- (1.) THE question that arises for consideration in these two petitions -- Ujagar Singh v. State of Punjab, Civil Writ No. 2489 of 1967, and Bihari Lal Sarpanch v. Haryana State, Civil Writ No. 416 of 1968 --before this Bench, is the meaning and scope of enquiry in Sub-sections (1) and (2) of Section 102 of the Punjab Gram panchayat Act, 1952 (Punjab Act 4 of 1953), and the power and scope of the deputy Commissioner to make an order of suspension under Sub-section (1) of section 102 at the very same Act.
(2.) IT is common ground that in both the petitions the Deputy Commissioner concerned suspended each petitioner, who is a Sarpanch of his particular Gram panchayat, under Sub-section (1) of Section 102 of the Act, but without the State government either exercising its own powers under Sub-section (2) of Section 102 of the Act or the Director of Panchayats. as its delegate under Section 95 of the act, exercising the same powers, having order-ed an enquiry against the particular petitioner under Sub-section (2) of Section 102 of the Act. Bihari Lal's case first came for hearing before my learned brothers Mahajan and Gurdev Singh, JJ. , on february 27, 1968, who being of the opinion that there appeared to be a certain measure of inconsistency between Piyare Lal v. Deputy Commr. , Hoshiyarpur, ILR (1966) 2 Punj 20 and Ram Ditta Singh v. Deputy Commr. , Ferozepur, (1968) 70 pun. L. R. 341, on the question, as above, referred the matter to a larger Bench. In the wake of that reference, when Ujagar Singe's case came before Shamsher bahadur J. , for hearing on April 19, 1968, the learned Judge referred that case also to the same larger Bench. This is how these two cases have come before this bench.
(3.) TO appreciate the question that arises in these cases it is necessary to first make reference to the relevant parts of Sub-sections (1) and (2) of Section 102 of the Act, which read- "102. (1) The Deputy Commissioner may during the course of an enquiry, suspend a Panch 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 that period and order him to hand over the records, money or any property of the said body to the person authorised in this behalf. (2) Government, may, after such enquiry as it may deem fit, remove any Panch -- (then follow five grounds of removal ). " The first ground of removal in Clause (a) of Sub-section (2) of Section 102 has reference to the grounds mentioned in Sub-section (5) of Section 6 of the Act. According to that sub-section a person cannot be a member of a Gram Panchayat because of grounds (a) to (1), among which are the grounds (b), if he has been convicted of any offence involving moral turpitude unless a period of five vears has elapsed since his conviction; or (e), he has been ordered to give security for good behaviour under Section 110 of the Code of Criminal Procedure, 1898; or (i), he is an undischarged insolvent. In Ram Ditta Singh's case, (1968) 70 Pun. L. R 341, what was held was that both sub-sections of Section 102 of the Act have to be read together so that the plain meaning of the same is that when an enquiry is ordered by the Government under Sub-section (2), it is during the pendency of that enquiry that the Deputy Commissioner has the power to suspend a Panch under Sub-section (1) and that if there is no enquiry ordered or started by the government under Sub-section (2), the power under Sub-section (1) in the deputy Commissioner does not become operative. It was pointed out that a Panch can be suspended only when an enquiry against him has been ordered by the Government and not in consequence of an enquiry not ordered or started by the state Government. It was also pointed out that the language of Sub-section (1)does not justify that a Deputy Commissioner can order some enquiry against a panch apart from that by the Government under Sub-section (2) of the Act. It was further observed that the Legislature has designedly framed the two sub-sections in the manner in which the same are, leaving the power to order OP start an enquiry against a Panch with the Government alone as a matter of policy so as not to leave interference with the elected bodies, such as Gram Panchayats, in the hands of local officers by way of starting enquiries against the elected members of such local bodies. It has been said during the arguments that this observation was probably made because at the time the provisions of Section 95 of the Act were not placed before the Bench. It appears to be so. According to Section 95 of the act the Government can delegate its powers under the Act to a Deputy commissioner of a District, apart from the Director of Panchavats. So the government can, having regard to this provision, delegate its powers under Subsection (2) of Section 102 of the Act to a Deputy Commissioner, though actually it has delegated its powers not to any Deputy Commissioner of any district in the state but to the Director of Panchayats, an officer at the centre who heads the department of Panchayats. Sub-section (1) of Section 102 originally gave power to the Director of Panchayats to suspend a Panch but that has been amended to vest that power in the Deputy Commissioner, obviously in the wake of the number of cases and the volume of work involved in this respect. In spite of the power under Section 95 to delegate its powers under the Act to the Deputy commissioner, the Government has not chosen to do so in so far as its power under Sub-section (2) of Section 102 is concerned. It has delegated that power to the Director of Panchayats only, an official of top rank in the Department. So, while such a delegation to a Deputy Commissioner is pos-sible, the action of the government itself supports the inference that it has paid attention to the policy of the Legislature that such powers are not to be delegated to district officials so that they may not interfere with the working of local bodies as Panchavats. In Piyare lal's case, ILR (1966) 2 Punj. 20, the precise question that arises for consideration in these two petitions and which was considered in Ram Ditta Singh's case, (1968)70 Pun. L. B. 341, did not really arise. In that case the existence of a proper enquiry was never questioned. The argument was that for the validity of an enquiry it was to be held by the Deputy Commissioner and not by an officer subordinate to him such as a Sub-Divisional Magistrate, and this argument was repelled. In that case, however, the order, of suspension was maintained, but the obvious explanation of that is that there was no argument in that case that no proper enquiry, according to Sub-section (2) of Section 102 of the Act, was pending when the suspension of the Panch concerned was ordered by the Deputy commissioner. When the two cases are considered together there might appear to be a seeming inconsistency, but, in substance, there is none. All the same, the question as posed above has been canvassed afresh before us and so it has been reconsidered.;