CRM M-3811 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM M-3811 of 2009 Date of Decision: 11.12.2009 Kulwant Singh & anr. ....Petitioners Versus State of Punjab and anr. ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Ms. Anu Chathrath Kapoor, Advocate for the petitioners. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C. for quashing of FIR No.30 dated 18.11.2008 registered at Police Station Vigilance Bureau, Ludhiana under Sections 420, 120-B IPC and Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and all subsequent proceedings arising therefrom. The facts, in short, are that the petitioner No.1-Kulwant Singh son of Sh. Gurbachan Singh was the Science Teacher of Dashmesh Khalsa High School, Heran. He remained Member Panchayat from the year 1998 to January 2003. Harbans Singh is the headmaster of that CRM M-3811 of 2009 2 school. An FIR was registered against the petitioners on the ground that petitioner No.1 held the post of Panch in spite of his being a teacher in a Government Aided School. He had received salary of Rs.6,09,884/- from June 1998 upto 1st January 2003. He was holding an Office of profit during his tenure as Panch, which he could not do. He should have resigned before being elected as Panch. The same was stated to be in the knowledge of petitioner No.2 who knowingly allowed the petitioner No.1 to continue to draw the salary. Thus, an FIR No.30 dated 18.11.2008 under Sections 420, 120-B IPC and Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988, was registered against the petitioners. Learned counsel for the petitioners, while seeking quashing of the said FIR, submitted that the petitioners were not Government Servants and had not incurred any disqualification under Article 243-F of the Constitution of India or under Section 208 of the Punjab Panchayati Raj Act, 1994 or under Section 11 of the Punjab State Election Commission Act, 1994. The petitioners have never held an office of profit under the State or Panchayat and have not been convicted by any court of law under any offence and as such, have never earned any disqualification. The election to the Village Panchayat, Aitiana, District Ludhiana was scheduled to be held in 1998. The petitioner No.1 applied to the management seeking permission to contest the Panchayat election. Since the election of petitioner No.1 had no bearing on the functioning of the school, so the Headmaster, petitioner No.2 recommended his case and Gurdial Singh, Manager, Managing Committee, Dashmesh Khalsa High School, Heran, District Ludhiana granted permission. He filed his nomination paper for election to the Gram Panchayat, as he was not suffering from any of the disqualifications enumerated above. His nomination papers were accepted so he contested the election and was declared elected and remained Panch of Gram Panchyat, Aitiana from June 1998 to June 2003 (and not CRM M-3811 of 2009 3 upto January, 2003). Learned counsel for the respondent-State opposed the same on the ground that the petitioner was holding the post as teacher in a School which was registered under the Co-operative Society and therefore, could not hold the same, in view of Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994. Learned counsel for the parties have been heard. In order to adjudicate upon the issue, it would be relevant to reproduce Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994, which is one of the disqualification for membership of a Panchayat. The same reads as under :- “208. Disqualification for Membership (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if - (g) is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co- operative Societies Act, 1961, or of the State Government or the Central Government; or” It is not denied by learned counsel for the petitiones that the petitioner was working in an aided institution. The petitioner is working in the Dashmesh Khalsa High School, Heran, District Ludhiana, being run by the Managing Committee Dasmesh Kendra High School, Heran, District Ludhaian. The same was registered under the Registration of Societies Act XXI of 1860. The school is regulated under the Punjab Privately Managed Recognised Schools Employees (Security of Service) Act, 1979. The institution receives Grant-in-Aid. As per the Grant-in-Aid Rules, the government is required to meet the deficit in respect of payment of salary to the teachers and employees working against the posts. The Grant-in-Aid does not take away the character of the institution of that being a private institution. Thus, it cannot be said that the petitioner was a whole time CRM M-3811 of 2009 4 salaried employee either of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government. The Managing Committee of the School was registered under the Registration of Societies Act XXI of 1860 and cannot be said to be registered under the Punjab Co-operative Societies Act 1961. Even otherwise, the disqualifications for membership laid in Section 208 of the Punjab Panchayati Raj Act, 1994 have to be read along with the disqualifications laid down in Section 11 the Punjab State Election Commission Act, 1994, vide which, only those who hold an office or profit under a Panchayat or a Municipality are said to be disqualified. Section 11 (1)(g) of the Punjab State Election Commission Act, 1994 reads as under :- “11. Disqualifications for membership of a Panchayat or a Municipality- A person shall be disqualified for being chosen as and for being a member of a Panchayat or a Municipality:- (g) if he holds an office or profit under a Panchayat or a Municipality; or” Hon'ble the Supreme Court, in the case of Som Lal v. Vijay Laxmi & Ors. 2008(4) SC 403, held as under:- “ xxx xxx xxx xxx we have already decided the question of law involved in the present case that a salaried employee of any local authority, statutory corporation or Board or a Co-operative Society can not be held to have held the office of profit under Section 11 of the Act 19 of 1994. Therefore, we need not to go into the factual controversy. Mr. P.S. Patwalia, learned senior counsel for the respondents tried to persuade us that we should look to the scope of both the Acts. The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in CRM M-3811 of 2009 5 later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications.” Thus, even if it is considered that the petitioner was working in an institution being run by a Co-operative Society, it is a disqualification under Section 11 of the Act 19 of 1994 which will prevail and not the disqualifications mentioned in Section 208 of the Act 9 of 1994. As per Section 11 of Act 19 of 1994, only a person who is holding an office or profit under a Panchayat or a Municipality, is disqualified. Hon'ble the Supreme Court, in the case of Satrucharla Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev and another reported in A.I.R 1992 S.C. 1959, held that a teacher in a school run by Registered Society was not under the control of Government. The Appointing Authority of the teacher may be under the control of the Government but the Government had no control over the teacher and therefore, the said teacher cannot be said to be holding an Office or profit under the Government and it was held that a teacher in school run by Registered Society, cannot be said to hold an Office of Profit under the Government. It is apparent from the above that by no stretch of imagination, the petitioner can be said to be disqualified to hold the post of Panch. Thus, neither petitioner No.1 nor petitioner No.2 have committed any offence under Section 13(1)(d) or 13(2) of the Prevention of Corruption Act. Even if, an employee in an aided institution may be a public servant, as alleged in the FIR, petitioner No.1 has received salary to which he was entitled to under the provisions of the Act and the Rules for performing his CRM M-3811 of 2009 6 duties during that period. As such, he is not guilty of receiving any gratification in the form of money or anything while serving as a teacher and there is no such allegation against him. To be a public servant is not an offence attracting provisions of Section 13(1)(d) or Section 13(2) of the Prevention of Corruption Act. The action of the public servant must attract provisions of law, only then he could be charged under Section 13(1)(d) and 13(2), which are reproduced below :- 13. Criminal misconduct by a public servant. (1) A public servant if said to commit the offence of criminal misconduct, (d) if he :- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Explanation.- For the purposes of this section “knows sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. The only action that could have been initiated against the petitioner was to challenge his election. His election was never challenged CRM M-3811 of 2009 7 and rightly so as he did not suffer from any disqualification at the first place. No criminal offence is made out against the petitioner. In fact, there cannot be a worse instance of misuse of the process of law. According to FIR, the petitioner no.1 has received salary. The salary was due to him according to the conditions of service. There is no allegation that petitioner No.1 or petitioner No.2 have received any gratification in the form of money or kind. Even after looking from every angle, no offence under Section 13(1)(d) nor under Section 13(2) of the Prevention of Corruption Act, 1988, is made out against the petitioner. A perusal of the FIR does not disclose any offence having been committed by the petitioners under Section 420, 120-B IPC either. The necessary ingredients to attract Section 420 IPC are not there. There being no criminal conspiracy, the provisions of Section 420, 120-B IPC are also not attracted. There is no incident of cheating and dishonestly inducing anybody for delivery of property. The FIR, therefore, deserves to be quashed being misuse of process of law. Accordingly, the petition is allowed and the FIR No.30 dated 18.11.2008 registered at Police Station Vigilance Bureau, Ludhiana under Sections 420, 120-B IPC and Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and all subsequent proceedings arising therefrom, are hereby, quashed. (NIRMALJIT KAUR) 11.12.2009 JUDGE gurpreet