Abhey Singh Chautala vs State Of Haryana Through … on 13 February, 1997

Punjab-Haryana High Court
Abhey Singh Chautala vs State Of Haryana Through … on 13 February, 1997
Equivalent citations: (1997) 116 PLR 277
Bench: A Bhan, K Kumaran


JUDGMENT

Ashok Bhan and K.S. Kumaran, JJ.

1. Prayer made in this petition is for issuance of writ of certiorari quashing the impugned order, Annexure P-4, dated 21.8.1995, passed by the Financial Commissioner and Secretary to Government, Haryana, Development and Panchayats department, respondent No.l suspending the petitioner from the office of Vice President, Zila Parishad, Sirsa and the membership of the Zila Parishad.

2. Petitioner is an elected member of the Zila Parishad, Sirsa and was elected as Vice President. He was arrested by the local police on 23.6.1995 for offences punishable Under Sections 147/148,149/188,186/332,353/283,307/435 and 427/341, Indian Penal Code. Another First Information Report was registered against him on the same date for offences punishable Under Sections 150/146 of the Indian Railways Act and Sections 356, 427, 379, 420 and 120B, Indian Penal Code. Respondent No.l, exercising his powers Under Section 160(1)(a) of the Haryana Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act’), suspended the petitioner, holding that the pendency of the two cases referred to above fall within the definition of moral turpitude which were likely to embarrass the petitioner in discharge of his duties as Vice President and member of the Zila Parishad, Sirsa. Impugned order, Annexure P-4, was passed without issuing any show cause notice to the petitioner, Petitioner has challenged the impugned order on the grounds:

i) that the same has been passed at the instance of Ch. Bhajan lal, the then Chief Minister of Haryana, malafide on fabricated allegations to embarrass the petitioner who belongs to a political party/family opposed to Ch. Bhajan Lal, and

ii) that the impugned order has been passed without issuing notice and affording an opportunity of hearing, in violation of the principles of natural justice.

3. Separate written statements have been filed by the State, respondent No.l and Ch. Bhajan Lal, respondent No. 2.

4. Allegations of malafide have been denied by respondent No. 2. State of Haryana, in its reply, has taken the stand that no notice is required to be issued before passing the order of suspension Under Section 160 as none is envisaged to be given under the provisions of the Act.

5. On 20.10.1995, the case was admitted to be heard by a Division Bench. Interim relief of stay of the operation of the impugned order was declined.

6. Mr. S.C. Mohunta, counsel for the petitioner at the outset gave up his challenge to the impugned order on the ground of malafide of respondent No. 2 and proceeded to argue the case on the second point i.e. the order having been passed in violation of the principles of natural justice without issuing notice and affording an opportunity of hearing. It was argued that the petitioner ought to have been given a show cause notice before passing the order of suspension Under Section 160(l)(a) of the Act, and the impugned order of suspension without hearing the petitioner was void abinitio and must be revoked. In support of this submission, he drew our attention to a Full Bench judgment of this Court in Kashmiri Lal v. The Dy. Commr., Sonepat and Ors., AIR 1980 Punjab and Haryana 209.

7. Mr. S.M. Sharma, counsel for the respondents disputed this proposition and argued that no notice was required to be given to the petitioner before placing him under suspension.

8. In Kashmiri Lai’s case (supra), the Full Bench while considering Section 102(1) of the Punjab Gram Panchayat Act, 1952, as applicable the State of Haryana, which is para materia with Section 160(1)(a) of the Act, held :-

” We, therefore, approve the view taken by the Division bench in Suresh Chand’s case (supra) and hold that before an order of suspension can be passed against Panch or Sarpanch under the amended Section 102(1) of the Act, an opportunity of hearing or notice has to be afforded to the said Panch or Sarpanch. We, therefore, allow these two Writ Petitions Nos. 94 and 422 of 1979. ”

9. For a comparative study, Section 160(l)(a) of the Act and Section 102(1) of the Punjab Gram Panchayat Act, as applicable to Haryana, are reproduced below :-

“Section 160(l)(a) : The Government may suspend any President or Vice-President or Member, as the case may be, where a case against him/her in respect of any criminal offence is under investigation, inquiry or trial and if, in the opinion of the Government the charge made, or proceedings taken against him/her are likely to embarrass him/her in the discharge of duties or involves moral turpitude or defect of character; ”

“Section 102(1) : The Director may suspend any Panch where a case against him in respect of any criminal offence is under investigation enquiry or trial, if, in the opinion of the Director, the charges made or proceeding taken against him is likely to embarrass him in the discharge of his duties to involves moral turpitude or defect of character.”

10. A reading of these two provisions shows that they are para materia the same except that Under Section 160(l)(a) of the Act, the power to suspend the President, Vice President or Member, as the case may be, has been given to the Government whereas Under Section 102(1) of the Punjab Gram Panchayat Act, power to suspend a Panch has been given to the Director.

11. In Kashmiri Lai’s case (supra), their Lordships of the Full Bench approved the view taken in Suresh Chander and Ors. v. Director of Panchayats, Haryana and Ors., A.I.R. 1979 Punjab 116, wherein it was held that the order passed Under Section 102(1)(new) of the Punjab Gram Panchayat Act would be a quasi judicial order and a show cause notice and an opportunity of hearing was required to be given before suspending a Panch or Sarpanch, where a case against him in respect of any criminal offence is under investigation, enquiry or trial, which was likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character; that the authority has to analyse the material placed before it critically to arrive at a conclusion regarding the pendency of investigation, enquiry or trial for a criminal offence against a authority automatically. He has further to apply his mind to the nature of the accusation and the charge and then satisfy himself whether it is of a type which can embarrass the person accused of the charge in the discharge of his functions as a Panch or involves moral turpitude or defect of character. All the criminal offences under investigation, enquiry or trial may not embarrass a Panch in the discharge of his duties or may not involve moral turpitude or defect of character. The authority has to analyse the material placed before it critically arrive at a conclusion and all the three ingredients of Section 102(1) have to be considered disjunctively that he can arrive at this conclusion only if he applies his conscious mind and is satisfied objectvely. If that be the petition, then a notice and an opportunity of hearing was required to be given.

12. In the present case as well, the Government had to apply its mind regarding the nature of accusation and the charge against the petitioner and then satisfy itself whether the charge is of the type which can embarrass the petitioner in the discharge of his functions as a Vice President or a Member of the Zila Parishad or involves moral turpitude or defect of character. This could be done by conscious application of mind by objective decision which could be arrived at after issuing a show cause notice and affording of an opportunity of hearing to the petitioner. The impugned order does not show any conscious application of mind. The same is a mechanicalorder stating therein that because of the pendency of two cases amounting to moral turpitude, the petitioner is placed under suspension. It does not show any conscious application of mind regarding the involvement of moral turpitude or defect of character or the embarrassment which may be caused in the discharge of the functions as Vice President or Member of Zil Parishad..

13. We respectfully follow the view taken by the Full Bench in Kashmiri Lal’scase (supra) and hold that the impugned order, Annexure P-4, has been passed without affording due opportunity to the petitioner of defending himself, in violation of the principles of natural justice. Order, Annexure P-4, could not be passed without issuing notice and affording due opportunity of hearing to the petitioner.

14. Apart from this, under proviso to Section 160(1) of the Act, it has been provided that the suspension period of a Member, Vice President or President, has the case may be, shall not exceed six months from the date of issuance of suspension order. The word used in the proviso is “shall” and its tenor shows that in no circumstance, the suspension period of a Member, Vice President, as the case may be, can exceed six months from the date of issuance of the suspension order. In the present case, the period of six months expired long time back. On this count also, the petitioner is entitled to be reinstated as Vice President and member of Zila Parishad, Sirsa.

15. For the reasons stated above, this petition is allowed. Order, Annexure P-4, is quashed and respondent No.l is directed to reinstate the petitioner as Vice President and member of Zila Parishad, Sirsa, for the unexpired term of the Zila Parishad. No. costs.

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