Madras High Court
R.Chandrasekar vs The Inspector Of Panchayats Cum on 22 April, 2010
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/04/2010
CORAM
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
W.P(MD)No.8602 of 2006
and
M.P.(MD) No.1 of 2006
R.Chandrasekar ... Petitioner
Vs
1.The Inspector of Panchayats cum
District Collector,
Sivagangai District,
Sivagangai.
2.The Block Development Officer,
Kalyarkoil Panchayat Union,
Sivagangai District.
3.The President,
Marakkathur Village Panchayat,
Kalaiyarkoil,
Sivagangai District. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
for the issuance of a Writ of Certiorari, praying to call for the records
relating to the proceedings of confirming the removal order in
Na.Ka.A7/3798/2006 dated 06.09.2006 on the file of the 1st respondent and quash
the same.
!For Petitioner ... Mr.M.Ramadhas
^For Respondents 1 and 2 ... Mr.M.Rajarajan
Government Advocate
For 3rd Respondent ... Mr.S.Balamurugan
for Mr.Thirunavukkarasu
:ORDER
The petitioner has challenged the order of the first respondent dated 06.09.2006, confirming the removal of the petitioner from the post of Panchayat Clerk in the 3rd respondent panchayat.
2. It is the case of the petitioner that he was appointed as Panchayat Clerk on 09.03.2004 in the 3rd respondent village panchayat by virtue of a resolution. Certain irregularities were alleged to have been committed by the 3rd respondent Panchayat President and those allegations were alleged to have been informed to the higher authorities by the petitioner. Therefore, the 3rd respondent by way of a resolution in the village panchayat removed the petitioner from the services of the 3rd respondent without issuing any notice or conducting any enquiry.
3.The petitioner sent a representation to the first respondent on 11.07.2006 and to the second respondent on 17.07.2006 requesting them to disburse the petitioner's six months salary and not to remove him from the post except by due process of law. As the representations were not considered, W.P.(MD) No.6264 of 2006 was filed by the petitioner and this Court directed the first respondent to dispose of the representation of the petitioner. However, the first respondent went into the matter in detail and called the petitioner for enquiry and by the impugned order confirmed the order of removal. The order of removal passed by the first respondent is challenged before this Court.
4.Mr.M.Ramadhas, learned counsel appearing for the petitioner submitted that the impugned order is liable to be quashed as the first respondent is not competent to pass the said order as he is the second appellate authority. According to the counsel, the original authority is the Panchayat President and the first appellate authority is the Block Development Officer and the second appellate authority is the Inspector of Panchayats cum District Collector. When that is the position, by passing the impugned order, the first respondent denied the two appellate remedies which are legally available to the petitioner. Secondly, he contend that no Show Cause Notice was issued or enquiry was conducted before removing the petitioner from the 3rd respondent panchayat and therefore, he would contend that the removal is in violation of principles of natural justice. He relied upon two judgments of this Court passed by learned Single Judges in W.P.(MD) No.9288 of 2008 passed in K.R.Muthupandi Vs. the District Collector, Sivagangai District, Sivagangai and another on 24.11.2008 and in A.Gnanmani v. the District Collector, Collector Office, Tirunelveli District & 2 others reported in 2010 Writ L.R. 209.
5.In the former case, His Lordship Justice S.Nagamuthu in similar circumstances quashed the impugned order on the ground that the right of appeal to the individual is lost as the appellate authority itself passed the impugned order. In the second case, the learned Single Judge held that the competent authority is entitled to pass any order and the appellate authority cannot take over the power of the original authority.
6.Mr.M.Rajarajan, learned Government Advocate submitted that when the original authority has got powers to take any action, the appellate authority is also clothed with the same powers and therefore, there cannot be any illegality on the part of the first respondent in passing the impugned order.
7.Mr.S.Balamurugan, representing Mr.S.Thirunavuk karasu, learned counsel for the 3rd respondent submitted that the Executive Authority viz., the 3rd respondent is empowered to take action against the erring Clerk, who is working under the Executive Authority. Moreover, he submitted that the first respondent only confirmed the removal of the petitioner from the 3rd respondent Panchayat. Therefore, he supported the order passed by the 1st respondent.
8.Heard respective counsel and perused the records. "Inspector" has been defined in Section 2(16). The powers of the Village Panchayat President is given under Section 83 and 84 of the Tamil Nadu Panchayats Act, 1994. Those three sections can be usefully referred as follows:
"2(16) 'Inspector' means any officer not below the rank of a collector appointed by the Government to exercise or perform any of the powers or duties of the Inspector under this Act;"
"83. Executive authority of village panchayat. - The Government may, by notification, appoint any person, who shall, subject to such rules as may be prescribed, exercise the powers and perform the functions of the executive authority of a village panchayat.
84. Functions of executive authority. - The executive authority shall, -
(a) carry into effect the resolutions of the village panchayat:
Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this Act or that, if carried out, it is likely to endanger human life or health or the public safety, the executive authority shall refer the matter to the Government for orders and their decision shall be final;
(b) control all the officers and servants of the village panchayat;
(c) discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and conditions imposed, by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly responsible for the due fulfilment of the purposes thereof."
As per Section 83, G.O.(Ms) No.225 Rural Development (C.I) Department dated 15.10.1996 was issued by the Government, by which the President of the Village Panchayat was appointed as the Executive Authority to exercise the powers and perform the functions of the Executive Authority of that Village Panchayat. As per Section 84(b), the Executive Authority (Village President) will have control over all the officers and servants of the village panchayat.
9.Section 106 of Tamil Nadu Panchayats Act, 1994 deals with the Powers to punish officers and servants, which is extracted as follows:
"106. Power to punish officers and servants. - Subject to such control as may be prescribed, the executive authority, the commissioner or the secretary may censure, fine withhold increments or promotions from, or reduce to a lower rank in the seniority list, or to a lower post or time scale or to a lower stage in a time-scale, suspend, remove or dismiss any officer or servant in the service of village panchayat or panchayat union council or the district panchayat, as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct."
From the above section, it is very clear that the President of the Village Panchayat has power to control over the officers and servants and also is empowered to take action including powers to dismiss from the service of village panchayat.
10.By virtue of clause 'n' of G.O. Ms No.230 Rural Development (E5) Department dated 15.10.1996, the Village Panchayat President has got power to appoint, to take action and to remove the officer/servant from the panchayat. If the power is to be exercised under Section 106 of the Act, G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006 is to be followed. Clauses V & VI of the aforesaid G.O. read as follows:
"v fpuhk Cuhl;rpapd; eph;thfj;jpy;, Cuhl;rp cjtpahsh; Jiwapd; tpjpKiwfis kPwy;, xGA;fPdk;, ftdf; Fiwt[ jFjpapd;ik, flik jtWjy;, jtwhd eltof;iffs; Bghd;wtw;wpy; Nlgl;lhy; me;j Cuhl;rp cjtpahsiu fz;ldk;, mguhjk;, Cjpa cah;t[ my;yJ gzp cah;it epWj;jp itj;jy; my;yJ Kg;g[g; gl;oaypy; juk; nwf;Fjy;, my;yJ fPH;epiyg;gzpaplj;jpy; itj;jy; my;yJ fhyKiw Cjpaj;jpy; fPH;epiyapy; itj;jy;, jw;fhypf gzpePf;fk; bra;jy;, gzpapypUe;J ePf;Fjy; my;yJ gzptpyf;fk; bra;ayhk;. nUg;gpDk; mjw;F Kd;ghf me;j Cuhl;rp cjtpahsiu Beuo tprhuizf;F miHg;gJ cl;gl mth;jdJ tpsf;fj;ij mspf;f mtUf;F Bghjpa tha;g;g[ mspf;fg;gl;oUf;f Btz;Lk;. vi Bky;KiwaPL - Cuhl;rpapd; Kot[f;F vjpuhd Bky; KiwaPl;il Cuhl;rpj; jiythpd; Miz fpilf;fg;bgw;w 30 jpdA;fSf;Fs; tl;lhu tsh;r;rp mYtyh; (Cuhl;rp) nlk; gjpt[ bra;J bfhs;syhk;. BkYk; tl;lhu tsh;r;rp mYtyh; (Cuhl;rp)-d;; Kot[ kPjhd nuz;lhtJ Bky;KiwaPl;il tl;lhu tsh;r;rp mYtyh; (Cuhl;rp)-d; Miz fpilf;fg; bgw;w 60 jpdA;fSf;Fs; khtl;;l Ml;rpj; jiythplk; gjpt[ bra;J bfhs;syhk;"
As per clause V of G.O.(Ms) No.175 Rural Development and Panchayts (E5) Department dated 05.12.2006, the delinquent officer/servant is required to be given a notice and offered an opportunity to defend his case. Even in the absence of the aforesaid G.O., it is fundamental that a person should be heard before his right is infringed in compliance of principles of natural justice.
11.As per clause (vi) of the aforesaid Government Order, the affected officer/ servant is entitled to file appeal within 30 days from the date of receipt of a copy of the order of the Executive Officer to the Block Development Officer and a further appeal to the Inspector of Panchayats cum District Collector within 60 days from the date of receipt of a copy of the order of the Block Development Officer.
12.It is seen in this case, the petitioner was removed by virtue of a resolution dated 26.06.2006 from the post of Panchayat Clerk. It is not in dispute that no notice was given to the petitioner and no enquiry was conducted before removal of the petitioner from the said post by the 3rd respondent Village Panchayat President by virtue of panchayat resolution dated 26.06.2006. The Hon'ble Supreme Court held in Divisional Superintendent, Eastern Railways, Dinapur and others vs. L.N.Kashri and others reported in AIR 1974 SC 1889 a party should be heard before any adverse order is passed against him. In another case, the Hon'ble Supreme Court in Agit Kumar Kar vs. State of West Bengal and others reported in 2009(2) SCJ 454 held that violation of principles of natural justice renders the act a nullity. Therefore, the said resolution is liable to be quashed for non compliance of principle of natural justice and for violation of G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006.
13.Though the first respondent was directed by this Court to consider and pass orders on the representation of the petitioner dated 11.07.2006, the first respondent called upon the petitioner to come for an enquiry and after hearing the petitioner passed the impugned order confirming the dismissal order passed by the 3rd respondent President of Village Panchayat holding that serious allegations made against the petitioner was proved. With regard to acts of commission and omissions said to have been committed by the petitioner, this Court is not expressing any opinion and that should be found out following proper procedure.
14.As far as the enquiry is concerned, the first respondent in the impugned order referred about the resolution No.14 passed on 26.06.2006 by the 3rd respondent as follows:
"kuf;fhj;J]h; Cuhl;rp Kd;dhs; vGj;jh; jpU.Mh;.re;jpuBrfh; kPJ Cuhl;rp eph;thfk; Rkj;jg;gl;l Fw;wr;rhl;Lfspd; mog;gilapy; mtiu Cuhl;rp kd;wj;jpd; 26.06.2006k; Bjjpa Tl;lj;jpy; jPh;khd vz;.14d; Kyk; jpU.Mh;.re;jpuBrfh; Cuhl;rp vGj;jiu gjtpapypUe;J ePf;fk; bra;ag;gl;lJ nWjpahd Kothf nUe;jhYk;, rhpahd eilKiw gpd;gw;wg;gltpy;iy vd mwpa KofpwJ. "
From the above, it is clear that the first respondent himself came to the conclusion that the petitioner's removal from the service was not done according to the procedure. Having come to such a conclusion, the first respondent cannot confirm the order of removal passed by the 3rd respondent. Therefore, the impugned order is tainted with perversity and is liable to be set aside.
15.In this case, the Inspector is the District Collector. As rightly pointed out by the learned counsel appearing for the petitioner that the first respondent Inspector of Panchayats cum District Collector is the second appellate authority as per clause (vi) of G.O.(Ms) No.175 Rural Development and Panchayats (E5) Department dated 05.12.2006, against the order passed by the Executive Authority cum Village Panchayat President. Moreover, under Section 201 and 202 of the Tamil nadu Panchayats Act, 1994, the Inspector of Panchayats have got control over the Panchayat and also to suspend or cancel the resolution passed by the Panchayat. Section 201 and 202 of the said act is reproduced as follows:
"201. Powers of officers for purpose of control. - The Inspector or any officer or person whom the Government or the Inspector, may empower in this behalf may -
(a) direct the village panchayat or panchayat union council or the district panchayat to make provision for and to execute or provide any public work or amenity, or service of the description referred to in sections 110, 112 and 163;
(b) call for any record, register or other document in the possession, or under the control, of any panchayat or executive authority, or commissioner or secretary;
(c) require any panchayat or executive authority or commissioner or the secretary to furnish any return, plan, estimate, statement, account or statistics;
(d) require any panchayat or executive authority or commissioner or the secretary to furnish any information or report on any matter connected with such panchayat;
(e) require any panchayat or executive authority or the commissioner or the secretary to obtain his previous sanction before giving up a claim or closing down any institution which is a source of income;
(f) record in writing for the consideration of any panchayat or executive authority or commissioner or the secretary, any observations in regard to its or his proceedings or duties.
202. Power to suspend or cancel resolution, etc. under the Act. - The Inspector may, by order in writing -
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in his opinion, -
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the inspector to be otherwise undesirable, or
(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray:
Provided that nothing in this sub-section shall enable the Inspector to set aside any election which has been held.
(2) The Inspector shall, before taking action on any of the grounds referred to in clauses (a) and (b) of sub-section (1), give the authority or person concerned an opportunity for explanation. (3) The power conferred on the Inspector under clause (c) of sub-section (1) may be exercised by the collector in accordance with the provisions of that clause."
As per the above provisions, the District Collector is competent to have control over the panchayat and he is given power to take any action including the power to cancel the suspension and cancel the resolution passed by the panchayat. When that is the position, the Inspector of Panchayats cum District Collector cannot assume the power of the Executive Authority namely the original authority and pass orders as if he is an original authority. By virtue of usurping the powers of the Executive Authority, the first respondent has committed a serious error. Secondly, through the impugned order, the first respondent denied the right of appeals which are legally available to the petitioner. In this Court's view, such an action cannot be countenanced and liable to be set aside.
16.The very purpose of providing appeal, revision etc., is to enable the aggrieved party to get relief atleast in one forum or other. By virtue of this impugned order, the first respondent prevented the petitioner from approaching the appellate authority. Therefore, the impugned order is set aside.
17.As the order passed by the first respondent as well as the resolution passed by the 3rd respondent are quashed, the 3rd respondent is directed to take the petitioner immediately for employment within one week from the date of receipt of a copy of this order. As far as the petitioner's claim for salary is concerned, it would be considered by the 3rd respondent appropriately. However, it is made clear that this order will not preclude the third respondent village panchayat from making any enquiry and take action against the petitioner after following the procedures, considering the nature of the allegations made against the petitioner. The Writ Petition is ordered in the above terms. Consequently, connected M.P.(MD) No.1 of 2006 is closed. No costs.
sj To
1.The Inspector of Panchayats cum District Collector, Sivagangai District, Sivagangai.
2.The Block Development Officer, Kalyarkoil Panchayat Union, Sivagangai District.
3.The President, Marakkathur Village Panchayat, Kalaiyarkoil, Sivagangai District.