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2011 DIGILAW 302 (MAD)

K. Ramalingam v. The Secretary to Government

2011-01-21

D.HARIPARANTHAMAN, ELIPE DHARMA RAO

body2011
Judgment :- Elipe Dharma Rao, J. 1. This Writ Appeal has been filed against the order dated 18.11.2009 passed in W.P. No.13084/2009, which was filed to call for the records relating to the proceedings of the Second Respondent dated 1.6.2009 and the consequential Notification issued by the Second Respondent and published in the Tamil Nadu Government Gazette Part VI – Section 2 dated 1.7.2009 and to quash the same. 2. The Appellant herein was elected as the President of Eraiyur Village Panchayat during the period 2001-2006. Again he was elected as President during the period 2006-2011. 0n 29.7.2008, the Assistant Director of Panchayat, Cuddalore, conducted an inspection in the office of Eraiyur Village Panchayat. On such inspection, he found certain documents indicating that the expenditure incurred by the President of the said Panchayat under various heads were over and above the permissible limit. Therefore, the Second Respondent issued a show cause notice dated 19.8.2008 to the Appellant herein under sub-section (1) of Section 205 of the Tamil Nadu Panchayats Act asking him to show-case as to why he should not be removed from the said post as per Section 205(1)(a) of the Act. The Appellant submitted his explanation on 12.9.2008 to the show-case notice. Finding that the explanation offered by the Appellant was not satisfactory, the Second Respondent sent a letter date 30.12.2008 to the Tahsildar to convene a meeting in the Village Panchayat. Accordingly, on 19.1.2009 the Tahsildar convened a meeting and on the same day a resolution was passed not to remove the President of the Village Panchayat. The said resolution was forwarded by the Tahsildar to the District Collector. Thereafter, on 01.06.2009, the District Collector issued the impugned order removing the president from the office of the Village Panchayat and the same was also published in the Tamil Nadu Government Gazette on 1.7.2009. Then, it was served on the Appellant on 3.7.2009. Aggrieved by the same, the Appellant herein filed the Writ Petition seeking for the relief referred to above. 3. A learned Single Judge of this Court, while setting aside the impugned order dated 1.6.2009, directed the District Collector to give further notice to the President intimating the reasons for taking a different view than the one taken by the Village Panchayat and on consideration of the cause shown by the President, to proceed further. Challenging the same, the Appellant has filed the present Writ Appeal. Challenging the same, the Appellant has filed the present Writ Appeal. 4. The main grounds related by the learned Council for the Appellant are that, the District Collector, without applying his mind to the report of the Tahsildar, had simply passed the impugned order dated 1.6.2009, which is illegal; the learned Judge, while quashing the impugned order passed under Section 205 of the Tamil Nadu Panchayats Act, ought not to have given liberty to the District Collector to re-consider the matter; the observation made by he learned Judge that show cause notice was issued to the Appellant on the basis that expenditure incurred by the Village Panchayat under various heads were in excess of the permissible limit and that the amount was spent without obtaining permission from the Appropriate Authority was incorrect; the show cause notice did not contain any allegation regarding the counter signature of the Assistant Engineer while the Appellant incurred such expenditure; the Appellant was not given any opportunity to explain as to why counter signature was not obtained from the Assistant Engineer after incurring such expenditure; the Panchayat is authorized to incur any expenditure and only if it exceeds the limit, the president has to obtain counter signature from the Assistant Engineer; the Appellant has not violated any Government Orders; the Charges found in the show cause notice were not proved; the reasons contained in the show cause notice; the impugned order had come to be passed without considering the explanation given by the Appellant and therefore, it is against the Principles of Natural Justice. 5. We have heard the learned Special Government Pleader appearing for the Respondents on the submission made by the learned Counsel appearing for the Appellant. Learned Special Government Pleader submitted that the Appellant had not obtained prior approval from the higher authorities before spending any amount in excess of the permissible limit and he had not followed the relevant Government Orders and therefore, the impugned order dated 1.6.2009 cannot be interfered with in any manner. 6. In the light of the submission referred to above, we have perused the entire materials available on record. 7. It is no doubt true that Section 205 of the Tamil Nadu Panchayats Act contemplates certain procedures to be followed by the authorities for removal of a President of Panchayat. 6. In the light of the submission referred to above, we have perused the entire materials available on record. 7. It is no doubt true that Section 205 of the Tamil Nadu Panchayats Act contemplates certain procedures to be followed by the authorities for removal of a President of Panchayat. But, in this case, it has to be found out whether the procedures contemplated under Section 205 of the Act have been followed or not. In this context, it is necessary to extract the relevant provisions contained in Section 205 of the Act. “205. Removal of President.- (1) The Inspector- (a) of his own motion, or (b) on a representation in writing signed by not less than two-thirds of the sanctioned strength if the Village Panchayat containing a statement of charges against the President and presented in person to the Inspector by any two of the members of the Village Panchayat, is satisfied that the president willfully omits or refuses to carry out or disobeys any provision of this Act, or any Rule. By-law, Regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall, by notice in writing, require the president to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice. (2) If the explanation is received within the specified date and the Inspector considers that the explanation is satisfactory, he may drop further action with respect to the notice. If no explanation is received within the specified date or if the explanation received is in his opinion not satisfactory, he shall forward to the Tahsildar of the Taluk a copy of the notice referred to in sub-section (1) and the explanation of the President if received within the specified date with a proposal for the removal of the President for ascertaining the views of the Village Panchayat. (3) The Tahsildar shall then convince a meeting for the consideration of the notice and the explanation, if any, and the proposal for the removal of the President, at the office of the Village Panchayat at a time appointed by the Tahsildar. (3) The Tahsildar shall then convince a meeting for the consideration of the notice and the explanation, if any, and the proposal for the removal of the President, at the office of the Village Panchayat at a time appointed by the Tahsildar. (8) As soon as the meeting convened under this Section is commenced, the Tahsildar, shall read to the Village Panchayat the notice of the Inspector and the explanation if any, of the President (and the proposal for the removal of the president), for the consideration of which it has been convened. (10) The views of the Village Panchayat shall be duly recorded in the minutes of the meeting and a copy of the minutes shall forthwith on the termination of the meeting be informed by the Tahsildar to the Inspector. (11) The Inspector may, after considering the views of the Village Panchayat in the regars, in his discretion either remove the President from office by notification with effects from a date to be specified therein or drop further action.” 8. Admittedly, the Appellant herein was elected as the president of Eraiyur Village Panchayat during the period 2001-2006. Again he was elected as President during the period 2006-2011. The Assistant Director of Panchayat, Cuddalore, conducted an inspection on 29.7.2008 in the office of the said Village Panchayat and on such inspection, certain documents, which were available in the Panchayat, indicated the expenditures incurred by the President under various heads were over and above the permissible limit. Therefore, the Second Respondent issued a show cause notice date 19.8.2008 to the Appellant herein under sub-section (1) of Section 205 of the Tamil Nadu Panchayats Act asking him to show cause as to why he should not be removed from the said post as per Section 205(1)(a) of the Act on the basis of the charge mentioned in the show cause notice. 9. It is not in dispute that the second Respondent issued the show cause notice as provided for under Act. The Appellant also submitted his explanation to the said show cause notice on 12.9.2008 denying the charges leveled against him. 9. It is not in dispute that the second Respondent issued the show cause notice as provided for under Act. The Appellant also submitted his explanation to the said show cause notice on 12.9.2008 denying the charges leveled against him. Sub-section (2) of Section 205 of the Act contemplated that, on receipt of the explanation from the President, if the Inspector finds it to be satisfactory, then, he can drop further action and if it is not satisfactory, then, he shall forward the same to the Tahsildar, along with his proposal for removal of the president, for ascertaining the views of the Village Panchayat. The Second Respondent forwarded the copy of the notice and the explanation offered by the Appellant, along with his proposal, to the Tahsildar. The Tahsildar, on receipt of the proposal from the Second Respondent, convened a meeting of the Panchayat on 19.1.2009. After the convening of the meeting, a resolution came to be passed. As per the said resolution, all the members of the Panchayat unanimously refused to agree with the proposal submitted by the Second Respondent to remove the president from the office. But however, the Second Respondent, in contravention of the views expressed by the members of the Panchayat and without even recording his reasons for differing with the views expressed by the members of the Panchayat, issued the impugned order dated 1.6.2009 removing the president from the office. According to the learned Counsel for the Appellant, the Second Respondent neither referred about the report of the Assistant Director in the show cause notice nor communicated the report to him. It is also his case that as per G.O.Ms. No.84, Rural Development Department dated 5.5.1998, if the amount of expenditure exceeds the limit, it can be ratified by the Assistant Engineer of the Village Panchayat and as per G.O.Ms.No.149, Rural Development Department, dated 16.7.1998, no restriction is imposed regarding the purchase of certain materials and when that being so, the Appellant had not abused the powers as president of the Pnachayat. Further, the said act of the president had been ratified by the authorities. Further, the said act of the president had been ratified by the authorities. Sub-section (1) of Section 205 of the Act clearly states that if the Inspector is satisfied that the President willfully omits or refuses to carry out or disobeys any provision of this Act, or any Rule, By-law, Regulation, or lawful order made or issued under this Act or abuses any power vested in him, then, the Inspector shall, by notice in writing, require the president to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice, In this case, there is no material whatsoever available on record to show that the act of the President in incurring the expenditures over and above the permissible limit were neither willful nor international. But the expenditures were incurred by him for the improvement and betterment of the Village himself has admitted that the expenditures incurred by him were only for the improvement and betterment of the Village Panchayat. In this context, it is relevant to refer to the decision of the Hon’ble Supreme Court of India in the case reported in State of Orissa V. Md. Illiyas, AIR 2006 SC 258 , wherein, the Supreme Court has held as follows. “10. At this juncture it is desirable to consider the true, import of the word “wilful”. An act is said to be “wilful” if it is intentional, conscious and deliberate. (See: Rakapalli Raja Rama Gopala Roa v. Naragani Govinda Sehararao, 1989 (4) SCC 255 ). 11. The expression “wilful” excludes casual, accidental, bona fide or unintentional acts or genuine inability. It is to be noted that a wilful act dose not encompass accidental, involuntary, of negligence. It must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. The expression “wilful” means an act done with a bad purpose, with an evil motive,” In the judgment reported in Tarlochan Dev Sharma v. State of Punjab, 2001 (6) SCC 260 , the Supreme Court has held as follows: “11. The expression “abuse of powers” in the context and setting in which it has been useful cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. The expression “abuse of powers” in the context and setting in which it has been useful cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be convenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse Civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is “abuse of his powers or of habitual failure to perform his duties.” The use of plural – powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase “abuse of powers” must take colour from the next following expression – “or habitual failure to perform duties.” A singular or casual aberration or failure in exercise of power is not enough; A course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is “abuse of powers” within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” 10. In the light of the above judgments of the Hon’ble Supreme Court of India, if the facts of the present case are analysed, then, we are of the opinion that the act of the President in incurring expenditures over and above the permissible limit would not attract the provisions of sub-section (1) of Section 205 of the Act. It is pertinent to note that in the resolution passed by the members of the Panchayat, it has been unanimously decided not to proceed against the president or to remove him from the office of President. Though the Second Respondent had taken a different view than the one taken by the members of the Panchayat, yet, he had recorded his reasons, for taking such a view and without giving reasons, he had removed the President from the office. Though the Second Respondent had taken a different view than the one taken by the members of the Panchayat, yet, he had recorded his reasons, for taking such a view and without giving reasons, he had removed the President from the office. The term of office of the president expires during October 2011. It is settled law that, before taking any penal action against the elected person, vested with such power, must exercise caution. In that context, the Hon’ble Supreme Court of India, in the case reported in Sharda Kailash Mittal v. State of M.P., 2010 (2) SCC 319 , has held in paragraph nos. 23 to 27, as follows: “23. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the president, Vice-president or Chairman of a Committee on four broad grounds, namely, (a) public interest; (b) interest of the Council; (c) incapability if performing his duties; and (d) working against the provisions of the Act or the Rules made thereunder. In addition, under Section 41-A(2), the State Government at the time of removal from office may also pass an order disqualifying the person from holding the office of the President, Vice-President or Chairman for the next term. The question to be determined is what is the scope of the application of Section 41-A and what us the nature of power of the Government? 24. In Tarlochan Dev Sharma v. State of Punjab, this Court while dealing with the removal of a President of the Council under the Punjab Municipal Act of 1911, held in Para 7 as under: (SCC pp 268-69) “In a democracy governed by the rule of law once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. … Removal from such am office is serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” In Para 11 this Court observed as under: (Tarlochan Dev Sharma case, SCC pp. 270-71) “11. …. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held.” In Para 11 this Court observed as under: (Tarlochan Dev Sharma case, SCC pp. 270-71) “11. …. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving dishonesty of intention is …….. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 25. For taking action under Section 41-A for removal of the President, Vice-President or Chairman of any Committee, power is conferred on the State government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office-bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power therefore, has serious civil consequences in the status of an office-bearer. 26. There are no sufficient guidelines in the provisions of section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 27. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 27. In the present case, the actions of the Appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power under Section 41-A.” 11. We find from the materials available on record that in the explanation submitted by him to the said show cause notice, he had requested the Collector to treat the expenditure incurred by him over and above the permissible limit as having been spent towards the welfare of the Village Panchayat. The said act had also been subsequently ratified. Despite the unanimous opinion expressed by the members of the Panchayat not to remove the Appellant from the office of the president, the District Collector has taken a different view and had removed him from the office of President. The learned Single Judge, relying upon a Full Bench decision of this Court in the case reported in The District Collector and Inspector of District Panchayat v. Devi Parasuraman, 2009 (4) CTC 609 , wherein, this Court has held that in the event of the Collector differing to remove the views expressed by the Village Panchayat and decides to remove the President, it is not only required to record the reasons for differing from the views expressed by the Village Panchayat but before taking any decision to remove the President, the Inspector of Panchayat is also required to provide further notice to president of the Panchayat intimating the reasons for difference and can issue notification only on consideration of cause, if any, shown by the president, set aside the impugned order and directed the Collector to issue further notice to the President intimating the reasons for taking a different view than the one taken by the Village Panchayat and on consideration of the cause shown by the President , to proceed further. As per the decision of the Full Bench of this Court referred to supra, if the Collector takes a different view than the one taken by the Village Panchayat, which he had not done. As per the decision of the Full Bench of this Court referred to supra, if the Collector takes a different view than the one taken by the Village Panchayat, which he had not done. Therefore, we are of the view that the order passed by the learned Single Judge so far as us it relates to re-considering the matter by the District Collector is concerned, is set aside. 12. For all the reasons stated above, we hold that the impugned order dated 1.6.2009 is liable to be aside and accordingly it is set aside. The Writ Appeal is allowed. No costs. Connected Miscellaneous Petition is closed.