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2019 DIGILAW 926 (HP)

Ram Prasad v. State of Himachal Pradesh

2019-07-11

ANOOP CHITKARA, V.RAMASUBRAMANIAN

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JUDGMENT : V. Ramasubramanian, J. Challenging an order of suspension passed in terms of Section 145(1)(a) of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the ?Act?), the elected Member of the Zila Parishad, Sirmour, has come up with the above writ petition. 2. Heard Mr. Sudhir Thakur, learned Senior Counsel for the petitioner and Ms. Ritta Goswami, learned Additional Advocate General for the respondents. 3. The petitioner was elected as a Member of the Zila Parishad, Sirmour in January, 2016. On 24.8.2017, a Criminal Complaint in FIR No. 393 of 2017, was registered against him for alleged offences under Sections 304 and 201 IPC read with Section 34 IPC, on the file of Police Station, Paonta Sahib, Distt. Sirmour. 4. The petitioner was arrested and remanded to custody. Admittedly, he remained in custody for more than 14 days. 5. Therefore, by an order dated 21.7.2018, the petitioner was suspended from the membership of the Zila Parishad. 6. Challenging the order of suspension, the petitioner filed one writ petition in CWP No. 1916 of 2018. The writ petition was disposed of on 17.9.2018, with a direction to the Director, Panchayati Raj to consider his representation and take a decision afresh. The petitioner was also granted a small reprieve till the final order was passed. In other words, his suspension was kept in abeyance, till the decision was taken by the Director, Panchayat Raj. However, the Director Panchayati Raj, passed an order dated 1.10.2018, reaffirming the order of suspension dated 21.7.2018. Therefore, challenging the said order, which was also affirmed by the Divisional Commissioner, by an order dated 23.3.2019, the petitioner has come up with the above writ petition. 7. The contentions of the learned Senior Counsel appearing for the petitioner are two fold namely; (a) that under sub-section (3) of Section 145, a suspension cannot be in force for a period of more than six months and hence the impugned order is liable to be set aside; and (b) that in any case, clause (a) of sub-section (1) of Section 145 does not deal with an offence under Section 304 IPC and hence a person implicated in a criminal case for an offence, not covered by clause (a), cannot be placed under suspension. 8. We have carefully considered the contentions. 9. Section 145 of the Act reads as follows: ?145. Suspension of office bearers of Panchayats. 8. We have carefully considered the contentions. 9. Section 145 of the Act reads as follows: ?145. Suspension of office bearers of Panchayats. - (1) The prescribed authority may suspend from office any office bearer- (a) who remained in custody for more than fourteen days on a criminal charge or otherwise or against whom charges have been framed in any criminal proceedings under chapter V-A, VI, IX-A, X, XII, sections 302, 303, 304-B, 305, 306, 307, 312 to 318, 336- A, 366-B, 373 to 377 of Chapter XVI, sections 395 to 398, 408, 409, 420, 436, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (45 of 1860) or under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) or under sections 41 and 42 of the Indian Forest Act, 1927 (16 of 1927) or under sub-section (1) of section 61 of the Punjab Excise Act, 1914 or any law for the time being in force for the prevention of adulteration of food stuff and drugs, suppression of immoral traffic in women and children and protection of civil rights; (b) who has been served with a notice alongwith a charge sheet to show cause under this Act, for his removal from the office; (c) where on a complaint made against him the preliminary enquiry prima-facie discloses the misappropriation, misutilization or embezzlement of Panchayat funds or he has been found guilty of misconduct in the discharge of his duties: Provided that any office bearer, if placed under suspension against whom charges have been framed in any criminal proceedings under clause (a), shall remain under suspension till the final decision of the competent court. (2) Where the inspection or an audit report discloses the misappropriation, misutilization or embezzlement of Panchayat funds by an office bearer of a Panchayat and the prescribed authority is satisfied that continuance in office of such a person will prejudice the enquiry under section 146 and apprehends tampering with record and witnesses, may suspend such a persons and in case he is in possession of any record, money or any property of the Panchayat, order him to handover such records, money or property to the Secretary of the Panchayat. (2-A) No office bearer shall be placed under suspension under subsection (1) or (2) unless he has been given an opportunity of being heard. (2-A) No office bearer shall be placed under suspension under subsection (1) or (2) unless he has been given an opportunity of being heard. (3) The order of suspension under sub-section (1) or (2) shall be reported, in the case of office bearers of Zila Parishad, to the Divisional Commissioner concerned, and in the case of office bearers of Panchayat Samiti and Gram Panchayat, to the Deputy Commissioner concerned, within a period of ten days from the date of suspension, who shall, thereafter within ten days from the date of receipt of such report, order enquiry under section 146 and shall complete enquiry and action within six months and in case enquiry and action is not completed within stipulated period, the suspension order shall be deemed to have been revoked and formal order shall be issued accordingly. (4) In the event of both the Pradhan and Up-Pradhan of Gram Panchayat, Chairman or vice-Chairman of Panchayat Samiti or Zila Parishad being suspended under sub-section (1) or sub-section (2) the Gram Panchayat, Panchayat Samiti or Zila Parishad shall elect an office bearer qualified to hold the office of Pradhan or Chairman, as the case may be, such person shall perform all the duties and exercise all the powers of Pradhan or Chairman, as the case may be, during the period for which suspension continues. (5) A person who has been suspended under sub-section (1) or subsection (2) shall also forthwith stand suspended from the office of member or office bearer of any other Panchayat of which he is a member or office bearer. Such person shall also be disqualified for being elected, under the Act during his suspension.? 10. It is true that under sub-section (3) of Section 145, the Authority concerned, is to conduct an inquiry and pass an order within a period of six months. If an inquiry is not conducted and completed within six months, the suspension order shall be deemed to have been revoked. 11. But sub-section (3) of Section 145, by its very nature, would apply only to cases where the proceedings are initiated departmentally. They cannot apply to cases where criminal charges are framed against a person. 12. That will take us to the next question as to why sub-section (3) of Section 145 makes a reference to both sub-section (1) and sub-section(2). But sub-section (3) of Section 145, by its very nature, would apply only to cases where the proceedings are initiated departmentally. They cannot apply to cases where criminal charges are framed against a person. 12. That will take us to the next question as to why sub-section (3) of Section 145 makes a reference to both sub-section (1) and sub-section(2). Sub-section (1), as can be seen from what we have extracted above, deals primarily with the registration of criminal complaints in clause (a). But clauses (b) and (c) of sub-section (1) deal with departmental proceedings. It is only on account of clauses (b) and (c), finding a place in sub -section (1), that sub-section (3) makes a reference to sub-section (1). Therefore, there is no incongruity between sub-section (1) and sub-section (3) of Section 145 of the Act. 13. Take for instance a case where a criminal complaint is registered for alleged offence under Section 302 IPC. If the interpretation, as sought to be given by the petitioner, is accepted, then the Deputy Commissioner of the concerned Department should hold a departmental inquiry into the criminal charge of murder. That can never be the purport of sub-section (3) of Section 145. Sub-section (3) of Section 145 has to be understood harmoniously with clauses (b) and (c) of sub-section (1) of Section 145. Therefore, the first contention that the suspension cannot exceed a period of six months in any case, including cases where criminal complaints are under investigation/trial, cannot be accepted. 14. Insofar as the second contention is concerned, clause (a) of sub-section (1) speaks of two different contingencies. The first is that the elected member remained in custody for more than fourteen days on a criminal charge or otherwise, and second is that the elected member faces criminal charges, in any capacity, for certain offences. In relation to the second part, Section 304 IPC does not find place. But insofar as the first part is concerned, namely a person remaining in custody for 14 days on criminal charges or otherwise, the offences in relation to which he was detained in custody, are of no significance. This is the only way, clause (a) can be interpreted, in view of the fact that word used is ?or? which is a disjunction and not =and' which is a conjunction. 15. In other words, clause (a) of sub-section (1) covers two types of cases. This is the only way, clause (a) can be interpreted, in view of the fact that word used is ?or? which is a disjunction and not =and' which is a conjunction. 15. In other words, clause (a) of sub-section (1) covers two types of cases. The first type of cases are those where a person is in custody for more than 14 days, on a criminal charge or otherwise. This is irrespective of the offence which he is charged with. The second type of cases are those where a person gets involved in certain types of criminal offences indicated in clause(a) itself. This is irrespective of whether he is in custody for 14 days or not. 16. Unless clause (a) of sub-section (1) of Section 145 of the Act is understood in this manner, the object of ensuring that persons with criminal background do not continue in office, cannot be achieved. Once the purport and object behind this clause is understood, it will be very clear that the second contention cannot hold water. Therefore the writ petition is dismissed. 17. It is needless to point out that in case the petitioner gets acquitted in the criminal case and if his elected tenure has not come to an end by then, he will be reinstated subject to the right of the prosecution, to file an appeal. Pending application(s) also stands disposed of accordingly.