1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1534 of 2010. Judgment reserved on 13.7.2010 Decided on: 24.7.2010. Nirmala 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. J.K. Verma, Dy. Advocate General, for respondents No.1 to 3. Mr. Tarlok Chauhan, Advocate, for respondent No.4. ------------------------------------------------------------------------------------------ Justice Kuldip Singh.J. The petitioner has prayed mainly the following reliefs in the petition:- “(i) Writ in the nature of Certiorari may be issued and the orders dated 12.3.2010 passed by respondent No.2, whereby penalty of debarring from taking part in any act or proceedings of Gram Panchayat for a period of six months has been jmposed, the said orders, may be quashed and set aside. (i) Writ in the nature of mandamus may be issued; thereby respondents herein may be directed to allow the petitioner to continue function as Pradhan of Gram Panchayat, Ser Baloni, being elected representative of the illaqua, in the interest of justice”. 2 2. The pleaded case of the petitioner is that she was elected President of Gram Panchayat, Ser Balauni in the year 2005. She discharged her duties without any complaint of any kind but with the change of guards at Government level, the respondents started harassing the petitioner on one pretext or the other. The petitioner on 20.6.2009 was put under suspension. This order was challenged before Divisional Commissioner, Mandi who on 23.6.2009 set aside the order dated 20.6.2009 and remanded the case to respondent No.2, but on 2.7.2009 the Divisional Commissioner recalled the order dated 23.6.2009. The order dated 2.7.2009 of the Divisional Commissioner was challenged in CWP No.2328 of 2009. On 25.11.2009, this Court directed respondent No.2 to decide the lis pending before him. 3. The respondent No.2 vide office order dated 12.3.2010 by invoking Section 146 (1-A) of H.P. Panchayati Raj Act, 1994 (for short Act) has imposed penalty on petitioner and debarred her from taking part in any act or proceeding of the Gram Panchayat, Ser Balauni for a period of six months from the date of issuance of said office order, which has been assailed by petitioner in the present writ petition. 4. The petitioner has taken the plea that order dated 12.3.2010 is without jurisdiction and is actuated with malafides and therefore, she has not filed the appeal even though appeal lies before Divisional commissioner against the order dated 12.3.2010. 5. The further case of the petitioner is that in order dated 12.3.2010, the Deputy Commissioner has referred to inquiry report dated 1.2.2010 of SDO (Civil), Hamirpur which was contested by the petitioner. The allegations against the petitioner have no basis. It has been alleged that allegations have been raised, entertained and orders passed on the asking of political bosses. The resolution dated 3 21.1.2010 Annexure P-4 of the Gram Sabha was brought to the notice of authorities which establishes that on 18.2.2007 in the meeting of Gram Sabha, list of BPL/PDS families was prepared after hearing the objections. Similarly, allegations of muster roll for the period 15.3.2007 to 19.3.2007 and a sum of Rs.1040/- entered in the cash book dated 10.3.2007 are also wrong. The allegations of drawing wages of labourers from two works on the same day are also wrong in so far as petitioner is concerned. The work of the Panchayat is executed under the direct supervision and control of the Committee constituted for the purpose by the Panchayat. The Committee members have accepted their mistake and recovered the amount and handed over it to Pardhan who deposited the same in the accounts of Panchayat. The Respondent No.2 has adopted double standard so far petitioner is concerned, a person against whom all allegations were proved was left by respondent No.2 by giving him a warning, whereas the petitioner has been debarred for six months. It has been alleged that impugned acts of respondents are illegal, arbitrary, discriminatory and may be quashed. 6. The petition has been contested by respondents No.1 to 3 by filing reply, in which preliminary submission regarding the 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 petitioner has not exhausted the alternative remedy, hence petition is not maintainable. On merits filing of CWP No.2328 of 2009 by the petitioner was not denied. It has been submitted that respondent No.2 has passed order dated 12.3.2010 in accordance with the Act. It has been alleged that complaint dated 3.2.2009 Annexure R-2/A was received in the office of Deputy Commissioner from one Smt. Urmila Sharma which was got enquired through Block Development Officer, Hamirpur who in his report dated 28.2.2009 Annexure R-2/B 4 held the petitioner guilty of tampering in the selection list of BPL & PDS beneficiaries. The petitioner was issued show cause notice dated 3.5.2009, she was suspended vide office order dated 28.6.2009 Annexure R-3/D issued by respondent No.2 and Sub Divisional Officer (Civil), Hamirpur was appointed enquiry officer under Section 145 of the Act. On the basis of report of regular enquiry dated 1.2.2010, the petitioner was issued another show cause vide office order dated 23.2.2010 and she was given opportunity of being heard. Thereafter the order dated 12.3.2010 was passed. The respondents No.1 to 3 denied the case set up by the petitioner. 7. We have heard learned counsel for the parties. In para-4 of the petition, the petitioner has pleaded that the order dated 12.3.2010 can be assailed in appeal before Divisional Commissioner. The learned counsel for petitioner has submitted that for more then one reason the petitioner has filed petition under Article 226 instead of appeal against order dated 12.3.2010 under Section 148 of the Act. It has been submitted that order dated 12.3.2010 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. 8. 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 the authority before whom appeal would lie against the order passed by Deputy Commissioner 5 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 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. 9. 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 12.3.2010 without availing alternative remedy of appeal provided under Section 148 of the Act. The petitioner has used the expression ‘without jurisdiction’ against the order dated 12.3.2010 but the petitioner has failed to point out how the order dated 12.3.2010 passed by respondent No.2 is without jurisdiction. Prima facie. 6 we are of the view that the respondent No.2 had the jurisdiction to pass the impugned order, but assuming the respondent No.2 was not having jurisdiction over the subject matter still the appellate authority can look into this aspect. In the earlier round, the petitioner had approached the Divisional Commissioner. There is no allegation against the Divisional Commissioner for hearing the appeal against the order dated 12.3.2010. Therefore, since alternative remedy of appeal which is effective remedy is available to the petitioner against the order dated 12.3.2010, the writ petition is not maintainable. 10. In view of above discussion, the petition is dismissed. It will be open to the petitioner to file an appeal against the order dated 12.3.2010 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 21.4.2010 and extended from time to time shall continue upto the date of filing of the appeal before prescribed 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 21.4.2010 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. 7 (sks) 8 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1534 of 2010 Judgment reserved on 13.7.2010 Date of decision: 21.07.2010 ___________________________________________________________ Nirmala Devi ….. Petitioner. Versus State of H.P. & others. …… Respondents. Judgment for consideration, please. ( Justice 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