 is totally illegal and is hereby set aside. 13. State Government is, however, at liberty to seek a fresh explanation from the petitioner and take decision in the matter as expeditiously as possible, preferably within a period of four weeks from today. Petitioner shall cooperate with the State Government. Meanwhile, looking to the nature of charges against the petitioner, it is directed that the petitioner shall not exercise any financial power, till the decision is taken in the matter. Petitioner shall cooperate with the State Government. Meanwhile, looking to the nature of charges against the petitioner, it is directed that the petitioner shall not exercise any financial power, till the decision is taken in the matter. The decision on such charges shall be taken as expeditiously as possible but definitely within four weeks from the date of production of a certified copy of this order. 14. This writ petition stands allowed to the extent of the above orders, findings and directions.