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2018 Supreme(UK) 258
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Amarpal – Petitioner
Versus
State of Uttarakhand & Others – Respondents
Writ Petition (M/S) No. 2324 of 2017
Decided On : 20-06-2018
For the Petitioner:Mr. B.N. Molakhi, Advocate
For the Respondent:Mr. Yogesh Pandey, Additional C.S.C., Mr. M.S. Rawat, Advocate
The judgment emphasizes the importance of providing an opportunity for representation before the suspension or removal of an elected official, as per Section 138 of the Uttarakhand Panchayati Raj Act, 2016.
Headnote:
Scheduled Castes - Election Dispute - Uttarakhand Panchayati Raj Act, 2016, Section 138
Fact of the Case:
The petitioner challenged the election of the Gram Pradhan, alleging that the seat was reserved for Scheduled Castes, but the elected candidate belonged to Other Backward Castes. The Scrutiny Committee cancelled the caste certificate of the elected candidate, leading to her removal from the post. The petitioner challenged subsequent orders, including the cancellation of the caste certificate.
Finding of the Court:
The court allowed the writ petition, setting aside the impugned orders. However, it noted misconduct by the elected candidate and the procurement of a false Scheduled Caste Certificate, allowing the State Government to take appropriate action under Section 138 (1) (c) of the Uttarakhand Panchayati Raj Act, 2016.
Issues: Dispute over reserved seat for Gram Pradhan, validity of caste certificate, and the authority to remove an elected Gram Pradhan.
Ratio Decidendi: The court found that while the Act did not specifically address the removal of a Gram Pradhan whose caste certificate has been cancelled, it emphasized the requirement for the individual to be given an opportunity to make representation before suspension or removal.
Final Decision: The writ petition was allowed, and the impugned orders were set aside. The State Government was permitted to take action against the elected candidate for misconduct and false caste certificate procurement.
Sudhanshu Dhulia, J.
Petitioner before this Court is a member of Gram Sabha Barwala, Tehsil Bajpur, District Udham Singh Nagar. He has challenged the election of the private respondent no. 4 as the Gram Pradhan of Gram Sabha Barwala. The challenge of the petitioner rests on his contention that the seat of Gram Pradhan, Barwala was reserved for the members of Scheduled Castes community, whereas the private respondent no. 4 Smt. Santosh does not belong to the Scheduled Castes community and, in fact she belongs to the Other Backward Castes (OBC) community. In this connection, an enquiry was conducted by the Scrutiny Committee which came to the conclusion that the private respondent no. 4 does not belong to Scheduled Castes community and cancelled the caste certificate issued to the private respondent no. 4. Pursuant to this, the District Magistrate passed an order on 12.8.2016 and thereby removed the private respondent no. 4 from the post of Gram Pradhan.
2. The aforementioned orders of the Scrutiny Committee dated 9.6.2016 and the order of the District Magistrate dated 12.8.2016 were challenged by the private respondent no. 4 before this Court by filing the Writ Petition (M/S) No. 3374/2016. Meanwhile, Secretary, Panchayati Raj, Government of Uttarakhand vide her order dated 11.7.2017 (Annexure No. 11 to the writ petition) cancelled the aforesaid order of the District Magistrate, pursuant to which the private respondent no. 4 moved an application for withdrawal of her writ petition (WPMS 3374/2016) whereupon the said writ petition was dismissed as withdrawn on 13.7.2017.
3. Petitioner has challenged the order dated 11.7.2017 passed by the Secretary, Panchayati Raj, Government of Uttarakhand and other two consequential orders.
4. Removal of a Gram Pradhan is provided under Section 138 of the Uttarakhand Panchayati Raj Act, 2016 which reads as under:
“138. Separation from their posts to the officers of the three tiers panchayat-
(1) The State Government may remove a member of the Panchayats on any of the following grounds-
(a) that he has acted as a member of the Gram Panchayat, Kshettra Panchayat and Zila Panchayat or member of any committee by voting or taking part in the discussion of any matter in which he has directly or indirectly, a personal interest or in which he is professionally interested on behalf of a client, principal or other person;
(b) that he has become physically or mentally incapacitated for performing his duties as such member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Up Chairman;
(c) that he has been guilty, whether in his present or an earlier term of office, of misconduct in the discharge of his duty as such member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman or has contravened any of the provisions of this Act or caused loss or damage to the fund or property of the State Government or Panchayats and such misconduct, contraventions or causing of loss or damage renders due to conduct of work as unauthorized in place by women representative, her husband or family members or relatives, such women shall be ineligible as member, Pradhan, Up Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman in such case they may be suspended up to the departmental final enquiry and their work and duties may be hand over to a committee of three elected members of the concerning Panchayat. In addition to the disciplinary action also may be taken against the departmental employees/officer, if found guilty in the enquiry.
(2) Notwithstanding anything in any other enactment, where a member specified in any member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice chairman in clause (c) of sub-section (1) of section 29 is removed from membership under this section he shall with effect from the date of publication of notification of removal under section (c), cease to hold the office of respectively member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice chairman and a vacancy
