Lekh Ram Vs. State of Himachal Pradesh and anr. - Court Judgment

Excerpt:
- r.s. thakur, j.1. lekh ram, the petitioner in this writ petition under articles 226/227 of the constitution of india, is pradhan of gram panchayat, dobha, block development sadar, tehsil sadar, district bilaspur. while he was presiding over the panchayat meeting on march 13, 1986, prem lal of village barota within the said panchayal circle, approached him and requested him to issue certain certificates to the effect that he was bona fide resident of himachal pradesh and belonged to scheduled caste. while the petitioner was preparing said certificates the officials of the vigilance deptt. (and corruption) entrapped him for receiving illegal gratification from said prem lal to the tune of rs. 50/- in currency notes of rupee ten each. consequently a case under section 161 of the indian penal code read with section 5(2) of the prevention of corruption act was registered against the petitioner. he was also placed under arrest and was released on bail on the next day i.e., march 14, 1986.2. thereafter a notice was issued by the respondent deputy commissioner, bilaspur, (annexure pe) dated april 30, 1986, to the petitioner to show-cause why he should not be suspended and debarred from discharging the duties of pradhan of the panchayat, within a period of seven days under section 54(1) of himachal pradesh panchayati raj act, 1970, (hereinafter referred to as the act) and under rule 77 of the himachal pradesh panchayati raj rules, 1971, for having been caught red handed by the inspector vigilance (anti corruption unit) while receiving illegal gratification from said prem lal to the tune of rs. 50/-. the petitioner sent the communication, annexure pf, in response to this show-cause notice wherein he denied that he made any such attempt to receive illegal gratification and asserted that he wasa victim of a 'frame-up' by his political rivals and the case was a complete concoction and fabrication against him. he also challenged, in these circumstances, the authroity of the deputy commissioner to suspend him from performing his functions as a panchayat pradhan since the case against him was sub-judice and no such action could legally be taken by the deputy commissioner till he was found guilty.3. thereafter the deputy commissioner, bilaspur, issued the order dated may 30, 1986, (annexure pg), whereby the petitioner was suspended as pradhan of gram panchayat dobhas, under section 54(1) of the act debarring him from taking any part in the panchayat proceedings during his suspension period.4. the petitioner in this writ petition has challenged the legality of this order of suspension, (annexure pg) and prayed that the same, being illegal, be quashed.5. in the return filed on behalf of the respondents, it was admitted that the petitioner was suspended from the presidentship of panchayat dobha but it was denied that the order in this behalf was illegal, since, the petitioner was caught red-handed while accepting illegal gratification to the tune of rs. 50/- from one prem lal which amounts to misconduct on his part and as such the deputy commissioner, bilaspur, respondent no. 2, was j ustified in suspending him under section 54(1) of the act.6. thus in view of the foregoing factsand the circumstances, the only question that arises for the determination of this court is whether the suspension order (annexure pg) passed against the petitioner under sub-section (1) s. 54 of the act is free from any vice, of illegality7. we have considered the contentions of the learned counsel for the parties in this behalf and have no doubt that the answer to this poser is in the negative.8. for proper appreciation of import and amplitude of the relevant provisions of the section 54 of the act, the same may be extracted as follows : --'54.(1) the state government or the deputy commissioner may, during the course of an enquiry or, if the state government or the deputy commissioner so thinks proper, for any reason to be recorded in writing, otherwise, suspend a panch in the prescribed manner for any of the reasons for which he can be removed and debar him from taking part in any act or proceedings of the said body during the period and order him to hand over the records, money or any property of the said body to the persons authorised in this behalf.(2) the government may, after such enquiry, as it may deem fit, remove any panch : (a) on any of the grounds mentioned in sub-section (5) of section 9 :(b) xxxxx(c) xxxxx(d) who in the opinion of the government has been guilty of misconduct in the discharge of his duties.explanation -- the expression 'misconduct' in clause (d) includes the failure of the i pradhan, without sufficient cause, to supply a copy of the order of the gram panchayat in an administrative case decided by it, within two weeks from the receipt of a valid application therefor.(3) xxxxx(4) xxxxx 9. it is clear that the word 'panch' used in, this section has been defined in the definition under section 3 in clause (s) of the act, as meaning a member of gram panchayat elected, appointed, or co-opted under this act and includes pradhan or up-pradhan. thus the suspension of pradhan of the gram panchayat is also covered under the provisions of sub-section (1) of section 54 of the act.10. sub-section (1) of section 54 of the act when properly construed would mean that a panch can be suspended either by the state. government or the deputy commissioner: under two circumstances; (a) when an enquiry is pending against such a panch (which is a condition precedent to such a suspension); and (b) when either of these two authorities think proper for other reasons to be recorded in writing which reasons cannot be different from those for which he can be removed from his office as panch. under sub-section (2) of section 54 of the act only the government is empowered to remove any such panch after holding enquiry as is deemed proper against him on any of the grounds mentioned under sub-section (5) of section 9 of the act. thus it would mean that if any panch is to be suspended when there is no enquiry pending against him which may lead to his removal, he can be suspended only for any of the reasons recorded in writing which have been enumerated under sub-section (5) of section 9 of the act justifying his removal. the provision of sub-section (5) of section 9 of the act may be extracted as follows : --'9(5). no person who is not a member of the sabha and/or who : -- (a)(i) is not a citizen of india, and (ii) is less than 25 years of age;(b) has been convicted of any offence involving moral turpitude unless a period of five years has elapsed since his conviction; or(c) has been subjected to an order by a criminal court and which order, in the opinion of the officer to whom the government has delegated its powers of removal, implies a defect of character unfitting him to be a pradhan, up-pradhan or panch unless a period of five years has elapsed since the date of order; or(d) has been convicted of an election offence under any law for the time being in force; or(e) has been ordered to give security for good behaviour under section 110 of the code of criminal procedure, 1973; or(f) has been notified as disqualified for appointment in public service, except on medical ground; or(g) is a whole time salaried servant other than the persons employed casually or on daily wages, of any local authority of state government or the union of india; or(h) is registered as a habitual offender under the punjab habitual offenders (control and reform) act, 1952 as in force in the transferred territory; or(i) is an undischarged insolvent; or(j) has not paid the arrears of any tax imposed by the gram panchayat or the panchayat samiti; or(k) is an employee of sabha or gram panchayat; or(1) is a member of either house of parliament or of the legislative assembly of himachal pradesh; or(m) is a tenant or lessee holding a tenancy or lease under the gram sabha or is in arrears of rent of any lease or tenancy held under the gram sabha, or is contractor of the gram sabha; or(n) has been convicted of an offence punishable under the protection of civil rights act, 1955, unless a period of six years has elapsed since his conviction;shall be entitled to stand for election as or continue to be, a pradhan,' up-pradhan or panch.' 11. at this stage it would be appropriate : to take notice of the impugned order of suspension of the petitioner at annexure pg, which reads as under : --'no. blp 4-100/78 'annexure pg/1' office of the deputy commissioner district bilaspur, h.p.office orderthat shri lekh ram, pradhan, gram panchayat, dobha block development, sadar district bilaspur was caught red-handed for accepting bribe of rs. 50/- from shri prem lal, resident of village barota, for issuing i.r.d. certificates, by inspector, vigilance (anti corruption deptt.) and a case under section 161 ipc and section 5 (2) of prevention of corruption act has been registered and has been issued a show-cause notice by the undersigned vide show-cause notice no. blp-7-66-150 dated 30-4-1986.and that shri lekh ram pradhan was asked to submit his reply within 7 days after the receipt of show-cause notice and his reply has been received in this office which has been carefully gone through but his explanation is not based on facts and is unsatisfactory. there is an allegation of taking bribe of rs. 50/- against shri lekh ram pradhan from sh. prem lal and thus he has mis-used the office of presidentship. this unwarranted action comes under the purview of corruption.therefore, i, i. k. lal, i.a.s., deputy commissioner, bilaspur, hp under the powers vested in him under section 54(1) of h.p. panchayati raj act, suspend sh. lekh ram, pradhan, gram panchayat dobha from the date of issuance of this order and further order that aforesaid shri lekh ram is barred from taking any part in the panchayat proceedings during his suspension period.sd/- (k. lal) deputy commissioner, bilaspur.12. it is apparent from the aforesaid order that the reasons recorded by the competent authority for the suspension of the petitioner is that he was caught red-handed while accepting bribe as a result of which a case under section 161 indian penal code and section 5(2) of the prevention of corruption act, has been registered against him and this allegation of taking bribe of rs. 50/- against him indicates that he has misused his office of presidentship which act on his part comes 'under the purview of corruption.'13. it is thus apparent that these reasons are wholly irrelevant and extraneous to the exercise of power of suspension under the provisions of sub-section (1) of section 54 of the act and the deputy commissioner bilaspur was not competent to exercise his powers of suspension against the petitioner. in the first place, only a case under section 161 ipc and section 5(2) of the prevention of corruption act had been registered against him for alleged acceptance of illegal gratification to the tune of rs. 50/-from prem lal. the mere registration of case, however, is not covered by any of the grounds enumerated in sub-section (5) of section 9 of the act which alone were relevant for passing of the impugned order, by the deputy commissioner. it is paramount principle of our criminal jurisprudence that an accused in a criminal case is presumed to be innocent till found guilty and thus mere registration of a criminal case against the petitioner could not be pressed as a ground for his suspension since it could not be a ground for his removal under any of the clauses enumerated under sub-section (5) of section 9 of the act.14. in the second place there was not even any enquiry pending against the petitioner at that time even with regard to this allegation of acceptance of bribe which respondents nos. 1 and 2 have described as misconduct in their return and, therefore, none of the grounds as enumerated in para 10 ibid existed to justify the issuance of such an order. the word 'enquiry' used in section 54 of the act has not been defined in the act. 'enquiry' however, is quite distinguishable from 'investigation' in their sweep and connotation and in the instant case, at the most, at the lime of this impugned order, only investigation of a criminal case was pending against the petitioner. the competent authority, therefore, under no circumstances was legally justified to issue the impugned order. in any case the enquiry envisaged under the provisions of section 54 of the act is the enquiry which the government itself orders to hold, in the manner it deems fit, and not an enquiry by any other authority or department. in the instant case even the investigation was admittedly being conducted by the inspector vigilance (ami corruption deptt) of the police.15. in view of the above discussion, the impugned order at annexure pg is quashed and the petitioner shall be deemed to have continued as pradhan of the panchayat dobha as if this impugned order did not exist at any point of time and the rule is made absolute, with no orders as to costs.