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2021 DIGILAW 74 (TS)

Purumalla Srinvas v. State of Telangana

2021-03-09

T.AMARNATH GOUD

body2021
ORDER : 1. In this Writ Petition the petitioner assails the Notices No.A5/2346/2021-PW-2, Dated 29.01.2021 and A5/2346/2020-PW-1, Dated 24.11.2020 purporting to be a notice issued u/s 37 (1) of Telangana Panchayat Raj Act, 2018, of the District Collector, Karimnagar, asking the petitioner to show cause why he should not be removed from the post of Sarpanch, Bommakal Gram Panchayat, and to quash the same as the notices are illegal without jurisdiction and violative of principles of natural justice. 2. The petitioner asserts that he is Sarpanch of Bommakkal Gram Panchayat of Karimangar Mandal. His case is that initially a show cause notice dated 23.10.2020 was issued to the petitioner under Section 37 (1) of the Telangana Panchayat Raj Act, 2018 (for short ‘the Act’) asking him to give his explanation as to why he should not be removed from the post of Sarpanch, which notice was assailed in Writ Petition No.19772 of 2020 wherein this Court quashed the said notice by order dated 10.11.2020, leaving it open to the respondents to take action if any in accordance with law. 3. Thereafter, the petitioner was served with two identical notices dated 24.11.2020 and 29.01.2021 by quoting a report of Three Member Committee dated 16.10.2020 and also a letter addressed by the Station House Officer, Karimnagar, dated 20.10.2020 to which the petitioner gave replies on 10.12.2020 and 09.02.2021. 4. The grievance of the petitioner is that both the impugned notices were predetermined notices and that he was not put on notice about the irregularities if any on his part and that the Three Member Committee submitted the report behind his back. It is the further case of the petitioner that the report of the Three Member Committee discloses that an enquiry was conducted wherein oral and documentary evidence was adduced. But he was not given an opportunity to confront the witnesses. Hence the Writ Petition. 5. The District Gram Panchayat Officer, Karimangar the 4th respondent herein, filed counter, inter alia, contending that the people of the Gram Panchayat submitted several complaints against the petitioner and several news items were also published in local news papers on the irregularities committed by the petitioner being Sarpanch of Bommakkal village. Hence the Writ Petition. 5. The District Gram Panchayat Officer, Karimangar the 4th respondent herein, filed counter, inter alia, contending that the people of the Gram Panchayat submitted several complaints against the petitioner and several news items were also published in local news papers on the irregularities committed by the petitioner being Sarpanch of Bommakkal village. Basing on the same, the District Collector appointed a Three Member Committee to look into the said irregularities and that the Committee having conducted an enquiry into those complaints submitted a report to the District Collector on 16.10.2020. He further submitted that the report of the Committee disclosed that the petitioner committed several irregularities and is guilty of misconduct as he took bribes from the villagers for granting permission to construct house by forging the signature of the Panchayat Secretary. The petitioner was also arrested in several criminal cases and was in jail for a considerable period of time. It is further submitted in the counter affidavit that the District Collector prima facie opined that the petitioner committed certain irregularities and illegalities which attract the provisions of Section 37 of the Act and therefore initiated action against the petitioner for his removal from the post of Sarpanch and accordingly issued the impugned notice dated 24.11.2020 under Section 37 (1) of the Act. It is further submitted that the District Collector while initiating action under Section 37 (1), has issued another notice to the petitioner under Section 37 (5) of the Act calling for his explanation by duly furnishing the copies of the preliminary report submitted by the Committee dated 16.10.2020. It is further submitted that the petitioner though submitted his explanation on 15.02.2021, pending consideration of the explanation, approached this court and filed this Writ Petition. 6. The learned counsel for the petitioner submitted that the petitioner was not furnished the material allegedly evidencing his involvement in illegal acts thereby warranting his removal from the post of Sarpanch. He further submitted that the impugned notices are given with political motivation and that both the notices are predetermined notices. The petitioner was not given any opportunity of hearing nor was put on notice about the alleged irregularities. He further submitted that the impugned notices are given with political motivation and that both the notices are predetermined notices. The petitioner was not given any opportunity of hearing nor was put on notice about the alleged irregularities. He, by relying on the ratio laid down in Oryx Fisheries (P) Ltd., vs. Union of India, (2010) 13 SCC 427 , submitted that while issuing show cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and especially when he has the power to take a punitive step against the person after giving him a show cause notice. 7. On the other hand, the learned Government Pleader for Panchayat Raj submitted that the respondents issued notices to the petitioner and gave reasonable opportunity and there is no violation of principles of natural justice. That there are 22 criminal cases against the petitioner and that he was arrested and detained in jail for a considerable time for his involvement in criminal acts and deeds. Basing on the seriousness of the matter and basing on the complaints received, the second respondent has appointed a Three Member Committee to go into the irregularities committed by the petitioner and that the said Committee having conducted an enquiry submitted its report to the second respondent. He further submitted that the report submitted by the Committee discloses that the illegal acts committed by the petitioner resulted a great pecuniary loss to the gram panchayat funds due to the improper/less collection of permission fee and under valuation of property to a tune of Rs.29.00 lakhs and odd. Basing on the said report, the second respondent has issued the impugned notices to the petitioner calling for explanation on the said irregularities. Therefore, there is no irregularity or illegality in the impugned notices warranting interference of this court under Article 226 of the Constitution of India. 8. He relied on the ratio laid down in B.Chandrasekhar and Ors. Vs. Govt. of A.P. Secretariat, Hyderabad and Ors., (1997) 6 ALD 93 , Janagama Shankaraiah Vs. The Govt. of A.P. and Ors., 2010 (3) UPLJ 216 (HC), M. Kavitha Vs. Government of Andhra Pradesh and Others, (2010) 5 ALD 750, Sukanta Bhoi Vs. State of Orissa and Others, AIR 2000 Ori 28 and Akshay Lal Rai Vs. Vs. Govt. of A.P. Secretariat, Hyderabad and Ors., (1997) 6 ALD 93 , Janagama Shankaraiah Vs. The Govt. of A.P. and Ors., 2010 (3) UPLJ 216 (HC), M. Kavitha Vs. Government of Andhra Pradesh and Others, (2010) 5 ALD 750, Sukanta Bhoi Vs. State of Orissa and Others, AIR 2000 Ori 28 and Akshay Lal Rai Vs. State of U.P. thru Secy., and Others, 2019 SCC OnLine All 4758. 9. For better appreciation of the rival contentions, this Court feels it apposite to extract hereunder the relevant provision of law. Section 37 (5) of the Act reads as under: If the District Collector is of the opinion that a Sarpanch of a Gram Panchayat omitted or refused to carry out the orders of Government for the proper working of the concerned Gram Panchayat or abused his position or the powers vested in him, and that the further continuance of such person in office would be detrimental to the interests of the concerned Gram Panchayat or the inhabitants of the village, the District Collector, by order, suspend such Sarpanch from office for a period not exceeding six months, pending investigation into the said charges and action thereon under the foregoing provisions of this section: Provided that no order under this sub-section shall be passed unless the person concerned has had an opportunity of making a representation against the action proposed. Section 37 (1) of the Act reads as under: 37. Powers 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. 10. 10. Though it is not necessary for this Court to refer to the earlier round of litigation between the parties in this Writ Petition, yet it is to be noticed the material irregularities which the authorities are often and often committing. In W.P.No.19772 of 2020 the petitioner assailed the notice dated 23.10.2020 issued under Section 37 (5) of the Act wherein it was observed that the jurisdiction was exercised by District Panchayat Officer instead of District Collector. 11. A glance at the impugned notices would disclose that they are conclusive proof because in the notices it was mentioned that the petitioner involved in certain irregularities detrimental to the official duties being sarpanch thereby caused loss to the exchequer. Further, the so called Three Member Committee was appointed unilaterally that too when the petitioner was in jail. 12. Further, in the impugned notices the language employed is that the District Collector, the second respondent is satisfied with the report submitted by the Three Member Committee and hence he intends to proceed against the petitioner. However, the notices do not show that the District Collector applied his mind and came to the conclusion that the petitioner has committed such irregularities without drawing an inference. It appears that a final conclusion is made even before the submission of explanation. The show cause notice is of conclusive in nature against the petitioner holding him guilty behind his back. It is all predetermined. The District Collector, it seems, has not caused any enquiry independently and was satisfied that the petitioner has committed the irregularities. He simply gave the notices basing on the report submitted by the Committee. 13. Moreover, in the instant case, instead of issuing notice under Section 37 (5) of the Act first, a show cause notice was issued under Section 37 (1) of the Act directly for removal. The first show cause notice dated 24.11.2020 was under Section 37 (1) and the second notice dated 29.01.2021 was under Section 37 (5) of the Act. Both the notices show that the District Collector was predetermined that the petitioner has committed certain irregularities. Power under Section 37 (1) is to be exercised after the delinquent was given an opportunity for explanation. In the instant case, the first notice was given for removal and the second notice was given for suspension. Both the notices show that the District Collector was predetermined that the petitioner has committed certain irregularities. Power under Section 37 (1) is to be exercised after the delinquent was given an opportunity for explanation. In the instant case, the first notice was given for removal and the second notice was given for suspension. No charges were framed for offering explanation and for causing any enquiry on specific charges. The proviso to Section 37 (5) says that no order under this sub-section shall be passed unless the person concerned has had an opportunity of making a representation against the action proposed. Section 37 (1), which deals with the power of the District Collector for removal of Sarpanch also says that the District Collector may remove such Sarpanch after giving him an opportunity for explanation. In identical circumstances, the Hon’ble apex Court held in Oryx Fisheries held as follows: 27. It is no doubt true that at the stage of show cause notice, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony. 28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. 31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 14. As was observed by the Hon’ble apex Court in the above case, in the instant case the impugned notices were given as a conclusive proof that the petitioner committed the alleged offences but not levelling any charges that he committed so and so irregularities. Such a practice should be deprecated. Unless and otherwise the petitioner is given opportunity of hearing to put forth his defence the action of the respondent authorities cannot be said a fair play. It is not known why the first two notices were given under Section 37 (1) for removal and the third notice was given under Section 37 (5) for suspension. Of course, the cause of action and the sum and substance of all the notices is similar directly stating that the alleged irregularities or the fraud was proved. The impugned notices were issued to the petitioner as a punitive measure but not as if giving him an opportunity by calling for his explanation. It is to be noticed that the cause of action for all the notices is same. When it is already decided that the petitioner has committed the alleged irregularities then what is the necessity to call for his explanation is not known. 15. The decisions relied on by the learned Government Pleader are of no use for the reason that in all the cases the delinquent was given show cause notice before proceeding and the delinquent submitted his explanation thereto. In the case on hand, the petitioner was given show cause notice with a predetermined and conclusive decision that he committed certain fraud or irregularities. In the case on hand, the petitioner was given show cause notice with a predetermined and conclusive decision that he committed certain fraud or irregularities. Therefore, they are not relevant for the purpose of deciding this case. This court has no hesitation to say that the action of the respondents against the petitioner is like witch hunting. 16. Having regard to the facts and circumstances of the case, this Court is of the view that the respondent authorities have not followed the procedure strictly in accordance with the procedure and hence the impugned notices are liable to be set aside. 17. In the result the Writ Petition is allowed setting aside the Notice No.A5/2346/2021-PW-2, Dated 29.01.2021 and A5/2346/2020-PW-1, Dated 24.11.2020 of the second respondent. Rule Nisi is made absolute accordingly. No order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.