IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.26233/2019 (LB-RES) BETWEEN:
Smt.Manjula.B.M. W/o Sri.Suresh.A.C Aged about 35 years, Resident of Agalakote Village, Kasaba Hobli, SSMC Post – 572107, Tumkur Taluk & District.
…Petitioner (By Sri.Harish Kumar.M.J, Advocate) AND:
1. State of Karnataka Represented by its Principal Secretary, Department of Rural Development and Panchayath Raj, Vidhana Soudha, Dr.Ambedkar Veedhi, Bengaluru – 560001.
2. The Chief Executive Officer, Jilla Panchayath, Tumkur, Tumkur District – 572100.
3. The Executive Officer, Taluk Panchayath, Tumkur Taluk & District – 572100.
4. Panchayath Development Officer, Heggere Grama Panchayath, Tumkur Taluk & District – 572107.
5. Lakkamma, W/o Rangahanumaiah, Aged about 55 years, Member, Heggere Graman Panchayath, Heggere, Kasab Hobli, Tumkur Taluk & District – 572107.
6. Devaraju, S/o Sundaraiah, Aged about 45 years, Member, Heggere Graman Panchayath, Heggere, Kasaba Hobli, Tumkur Taluk & District – 572107.
...Respondents (By Sri.M.A.Subramani, HCGP for R1 Sri.A.Nagarajappa, Advocate for R2 to R4 Sri.T.A.Karumbaiah, Advocate for R5 and R6) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed by the R-1 on 20.03.2019 vide Annx-D. and etc.
This Petition coming on for Orders this day, the Court made the following:
O R D E R The petitioner who is the president of Heggere Grama Panchayath has challenged the order at Annexure-D passed by the respondent – State under Section 48(4) and Section 43A(1)(i)(iii) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, whereby the petitioner has been removed from the membership and consequently as the President of the Gram Panchayath. The show cause notice came to be issued with respect to alleged irregularities on 01.01.2018, copy of which is produced at Annexure-R3 to the statement of objections filed by the respondent No.1. In response to the said show cause notice, reply to the show cause notice has been annexed at Annexure-R4 dated 27.01.2018. There is also a reference in the said reply to the earlier reply given on 26.10.2017 to the Chief Executive Officer. Subsequent to the reply to the show cause notice the enquiry proceedings were commenced and notice was issued as per Annexure-R5. Proceedings were conducted as stipulated on 29.01.2019, the record in the order sheet is as follows:
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Consequent there to, the impugned order has been passed.
2. It is the contention of the petitioner that there was no effective enquiry and on 29.01.2019, no doubt the petitioner was present but without there being any substantive and effective proceedings on the said date, impugned order has been passed.
3. Learned counsel for the petitioner submits that the opportunity of personal hearing that is stipulated under Section 48(4) of the Act ought to be complied with by way of effective personal hearing and the nature of allegations made relating to mis-utilization of funds and also relating to non obtaining of quotation before availing of services and purchase are such that an opportunity of leading evidence as regards the said allegations ought to have been afforded.
4. It is further submitted that necessary reply has been made out with reasons as regards not conducting meeting on two occasions which is one of the main allegations.
5. Learned High Court Government Pleader would submit that the question as regards to non- convening of the meeting, Section 62 of the Act casts an obligation on the President to convene a meeting and reasons given in the reply to the show cause notice even otherwise are not acceptable.
6. It is further contended that the impugned order has been passed on the basis of the statements made by the concerned officials and that finds a reference in paragraph 2 at page 16 of the petition.
7. It is further submitted that the statement of the Executive Officer, Taluk Panchayath, the statement of the earlier Panchayath Development Officer, Heggere Grama Panchayath and so also the statement of the Panchayath Development Officer, Heggere, had been obtained and in light of the same, impugned order has been passed.
8. Records have been obtained by learned High Court Government Pleader relating to the enquiry proceedings. It is submitted that despite the observations at paragraph 2 of the impugned order at page 16 no such statements are found in the file. The findings in the impugned order as regards to the allegations made against petitioner are stated to be on the basis of such statements, if that were to be so, it is clearly a lapse in conduct of the enquiry. The findings which are stated to have been made on the basis of the statements which are not available in the record is a perverse finding. The petitioner has also replied to the show cause notice giving out reasons for his non-convening of the meeting. The said aspect of the matter as to whether reasons assigned are sufficient or otherwise has also not been adjudicated upon in an appropriate manner. It is also noted that the consequences that would visit an elected member if he is disqualified are grave and hence, full meaning ought to be given to the requirement of opportunity of personal hearing.
9. Taking note of the observations made in Writ Petition No.20304/2018, the impugned order is set aside.
10. However, respondent No.1 is at liberty to initiate fresh enquiry proceedings from the stage subsequent to notice at Annexure – R5. Fresh date of enquiry is to be stipulated. It is submitted that the authority is desirous of continuing with the enquiry.
11. In light of the above submission, the parties to appear before the respondent No.1 on 03.01.2020 at 3.00 p.m., without awaiting for fresh notice.
12. It is made clear that wherever there are allegations regarding non-performance of statutory function or malfeasance regarding discharge of statutory duties of elected representatives, enquiry must be conducted expeditiously after affording necessary opportunity as stipulated under law.
13. The enquiry to be conducted and concluded by respondent No.1 within the period not later than 3 months from the date of appearance of the party.
Accordingly, the petition is dispose off subject to the above observation.
Sd/- JUDGE NS