Karnataka High Court
Sri. Ajithkumar S/O. Annasaheb Chigare vs The State Of Karnataka on 27 August, 2018
Bench: G.Narendar, B.M.Shyam Prasad
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R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
W.P.Nos.110780/2017 &
111067/2017 (GM-KLA)
BETWEEN:
SRI. AJITHKUMAR S/O. ANNASAHEB CHIGARE,
AGED ABOUT 44,
OCC:DOCTOR AND PRESENTLY
MEMBER OF GRAM PANCHAYAT,
INGALI & FORMER PRESIDENT,
R/O. INGALI VILLAGE,
CHIKKODI TALUK,
BELAGAVI DISTRICT-591201. ...PETITIONER
(BY SRI SACHIN S.MAGADUM, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPTD. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF RURAL DEVELOPMENT
& PANCHAYAT RAJ,
M S BUIDLING, AMBEDKAR VEEDHI,
BANGALORE-560001.
2. THE KARNATAKA LOKAYUKTHA,
REPTD. BY ITS REGISTRAR,
M.S.BUILDING, AMBEDKAR VEEDHI,
BANGALORE-560001.
:2:
3. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT,
BELAGAVI-590002.
4. THE TALUKA EXECUTIVE OFFICER,
TALUKA PANCHAYAT, INGALI,
TALUK:CHIKKODI,
BELAGAVI DISTRICT-591201.
5. THE PANCHAYAT DEVELOPMENT OFFICER,
GRAM PANCHAYAT, INGALI,
TALUK:CHIKKODI,
BELAGAVI DISTRICT-591201. ...RESPONDENTS
(BY SMT.VEENA HEGDE, AGA FOR R1,
SRI MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R2,
SRI SHIVARAJ C.BALLOLLI, ADV. FOR R3 TO R5)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
REPORT UNDER SECTION 12(3) DATED:24.09.2016 MADE IN
NO.COMPT/UPLOK/BGM-2795/2013 OF THE SECOND
RESPONDENT IN SO FAR AS PETITIONER IS CONCERNED AS
BEING ARBITRARY, ERRONEOUS AND CONTRARY TO LAW
EQUITY AND JUSTICE (ANNEXURE-F) AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, G. NARENDAR J., MADE THE FOLLOWING:
ORDER
The petitioner is before this Court being aggrieved by the proceedings of the Upa-Lokayuktha dated 24.09.2016 vide Annexure-F to the writ petitions recommending initiation of action under the Panchayathraj Act and the consequential proceedings of the 1st respondent dated 19.10.2017 vide Annexure-J to :3: the writ petitions whereby the respondents exercising the powers vested under the Panchayathraj Act have been pleased to remove him from the membership of the Ingali Gram Panchayath.
2. The brief facts are that members of the public had filed a complaint to the authorities alleging irregularities in the implementation of the schemes under the MNREGA Scheme and alleged that there was misuse and misappropriation of funds granted under the said Scheme, that on receipt of the complaint, an investigation was conducted by the Deputy Superintendent of Police and after the investigation, a finding was given by the Investigating Officer stating that the allegations in the complaint were baseless and recommended for closure of the proceedings. Despite the recommendation by the Dy.S.P. to close the proceedings, 2nd respondent-Upa-Lokayuktha forwarded a report under Section 12 (3) of the Karnataka :4: Lokayuktha Act recommending action against the petitioner under the provisions of Section 43(A) of the Panchayathraj Act, that the 1st respondent acting on the same proceeded to issue a show-cause notice and upon receipt of reply, proceeded to pass the impugned order vide Annexure-J.
3. It is contended by the learned counsel for the petitioner that the order impugned is per-se violative of the principles of natural justice, in that no opportunity has been provided to the petitioner to demonstrate the error in the report. He would submit that the respondents have passed the impugned order removing the petitioner from the membership of the Ingali Gram Panchayath even without affording an opportunity of hearing and merely on the written reply furnished by him pursuant to the show-cause notice. Learned counsel for the petitioner would draw the attention of :5: the Court to the provisions of Section 43-A which reads as under:
43A. Removal of members.- (1) The Government if it thinks fit, on the recommendation of the Gram Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary, -
(i) if he has been guilty of misconduct in the discharge of duties or of any disgraceful conduct;
(ii) become incapable of performing duties as a member, or persistently remiss in performing duties;
(a) on being medically unfit to hold the post as may be certified by the district surgeon;
(b) as a result of insolvency or of unsound mind,
(iii) has failed to attend four consecutive meetings of the panchayat, and in the case of an Adhyaksha or Upadhyaksha, failed to convene two consecutive meetings which were either due or were necessary; or
(iv) if the member, by coercion or fraud entice any voter or member of Gram Panchayat or Taluk Panchayat or Zilla Panchayat as the case may be to trade the post of member or Adhyaksha or Upadhyaksha of Gram Panchayat or Taluk Panchayat or Zilla Panchayat, as the case may be, during election for a consideration;
(v) in the execution of any work of the panchayat, contractual or otherwise found involved directly with any person who is a nearest relative in the family or :6: otherwise associated in any transaction related to such work as a partner, employee or a member on the Committee of such organisation, or otherwise.
Explanation: For the purpose of this section, nearest relative in the family means, -
(a) the wife or husband of a person residing with her or him;
(b)son or daughter or step-son or step-daughter;
(c) any other person related, whether by blood or marriage who is wholly dependent on such person; (2) An Adhyaksha or Upadhyaksha or member so removed shall cease to function as such member and shall be disqualified from contesting election as provided in sections 12 of the Act to any panchayat for the next six years."
4. He would contend that an opportunity of being heard is mandated under the provision and hence the impugned order passed without affording such opportunity of hearing is illegal and unsustainable and warrants interference at the hands of this Court. He would contend that even factually the order is unsustainable and has been passed without taking into consideration the investigation report dated 18.09.2014 which clearly negates the allegations and it is reported :7: that the works have been executed and hence, the very recommendation of Upa-Lokayuktha is vitiated by non- application of mind. Hence, the impugned order which is based on the recommendation of the Upa-Lokayuktha is per-se illegal and being vitiated by non-application of mind. He would contend that providing an opportunity of being heard cannot be a farcical exercise and as interpreted by this Court and by the Hon'ble Apex Court in catena of decisions would mean a meaningful hearing and not a procedure where the authorities can pass an order merely on the written reply of the accused person. He would nextly contend that the above interpretation is mandatory in view of the fact that the consequences of the action under Section 43(A) would result in serious civil consequences of the member not only suffering a removal but also a further consequence under Section 12 of the Karnataka Lokayuktha Act whereby the affected person is disqualified from participating in the democratic process for the next six years. He would :8: place reliance on the ruling of the Hon'ble Apex Court rendered in the case of RAVI YASHWANT BHOIR VS. DISTRICT COLLECTOR, RAIGAD AND OTHERS reported in (2012 STPL 9687 SC) and the ruling of the co-ordinate bench in W.P.No.43079/2015 disposed of on 06.03.2017 whereby the co-ordinate division bench has been pleased to hold that it is mandatory on the authorities to independently apply their mind and arrive at a conclusion before they accept the recommendation under Section 12 (3) of the Karnataka Lokayuktha Act.
5. Heard the learned Additional Government Advocate and the learned counsel for the 2nd respondent-Lokayuktha. No objections are preferred on behalf of the respondent-State.
6. The learned Additional Government Advocate would vehemently contend that the petitioner being the executive head under the Scheme of the Act, he is responsible for the release of payments and the :9: supervision of works and hence, the petitioner is also liable for the consequence of misappropriation or other irregularities that have crept into implementation of the project.
7. Learned counsel for the 2nd respondent would also vehemently canvass the recommendation of the Hon'ble Upa-Lokayuktha.
8. Having heard the learned counsel for the parties and having given our anxious consideration to the various contentions, we are of the view that the writ petitions require to be allowed on the short point being violation of principles of natural justice of audi alteram partem. The fact that the provisions of Section 43-A invoked by the official/respondent to remove the petitioner from the membership of the Gram Panchayath and also thereby impose the embargo to him to participate in the democratic process under Section 12 mandates an opportunity of being heard. : 10 : The same is apparent on the bare reading of sub section (1) of Section 43-A. The interpretation placed by the petitioner is not misplaced. The provisions of sub section (1) clearly mandates that the Government if it thinks fit to remove any member after giving him an opportunity of being heard and after such enquiry, the Government must arrive at a conclusion that it is necessary to remove the said member. It is also relevant to note that sub section (2) of Section 43-A imposes a further prohibition on the member so removed. The member so removed under Section 43-A is prohibited from participating in the democratic process of Panchayath elections for the next six years as provided by the provisions of Section 12.
9. In the light of the above consequences, it was mandatory upon the authorities to strictly adhere by the requirements of law i.e., of affording an opportunity of being heard in the course of an enquiry. In the instant : 11 : case, no such enquiry as required by law is conducted and the impugned order is passed on the receipt of the reply to the show-cause notice. Such a cavalier approach is condemnable. To state the least, the respondents have considered the issue and acted in a whimsical manner. The authorities failed to realize the serious civil consequences that would be suffered by the aggrieved person. Further, it is settled law that an act which is mandated by law to be performed in a particular manner is required to be done in the said manner only and any departure from the stipulated procedure is unsustainable. In the instant case, the provisions of sub section (1) of Section 43-A vests an opportunity of being heard in the aggrieved person. That apart it also mandates the conduct of an enquiry and thereafter the authority has to arrive at a satisfaction that the results of the enquiry deem it necessary to remove him from the membership of the Panchayath. In the instant case, all the above factors : 12 : are conspicuously absent. Neither is any opportunity afforded to the petitioner nor has any enquiry been conducted nor has the authority arrived at the satisfaction that it is necessary to remove him from the membership of the Panchayath. Hence, this Court is of the considered opinion that the writ petitions deserve to be allowed. Though the challenge is laid to the report of the Upa-Lokayuktha produced as Annexure-F to the writ petition, the same being merely recommendatory in nature, no lis is created on account of the said report and hence, the challenge to the report is inconsequential.
10. Accordingly, the following order:
i) Writ petitions are allowed,
ii) Annexure-J stands quashed,
iii) The prayer in so far as it relates to quashing of Annexure-F, the report of the Karnataka : 13 : Upa-Lokayuktha dated 24.09.2016 is rejected as being inconsequential.
[Sd/-] JUDGE [Sd/-] JUDGE Jm/-