G. K. MAHADEVAPPA v. STATE OF KARNATAKA — 1974 DIGILAW 132 (KAR)

( 1 ) THIS petition under Art. 226 is directed against an order dt. 6-12-1973 made under Sec. 114 (4) of the Karnataka Village Panchaya. ts and Local boards Act, 1959 (called shortly 'the Act' ). By the said order, the Govt. have removed the petitioner from the office of the President, Taluk Development board, Tarikere, and also from the Membership of the Taluk Board. on the ground that he has committed some misconduct or acted negligently in the discharge of his duties as the President. ( 2 ) THE facts relevant for the purpose of disposal of the petition are: the petitioner applied for a subsidy of Rs. 200 on 25th March 1969 in respect of a model cattle shed said to have been constructed by him at Gejjegondanahalli, a village in his taluk. The Veterinary Inspector, Ajjampur, recommended the subsidy stating that the petitioner hag constructed the cattle shed. The Block Development Supervisor also recommended the payment thereafter, the amount of Rs. 200 was paid to the petitioner on 30-3-1969 by the Block Development Officer, Tarikere. It appears that there was some complaint against the petitioner that he has not constructed the cattle, shed though he has taken the subsidy for the same. The Asst. Commr. made an enquiry on the complaint and submitted a report on 3-4-1970 to the Govt. stating that the petitioner has not constructed the model cattle shed. On the basis of that report, the Govt. issued a notice dt. 18-7-1973 stating thus:"government of Mysore No. DPC 19 BAD 73 mysore Govt. Secretariat, Vidhana Soudha, Blare dt. 18th July 73 notice wherees you Sri G. K. Mahadevappa, President, Taluk Development board, Tarikere took a subsidv of Rs 200, on 30-3-69 for construction of a model cattle shed at Gajjegondanahalli which was not constructed at all and you showed an old as having been constructed newly on a site which was not owned by you but was standing in the name of Sri Siddappa and further no licence was applied for nor granted for construction of the model cattle shed, thereby you misused vour office (by using official influence) and misused the subsidy of Rs 200 This act of yours amounts to misconduct. You are hereby remired to show-cause within ten days from the receipt of this notice as to whv you should not be removed from the Office of the president Taluk Development Board, Tarikere, for misconduct under section 114 (4) of the Mysore Village Panchayats and I ocal Boards Act, 1959 the reply should be sent to the Secy to Govt , Development, Housing, panchayat Raj and Co-open. Dept , Vidhana Soudha, Bangalore -1 If no reply is received within the period specified above, it will be presumed that you have nothing to say in this behalf and further action will be taken in the matter. Sd. J. B. Chaugule under Secy to Govt, DHPC Dept. "in his reply dt. 7-8-1973, the petitioner has denied the, allegations made in the show cause notice. He has stated that he is the owner of the site and he has constructed the cattle shed by using the subsidy taken by him. He has also taken the contention that, assuming that the cattle shed was not constructed, it did not amount to a misuse of office amounting to misconduct calling for action under S 114 (4) of the Act ( 3 ) THEREAFTER, the petitioner was heard and the Govt made the impugned order dt. 6-12-1973 staging that the petitioner has withdrawn the, subsidy, but not constructed the shed, which amounts to either misconduct or negligence in the discharge of his duties thereby making himself liable for removal from his office, as President under S 114 (4) of the Act accordingly, he was removed from the office of the President, TDB, tarikere and also removed from the membership of the Taluk Board. ( 4 ) THIS petition now brought under Art. 226 is primarily on two grounds : (i) That the misuse of the subsidy cannot amount to misconduct calling for an action under S. 114 (4) of the Act; and (ii) That the impugned order is vitiated by the consideration of the report of the Asst Commr, in respect of which the petitioner has had no opportunity to explain. ( 5 ) IN my opinion, both the contentions are well founded and must be accepted as correct. ( 5 ) IN my opinion, both the contentions are well founded and must be accepted as correct. ( 6 ) S 114 (4), of the Act provides:* * * * section 115 provides: * * * * ( 7 ) BEFORE I proceed to consider the contentions, urged for the petitioner, it is necessary to refer to the stand taken by Sri Puttaswamy for the Respondent. He sought to justify the impugned order on the ground that the petitioner's withdrawal of the subsidy, itself amounted to misconduct within the meaning of S. 114 (4) of the Act. He said that the petitioner was not entitled to the subsidy and he has drawn the same from the Fund relating to the Development Block, which he was required to supervise as provided by S. 130 (2) of the Act. In my view, this is entirely a new case against the petitioner. It ig true that it is the duty of the Taluk Board to supervise and control the activities relating to the administration of the Development Block, if any, in accordance with such general or special orders made by the Govt in that behalf. But there was no charge against the petitioner that he has taken the subsidy which he was not entitled to. The report of the Asst commr, the allegations in the show cause, notice issued to the petitioner, and the statements in the impugned order, all go to show that the petitioner who was entitled to the subsidy for constructing a model cattle shed has failed to construct it, even after he has withdrawn the amount. There is, therefore, no substance in the contention urged for the State that the petitioner's withdrawal of the subsidy itself amounted to misconduct. ( 8 ) LET me assume that the cattle shed was not constructed by the petitioner as per the model scheme though there is much dispute on that point. Could that be a ground to take action under S. 114 (4) is the next question for consideration. What calls for an action under S. 114 (4) of the Act is that the president must have committed misconduct in the discharge of his duties or he should be guilty of neglect of or incapacity to perform his duties, or he should be persistent by remiss in the discharge of his duties. What calls for an action under S. 114 (4) of the Act is that the president must have committed misconduct in the discharge of his duties or he should be guilty of neglect of or incapacity to perform his duties, or he should be persistent by remiss in the discharge of his duties. The duties referred to under S. 114 (4) of the Act, are pertaining to the Offfice of the president. Those duties Are set put under S. 115 which provides that he shall preside at the meeting of the Board and all its standing committees; he shall watch over the financial and executive administration of the Board and exercise general supervision and control, and shall submit to the Board all questions which require its sanction. Besides there may be other duties which the Board might delegate to the President. The conduct of the president in relation to such public duties alone could form the foundation for taking action against him and npt the performance or non-performance of any act unconnected with the office of the President. S. 114 (4) is founded on a sound political philosophy. Persons holding public offices, must set examples to others, by their devotion to duties and any deviation therefrom, would entail the penal consequences. That appears to be the laudable object with which the Legislature has enacted S. 114 (4 ). Since the action contemplated therein, is penal in nature the provisions thereof, like all penal statutes, should be construed strictly, or at any rate, to be fairly construed according to the Legislative intent as expressed in the section. The action under S. 114 (4) is not merely to remove the president from the public office but also to remove him from the membership of the Board. It involves really a grave consequence to a person on whom the electors have pinned their faith. If therefore, there is a reasonable interpretation which will avoid the penalty in a particular case, the Courts must adopt that construction. If the acts complained of are of ambiguous nature or of doubtful meaning or are such that they are not clearly embraced by the provisions of Sec. 114 (4) to benefit of it must be given to the president. With these principles in mind let me examine the. question. The petitioner like all others who are entitled to the subsidy has drawn the money. With these principles in mind let me examine the. question. The petitioner like all others who are entitled to the subsidy has drawn the money. But he has not spent the money for the purpose for which it was meant. He has not constructed the model cattle shed. But the construction of a model cattle shed is no part of the powers or duties of the President and therefore the action taken against him for his removal was wholly illegal and without authority of law. ( 9 ) THIS takes me on to the next contention whether the impugned order was vitiated by the consideration of the report of the Asst Commr in respect of which the petitioner has had no opportunity to explain. It is admitted before me that the petitioner was not furnished with a copy of the said report; nor it was disclosed to the petitioner at any time that there was such a report against him. It was for the first time that the Govt made 3 reference in the impugned order regarding the witnesses examined by the asst Commr and his opinion thereon. The entire order of the Govt was based on the conclusion reached by the Asst Commr on the disputed question of construction of the cattle shed. The records of the enquiry has been produced before me and I find therein that the Asst Commr has not held a regular enquiry with opportunities to the petitioner to controvert the statements of the witnesses examined by him. His sppt inspection to the site of the cattle shed was not in the presence of the petitioner or with previous notice to him. Mr. Puttaswamy however contended that the substance of the report was disclosed to the petitioner in the show cause notice given to the petitioner and therefore no prejudice was caused to him. But it is seen that the show cause notice significantly made no reference to the said report. In these circumstances it is difficult to hold that the petitioner was not prejudiced. The entire proceedings of the Govt was based on the report of the Asst Commr on a disputed question of fact and the Govt could npt have relied upon that report without affording an opportunity to the petitioner to have his say against it. In these circumstances it is difficult to hold that the petitioner was not prejudiced. The entire proceedings of the Govt was based on the report of the Asst Commr on a disputed question of fact and the Govt could npt have relied upon that report without affording an opportunity to the petitioner to have his say against it. That should have been the barest minimum which ought to have been complied with by the Govt before making the impugned order. The impugned order was therefore vitiated by the consideration of materials on which the petitioner had no opportunity to explain. ( 10 ) IN the result the petition is allowed. The impugned order is quashed. The petitioner is entitled to his costs. Advocates fee is Rs. 100. 00. --- *** --- .