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Prem Kumar Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Food Adulteration
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 285 of 1979
Judge
Reported inAIR1980HP45
ActsHimachal Pradesh Panchyat Raj Act, 1968 - Sections 9(5) and 16; ;Himachal Pradesh Gram Panchayat Rules, 1971 - Rule 77; ;Constitution of India - Article 226; ;Food Adulteration Act
AppellantPrem Kumar
RespondentState of Himachal Pradesh and ors.
Appellant Advocate Ramesh Chand, Adv.
Respondent Advocate H.K. Paul and; M.L. Sharma, Advs.
DispositionPetition allowed
Excerpt:
civil - suspension - rule 77 of himachal pradesh gram panchayat rules 1977 - petitioner elected as pradhan of gram panchayat - suspended by deputy commissioner after allegation of respondent no. 5 that he was convicted under section 6 of food adulteration act - appeal - before removing any 'pancha' show cause notice must be issued - provision of rule 77 for providing show cause notice is mandatory - facts revealed that deputy commissioner was not aware of facts which formed basis of conviction - order of deputy commissioner quashed as he cannot be said to have applied his mind and formed an opinion before forming notice. - .....respondent no. 5. thereafter tarsem singh reported to the deputy commissioner as well as to the state government that the petitioner has been convicted under section 16 (1) of the prevention of food adulteration act on 9th sept. 1979 by the chief judicial magistrate, una. the deputy commissioner proceeded to suspend the petitioner by his order dated 9th nov. 1979 (annexure 'a'). another notice was served on the petitioner calling upon him to show cause why he should not be removed under the provisions of section 9 (5) (b) and (c) of the himachal pradesh panchayati raj act, 1968 because of the aforementioned conviction (annexure 'b'). the petitioner immediately asked the deputy commissioner to supply him with a copy of the complaint filed by tarsem singh, however, it was not done.2......
Judgment:

V.D. Misra, C.J.

1. The petitioner was elected as Pradhan of the GramPanchayat, Kungrath, Tehsil and District Una, in Nov.-Dec. 1978 after defeating Shri Tarsem Singh, respondent No. 5. Thereafter Tarsem Singh reported to the Deputy Commissioner as well as to the State Government that the petitioner has been convicted under SECTION 16 (1) of the Prevention of Food Adulteration Act on 9th Sept. 1979 by the Chief Judicial Magistrate, Una. The Deputy Commissioner proceeded to suspend the petitioner by his order dated 9th Nov. 1979 (Annexure 'A'). Another notice was served on the petitioner calling upon him to show cause why he should not be removed under the provisions of Section 9 (5) (b) and (c) of the Himachal Pradesh Panchayati Raj Act, 1968 because of the aforementioned conviction (Annexure 'B'). The petitioner immediately asked the Deputy Commissioner to supply him with a copy of the complaint filed by Tarsem Singh, However, it was not done.

2. The petitioner moved the present petition challenging his suspension (Annexure 'A') as well as the show cause notice (Annexure 'B') served on him.

3. The State put in appearance on 4th March 1980. The Advocate General appeared for respondents Nos. 1 to 4. Mr. M. L. Sharma Advocate, appeared for respondent No. 5. By an order dated 10th March 1980 we directed that the enquiry proceedings against the petitioner be completed expeditiously and the final order be announced within two months, but nothing happened.

3-A. When the matter came up on 26th May 1980 for admission, the learned Advocate General submitted that he was ready to argue the whole petition as it was and in case we came to the conclusion that the petition be admitted then it should be straightway allowed. In these circumstances the matter was adjourned for today. We are proceeding to decide the petition as a whole after admission as desired by the parties.

4. We will first deal with the question of moral turpitude. We called upon the State to tell us the facts on the basis of which the petitioner was alleged to have been convicted under Section 16 (1) of the Prevention of Food Adulteration Act. The record has been produced before us. The learned counsel for the State as well as Mr. M. L. Sharma frankly conceded that they know nothing of thefacts on the basis of which the alleged conviction of the petitioner took place. There is nothing on record to show that the Deputy Commissioner or the State Government had before it the facts before they could form an opinion that the action for suspension under Section 54 of the Act or for removal under Section 9 (5) (b) and (c) of the Act should be initiated. The only argument advanced by the learned counsel for the State is that since there is a conviction it ipso facto means that the petitioner has been convicted of an offence involving moral turpitude because it is under the Prevention of Food. Adulteration Act. We cannot agree. Unless the facts are before us or were before the authorities concerned, nobody will be justified to presume that offence committed was one involving moral turpitude. After all, the cause of conviction under Section 16 (1) may be only technical. For example, a street vendor of lollipops who, in good faith, buys them from a wholesaler, but these turn out to be adulterated. Similar facts may not involve any moral turpitude. However, in the instant case the authorities concerned never cared to find out the facts. Obviously there has been no application of mind for forming the opinion. It could not be. There were no facts before the authorities,

5. Under Rule 77 of the Himachal Pradesh Gram Panchayat Rules, 1971 it is incumbent on the State Government as well as the Deputy Commissioner to give a show cause notice to the person sought to be suspended or removed. Rule 77 is in the following terms:--

'Before ordering suspension or removal of a Panch, the State Government or the Deputy Commissioner, as the case may be, shall give him an opportunity to show cause as to why he should not be suspended or removed, as the case may be.'

Admittedly no such notice has been issued by the Deputy Commissioner or by the State Government calling upon the petitioner to show cause why he should not be suspended.

6. The learned counsel for the State made an attempt to justify suspension by contending that show cause notice is not necessary. He further contended that the rule is not mandatory but is directory. Now under Section 54 the powers of suspension of a Panch have been conferred on the State Government as well as the Deputy Commissioner. The relevant part of Section 54 reads thus.

'54. (1) The State Government or theDeputy Commissioner may, during thecourse of an enquiry or, if the State Government or the Deputy Commissioner sothinks proper, for any reason to be recorded in writing, otherwise, suspend aPanch in the prescribed manner for anyof the reasons for which he can be removed and debar him from taking partin any act or proceedings of the saidbody during the period and order himto hand over the records, money or anyproperty of the said body to the personsauthorised in this behalf.

XX XX Xx

(4) The Government may at any time revise, rescind or modify any order passed by it under Sub-sections (1), (2) and (30 or by the Deputy Commissioner under Sub-section (1).'

7. We cannot lose sight of the fact that the Panchas are elected. They are representatives of the people. It is possible that the State Government and the Panchayats may fall out for various reasons. It was, therefore, thought necessary by the legislature that before any Panch is suspended or removed, a show cause notice must be issued to him. This provision of natural justice is very important indeed. Suspension is removal pro tanto, that is, so far as it goes. In other words, suspension is a temporary removal. And that is a very serious matter. Under these circumstances we cannot agree that provisions of Rule 77 providing for show cause notice for suspension or removal are only directory and not mandatory.

8. Our attention was drawn to an order passed by the State Government on 10th Dec. 1979. This is a notice given by the Government of Himachal Pradesh to the petitioner. This notice has been read to us. An attempt was made to show that this notice is a notice to show cause against suspension. Assuming thatto be so, we fail to understand as to how a person can be first suspended and after a month served with a show cause notice for that suspension. It may be remembered that the Government records do not show that the Minister of State forPanchayats, who has given its sanction for suspension, was apprised of the facts on which the petitioner was convicted. At this stage our attention is drawn to notes 19, 20 and 21 of the record. They have been read over to us. It is stated that these are the only notes which were placed before the Minister. In these notes the factum of the conviction of the petitioner is mentioned but not the facts on the basis of which the petitioner was convicted. As already stated, before the relevant authorities could form an opinion all the facts should have been placed before them.

9. Mr. Sharma, in fairness to him we must record, did not (try to support the order of suspensions issued by the Deputy Commissioner. He, however, contended that the Panchayati Raj Act invests two authorities with the power of Tremoval and suspension. These authorities are the State Government and the Deputy Commissioner. Since Tarsem Singh approached both these authorities simultaneously, the result was that both of them started acting. Apparently the Deputy Commissioner acted fast and suspended the petitioner while the State Government took a month more to issue the notice of 10th December 1979,

10. Mr. Sharma contends that the Government's order dated 10th Dec. 1979 is not under challenge and, therefore, it is futile to allow this writ and quash the suspension. It is suggested that the State Government can suspend him immediately after we have quashed the order of the Deputy Commissioner. It may be, as suggested by Mr. Sharma, that the Government may suspend him. When and if it is done it will be for the petitioner to react to that order the way he likes. At this stage we have no reason to presume that the State Government is out to suspend him and is just waiting for the quashing of the order of the Deputy Commissioner. This consideration will not stop us from doing our duty to quash the illegal procedure adopted by the Deputy Commissioner to suspend the Pradhan of the Gram Panchayat. We may repeat that since the Deputy Commissioner (or the State Government) did not know the facts which formed the basis of the conviction of the petitioner, he cannot be said to have applied his mind and formed an opinion before issuing notice Annexure 'B'.

11. We, therefore, allow this petition and quash Annexure 'A' as well as Annexure 'B'. Since the respondents had contested the petition at great length, it is a fit case where we should award costs to the successful petitioner. Counsel's fee Rs. 200. It is directed that the cost willbe borne by the State as well as respondent No. & equally.


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