Punjab-Haryana High Court
Sukhwinder Singh vs State Of Punjab And Others on 27 September, 2023
Neutral Citation No:=2023:PHHC:126752
CWP-18350-2018 -1- 2023:PHHC:126752
227 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-18350-2018
Reserved on : 21.09.2023
Pronounced on : 27.09.2023
Sukhwinder Singh ... Petitioner
Versus
State of Punjab and others ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Nakul Sharma, Advocate, for the petitioner.
Mr. Arun Willian, Assistant Advocate General, Punjab.
None for respondent No.6.
***
RAJESH BHARDWAJ, J.
Prayer in the present petition is for quashing the enquiry report
dated 09.02.2018 (Annexure P-3) and report dated 06.07.2018 (Annexure P-5)
submitted by the SDO, Panchayati Raj, Public Works, Samrala, District
Ludhiana, whereby, it has been held that an amount of Rs.18,73,175/- is liable
to be recovered from the petitioner and proposed action to be taken on the basis
of the said report as the conducting of enquiry is totally against the provisions
of Section 216(4) of Punjab Panchayati Raj Act (for short, 'the Act').
It has been submitted by learned counsel for the petitioner that the
petitioner remained Sarpanch of the village Nagra, Block Samrala, District
Ludhiana from the year 2008-2013. He submits that the petitioner discharged
his duties in accordance with law and during this period no enquiry etc. was
instituted against the petitioner on the allegation of embezzlement or
misappropriation of funds. He submits that though there was a complaint filed
by one Kuldeep Singh against the petitioner on the allegations of committing
irregularities/embezzlement but no enquiry was conducted regarding the same,
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however, the petitioner was shocked to receive the notice dated 25.01.2018
from the SDO(PR), Samrala, wherein, he was asked for sending the complete
record, mustroll, MB, and assessment for the year 2008 to 2013 i.e. the tenure
during which the petitioner worked as Sarpanch of the village. He submits that
notice issued is totally in violation of provisions of Section 216(4) of the Act
and initiation of the enquiry in the year 2018 after five years from the date the
petitioner ceased to be the Sarpanch, is equally violative of Section 216(4) of
the Act. He submits that the impugned report dated 09.02.2018 was submitted
by the SDO (PR), Samrala to the Deputy Chief Executive Officer, Zila
Parishad, Ludhiana, wherein, it was illegally held that an amount of
Rs.15,31,261/- was liable to be recovered from the petitioner, which is totally
against the settled principles of law being violative of Section 216(4) of the
Act. He submits that another enquiry dated 06.07.2018 was conducted by the
SDO (PR) on the complaint filed by Kuldeep Singh, wherein, it has been held
that the petitioner had committed embezzlement of Rs.18,73,175/-. He submits
that the petitioner filed an application dated 09.07.2018 are specifically praying
that the enquiry reports dated 09.02.2018 and 06.07.2018, totally malafide and
being violative of Section 216(4) of the Act, do not have any sanctity under the
law and thus, deserves to be set aside. He has relied upon the judgment of
Hon'ble Division Bench of this Court in Gurdial Singh and others vs. State of
Punjab and others, 2013(1) RCR (Civil) 139 and judgments of Single Bench of
this Court in CWP-9618-2014 titled as Sharda Kumari vs. State of Punjab and
others, decided on 13.02.2017 and in Ram Kanwar, Ex-Sarpanch of Gram
Panchayat Rai vs. State of Haryana and others, 2011(3) RCR (Civil) 436.
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On the other hand, learned State counsel has opposed the
submissions made by learned counsel for the petitioner. He has submitted that
the petitioner worked as Sarpanch of the village for the period 2008-2013. He
submits that the complaint dated 15.03.2010 against the petitioner was filed by
one Kuldeep Singh for committing various irregularities and misappropriation
of money. He submits that the complaint was filed against the petitioner when
he was working as Sarpanch of the village. He submits that during his tenure
itself cognizance of the complaint filed for alleged misappropriation and
embezzlement of Panchayat fund was taken by the Director Rural Development
and Panchayat by marking the same to the office of DDPO for further enquiry.
He submits that SDO, Samrala sent summons dated 17.10.2017 to the
petitioner to be present at the spot for assessment and measurement of various
works carried out during his tenure. He submits that inspection of the spot and
assessment and measurement of various works were carried out on 25.10.2017
in the presence of the petitioner. He submits that by duly associating the
petitioner in the enquiry, the allegations against him were found to have been
proved and thus, the SDO, Samrala held the petitioner liable for the recovery of
Rs.15,31,261/-. He has submitted that the contentions of counsel for the
petitioner, regarding second enquiry initiated against the petitioner, are also
beyond the facts and circumstances of the case. It is submitted that the
petitioner was dis-satisfied with the outcome of the enquiry conducted by the
SDO, Samrala, wherein, recovery of Rs.15,31,261/- was directed to be effected
from the petitioner, hence, he himself requested by filing an application dated
09.03.2018 for conducting the second enquiry for re-assessment of the works
by another independent officer. He submits that this request of the petitioner
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was accepted and the second enquiry was entrusted to SDO, Zila Parishad,
Ludhiana and hence, the submissions made by counsel for the petitioner
regarding second enquiry being illegal, are totally unsustainable in the eyes of
law as the same was instituted on the request of the petitioner himself. It is
submitted that after the second enquiry, the petitioner was found to be liable for
recovery of Rs.18,73,175/-. It is submitted that as the petitioner was duly joined
at every stage of enquiry, there is no violation of principle of natural justice. He
further submits that there is no violation of Section 216(4) of the Act as
contended by counsel for the petitioner. He submits that the complaint against
the petitioner was received on 15.03.2010, when the petitioner was the
Sarpanch of the village. He submits that in the first enquiry concluded, he was
found to be liable for recovery of Rs.15,31,261/-, however, it is on his request
dated 09.03.2018, the second enquiry was marked and again he was duly
associated in the same and resultantly on the conclusion of the second enquiry,
he was found liable for recovery of Rs.18,73,175/-. Thus, it is clear that the
enquiry was initiated during the tenure of the petitioner, when he was the
Sarpanch and thus, the limitation as enumerated in Section 216(4) of the Act is
not applicable in the present case as the enquiry was initiated during the tenure
of the petitioner. It was only the recovery part which remained to be effected
after the conclusion of the enquiry which was initiated during his tenure.
Heard.
After hearing learned counsel for the parties and perusing the
record, it is apparent that the petitioner remained Sarpanch of the village from
2008 to 2013. During his tenure, a complaint dated 15.03.2010 was filed by
one Kuldeep Singh on which the cognizance was taken and enquiry was
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instituted. The first enquiry continued even after his demitting the office in the
year 2013. He was associated in the enquiry conducted and then inspection,
assessment etc was conducted in the year 2017 wherein he was found to be
liable for causing loss to the Gram Panchayat to the tune of Rs.15,31,261/-. On
his request, the second enquiry was conducted and again he was found to be
liable for the payment of Rs.18,73,175/-.
For the decision of the controversy, appreciation of provisions of
Section 216 of the Act are relevant, which read as under:-
"216. Liability of members of Panchayat. (1) Every
member of a Panchayat shall be liable for the loss, waste or
misapplication of any money or property belonging to the
Panchayat, if such loss, waste or misapplication is a consequence
of his neglect or misconduct while such member and shall also be
liable to pay interest at the prescribed rate, from the date of loss,
waste or misapplication, on the amount assessed under sub-section
(2) or sub-section (3) as the case may be.
(2) The Block Development and Panchayat Officer concerned
may, on the application of a Gram Panchayat or otherwise, and
after giving the member concerned an opportunity to explain,
assess, by order, in writing the amount due from him on account
of such loss, waste or misapplication; Provided that -
(a) where such member happens to be the Chairman or a
member of the Panchayat Samiti, the proceedings under this
subsection shall be taken by the District Development and
Panchayat Officer;
(b) where such member happens to be the Chairman, Vice
Chairman or a member of the Zila Parishad, the proceedings
under this sub-section shall be taken by the Deputy
Director.
(3) Any person aggrieved by an order made under sub-section (2)
may within a period of thirty days from- the date of such order,
appeal to: -
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(a) the District Development and Panchayat Officer, if the
order has been made by the Block Development and
Panchayat Officer;
(b) the Deputy Director, if the order has been made by the
District Development and Panchayat Officer; and
(c) the Director, if the order has been made by the Deputy
Director; and on appeal being filed, the appellate authority
may suspend the execution of the order upon such terms as
to costs, payments of the amount involved or otherwise as
he thinks fit and subject to the result of appeal, if any, the
order of Block Development and Panchayat Officer, District
Development and Panchayat Officer and the Deputy
Director, as the case may be, shall be final.
(4) Notwithstanding anything contained in this section no
person shall be called upon to explain why he should not be
required to make good any loss, after the expiry of four years
from the occurrence of the loss, waste or misapplication or
after the expiry of two years from his ceasing to be a member,
whichever is later.
(5) The State Government may call and examine the record of any
order made under this section for the purpose of satisfying itself as
to the legality and propriety of such order and may confirm,
modify or rescind such order;
Provided that no order prejudicial to any person shall be made by
the State Government, unless that person has been afforded a
reason- able opportunity of showing cause against the proposed
order.
(6) The amount assessed as due from a member may, in the event
of his death, be recovered from his legal heirs to the extent of
property inherited by them from such member."
It is apparent that the complaint against the petitioner was filed by
Kuldeep Singh on 15.03.2010, when he was holding the office of Sarpanch. It
is also not in dispute that the cognizance of the said complaint was taken by the
Director, Rural Development and Panchayat who marked the same to the office
of DDPO for further enquiry. It is also not in dispute that the petitioner was
associated with the enquiry and he was very much present at the time of
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assessment and measurement of various works carried out during his tenure.
Ultimately, the allegations against the petitioner were found to be correct and
thus, SDO, Samrala assessed the loss of Rs.15,31,261/- and the same was held
to be recovered from the petitioner. Thereafter, vide the application dated
09.03.2018 filed by him, he showed his dis-satisfaction with the enquiry
conducted by the SDO, Samrala and due to this reason, second enquiry was got
conducted through SDO, Zila Parishad, Ludhiana. In the second enquiry, the
loss caused to the Panchayat was found to be Rs.18,73,175/- for which the
petitioner was held responsible. It is pertinent to mention that the petitioner
never challenged the first enquiry, rather he opted to file an application dated
09.03.2018, on which respondent-authorities got conducted the second enquiry,
in which he was again held guilty. Hence, in the considered opinion of this
Court, limitation prescribed in Section 216(4) of the Act would not be
applicable in the present case as the complaint against the petitioner was filed
on 15.03.2010, when the petitioner was discharging his duties as a Sarpanch
and cognizance of the complaint was also taken. The embezzlement and mis-
appropriation of funds caused by the petitioner during the period, when he was
working as Sarpanch stands proved in two enquiries, accordingly, the petitioner
was held liable for recovery of Rs.18,73,175/-.
The judgments relied upon by the petitioner are also
distinguishable on the facts and circumstances of the case in hand as in the case
before Hon'ble Division Bench of this Court, the tenure of the petitioner was
from 1998-2003, whereas, the impugned notice was issued to the petitioner on
08.03.2012 i.e. after the expiry of statutory limitation of Section 216(4) of the
Act.
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In the considered opinion of this Court, there is nothing wrong
with the enquiry reports Annexures P-3 and P-4 and the petitioner cannot
escape his liability for the loss caused to the Panchayat during his tenure as a
Sarpanch. Consequently, finding no merit in the present petition, the same is
hereby dismissed.
( RAJESH BHARDWAJ )
JUDGE
27.09.2023
sharmila
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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