Risal Singh vs The Director Panchayats, Haryana and Others

S.P. Goyal, J.—This petition under Article 226 of the Constitution of India has been filed for quashing order Annexure R-2/1, dated June 5, 1980, of the Director, Panchayats, Haryana, respondent No. 1, reinstating respondent No. 2 as the Panch of the Gram Panchayat of village Bhainswal Kalan.

On complaint by the petitioner Risal Singh, Sarpanch of the Gram Panchayat, an enquiry was held against Tara Chand, respondent No. 2 by Additional General Assistant, Sonepat, into the various charges.

After enquiry, respondent No. 2 was exonerated of all the charges except charge No. 1 which was to the effect that he failed to attend the meetings of the Panchayat held on March 23, 31, April, 23, 30 and May 9, 1979. It may be mentioned here that a Panch who without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat or the Adalti Panchayat, as the case may be, is liable to be removed by Government under sub-section (2) of section 102 of the Punjab Gram Panchayat Act, as applicable in the State of Haryana. Agreeing with the report of the Additional General Assistant, the Director of Panchayats who is the competent authority to take action under the said provisions, issued notice dated May 29, 1980, Annexure P-6, to respondent No. 2 to show cause as to why he be not removed from the office of the Panch u/s 102(2)(c) of the said Act. After the receipt of the explanation the following order was passed by the Director on June 5, 1980:-

Shri Tara Chand, Panch Gram Panchayat Bhainswal Kala Baola was suspended vide this office order No. LOAO 3-80/1331-18 dated 25.3.80 and Additional General Assistant, Sonepat. was appointed as regular Enquiry Officer. According to the report of Enquiry Officer Shri Tara Chand has not been found guilty and as a result thereof he is hereby reinstead to the post of panch and regarding non-attending of meetings of Panchayat, he is hereby given stern warning.

The learned counsel for the petitioner has challenged the impugned order on the grounds that it is based on misreading of the report of the Enquiry Officer and that once the Panch is found guilty of having not attended the meetings of the Panchayat for two months, the Director has no option but to remove him from the said office. The defence set up by the Director is that the case was not covered by section 102(2)(c) of the Act as it was not proved that the Panch had absented himself for two consecutive months from the meetings without any reasonable cause. However at the time of the arguments, the learned Additional Advocate General further contended that it is not obligatory that the Director must remove the Panch and that he, in his discretion, can even award a lesser punishment. It was also argued that Annexure R-2/1 is only a communication of the order and in the order which is available on the file, the Director recorded the finding that the absence was not mala fide and so he did not choose to remove the Panch.

After hearing the learned counsel for the parties and going through the record I am of the view that this petition must succeed. In the order, a copy of which was forwarded to the Gram Panchayat, it is written that according to the report of the Enquiry Officer, Shri Tara Chand has not been found guilty and as a result thereof, he is reinstated to the post of Panch Regarding the non-attending of the meetings of the Panchayat, he was given a sternwarning. This order, to say the least, shows that the Director never applied his mind to the findings of the Enquiry Officer and passed the order which is contradictory in its own terms. In the first portion it is said than Tara Chand has not been found guilty but in the later portion it is said that for non-attending the meetings, he is given a stern warning. It is only for non-attending of the meetings that the charge against Tara Chand was held for non-attending the meetings. The findings of the Enquiry Officer, therefore, was never disagreed to by the Director and it passes my comprehension as to how he absolved Tara Chand of the charge. As regards the order which has no been produced and is alleged to be on the file, I am very much doubtful if it was there initially because there is no mention in the written statement about the said order and on the contrary in the return filed by the Director a reference has been made to Annexure RIT as the concerned order. It, therefore, appears that this order had come into being sometime thereafter. However, even it may be accepted that this order was there on the file it does not improve the matter in any way. In this order also, the Director never differed with the finding of the Enquiry Officer nor recorded any contrary finding. All that is said is that there does not appear any mala fide intention on the part of the Panch in not attending the meetings is wholly irrelevant nor it was even the explanation submitted by the Parch. The defence set up by him was that he attended the meetings and the Sarpanch with a mala fide intention did not record his presence nor allowed him to sign the register. So the absence of mala fide intention is an innovation of the Director which as observed above has absolutely no bearing on the question as to whether the Panch has to to be removed or not. Once a finding is recorded that a ranch has not attended the meetings for two consecutive months without any sufficient cause, the Director would have no option but to remove him from his office. That the provisions of section 102(2) are mandatory was settled as far back as in the year 1967 by R.S. Narula, J. (as he then was) in Gram Panchayat village Majesar v. The State of Haryana and others (1967) 69 P.L.R. 397. Although the learned counsel for the respondent No. 2 argued that the view of learned Judge was in the nature of obiter dicta but he was unable to advance any substantial argument which could persuade me to take a different view.

The learned Additional Advocate General Haryana, as noticed above also raised the argument that the punishment of removal is the highest punishment provided in the statute and that even after the charge is held to be proved, the Director is not bound to remove the Panch and it is open to him to award lesser punishment, as has been done in the present case. The argument, in my view, need be mentioned only to be rejected. The only order which could be passel under the said section is removal and the question of any lessor punishment does not arise at all on the wording of the section.

For the reasons recorded above, this petition is allowed and the impugned order quashed with costs and the case remanded to the Director Panchayat for passing a fresh order in accordance with law.