IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 21035 of 2008 DATE OF DECISION: February 05, 2009 Bhupinderjit Singh .........PETITIONER(S) VERSUS State of Haryana and Others ......RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. J.L. Malhotra, Advocate, Advocate, for the petitioner. Mr. Sunil Nehra, AAG, Haryana. AJAI LAMBA, J. (ORAL) This civil writ petition has been filed under Articles 226 & 227 of the Constitution of India praying for quashing of order dated 21.07.2008 Annexure P-9 and order dated 02.12.2008 Annexure P-10. Under order Annexure P-9, while taking note of the fact that FIR bearing no. 75 dated 26.05.2008 under Sections 419, 420, 467, 468, 471 IPC has been registered in which there are allegations against the petitioner indicating moral turpitude and defect of character, the petitioner was suspended by Deputy Commissioner Kurukshetra while exercising powers under Section 51 (1) (a) of the Haryana Panchayati Raj Act, 1994. Vide the other impugned order Annexure P-10, appeal filed by the petitioner before the Government has been dismissed. Learned counsel for the petitioner states that the petitioner is on anticipatory bail. The respondent had contested and had lost the election. C.W.P. No. 21035 of 2008 -2- The FIR is frivolous and, therefore, cannot be made the basis for suspension of the petitioner. The petitioner has not been heard before passing impugned order. I have considered the issue. It has been brought out through the written statement filed on behalf of the State that Deputy Commissioner issued a show cause notice to the petitioner. The show cause notice is available on the record as Annexure P-6. It could not be served for the reason given out by family members of the petitioner that petitioner is out of station. Again a copy of notice was affixed on the door of the house of the petitioner on 10.07.2008. Service of notice by affixation is admitted by the petitioner. The petitioner was given 15 days time to explain his conduct in the context of the allegations noticed above. No reply to the show cause notice was filed and, therefore, the order of suspension was passed by the Deputy Commissioner. Section 51 (1) and (2) reads as under:- “51. Suspension and removal of a Sarpanch [----] or Panch.-- (1) The Director or the Deputy Commissioner concerned may, suspend any Sarpanch [--] or Panch, as the case may be.-- (a) where a case against him in respect of any criminal offence is under investigation, enquiry or trial, if in the opinion of the Director, or Deputy Commissioner's concerned 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; C.W.P. No. 21035 of 2008 -3- (b) during the course of an enquiry for any of the reasons for which he can be remove, after giving him adequate opportunity to explain. [(2) Any Sarpanch or Panch, as the case may be, suspended under Sub-Section (1), shall not take part in any act or proceeding of the Gram Panchayat during the period of his suspension and shall hand over the records, money or any other property of the Gram Panchayat in his possession or under his control-- (i)if he is a Sarpanch to a Panch commanding majority in the Gram Panchayat: (ii)if he is a Panch to Sarpanch; Provided that the suspension period of a Panch or a Sarpanch, as the case may be, shall not exceed one year from the date of handing over the charge in pursuance of the suspension order except in criminal cases, involving moral turpitude.]” It becomes abundantly clear that the Deputy Commissioner indeed has the jurisdiction and legal authority to suspend the petitioner as a criminal case has been registered against the petitioner. The allegations in the FIR involve moral turpitude in so much as it has been alleged in the FIR that the petitioner tried to get passport issued by changing his name as Rupinderjit Singh. I also find that attempts were made to get the response of the petitioner, however, despite service by affixation, no reply to the show cause notice was filed. C.W.P. No. 21035 of 2008 -4- Learned counsel for the petitioner has relied on AIR 1980 Punjab and Haryana 209, Kashmin Lal Vs. The Deputy Commissioner, Sonepat and Others and 1997 (2) PLR 293, a Division Bench judgment of this Court rendered in Mange Ram Vs. Financial Commissioner and Secretary to Govt., Development and Panchayat Dept., Haryana. In Kashmin Lal's case (supra), Full Bench of this Court held that before an order of suspension can be passed against a Panch or a Sarpanch, an opportunity of hearing or notice has to be given. Likewise in the case of Mange Ram (supra), it has been held that Deputy Commissioner while exercising powers under Section 51(1) of the Panchayati Raj Act acts as a quasi judicial authority and before passing any order of suspension he has to observe the principles of natural justice and provide adequate opportunity to explain the conduct. The judgments, however, do not help the petitioner in any manner in so much as in para no. 16 of the written statement, it has specifically been pleaded that on 10.07.2008, copy of the notice was affixed at the door of the house of the petitioner at the instance of the respondents. Deputy Commissioner passed order on 21.07.2008. The law only provides “for giving adequate opportunity to explain the conduct”. It does not say that even if the Panch or Sarpanch, as the case may be, does not respond to the show cause notice, the Deputy Commissioner would be bound to defer the proceedings to await the response to the show cause notice. In 1998 (2) PLJ 281, Kailash Sharma Vs. Commissioner and Secretary to Government of Haryana, a Division Bench judgment of this Court, it has been held that Clause (a) of Sub Section 1 of Section 51 of the C.W.P. No. 21035 of 2008 -5- Haryana Panchayati Raj Act authorises the Director or the Deputy Director to suspend a Sarpanch when the charge made or proceedings taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character. In the case in hand, as noticed in earlier part of the order, the petitioner is involved in a case in which allegations are of cheating as defined under Section 419 of Indian Penal Code and dishonestly inducing delivery of property under Section 420 of the Indian Penal Code, forgery of valuable security (Section 467 IPC) and of making false documents and of using as genuine a forged document (Section 471 IPC) which certainly involve moral turpitude. Having gone through the impugned orders Annexures P-9 & P-10, I find that the orders are based on relevant material i.e. FIR and its contents. Under the circumstances, it cannot be said that a judicious approach has not been adopted by the authorities. Learned counsel for the petitioner has not been able to make out a case of defect in decision making process. The decision itself has been challenged. Under the circumstances judicial review of the impugned orders is not called for. The orders have been passed by authorities having competent jurisdiction. It is, however, to be considered that the petitioner is an elected representative and Sarpanch of the Gram Panchayat with a limited term of office. First Information Report was lodged on 26.05.2008. This Court cannot lose sight of the fact that investigation in such cases, at times, takes a long time. Further the conclusion of trial at times takes a long time. The C.W.P. No. 21035 of 2008 -6- case of the petitioner, in the facts and circumstances of the case, is required to be seen in view of these ground realities. In view of the issue involved, S.P. Kurukshetra is directed to ensure speedy investigation into case FIR No. 75 dated 26.05.2008 Police Station Ladwa under Sections 419, 420, 467, 468, 471 IPC. The final report/conclusion of the investigating agency shall be conveyed to the Deputy Commissioner to enable the Deputy Commissioner to review the case of the petitioner accordingly. In case no incriminating material is found against the petitioner, the Deputy Commissioner shall consider the report submitted by the Investigating Agency and revoke the order of suspension. This is particularly so because the only reason assigned for suspension of the petitioner is filing of FIR and pendency of investigation. The petitioner shall also be at liberty to approach the Deputy Commissioner in case of changed circumstances viz. in case FIR is cancelled; no inciminating material is found against the petitioner; the petitioner is discharged by Court having competent jurisdiction or charges are framed that do not indicate involvement of moral turpitude or defect in character. The Deputy Commissioner would be at liberty to reconsider the issue, as and when fresh material is brought before the Deputy Commissioner which might indicate that facts and circumstances are not likely to embarass the petitioner in discharge of his duties as Sarpanch. This petition is disposed of in the above terms. Copy of the order be sent to Deputy Commissioner, Kurukshetra as also S.P. Kurukshetra for strict compliance. 05.02.2009 (AJAI LAMBA) shivani JUDGE