IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.7335/2019 (LB-ELE) Between:
Sri K.V. Venkateshappa, S/o Venkataramappa, Aged about 40 years, Member (Removed) Mudianuru Grama Panchayath, Mulbagilu Taluk, Kolar District – 563 131 And Residing at Krishnagiri Village, Mudianur Post, Mulbagilu Taluk, Kolar District. … Petitioner (By Sri M. Nagarajan, Advocate) And:
1. The State of Karnataka, Represented by its Secretary, Rural Development & Panchayath Raj Department, M.S. Building, Bengaluru – 560 001.
2. The Chief Executive Officer, Zilla Panchayath, Kolar District, Kolar – 560 101.
3. The Taluk Executive officer, Taluk Panchayath, Mulbagilu Taluk, Kolar District – 563 131.
4. The Panchayath Development Officer, Mudianuru Grama Panchayath, Mulbagilu Taluk, Kolar District – 563 131.
5. The Technical Coordinator, MGNREGA Division, Mulbagilu Taluk, Kolar District – 563 131. … Respondents (By: Smt. Prathima Honnapura, AGA for R-1; R-2 to R-5 Served and Unrepresented) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to call for the records pertaining to the impugned order dated 06.09.2018 is produced herewith and marked as Annexure-J passed by respondent No.1, peruse and declare that the same is in violation of the principles of natural justice and the provisions of the Karnataka Gram Swaraj and Panchayath Raj Act 1993 and not tenable in the eye of law. As a consequence thereof;
i) quash the impugned order dated 06.09.2018 is produced herewith and marked as Annexure-J passed by respondent No.1 as same is illegal, arbitrary violation of natural justice and contrary to Section of 43-A of Karnataka Gram Swaraj and Panchayath Raj Act, 1993 and etc.
This Writ Petition coming on for Preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner was elected as a member of Mudianuru Grama Panchayat, Mulbagilu Taluk, Kolar District in the year 2015. It is submitted that on the basis of a complaint dated 01.07.2017, the proceedings were initiated, show cause notice came to be issued and pursuant to enquiry, the impugned order at Annexure-J came to be passed on 06.09.2018 whereby, the petitioner’s membership stood cancelled pursuant to the power under Section 43-A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for brevity). The said order at Annexure-J is called in question in this petition. The order at Annexure-J reveals that the show cause notice came to be issued to the petitioner.
2. In sum and substance, the allegation is that with respect to the execution of work in NREGA Scheme for the year 2015-2016 and 2016 and 2017, there has been financial impropriety.
3. It is noticed that there were proceedings of enquiry and a report came to be sent on 11.08.2017 to the Chief Executive Officer by the Assistant Director, Taluk Panchayat, Mulbagal. The said report, a copy of which is enclosed alongwith the statement of objections makes out a case that with respect to certain works that have been executed in the year 2016-2017, the petitioner has been paid certain amount and payment has been made with reference to TIN No.29031145905 which belongs to the petitioner. The report further reveals that payment has been made in excess of the entitlement. There is reference that no tax has been deducted when payment is made and that there were certain discrepancies in the amount and that there were alterations in the bill. It further comes out that a report came to be submitted to the Principal Secretary, Department of Panchayat Raj and Rural Development by the Chief Executive Officer of Zilla Panchayat on 15.12.2017. There is a reference that an amount of Rs.17,52,762/- has been remitted into the account of the petitioner and the payment relates to works executed for the year 2015-2016 and 2016-2017. On the basis of the said report and subsequent to the show cause notice issued, notices have been issued to the petitioner and proceedings conducted, copies of the said notices are enclosed as Annexures-R4, R5, R6 and R7. The order sheet of the enquiry proceedings is enclosed alongwith the statement of objections and reveals the presence of petitioner on various dates of hearing. On the basis of such of the proceedings, the impugned order has come to be passed and it is recorded in the said enquiry proceedings that on the basis of the report by the Chief Executive Officer, Zilla Panchayat and their technical investigation report, there is material to point out to the misappropriation and misuse of funds.
4. Learned counsel for the petitioner contends that the enquiry that has been conducted is not in accordance with the principles laid down in various judgments, including the decision in Writ Petition No.20304/2018 (LB-RES) and the judgment in the case of Sri Ajithkumar v. The State of Karnataka, rep. by Principal Secretary, Department of Rural Development and Panchayat Raj and Others reported in ILR 2019 KAR 67. It is further contended that mere receipt of amount by the petitioner with respect to supply of certain materials to the contractor would not amount to misconduct attracting Section 43-A of the Act.
It is further submitted that execution of work is with respect to Karnataka Rural Employment Guarantee Scheme (KREGS) and hence cannot be termed to be a contract of Grama Panchayat.
5. It is also contended that the action with respect to disqualification under Section 12(h) of the Act is an independent proceeding and the case is to be made out against the petitioner independently under Section 43-A of the Act.
6. Learned Additional Government Advocate appearing for the respondent State would contend that there has been detailed enquiry, the records of which are furnished alongwith the statement of objections and that the petitioner has been present on various dates of hearing and enquiry has been conducted only after show cause notice came to be issued. It is further submitted that the admitted fact being that the petitioner has received the amount into his account, it could be said that the petitioner has been guilty of misconduct in discharge of duties as contemplated under Section 43-A(1)(i) and 43-A(1)(v) of the Act.
7. Heard learned counsel appearing for the parties.
8. The question as regards to the fairness of enquiry is concerned, it is to be noted that an enquiry has been held which was preceded by a show cause notice. Copy of the enquiry proceedings at Annexures- R4 to R8 and R9 to R10 would reveal the presence of petitioner on various dates of hearing. In fact, the case of the petitioner itself is that though the amount has been received by remittance into his account, but was with respect to all supply of materials. This fact is not in dispute. The said assertion/admission of the petitioner in the inquiry is recorded in the proceedings of 04.08.2018. Insofar as the requirement under Section 43-A(1)(i) of the Act, it is clear that if a member has been guilty of misconduct in the discharge of duties or of any disgraceful conduct, it would be a ground to initiate proceedings for removal of a member under Section 43-A of the Act. Section 12 of the Act which provides for grounds of disqualification stipulates that any member who has directly or indirectly any share or interest in any work done by order of the Grama Panchayat, or in any contract or employment with, or under, or by or on behalf of, the Grama Panchayat, or if he is either directly or indirectly by himself or by his agent, partner or employee involved in obtaining or execution of any work or contract on behalf of the Grama Panchayat or of any contract for the supply of goods and services to the Grama Panchayat, the same would be a ground for disqualification.
9. In light of the undisputed stand of the petitioner that amounts have been received into his account and that amount has been received relating to supply of materials, it is clear that the ground as referred to in Section 12(h) of the Act has been made out. No doubt, it is the contention of learned counsel for the petitioner that proceedings under Section 12(h) of the Act has been on a different footing. However, in light of the term ‘guilt of misconduct in discharge of duties or disgraceful conduct’ found under Section 43-A of the Act, it is clear that any acts done, which would incur disqualification under Section 12 (h) could be in appropriate circumstances be construed as misconduct or disgraceful conduct as in the facts of the present case.
10. It is further to be noted that insofar as the contention of fairness of enquiry is concerned, learned counsel for the petitioner has relied on the decision in the case of Ajithkumar (supra) at paras-8 and 9 emphasizing on the series of consequences that would visit the petitioner, unless strict adherence to principles of natural justice is followed.
11. It is to be noted that the petitioner has been present during the enquiry proceedings on more than one occasion. The facts regarding receipt of amount not being in dispute, explanation of the petitioner is not sufficient to accept that no ground is made out under Section 43-A of the Act. This Court in W.P.No.20304/2018 (LB-RES) has also provided guidelines, however, in light of the undisputed facts referred to above relating to remittance being made to the petitioner and the stand of the petitioner being that it relates to supply of materials for a work of the Grama Panchayat. There is no explanation forthcoming as to the report furnished which records that the work has been executed in the year 2015-2016 and 2016-2017 with respect to which payments have been made. In fact, TIN No.29031145905 undisputedly referred to while making payment is with respect to the petitioner. In light of the same and noticing that the petitioner has obtained gratification with respect to the work done in implementation of Karnataka Rural Employment Guarantee Scheme, which admittedly is implemented under the supervision of the Gram Panchayat at the Panchayat level, no ground is made out to interfere with the findings of the Enquiry Authority. This Court in exercise of writ jurisdiction cannot enter into the correctness of the findings of the enquiry, since it would involve adjudication on facts, when prima facie conclusion arrived by the Enquiring Authority is in accordance with the established principles and after having afforded due opportunity to the petitioner. It cannot be said that the finding in the enquiry is perverse. The purport of Section 43-A is also to the effect that the standard of conduct that is expected of elected representations is to be higher than that of other citizens.
12. Learned counsel for the petitioner further contends that as per Annexure-L which relates to the NREGA 2011 Scheme, procedure has been provided including social audit and enquiry by Ombudsman with respect to any allegations, fraud, embezzlement, etc. in the implementation of Karnataka Rural Employment Guarantee Scheme works, accordingly, it is contended that in light of the said notification at Annexure-L, there was no jurisdiction for the Authorities to carry out parallel enquiry and submit report to the Government.
13. It is noticed that power under Section 43-A can be exercised if grounds are made out as provided under the said Section on recommendation of Grama Panchayat or otherwise and mere provision of enquiry and investigation with respect to implementation of Rural Employment Guarantee Scheme is no for bar, the exercise of statutory power. The power under Section 43-A of the Act could be exercised on the basis of the report so submitted to the Authority which can be on the basis of summary enquiry as has been done in the present case by way of report submitted to the respondent No.1 by the Zilla Panchayat and hence, the said contention is liable to be rejected.
14. Hence, no ground is made out to interfere with the impugned order and accordingly, the petition is rejected.
Sd/- JUDGE VGR