Challenging the order of the first respondent dated 12.11.2008, an order of the Inspector of Panchayat, Villupuram, removing the petitioner from the post of the president of Murarpalayam village panchayat and the confirmation of the same, by the Government of Tamil Nadu, the present writ petition was filed.
2.1. The case of the petitioner in nutshell is set out here under:-
2.2. The petitioner was elected unopposed in September 2006 for a term of five years as the President of the Murarpalayam village panchayat and was functioning as such. On 08.10.2007, he received a notification from the first respondent alleging certain irregularities and asking him to submit his explanation. He duly submitted his explanation. After few months i.e., on 21.02.2008, the Tahsildar, Sankarapuram Taluk, Villupuram District sent a notice to him that he was appointed under Section 205 of the Tamil Nadu Panchayat Act 1994 (herein after referred to as the Act) for taking legal action against him regarding certain irregularities and misappropriation of funds in the National Rural Employment Guarantee Scheme (NREG). It has been stated in the said notice that the opinion of the members of the panchayat would be called for in the meeting to be convened on 03.03.2008. The meeting was presided over by the Tahsildar. All the nine ward members have expressed their opinion that the explanation submitted by the petitioner can be accepted. The minutes of the meeting was recorded by the Tahsildar. While so, suddenly the first respondent passed an order removing him from the post of the President and the same was published in Tamil Nadu Government Gazette on 02.07.2008.
2.3. The petitioner filed a writ petition before this Court in W.P. No.16393/2008, challenging the order of removal passed by the first respondent. This Court by an order dated 13.08.2008, had set aside the order of the Collector, Villupuram and remitted the same to him to consider the explanation offered by the petitioner and other relevant records and pass orders afresh after giving reasons thereof.
2.4. Thereafter the petitioner reliably came to know that the Collector referred the matter to the Government Pleader for his opinion. The Government Pleader seems to have opined that it was not known as to whether the person who sent the message was examined or not and in the absence of any complaint in writing or in person, the fax message ought not to have been taken for enquiry. The Government Pleader further seems to have opined that the entire proceedings have to be considered by the District Collector on the basis of the explanation offered by the petitioner and on the opinion expressed by the other ward members.
2.5. After the matter was remitted to the first respondent, the person who made complaint by fax had appeared before the Collector and submitted that he knew only to sign and that he do not know to read or write. Further, he has stated that he did not know anything personally as regards the complaint made against the petitioner. While so, the first respondent ought to have dropped further proceedings on such statement. But, the first respondent by an order dated 12.11.2008, removed him from the post of President of the said panchayat without holding any enquiry.
2.6. Aggrieved over the said order, the petitioner preferred an appeal before the Government under Section 205(12) of the said Act. However, without considering the grounds raised in his appeal, the Government viz., the second respondent herein dismissed the said appeal on 29.04.2009. Aggrieved over the same, the present writ petition is laid.
3.1. Counter affidavit was filed by the respondents. The short facts of the counter affidavit of the respondent are set out here under:-
3.2. The petitioner misappropriated the NREGS fund. He had drawn a sum of Rs.2,99,600/- as if NREGS work had been done by employing 535 workers for 7 days at the rate of Rs.80/- per day. But the enquiry report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division reveals that only 2 days of work was done by 535 workers and payment was made only for 2 days for an amount of Rs.85,600/- .The remaining amount of Rs.2,14,000/- was misappropriated by him by fabricating records and forging signatures as if work was done for extra 5 days by 535 workers. The petitioner after following due process of law as contemplated under said Act was removed from the post of the President, with effect from 02.07.2008.
3.3. After the matter was remanded by this Court, the explanation offered by the petitioner and other relevant records were perused. In addition to that, one Thiru.Kannan, who lodged complaint about misappropriation of NREGS funds by the petitioner, was personally heard by Collector on 21.10.2008 and ascertained that the petition was given by him. After carefully examining the records and the explanation offered by the petitioner, an order of removal was passed on 12.11.2008 and published in Government Gazette on 19.11.2008.
3.4. The petitioner preferred an appeal before the Government and the Government also rejected the appeal by G.O No.232 (Rural development and Panchayat Raj Department) dated 29.04.2009.
3.5. On complaint from Thiru. K. Kannan, ward councillor, the entire records were called for by the Project Officer (DRDA), Villupuram and he verified them. On verification, it was ascertained that corrections were made in the NMR such as dates and most of the signatures in the NMR resembled the same style. As there was a Prima facie case made out in the complaint, a detailed field enquiry was ordered to be conducted by the Assistant Executive Engineer, Kallakurichi Sub-Division. The enquiry officer reported that the work was done only for 2 days by 535 workers as against 7 days of work by 535 workers as recorded in the NMR. The enquiry report and records revealed misappropriation of funds by the petitioner.
3.6. The Panchayat administration is headed by the panchayat president and he has to carry out all work and business of the panchayat. He has also certified that the work has been done and recommended for payment and also drawn the amount for payment and certified that the amount was disbursed. The petitioner has also accepted his guilt and refunded the misappropriated amount of Rs.2,14,000/- along with the penalty of Rs.6000/-. The remittance of the misappropriated amount itself is an admission of guilt by the petitioner.
3.7. The opinion made by the members of the panchayat recommending to accept the explanation offered by the president cannot alone be a reason to drop the proceedings against the petitioner. As per Section 205 (11) of the Act Inspector of panchayat namely the District Collector is entitled to consider the views of the Panchayat and in his discretion either remove the President or drop further action Thus entire action has been taken against the petitioner in consonance with Section 205 of the said Act.
4. I have heard Mr. V.T.Gopalan, the learned Senior Counsel appearing for the petitioner and Mr. P.Wilson, the learned Additional Advocate General appearing for the respondents assisted by Mr. V.Manoharan, the learned Government Advocate.
Mr. V.T.Gopalan, the learned Senior Counsel appearing for the petitioner mainly contended,
(i) The panchayat President is not primarily responsible for the allegations made against him.
(ii) Against others who should be equally responsible, no action was taken and the petitioner alone was single out.
(iii) Various materials were used against the petitioner and the copies have not been furnished to the petitioner. Though information can be obtained from other sources, the petitioner was not put on notice of the same in order to explain his position.
(iv) Panchayat council resolution cannot be overlooked.
(v) Since there is no loss to the Government the present action taken against the petitioner is uncalled for.
On the other hand, Mr. P.Wilson, the learned Additional Advocate General appearing for the respondents contended that, as per THE TAMIL NADU VILLAGE PANCHAYATS (RECEIPTS AND EXPENDITURE AND MAINTENANCE OF THE ACCOUNTS OF VILLAGE PANCHAYATS) RULES, 2000, the accounts of the village panchayat, the maintenance of the records are the duties of the village panchayat President. Hence, the petitioner cannot escape by saying that he is not primarily responsible for the failure to do so. Taking action against others may not proclude the Inspector of Panchayat for taking action against the petitioner. The Inspector of Panchayat and the Government have considered the matter in proper perspective and also exercising the power vested with them under Section 205 of the Act, have passed well considered order which does not require any interference by this Court.
5. The first and foremost contention that was urged on behalf of the learned Senior Counsel appearing for the petitioner is that the petitioner, the President of the village panchayat cannot be held liable for the maintenance of the records of the panchayat and the payment made to various workers employed in the project. It is the clerk who maintains the roster, payment particulars etc., and the same has to be verified by the Gram Sevak as well as the Assistant Engineer In-charge of the project and ultimately has to be countersigned by the Block Development Officer. However, the learned Additional Advocate General appearing for the respondents would submit that Sections 31, 32 and 35 provide for payment from village panchayat, payments by cheque and procedure for claims against the village panchayat funds. The said provisions make it amply clear that the maintenance of records lies with the village panchayat. The petitioner, the President of the village panchayat being the executive authority, is responsible for the maintenance of the records, payment of the bills and hence it cannot be heard to say that the President is not responsible for the maintenance of the accounts and payment of the bills. Before considering the said submission made by the learned Senior Counsel appearing for the petitioner as well as the Additional Advocate General appearing for the respondents, it would be useful to extract Section 31, 32 and 35 of the said Rules and the same is extracted here under:-
" 31. Payments from Village Panchayat.-- All payments out of the Village Panchayat Fund against bills presenyed to the Village Panchayat shall be made only after the bills are passed by the Executive Authority or by any person authorised by Government in respect of any particular Scheme or Fund.
32. Payments by cheque.-- (1) Payments shall be made only by crossed account payee cheques drawn in favour of the parties as per the procedure laid down by Government from time to time. The Executive Authority may draw amounts in self-cheque only in respect of the following payments :-
(1) Salaries to the Village Panchayat staff ;
(2) Travelling allowance payable to the Executive Authority, Members and Staff of the Village Panchayat.
(3) Petty office contingent expenditure ; and (4) Advances to the staff for festival.
35. Procedure for claims against the Village Panchayat Fund.-
(1) Every person having any claim against the Village Panchayat Fund shall present a bill in Village Panchayat Office.
(2) Wherever possible, printed forms shall be used in preparing bills.
(3) Where a claimant presents a bill in a form different from the from provided for the purpose, a separate bill in the proper form shall be prepared by the officer incurring the expenditure and the claimant's bill shall be attached thereto as a sub-voucher.
(4) Every bill shall be presented to the Executive Authority of the Village Panchayat who shall enter it in the register of bills and then check and examine the bills as regards its admissibility with reference to sanction or other documents, the propriety of the claim and the arithmetical accuracy. If on such check and examination the bill is found to be correct, the Executive Authority shall pass the bill.
(5) In respect of any Scheme or Fund, where the bill is to be scrutinised and passed by a person authorised by Government, the Executive Authority shall send such bill to the authorised person, who shall thoroughly scrutinise the bill as aforesaid and if the bill is found to be correct and inorder, pass and send it back to the Executive Authority within three days for drawing the cheque for the amount passed by the notified person. "
The said provisions make it amply clear that the petitioner, the President of the village panchayat being the executive authority, is responsible for the disbursement of the bills drawn for various works undertaken on behalf of the village panchayat. He is also a signatory to the cheques. Thus the arguments advanced in this regard has to be rejected.
6.1. The second contention of the learned Senior Counsel appearing for the petitioner is that except the action against the petitioner, no action was taken against others and the petitioner alone was singled out. However, in the counter affidavit, it has been pointed out that explanation was called for from the Block Development Officer, Block Engineer, Overseer, Panchayat Assistant and Makkal Nala Paniyalar. As the explanations submitted by the Block Development Officer, Block Engineer, Overseer are not acceptable, disciplinary action was initiated against them under TNCS (D&A) rule 17(a). Similar action was also initiated against the Panchayat Assistant and Makkal Nala Paniyalar. In view of the said categorical statement made in the counter affidavit that action was taken against other erring officials also, the arguments of the learned Senior Counsel appearing for the petitioner that only the petitioner alone was singled out and other officials were left out scot free, has to be rejected in toto.
6.2. In this connection, the learned Senior Counsel appearing for the petitioner relied on the decision reported in 1986(2) Madras Law Journal 171, N.Chandrasekharan Vs. Regional Transport Authority, South Arcot. That is the case where a charge memo was issued to the permit holder why the permit granted to him shall not be suspended or cancelled under the provisions of the Motor Vehicles Act. After getting an explanation from the permit holder, it was held that the charges have been proved and the permit was suspended for a day. The same was confirmed by the appellate authority and the permit holder filed revision before this Court. This Court had held that there cannot be discrimination in the sense that action has been taken only against the permit holder and other persons have been allowed scot free. It will be open to the person who has been charged to raise plea of discrimination. Para 9 and 10 of the said judgement are extracted here under:-
" 9. As for the driver not carrying the license, undoubtedly, he has to be proceeded against. Equally, the conductor had not carried his license. Yet they had been left out, and for which no valid reason is given.
10. Therefore, this Court considers that whenever contravention of the provisions of the Motor Vehicles Act and the Rules occasions, and for which provision is made for taking action not only against the permit-holder, but also against the crew action taken by the public authority must be against all those who are concerned in the omissions or commissions of such acts, failing which, it will be open to anyone of them who is proceeded against, to raise the plea of discrimination. As to how far discrimination had been practised, would depend upon the facts and circumstances of each case. "
6.3. However in the case on hand, not only action was taken against the petitioner but as stated already in the counter affidavit it has been stated that action was taken against the erring officials also. In view of the said fact, the judgement cited above will not be applicable to the facts on hand.
7.1. The third contention of the learned Senior Counsel appearing for the petitioner is that the resolution passed in the panchayat meeting, for acceptance of the explanation offered by the petitioner was overlooked. Nowhere under the Act, it is stated that the resolution passed in the panchayat council meeting has to be accepted in toto. No doubt,
Section 205 of the Act contemplates that the Inspector of Panchayat on his own motion or on the representation given in writing signed by required members on satisfaction shall call for an explanation from the President and shall direct the Tahsildar to convene a meeting for considering notice of explanation. The views of the panchayat shall be duly recorded by the Tahsildar and the copy of the minutes shall be forwarded by him to the Inspector. But, however the said provision does not contemplate that the views of the village panchayat have to be accepted by the Inspector of Panchayat. It would be useful to extract
Section 205 (10 & 11) and they are extracted here under:-
" 205. Removal of President.- (1) The Inspector -
(a) of his own motion, or
(b) on a representation in writing signed by not less than two-thirds of the sanctioned strength of the Village Panchayat containing a statement of charges against the President and presented in person to the Inspector by any two of the members of the Village Panchayat, is satisfied that the President wilfully omits or refuses to carry out or disobeys any provision of this Act, or any Rule, bye-law, Regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall, by notice in writing, require the President to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice.
7.2. In fact, the said issue came up for consideration before this Court and this Court has held that the views of the members of the panchayat are not a deciding factor to take action under Section 205 of the said Act and that
Section 205(4) is not unconstitutional. The same is reported in 2000 (IV) Current Tamil Nadu Cases 631, N.M.Selvakumar Vs. The State of Tamil Nadu. Para 22 of the said judgement can be usefully extracted here under:-
" Now, according to the learned counsel appearing for the petitioners, the grievance of the petitioners with respect to the above said procedure is that though the Tahsildar is obliged to give a notice of meeting at least seven days before the date of meeting; there is no provision contemplating supply of show cause notice, the explanation, if any, and the proposal of the Inspector to remove the president, and thereby the provision violates the principles of natural justice. The said submission cannot be accepted. The meeting contemplated under the said provision is only to get the views of the village panchayat on the action taken by the inspector. The seven days notice is contemplated only to give an opportunity to the members to keep the meeting day to be free and to attend the same without any inconvenience. It cannot be said that the members are expressing their views on the issue without knowing about the show cause notice, explanation if any, or the proposal of the inspector to remove the President. As contemplated under Section 205(8) of the Act, the Tahsildar in the meeting has to read all the above said materials before the members and the members have to express their views on the same. Moreover; as contemplated under Section 205 (8-A) of the Act the members cannot have any debate in the meeting regarding the said issue, it is also relevant to mention here that the views of the members are not deciding factor to take action under
Section 204 of the Act against the president by the Inspector. It is only a guiding factor for the inspector to take further action at his discretion. So, it cannot be said that the members are not having opportunity to know about the show cause notice; the explanation and the proposal of the inspector before expressing their views. As stated above, they are having such opportunity to know about the same. So, the petitioners' case that
Section 205(4) of the Act has to be struck down as unconstitutional cannot be accepted. Such provision only directs the Tahsildar to send a copy of the notice of the meeting. The ground on which such contention has been raised also cannot be accepted, in view of the reasons stated above. "
7.3. Thus considering clauses 10 and 11 of
Section 205 of the Act and also considering the judgement referred to above, I am of the considered opinion that the views of the members of the panchayat alone are not the deciding factor to take action against the President of the panchayat under
Section 205 of the Act. The Inspector of Panchayat after ascertaining the views of the members of the panchayat is vested with a discretion either to remove the president or to drop the further action. In the case on hand, though the petitioner has got full support from the members of the panchayat, Inspector of panchayat after analysing the complaint made against the petitioner, report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division, has come to the conclusion that the petitioner misappropriated a sum of Rs.2,14,000/- by fabricating the records and forging signatures as though works were done for extra 5 days by 535 workers and thus misappropriated public fund which was sanctioned by the Government for the provision of employment opportunity to the unemployed rural people. Such an independent opinion arrived at by the Inspector of Panchayat basing on the report of the Assistant Executive Engineer, Kallakurichi Sub-Division, referred to above will show that the Inspector of Panchayat in his discretion had to reject the views of the village panchayat and pass the order of removing the petitioner from the post of the village panchayat.
7.4. Thus, I am of the considered opinion that the arguments of the learned Senior Counsel appearing for the petitioner that the views of the panchayat members ought to have been considered by the Inspector of Panchayat and that he has overlooked their views has to be rejected in toto.
8.1. Next contention of the learned Senior Counsel appearing for the petitioner is that the action of the petitioner did not resulted in any loss to the Government and hence the Inspector of Panchayat ought not to have passed an order removing the petitioner from the post of the village panchayat. I am unable to accept the said contention of the learned Senior Counsel appearing for the petitioner. The enquiry report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division is that the petitioner has drawn a sum of Rs.2,99,600/- for payment of workers. Only 2 days of work was done by 535 workers and payment has been made for only 2 days for them at the rate of Rs.80/- per day amounting to Rs.85,600/-. The remaining amount of Rs.2,14,000/- was misappropriated by the petitioner by fabricating records and forging signatures as if works were done for extra 5 days by 535 workers. When such report is forthcoming from a responsible officer, if the petitioner has not really appropriated or misappropriated any amount, he could have denied that he has not misappropriated said amount. However, the said sum alleged to have been misappropriated by him namely, Rs.2,14,000/- was repaid by him to the Block Development Officer. The payment of the said amount will amply prove that the petitioner, accepting his guilt made the said payment.
8.2. The explanation offered by him that he was compelled to pay the amount by the Block Development Officer cannot be accepted at all. The remittance of the amount was viewed as acceptance of the misappropriation, not only by the Inspector of Panchayat, but also by the Government. The same cannot be faulted at all. The petitioner now cannot be heard to say that there was no loss to the Government.
8.3. The learned Senior Counsel appearing for the petitioner, in this regard drawn my attention to the judgement reported in (2001) 9 Supreme Court Cases 369, Chandreshwar Prasad Sinha Vs. State of Bihar and Another. That is the case where an order was passed by the authorities to recoup the loss or part of loss alleged to have been sustained by the state by the action of the appellant therein. Questioning the said order, he moved a writ petition and the writ petition was dismissed. The same was challenged by the appellant before the Hon'ble Apex Court. The Hon'ble Apex Court after considering the fact that no determination in departmental proceedings or in criminal proceedings, the loss suffered by the state was established, allowed the appeal setting aside the recovery from his pension. Para 9 of the said judgement is usefully extracted here under:-
" It is patent from a reading of the charge-sheet, the letter written to the appellant enclosing the charge-sheet and the order impugned in the writ petition that action was taken against the appellant to recoup the loss or part of the loss that was alleged to have been sustained by the State by reason of the emergent indent. There has been no determination in departmental proceedings under Rule 43 or in criminal proceedings that the emergent indent was put in for any ulterior or mala fide purpose and that such purpose, if any, was shared by the appellant. There has also been no determination of the loss alleged to have been suffered by the State. Indeed, in the show-cause notice, the letter enclosing it and the order thereon all that is stated in this behalf is that a loss of "several lakhs of rupees" had been incurred. This would indicate that no attempt had been made departmentally to determine what the loss was and give to the appellant an opportunity of showing that it was, in fact, much less or not there at all, nor was it done thereafter. "
8.4. In the case on hand, though no amount was determined in a separate proceeding asking the petitioner to pay the same, the petitioner himself made good the loss said to have been misappropriated by him. Thus the said judgement may not be of any use to the petitioner.
9. Next contention of the learned Senior Counsel appearing for the petitioner is that the complainant himself has gone back against the complaint and hence the said complaint ought not to have been taken note of by the Inspector of Panchayat. The Inspector of Panchayat namely the Collector under
Section 205 of the said Act has got ample power to suo moto require the president to offer his explanation with respect to his act of omission or commission. He could also act on the representation in writing signed by not less than 2/3 of the sanctioned strength of the village panchayat containing statement of charge against the President. In the case on hand, on receipt of complaint, the Inspector of Panchayat after getting report from the responsible officer referred to above had found that the petitioner had abused the power vested with him and found that he has misappropriated funds of the panchayat and called for an explanation from the petitioner and thereafter following the proceedings as contemplated under
Section 205, exercised his power under clause 11 of
Section 205 and removed the petitioner from the post of village panchayat. The channel of information to the Collector can be through complaint from other sources or on enquiry by him either on his own motion or on complaint by third parties. While so, the contention that the complainant was not examined in his presence and also that he has also given a go by on his complaint cannot be accepted. Further more, as stated already the petitioner had already returned the amount alleged to have been misappropriated by him. In view of the above stated position, I am not inclined to accept the said contention of the learned Senior Counsel appearing for the petitioner in this regard.
10.1. The learned Senior Counsel appearing for the petitioner drawn my attention to the judgement reported in (2008) 8 Supreme Court Cases 42, Novva Ads Vs. Secretary, Department of Municipal Administration and Water Supply and Another and contended that the discretionary power vested with the authority shall be exercised by observing the principles of natural justice and supported by reasons. That is the matter where writ petition was filed before the High Court, Madras challenging the validity of certain provisions of the Chennai City Municipal Corporation Act, 1919 and the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003. This Court dismissed the writ petitions and directed the authorities concerned for the removal of unauthorised hoardings. While the matter was heard by the Hon'ble Apex Court, the Hon'ble Apex Court held that any action for removal of the hoardings shall be taken after observing the principles of natural justice and with the supporting reasons. Para 32 of the said judgement is usefully extracted here under:-
"The power to license is not unfettered and is guided by the above considerations. Under Rule 11 an appeal lies to the State Government for refusing the grant or renewal of licences. Section 326-J of the Act empowers the District Collector to prohibit the erection of hazardous hoardings and hoardings which are hazardous and a disturbance to the safe traffic movement so as to adversely affect the free and safe flow of traffic. The power under Section 326-J is not arbitrary as held by the Supreme Court in M.C. Mehta v. Union of India on an identical provision relating to case of hoardings in New Delhi. Any action taken under Section 326-J must be taken by observing the principles of natural justice and supported by reasons. An appeal against the order of the District Collector of action under Section 326-J lies to the State Government under Section 326-H. There cannot be a presumption of misuse of power merely because discretion is conferred on a public authority for the exercise/use of the power. In Narayana Bhat case this Court has negatived the contention that the power of the licensing authorities is arbitrary and unguided. "
10.2. In the given case on hand, there cannot be any dispute that the Inspector of Panchayat called for an explanation from the petitioner on the charges made against him, and directed the Tahsildar to convene the council meeting, ascertained the views of the members of the panchayat and finally came to the conclusion that the petitioner misappropriated the funds of the panchayat. Thus all opportunities have been given to the petitioner and the Inspector of Panchayat had followed procedures as contemplated under
Section 205 of the Act. Further more, the Inspector of Panchayat though originally has not assigned any reasons, after the matter was remanded by the order of this Court, has given reasons for passing an order removing the petitioner from the post of the panchayat. On an appeal the Government has considered all the contentions that have been raised on the side of the petitioner and rejected those contentions by giving valid reasons thereon. Thus it cannot be heard on the side of the petitioner that neither the Collector nor the Government did not follow the principles of natural justice and that they have disposed of the matter without giving any reason supporting their orders. In view of the same, the judgement cited by the learned Senior Counsel appearing for the petitioner has no relevance to the case on hand.
11.1. Next judgement that has been cited by the learned Senior Counsel appearing for the petitioner is reported in (2005) 2 Supreme Court Cases 481, Bharat Heavy Electricals Ltd., Vs. M.Chandrasekhar Reddy and Others. That is the case where the employee of Bharat Heavy Electricals Ltd., was removed from service. He approached labour Court and the labour Court on finding that there was no earlier misconduct and that the employee was an active participant in cultural activities and for the common cause of the employees set aside the order of dismissal. Same was confirmed by the High Court both in the writ petition and in the writ appeal. When the matter was taken up before the Hon'ble Apex Court, the same was set aside holding that there is no such thing as unlimited jurisdiction vested with judicial or quasi judicial forum. Meaning that the labour Court does not vest with unlimited jurisdiction under
Section 11(A) of the Industrial Disputes Act. Para 14 of the said judgement is extracted here under:-
" With respect, we are unable to agree with these findings of the High Court. In our opinion, there is no such thing as unlimited jurisdiction vested with any judicial or quasi-judicial forum. An unfettered discretion is a sworn enemy of the constitutional guarantee against discrimination. An unlimited jurisdiction leads to unreasonableness. No authority, be it administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof."
11.2. The said judgement, has absolutely no relevance to the case on hand. The Inspector of Panchayat had exercised his discretion on sound reasoning and the Government has concurred with the said reasonings. In view of the same, as stated already the said judgement may not be of any use to the petitioner.
12.1. Yet another decision that has been relied on by the learned Senior Counsel appearing for the petitioner is reported in (1978) 1 Supreme Court Cases 405, Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others. By citing the said judgement the learned Senior Counsel appearing for the petitioner would submit that the validity of an order made by the statutory functionary has to be judged by reasons mentioned there on and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Emphasis was made on para 8 of the judgement referred to above.
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. In Gordhandas Bhanji :
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
12.2. In the case on hand, there is no substitution on some reason which was not the basis of the reason in the order of either the Inspector of Panchayat or in the order of the Government. Hence, the said judgement also may not be useful to the petitioner.
13.1. Other judgement that has been relied on by the learned Senior Counsel appearing for the petitioner is reported in 1985 (3) Supreme Court Cases 398, Union Of India Vs. Tulsiram Patel. That is the matter pertaining to departmental enquiry on an employee. Considering the rules made under Railway Servants (Discipline and Appeal) Rules, 1968, Central Civil Services (Classification, Control & Appeal) Rules, 1965, Central Industrial Security Force Rules and the Article 309
, 311 of the Constitution, the Hon'ble Apex Court therein held that principles of natural justice require that it must decide fairly and impartially. The person who is charged shall know the evidence put against him and shall be permitted to inspect the documents which are relied upon. Para 95 and 96 of the said judgement are extracted here under:-
" 95. The Principles of natural justice have thus come to be recognized as being a part of the guarantee contained in
Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of
Article 14.Article 14, however is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The Principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in
Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.
96. The rule of the natural justice with which we are concerned in these appeals and writ petitions, namely, the audi alteram partem rule, in its fullest amplitude means that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him, be given an opportunity of submitting his explanation thereto, have the right to know the evidence, both oral or documentary, by which the matter is proposed to be decided against him, and to inspect the documents which are relied upon for the purpose of being used against him, to have the witnesses who are to give evidence against him examined in his presence and have the right to cross-examine them, and to lead his own evidence, both oral and documentary, in his defence. "
13.2. The said findings referred by the Hon'ble Apex Court may not be applicable to the facts on hand. The reason being that, it is not the departmental proceeding which the petitioner herein has faced. Further more, the petitioner was given ample opportunity as contemplated under the Act to explain the charges that were levelled against him. Further more, the petitioner as stated already, returned the amount which is said to have been misappropriated by him. In view of the above reasoning, it cannot be heard on the side of the petitioner that principles of natural justice was violated and that the petitioner was not provided with necessary documents to shield him from the charges that have been made against him. Thus, the said judgement also may not be useful to the petitioner.
14. Yet another decision that has been cited by the learned Senior Counsel appearing for the petitioner is the full bench decision of this Court reported in All India Reporter 1965 MADRAS 79, Cumbum Roadways Vs. Somu Transports. Question that was raised before the full bench was whether the Regional Transport Officer has jurisdiction to entertain new plea from an objector which he failed to raise in his representation under
Section 57(4) of the Motor Vehicles Act (1939) and whether the respondent in the said matter can challenge in the writ petition the validity of the order of the State Transport Appellate Tribunal having failed to raise the grounds before the Tribunal. While deciding the said question, it was held that the jurisdiction of the Regional Transport Authority or Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the transport authority cannot be questioned but it is within the discretion of the Regional Transport Authority or Appellate Tribunal to accept information taking into account the relevant circumstances under which the information was brought before it. However, if the authority decides to accept it, it is bound to give reasonable opportunity to the affected person to show cause as to why the information should not be acted upon. This finding rendered by the full bench may not be of any use to the petitioner since in the given case on hand, the Inspector of Panchayat has put on notice to the petitioner about the charges that have been levelled against him, sought an explanation and got the same from the petitioner and thereafter relying on the report of the officer concerned mentioned above and also considering the fact that the petitioner paid the amount said to have been misappropriated by him, which itself will show that the petitioner accepted the guilt, has passed an order removing him from the post of President and the same was confirmed by the Government.
15.1. The learned Advocate General relied on the decision reported in (2006) 7 Supreme Court Cases 558, Om Prakash Mann Vs. Director of Education (Basic) and Others. That is the case where in departmental enquiry, an employee taken the ground that enquiry report was not furnished to him and hence it is a violation of principles of natural justice. The Honourable Supreme Court has held, to sustain the complaint of violation of principles of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. Para 9 of the said judgement is usefully extracted here under:-
" 9. By now it is well-settled principle of law that the doctrines of principle of natural justice are not embodied rules. They cannot be applied in a straitjacket formula. To sustain the complaint of violation of the principle of natural justice one must establish that he has been prejudiced by non-observance of the principle of natural justice. As held by the High Court the appellant has not been able to show as to how he has been prejudiced by non-furnishing of the copy of the enquiry report. The appellant has filed a detailed appeal before the Appellate Authority which was dismissed as noticed above. It is not his case that he has been deprived of making effective appeal for non-furnishing of copy of enquiry report. He has participated in the enquiry proceedings without any demur. It is undisputed that the appellant has been afforded enough opportunity and he has participated throughout the enquiry proceedings, he has been heard and allowed to make submission before the Enquiry Committee. "
15.2. The observance in the said judgement is squarely applicable to the facts on hand. The petitioner in no way prejudice on non furnishing of the report relied on by the Inspector of Panchayat namely the report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division. The reason being that the petitioner had made good the loss of the amount said to have been misappropriated by him. Had the petitioner refused to accede that he has misappropriated the amount and that had he not deposited the amount said to have been misappropriated by him, the petitioner could have been justified to raise the ground that the report of the enquiry officer was not furnished to him. However, as stated already since he has paid the said amount, he can no more urge that the copy of the report relied on against him was not furnished.
16. Considering the discussions made above, irresistible conclusion that came to be arrived at are:-
(i) The petitioner, the President of the village panchayat is not only primarily responsible for the misappropriation of the amount but also as an executive authority is responsible for the maintenance of the accounts, disbursement of the amount for the various works carried on by the panchayat.
(ii) Since actions were taken against other officers namely Block Development Officer, Block Engineer, Overseer, Panchayat Assistant and Makkal Nala Paniyalar, it cannot be heard on the side of the petitioner that the petitioner alone was singled out and others have been let scot free.
(iii) The petitioner having paid the amount alleged to have been misappropriated by him cannot be heard to say now that he was compelled to make payment by the Block Development Officer,even though he has not misappropriated the amount.
(iv) The Inspector of Panchayat, namely the District Collector, Villupuram, excercising his discretion and on the matters placed before him found that the petitioner misappropriated the panchayat fund and removed the petitioner from the post of the village panchayat as contemplated under
Section 205(11) of the Act.
(v) Both the Inspector of Panchayat as well as the Government, second respondent have given reasons for their order which are well founded and does not call for interference by this Court.
(vi) Inspector of Panchayat is not bound to act on the views of the members of the village panchayat and has got discretionary power to overlook the views of the panchayat and come to an independent conclusion about the charges made against the petitioner which he has done it as per
Section 205(11) of the Act.
(Vii) Absolutely, there is no violation of the principles of natural justice as alleged by the petitioner.
17. In view of the discussions made above and the reasonings given therein, I am of the considered opinion that the orders of the first respondent or the second respondent namely the Inspector of Panchayat (District Collector, Villupuram) and the Government respectively does not require any interference by this Court.
18. In fine the writ petition stand dismissed. Connected miscellaneous petitions are closed. No order as to costs.
pgp To
1.The Inspector of Village Panchayats cum District Collector, Villupuram District.
2.Principal Secretary to the Govt., The Government of Tamilnadu, Department of Local Administration, Fort St. George, Chennai 600 009