IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.42203 OF 2017 (LB-RES) Between:
Sri. C.M. Siddaraju, S/o. Mariyappa, Aged about 41 years, President of Hulikere Grama Panchayath, Srirangapatna Taluk, Mandya District – 571 428. . ... Petitioner (By Sri. H.B. Chandrashekar & Sri. Veeresha K, Advocates) And:
1. The State of Karnataka, The Deputy Director/ Under Secretary of Panchayath Raj Development and Rural Department, Vikasa Soudha, Bengaluru – 560 001.
2. The Deputy Commissioner, Nehru Nagara Mandya District, Mandya – 571 401.
3. The Chief Executive Officer, Mysore Bangalore Road, Near DC Office, Mandya District – 571 401.
4. The Panchayath Development Officer, Hulikere Village Panchayath, Hulikere, Belegolo Hobli, Srirangapatna Taluk, Mandya District – 571 401 5. The Executive Officer, Taluk Panchayath, Srirangapatna Taluk, Mandya District – 571 401 6. Superintendent of Police, Anti Corruption Board, No.49, Khanija Bhavan, Race Course Road, Bengaluru – 560 001.
7. Sri. Ramakrishna, S/o. late Kariyappa, Adhyaksha of Hulikere Grama Panchayath, Srirangapatna Taluk, Mandya District – 571 428. ... Respondents (By Sri. M.A. Subramani, HCGP for R1, R2 & R6; Sri. B.J. Somayaji, Adv. for R3 to R5 & Sri. G.B. Chandu Gowda, Adv. for R7) This petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 24.08.2017 passed by respondent No.1 vide Annexure – F and direct the respondents to conduct detailed enquiry against the petitioner and etc.
This petition coming on for Preliminary Hearing ‘in ‘B’ Group, this day, the Court made the following:
O R D E R The petitioner who was elected as member of Hulikere Gram Panchayath in the year 2015-16 was subsequently elected as an Adhyaksha of the Hulikere Gram Panchayath.
2. It is stated that a complaint has been lodged against the petitioner on the allegation that the petitioner had sought for a bribe of Rs.2,000/- relating to clearance of bill of Rs.12,072/-. On the basis of said complaint, FIR came to be registered in FIR No.4/2016 on 05.11.2016. It is stated that though a case has been registered, the proceedings before the Court have not been concluded.
3. On the basis of the FIR, show cause notice came to be issued calling upon the petitioner as to why proceedings under Sections 43(A) and 48(4) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred as ‘Act’ for short) cannot be initiated in light of the letter written by the Additional Director General of Police (Anti Corruption Bureau) stating bringing to notice that petitioner was arrested pursuant to a trap proceeding while accepting a bribe of Rs.2.000/- on 05.02.2016.
4. Petitioner in response to the show cause notice had issued a reply on 08.02.2017 stating that the complaint was lodged on account of political ill-will against him and he has also denied the allegation made in the complaint. It was further stated in the reply that till proceedings are concluded before the Court initiated pursuant to the complaint, the proposed action for removing of the petitioner as a member, has to be deferred. The petitioner asserts that no further notice has been issued and the impugned order at Annexure-F dated 24.08.2017 has been passed without any enquiry and the same is contrary to the mandate under Section 43(A) of the Act, which provides for an enquiry and giving of an opportunity of being heard and also contrary to the mandate of Section 48(4) of the Act, which provides for action to be taken “after an opportunity is afforded for hearing him”. The petitioner has further contended that the procedure of issuing show cause notice and reply being furnished could not be a substitute for enquiry as contemplated under the Act and relies on the order passed in Writ Petition No.201726/2017 dated 15.09.2017. He also relies on the order passed by the Division Bench of this Court reported in ILR 2012 KAR 3315 wherein under similar facts, Court has opined that the question as to whether a person is guilty cannot be adjudicated, merely because proceedings before a criminal court had been initiated pursuant to the complaint are pending. Petitioner also relied on the judgment in W.P.No.20304/2018 dated 21.02.2019 wherein this Court has dealt with the nature of enquiry to be conducted in such proceedings and has opined that there must be an enquiry and the enquiry must observe principle of natural justice by affording an opportunity of personal hearing to the member, considering the consequences that would be faced by such member, in the event an order is passed under Section 48(4) or 43(A) of the Act.
5. It is not disputed even by the learned AGA that no separate enquiry has been held. It is merely contended that the proceedings insofar as issuance of show cause notice and an opportunity to file a reply having been afforded would be sufficient, in light of the serious allegations that have been made against the petitioner.
6. Learned counsel appearing for respondent No.3 would state that a reply to the show cause notice with a bald denial and without there being any substantive defence in the reply at Annexure-E1, the impugned order is to be upheld.
7. Learned counsel appearing for respondent No.7 who is the Adhyaksha elected in the place that became vacant consequent to the removal of the petitioner contends that subsequent to the vacancy pursuant to the impugned order, respondent No.7 has been elected and his rights to occupy the office and complete the term cannot be prejudiced by any order to be passed in the present petition.
8. Heard the learned counsel appearing for the parties.
9. It is a settled position that the mandate of Section 43(A) of the Act provides for holding of an enquiry and affording an opportunity to the said member of being heard. Similarly, Section 48(4) of the Act also provides for affording an opportunity of hearing the said Adhyaksha before coming to the decision of removing him. In light of the law laid down by this Court in the judgments referred to by the petitioner what comes out is, the principle of natural justice are required to be adhered to in the proceedings relating to the removal initiated under Section 43(A) and 48(4) of the Act. The mere fact that the criminal case is pending is not a ground for coming to the conclusion that misconduct has been committed. This Court in the order passed in ILR 2012 Kar 3315 while dealing with similar facts has held that the finding that the member is guilty of misconduct must be a separate finding to be made more so when proceedings before the Criminal Court are still to be concluded.
10. The conclusion as regards misconduct having been committed is to be made after a separate enquiry especially when a criminal proceedings have not yet reached a finality. In light of the admitted position that there was no separate enquiry after receipt of reply to the show cause notice, the order at Annexure-F is clearly in violation of mandate of Sec.48(4) of the Act and accordingly it is set aside.
11. In light of the observations made above and in the light of the law laid down by this Court in W.P.No.20304/2018 dated 21.2.2019 (reported in ILR 2012 Kar 3315), respondent No.1 is reserved the liberty to resume proceedings initiated pursuant to the reply received to the show cause notice. Fresh notice to be issued to the petitioner in the proceedings and enquiry to be resumed and principles of natural justice to be followed in such proceedings. In the light of the observations made above and in light of law laid down as regards manner in which enquiry is to be conducted in W.P.No.20304/2018 and also keeping in mind the observations made by the Division Bench which is reported in ILR 2012 KAR 3315, enquiry to be proceeded with.
12. Insofar as the election of respondent No.7 is concerned, it has to be noted that this Court had made it clear by its order dated 08.11.2017 that the election held would remain subject to the final result of the writ petition. In light of the order passed setting aside the impugned order at Annexure-F, the election held pursuant to the vacancy created by virtue of the order at Annexure-F, is also a matter that would be subject to the consequences that would flow from setting aside at Annexure-F. Accordingly, election of respondent No.7 is also set aside and the consequences that would flow is that the petitioner would now stand restored to his earlier position as prevailing prior to passing of Annexure-F.
13. I.A.No.2/2017 and 2/2018 filed to bring subsequent events on record are allowed and matters stated therein are taken note of.
14. Accordingly, the petition is allowed subject to the observations made above.
Sd/- JUDGE SN/-