G.S. Singhvi and Nirmal Singh JJ.
1. This petition is a typical example of male bias against the female Panches and Sarpanches in the State of Haryana which is evinced from hundreds of cases filed by them against the orders of suspension/removal passed by Deputy Commissioners of different Districts on trifle allegations. This is a sad tribute to the constitutional goal of equality enshrined in Articles 14 and 15 of the Constitution of India and the effort made by the Parliament and the State Legislatures to give adequate representation to the female population of rural India in the units of self-employ-ment as contemplated under Part IX-A of the Constitution of India.
2. For deciding the issue arising in this petition, we have taken the facts from the pleadings of the parties and the file produced by Shri Rajbir Sehrawat, Senior Deputy Advocate General.3. The petitioner was elected as Panch of Gram Panchayat, Nangal Khurd, District Sonepat in March, 2000. Inder Singh and Raghbir Singh sons of Chhotu, two residents of Village Nangal Khurd, could not digest the forward march of a lady to become an ac- tive participant in the grass-root level democracy. They made complaint dated 3.12.2001 to Deputy Commissioner, Sonepat (respondent No. 2) that the petitioner had made en- croachment on land bearing killa No. 29/3/1 belonging to the Gram Panchayat and con- structed a house over it and for this, action may be taken against her in accordance with law. They also named Tek Chand, another Panch, who is said to have made encroach- ment on Gram Panchayat land. Vide memo dated 10.2.2001, respondent No. 2 forwarded the complaint to Block Development and Panchayat Officer, Sonepat with the direction to make enquiry and submit report. The latter directed Tehsildar to get demarcation done through Patwari and Girdawari and then submit report to his office. Shri Ashok (Patwari) is said to have visited the site on 12.4.2002 and submitted report of even date to Tehsildar that the petitioner had unauthorisedly encroached on land measuring 18 feet x 18 feet and raised construction over it. Thereupon, Block Development and Panchayat Officer, Sonepat informed respondent No. 2 that the petitioner had encroached the land measuring 66 square yards. Respondent No. 2 issued notice dated 25.9.2002 to the peti- tioner to show cause to why action may not be taken against her under Section 51 of the Haryana Panchayati Raj Act, 1994 (for short, the 'the Act'). She filed reply dated 9.10.2002 and denied the allegation of having encroached on panchayat land. She pointed out that the disputed construction had been made prior to 31.3.2000 and that shewas living in the joint family. She further pointed out that vide unanimous resolution dated 16.1.2001, the Gram Panchayat, had requested the authorities to assess the value of the land. She also indicated that the matter was pending in the Civil Court in the suit titled - Sammedin v. Gram Panchayat and Stay order had been passed in their favour. However, without considering her reply in a correct perspective and by using the stock, phrase that the same was not satisfactory, respondent No. 2 passed two orders dated 24.12.2002. By one order, he directed holding of regular enquiry against the petitioner under Section 51(1)(b) of the Act on the charge that she had constructed the house by making unauthorised encroachment on land measuring 36 square yards. By another or-der (Anncxure P1), he placed the petitioner under suspension under Section 51(3) of the Act by observing that the allegation leveled against her was so serious that she could be removed from the post of Panch. The petitioner challenged the order of suspension by filing an appeal under Section 51(5) of the Act which was dismissed as time barred by the Financial Commissioner and Principal Secretary to Government Haryana, Developent and Panchayats Department (hereinafter described as the appellate authority) vide his order dated 19.9.2003 (Annexure P2).
4. The petitioner has challenged orders Annexures P-1 and P-2 on the ground of vio- lation of the provisions of Section 51 of the Act and the rules of natural justice.
5. The respondents have put forward the usual stock defence. They have averred that order Annexure P-l was passed by respondent No. 2.Keeping in view the findings re- corded in the preliminary enquiry report that the petitioner had encroached on panchayat land measuring 36 square yards and raised construction over it. The respondents have also justified the dismissal of appeal filed by the petitioner as barred by limitation by as- serting that an appeal filed under Section 51(5) of the Act cannot be entertained after expiry of 30 days period.
6. On 4.5.2004, arguments were heard and the order was partly dictated. During the course of dictation, we wanted to peruse the report of the preliminary enquiry, but Shri Vijay Dahiya, Assistant Advocate General, Haryana expressed his inability to produce the same by saying that no one has contacted him from the office of Deputy Commis- sioner, Sonepat. Therefore, the case was adjourned to 17.5.2004 on which date, it was adjourned to 21.5.2004. Thereafter, the case was listed before the Bench consisting of K.S.Garewal and Ajay Kumar Mittal, J.J. That Bench adjourned the case on 24.5.2004. On 25.5.2004, the case was taken up by the Bench consisting of G.S.Singhvi and K.S.Garewal, J.J., but was adjourned because it had been heard by this Bench. The case has now been listed before us in pursuance of order dated 27.5.2004 passed by the Chief Justice.
7. Today, Shari Rajbir Sehrawat, Learned Senior Deputy Advocate General, Haryana produced the original record, which includes preliminary enquiry report dated 20.8.2002 sent by Block Development and Panchayat Officer, Sonepat and order dated 24.12.2002 passed by respondent No. 2 under Section 51(3) of the Act for holding regular enquiry against the petitioner. He also filed typed copies of the following documents:
1. Copy of resolution No. 6 dated 16.2.2002.
2. Copy of demarcation report dated 12.4.2002.
3. Copy of demarcation report dated 3.7.2002.
4. Copy of preliminary enquiry report dated 20.8.2002.
5. Copy of letter No. SP1-1 dated 19.5.2004.
6. Copy of regular enquiry report dated 18.6.2003.
8. We have heard learned counsel for the parties. After going through the file pro- duced by Shri Rajbir Sehrawat, we enquired from his as to when the alleged encroach- ment was made by the petitioner. In reply Sh. Sehrawat, after taking instructions from Shri D.S.Chahai, Law Officer, Sonepat, who is present in the Court, made a statement that the alleged encroachment is 35 years old. Shri Sehrawat also very fairly pointed outthat as per letter No. Special-1 dated 20.1.2004, which is available at page No. 151 on the file brought by the Law Officer, Block Development and Panchayat Officer had re-ported that the encroachment is more than 30 years old and the disputed construction had been raised by the father-in-law of the petitioner before her marriage.
9. We shall now consider whether order Annexure P1 is vitiated due to violation of Section 51(1)(b) of the Act. That section reads as under :-
'Suspension and removal of a Sarpanch or Panck- (1) The Director or the Deputy Commissioner concerned may, suspend any Sarpanch or Panch, as the case may be,
(a) xxxxxxxx
(b) during the course of an enquiry for any of the reasons for which he can be removed, after giving him adequate opportunity to explain.'
10. The expression 'adequate opportunity to explain appearing in clause (b) of Sec- tion 51(1) of the Act has not been defined in the Act or the rules framed thereunder. However, on the basis of the jurisprudence which has developed in this country in the last five decades,, we can, without any hesitation of contradiction, say that the said ex- pression represents statutory embodiment of one of the fundamental postulats of natural justice i.e. audi alteram partem which signifies that an authority entrusted with power to take action against any person should give an action oriented notice to that person, con- sider his reply and pass order indicating application of mind. The Supreme Court and the High Courts have repeatedly held that the rule of audi alteram partem is a part of the concept of rule of law and is not an empty formality. In State of Orissa v. Dr. (Miss) Binapani Devi and Ors.,1 A.I.R. 1967 S.C. 1269, their Lordships or the Supreme Court recognised the applicability of this rule to purely administrative actions. The facts of that case were that the respondent who was serving as a doctor was retired on the basis of an assumed correct date of birth which was different from the date of birth re- corded in the service book. The State Government had got conducted an inquiry at the back of the respondent and acted on the adverse finding recorded in the inquiry report without giving any notice or opportunity of hearing to her. She challenged the order of retirement on the ground of violation of the rule of hearing. The High Court of Orissa accepted her plea and quashed the order of retirement. The Supreme Court approved the judgment of the High Court and observed :-
'An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair lay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an equity is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our Constitutional set up that every citizen is protected against exercise of arbitrary by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed, it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
'It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistentlywith the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.'
11. In A.K.Kraipak and Ors. v. Union of India and Ors.,2 A.I.R. 1970 S.C. 150, a Constitution Bench of the Supreme Court gave new dimension to the rules of natural justice by making the following observations :-
'The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only areas not covered by any law validly made. In other words they do not suplant the law of the land but supplement it, the concept of natural justice has undergone a great deal of change in recent years.
In the past only two rules were recognised but in course of time many more subsidiary rules came to be added to these rules. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice there is no reason why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect then a decision in a quasi-judicial equity.'
12. In Sayeedue Rehman v. State of Bihar and Ors.3 A.I.R. 1973 S.C. 239, the Su- preme Court considered the question whether the President of Board of Secondary Edu- cation could amend/modify an order made for payment of full salary to the appellant without hearing him. The appellant was a teacher in Arariya High Secondary School. He was dismissed from service by the Managing Committee of the school. On appeal, the President of the Board of Secondary Education set aside the order of dismissal and di- rected his reinstatement in service with full salary, dearness allowance and increments from the date of suspension till the date of reinstatement after adjusting the amount al- ready paid. The Managing Committee submitted an application before the President of the Board of Secondary Education to review the whole matter specially with regard to payment of salary for the period of suspension. The President reviewed the earlier order and declared that the appellant would be entitled only to subsistence allowance for the period of his suspension. Thereupon, the appellant filed an application under Article 226 and 227 of the Constitution of India in the High Court of Patna. The High Court held that even though, the second order passed by the President was legally unsustainable, no useful purpose would be served by directing compliance of the rules of natural justice because the original order passed by him for payment of salary etc. to the appellant was without jurisdiction. Their Lordships of the Supreme Court referred to the rules framed under the Bihar High Schools (Control and Regulation of Administration) Act, 1960 and held that before reviewing order passed earlier for payment of salary etc. to the appel- lant, the President was duty-bound to hear him. The proposition of law laid down in that decision is reproduced below :-
'This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws her attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decir'on than the practice of giving hearing to the affected parties. The omission of express requirement of fair hearing in the rules or other source of power claimed forreconsidering an order is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.'
13. In Smt. Maneka Gandhi v. Union of India4 A.I.R. 1978 S.C. 597, the Supreme Court observed:-
'Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alterant partem, which mandates that no one shall be condemned unheard, is part of the rules of the natural justice.
Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large area of administrative action. The inquiry must, always be, does fairness in action demand that an opportunity to be heard should be given to the person affected?
The law must now be taken to be well settled even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.'
14. In Olga Tellis v. Bombay Municipal Corporation5 A.I.R. 1986 S.C. 180, a Con- stitution Bench of the Supreme Court read the rules of natural justice as part of the larger concept of life liberty and observed:-
'The procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just and reasonable. Just as a mala fide act has no existence, in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must confirm to the norms of justice and fair play. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards; the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action, within .the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for how reasonable the law is, depends upon how fair is the procedure prescribed by it. If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down.'
15. The question whether the Director/Deputy Commissioner concerned is obliged to assign reasons indicating application of mind to the reply filed by a Sarpanch/Panch in response to the show cause notice was considered by a Division Bench of this Court,of which one of us ( G.S.Singhvi, J.J.) was a member in Om Parkash Sarpanch v. The Deputy Commissioner, Sirsa and Ors.,6 (2003-3)126 P.L.R. 453 and the following proposition was laid down:
'13. That apart, we are of the considered view that the order passed by respondent No. 1 is vitiated due to violation of the principles of natural justice embodied in Section 51(1)(b) of the Act. The duty casts upon the Director/Deputy Commissioner concerned to give adequate opportunity to Sarpanch to explain, in our opinion, not only requires giving of a notice and/or an opportunity of hearing but also enjoins upon him to objectively consider the reply, if any, filed by the Sarpanch. This necessarily implies that after considering the reply of the Sarpanch against whom the action is proposed to be taken, the concerned authority must record reasons indicating its application of mind to the contents of the reply. The Court will seek strict compliance of this requirement in the cases in which the competent authority decides to reject thepoints/submissions contained in the reply.'
16. The Division Bench then considered the issue whether the elected representatives of the local bodies could be suspended as a matter of course and observed :-
'14. We are further of the view that Section 51(1)(b) read with Section 51 (3) of the Act does not empower the Director/the Deputy Commissioner concerned to suspend the elected representatives of local bodies in an arbitrary fashion. In Raghuwar Dayal v. The State of Haryana and Ors., C.W.P. No. 5409 of 1999, decided on 28.5.1999, this court observed that the power of suspending the elected representative should not be exercised casually by the administrative authorities.Some of the observations made in that decision are extracted below:
'Before concluding, we wish to emphasis that the executive authorities who are entrusted with the power to suspend or remove the elected representatives of the local bodies like Municipalities and Gram Panchayats must bear in mind that those who win the confidence and trust of the people through the process of elections and occupy public positions are often made targets of litigation campaign by the opposite groups(s). In a majority of cases, the allegations of commission of irregularities are made. If the power of suspension and/or removal of the elected representative is exercised liberally in such cases, then the mandate of the people will be indirectly frustrated, a situation which will not be good for health of the democracy at the grass root level. It will be doing greater harm than good to the institution of local bodies. Therefore, unless the allegations of financial irregularities or gross misconduct are found proved, the authorities concerned must exercise restraint and as and even in those cases in which it becomes imperative to exercise the power of suspension or removal, cogent reasons must not only be recorded but must be communicated to the affected person. In our considered view, the elected representative cannot be treated worst than the Government employees in whose cases the requirement of passing a reasoned order has been consistently insisted by the Courts in the last 40 years.
17. By applying the ratio of the afore-mentioned judgments to the facts of this case, we hold that order Annexure P-l is liable to be quashed because respondent No. 2 did not, at all, apply mind to the contents of the detailed reply filed by the petitioner in which she had unequivocally denied the allegation of having encroached on panchayat land. Her assertion that she has not raised the disputed construction by encroaching the panchayat land is substantially supported by report dated 20.1.2004 sent by Block De- velopment and Panchayat Officer, Sonepat to respondent No. 2 in response to his letter No. 7282 dated 19.1.2004. The letter of respondent No. 2 is available on page 93 of the file produced by Shri Sehrawat. Report of Block Development and Panchayat Offi- cer,Sonepat is available on page 151. We are unable to appreciate as to how the peti- tioner can be held responsible for the so-called encroachment of panchayat land on which her father-in-law is said to have raised construction 30 years ago and that too, be- fore her marriage.
18. Before parting with this aspect of the matter, we consider it proper to mention that the respondents have neither suggested in their pleadings nor any evidence has been produced before the Court to prima facie show that the petitioner misused her office of Panch to encroach upon public land. Rather, the learned Senior Deputy Advocate Gen- eral candidly stated that no evidence is available on the file to show that the petitioner had made encroachment on Gram Panchayat land after her election as Panch in March, 2000.
19. In view of the above discussion, we hold that respondent No. 2 had exercised power under section 51(1)(b) of the Act in a most arbitrary and casual manner and thereby deprived the petitioner of the elective office of Panch.
20. There is another cause for castigating respondent No. 2. In terms of proviso to Section 51(2) of the Act, suspension of the petitioner could not have lasted beyond oneear and she ought to have been reinstated on 23.12.2002 because it is an undisputedposition that by that date, no order had been passed by respondent No. 2 under Section 51 (3) of the Act. However, respondent No. 2 did not at all, bother to apply his mind to the relevant provision and pass appropriate order for her reinstatement and this resulted in her continued suspension and consequential deprivation of the elective office.
21. In the result, the writ petition is allowed. Order dated 24.12.2002 is declared ille- gal and quashed. The petitioner shall get costs of Rs. 20,000/-. The amount of costs shall be recovered by the State Government from the officer responsible for passing arbitrary, casual and mala fide order of suspension, which resulted in depriving the petitioner of the post of Panch for a period of one year and almost five months. The learned Senior Deputy Advocate General Haryana should instruct Deputy Commissioner, Sonepat and all other officers subordinate to him that the petitioner shall be allowed to join the post of Panch forthwith.
Sd/-
Nirmal Singh, J.