1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1687 of 2010. Judgment reserved on 13.7.2010 Decided on: 24.7.2010. Sheela Devi ….. Petitioner. Versus State of H.P. & others. …… Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. For the petitioner : Mr. Ajay Sharma, Advocate. For the respondents : Mr. R.K. Bawa, Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General, for the respondents. ------------------------------------------------------------------------------------------ Justice Kuldip Singh.J. The petitioner has prayed mainly the following reliefs in the petition:- “(i) that the impugned act on the part of the respondents is highly illegal, is unjust, unfair and therefore unconstitutional and further impugned orders have been passed by overstepping jurisdiction as vested in them, as such same is liable to be quashed and set aside. (ii) The impugned act on the part of the respondents as contained in annexure P-1 is the result of total non-application of mind and settled law is that if authorities of State like respondents act without application of mind resultant action can not withstand judicial scrutiny”. 2 2. The facts in brief are that petitioner was elected as Pradhan of the Gram Panchayat, Garli and petitioner discharged her duties meritoriously, her work and conduct was appreciated by the superiors. She has got affiliation to a particular party and with the change of guards at government level, the respondents started harassing and humiliating petitioner. The petitioner was suspended on 29.10.2009. The order dated 29.10.2009 was challenged in a statutory appeal before Divisional Commissioner but due to political interference no proceedings were taken in the said appeal. The petitioner filed CMPMO No.700 of 2009 in this Court and on 31.12.2009 this Court directed the Divisional Commissioner to decide appeal latest by 28.2.2010. The Divisional Commissioner dismissed the appeal on 19.2.2010. The statutory period of suspension was going to lapse but now impugned order dated 9.4.2010 has been passed by respondent No.3 and petitioner has been debarred from taking part in the proceedings of the Gram Panchayat for a period of six months w.e.f. 9.4.2010, 3. The petitioner has pleaded that no doubt impugned order can be assailed in appeal but in view of fact that the impugned order has been passed without any basis, therefore, without adhering to the remedy of appeal, petitioner has invoked extraordinary jurisdiction of this Court in the interest of substantial justice. 4. It is the case of the petitioner that respondent No.2 had issued guidelines with respect to maintaining of BPL and PDS families vide letter dated 29.1.2007. On the basis of letter dated 29.1.2007 the petitioner had learnt that in the State of Himachal Pradesh 40,000 ration cards were cancelled, thousands BPL families whose names earlier were shown in the registers were deleted and new names were added in pursuance of letter dated 29.1.2007. It has been alleged that 3 throughout the State action was taken against not more than 8-10 Pradhans of Gram Panchayats. This substantiates the submission of the petitioner that action taken against her was malafide and actuated with malice and at the instance of political bosses. The perusal of order dated 9.4.2010 indicates that some enquiry was got conducted and its report dated 17.2.2010 was submitted by the Sub Divisional Officer (Civil), Badsar. It has been alleged that three charges were proved against the petitioner. The enquiry officer in its report had absolved the petitioner from charges framed against her but while concluding every charge, one line has been written that charge has been proved. The liability if any, is of the Secretary but petitioner has been wrongly held guilty. In any case, alleged wrongful act has caused no prejudice to anyone. 5. The first charge against the petitioner in nutshell is unauthorized deletion and addition of BPL and PDS families. The second charge with respect to adjourning meeting of Gram Sabha held on 20.7.2009 by Pradhan at her own. The third charge against the petitioner is with respect to tampering of proceedings register. It has been ignored that under rule 35 of the of Himachal Pradesh Panchayati Raj (General) Rules 1997 (for short Rules), records/proceedings book are to be kept and maintained by Secretary and President has no role in the same but no action has been taken against the Secretary. The petitioner has assailed the impugned order dated 9.4.2010 being unjust, illegal, result of non-application of mind and has been passed by over stepping jurisdiction. 6. The petition has been contested by respondents No.1 to 3 by filing reply in which preliminary submission regarding maintainability of the writ petition has been raised in view of availability of alternative remedies under Section 148 of the Act read with Rule 143 of Himachal Pradesh Panchayati Raj (General) Rules 1997(for short Rules). The 4 stand of the respondents is that a complaint dated 29.8.2009 against the petitioner for tampering of record pertaining to the selection of BPL and PDS beneficiaries, to adjourn the meeting of Gram Sabha on her own, appointment of Panchayat Chowkidar and tampering of parivar register/complaint was received in the office of respondent No.3 from Daulat Ram ward member Gram Panchayat, Garli which was got enquired through Block Development Officer, Bijhari, who in his report dated 12.10.2009 held petitioner guilty of all the aforementioned charges. On the basis of enquiry report dated 12.10.2009 the petitioner was put under suspension vide order dated 29.10.2009 under the provisions of Section 145(1) of the Act after giving her show cause notice to petitioner and considering her reply which was found unsatisfactory. The Sub divisional Officer, Barsar was appointed enquiry officer under Section 145 of the Act, who has submitted report dated 17.2.2010 and reported that charge No.1 unauthorised deletion and addition of BPL and PDS families, charge No.2 for adjourning Gram Sabha meeting held on 20.7.2009 by Pradhan on her own and charge No.4 tampering with proceeding register have been proved 7. On the basis of regular enquiry report dated 17.2.2010 of Sub Divisional Officer (Civil), Barsar, petitioner was issued another show cause notice dated 10.3.2010 alongwith copy of regular enquiry. The reply of petitioner was received, petitioner was heard in person, record of the District Panchayat Officer, Hamirpur was perused. The three charges referred in the report of Sub Divisional Officer(Civil) Barsar were found to be proved. The respondent No.3 took lenient view and debarred the petitioner from taking part in any act or proceedings of the Panchayat for a period of six months by invoking the provision of Section 146 ( 1-A) of the Act vide order dated 9.4.2010. The petitioner was not removed from her office nor she was disqualified for a period six years. The than Panchayat Secretaries have also been charge sheeted. 5 The respondents have prayed for dismissal of the writ petition. the petitioner filed rejoinder and reiterated her stand. 8. We have heard the learned counsel for the parties. In para- 4 of the petition the petitioner has submitted that there is nothing against the petitioner but despite that impugned order has been passed, as such, without adhering to the remedy of appeal, petitioner has invoked extraordinary jurisdiction of this Court. It has been alleged that order dated 9.4.2010 is without jurisdiction, the alternative remedy is time consuming. The impugned order has been passed to harass the petitioner with change of guards at Govt. level. The learned counsel for the petitioner has relied Whirlpool corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1, in support of his contention. The learned Advocate General has supported the impugned order and has also submitted that petition is not maintainable in view of alternative remedy. 9. The Section 148 of the Act provides an appeal or revision against the orders or proceedings of a Panchayat and other authorities under the Act which shall lie to such authority and in such manner as may be prescribed. The rule 143 provides that authority before whom appeal would lie against the order passed by Deputy Commissioner under Section 146-1A of the Act. In Whirlpool supra the Supreme Court has held as follows:- “Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has 6 been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” The Supreme Court has held that at least in three contingencies namely for the enforcement of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act are challenged would not operate as an absolute bar for entertaining a writ petition on the ground of alternative remedy. 10. The petitioner has failed to establish that in the present case any contingency noticed by the Supreme Court is applicable for filing writ petition against the order dated 9.4.2010 without availing alternative remedy of appeal provided under Section 148 of the Act. The petitioner has vaguely pleaded malafides, political pressure without elaborating them. The petitioner has also alleged that impugned order has been passed by over stepping jurisdiction, but how the respondent No.3 has over stepped jurisdiction that has not been explained. Prima facie, we are of the view that the respondent No.3 had the jurisdiction to pass the impugned order, but assuming the respondent No.3 was not having jurisdiction over the subject matter still the appellate authority can look into this matter. There is no allegation against the appellate authority for hearing the appeal against the impugned order. In the earlier round, the petitioner had filed an appeal before 7 the appellate authority. There is effective alternative remedy of appeal provides under Section 148 of the Act against the impugned order but petitioner has not availed that remedy. The petitioner has failed to make out a case for invoking extraordinary jurisdiction of this court under Article 226 of the Constitution of India against the impugned order when effective remedy of appeal is available, hence petition is not maintainable. 11. In view of above discussion, the petition is dismissed. It will be open to the petitioner to file an appeal against the order dated 9.4.2010 before the prescribed appellate authority under Section 148 of the Act read with Rule 143 and in case such appeal is filed by the petitioner within a period of two weeks from today then such appeal will be entertained by the appellant authority without an objection of limitation and appellate authority shall decide the appeal within one month from the date of filing of such appeal with due notice to the parties. Interim order granted by this Court on 15.5.2010 and extended from time to time shall continue upto the date of filing of the appeal before prescribed appellate authority. It will be open to the petitioner to approach the appellate authority for appropriate interim relief thereafter. In case appeal is not filed in two weeks from today as observed above, then interim order dated 15.5.2010 and extended from time to time shall stand vacated after two weeks. The appellate authority shall decide the appeal in accordance with law. It is made clear that we have not gone into the merits of the case. The pending applications, if any, also stand disposed of. No costs. (Justice Kurian Joseph) Chief Justice July 24, 2010 (Justice Kuldip Singh), (sks) Judge. 8 9 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1687 of 2010 Judgment reserved on 13.7.2010 Date of decision: 21.07.2010 ___________________________________________________________ Sheela Devi ….. Petitioner. Versus State of H.P. & others. …… Respondents. Judgment for consideration, please. ( Kuldip Singh) Judge. I agree/do not agree. (Justice Kurian Joseph), Chief Justice. List for pronouncement of judgment on__________. (Justice Kurian Joseph), Chief Justice. Court Secretary