MANGTU RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) In all these writ petitions, in which the orders of suspension passed by the Deputy Commissioner of the concerned district, suspending members of the Panchayats during the pendency of an enquiry instituted against each of them under S. 102 of the Punjab Gram Panchayat Act,. 1953, as applicable to the State of Haryana, the following two questions of law arise for consideration :-1. Whether a Deputy Commissioner to whom the power to remove a Panch conferred on the Director of Panchayat under Sub-Section (2) of S. 102, is delegated by notification issued under S. 95 (2) of the Act, has no power to pass an order instituting an enquiry against a Panch and to pass an order of suspension pending such enquiry; and2. Whether the power to remove a Panch under Sub-Section (2) of S. 102 of the Act delegated to a Deputy Commissioner, in conformity with Section 95 (2) of the Act, comes to an end on the transfer of the person who was the Director at the time of issuing the notification under S. 95 (2). The above common questions of law arise for consideration in CWP 12830 of 1989 as also in other petitions numbered above, and therefore, they are being disposed of by this common order. For the purpose of answering the questions, it is sufficient to refer to the facts in one of the cases. Therefore, in this order, we refer to the facts as given in C. W. P. No. 12830 of 1989. 2-3. The petitioner in this writ petition was elected as a Sarpanch of the Panchayat Dab Dhani in the election held in August, 1988. S. 102 of the Act, as applicable to the State of Haryana provides for the suspension and removal of Panches. The relevant portion of the said Section reads :-"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 proceedings taken against him is likely to embarass him in the discharge of his duties or involves moral turpitude or defect of character. (1-A) The Director (or Deputy Commissioner) may during the course of an enquiry, suspend a Panch for any of the reasons for which he can be removed. (1-B) A Panch suspended under this Section shall not take part in any act or proceedings of the Panchayat during the period of suspension and shall hand over the records, money or any other property of the Panchayat in his possession or under his control to the person authorised by the (Panch commanding majority in the Panchayat).

(2.) The Director may, after such enquiry as he may deem fit remove any Panch, - (A) on any of the grounds mentioned in Sub-Section (5) of Section 5; (B) who refuses to act, or becomes incapable of acting, or is adjudged an insolvent; (C) who, without reasonable cause absents himself for more than two consecutive months from the meetings of the Gram Panchayat, or the Adalti Panchayat, as the case may be; (D) who, in the opinion of the Director has been guilty of misconduct in the discharge of his duties during his past or present tenure; (E) whose continuance in office is, in the opinion of the Director, undesirable in the interests of the public. explanation - (i) and (ii) (3) to (4) (5) Any person aggrieved by an order passed under this Section may, within a period of thirty days from the date of communication of the order, prefer an appeal to the Government. "as can be seen from the above, Sub-Sec. (1-A) empowers the Director or the Deputy Commissioner to suspend a Panch for any of the reasons for which he can be removed, but the said power can be exercised only during the course of enquiry. Therefore, there is no controversy that the power to place a Panch under suspension could be exercised under S. 102 (A) of the Act only after an enquiry for his removal is instituted and is pending. Under Sub-Section (2) , the power to remove a Panch is conferred on the Director for the reasons set out in clauses (a) to (e) of Sub-Section (2) and the order of removal could be made only after such enquiry as the Director may deem fit.

(3.) Section 95 of the Act, provides for the delegation of powers. Sub-Section (2) of S. 95, which is relevant to these cases reads :"2) The Director may, with the previous permission of Government, delegate any of his powers, other than those delegated to him, to an officer not below the rank of District Panchayat Officer. "in view of Sub-Sec. (2) , the Director is given the power to delegate any of his powers under the Act with the previous permission of the Government excepting the powers delegated to him. Such delegation could only be made in favour of an officer not below the rank of District Panchayat Officer. On 3/06/1980, the Director, Panchayats, Haryana, delegated his powers exercisable under Sub-Sections (2) and (3) of S. 102 of the Act, to the Deputy Commissioners within their respective jurisdiction. That notification reads :"in exercise of the powers conferred by Sub-Sec. (2) of S. 95 of the Punjab Gram Panchayat Act, 1952, Punjab Act 4 of 1953 and with the previous permission of the Govt. I, K. S. Bhoria, Director of Panchayat, Haryana, do hereby delegate my powers, in respect of removal and disqualification of any Panch exercisable under Sub-Sections (2) and (3) of S. 102 of the said Act, to the Deputy Commissioner within their respective jurisdiction. "by this notification, the power to remove a Panch on any of the grounds, mentioned in clauses (a) to (e) of Sub-Sec. (2) of S. 102 of the Act, stood conferred on the Deputy Commissioner of the District concerned.