Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents.
2. The petitioner has stated that she had been elected as the Vice President of Mathur Village Panchayat, during the year, 2006. She has been carrying on the functions, as the Vice President of the said Panchayat, from the year 2006. One Thanga Pandian, who is a permanent panchayat clerk in Mathur Village Panchayat and who has been in service for more than 16 years, has been guiding the petitioner in carrying on her duties. While so, the Government of India had introduced the "National Rural Employment Guarantee Act", through which the "National Rural Employment Guarantee Scheme" had been formulated.
3. The petitioner had also stated that Mathur Village Panchayat had been selected for the implementation of the National Rural Employment Guarantee Scheme, during the financial year, 2008-2009 and funds had been allotted for the implementation of various development works in the village panchayat. Since the petitioner was not fully conversant with the rules and regulations applicable to the functioning of the village panchayat and due to the fact that the petitioner being a muslim lady, various functions and works had been entrusted to the panchayat clerk, Thangapandian, during the month of March, 2009. Accordingly, various works were being allotted to the panchayat clerk, by the second respondent. The cheques for the works carried out were being signed by the petitioner and the president of the village panchayat, namely, Elango. The petitioner, as well as the President of the village panchayat, were under the belief that the release orders produced by him were genuine. Without suspecting any malpractice, the petitioner and the President of the village panchayat had been signing the cheques for the works alleged to have been carried out. There were no complaints, whatsoever, either from the beneficiaries or from the general public. Therefore, the petitioner was under the impression that the functions and the works, carried on by the panchayat clerk, were in order.
4. While so, the Deputy Block Development Officer (Village Panchayat), Madurai East Panchayat Union, had conducted an inspection, on 15.4.2009, in Mathur Village Panchayat. At the time of the inspection, the petitioner, as well as the panchayat clerk, Thangapandian, were present and they had fully co- operated with the Deputy Block Development Officer concerned, to conduct his inspection. During the inspection, the Deputy Block Development Officer had found out certain irregularities in the release orders issued on behalf of the village panchayat and in the consequential payment of funds, through the cheques signed by the petitioner. It had been found that Thangapandian had prepared bogus release orders said to have been given by the second respondent. He had also been maintaining a bogus bank account.
5. The petitioner had stated that Thangapandian, apprehending that a complaint would be lodged against him, by the petitioner, had remitted a sum of Rs.2,50,701/-, on 17.3.2009, and remitted a sum of Rs.36,768/-, on 18.3.2009, amounting to a total sum of Rs.2,87,469/-. Thereafter, Thangapandian, had been suspended, on 5.6.2009, and a complaint had been preferred before the police, on 19.6.2009. Since the amount mentioned in the complaint was more than Rs.50,000/- , the Sub Inspector of Police concerned had returned the complaint stating that it should be given to the District Crime Branch. Therefore, a complaint had been submitted to the second respondent. Thus, it could be clearly seen that there was no intention on behalf of the petitioner to misappropriate the funds of the National Rural Employment Guarantee Scheme.
6. It had also been stated that the Deputy Block Development Officer concerned, after verifying the relevant records, had submitted a report to the second respondent stating that the panchayat clerk, namely, Thangapandian, was the only person responsible for the misappropriation of the funds. A criminal complaint had also been lodged against Thangapandian, on the file of the District Crime Branch. Since the Inspector of Police concerned, who had arrested and remanded Thangapandian, after registering a case, had included the name of the petitioner. Therefore, she had obtained an anticipatory bail from the District Sessions Court, Madurai.
7. While so, the second respondent had sent letters, in Letter Nos.12/2009/Thi.6, dated 19.6.2009, 2.7.2009 and 16.7.2009, to the first respondent, stating that the petitioner had colluded with the panchayat clerk and had misappropriated the funds of the National Rural Employment Guarantee Scheme. Based on the said letters the first respondent, by his proceedings, in Na.Ka.No.2724/2009/A4, dated 21.7.2009, had directed the second respondent to stop the cheque issuing powers of the petitioner. The second respondent had also issued the proceedings, in Na.Ka.No.2130/2009/Thi., dated 23.7.2009, directing the writ petitioner to handover all the records, including the account books and the cheques relating to the said village panchayat. Pursuant to the said proceedings issued by the second respondent all the relevant records had been handed over to the second respondent. In such circumstances, the petitioner has preferred the above writ petition, under
Article 226 of the Constitution of India.
8. The learned counsel, Mr.Mahendran, appearing on behalf of the petitioner had submitted that the impugned orders passed by the respondents are arbitrary, illegal and void. The said orders have been passed by the respondents, without affording a reasonable opportunity to the petitioners. Further, the orders passed by the respondents are contrary to the dictum laid down by this Court in the cases, reported in S.Udayakumar V. Dist. Collector- cum-Inspector of Panchayats (2009(5) MLJ 537), Pugazhendran, President, Brammapuram Village Panchayat, Katpadi Panchayat Union, Katpadi Taluk, Vellore District Vs. B.G.Balu and others (2005(1) CTC 545) K.Valarmathi Vs. The District Collector, Coimbatore District and others (2006(2) L.W. 19).
9. The learned counsel for the petitioner had also submitted that the respondents had failed to comply with Rule 3 of the Tamil Nadu Panchayats (Control of Emergency Powers of Collector or Inspector) Rules, 2001. He had further submitted that the respondents ought not to have invoked Section 203 of the Tamil Nadu Panchayats Act, 1994, as it should have been made use of only under extraordinary circumstances. The impugned orders have been passed contrary to Articles 14 and 21 of the Constitution of India and in violation of the principles of natural justice.
10. In the counter affidavit filed on behalf of the respondents it has been stated that the petitioner, had been elected as the Vice President of Mathur Village Panchayat, during the year, 2006. Having assumed charge of the post of Vice President of the Village panchayat, she should have known the rules and regulations and the procedures which govern the panchayat adminsitration. She cannot plead ignorance of such rules and regulations and procedures, by which she is bound in her functions, which are highly responsible in nature. Depending on the panchayat clerk and entrusting the entire functions and the works in his hands amounted to dereliction of her duties, for which she could be held liable.
11. As per the National Rural Employment Guarantee Scheme the second respondent had issued the release orders. However, the petitioner had verified and signed the nominal muster roll and had checked the release order at the time of the issuing of the cheques. However, the petitioner had concealed the said facts, for reasons best known to her. It had been found that only the excess amounts had been drawn through cheques, besides the amounts due to the beneficiaries, by committing forgery. Therefore, there has been no complaint from the beneficiaries. No action had been taken against the errant clerk, except suspending him from service, on 5.6.2009. Later, a complaint had been lodged before the District Crime Branch since the amount involved is in excess of Rs.50,000/-. In fact, the inspection had been conducted, on 15.4.2009, in Mathur Village Panchayat, only by the Deputy Block Development Officer (National Rural Employment Guarantee Scheme), Madurai East Panchayat Union and not by the Deputy Block Development Officer (Village Panchayat), as alleged by the petitioner. In the report submitted by the Deputy Block Development Officer (National Rural Employment Guarantee Scheme) to the second respondent it has been stated that forged released orders had been prepared by the Panchayat clerk, with the help of the petitioner. Thus, an amount of Rs.2,86,131/- had been misappropriated.
12. It has been further stated that the petitioner had been given sufficient opportunity to submit her explanation. A show cause notice had been issued to her, as well as to the Panchayat Clerk, Thangapandian, by the Block Development Officer (Village Panchayat) Madurai East, in his letters Rc.No.180/09/T6, dated 15.4.2009, 21.5.2009 and 29.5.2009. No reply had been received from the petitioner, as well as the panchayat clerk, till date. The order passed by the first respondent and the consequential order passed by the second respondent, are well within the rules and the provisions of the Tamil Nadu Panchayats Act, 1994.
13. The petitioner cannot claim that principles of natural justice had been violated, since she had been given sufficient opportunity to putforth her case. However, she had not attended the enquiry, nor had she submitted a reply. As such the impugned order had been passed only in accordance with Section 203 of the Tamil Nadu Panchayats Act, 1994, after affording sufficient opportunity to the petitioner. However, neither the petitioner, nor the panchayat clerk, Thangapandian, had availed the opportunities given to them, to defend themselves.
14. It has been further stated that a Vice President of a Village Panchayat is appointed, as its Executive Officer, as per G.O.(Per) No.225 R.D.(E1) Department, dated 15.10.1996. Thereby, the petitioner is responsible for the financial transactions of the village panchayat. Since the petitioner had misappropriated more than a sum of rupees Rs.2,50,000/-, the respondents had to invoke Section 203 of the Tamil Nadu Panchayats Act, 1994. It has also been stated that the second respondent has the responsibility of inspecting the panchayat in the capacity of a Block Development Officer, as also that of a Deputy Block Development Officer, as per G.O.(Per) No.238 R.D (E5) Department, dated 25.7.1997, and G.O.(Per) No.264 R.D. Department, dated 21.12.1999. Further, the provisions of the Tamil Nadu Panchayats Act, 1994, provides the role to the Block Development Officer (Village Panchayat) to perform the statutory functions, instead of the elected office bearers of the village panchayats, when they fail to perform their assigned duties, in the right manner, in accordance with law. Sections 200 and 201 of the Tamil Nadu Panchayats Act, 1994, stipulates that necessary records may be inspected, during inspection and to take charge of the records from the elected representatives.
15. It has also been stated that the Assistant Director (Audit) had been appointed as the Enquiry Officer to enquire into the alleged misappropriation of funds by the petitioner. He had sent a show cause notice, on 14.7.2009, asking them to attend the enquiry scheduled to be held, on 20.7.2009. However, the petitioner has not appeared before the enquiry officer on the said date. Thereafter, the Assistant Director (Audit) had gone to the panchayat office, on 21.7.2009, and he had made an inspection of the concerned records, in the presence of the petitioner. Thereafter, he had submitted a report, on 21.7.2009, stating that Panchayat Funds had been misappropriated, to the tune of Rs.2,86,131/- and he has requested the District Collector to take appropriate action against the petitioner and against the Panchayat Clerk concerned. Based on the report of the Assistant Director (Audit) charges had been framed against her and a show cause notice had been issued by the District Collector, the first respondent herein, asking the petitioner to show cause as to why action should not be taken against her, under Section 205(1) of the Tamil Nadu Panchayats Act, 1994, in his proceedings, in Na.Ka.No.2724/09/A4, dated 25.7.2009. The said procedure is in accordance with the provisions of the Act and therefore, the writ petition filed by the petitioner is devoid of merits and therefore, is is liable to be dismissed.
16. The learned counsel for the petitioner had relied on the following decisions in support of his contentions:
1) In S.Udayakumar V. District Collector-cum-Inspector of Panchayats (2009(5) MLJ 537), it has been held as follows:
"The power given to the Collector or Inspector was an emergency power to do certain acts in the interest of the panchayat. It was not an ordinary power to interfere in the affairs of the village panchayat. In case the village Panchayat President or Executive Authority makes default in performing nay of the duties imposed by or under the provisions of the Act,t he Inspector was given powers under Section 204 of the Act to take appropriate action. The Collector or Inspector was not obliged to use the emergency powers as a routine measure. There was nothing mentioned in Section 203 of the Act which authorises the Collector to divest the President of his cheque signing powers during the pendency of a proceeding under Section 205 of the Act. The President would be divested of his powers only in th event of an order passed under Section 205(11) of the Act. Unless and until a notification was issued under Section 205(11) of the Act, the President has tobe permitted to exercise his powers as a President of the panchayat. The charge against the petitioner was not something related to his failure to sign the cheque along with the Vice President. The charges were acts of misappropriation warranting action under Section 205 of the Act. By way of the impugned proceeding, the Collector, in exercise of the powers under Section 203 of the ACt, has divested the petitioner of his power to sign the cheque along with the Vice President. Not even a notice was issued to the petitioner before issuing such proceedings. It was only as a consequential proceedings initiated under Section 205 of the Act, the Collector has issued the impugned proceedings divesting the petitioner of his power to sign the cheque. In any case, before divesting the petitioner of his power to sign the cheque, reasonable opportunity should have been given to him. It is not as if the momen action under Section 205 of the Act was taken against the President, he should be divested of the power to sign cheques. Section 203 of the Act is not intended for suchpurposes. It was only to tide over an emergency situation, power is given to the Collector under Section 203 of the Act. The said power cannot be used in an ordinary situation. In any case, there was a clear violatin of principles of natural justice also, as the petitioner was not given notice before divesting him of the power to sign the cheques."
2) In W.P.No.4310 of 2009 (Kasi Rajan Vs. The District Collector and others), this Court, by its order, dated 16.9.2009, by relying on the various decisions of the Courts of law had held as follows:
"In view of the decisions referred to above, the law on the subject is well settled that such power vested with the ward member of the village panchayat to act as a co-signatory to the cheques to be signed for and on behalf of the panchayat cannot be taken away without affording an opportunity and without issuing a notice. Admittedly, in the instant case, no notice has been issued to the petitioner before the impugned was passed. Therefore, on this sole ground alone, the petitioner has to succeed and accordingly, the writ petition is allowed and the impugned order is set aside. The matter is remitted back to the first respondent to issue a fresh notice to the petitioner clearly setting out the allegations against the petitioner and the reason why the first respondent proposes to invoke power under Section 206 of the Act and thereafter, the petitioner shall be entitled to submit his objections and the first repondent after considering his objections shall pass appropriate orders, on merits and in accordance with law. The entire exercise shall be completed within a period of three weeks from the date of receipt of a copy of this order."
17. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, as well as the learned counsels appearing on behalf of the respondents and on a perusal of the records available, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by her. Even though various grounds had been raised by the petitioner, in challenging the impugned orders passed by the respondents, the main ground raised by the learned counsel for the petitioner is that the petitioner had been divested of her power to sign the cheques on behalf of Mathur Village Panchayat, without being given an opportunity of hearing.
18. While perusing the records placed before this Court, on behalf of the respondents and in view of the averments made in the counter affidavit filed in the above writ petition, it is clear that the petitioner had been given sufficient opportunity to put forth her case, in respect of the charges levelled against her. Even though notices had been sent to her, on 15.4.2009, 21.5.2009 and 29.5.2009, by the second respondent, which she had also received, asking her to submit her explanation and to appear in person, along with the relevant records, she has not chosen, either to submit her explanation or to appear in person, along with the relevant records, as required by the second respondent. Hence, the petitioner cannot claim that she has not been given suficient opportunity to put forth her case, before the impugned orders had been passed.
19. Further, it would not be open to the petitioner to take shelter under the guise of ignorance of the rules and regulations and the other statutory provisions applicable to the functioning of the village panchayat. By merely saying that due to her ignorance in carrying on her functions and the works assigned to her, he had delegated his responsibilities to Thangapandian, who is a clerk in Mathur Village Panchayat, would not be of any help to the petitioner in defending herself against the allegations of misappropriation of funds allotted to the National Rural Employment Guarantee Scheme. Even if certain actions had been initiated against Thangapandian by suspending him from service and by registering a complaint against him, such actions, by themselves, would not be sufficient proof of the innocence of the petitioner.
20. Handling of public funds casts a heavy responsibility on the petitioner. Dereliction of her duties, in handling such responsibilities, would be a serious lapse. As such she would be fully responsible for the loss of funds, even if it may not, in the ultimate analysis amount to misappropriation of funds. However, in the present case, certain serious charges had been levelled against the petitioner, including the misappropriation of government funds allotted to the National Rural Employment Guarantee Scheme, by forging of records and by issuing cheques based on bogus release orders.
21. No doubt the truth, in repsect of the allegations levelled against the petitioner, has to be ascertained by an impartial enquiry by the officers concerned, as provided under the provisions of the Tamil Nadu Panchayats Act, 1994, and the rules framed thereunder, till such time the enquiry, in respect of the charges levelled against her, is not completed she would not be entitled to have the cheque signing power, as it would be improper and inappropriate in the given circumstances of the case. It is for the authorities concerned to investigate into the matter and to come to a fair conclusion, with regard to the alleged misappropriation of funds.
22. The decisions cited by the learned counsel for the petitioner in support of his contentions cannot come to the aid of the petitioner, since the said decisions, cited supra, had been made in the facts and circumstances of those cases, especially, when the petitioner had been deprived of the cheque signing power, without the issuing of a notice to him, by the respondents and without being given a reasonable opportunity of hearing.
23. However, in the present case it is seen from the records available that notices had been issued to the petitioner asking her to show cause as to why necessary action should not be initiated, based on the allegations levelled against her. She had also been asked to appear in person, along with the relevant records. Even after the receipt of the said notices, the petitioner had chosen not to appear in person before the respondents, for the necessary enquiry. Further, no explanation had been submitted by her, to substantiate her claim that she is innocent.
24. Further, the contention raised on behalf of the petitioner that the first respondent, District Collector, cannot invoke the extraordinary power vested in him, under Section 203 of the Tamil Nadu Panchayats Act, 1994, cannot be countenanced, especially, in view of the fact that an allegation has been made that more than a sum of Rs.2.50 lakhs had been misappropriated by the petitioner, along with the clerk of the Mathur Village Panchayat, namely, Thangapandian. It is for the petitioner to prove that the allegations levelled against her are without susbtance, by adducing sufficient evidence in support of her claim, in the manner known to law. For the reasons stated above, the writ petition is liable to be dismissed. Hence, it is dismissed. No costs. Consequently, M.P.Nos.1, 2 and 3 are closed.
csh To
1. The District Collector cum Inspector of Panchayats, Madurai District, Madurai.
2.The Block Development Officer (Village Panchayats), Madurai East Panchayat Union, Madurai District.