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2013 DIGILAW 970 (AP)

Shantham Swamy v. Tahasildar, Medak District

2013-11-05

DAMA SESHADRI NAIDU

body2013
Judgment : 1. The present writ petition is filed by the petitioner seeking to declare as illegal and arbitrary the distraint order dated 02.11.2010, issued by the first respondent in seeking to declare a sum of Rs.1,43,281/- towards arrears of Revenue due from the petitioner without ascertaining the amount due from him by conducting necessary enquiry. The petitioner has sought a consequential direction to set aside the distraint order dated 02.11.2010. The respondents have filed their counter affidavit and contested the matter. 2. Heard the learned counsel for the petitioner and the respondents, apart from perusal of the records. 3. The facts as obtained from the record, in brief, are that the petitioner was appointed as a Field Assistant in Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), in the year 2006, on contract basis. Later, as he was discharging his duties, the second respondent orally informed him on 01st June, 2010 not to discharge the functions assigned to the post of Field Assistant on the ground that certain amounts pertaining to MGNREGS in the Village, where the petitioner was working, were misused. Subsequently, the first respondent issued distraint order dated 02.11.2010 for recovery of Rs.1,43,281/-, which is said to be the amount allegedly misused by the petitioner. 4. The learned counsel for the petitioner has strenuously contended that neither at the stage of removal nor at the stage of issuing the distraint order seeking recovery of Rs.1,43,281/-, the petitioner was put on notice. There is an elementary denial of opportunity, offending the principles of natural justice. Thus the order impugned cannot survive and it is to be accordingly set aside. 5. Per contra, the learned Standing Counsel appearing for the respondents has contended that there was an enquiry conducted in the presence of Grama Sabha, where the petitioner had admitted his guilt and issued a letter of admission to the authorities dated 23.08.2009 praying for a lenient view to be taken in his case or not. In sum and substance, the learned Standing Counsel has submitted that since an opportunity was given and the petitioner himself admitted his guilt as to the misappropriation, it is only an empty formality or a ritualistic exercise to conduct one more enquiry. 6. The learned Standing Counsel has also brought to my notice a Memo dated 17.07.2010 said to have been issued and served on the petitioner as well. 6. The learned Standing Counsel has also brought to my notice a Memo dated 17.07.2010 said to have been issued and served on the petitioner as well. Basing on the said Memo, the learned Standing Counsel has contended that the petitioner was given an opportunity; there was a compliance with the requirement of hearing the petitioner before passing an order. 7. Regrettably, the said Memo dated 17.07.2010 shows that after taking a decision to recover the money from the petitioner on the alleged ground that he had committed certain financial irregularities, the same was communicated to the petitioner. Thus, the authorities having made up their mind and having taken a decision, they have preempted any explanation from the petitioner. It can be safely concluded that mere issuing of a Memo post factum does not satisfy the need of complying with the principles of natural justice, when the entire course of the alleged enquiry was fait accompli. 8. Be that as it may, the order impugned, i.e., the distraint order dated 02.11.2010, does not speak about any enquiry having been conducted prior to issuing of the said order. It is axiomatic that no amount of pleadings or production of material can subsequently justify an order which itself does not speak about the procedure that has been adopted. In the light of the settled proportion of law, it is desirable in the interest of justice that there shall be a due enquiry conducted into the allegations of misappropriation. Needless to say that the petitioner shall be given every opportunity to put farward his case. Taking into account the submissions made by the learned Standing Counsel, it does appear there was earlier a gram sabha conducted, where certain material was gathered, resulting in oral termination of service of the petitioner, as well as issuing of the distraint order. The respondents are not precluded from placing any reliance on the material that has come into existence in accordance with the said enquiry. However, the petitioner is at liberty to counter or dispute the material that may be used against him. The fact however remains that the petitioner has laid challenge only against passing of the distraint order, but not against his removal. Thus, confining the relief to the prayer sought by the petitioner, the petition is disposed of in the manner indicated above, i.e., to conduct enquiry vis-a-vis the distraint order. 9. The fact however remains that the petitioner has laid challenge only against passing of the distraint order, but not against his removal. Thus, confining the relief to the prayer sought by the petitioner, the petition is disposed of in the manner indicated above, i.e., to conduct enquiry vis-a-vis the distraint order. 9. In the light of the above observations, the writ petition stands disposed of and the impugned order dated 02.11.2010 is set aside. There shall be no order as to costs. 10. Miscellaneous Petitions, if any, pending in this writ petition, shall stand closed.