The case of the petitioner is as follows:
The writ petitioner is the Vice President of Gundakal Village Panchayat, Zodukuli Post, Omalur Taluk. He is aggrieved by the order of the first respondent dated 17.02.2009, by which, the District Collector-cum-Inspector of Village Panchayats, Salem District ordered that the fourth respondent herein is temporarily permitted to sign the cheques along with the President, the third respondent herein, to operate the Village Panchayat Fund Account.
2. The facts which are necessary for the purpose of disposing of the above writ petition are as follows:
The petitioner is an elected Vice President of Gundukal Village Panchayat. It is his case that he belongs to one political party and the third respondent President belongs to another political party. Therefore, the third respondent is creating problems in the administration of the Panchayat as he is the second signatory of the cheques. On 08.01.2009, he received a notice from the third respondent President for a meeting to be held on 09.01.2009 at the office of the Gundakal Village Panchayat. The subject that was mentioned in the notice dated 07.01.2009, which would be taken up for discussion is with regard to the petitioner's non-cooperation in the Panchayat's administration. The petitioner sent a representation to the first and second respondents requesting them to stop the meeting to be held on 09.01.2009 on the ground that the notice was issued as per Tamilnadu panchayat Rules. However, he went to the office of the Village Panchayat on 09.01.2009, but, was shocked to note that the meeting was already held and a resolution was passed and the same was sent to the second respondent/Block Development Officer. The second respondent issued a notice dated 20.01.2009 to the petitioner calling upon the petitioner to come and attend an enquiry to be held on 29.01.2009. On 29.01.2009, the petitioner attended the enquiry and submitted his explanation. An enquiry report was sent by the second respondent to the first respondent and it is contended by the petitioner that he was not served with a copy of the enquiry report by the second respondent. According to the petitioner, the first respondent after receiving the enquiry report and without issuing any show cause notice, passed the impugned order dated 17.02.2009 taking away the powers of the petitioner as a second signatory of the cheque and conferring the same to the fourth respondent herein. Challenging the order dated 17.02.2009, the petitioner approached this court under
Article 227 of the Constitution of India, praying to quash the order of the first respondent dated 17.02.2009.
3. The main grounds put forward by the petitioner is that the impugned order has been passed in total violation of the principles of natural justice.
4. This Court on 20.03.2009 granted interim stay and ordered notice.
5. The respondents 1 and 2 filed M.P.No.4 of 2009 to vacate the interim stay granted in M.P.No.2 of 2009 dated 20.03.2009. Similarly, the third respondent has also filed a vacate stay petition in M.P.No.3 of 2009.
6. In the counter affidavit filed on behalf of the respondents 1 and 2, the Block Development Officer of Panchayats of Kadayampatti stated that the petitioner did not cooperate in several matters and therefore, there was a difficulty in conducting the affairs of the Panchayat. Accordingly, a special meeting was convened by the third respondent to decide the said issue in the meeting held on 09.01.2009 and such notice was served on all the members including the petitioner. On 09.01.2009, a resolution was passed to cancel the cheque signing power to the petitioner as second signatory and proposing the fourth respondent as the second signing authority. After receiving the resolution No.11 of 70 dated 09.01.2009, an enquiry was conducted on 29.01.2009. The second respondent submitted a report dated 03.09.2009 to the first respondent and the first respondent passed the order which is impugned in the writ petition by invoking the provisions of the Government orders in G.O.Ms.No.146 (Department of Rural Development and Panchayat Raj (C4)) dated 17.8.2007. According to the respondents 1 and 2, the impugned order has been passed in accordance with law, following the principles of natural justice.
7. In the counter affidavit filed by the third respondent, the third respondent stated that proper notice was issued to all the members for the meeting to be held on 09.01.2009 and only after the agenda was discussed in detail a resolution was passed in the interest of the affairs of the Panchayat and out of 9 members, 6 members supported the resolution. It is pointed out that against the order impugned in the writ petition, there is an alternative remedy of a revision that could be filed before the Government and therefore, the writ petition is to be dismissed on the ground of not following the alternative remedy.
8. Heard the learned counsel for the petitioner, Thiru Edwin Prabhakaran, the learned Additional Government Pleader for the first respondent, the learned counsel for the second respondent and the learned counsel for the third respondent. I have also perused the entire documents available on record including the Counter affidavits filed by the respondents.
9. The learned counsel for the petitioner submits that all the provisions of the Panchayat Act as well as the Government orders issued in this regard are flouted by the first respondent in passing the impugned order and therefore, the same has to be set aside. In support of his submission, the learned counsel for the petitioner relied on a judgment of this Court reported in 2005(1) C.T.C. 545 (Pugazhendran Vs. B.G.Balu).
10. Per contra, the learned Additional Government Pleader submits that the first respondent has followed the procedure before issuing the impugned order and if the petitioner is aggrieved, he has to only approach the Government by filing a revision petition and he cannot straightaway approach this Court under
Article 226 of the Constitution of India. In support of his submission, the learned Additional Government Pleader relies on a decision of this Court reported in 2009(1) C.T.C. 356 (The District Collector cum Inspector of Panchayat V. S.Senthamiz Selvi).
11. The learned counsel for the third respondent submits that as the petitioner is not cooperating, the administration of the Panchayat has come to a standstill and therefore, the majority of the members supported the resolution which was approved by the third respondent after conducting an enquiry through the second respondent. Therefore, he submits there is no violation of the principles of natural justice and he also contends that the writ petition is to be dismissed on the ground of not following the alternative remedy.
12. I have considered the rival submissions carefully with regard to facts and citations.
13. A perusal of the order impugned in this Writ petition shows that the first respondent approved the resolution passed by the Panchayat on 09.01.2009 and accordingly took away the said signing power of the petitioner and handed over the same to the fourth respondent temporarily. To pass this order, the first respondent drew power from G.O. Ms.No.146 dated 17.08.2007.
14. In the light of the above, it is necessary to refer to G.O. Ms.146 dated 17.8.2007. In G.O.Ms.No.146 under the caption "Accounts and Audit", the following paragraph is included under the caption "Mode of operation".
"(C) Mode of Operation:-
The Village Panchayat Fund Account shall be jointly operated by the President and the Vice President. In exceptional cases, where there is adversarial relationship between the President and the Vice-President, the Village Panchayat, may be a resolution authorize any member other than the Vice-President to operate the account along with the President, provided that the prior approval of the Inspector of Village Panchayats (District Collector) will be obtained for this."
15. From the above, it is very clear that the Village Panchayat Fund Account should be jointly operated by the President and the Vice President. When there is adversarial relationship between the President and the Vice President, then the Village Panchayat could pass a resolution authorising any member other than the Vice President to operate the accounts along with the President. But, before doing so, the prior approval of the Inspector, Village Panchayats (District Collector) should be obtained.
16. Admittedly, in the present case, notice dated 07.01.2009 was issued by the President for the meeting to be held on 09.01.2009. The subject of discussion mentioned in the notice is to discuss about the non cooperation attitude of the petitioner in the Panchayat administration.
17. It is also not in dispute that on 09.01.2009, a resolution has been passed by the majority of the members selecting the fourth respondent to sign the cheque along with the President by taking away the cheque signing powers from the petitioner. If that being so, then, I am of the considered view that G.O. Ms.No.146 dated 17.08.2007 was not at all followed by the third respondent as well as by the Panchayat. What is contemplated in the Government order is, prior approval of the first respondent before proceeding with the resolution and in the absence of such prior approval, even if a resolution is passed, that is only a nullity and the same could not be approved later on by the first respondent.
18. Further, the first respondent before passing the order impugned in the writ petition has not issued any notice to the petitioner. The first respondent relied on the resolution dated 09.01.2009 and the recommendations of the second respondent for passing the impugned order and the impugned order does not show that there was an independent consideration of the entire facts by the first respondent.
19. In 2005(1) C.T.C. 545 (cited supra), a Division Bench of this Court observed that before granting prior approval to the resolution of the Village Panchayat authorising any other member to operate the account along with the President, the Inspector of Panchayat has to give a notice to the Vice President and an opportunity of hearing him. The Division Bench has also observed that if the Panchayat wants to pass a resolution authorising another member other than the Vice President to jointly operate the account, then, prior approval of the Inspector of Panchayat has to be obtained for this. The Division Bench further observed that it would decide the matter objectively and impartially without being influenced by any extraneous order or considerations. He should also apply his mind and decide by a writing order giving reasons as to whether in his opinion the Vice President is refusing to sign the cheques for ulterior motives or for genuine reasons in the interest of the Panchayat. The relevant portions read as follows:
"14. We agree with the learned Single Judge that before granting prior approval to the resolution of the Village Panchayat authorizing any other member to operate the account along with the President, as provided by G.O.Ms.No.92, Rural Development (C.III) Department dated 26.03.1997, the Inspector of Panchayats (District Collector) has to give a notice to the Vice President and an opportunity of hearing to him. Such hearing nee d not be a personal hearing and he can only be given a show cause notice asking him to give a reply to the allegations in the slow cause notice within a reasonable period. In our opinion, such a procedure would comply with the principles of natural justice, and it is not necessary that the Vice President must be allowed to appear in person along with his counsel, witnesses, etc. vide M.P.Industries V. Union of India, 1966 SC 671 (vide paragraph 20), Anil Kumar Srivastava V. Chairman, L.I.C. Of India, 2003 ALJ 1744, Narain Das Jain V. C.W.T. Vol. 191 ITR 126 etc. As observed by the Supreme Court in Board of Mining Examination V. Ramjee, AIR 1977 SC 965, Kumaon Mandal Vikas Nigam Ltd. V. Giri Shankar Pant, 2001(1) SCC 182 natural justice is not an unruly horse. The rules of natural justice are flexible and are not a strait-jacket formula, vide Bar Council of India V. High Court of Kerala, JT 2004 Supp. (1) SCC 428 (paragrph-47), The M.S.F.C. V. M/s.Suvarana Board Mills & another, JT 1994(5) SC 280, Union of India V. Tulsiram Patel, AIR 1985 SC 1416.
16. In the present case, we are satisfied that there was violation of natural justice, since no notice was given by the Collector before passing order dated 07.11.2002. This averment has been specifically been made by the writ petitioner in paragraph-4 of his affidavit as well as in ground (d), but there is no specific denial of this allegation by the Collector in his counter affidavit. Hence, this allegation must be deemed to be correct.
27. We would however point out that before granting prior approval it would be the duty of the Inspector of Panchayats (District Collector) to give a hearing to the Vice President or (President, as the case may be) (which need not be a personal hearing as already mentioned above), and apply his mind and decide by a written order giving reasons as to whether in his opinion, the Vice President (or President, as the case may be) is refusing to sign the cheque for ulterior motive, or for genuine reasons in the interest of the Village Panchayat. It will be the duty of the Inspector of Panchayats, to decide this matter objectively and impartially without being influenced by any extraneous pressures or considerations. If the refusal to sign the cheque is for good and genuine reasons in the interest of the Village Panchayat, the Inspector should refuse approval, but if it is for extraneous considerations or is mala fide he should grant it.
29. In the present case, a perusal of the order of the District Collector, Vellore (Inspector of Panchayats, Vellore) dated 7.11.2002 cancelling the power of the Vice President to sign the panchayat's cheques as joint signatory, shows that the District Collector has emrely acted on the recommendation of the Block Development Officer, Katpadi Panchayat Union, and he has not applied his mind independently to the facts of the case, and he has not come to any independent conclusion that the refusal to sign cheques by the Vice President was mala fide or for ulterior motives. The District Collector, Vellore, without issuing notice to the petitioner, appears to have mechanically accepted the report of the Block Development Officer, Katpadi Panchayat Union, which in our opinion was not proper."
20. In the light of the decisions of the Division Bench of this Court, if the facts of the present case are considered, the impugned order will clearly show that the first respondent has merely acted on the recommendations of the second respondent and he has not applied his mind independently to the facts of the case. Further, he has also not issued any notice to the petitioner before passing the order impugned. In such circumstances, I have no hesitation to say that the order has been passed in total violation of the principles of natural justice.
21. Now, let me consider the argument of the learned Additional Government Pleader submitting that since there is an alternative remedy of approaching the Government, the writ petition is to be dismissed on that ground.
22. It is true that there is an alternative remedy to the Government as provided under Sec.219 of the Tamil Nadu Panchayat Act 1994 and under Sec.219, any order passed or proceedings recorded under the provisions of this Act, could be questioned before the Government by filing a revision petition.
23. In 2009(1) C.T.C. 356 (cited supra), a Division Bench of this Court held that when the Inspector of Panchayat passing an order removing the President from his post, he has to exhaust the alternative remedy of filing an appeal under Sec.205(12) and therefore, the writ petition could not be entertained.
24. Now, it is settled law, availability of the alternative remedy is not a total bar for entertaining a writ petition under
Article 226 of the Constitution of India. In a case where there is a clear violation of the principles of natural justice or if an order has been passed without any jurisdiction, the availability of the alternative remedy is not a bar to maintain a writ petition under
Article 226 of the Constitution of India.
25. In this case, it has been clearly established that the Panchayat has flouted the Government order i.e. G.O.Ms.No.146 dated 7.8.2007 and passed a resolution selecting the fourth respondent as the second signing authority in the place of the petitioner without getting the prior approval of the first respondent Inspector of Village Panchayat. The first respondent Inspector of Village Panchayat later on passed the impugned order permitting the fourth respondent to sign the cheques temporarily along with the President and before passing that order no opportunity was given to the writ petitioner. Further, he has not gone into the matter independently and simply relied on the report submitted by the second respondent. When these facts have been clearly made out before this Court, it is unnecessary to drive the writ petitioner to approach the Government by filing a revision petition. Therefore, I reject the argument of the learned Additional Government Pleader that the writ petition is to be rejected as the writ petitioner has failed to avail the alternative remedy as provided under the Tamilnadu Panchayat Act 1994.
26. In the result, the impugned order of the first respondent dated 17.02.2009 is rejected and the writ petition is allowed as prayed for. No cost. Connected M.P.Nos.1 & 2 of 2009 are closed and M.P.Nos.3 & 4 of 2009 are dismissed.
vaan To
1. The District Collector-cum-
Inspector of Village Panchayats, Salem District, Salem.
2. The Block Development Officer (Panchayats), Kadayampatti, Omalur, Omalur Taluk, Salem District.
3. The President, Gundukal Village Panchayat, Omalur Taluk, Salem District