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2020 DIGILAW 718 (TS)

Anantha Rao Deshpande v. State of Telangana

2020-10-01

CHALLA KODANDA RAM

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ORDER : Challa Kodanda Ram, J. 1. In this writ petition, petitioner prays for declaring the order dated 21.07.2020 passed by respondent No. 2-District Collector, Nizamabad, suspending him from the Office of Sarpanch, Pochampally Gram Panchayat, Velpur Mandal, Nizamabad District, as illegal, null and void and contrary to the provisions of the Telangana Panchayat Raj Act, 2018 (for short 'the Act'), and consequently, direct the respondents to continue him as Sarpanch. 2. Learned counsel for the petitioner contends that the omissions and commissions on the part of the petitioner, as alleged in the show cause notice, are trivial in nature; that the petitioner having been elected as Sarpanch for the first time, not being aware of the niceties of the procedural aspects with regard to conducting of the Office of the Sarpanch, committed some lapse in complying with the procedural aspects; that a detailed explanation submitted by him to the show cause notice was not considered in proper perspective, more particularly, with regard to maintenance of records, responsibility, of which, is of the Panchayat Secretary but not the Sarpanch and that there is no allegation levelled against the petitioner with regard to misappropriation or misuse of funds and the petitioner had not conducted the affairs of the Panchayat efficiently. He further contends that no charges were framed against the petitioner invoking Section 37(1) of the Act, as such, the order impugned suspending him from the Office of Sarpanch pending enquiry under Section 37(5) of the Act is unauthorized and ultra vires. In support of his contention, he has placed reliance on the judgment in Yerneni Kusuma Vs. Government of Andhra Pradesh 2010 (6) ALD 737 , wherein, this Court while considering the provisions of the Andhra Pradesh Panchayat Raj Act, 1994, more particularly Section 249 thereof, which is in pari materia with Section 37, held that it is only in the process of enquiry initiated under Section 249(2), action could be taken under Section 249(6). He has also placed reliance on the judgment of the Division Bench of this Court in Madasu Ravi Vs. State of Telangana 2018 (5) ALD 235 DB as well as the order dated 09.02.2010 passed by this Court in W.P. No. 24320 of 2009. 3. On the other hand, learned Government Pleader for Panchayat Raj and Rural Development appearing for respondent Nos. 1 to 3, while placing reliance on the judgments in Janagama Shankaraiah Vs. State of Telangana 2018 (5) ALD 235 DB as well as the order dated 09.02.2010 passed by this Court in W.P. No. 24320 of 2009. 3. On the other hand, learned Government Pleader for Panchayat Raj and Rural Development appearing for respondent Nos. 1 to 3, while placing reliance on the judgments in Janagama Shankaraiah Vs. Government of A.P. and others 2011 (1) ALD 251 and M. Kavitha Vs. Government of Andhra Pradesh and others 2010 (5) ALD 750, would submit that the order of this Court in W.P. No. 24320 of 2009, referred to by the learned counsel for the petitioner, was distinguished in the judgment in Janagama Shankaraiah (supra). He would further submit that as against the impugned order, there is a remedy of Appeal available to the petitioner under Section 141 of the Act. He would also submit that enquiry has been initiated under Section 37(1) of the Act and suspension is only pending investigation, hence, the impugned order does not call for interference by this Court. 4. With respect to removal of Sarpanch from the Office under Section 37 (1) of the Act, the District Collector should come to prima facie opinion on the allegations to be enquired into and provide an opportunity for submitting/furnishing explanation therefor. Section 37(5) of the Act empowers the District Collector to pass an order suspending the Sarpanch from the Office for a period not exceeding six months, if there is breach or violation of the conditions enumerated in Section 37(1) of the Act. 5. The language employed in Section 37(5) of the Act is clear. Suspension can be ordered 'pending investigation into the charges', but it is not with respect to 'pending enquiry into the charges'. Section 37(1) of the Act is with respect to initiation of proceedings for removal of Sarpanch from the Office, whereas Section 37(5) of the Act is to meet the contingencies that may arise on account of the omissions prescribed in Section 37(1)(i) and (ii) of the Act. For better appreciation, Section 37 (1) of the Act may be noted hereunder: "37. For better appreciation, Section 37 (1) of the Act may be noted hereunder: "37. Power of District Collector to remove Sarpanch and intimate deemed removal:- (1) If in the opinion of the District Collector the Sarpanch,- (i) omitted or refused to carry out the orders of the District Collector or Commissioner or Government for the proper working of the concerned Gram Panchayat or (ii) abused his position or the powers vested in him; or (iii) is guilty of misconduct in the discharge of his duties; or (iv) is guilty of embezzlement of Gram Panchayat Funds; or (v) persistently defaulted in the performance of his functions and duties entrusted to him under the Act to the detriment of the functioning of the Gram Panchayat or has become incapable of such performance; The District Collector may remove such Sarpanch after giving him an opportunity for explanation." 6. It would be clear from the above that inasmuch as the enquiry, which may ultimately result in removal of Sarpanch, may take substantial time and in the interregnum, the affairs of the Panchayat cannot be jeopardized, by specifying the time period not exceeding six months, suspension pending investigation has been envisaged in Section 37(5) of the Act. Even the said power is required to be exercised by the Collector consciously, after gathering material and coming to the prima facie opinion that the information gathered by way of investigation or preliminary enquiry warrants suspension of the Sarpanch. In other words, when continuation of the Sarpanch in the Office is prejudicial to the affairs of the Panchayat, a notice is required to be issued to the Sarpanch calling for explanation as to why his/her suspension shall not be ordered. 7. Be that as it may, the scope of appreciation by this Court with respect to the prima facie findings recorded by the Collector is only supervisory and limited and it should not sit in appeal over the findings recorded by the Collector except in the cases of clear violation of law. Further, since a detailed enquiry is specified under Section 37(1), while passing suspension order under Section 37(5), there is no need to explain the reasons therefor. 8. Further, since a detailed enquiry is specified under Section 37(1), while passing suspension order under Section 37(5), there is no need to explain the reasons therefor. 8. The judgment of this Court reported in Yerneni Kusuma (supra) as well as the judgment of the Division Bench of this Court in Madasu Ravi (supra) would only mention about the suspension being effected and the procedure to be followed. As a matter of fact, in Yerneni Kusuma (supra) while dealing with the contention that the impugned suspension order lacks reasons, and the same is the result of non-application of mind, this Court had held in paragraph 12 of the judgment as under: "12. ...... The reasons need not be elaborate nor such authorities who in most of the cases are not legally trained are not expected to appreciate the nuances and subtleties of law. If a quasi-judicial authority determines the facts, determines the principles applicable and applies the principles to determined facts in a reasonable manner, the Court of judicial review is precluded from considering the issue. The possibility of a second or third view in determining the facts and applying the principles of the facts is not ordinarily within the purview of judicial review. Insofar as determining the principle of law applicable to the case squarely falls within the species of "error of law" and amenable to judicial review. If a quasi judicial authority misconstrued the law, the Court can always set right. In any view of the matter, the judicial review cannot act as an appellate authority." 9. In other words, the opinion that is required to be formed by the District Collector is an objective opinion and prima facie opinion that pending further enquiry into the allegation and pending investigation, the continuation of an individual as Sarpanch would not be in the interest of Gram Panchayat, as what all is required is not an elaborate consideration at this stage. However, the District Collector is required to keep in view the functions to be discharged by the Sarpanch by exercising powers vested in him under Section 32 and 44 of the Act, and keeping in view the functions of the executive authority (the Panchayat Secretary) in terms of Section 43 of the Act. These aspects were in fact elaborated in relation to the erstwhile A.P. Panchayat Raj Act, by this Court in Yerneni Kusuma (supra). These aspects were in fact elaborated in relation to the erstwhile A.P. Panchayat Raj Act, by this Court in Yerneni Kusuma (supra). Further, the judgment in Janagama Shankaraiah (supra) is not in conflict with the judgment in Yerneni Kusuma (supra) and, as a matter of fact, further explains by drawing a fine distinction between the enquiry under Section 37(1) and action to be taken pending investigation which may lead to further enquiry for removal of Sarpanch in terms of Section 37(1) of the Act. Further, the distinction, which was pointed out by this Court in Janagama Shankaraiah (supra) was not in issue and did not fall for consideration before the Division Bench of this Court. A close reading of the Division Bench judgment in Madasu Ravi (supra) case would disclose that the facts in the said case were different. 10. In Madasu Ravi (supra), challenge was to the removal of Sarpanch invoking Section 249(6) of the Act on the ground that the Sarpanch was arrested and thus being a public servant within the meaning of Section 258 of the Act cannot continue in office. The same would be clear if one peruses the order of the learned single Judge of this Court in W.P. No. 7260 of 2018 dated 12.03.2018, wherein the learned single Judge had held that while Sarpanch could be held to be a public servant, the provision to suspend from office, invocation of power under Section 249(6) of the Act is ultra vires. While discussing the case, the Division Bench in paragraph 6 had mentioned about Section 249(6). This aspect would be clear from the observations of the Division Bench in Paragraph 10 of the judgment which is as under: "10. That, however, does not mean that the 5th respondent-writ petitioner can avoid an enquiry being caused against him, for the power to impose punishment under Section 249(1) of the Act is independent of the power to place a Sarpanch under suspension under Section 249(6) of the Act. Sri S. Rahul Reddy, learned Counsel for the 5th respondent-writ petitioner, would submit that the 5th respondent-writ petitioner would fully co-operate in the enquiry, and make available all such records as are required by the enquiry officer. Sri S. Rahul Reddy, learned Counsel for the 5th respondent-writ petitioner, would submit that the 5th respondent-writ petitioner would fully co-operate in the enquiry, and make available all such records as are required by the enquiry officer. Suffice it, therefore, to make it clear that it is open to the District Collector to take all such steps, as are available to him in law, to ensure that the enquiry initiated against the 5th respondent-writ petitioner, is continued unhindered, and is completed at the earliest. Subject to the aforesaid observations, the writ appeal fails and is, accordingly, dismissed. Miscellaneous petitions pending, if any, shall also stand dismissed. There shall be no order as to costs." 11. It may be noted that Section 37(5) of the Act can also be viewed independently, as, before initiating proceedings under Section 37(5) of the Act, the District Collector is required to come to a prima facie opinion that the facts warrant initiation of proceedings under Section 37(1)(i) and (ii) of the Act and thereafter, he is required to make further investigation into the allegations by gathering necessary information so as to arrive at the definite opinion that continuation of Sarpanch would not be in the interests of the Panchayat, as long as the opinion formed is an objective opinion, and there is a prima facie basis for forming such opinion, keeping in view the powers and functions to be discharged by a Sarpanch in relation to the Gram Panchayat. Then only, suspension not exceeding for six months shall be ordered. It should be borne in mind that suspension up to the period of six months is not a measure of punishment, but it is only to enable the authorities to conduct investigation with respect to the charges framed under Section 37(1)(i) and (ii) of the Act smoothly. 12. At the cost of repetition, in the present case, enquiry has already been initiated under Section 37(1) of the Act and suspension pending investigation has been ordered under Section 37(5) and the enquiry is yet to be concluded. 13. In those circumstances, this Court is not inclined to interfere with the impugned order, at this stage. 12. At the cost of repetition, in the present case, enquiry has already been initiated under Section 37(1) of the Act and suspension pending investigation has been ordered under Section 37(5) and the enquiry is yet to be concluded. 13. In those circumstances, this Court is not inclined to interfere with the impugned order, at this stage. However, it is directed that the enquiry with respect to the allegations levelled against the petitioner is to be completed in all respects by the District Collector within a period of six weeks from the date of receipt of a copy of this order and he shall pass appropriate orders on merits after giving due opportunity to the petitioner. 14. Subject to the above, the writ petition is disposed of. 15. Miscellaneous Petitions, if any pending, shall stand closed. There shall be no order as to costs.