S.P. Goyal, J. - (1.) THIS petition under Article 226 of the Constitution of India has been filed for quashing order Annexure R -2/1, dated June, 5, 1980, of the Director, Panchayats, Haryana, Respondent No. I, reinstating Respondent No. 2 as the Panch of the Gram Panchayat of village Bhainswal Kalan.
(2.) ON a complaint by Petitioner Risal Singh, Sarpanch of the Gram Panchayat, an enquiry was held against Tara Chand, Respondent No. 2, by Additional General Assistant, Sonepat, into the various charges. After enquiry, Respondent No. 2 was exonerated of all the chaigts except charge No. I which was to the effect that he failed to attend the meetings of the Panchayat held on March 23, 31, April 23, 30 and May 9, 1979. It may be mentioned here that a Panch who without reasonable cause, absents himself for more than two consecutive months from the meetings of the Gram Panchayat or the Adult Panchayat, as the case may be, is liable to be removed by the Government under Sub -section (2) of Section 102 of the Punjab Gram Panchayat Act, as applicable in the State of Haryana. Agreeing with the report of the Additional General Assistant, the Director of Panchayat is who is the competent authority to take actor under the said provisions, issued notice dated May 29, 1980, annexure P6, to Respondent No. 2 to show cause as to why he be not at moved from the office of the Panch under Section 102(2)(c) of the said Act. After the receipts of the explanation the following order was passed by the Director on June 5, 1980: Shri Tara Chand, Panch Gram Panchayat Bhainswal Kala Baoh was suspended vide this office order No. LOAO 3 -80/13314 18, dated 25th March, 1980 and Additional General Assistant, Son; pat, was appointed as regular Enquiry Officer. According to the report of the Enquiry Officer Shri Tara Chand has not been found guilty and as a result thereof he is hereby re -instated to the post of Panch and regarding non attending of meetings of Panchayat, he is hereby given stern warning. The learned Counsel for the Petitioner has challenged the impugned order on the grounds that it is based on misreading of the report of the Enquiry Officer and that once the Panch is found guilty of having not attended the meetings of the Panchayat for two months, the Director has no option but to remove him from the said office The defence set up by the Director is that the case was not covered by Section 102(2)(c) of the Act as it was not proved that the Panch had absented himself for two consecutive months from the meetings without any reasonable cause. However, at the time of the argument, the learned Additional Advocate General further contended that it is not obligatory that the Director must remove the Panch and that he in his discretion, can even award a lesser punishment. It was also argued that Annexure R -2/1 is only a communication of the orders and in the order which is available on the file, the Director recorded the finding that the absence was not mala fide and so he did not choose to remove the Panch. After hearing the learned Counsel for the parties and going through the record I am of the view that this petition must succeed. In the order, a copy of which was forwarded to the Gram Panchayat, it is written that according to the report of the Enquiry Officer, Shri Tara Chand has not been found guilty and as a result thereof, he is reinstated to the post of Panch. Regarding the non attending of the meetings of the Panchayat, he was given a stern warning this order, to say the least, shows that the Director never applied his mind to the findings of the Enquiry Officer and passed the order which is contradictory in its own terms. In the first portion it is said that Tara Chand has not been found guilty but in the latter portion it is said that for non attending the meetings, he is given a stern warning. It was only for non attending the meetings that the charge against Tara Chard was. I held to have been proved. By this order a warning has also been given to him for non -attending the meetings. The finding of the Enquiry Officer, therefore, was never disagreed to by the Director and it passes, may compiemersion as to how he absolved Tara Chand of the charge. As regards the order which has now been produced and is alleged to on the file, I am very much doubtful it is was there initially because there is no mention in the written statement about the said order and on the contrary, in the return filed by the Director a reference has been made to Annexure R11 as the concerned order. It, therefore, appears that this order had come into being sometime thereafter. However, even if it may be accepted that this order was there on the file, it does not improve the matter in any way in this order also, the Director never differed with the finding of the Enquiry Officer nor recorded any contrary finding. All that is said is that there does not appear any mala fide intention on the part of the Punjab in not attending the meetings. The motive or intention for not attending the meetings is wholly irrelevant nor it was even the explanation submitted by the Panch. The defence set up by him was that he attended the meetings and the Sarpanch with a mala fide intension did not record his presence nor allowed him to sign the register. So the absence of mala fide intention is an innovation of the Director which as observed above has absolutely no bearing on the question as to whether the Panch has to be removed or not. Once a finding is recorded that a Panch has not attended the meetings for two consecutive months without any sufficient cause, the Director would have no option but to remove him from his office. That the provisions of Section 102(2) are mandatory was settled as far back as in the year 1967 by R.S Narula, J. (as he then was) in Grant Panchayat village Majesar v. The State of Haryana and Ors., 1967 PLR 397 Although the learned Counsel for Respondent No. 2 argued that the view of the learned Judge was in the nature of obiter dicta but he was unable to advance any substantial argument which could persuade me to take a different view.
(3.) THE learned Additional Advocate General Haryana, as noticed above, also raised the argument that the punishment of removal is the highest punishment provided in the statute and that even after the charge is held to be proved, the Director is not bound to remove the Panch and it is open to him to award lesser punishment, as has been done in the present case. The argument, in my view, need be mentioned only to be rejected. The only order which could be passed under the said section is removal and the question of any lesser punishment does not arise at all on the wording of the section.;