LPA No. 1332 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1332 of 2010 (O&M) Date of decision:- 24.01.2011 Tejbalkar Singh, Panch, Gram Panchayat, Chaura, Block Sanor, Tehsil and District Patiala. ......Appellant Vs State of Punjab through Principal Secretary, Exercising the Powers of Appellate Authority, Department of Rural Development and Panchayat, Punjab Civil Secretariat, Chandigarh and others. ......Respondents CORAM:-HON'BLE MR. JUSTICE RANJAN GOGOI, ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. P.S. Khurana, Advocate, for the appellant. * * * * RANJAN GOGOI, A.C.J. (ORAL) C.M. No. 4042 of 2010 Delay of 07 days in filing the appeal is condoned. LPA No. 1332 of 2010 The appellant is/was an elected Panch. He was placed under suspension by an order dated 06.05.2010 passed by the Director, Rural Development & Panchayat, Mohali, SAS Nagar (Punjab) which order has been affirmed in appeal by the learned Financial Commissioner and Principal Secretary to the Government, Punjab Rural Development and LPA No. 1332 of 2010 (O&M) 2 Panchayats Department, Chandigarh. The said order is dated 24.05.2010. Assailing both the aforesaid orders the appellant had instituted the writ petition out of which this appeal has arisen. The writ petition having been dismissed the appellant is before this Court by means of the present appeal. The power of suspension of an elected Panch is conferred by the provisions contained in Section 20(3) of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the 'Act' only) which provision is reproduced below:- “(3) The Director may suspend any Sarpanch or Panch where a case against him in respect of any criminal offence is under investigation, enquiry or trial if, in the opinion of the Director, the charge made or proceeding taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character.” A reading of the orders of the Director, Financial Commissioner and Principal Secretary to Government Punjab as well as the learned Single Judge would go to show that the appellant has been suspended on the ground that a criminal case, inter-alia, under Section 307 of the Indian Penal Code is pending against him. We have gone through the FIR which is a part of the record of the present case. Learned Counsel for the appellant has vehemently contended that the FIR has given a different colour to the incident which is one of road accident. Referring to the hospital bed head ticket LPA No. 1332 of 2010 (O&M) 3 learned Counsel has tried to satisfy the Court that the version narrated in the FIR, in so far as the offence under Section 307 of the Indian Penal Code is concerned, is not correct. It is the further contention of the learned Counsel for the appellant that the order of the Director has been passed without considering the reply of the appellant to the show cause notice which reply is available at Annexure P6 to the writ petition. Learned Counsel has further submitted that being an elected Panch the appellant ought to have been heard before the impugned order was passed. The provisions of Section 20(3) of the Act empower the Director to order for the suspension of a Panch in a situation where any criminal offence is under investigation if the Director is satisfied that the charge made or the proceeding against the Panch is likely to embarrass him in the discharge of his duties or the same involves moral turpitude or defect of character. The power conferred by Section 20(3) of the Act vests a fair amount of discretion in the Director to or not to order a suspension. However, such a discretion has to be exercised in a proper manner and upon due satisfaction. If in the present case the Director was satisfied that since an offence invoking moral turpitude was being tried by the Criminal Court, the appellant, being an elected member, ought not to be continued as a Panch it cannot be said that the exercise of power was in any way excessive or arbitrary. This will bring the Court to a consideration that as to whether the details mentioned in the FIR should be accepted by the LPA No. 1332 of 2010 (O&M) 4 Court at face value or whether the documents and materials relied upon should be construed and understood to be one of road accident as contended on behalf of the appellant. In this regard, we have perused the details of the FIR and it is our considered view that, at this stage, when the trial is going on it would be improper for this Court to interdict the same by any observation with regard to the charge levelled against the appellant to be either correct or incorrect. The same would eventually be determined by the trial Court and the appellant would be permitted to take all defences as may be open to him in law. No exercise of power in a collateral manner to determine an issue that has not arisen directly should be attempted by the Court. In so far as the consideration of the reply of the appellant and giving of an opportunity is concerned, we find that unlike the power of removal conferred by Section 20(1) of the Act which has to be preceded by grant of an opportunity of tendering an explanation in writing the power of suspension does not embody any such requirement in law. Reliance has been placed by the learned Counsel on a decision of this Court in Hazari Lal, Sarpanch, Gram Panchayat, Harsana Kalan, District Sonepat Vs. The Financial Commissioner and Principal Secretary to Government, Haryana Development and Panchayats Department, Chandigarh, 2003(3) PLR, 596. After going through the said judgement we find that the issue involved therein was action taken under Section 51(1)(b) of the Haryana Panchayati Raj Act, 1994 which specifically imposed the requirement of giving an LPA No. 1332 of 2010 (O&M) 5 opportunity of explanation before suspension. The Punjab Act is conspicuously silent in this regard and, therefore, it has to be understood that absence of a parallel provision in the Punjab Act is a conscious and deliberate exercise. The rules of interpretation, therefore, will not permit the Court to read such a requirement in the Act. In any event from the orders passed by the authorities below it clearly transpires that the detention of the petitioner in jail in connection with the criminal case is an admitted fact which was duly taken note of. The theme of the petitioner's representation (P6) is that the incident was not one of attempt to murder but the same was one of road accident. All the contentions advanced on behalf of the appellant having been answered in the above manner, we are of the view that this LPA does not merit admission. It is accordingly dismissed. (RANJAN GOGOI) ACTING CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE 24.01.2011 Amodh