Dismissed

Guddu and Ors. v. State of Punjab and Ors.

Punjab & Haryana HC8 Feb 2011CWP/15751/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging an appellate order remanding a disciplinary inquiry. The Court held that a private complainant is an 'aggrieved person' entitled to file an appeal under the Punjab Panchayati Raj Act, 1994, and upheld the appellate court's decision to remand an order reinstating the petitioners for lack of sufficient evidence.

What did the court decide?

The impugned order (Annexure P4) maintaining the appeal of the complainant was up-held and the writ petition for its quashment was dismissed.

Guddu and Ors. Vs State of Punjab… — Pension and Retirement Benefits | Punjab & Haryana HC (2011)

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Civil Writ Petition No.15751 of 2010 1

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-8.2.2011

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Guddu Sarpanch Gram Panchayat Saunti, Block Amloh and others ....Petitioners

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Versus

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State of Punjab and others

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....Respondents

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CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

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Present:Mr.Raj Kumar Garg, Advocate for the petitioners. Mr.R.S.Rawat, Assistant Advocate General, Punjab for respondent Nos.1 to 4.

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Mr.G.S.Punia, Advocate for respondent No.5.

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Mehinder Singh Sullar, J. (Oral)

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The matrix of the facts, which needs a necessary mention for the limited purpose of deciding the sole controversy, involved in the instant writ petition and emanating from the record, is that in the wake of general Gram Panchayat elections, nine persons, including the petitioners, were elected as Panches of Gram Panchayat of village Saunti, Block Amloh, District Fatehgarh Sahib, in view of the provisions of The Punjab Panchayati Raj Act, 1994 (hereinafter to be referred as “the Act”). Subsequently, petitioner No.1 was duly elected as a Sarpanch of Gram Panchayat of the village. Dashwinder Singh son of Gurbachan Singh (respondent No.5) and Gurcharan Singh and others, were stated to have filed two complaints against the petitioners, which were enquired into by the Block Development and Panchayat Officer (for short “BDPO”) (respondent No.4). He held the petitioners guilty and sent his report dated 11.1.2010 (Annexure P1) to Director Rural Development and Panchayat Department (respondent No.2). The petitioners were placed under suspension, by virtue of order dated 18.2.2010 of respondent No.2 and regular inquiry was entrusted to District Development and Panchayat Officer (for brevity “DDPO”) (respondent No.3)

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Thereafter, DDPO conducted the regular enquiry and sent his report

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Civil Writ Petition No.15751 of 2010 2

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dated 11.5.2010 (Annexure P2) to respondent No.2, but he did not agree with the report and ordered the reinstatement of the petitioners, by means of order dated 25.6.2010 (Annexure P3).

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Dis-satisfied with the order (Annexure P3), one of the complainants Dashwinder Singh (respondent No.5) filed the appeal, which was accepted by respondent No.1, the Principal Secretary to Government of Punjab (Appellate Authority) and the case was remanded back to the Director, Rural Development and Panchayats (respondent No.2), by way of impugned order dated 2.8.2010 (Annexure P4).

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The petitioners did not feel satisfied and instituted the instant writ petition, challenging the impugned order (Annexure P4), invoking the provisions of Articles 226 and 227 of the Constitution of India in this context.

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The case set up by the petitioners, in brief in so far as relevant, was that respondent No.5 was not competent to file the appeal as only the Panch or Sarpanch, who is suspended or removed, can file the appeal and no right has been given to the complainant to file the appeal, in case Panch or Sarpanch is reinstated. Thus, the appeal was stated to be not maintainable before the appellate authority (respondent No.1) under section 20(6) of the Act.

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Levelling a variety of allegations and narrating the sequence of events, in all, according to the petitioners that the impugned order (Annexure P4) is illegal and against the statutory provisions of the Act. On the basis of aforesaid allegations, they sought the quashment of the impugned order in the manner depicted hereinabove.

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The respondents contested the claim of the petitioners. The official respondent Nos.1 to 4 filed their joint written statement, while respondent No.5 filed his separate written statement, inter-alia pleading certain preliminary objections of, maintainability of the petition, locus standi, cause of action of the petitioners and objection of concealment of facts. The respondents claimed that the

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Civil Writ Petition No.15751 of 2010 3

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complaint was made to BDPO by Dashwinder Singh (respondent No.5), Gurcharan Singh, Narinder Singh and Gurdeep Singh etc. and in the wake of demarcation, the petitioners were found to be in illegal possession of the land in dispute. The appellate authority was stated to have rightly passed the impugned order (Annexure P4). It will not be out of place to mention here that the respondents have stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how I am seized of the matter.

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Assailing the impugned order (Annexure P4), the learned counsel for the petitioners contended with some amount of vehemence that since complainant Dashwinder Singh (respondent No.5) was not competent to file the appeal, so, the impugned order is illegal and without jurisdiction. In support of his contention, he has placed reliance on the Division Bench judgment of this Court in case Darshan Singh v. State of Punjab 1998 (1) P.L.R. 152 .

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On the contrary, hailing the impugned order and exercising the benefit of his usual humbleness, the learned counsel for the private respondent urged that as complainant-respondent No.5, was an aggrieved person, therefore, the appeal filed by him was very much maintainable, in view of law laid down by the later Full Bench judgments of this Court in case Darshan Singh v. State of Haryana and others 2006 (1) RCR (Civil) 170 and Ram Phal v. Financial Commissioner and Secretary to Govt. Har. 1996 (1) PLR 233. The argument further proceeds that even the appellate authority has only remanded the case for fresh inquiry and as nothing adverse was decided against them, therefore, the petitioners cannot be termed to be the aggrieved persons by the impugned order and no interference is warranted in this connection.

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Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant writ petition. 11. As is evident from the record, that complainant Dashwinder Singh

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Civil Writ Petition No.15751 of 2010 4

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(respondent No.5), Gurcharan Singh, Narinder Singh and Gurdeep Singh etc. filed the complaints against the petitioners. Initially, the matter was enquired into and petitioners were found guilty by the BDPO, who sent his report (Annexure P1) to Director Rural Development and Panchayat Department (respondent No.2). A show cause notice was issued to the petitioners for personal hearing, but as they did not produce any explanation, therefore, they were placed under suspension, vide order 18.2.2010 of respondent No.2 and regular enquiry was entrusted to DDPO (respondent No.3).

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The DDPO (respondent No.3) conducted the regular enquiry and came to the conclusion that the charges against the petitioners stand proved and sent his report dated 11.5.2010 (Annexure P2) to respondent No.2. Respondent No.2 did not accept the report and reinstated the petitioners on their respective posts, by way of order dated 25.6.2010 Annexure P3), which, in substance, is as under:-

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“Keeping in view the enquires and the explanation tented by Sh.Gudu, Smt.Paramjit Kaur Panch and Gurdev Singh Panch Gram Panchayat Saunti Block Amloh Distt.Fatehgarh Sahib, I have come to the conclusion that these panches did not get any opportunity to produce their defence till now. Block Development and Panchayat Officer and Distt. Development and Panchayat Officer have sent enquiries against them in which their defence was not considered nor their defence was considered by the department at the time when they were placed under suspension because at that time, they did not produce their defence.

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The enquiry report which have been sent by Distt.Development and Panchayat Officer Fatehgarh Sahib to this office in that the allegation has been proved only on the basis of the statement of the complainant. These panches have produced the explanation with documents/evidence which is satisfactory. Therefore, keeping in view the explanation the allegation levelled against these persons are not proved and in such situation it will not be correct to keep these panches who are elected representative of the people to keep under suspension further. Therefore Sh.Gudu, Smt.Paramjit Kaur Panch and Gurdev Singh panch Gram Panchayat Saunti Block Amloh Distt.Fatehgarh Sahib, are ordered to reinstated in their post.”

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Civil Writ Petition No.15751 of 2010 5

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Aggrieved by this order, the complainant-respondent No.5 filed the appeal, which was accepted by the appellate authority (respondent No.1), by virtue of impugned order (Annexure P4), the operative part of which is as under:-

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“In the instant case, opportunities have been given to the respondents to put up their case before the Inquiry Officer, but they have failed to put up any worthwhile defence regarding the allegations leveled against them. The Inquiry Officer has no option but to decide against them. Now they have alleged that due opportunity has not been given to them. When the enquiry report, where charges have been proved against the respondents, came before the Director, Rural Development and Panchayats he was supposed to take action against the respondents. Show cause notice was issued to the respondents 2 to 4 because prima facie the findings of the enquiry report were accepted. If there were deficiencies in the enquiry report, those should have been rectified before show cause notice was issued. If he has given opportunity to lead the evidence to the respondents then the complainant were also to be given opportunity to rebut that evidence. Therefore, the order of the Director, Rural Development and Panchayats is set aside. Case is remanded to the Director, Rural Development and Panchayats to get the enquiry conducted from Divisional Deputy Director, Panchayat, Patiala against the respondents No.2 to 4. Divisional Deputy Director, Panchayat, Patiala will submit his enquiry report to the Director, Rural Development and Panchayats who will pass the order in view of the enquiry report.”

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Above being the position on record, now the core controversy, that arises for determination in this writ petition is, as to whether the appeal filed by complainant-respondent No.5 was maintainable before the appellate authority or not ?

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Ex facie, the cosmetic argument of the learned counsel for the petitioners that the appeal filed by respondent No.5 before the appellate authority was not maintainable, is neither tenable nor the observations of Division Bench of this Court in case Darshan Singh v. State of Punjab 1998 (1) P.L.R. 152 are at all applicable to the present controversy in view of later indicated judgments of Full

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Civil Writ Petition No.15751 of 2010 6

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Bench of this Court.

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Having regard to the rival contentions of the learned counsel for the parties, to me, the appeal filed by complainant-respondent No.5 was very much maintainable before the appellate authority in this context.

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What is not disputed here is that section 20 of the Act deals with the provisions of suspension and removal of Panch and Sarpanch. Sub-section (6) of this section postulates that “any person aggrieved by an order of removal or suspension passed under this section, may, within a period of thirty days from the date of communication of the order, prefer an appeal to the State Government.” The word “any aggrieved person by an order of removal or suspension” carries the considerable significance. This matter is not res integra but is well settled. A Full Bench of this Court in Ram Phal's case (supra ) answered similar question in affirmative as under:-

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“The complainant at whose instance action is taken against a Sarpanch or Panch is entitled to file an appeal before the appellate authority and subsection (5) of Section 102 of the Act is wide enough to include the appeal both by the Sarpanch and the complainant against the order passed under Section 102 of the Act. The aggrieved party would mean not only the Panch and the Sarpanch against whom action is taken but also the complainant.”

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Sequelly, an identical question was again decided by another Full Bench of this Court in case Darshan Singh v. State of Haryana and others 2006 (1) RCR (Civil) 170 . Having interpreted the similar provisions of the Haryana Panchayati Raj Act and the Punjab Panchayati Raj Act, it was ruled (paras 9 and 10) as under:-

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“9. After taking into account the submissions made at the Bar, the Full Bench had laid down the following ratio :-

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"The complainant at whose instance action is taken against a Sarpanch or Panch is entitled to file an appeal before the appellate authority and sub-section (5) of Section 102 of the Act is wide enough to include the appeals both by the Sarpanch and the complainant against the order passed under Section 102 of the Act.

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Civil Writ Petition No.15751 of 2010 7

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The aggrieved party would mean not only the Panch and the Sarpanch against whom action is taken but also the complainant."

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9.1 On a bare comparison of the sub-section (5) of Section 102 of the Punjab Gram Panchayat Act, 1953 as in Haryana which was interpreted by the Full Bench and the sub-section (5) of Section 51 of the Act (Haryana Panchayati Raj Act, 1994) it is clear that these provisions are in pari-materia. Therefore, the conclusion is inescapable that the ratio laid down while interpreting the Punjab Act will be good as it has been made applicable to the State of Haryana and was binding on the Division Bench in Bhagwan Singh's case (supra).

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9.2 In Bhagwan Singh's case (supra), we find illustrations concerning criminal cases were taken in consideration namely that an aggrieved party which lodges a report before the Police is like an informant and on acquittal of the accused person the Code of Criminal Procedure had not conferred any right of Appeal to the complainant.

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9.3 With respect we differ. The criminal laws under the Code of Criminal Procedure, 1973 can be set in motion by two modes :- (i) by lodging an information under Section 154 of the Code of Criminal Procedure in relation to committal of any cognizable offence and (ii) under Section 200 of the Code of Criminal Procedure, a person can make a complaint to the Magistrate for taking cognizance of an offence on his complaint. In the cases instituted by the police, if the accused persons are tried and acquitted then the State, who is the prosecutor has been vested with a right to Appeal. The Code of Criminal Procedure also gives a right to an informant or a victim to prefer a revision. In relation to acquittal after trial based on a complaint of a person, he has been conferred a right to prefer an a appeal after obtaining special leave to appeal by the High Court under Section 378(4) of the Code of Criminal Procedure. Thus, the illustration given by the Division Bench is not correct.

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10. The ratio laid down in Bhagwan Singh's case (supra) is hereby over-ruled and we hold that Appeal under sub-section (5) of Section 51 of the Act in question was maintainable at the instance of the complainant (respondent No. 5).”

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Meaning thereby, the law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the present controversy and is the complete answer to the problem in hand. Therefore, it is held that since complainantrespondent No.5 was an aggrieved person by the order (Annexure P3) passed by respondent No.2, so, he was competent and the appeal filed by him before the appellate authority was clearly maintainable. Thus, the contrary arguments of

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learned counsel for the petitioners, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances.

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There is another aspect of the matter, which can be viewed from a different angle. As reproduced hereinabove, DDPO, vide order (Annexure P3) has just exonerated the petitioners by completely ignoring the enquiry reports without any legal basis. The error committed by him was duly rectified and the appellate authority has rightly remanded the case for fresh inquiry into the matter, in order to decide the real controversy between the parties. In this manner, the appellate authority has thus recorded the valid reasons while accepting the appeal, vide impugned order (Annexure P4). Such order containing valid reasons cannot legally be interfered with, in exercise of extraordinary writ jurisdiction of this Court, unless and until, the same is perverse and without jurisdiction. As no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, therefore, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case.

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No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

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In the light of the aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such.

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( Mehinder Singh Sullar ) Judge

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8.2.2011 AS

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Whether to be referred to reporter? Yes/No

Guddu and Ors. v. State of Punjab and Ors.

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Guddu and Ors. v. State of Punjab and Ors.

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