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Madan Lal Sharma and anr. Vs. the Deputy Commissioner, Mohindergarh at Narnaul and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1233 of 1972
Judge
Reported inAIR1973P& H311
ActsConstitution of India - Articles 226, 227 and 311; Indian Penal Code (IPC), 1860 - Sections 148, 149, 353, 447 and 506; Probation of Offenders Act, 1958 - Sections 4; Punjab Gram Panchayat Act, 1952 - Sections 6(5); Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 19(1)
AppellantMadan Lal Sharma and anr.
RespondentThe Deputy Commissioner, Mohindergarh at Narnaul and ors.
Cases ReferredPrem Kumar v. Union of India
Excerpt:
.....(5) of section 6 of the punjab act clearly creates a disqualification on the basis of a person's conviction of any offence as it debars that person from contesting elections for a period of five years. section 12 of the central act therefore, fully applies to remove the bar or the disqualification where the conviction is followed by the punishment of being bound down to keep the peace and be of good behaviour under s. the proviso to section 12 of the central act is clearly not applicable because it is nobody's case that after his release under section 4, respondent no. section 6(5)(c) of the punjab act would clearly be inapplicable as this was not a case of the contesting respondent's removal from any office of panch or sarpanch. he had been granted time to file a written..........(5) of section 6 of the punjab act clearly creates a disqualification on the basis of a person's conviction of any offence as it debars that person from contesting elections for a period of five years. section 12 of the central act therefore, fully applies to remove the bar or the disqualification where the conviction is followed by the punishment of being bound down to keep the peace and be of good behaviour under s. 4 of the central act. the proviso to section 12 of the central act is clearly not applicable because it is nobody's case that after his release under section 4, respondent no. 2 has subsequently been sentenced for the original offence. the period of the bonds furnished under section 4 of the central act has not yet run out but shri sarpal frankly concedes that he.....
Judgment:
ORDER

1. The two petitioners, who are a Panch and Sarpanch respectively of the Gram Panchayat of village Digrota, tehsil and district Mohindergarh, have filed this writ petition under Articles 226 and 227 of the Constitution of India to call in question the order (Annexure 'A') passed by the Ilaqa Magistrate, respondent No. 2, whereby it had been declared that Shri Ram Kanwar respondent No. 4, had been wrongly debarred from contesting the elections to the office of Sarpanch by respondent No. 3 who was presiding over these elections. Smt. Surji Petitioner No. 2's return unopposed as the successful Sarpanch had, therefore, been set aside by respondent No. 2 and fresh elections had been ordered. Shri Madan Lal Sharma Petitioner No. 1, joins the party really aggrieved as a sympathiser and he had not been taking a half-hearted interest in the proceedings before the Ilaqa Magistrate respondent No. 2.

2. Shri Ram Kanwar, respondent No. 4, who was the only candidate opposing the candidature of petitioner No. 2 to the office of Sarpanch had been convicted some months earlier by a criminal Court for offences made punishable under Section 148, 447 and 506 read with Sections 149 of the Indian Penal Code. He had, however, been given the benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter briefly referred to as 'the Central Act') and had been bound down to keep the peace and be of good behaviour for a period of one year and to appear and receive sentence when called upon during that period. The Presiding Officer had debarred respondent No. 4 from contesting the office of Sarpanch under Section 6(5) of the Punjab Gram Panchayat Act 1952 (hereinafter briefly referred to as ' the Punjab Act'). The pertinent portions of this section run as follows:--

'6. Constitution of Gram Panchayats and Disqualifications to be members thereof.

xx xx xx (5) No person who is not a member of the Sabha and who-

xx xx xx (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 Government or of the officer to whom Government has delegated its powers of removal, implies a defect of character unfitting him to be a Sarpanch or Panch, unless a period of five years has elapsed since the date of the order; or

xx xx xx shall be entitled to stand for election as, or continue to be Sarpanch or Panch: xx xx xx

3. Action may appear to have been taken against respondent No. 4 by the Presiding Officer under Clause (b) of Section 6(5). The Presiding Officer may appear to have assumed that the conviction of respondent No. 4 was for offences involving moral turpitude and the fact that he had been given the benefit of Section 4 of the Central Act and how far Section 12 of the said Act was applicable to the case were not taken into consideration. The said section runs as follows:--

'12. Removal of disqualification attaching to conviction.

Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any attaching to a conviction of an offence under such law.

Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence.'

4. In the A.I.R. Manual, a note has been printed under Section 12 of the Central Act but it is not clear on what rulings this note is based. The note is, however, reproduced below for whatever persuasive weight it may carry with the reader:--

'Note: Person against whom action is taken either under Section 3 or Section 4, is not disqualified by reason of such action, from standing for election to any of the Houses of Parliament or to any State Legislature.'

5. The simple question for decision in this case is whether Section 6(5)(b) of the Punjab Act creates a disqualification and whether section 12 of the Central Act has the effect of removing that disqualification in view of the fact that respondent No. 4 had been given the benefit of Section 4 of the Central Act by the criminal Court that had convicted him under the above mentioned sections of Indian Penal Code.

6. Shri Sarpal, the learned counsel for the petitioners, has cited three rulings before me which may appear to be wholly inapplicable to cases involving election matters for the simple reason that all the case cited relate to service matters and involve the interpretation of different provisions of the Constitution of India or the rules governing the service conditions of the Government employees concerned. The first case cited by Shri Sarpal is a Full Bench decision of this Court in Om Parkash v. Director Postal Services (1971) 1 Serv LR 648=(AIR 1973 Punj 1) (FB). This decision was dissented from and distinguished by a Full Bench of the Delhi High Court in Director of Postal Services v. Daya Nand 1972 Serv LR 325=(1972 Lab IC 736) (Delhi), and it may appear surprising that Shri Sarpal is relying on both these cases when they had lied to altogether different results. The Full Bench of the Delhi High Court had, however, cited with approval and relied upon a Division Bench ruling of the Madhya Pradesh High Court in Prem Kumar v. Union of India, 1972 Serv LR 14=(1971 Lab IC 823)(Madh Pra) which makes a very helpful observation so far as the decision of the present case is concerned. Prem Kumar Petitioner in the case cited was a clerk in postal department. He had been convicted and sentenced under Section 353 of the Indian Penal Code for beating a colleague while the latter was on duty. The conviction was maintained on appeal but the petitioner had been given the benefit of Section 4 of the Central Act by the Appellate Court. The conviction had, however, led to Prem Kumar's dismissal from service. Rule 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and Article 311 of the Constitution of India had been invoked while passing the order of dismissal from services on the basis of petitioner's conviction for the criminal offence. The petitioner's counsel relied mainly on Section 12 of the Central Act and Hon'ble Chief Justice, who wrote the judgment for the Division Bench was pleased to dispose of the submissions of the Petitioner's counsel with the following remarks:--

'We have heard the learned counsel at some length but we find ourselves unable to agree with the above contention. The relevant words of the section are shall not suffer disqualification, if any attaching to a conviction of an offence under such law'. The words can only be read so as to remove he disqualification which under some law may attach to a person on account of his conviction. For instance, if a person is convicted of an offence, he is disqualified from standing for election to the Central or State Legislatures. But if such a person is given benefit under the Probation of Offenders Act, then by virtue of Section 12 of that Act the disqualification for that purpose (standing for election) will stand removed. In the present case however, both under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules and Article 311(2) of the Constitution the departmental action of dismissal from service is taken not because of any disqualification attaching on account of the Petitioner's conviction but because conviction is considered as sufficient proof of the conduct which resulted in his conviction and any further departmental enquiry into his conduct to find out facts is obviated.

xx xx xx Thus the ground of action is the conduct which leads to the conviction and not the conviction itself. Moreover, there is no question of disqualification in such cases. It is on account of the conduct of delinquent that he is given the punishment of dismissal. Obviously, therefore, Section 12 of the Probation of Offenders Act, relied upon by learned counsel for the petitioners has no application to such cases. The dismissal order quoted above has clearly taken into consideration the conduct of the delinquent and the punishment has been imposed on that basis.'

7. As all the cases relied upon by Shri Sarpal arise out of service matters they have hardly any application to cases relating to election matters. Clause (b) of sub-section (5) of Section 6 of the Punjab Act clearly creates a disqualification on the basis of a person's conviction of any offence as it debars that person from contesting elections for a period of five years. Section 12 of the Central Act therefore, fully applies to remove the bar or the disqualification where the conviction is followed by the punishment of being bound down to keep the peace and be of good behaviour under S. 4 of the Central Act. The proviso to Section 12 of the Central Act is clearly not applicable because it is nobody's case that after his release under Section 4, respondent No. 2 has subsequently been sentenced for the original offence. The period of the bonds furnished under Section 4 of the Central Act has not yet run out but Shri Sarpal frankly concedes that he is not trying to make out a case in the hoped that respondent No. 4 may forfeit the bonds during the unexpired period. I, therefore, find that Section 12 of the Central Act has the effect of removing the bar or disqualification created by Clause (b) of Sub-section (5) of Section 6 of the Punjab Act as respondent No. 4 had been granted the benefit of Section 4 of the Central Act. Section 6(5)(c) of the Punjab Act would clearly be inapplicable as this was not a case of the contesting respondent's removal from any office of Panch or Sarpanch.

8. The second contention raised by Shri Sarpal was that petitioner No. 1 was not given adequate opportunity by respondent No. 2 to file a written statement and there had been a violation of the principles of natural justice. It may appear that the petitioner No. 1 had not cared to appear before respondent No. 2 in the early stages of the proceedings. He had been impleaded at a later stage as a respondent on his application. He had been granted time to file a written statement and had failed to appear on the adjourned hearing. No breach of principles of natural justice may, therefore, appear to be involved. Petitioner No. 2 was the party directly affected by the impugned order and she had all along been contesting the proceedings before the Ilaka Magistrate. Petitioner No. 1 as a mere sympathiser, was apparently taking a lukewarm or half-hearted interest in the case. This contention raised by Shri Sarpal is also without any force.

9. The writ petition is therefore, dismissed with costs.

10. Petition dismissed.


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