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Gauhati High Court · body

2019 DIGILAW 642 (GAU)

N. Chumben Odyuo v. State of Nagaland

2019-05-22

SONGKHUPCHUNG SERTO

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JUDGMENT AND ORDER : 1. Heard Mr. Pokyim Yaden, learned counsel appearing for the petitioner and Ms. Lucy, learned Addl. Sr. Government Advocate appearing for the State respondents. None has appeared on behalf of the private respondent. 2. Vide order dated 24.3.2017, issued by the Deputy Commissioner, Wokha, the petitioner was appointed as Secretary VDB, Managament Committee for the village Morakjo in Wokha district for a period up to 24.3.2020 with a monthly honorarium of Rs. 1000 as per the VDB Model Rules, 1980. On 7.6.2017, the Morakjo Village Council passed a resolution to terminate the service of the petitioner as VDB Secretary on the ground that he had misused a sum of Rs. 10,94,000 from the MGNEREGA fund. Based on the resolution passed by the Village Council of Morokjo, the Deputy Commissioner vide his order dated 14.6.2017 terminated the service of the petitioner with immediate effect. Being aggrieved by the resolution passed by the Village Council based on which the termination order was issued, the petitioner has come before this court challenging both the resolution of the Village Council and the order issued by the Deputy Commissioner, Wokha. 3. Mr. Pokyim Yaden, learned counsel appearing for the petitioner has submitted that there was no misappropriation of the sum of Rs. 10,94,000 by the petitioner as alleged. In fact, a sum of Rs. 6,20,000 was extorted from him by 3 individuals for which a complaint was submitted to the Village Council of the village. But since the Village Council did not take any action, the matter was referred to Wokha P.S. and Wokha P.S. after having investigated the same has submitted a charge sheet before the court of JMFC, Wokha and the matter is pending for trial. The learned counsel further submitted that the termination order was issued without affording any opportunity of being heard to the petitioner, therefore, the same is violative of principles of natural justice. As such, on that ground alone, the termination order deserves to be quashed and set aside. 4. Ms. Lucy, learned Addl. Sr. Government Advocate submits that the petitioner was removed after he was found to have misappropriated a sum of Rs. 12,77,153 from MGNEREGA fund of Morakjo village and he was given a notice by the Village Council before the resolution for his removal was pasased. 4. Ms. Lucy, learned Addl. Sr. Government Advocate submits that the petitioner was removed after he was found to have misappropriated a sum of Rs. 12,77,153 from MGNEREGA fund of Morakjo village and he was given a notice by the Village Council before the resolution for his removal was pasased. The learned Government Advocate referred to the letter dated 13.4.2017 which is stated to have been written to the petitioner by the Village Council Chairman which is found at Annexure 3 of the affidavit-in-opposition filed by respondent Nos. 1 to 4. After referring to the letter mentioned above, the learned Government Advocate submitted that since the petitioner was given a chance to explain as to why the fund withdrawn by him have been misappropriated, the question of violation of principles of natural justice while passing the resolution and issuing of the termination order by the Deputy Commissioner, Wokha does not arise. The learned Government Advocate further submitted that the process of termination of the petitioner was as per the Nagaland Village Council Act, 1978 and the VDB Model Rules, 1980, therefore, there is no illegality in the resolution and the order of termination. 5. Under section 4 of the Nagaland Village Council Act, 1978, a Village Council shall consist of members chosen by villagers in accordance with the prevailing customary practices and usages, the same being approved by the State Government provided that hereditary Village Chiefs, GBs and Anghs shall be Ex-officio members of such Council and shall have voting right. Under section 12 of the same Act, Village Council is given powers and duties (1) to formulate Village Development Scheme, to supervise proper maintenance of water supply, roads, power, forest, education and other welfare activities, (2) to help various Government agencies in carrying out development works in the village, (3) to take development works on its own initiative or on request by the Government. 6. As empowered under the above sections of Nagaland Village Council Act, 1978, the Village Council of Morakjo village constituted the VDB of their village consisting of 17 members and appointed the petitioner as the Secretary of the Managing Committee for a term of 3 years beginning from 24.3.2017 and ending on 24.3.2020 as per the power given under rule 7 of the VDB Model Rules, 1980 made and notified by the State Government under section 50 of the Nagaland Village Council Act, 1978. Under rule 4, clause (b) of the VDB Model Rules, 1980, there shall be a Management Committee of the VDBs which shall be entrusted with the management of the Village Development Boards and the funds of the VDBs, the members of the Management Committee of the VDB shall be chosen by the Village Council. It is also provided that the tenure of the members of the Management Committee of the VDB shall be 3 years unless decided otherwise by the Village Council by resolution. Under rule 6 of the same Model Rules, the Deputy Commissioner/Additional Deputy Commissioner shall be the ex-officio Chairman of the VDB in their respective districts and independent Sub-divisions. Accordingly, the Deputy Commissioner of Wokha is the ex-officio Chairman of VDB of Morakjo village since the village falls within Wokha district. Therefore, the Deputy Commissioner, Wokha has every power to issue termination order removing a member of VDB of any village under his jurisdiction. In rule 5 of the Model Rules, 1980, it is provided that a member of the Managemnt Committee of VDB including the Secretary may be replaced or removed by a resolution of the Village Council, for reasons to be recorded in the resolution subject to the approval of the Chairman of the VDB, i.e., the concerned Deputy Commissioner or Additional Deputy Commissioner. What can be understood from these provisions of law is that for removal of a Secretary of Management Committee of a VDB a resolution has to be first passed by the Village Council and the same should be approved by the Deputy Commissioner who is the Chairman of the VDB. There is no question on the power of the Village Council of Morakjo village to pass a resolution recommending removal of the Secretary of the VDB Management Board. Further, the power of the Deputy Commissioner who is the ex-officio Chairman of the VDB to pass such order removing Secretary of the VDB also cannot be questioned in view of the provisions of law mentioned above. The only question is whether the Village Council and the Deputy Commissioner before passing such resolution or order had followed the established principles of law before such resolution or order are passed. The only question is whether the Village Council and the Deputy Commissioner before passing such resolution or order had followed the established principles of law before such resolution or order are passed. On perusal of the letter dated 13.4.2017 purportedly written by the Village Council Chairman of Morakjo Village Council to the petitioner, it appears that there is no signature of the author of the letter at any place on the face of the letter and there is also nothing to show that the petitioner had received the letter. Therefore, it is quite clear that no show cause notice or any letter asking the petitioner to explain or show cause on the charges levelled against him was given to him. Further, on perusal of the termination order dated 14.6.2017 issued by the Deputy Commissioner, Wokha, it is clear that the order was passed based on the resolution of the Village Council of Morakjo and the report of the concerned area Administrative Officer. There is no mention of having issued show cause notice or having given any formal notice to the petitioner to explain the charges levelled against him or to show cause against the charges. On perusal of both the Village Council Act, 1978 and the Model Rules, 1980, no mention is made about giving of show cause notice or chance of being heard to a person accused of having violated any of the Rules or of having misappropriated the village fund as has been discussed. However, the principles of law on this is no longer disintegra. In catena of cases, the hon'ble Supreme Court has stated specifically the provisions of principles of natural justice, it should be read into such Act or Rule. Therefore, in this case also since neither the Village Council Act, 1978 nor the Model Rules, 1980 makes no mention of principles of natural justice, the same has to be read into then. 7. As stated above, since neither the Morakjo Village Council and the Deputy Commissioner, Wokha did not give any chance of being heard to the petitioner before the impugned resolution and order were passed, the impugned resolution and the impugned termination order are violative of principles of natural justice, therefore, they have to be set aside and quashed. Accordingly, the impugned resolution and the impugned termination order are quashed and set aside. Accordingly, the impugned resolution and the impugned termination order are quashed and set aside. In consequence, the order dated 14.6.2017 issued by the Deputy Commissioner, Wokha appointing the private respondent No. 6 as VDB Secretary of the Management Committee of the Morakjo Village Council is also quashed and set aside. However, it is made clear that the Village Council and the Deputy Commissioner, Wokha may issue show cause notice to the petitioner as per law established and take up the proceedings de novo if so desired. 8. The writ petition is disposed of.