IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 17046 of 2008 Date of Decision: 2.2.2010. Nachhatar Singh --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. R.K.S. Brar, Advocate for the petitioner. Mr. P.C. Goyal, Addl. A.G., Punjab. Mr. Nakul Sharma, Advocate for respondent no.5. *** PERMOD KOHLI.J (ORAL) The petitioner was elected as a panch from the Gram Panchayat of village Mangewal, block Moga, district Moga in the year 2008. He has been placed under suspension vide the impugned order dated 24.7.2008 (Annexure P-3) passed by the Director, Rural Development, Punjab on the basis of registeration of three FIRs against him. An appeal preferred by the petitioner against the order of suspension also stands dismissed vide order dated 4.8.2008 (Annexure P-5). The petitioner has challenged both the above said orders (Annexures P-3 & P-5) in the present petition. Details of FIRs registered against the petitioner are as under:- FIRs bearing No. 79 of 1997 under sections 302, 307, 148, 149 IPC, 25/27/54/59 of Arms Act, No. 60 under Section 302, 307, 148, 149 IPC, 25/27/54/59 and No. 95 dated 8.6.2006 under sections 323, 325, 148, 149 IPC. The aforesaid order has been passed on the basis of a complaint filed by Sukhdeep Singh, respondent no.5 in the present petition. The CWP. No. 17046 of 2008 -2- challenge is made on variety of grounds. The relevant grounds are (1) no show cause notice as required under section 20 of the Panchayati Raj Act has been issued before passing the impugned order. (2). Out of the three FIRs the petitioner has been acquitted in FIR No. 60 and was never challaned in FIR no. 95. (3) FIR No. 79 was registered in the year 1997. He was granted bail by the Sessions Judge, Faridkot on 10.9.1997. During the pendency of the challan the petitioner was elected as panch and Sarpanch in the year 1998. He was suspended by the then Director on account of pendency of aforesaid FIR but later reinstated under the orders of the Govt. It is further stated that the petitioner completed his term as Sarpanch up to 2003. He was again elected as panch in 2003 and on completion of his term re-elected in the year 2008. It is, accordingly, contended that FIR No. 79 has no relevance as the petitioner has not been convicted by any court. In the impugned order the Director has willfully omitted to mention the date of this FIR with a view to make a ground for suspension which does not exist at all, the FIR being more than 10 years old. Apart from the above, it has been contended on behalf of the petitioner that the son of respondent no.5 Jasbir singh is also a co-accused along with him in the aforesaid FIR and also elected Sarpanch but no order has been passed for suspension of Jasbir Singh. It is alleged that as a matter of fact the impugned order has been passed in connivance with respondent no.5 who wants his son to be elected as Sarpanch. It is also brought on record that another panch Balkar Singh is also involved in a criminal case and a show cause notice has been issued to him but in case of petitioner he has been discriminated against and the suspension order has been passed CWP. No. 17046 of 2008 -3- without issuing any show cause notice. It is evident from the impugned order that no show cause notice has been issued rather the Director has stated that no show cause notice is required in view of the registeration of FIRs against the petitioner and with a view to cleanse the public polity. The relevant observations in the impugned order are as under:- “ Generally before suspending any Panch or Sarpanch under section 20 of the Panchayati Raj Act, a show cause notice may be issued and after hearing the said panch or sarpanch he may be suspended. However, in the present case I do not feel inclined to issue notice so that people having dubious criminal background do not find an easy way into the heart of a Panchayat otherwise panchayats can turn into instruments of oppression instead of being sacred centers of development and guidance. Generally a person having this kind of objectionable background would not only browbeat others but also tempt rural folk of comparatively simple minds and young age tow a similar line of out lawful existence It is pertinent to note that the observations made by the Director do not find any support from the material on record. Section 20 (3) of the Panchayat Raj Act provides for suspension and reads as under:- “20. Suspension and removal of Panch and Sarpanch (1) The Director may, after such enquiry as he may deem fit, remove any Sarpanch or Panch: - (a) on any of the grounds mentioned In section 208. (b) who refuses to act or becomes incapable of acting; (c) who, being a Sarpanch, without reasonable cause, fails to hold meetings of the Gram Panchayat as required under sub-section (1) CWP. No. 17046 of 2008 -4- of section 16 for a period of two consecutive months; (d) who, without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat, (e) who during his present term of office or that immediately preceding it, has, in the opinion of the Director, been guilty of misconduct in the discharge of his duties; or (f) whose continuance in office Is undesirable In the Interests of the public : Provided that before the Director orders the removal of any Sarpanch or Panch under this sub-section, the reasons for the proposed removal shall be communicated to him and he shall be given an opportunity of tendering an explanation In writing. 20(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.” Admittedly, no show cause notice has been issued. This itself is sufficient to render the impugned order illegal and invalid. Even the appellate authority has passed a totally non-speaking and cryptic order without recording any reason. The order passed by the appellate authority is also liable to be set aside. The similar issued has been considered by a Full Bench of this court in case of Kashmiri Lal v. D.C., Sonepat reported as 1980 PLJ 222. While interpreting similar provisions of the Punjab Gram Panchayat Act i.e. Section 102, which reads as under:- “ 102. (1) The Director may suspend any Parch 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 CWP. No. 17046 of 2008 -5- proceeding taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character.” It has been held that an opportunity is to be provided before passing the order of suspension. The following observations are relevant:- “ 7. We, therefore, approve the view taken by the Division Bench in Suresh Chand and others' case (supra) and hold that before an order of suspension can be passed against a Panch or Sarpanch under the amended section 102 (1) of the Act an opportunity of hearing or notice has to be afforded to the said Panch or Sarpanch. We, therefore, allow these two Writ Petition Nos. 94 and 422 of 1979.” In the present case, admittedly, out of the three FIRs noticed in the impugned order only FIR No. 79 is surviving. The criminal proceedings are pending since 1997. During this period the petitioner has been elected three times as panch and remained sarpanch for one term. His suspension as sarpanch was also set aside by the Govt. and he was reinstated to complete the term. His three times election as panch itself is sufficient to dispell the fears and apprehensions indicated in the impugned order. In view of the above circumstances, the impugned orders Annexures P-3 and P-5 are hereby quashed and the petitioner is directed to be reinstated. (PERMOD KOHLI) JUDGE 2.2.2010. lucky