Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(HP) 79

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAJIV SHARMA, J.
B.S. Thakur son of late Sh. Garja Ram Thakur - Petitioner
Versus
State of Himachal Pradesh through Principal Secretary (Panchayati Raj) to the Government of Himachal Pradesh, Shimla-2.
Divisional Commissioner, Mandi Division at Mandi, District Mandi, Himachal Pradesh.
Deputy Commissioner, Bilaspur, Himachal Pradesh.
Block Development Officer, Sadar, District Bilaspur, Himachal Pradesh.
Puran Chand Bhatia son of Sh. Ganga Ram, resident of Asa Majari, Post Office Jukhala, Tehsil Sadar, District Bilaspur, Himachal Pradesh, presently Pradhan, Gram Panchayat, Jukhala, District Bilaspur, Himachal Pradesh - Respondents.
CWP No.6538 of 2011-G
Decided on: 29.3.2012

Advocates Appeared:
For the petitioner:Mr. T.S. Chauhan, Advocate.
For the Respondents:Mr. Rajinder Dogra, Addl. A.G. with Mr. Vikas Rathore, Deputy A.G for respondents No. 1 to 4.
Mr. Rajiv Jiwan, Advocate for respondent No.5.

The main legal point established in the judgment is the requirement for public officers to act fairly and reasonably, strictly adhering to statutory provisions, and the consequences of failing to do so.

Headnote:
PANCHAYATI RAJ ACT - Misappropriation of Panchayat Funds - Section 133, Section 145, Section 146, Rule 35, Rule 3, Rule 5, Rule 6, Rule 7, Rule 10, Rule 17 - The judgment discusses the Himachal Pradesh Panchayati Raj Act, 1994, and its related rules, focusing on the suspension and removal of office bearers of Panchayats, duties of Panchayat Secretary, and financial rules regarding Panchayat funds. The court emphasizes the violations of financial rules by the Pradhan and Secretary of the Gram Panchayat, leading to the quashing of the order and directions for further inquiry.
Fact of the Case:

A complaint was filed against respondent No.5, the Pradhan Gram Panchayat, for misappropriation of Panchayat funds. Despite multiple inquiries finding the charges proved, the Divisional Commissioner lightly warned respondent No.5, leading to his re-election as Pradhan. The petitioner sought quashing of the order and further inquiry against the Secretary and office bearers involved in passing illegal resolutions.
Finding of the Court:

The court found that the Divisional Commissioner's decision to lightly warn respondent No.5 was not in accordance with the law, and the statutory authorities failed to act within the legal framework. As a result, the order dated 29.10.2010 was quashed, and respondent No.5 was directed to cease holding the office of Pradhan. Further, an inquiry against the Secretary and office bearers was ordered.
Issues: The issues revolved around the violations of financial rules by the Pradhan and Secretary of the Gram Panchayat, the Divisional Commissioner's decision to lightly warn respondent No.5 despite proved charges, and the failure of statutory authorities to act within the legal framework.
Ratio Decidendi: The court emphasized the need for strict adherence to the statutory provisions and the duty of public officers to act fairly and reasonably. It highlighted the violations of financial rules and the failure of the Divisional Commissioner to consider the proved charges against respondent No.5, leading to the decision to quash the order and direct further inquiry.
Final Decision: The writ petition was allowed, the order dated 29.10.2010 was quashed, and respondent No.5 was directed to cease holding the office of Pradhan. An inquiry against the Secretary and office bearers involved in passing illegal resolutions was also ordered.

JUDGMENT

Rajiv Sharma, Judge.

A complaint was filed against respondent No.5, who was holding the office of Pradhan Gram Panchayat, Jukhala by the petitioner and co-villagers on 23.3.2008 to the Deputy Commissioner, Bilaspur. A show-cause notice was issued to respondent No.5 by the Deputy Commissioner on 9.6.2008, to which the reply was filed by him on 23.6.2008. Respondent No. 5 was put under suspension on 24.7.2008. Inquiry was held by the Sub Divisional Officer (Civil), Sadar, District Bilsapur. Both the charges levelled against respondent No.5, according to the Inquiry Officer, were duly proved. The Director, Panchayati Raj upheld the order of suspension on 28.10.2008. Respondent No. 5 filed a revision before the Secretary (Panchayat). He remanded the matter to the Deputy Commissioner on 29.1.2009. Thereafter, a show cause notice was issued to respondent No.5 on 28.2.2009, to which he filed reply on 9.4.2009. Respondent No.5 was removed by the Deputy Commissioner on 30.4.2009. Respondent No.5 preferred an appeal before the Divisional Commissioner. He remanded the matter back to the Deputy Commissioner on 15.7.2009. The Deputy Commissioner again found him guilty and re-affirmed order dated 30.4.2009 on 19.8.2009. Respondent No.5 preferred an appeal before the Divisional Commissioner. He remanded the matter back on 16.11.2009. The matter was re-inquired by the Sub Divisional Officer (Civil), Sadar, District Bilaspur. He again gave findings that the charges levelled against respondent No.5 were proved. Thereafter, the Deputy Commissioner re-affirmed the earlier orders dated 30.4.2009 on 28.4.2010. Thereafter, respondent No.5, as per the pleadings, approached this Court by filing CWP No. 3810/2010. It was disposed of on 4.10.2010. Thereafter, the Divisional Commissioner again passed order on 29.10.2010. He has directed respondent No.5 to be more vigilant in future. In other words, the proceedings against respondent No.5 were dropped. It is in these circumstances that the petitioner has filed the present writ petition seeking quashing of order dated 29.10.2010 passed by the Divisional Commissioner.

2. It will be apt at this stage to take note that respondent No.5 has been re-elected as Pradhan, Gram Panchayat, Jukhala on 1.1.2011.

3. Mr. T.S. Chauhan has strenuously argued that order dated 29.10.2010 is against law. He has also argued that the charges levelled against respondent No.5 have been duly proved in two inquiry reports dated 29.1.2009 and 27.2.2010. He then argued that respondent No.5 and the Secretary, Gram Panchayat are remiss in discharge of their statutory duties and as far as respondent No.5 is concerned, he has incurred disqualification under section 146 of the Panchayati Raj Act and could not participate in the selection process for the post of Pradhan, Gram Panchayat, Jukhala. He further argued that the Deputy Commissioner has affirmed his order repeatedly, but the higher authorities without due application of mind and by misdirecting themselves on the question of law and facts have saved respondent No.5.

4. Mr. Rajinder Dogra, learned Additional Advocate General has argued that the Divisional Commissioner has only warned respondent No.5.

5. Mr. Rajiv Jiwan, learned counsel appearing on behalf of respondent No.5 has vehemently argued that order dated 29.10.2010 is absolutely in accordance with law. According to him, in 63 Gram Panchayats, the same practice has been followed and respondent No.5 cannot be singled out for discrimination.

6. I have heard the learned counsel for the parties and have perused the pleadings carefully.

7. It will be apt at this stage to take bird’s eye view of the Himachal Pradesh Panchayati Raj Act, 1994, Himachal Pradesh Panchayati Raj (General) Rules, 1997 and the Himachal Pradesh Panchayati Raj (Finance, Budget, Accounts, Audit, Works, Taxation and Allowances) Rules, 2002. Section 133 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as ‘Act’ for short) provide

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