Civil Writ Petition No.16227 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 14th February, 2011 Jagdish Singh ....Petitioner Versus State of Punjab and another ....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr.Surjit Singh Salar Advocate for the petitioner. Mr.Palwinder Singh, Sr. Deputy Advocate General,Punjab for respondent No.1. Mr.Nakul Sharma Advocate for respondent No.2. M ehinder S ingh S ullar, J. (Oral) The compendium of the facts, culminating in the commencement, relevant for disposal of the present writ petition and emanating from the record, is that Yadwinder Singh (respondent No.2) was suspended from the post of Sarpanch, vide order dated 02.02.2009 and a regular inquiry was entrusted to Divisional Deputy Director, Patiala. Having completed the regular inquiry, Divisional Deputy Director, Patiala, submitted his inquiry report (Annexure P7) by virtue of which, respondent No.2 was held guilty for the charges alleged against him. Keeping in view the inquiry report, a show cause notice dated 05.05.2010 was issued to respondent No.2, to which, he submitted his written explanation. As the explanation was found to be unsatisfactory, so the Director, Rural Development and Panchayat Department, Punjab, in exercise of his power under Section 20(3) of The Punjab Panchayati Raj Act, 1994 (hereinafter referred to “the Act”), removed him from the post of Sarpanch, vide order dated 06.08.2010 (Annexure P-8). 2. Aggrieved by the order (Annexure P-8), respondent No.2 filed the appeal, which was accepted, by the Financial Commissioner and Secretary Punjab Civil Writ Petition No.16227 of 2010 2 Government, Rural Development and Panchayat (respondent No.1) (appellate authority), by virtue of impugned order dated 30.08.2010 (Annexure P-9) and he (respondent No.2) was reinstated on the post of Sarpanch. 3. Petitioner-complainant Jagdish Singh, son of Jarnail Singh did not feel satisfied and preferred the instant writ petition, challenging the impugned order (Annexure P-9), invoking the provisions of Articles 226 and 227 of the Constitution of India, inter-alia pleading that he moved two complaints (Annexures P-1 & P-2) against respondent No.2 and produced the sufficient evidence on record, in order to substantiate the allegations contained in the complaints. The matter was enquired into and Divisional Deputy Director held respondent No.2, guilty, vide report (Annexure P-7). The petitioner claimed that Director Rural Development and Panchayat Department, Punjab has rightly removed respondent No.2 from the post of Sarpanch, by virtue of order Annexure P-8 but the Appellate Authority (respondent No.1) fell in grave error in reinstating him on the post of Sarpanch vide impugned order (Annexure P-9). 4. Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioner that the impugned order (Annexure P-9) is a non-speaking, illegal order and against the statutory provisions of the Act. On the basis of aforesaid allegations, the petitioner sought the quashment of impugned order (Annexure P-9), in the manner depicted hereinabove. 5. The respondents contested the claim of the petitioner. Respondent No.2 filed his written statement inter-alia pleadings certain preliminary objections of maintainability of the writ petition; locus-standi and cause of action of the petitioner. The order (Annexure P-8) of Director Rural Department and Panchayat Punjab, was stated to be illegal, while impugned order (Annexure P-9) was termed as legal and in accordance with law. It will not be out of place to mention here that the contesting respondents has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the Civil Writ Petition No.16227 of 2010 3 matter. 6. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant writ petition deserves to be partly accepted. 7. As is evident from the record that the petitioner moved two complaints (Annexures P-1 & P-2) against the functioning of and the registration of two cases against the Sarpanch (respondent No.2). The matter was enquired into and Sarpanch was suspended, by way of order dated 02.02.2009 and regular inquiry was entrusted to Divisional Deputy Director, Patiala. He conducted the inquiry in a prudent manner and held the Sarpanch guilty of the charge alleged against him, by means of report (Annexure P-7). Taking cognizance of report and other material on record, the Director Rural Development and Panchayat Punjab, in exercise of his powers under Section 20 of the Act removed the Sarpanch, by virtue of order dated 06.08.2010 (Annexure P-8). 8. Felt aggrieved by the order (Annexure P-8), respondent No.2 filed the appeal, which was accepted by the Appellate Authority, vide order dated 30.8.2010 (Annexure P-9), the operative part of which is as under:- " Keeping in view this report, the director issued a show cause notice to the Sarpanch by sending a copy of the report and the appellant had submitted his reply. The director not only without considering his explanation has removed the appellant from his post but also relied upon the registration of the criminal cases against the appellant and held him guilty. Whereas, the director has not sought any explanation from the appellant regarding registration of the criminal cases. Beside this in this case the reports of the District Development & Panchayat Officer, Sangrur and that of Divisional Deputy Director Panchayat Patiala are contradictory in nature and the director has not considered this aspect of the case. Rather by mentioning the registration of criminal cases against the Sarpanch he has been held guilty and removed from the post of Sarpanch which is not legally correct. Therefore, the allegations against the appellant are not proved basically. In this way, Civil Writ Petition No.16227 of 2010 4 the order passed by the director are illegal. Therefore, the order of the removal of the appellant from the post is set aside and he is reinstated on the post." 9. Meaning thereby, the main grounds, which appear to have been weighed with the Appellate Authority, were that the Director issued a show cause notice to the Sarpanch by sending the copy of the report of Deputy Director (without the copies of FIRs), to which, he submitted his reply and he (Director) relied upon the registration of criminal cases as well and held him guilty, without seeking any explanation with regard to the registration of criminal cases against him. Secondly, the Appellate Authority vaguely found some discrepancies in the preliminary and regular enquiry reports, the details of which are not mentioned in the impugned order, which were stated to have not been considered by the Director while passing the order (Annexure P-8). 10. Here to me, the Appellate Authority slipped into the legal error in this regard. Assuming for the sake of argument (though not admitted) if there are some contradiction in the reports, as observed by the Appellate Authority and that Sarpanch cannot be removed on the basis of registration of criminal cases as it was not so mentioned in the show cause notice, enabling the Sarpanch to explain the registration of criminal cases in this connection. In that eventuality, the Appellate Authority ought to have remanded the case back to the Director to pass afresh order, after issuing a proper show cause notice to the Sarpanch and taking into consideration the entire material including the registration of the criminal cases. The Appellate Authority did not have the jurisdiction to just ignore the complaints, inquiry reports and registration of the cases, with impunity and straightway jump to reinstate respondent No.2 on the post of Sarpanch. Therefore, the impugned order (Annexure P-9) is illegal and without jurisdiction and cannot legally be maintained in the obtaining circumstances of the case. 11. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. Civil Writ Petition No.16227 of 2010 5 12. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the subsequent proceedings, the instant writ petition is accepted. Consequently, the impugned orders (Annexures P-8 & P-9) are hereby set aside. The case is remitted back to the Director Rural Development and Panchayat Officer for deciding the matter afresh, after issuing the proper show cause notice to respondent No.2 on the basis of entire material on record and then, to pass an order after affording the opportunity of being heard to the parties, in view of the aforesaid observations and in accordance with law. 13. The parties through their counsel are directed to appear before the Director Rural Development and Panchayat Officer on 17.03.2011 for further proceedings. (Mehinder Singh Sullar) February 14, 2011 Judge AS Whether to be referred to reporter?Yes/No