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2018 Supreme(UK) 312
IN THE HIGH COURT OF UTTARAKHAND
SUDHANSHU DHULIA, J.
SMT. SAVITA CHAUDHARY - Appellant
Versus
STATE OF UTTARAKHAND - Respondent
Writ Petition No. 3169 of 2017 (M/S)
Decided on : 12-03-2018
Advocate Appeared:
For the Appellant :Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Vivek Pathak, Advocate
For the Respondent:Mr. M.C. Pandey, Additional Advocate General, assisted by Mr. Paresh Tripathi, Chief Standing Counsel, Mr. Parikshit Saini, Advocate, Mr. Shobhit Saharia, Advocate.
The main legal point established in the judgment is that the quasi-judicial powers under Section 138 of the Uttarakhand Panchayati Raj Act, 2016, cannot be delegated, and the State Government must provide the opportunity for representation before taking adverse action.
Headnote:
PANCHAYATI RAJ ACT - Suspension of Zila Panchayat Chairman - Section 138
Fact of the Case:
The petitioner, an elected Chairman of Zila Panchayat, was suspended pending final enquiry due to serious charges of financial irregularities. The petitioner challenged the suspension order, arguing that the State Government did not provide her with an opportunity to make her representation as required by Section 138 of the Uttarakhand Panchayati Raj Act, 2016.
Finding of the Court:
The court found that the power to suspend the Chairman under Section 138 is quasi-judicial in nature and cannot be delegated. It held that the District Magistrate's actions in seeking explanation from the petitioner and issuing the suspension order were in violation of principles of natural justice and fair play. The court set aside the suspension order and directed the State Government to seek a fresh explanation from the petitioner and make a decision expeditiously.
Issues: The main issue was whether the suspension of the Zila Panchayat Chairman complied with the requirements of Section 138 of the Uttarakhand Panchayati Raj Act, 2016, specifically regarding the opportunity for the Chairman to make her representation before suspension.
Ratio Decidendi: The court's decision was based on the interpretation of Section 138 of the Uttarakhand Panchayati Raj Act, 2016, which provides for the grounds and procedures for the removal or suspension of Panchayat members. The court emphasized that the quasi-judicial powers under Section 138 cannot be delegated and that the State Government must provide the opportunity for representation before taking adverse action.
Final Decision: The writ petition was allowed, and the suspension order was set aside. The State Government was directed to seek a fresh explanation from the petitioner and make a decision expeditiously, while prohibiting the petitioner from exercising any financial power until the decision is made.
SUDHANSHU DHULIA, J.
1. Petitioner is an elected Chairman of Zila Panchayat, Haridwar. She was elected as Chairman in May 2016. On complaint against the petitioner, a preliminary enquiry was done by the District Magistrate, Haridwar. Preliminary enquiry against the petitioner reveals that there are serious charges of financial irregularities against the petitioner. On the basis of said enquiry, a notice was given to the petitioner by the District Magistrate, Haridwar asking for her reply as to why she should not be suspended.
2. Admittedly, petitioner did not reply to the show cause notices dated 25.10.2017 and 12.11.2017. Vide letter dated 14.11.2017, petitioner sought time to file the reply to the show cause notice, but admittedly the reply was not given by the petitioner and ultimately the impugned order was passed on 4.12.2017, by which the petitioner was suspended from the post of Chairman of the Zila Panchayat pending final enquiry. Petitioner has challenged the said order dated 4.12.2017 (Annexure No. 10 to the writ petition) before this Court.
3. The main contention of the petitioner before this Court is purely legal which is as follows.
4. Under Section 138 of the Uttarakhand Panchayati Raj Act, 2016, powers have been given to the State Government to remove a member or office bearer of the three tier Panchayats. Section 138 reads as under:
"(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, Kshetra 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, contravention or causing of loss or damage renders due to conduct of work as unauthorised in place by woman representative, her husband or family members or relatives, such woman shall be ineligible as member, Pradhan, UP Pradhan, Pramukh, UP Pramukh, Chairman, Vice Chairman, in such case they may be suspended upto the departmental final enquiry and their work and duties may be handed 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 sub-section (c), cease to hold the office of respective member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice Chairman and a vacancy shall be deemed to have been created in that office.
(3) A person who has been removed from membership of the Panchayat under clause (a) or clause (c) of sub-section (1) shall be disqualified for being chosen a member of the Panchayat and being elected a member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman, Up Chairman of a Panchayat for a period of five years from the date of his removal:
Provided that the State Government may, at any time by order, remove the disqualification.
(4) Suspension- (a) If after the preliminary enquiry, the Pradhan, Up Pradhan, Pramukh, Up Pramuk
