JUDGMENT
Jasbir Singh, J.
1. Petitioner, who is a Member Panchayat Samiti, Block Ludhiana (II), has filed this writ petition against order dated 29.1.2003 (Annexure P/3), vide which it was ordered by respondent No. 1 that he is not suitable to remain member of Panchayat Samiti. He was further restrained from participating in any meeting of the Panchayat Samiti on the ground that he had caused loss to the Gram Panchayat (Local Authority).
2. It is pleaded case of the petitioner that he contested election of Member Panchayat Samiti, which was held in June, 2002 and won that election. Meeting of the Block Samiti was fixed for 28.1.2003 to elect its office-bearers. Only 11 members attended the meeting on that day, for want of quorum, meeting was adjourned to 30.1.2003. Petitioner has averred that the total number of members, entitled to cast vote at the time of election, were 20 and the members of his group were 11 in number. Due to that, he declared himself as a candidate for the post of Vice Chairman. It is further stated that when opposite group saw an apparent defeat, respondent No. 4 in a very mala fide manner, moved one complaint, on frivolous grounds, against the petitioner before respondent No. 1, who without applying his mind, passed the impugned order, vide which the petitioner was suspended and restrained from participating in any meeting of the Panchayat Samiti. That order was conveyed when the meeting was in progress on 30.1.2003 and consequently, the petitioner was restrained from participating in that meeting. It has further been stated that thereafter, election was held and for the post of Vice Chairman, candidate of both the groups secured 10 votes each and after draw of lots, one Ram Kishan was declared elected as Vice Chairman.
3. By referring to above mentioned facts, petitioner has alleged that his suspension/restraint order was tainted with malice and was passed only to ensure that his group is defeated during election held to elect the officer-bearers of Panchayat Samiti.
4. Upon notice, respondents put up their appearance and have filed their written statements, wherein they have tried to justify the suspension order, Annexure P/3. It has been stated that one FIR No. 19 dated 23.2.2001 under Section 379 of IPC was pending against the petitioner. That FIR was recorded at the instance of Mining Officer, Department of Industries, Punjab, wherein, it was alleged against the petitioner that he, by removing sand had caused loss to the Department. In the written statement, it is further averred by the respondents that he had already been put under suspension as Sarpanch of the village and in view of serious allegations, order Annexure P/3 was rightly passed by the competent authority, while exercising the powers under Section 113(1) of the Punjab Panchayati Raj Act, 1994 (in short 1994 Act).
5. Counsel for the parties heard.
6. Shri Balbir Singh, Advocate appearing on behalf of the petitioner has vehemently contended that the impugned order is tainted, having been passed with a purpose to defeat the petitioner’s group during election to the post of Chairman and Vice Chairman. He, by referring to the provisions of Section 113 of 1994 Act, further contended that the order has been passed without any jurisdiction, as no enquiry was pending at the time when the petitioner was restrained from participating in the meeting of Panchayat Samiti. He has further stated that the instances of dis-qualifications, as found mentioned in Section 208 of 1994 Act, cannot be made a ground for taking action against the petitioner and prayed that the impugned order be quashed and writ petition be allowed.
7. Arguments raised by counsel for the petitioner has vehemently been contested by Ms. Nirmaljit Kaur, Addl. A.G. Punjab, appearing for the State and Counsel for the private respondent. She in reply, has averred that the pendency of an FIR is a sufficient ground to suspend the petitioner. It has further been stated that investigation in FIR amounts to pendency of enquiry and as such, order has rightly been passed by the competent authority. She further argued that the provisions of Section 208 of 1994 Act, are applicable so far as the members of the Panchayat Samiti are concerned and for incurring any of the dis-qualification mentioned therein, action can be taken against member of the Panchayat Samiti.
8. To divulge upon the merits of the case, it is necessary to note down certain provisions of 1994 Act, which are likely to effect the decision of this case on merits.
9. Section 2 of 1994 Act contains definition of various words and it defines Gram Panchayat and Panchayat as under:-
“2. (za) “Gram Panchayat” means an institution of self-government for a Gram Sabha area constituted under Section 9.
(zj) “Panchayat” means a Gram Panchayat. Panchayat Samiti and Zila Parishad constituted under this Act.”
10. In 1994 Act, specific provisions have been made regarding suspension and removal of Sarpanches, Panches and Members of Gram Samiti and its office-bearers.
Section 20 deals with suspension and removal of Panches and Sarpanches. Similarly, Section 113 deals with suspension and removal of members of Panchayat Samiti. Section 208 of 1994 Act talks of conditions, on the basis of which a person shall be disqualified for being chosen as and for being a member of Panchayat. Provisions of these sections read as under:-
“20. Suspension and removal of Panch and Sarpach.- (1) The Director, may, after such enquiry as he may deem fit, remove any Sarpanch or Panch:-
(a) on any of the grounds mentioned in Section 208; or
(b) who refuses to act or becomes incapable of acting; or
(c) who, being a Sarpanch, without reasonable cause, fails to hold meetings of the Gram Panchyat as required under Sub-section (1) of Section 23 for a period of two consecutive months; or
(d) who, without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat; or
(e) who during his present term of office or that immediately proceeding it, has, in the opinion of the Director, been guilty of misconduct in the discharge of his duties; or
(f) whose continuance in office is undesirable in the interest of the public:
Provided that before the Director orders the removal of any Sarpanch or Panch under this sub-section, the reasons for the proposed removal shall be communicated to him and he shall be given an opportunity of tendering an explanation in writing.
Explanation.- The expression “misconduct” in Clause (e) indicates the failure of the Sarpanch or Panch without sufficient cause –
(i) to submit the judicial file of a case within two weeks of the receipt of order of any Court to do so;
(ii) to produce the Panchayat records on being required to do so by an officer of the Department of Rural Development and Panchayats not below the rank of Social Education and Panchayat Officer;
(iii) to carry out the lawful orders of any competent authority or an officer authorised by the State Government in his behalf; and
(iv) to supply a copy of the order of the Gram Panchayat in an administrative or judicial case decided by it within two weeks from the receipt of a valid application therefor.
(2) A person, who has been removed under Sub-section (1), may be disqualified for re-election for such period not exceeding five years from the date of his removal as the Director may fix.
(3) The Director may suspend any Sarpanch or 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 charge made or proceeding taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character.
(4) The Director at any time, and the Deputy Commissioner of the District Development and Panchayat Officer during the course of an enquiry, may suspend a Sarpanch or Panch for any of the reasons for which he can be removed.
(5) A Sarpanch or Panch suspended under this section shall not take part in any act or proceeding of the Gram Panchayat during the period of suspension and shall hand over the records, money and other property of the Gram Panchayat in his possession or under his control to the Panch as many be elected by the Ranches from amongst Panches in a meeting called by the Block Development and Panchayat Officer for this purpose.
(6) 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.
113. Suspension and removal of members of Panchayat Samitis.- (1) State Government may, during the course of an inquiry suspend a member of a Panchayat Sarniti 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 inquiry.
(2) The State Government may be notification remove any member who in the opinion of the State Government has been guilty of misconduct in the discharge of his duties:
Provided that before the State Government notifies the removal of a member, the reasons for his proposed removal shall be communicated to him, and he shall be given an opportunity of tendering an explanation in writing.
(3) A person who has been removed under Sub-section (2) may be disqualified for re-election for such period not exceeding five years as the State Government may fix.
208. Disqualification for Membership:- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if,-
(a) he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State;
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty -one years;
(b) has been found guilty of any corrupt practice in any election of a Gram Panchayats, Panchayat Samiti or Zila Parishad;
(c) has been convicted of any offence involving moral turpitude or an offence implying of any defect of a Sarpanch or Panch of Gram Panchayat or member of a Panchayat Samiti or Zila Parishad, unless a period of five years has elapsed since his conviction; or
(d) has been convicted of an election offence; 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 as public servant except on medical grounds; or
(g) is a whole-time salaried employee of any local authority, Statutory corporation or Board or a Cooperative Society registered under the Punjab Cooperative Societies Act, 1961, or the State Government or the Central Government; or
(h) is registered as a habitual offender under the Habitual Offenders (Control and Reforms) Act, 1952 or any other law for the time being in force; or
(i) has not paid the arrear of tax imposed by a Gram Panchayat, Panchayat at Samiti or Zila Parishad as the case may be; or
(j) is a tenant or lessee or contractor or share-holder in any property of the Gram Panchayat, Panchayat Samiti and Zila Parishad; or
(k) is in authorised occupation of property belonging to any local authority; or
(l) being a Sarpunch has cash in hand exceeding the amount permitted under the rules made under this Act;
(m) is member of either House of Parliament or of the Legislature of the Punjab State:
Provided that a member of either House of the Parliament or Legislature of Punjab State may be elected as a Sarpanch or member of Gram Panchayat Samiti or Zila Parishad if, along with his nomination paper gives undertaking to the effect that he shall resign the membership of either House of Parliament or of the Legislature of the Punjab State, as the case may be, and so resigns before taking the oath or making affirmation for taking over the office of Sarpanch of a Gram Panchayat or a member of any Gram Panchayat, the Panchayat Samiti and Zila Parishad;
(n) has been convicted of an offence under the protection of the Civil Rights Act, 1955 within a period of five years immediately preceding the last date of the filing of the nomination papers; or
(o) being a Sarpanch or Panch does not attach certificate with his nomination papers to the effect that he has handed over to the Block Development and Panchayat Officer completed charge of the record of the Gram Panchayat and of the case, if any, with him.”
11. It is apparent from the record that admittedly, an FIR under Section 379 IPC was registered against the petitioner on 23.2.2001 and trial in that regard, was going on before the competent Court. It is also an admitted fact that the petitioner was elected as member of the Panchayat Samiti on 10.6.2002 alongwith 19 other members. It is also clear from the record that in the group of the petitioner, there were 11 members out of 20 elected members and in view of this, it can reasonably be presumed that his group was likely to win election for the post of Chairman and the Vice Chairman of Panchayat Samiti. It is also an admitted fact that the election of the Office-bearers was fixed on 28.1.20032 and only 11 members came present and for want of quorum, election meeting was adjourned to 30.1.2003 and on that day, when the meeting was in progress, restraint order, Annexure P/3 was handed over to the Presiding Officer, petitioner then was not allowed to participate in the election and on counting of votes it transpired that for the post of vice Chairman, both the candidates secured 10 votes each. From these facts, this Court can infer that an attempt was made to see that the petitioner be not in a position to cast his vote at the time of election and the pending FIR was chosen as a handle to achieve the desired objective, on the basis of which, impugned order was got passed, on a complaint made by respondent No. 4. As such, argument raised by counsel for the petitioner that the impugned order is a mala fide one, having been passed to debar the petitioner illegally from casting his vote, seems perfectly justified.
12. On a conjoint reading of Sections 20, 113 and 208 of 1994 Act, further argument of counsel for the petitioner, that order was passed without jurisdiction, also seems to be correct. From reading of the provisions of Section 208 of 1994 Act, it is clear that many grounds have been enumerated therein, on the basis of which action can be taken and Panch, Sarpanch can be suspended and removed from the office.
13. Sub-section (3) of Section 20 envisages that the Director may suspend any Sarpanch and Panch, where a case against him in respect of any criminal offence, is under investigation, enquiry or trial, if, in opinion of the Director, the charge made or proceedings taken against him is likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of character. Sub-section (4) of Section 20 envisages that the Director at any time, and the Deputy Commissioner of the District Development and Panchayat Officer during the course of an enquiry, may suspend a Sarpanch of or Panch for any of the reasons for which he can be removed.
14. Contrary to this, a reading of Section 113 of the 1994 Act, early indicates that there exists no provisions to the effect that in case of registration of a criminal case, a member of Panchayat Samiti can be removed/suspended from the office. Sub-section (1) of Section 113 of 1994 Act lays down that State Government may, during the course of an inquiry suspend a member of a Panchayat Samiti 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 inquiry. These provisions further envisages that the State Government may be notification remove any member who in the opinion of the State Government has been guilty of misconduct in the discharge of his duties.
15. A reading of Section 113 of the 1994 Act shows that power regarding suspension and removal is limited with the Government, as compared to the powers available for suspension and removal of Sarpanches and Panches under Section 20 of 1994 Act.
16. A perusal of provisions of Section 113 and Section 2308 of 1994 Act, clearly indicates that mere pendency of an FIR against a member of Panchayat Samiti, cannot be made a ground for his suspension/removal, as has been done in the present case.
17. Under Section 208(1)(c) conviction for any offence involving moral turpitude or an offence implying of any defect of character is a disqualification to be chosen as a member and to remain as a member of the Panchayat but mere pendency of the FIR is not a disqualification.
18. Argument advanced by counsel for the petitioner that since no enquiry under the Act was pending, suspension of the petitioner, vide impugned order is without jurisdiction, seems to be correct. Section 113 lays down that a Member of Panchayat Samiti can be suspended only during the course of enquiry.
19. Argument of the State counsel that pendency of trial, in the court regarding FIR amounts to enquiry and suspension is justified, is mis-conceived and is liable to be rejected.
20. A Division Bench of this Court in Mangtu Ram v. The State of Haryana and Ors., A.I.R. 1993 Punj. & Hary: 86, while interpreting provisions of Section 102(1-A) of the Punjab Gram Panchayat Act (those provisions are para materia of Section 113 of 1994 Act), opined as under;-
“An order suspending a Panch could only be made during the pendency of an
enquiry and as no enquiry had been instituted by the Director who alone was
competent to do so, the order of suspension has to be declared as having been made
without authority of law.”
Similarly, a Division Bench of this Court in Isham Singh v. Deputy Commissioner Kaithal and Ors., (1994-2)107 P.L.R. 542, again, while interpreting the provisions of Section 102 of the Punjab Gram Panchayat At, gave the following verdict;-
“As far as interpretation of Section 102 of the Act is concerned, we are of the opinion that the order of suspension can only be passed when any enquiry is ordered or is pending. Such a situation is yet to come in the present case. May be that the Deputy Commissioner accepts the plea of the petitioner as given in the reply to the show cause notice and be may nol invoke jurisdiction to actually suspend the petitioner.”
In the above mentioned case show cause notice to a Panch, who was apprehending suspension, was under challenge. In those circumstances, above mentioned observations were made by this Court.
21. In this case also, no enquiry was pending when impugned order was passed. On asking of the Court, State Counsel has even failed to state that any such enquiry was instituted, even thereafter. Under these circumstances, no option is left with the Court except to declare that in the absence of any pending enquiry, the impugned order Annexure P/3 could not have been passed by respondent No. 1, as such, order under challenge, cannot be sustained.
22. Sh. Balbir Singh, Advocate appearing on behalf of the petitioner has tried to contend that the provisions of Section 208 are not applicable so far as the petitioner is concerned, being a Panchayat Samiti member. This argument is devoid of any reason. Members of Gram Panchayat, Panchayat Samiti and Zila Parishad are covered by definition of Panchayat as contained in Section 2(zj) of 1994 Act. Section 208 talks of disqualification qua members of Panchayat not of Gram Panchayat, as such, if any member of Panchayat Samiti incurs any of the disqualification, as found mentioned under Section 208 of 1994 Act, a suitable action can be initiated against him. Contention of counsel for the petitioner to that extent is rejected. It is a different matter that in this case, in
the earlier parts of the judgment, we have come to a conclusion that the case of the petitioner is not covered even under the provisions of Section 208 of 1994 Act.
23. In view of the reasoning given above, this writ petition is allowed and order under challenge, Annexure P/3 dated 29.1.2003 is quashed. No order as to costs.
Sd/-.
V.K. Bali, J.