Madras High Court
V.Kanagavalli Viswanathan vs The Chief Secretary To Government on 20 July, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2010
CORAM
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.NO.10676 OF 2010
AND M.P.NOS.1 AND 2 OF 2010
V.Kanagavalli Viswanathan ... Petitioner
versus
1.The Chief Secretary to Government
Rural Development and Panchayatraj
(Para. 4) Department
Secretariat, Chennai.
2.The Commissioner
Rural Development cum Panchayatraj Department
Chennai 600 015.
3.The Inspector of Panchayat Union
cum District Collector
Dharmapuri, Dharmapuri District.
4.The Assistant Director (Panchayats)
Dharmapuri, Dharmapuri District.
5.The Tahsildar
Dharmapuri, Dharmapuri District.
6.The Block Development Officer
Dharmapuri, Dharmapuri District. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records related to the impugned order of the 1st respondent dated 13.04.2010 in G.O.(Pa).No.177 by confirming the order of the 3rd respondent in 1876/08/A1 dated 18.08.2009 and quash the same as illegal and incompetent and consequently directing the 3rd respondent to reinstate the petitioner to the post of President of Ilakkiampatti Panchayat, Dharmapuri.
For Petitioner : Mr.R.Gandhi, Senior counsel
for Mr.R.Marudhachalamurthy
For Respondents 1-5: Mr.S.Ramasamy
Additional Advocate General I
Assisted by Mrs.N.Kavitha
For Respondent 6 : Mr.D.Sreenivas
O R D E R
The petitioner was elected as President of Ilakkiampatti Panchayat, Dharmapuri in the local body election held in October 2006. While so, the third respondent issued a show cause notice dated 01.06.2008 to the petitioner under Section 205(1) of the Tamil Nadu Panchayats Act, 1994 (shortly "the Act"). The show cause notice reads that it is based on the inspection made by the fourth respondent on 02.05.2008. There are six charges levelled against the petitioner in the show cause notice. The first charge contains instance of 1 allegation; the second charge contains instances of 127 allegations; the third charge contains instances of 16 allegations; the fourth charge contains instances of 14 allegations; the fifth charge contains instances of 13 allegations and the sixth charge contains instances of 14 allegations.
2.The crux of the allegations was that the petitioner failed to maintain records properly and that amounts were spent without following the rules and regulations of the Panchayat. The petitioner was directed to submit her explanation within 7 days. The show cause notice was served on the petitioner on 09.06.2008.
3.The petitioner sought one week time to submit her explanation. She submitted a detailed explanation on each instance of the allegations on 23.06.2008.
4.Thereafter, the fifth respondent issued a notice dated 15.06.2009 to the petitioner and to all the Members of the Panchayat that the Panchayat meeting could be held on 23.06.2009 at 10.30 a.m. under Sections 205(2) to 205(10) of the Act on the charges made against the petitioner. However, no meeting took place on 23.06.2009. By another notice dated 24.06.2009, the fifth respondent informed the petitioner and all other Members of the Panchayat that the Panchayat meeting which was scheduled to be held on 23.06.2009 was cancelled due to administrative reasons and the meeting could be held on 26.06.2009 at 10.30 a.m to consider the charges on the petitioner under sections 205(2) to 205(10) of the Act.
5.Accordingly, the meeting took place on 26.06.2009. Thereafter, the third respondent passed the impugned order dated 18.08.2009 removing the petitioner from the post of President with immediate effect due to the misuse of Presidents power, misappropriation of Village Panchayat fund and for causing loss to the Government funds.
6.Aggrieved over the same, the petitioner filed a writ petition in W.P.No.17517 of 2009 seeking to quash the aforesaid order dated 18.08.2009 of the third respondent. This Court, on 19.11.2009 dismissed the writ petition with an observation that the petitioner could avail the review remedy available under Section 205(12) of the Act.
7.Hence the petitioner filed a review application on 01.12.2009 before the first respondent and the same was dismissed by the first respondent on 13.04.2010 vide G.O.(Pa)No.177, Rural Development and Panchayatraj (Para. 4) Department, dated 13.04.2010, confirming the order dated 18.08.2009 passed by the third respondent.
8.The petitioner has filed the present writ petition seeking to quash the aforesaid order dated 13.04.2010 of the first respondent passed in G.O.(Pa).No.177 and the order of the third respondent in 1876/08/A1 dated 18.08.2009 and for a consequential direction to the third respondent to reinstate her in the post of President of Ilakkiampatti Panchayat, Dharmapuri.
9.Notice was ordered on 12.05.2010. The respondents have filed counter affidavits.
10.Heard Mr.R.Gandhi, learned senior counsel for the petitioner; Mr.S.Ramasamy, learned Additional Advocate General I for the respondents 1 to 5 and Mr.D.Sreenivas, learned counsel for the sixth respondent. The learned Additional Advocate General produced the entire records for perusal.
11.The learned senior counsel for the petitioner submits that the third respondent passed the impugned order in blatant violation of principles of natural justice. It is submitted that while issuing show cause notice under Section 205(1) of the Act, either on his own motion or on a representation from not less than two-third Members of the Panchayat, making allegations against the President and seeking explanation of the President, it is incumbent on the third respondent Inspector of Panchayats, to furnish along with the show cause notice the materials that led him to issue the show cause notice, in case it is on his own motion, or the complaints of two-third Members of the Panchayat, if the show cause notice is based on the complaints. According to him, in this case, the show cause notice under Section 205(1) (a) of the Act , is on his own motion. The show cause notice is based on the inspection of the fourth respondent on 02.05.2008. But the said inspection report of the fourth respondent was not furnished along with the show cause notice to the petitioner seeking to offer her explanation.
12.The learned senior counsel for the petitioner further submits that when the third respondent was not satisfied with the explanation offered by the petitioner and arrived at a conclusion to remove the petitioner from the post of President, he had to forward the show cause notice which was issued under Section 205(1) of the Act and the explanation of the petitioner and the proposal for removal of the petitioner, to the fifth respondent for ascertaining the views of the Members of the Village Panchayat. While the third respondent tentatively came to the conclusion to remove the petitioner from the post of President, by sending a proposal to the fifth respondent, on being not satisfied with the explanation offered by the petitioner, the third respondent is bound to record reasons for his conclusion / proposal to remove the petitioner from the post of President. If the third respondent was not satisfied with the explanation of the petitioner to the show cause notice under Section 205(1) of the Act and came to the conclusion to send his proposal to the Village Panchayat for removal of petitioner to ascertain the views of the Panchayat, the principles of natural justice requires that before forwarding his proposal for removal, the petitioner should be heard.
13.The notice issued under Section 205(1) of the Act, the explanation of the petitioner and the proposal of the third respondent to remove the petitioner from service for the recorded reasons as well as the materials that led to issuing of the show cause notice and formation of opinion with regard to the proposal to remove the petitioner from the post of President, should be furnished, not only to the petitioner but also to the Members of the Panchayat. If those materials are not furnished to the Members, the ascertaining of the views of the Members of the Village Panchayat, as contemplated under Section 205(2) of the Act, becomes an empty formality.
According to the learned senior counsel, neither the President nor the other Members were furnished with the materials that led to the issuance of show cause notice and the reasons for coming to the tentative conclusion to remove the petitioner from the post of President of the Village Panchayat and the materials that were relied on to form his opinion to remove the petitioner from the elected office.
14.The learned senior counsel submits that Section 205(4) of the Act was contravened, as the Members of the Panchayat were not given 7 days notice before the date of Panchayat meeting to consider the charges on the petitioner. According to him, 7 days notice is mandatory and the Section uses the word "atleast seven days". He proceeds that the statute provides the minimum seven days notice to the members to consider the show cause notice issued to the petitioner, the explanation given by her, the materials based on which the show cause notice was issued and tentative proposal to remove the petitioner from the office of the President was arrived at by the third respondent and to apply their mind to all those materials on record. But neither 7 days notice was given nor the materials were furnished by the fifth respondent while issuing notice dated 15.06.2009 under Section 205(4) of the Act convening the Panchayat meeting on 23.06.2009 to ascertain the view of the Members on the proposal to remove the petitioner from the office. The learned senior counsel submits that 7 days notice under Section 205(4) is mandatory.
15.It is also submitted that when the meeting did not take place on 23.06.2009 at the instance of the fifth respondent, the fifth respondent again contravened Section 205(6) by not granting 7 days notice, since Section 205(6) makes it clear that atleast 7 days notice should be given for the adjourned meeting. In this case, by the notice dated 24.06.2009, the fifth respondent fixed the Panchayat meeting on 26.06.2009.
16.The learned senior counsel further submits that 7 days notice to Members of the Panchayat is to adjust their other work, besides to consider and apply their mind to the materials to express their views on the removal of the petitioner from the President post.
17.The learned senior counsel for the petitioner relies on the decisions of the Honourable Apex Court in TARLOCHAN DEV SHARMA VS. STATE OF PUNJAB AND OTHERS reported in 2001 (6) SCC 260; J.N.GANATRA VS. MORVI MUNICIPALITY reported in 1996 (9) SCC 495; and a decision of this Court in MANIVANNAN VS. THE GOVERNMENT OF TAMIL NADU AND OTHERS reported in 2010 (3) LW 489 for the proposition that when certain act is to be done in a particular manner as prescribed under the statute, the same should be done in the manner so prescribed, otherwise the act is illegal and is vitiated. It is further submitted that the third respondent acted arbitrarily and in violative of Article 14 of the Constitution. As the fifth respondent failed to act in the manner prescribed under Sections 205(4) and 205(6), the impugned orders are vitiated.
18.The learned senior counsel for the petitioner further submits that the notice dated 15.06.2009 was issued based on the directive from the fourth respondent instead of from third respondent and hence the direction to conduct meeting was without jurisdiction.
19.It is further contended that if the third respondent Inspector decides to remove the petitioner from the office of the Panchayat President under Section 205(11) of the Act, after considering the views of the Members of the Village Panchayat, the petitioner should be heard before the third respondent passed an order under Section 205(11) removing the petitioner from the office. That is, earlier, the third respondent formed tentative opinion to remove the petitioner from the post of President and now the third respondent decided to remove the petitioner from the post of President. Before coming to the ultimate conclusion to remove the petitioner from the post of President, the petitioner should be heard and at least, at this stage, the petitioner should be given the inspection report, based on which, the show cause notice was issued, and the other materials which the third respondent relied on to reject the explanation offered by the petitioner and came to tentative conclusion to propose to remove the petitioner from the office of President, so as to persuade the third respondent not to remove the petitioner from the office of the Village Panchayat.
20.The learned senior counsel for the petitioner also submits that while passing the impugned order dated 18.08.2009, the third respondent relied on the report of the sixth respondent that was collected behind the back of the petitioner and the petitioner was not aware of the said report. The learned senior counsel further submits that the revisional authority while dismissing the review application stated that the report of internal audit was taken into account for removing the petitioner from the office of the Village Panchayat. The same was also not furnished to the petitioner. Therefore, the same is violative of principles of natural justice.
21.The learned Additional Advocate General appearing for the respondents 1 to 5, in reply, submits that the petitioner committed serious misconduct by misusing the power and committing misappropriation of Village Panchayat funds and that therefore, the petitioner was removed from the post of President by following the procedures contemplated under Section 205 of the Act.
22.The learned Additional Advocate General submits that the third respondent followed the procedures strictly in accordance with Section 205 of the Act. According to him, Section 205(1) does not contemplate furnishing of the report, based on which the show cause notice was issued. He further submits that in any event, the petitioner never asked the third respondent to furnish a copy of the report, based on which show cause notice was issued. Hence, she could not make out a grievance that she was not furnished with a copy of the inspection report of the fourth respondent.
23.The learned Additional Advocate General submits that Section 205(2) of the Act nowhere contemplates that the third respondent Inspector should record reasons for his non-satisfaction on the explanation and for his tentative conclusion to remove the petitioner from the office of the Panchayat, while forwarding the proposal to remove the petitioner from the President post for ascertaining the views of the Members of the Village Panchayat. In any event, according to him, the third respondent passed an order dated 03.03.2009 under Section 205(2) of the Act stating that he was not satisfied with the explanation offered by the petitioner.
24.The learned Additional Advocate General further submits that the order of the third respondent passed under Section 205(2) of the Act forwarding the proposal of removal of the petitioner from the post of President, to the Tahsildar, to ascertain the views of the Members of the Village Panchayat, along with the show cause notice and the explanation, need not be communicated to the petitioner and other Members of the Village Panchayat as no such provision is there in Section 205(2) of the Act.
25.The learned Additional Advocate General, based on records, submits that the notice dated 15.06.2009 to convene the Village Panchayat meeting is based on the order of the third respondent dated 03.03.2009 and not pursuant to the order of the fourth respondent. According to him, based on the order dated 03.03.2009 of the third respondent, the fourth respondent directed the fifth respondent to convene the meeting, as directed by the third respondent. It is also submitted that the aforesaid order dated 03.03.2009 was in fact addressed to the fifth respondent, while a copy was marked to the fourth respondent.
26.The learned Additional Advocate General submits that Section 205(2) to 205(10) of the Act nowhere contemplate furnishing of the show cause notice, explanation and the proposal and other relevant documents to the Members of the Panchayat before ascertaining their views. Hence, non-furnishing of the same could not vitiate the impugned proceedings.
27.The learned Additional Advocate General submits that the 7 days clear notice under Section 205(4) before meeting, is not mandatory. Further, it is submitted that when the meeting is adjourned, due to some administrative reasons, the 7 days requirement is not contemplated under the Act. It is also submitted that since all the Members participated in the meeting, no prejudice is caused to the petitioner and she could not complain on technical grounds. The learned Additional Advocate General further submits that before taking an ultimate decision to remove the petitioner from the post of President, the petitioner was given an opportunity of personal hearing on 14.08.2009. Though no such procedure is contemplated under Section 205(10), the petitioner was given an opportunity of hearing and the notice dated 06.08.2009 was given to the petitioner for personal hearing, for which, the petitioner gave a reply on 14.08.2009. Hence, the petitioner could not complain that she was not heard before taking a final decision.
28.The learned Additional Advocate General submits that there is no prohibition for the third respondent to consider and to obtain the remarks from the sixth respondent and to look into the same to come to the ultimate conclusion to remove the petitioner from the office of the Panchayat. Likewise, there is no bar for the third respondent to look into the audit report to come to his conclusion. The Act does not contemplate for providing the report of the sixth respondent and the internal audit report to the petitioner.
29.It is further submitted that whatever procedure is contemplated under Section 205 of the Act, the same was complied with. The petitioner could not read natural justice into Section 205 of the Act. In support of his contention, the learned Additional Advocate General relies on the following decisions of the Honourable Apex Court:
1) JAIN EXPORTS (P) LTD. VS. UNION OF INDIA - 1988 (3) SCC 579
2) BAR COUNCIL OF INDIA VS. HIGH COURT OF KERALA - 2004 (6) SCC 311 The learned Additional Advocate General relies on the judgment of this Court in N.M. SELVAKUMAR VS. THE STATE OF TAMIL NADU reported in 2000 (IV) CTC 631 in support of his submission that 7 days clear notice is not mandatory.
30.The learned Additional Advocate General has fairly brought to my notice a Full Bench decision of this Court in R.PARI VS. THE SPECIAL TAHSILDAR, ADI-DRAVIDAR WELFARE, DEVAKKOTTAI reported in 2006 (4) CTC 609, wherein it has been held that though Section 4(3) (b) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 nowhere contemplates providing the report of the authorised officer submitted to the District Collector to the person, whose land is acquired, the report has to be furnished to the person facing the acquisition proceedings. However, according to him, the said ratio is not applicable to Section 205 of the Act.
31.The learned Additional Advocate General also relies on a constitution Bench judgment of the Honourable Apex Court in UNION OF INDIA VS. TULSIRAM PATEL reported in 1985 (3) SCC 398 and more particularly, he relies on paras 70 and 97 of the said judgment. According to him, as per the aforesaid constitution Bench judgment of the Honourable Apex Court, the principles of natural justice could not be read into the Act when the Act does not contemplate for providing an opportunity. The learned Additional Advocate General seeks to dismiss the writ petition.
32.I have considered the submissions made on either side and perused all the materials produced before this Court. The whole issue depends on the interpretation of various clauses of Section 205 of the Act. Section 205 of the Act is extracted here-under:
"205. Removal of president.- (1) The Inspector -
(a) of his own motion, or
(b) on a representation in writing signed by not less than two-thirds of the sanctioned strength of the village panchayat containing a statement of charges against the president and presented in person to the Inspector by any two of the members of the village panchayat, is satisfied that the president wilfully omits or refuses to carry out or disobeys any provision of this Act, or any rule, by-law, regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall, by notice in writing, require the president to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice.
(2) If the explanation is received within the specified date and the Inspector considers that the explanation is satisfactory, he may drop further action with respect to the notice. If no explanation is received within the specified date or if the explanation received is in his opinion not satisfactory, he shall forward to the Tahsildar of the taluk a copy of the notice referred to in sub-section (1) and the explanation of the president if received within the specified date with a proposal for the removal of the president for ascertaining the views of the village panchayat.
(3) The Tahsildar shall then convene a meeting for the consideration of the notice and the explanation, if any, and the proposal for the removal of the president, at the office of the village panchayat at a time appointed by the Tahsildar.
(4) A copy of the notice of the meeting shall be caused to be delivered to the president and to all the members of the village panchayat by the Tahsildar at least seven days before the date of the meeting.
(5) The Tahsildar shall preside at the meeting convened under this section and no other person shall preside threat. If, within half an hour appointed for the meeting, the Tahsildar is not present to preside at the meeting, the meeting shall stand adjourned to a time to be appointed and notified to the members and the president by the Tahsildar under sub-section(6).
(6) If the Tahsildar is unable to preside at the meeting, he may, after recording his reasons in writing, adjourn the meeting to such other time as he may appoint. The date so appointed shall be not later than thirty days from the date so appointed for the meeting under sub-section (3). Notice of not less than seven clear days shall be given to the members and the president of the time appointed for the adjourned meeting.
(7) Save as provided in sub-sections (5) and (6), a meeting convened for the purpose of considering the notice and the explanation, if any, and the proposal for the removal of the president under this section shall not for any reasons, be adjourned.
(8) As soon as the meeting convened under this section is commenced, the Tahsildar, shall read to the village panchayat the notice of the Inspector and the explanation if any, of the president [and the proposal for the removal of the president], for the consideration of which it has been convened.
[(8A) There shall be no debate in any meeting under this section.] (9) The Tahsildar shall not speak on the merits of the notice or explanation nor shall he be entitled to vote at the meeting.
(10) The views of the village panchayat shall be duly recorded in the minutes of the meeting and a copy of the minutes shall forthwith on the termination of the meeting be forwarded by the Tahsildar to the Inspector.
(11) The Inspector may, after considering the views of the village panchayat in this regard, in his discretion either remove the president from office by notification with effect from a date to be specified therein or drop further action.
(12) The Government shall have power to cancel any notification issued under sub-section(11) and may, pending a decision on such cancellation, postpone the date specified in such notification.
(13) Any person in respect of whom a notification has been issued under sub-section (11) removing him from the office of president shall, unless the notification is cancelled under sub-section (12), be ineligible for election as president until the date on which notice of the next ordinary elections to the village panchayat is published in the prescribed manner, or the expiry of one year from the date specified in such notification as postponed by the order, if any, issued under sub-section (12) whichever is earlier."
33.In the present writ petition, the show cause notice under Section 205(1) of the Act is not based on the complaint from two-third Members of the Panchayat as contemplated under Section 205(1)(b). It is based on the inspection made by the fourth respondent on 02.05.2008. In case, if the show cause notice is based on the complaint of the Members of the Village Panchayat, the same has to be furnished to the petitioner for submitting her explanation. Likewise, if the show cause notice is based on the report of the fourth respondent, the said report should be furnished to the petitioner so as to give reasonable opportunity to submit her explanation. The scheme of the Act does not contemplate holding of an enquiry. The Inspector, the third respondent herein, is to act under Section 205(2), based on the explanation, either to drop the charges or to arrive at the proposal to remove the petitioner from the post of President. Since it entails serious civil consequences, it is incumbent on the third respondent to furnish the materials, based on which the third respondent issued the show cause notice and based on which he formed opinion to remove the petitioner from the post of President. As the petitioner was sought to be removed from the elected office, based on the show cause notice and the explanation thereon alone, the third respondent is bound to furnish the entire materials that was relied on to issue the show cause notice, so as to afford reasonable opportunity in consonance with the principles of natural justice.
34.As per the records produced before this Court, the fourth respondent made an inspection on 02.05.2008 and he found 164 instances of allegations. However, the show cause notice alleges 185 instances of allegations. Since the show cause notice refers to the inspection made by the fourth respondent, it is not known how the show cause notice contains 185 allegations. Therefore, if the report was furnished to her, she could have sought clarification as to how there is a discrepancy between the report of the fourth respondent and the show cause notice.
35.I am of the considered view that since the report of the fourth respondent based on which the show cause notice was given, was not furnished to the petitioner, the petitioner was not given reasonable opportunity to put forth her explanation. I am not able to agree with the reasoning of the learned Additional Advocate General that the petitioner did not ask for those reports and that therefore, the petitioner could not make out a grievance. Since the third respondent decided to initiate action by issuing show cause notice under Section 205(1)(a) of the Act, based on the report of the fourth respondent, it is incumbent on the part of the third respondent to furnish the report that forms the basis of issuing show cause notice under Section 205(1)(a) of the Act, particularly when the statute contemplates no enquiry and the tentative and ultimate conclusion of the third respondent to remove the petitioner from the office of President is certainly based on the report of the fourth respondent. In my view, Section 205(1) has to be read in such a way that the Inspector of Panchayats, while issuing show cause notice based on a report / complaints from the Members of the Panchayat, the report / complaints should be furnished along with the show cause notice so as to afford a reasonable opportunity to the President, who faces the the threat of removal from the office of the President. This is in consonance with the principles of natural justice. Unless the principles of natural justice is excluded either implicitly or explicitly, always the Courts should read into the Act the principles of natural justice. In fact, the constitution Bench judgment of the Honourable Apex Court reported in 1985 (3) SCC 398 relied on by the learned Additional Advocate General supports the same.
36.It is true that Section 205(2) does not state that the third respondent - Inspector should record his reasons for coming to the conclusion while forwarding a proposal for removal of the President, for ascertaining the views of the Members of the Village Panchayat, to the Tahsildar, along with the show cause notice and the explanation of the petitioner. However, in this case, the third respondent passed a written order dated 03.03.2009 stating that he was not satisfied with the explanation offered by the petitioner. Section 205(2) of the Act does not contemplate that the said order has to be communicated to the petitioner.
37.However, when I went through the files, I found that the third respondent called for remarks from the sixth respondent on the explanation submitted by the petitioner to the show cause notice before forming the opinion to remove the petitioner from the post of President. The third respondent considered the detailed remarks of the sixth respondent and the sixth respondent gave his remarks on each instance of the allegations, as to whether the same has to be accepted or not to be accepted and whenever the sixth respondent stated that the charges were proved, the third respondent also agreed with such views. But those remarks of the sixth respondent were not furnished to the third respondent. Further, apart from getting remarks from the sixth respondent, the third respondent also obtained remarks from the fourth respondent, on the explanation submitted by the petitioner. The remarks of the sixth respondent and the fourth respondent for each instance of the allegations, were put in a tabular column that runs to so many pages. Hence, when the third respondent took into account fresh materials i.e. the remarks of the sixth respondent and the fourth respondent on the explanation submitted by the petitioner, the third respondent ought to have furnished those materials to the petitioner, so as to give her an opportunity to explain her views thereon. Hence, the non-furnishing of the remarks of the sixth respondent as well as the remarks of the fourth respondent on the explanation to the petitioner on each instance of the allegations made in the show cause notice dated 01.06.2008 issued under Section 205(1) of the Act vitiates the entire proceedings, as these remarks were relied on by the third respondent to come to the tentative conclusion to remove the petitioner from the office of the President.
38.Even assuming that the materials, based on which the show cause notice under Section 205(1) of the Act was issued, need not be furnished along with the show cause notice, while seeking explanation from the Panchayat President, the same should be furnished before the Inspector of Panchayats takes a tentative decision under Section 205(2) of the Act to remove the President. Apart from the materials that formed the basis for issuance of show cause notice under Section 205(1)of the Act,if the Inspector of Panchayats relies on some other materials, such as the remarks from the fourth and sixth respondents on the explanation of the petitioner herein those materials should also be furnished before the Inspector tentatively arrives at a conclusion to remove the President under Section 205(2) of the Act, since all those materials are the basis for the proposal to remove the President. That is, the President should be heard on those materials, before the Inspector arrives at a conclusion to remove the President and forward the proposal of removal for ascertaining the views of the members of the Village Panchayat. This hearing is akin to the opportunity given to a delinquent employee by a disciplinary authority to offer his explanation / remarks on the report of the Enquiry Officer while relying on the report of the enquiry authority to record his conclusions on the charges.
39.The learned Additional Advocate General is correct in his submissions that the order dated 03.03.2009 of the third respondent directing the fifth respondent to convene the Panchayat meeting is the basis for convening a meeting by issuing the notice dated 15.06.2009 by the fifth respondent. Hence, the contention of the petitioner that the notice dated 15.06.2009 of the fifth respondent refers to the proceedings dated 08.05.2009 of the fourth respondent, has no basis. The judgment of this Court in P.EZHIL ARASU VS. THE INSPECTOR OF PANCHAYATS reported in CDJ 2008 MHC 4231 relied on by the learned Additional Advocate General squarely applies to the facts of this case. Para 5 of the said judgment is extracted hereunder:
"5.The original file circulated by the Government Advocate shows that the District Collector has passed an order dated 06.05.2008, considering the explanation given by the petitioner and also directing the Tahsildar, Radhapuram Taluk, to convene a meeting to the Village Panchayat and read out the show-cause notice and the explanation. After recording the views of the members, he was directed to send the records along with the report of the first respondent. It was this order which was sent to the Block Development Officer, and in turn, communicated to the Tahsildar with a covering letter the Block Development Officer dated 15.05.2008. Therefore, it cannot be said that there was no satisfaction by the Inspector of Panchayat and therefore the need to issue a consequential direction to the District Collector to act in accordance with Section 205 of the Tamil Nadu Panchayats Act, 1994."
Hence, the grievance of the petitioner that the fifth respondent acted without jurisdiction, on the direction issued by the fourth respondent, has no basis, since the fifth respondent convened the meeting pursuant to the order dated 03.03.2009 of the third respondent issued under Section 205(2) of the Act.
40.I am in agreement with the contention of the learned senior counsel for the petitioner that all the Members should be furnished with the copies of the show cause notice issued under Section 205(1) of the Act, explanation of the petitioner thereon, the proposal of the third respondent to remove the petitioner from the post of President and other records relied on by the third respondent such as the report of the fourth respondent, remarks of the fourth respondent on the explanation of the petitioner and the remarks of the sixth respondent on the explanation of the petitioner, before ascertaining their views, in order to effectively participate in the Panchayat meeting either to support the proposal of the third respondent or to oppose the proposal of the third respondent. Section 205(2) of the Act contemplates that the Inspector of Panchayats has to forward the proposal to remove the President for ascertaining the views of the Members of the Panchayat along with the notice issued under Section 205(1) of the Act and explanation given by the President to the Tahsildar. If those records are given to the Tahsildar, the fifth respondent herein, to ascertain the views of the Members of the Village Panchayat, those records should be furnished along with the notice of the Village Panchayat meeting, so that the Members of the Panchayat could apply their mind to the facts and circumstances of the case and they could come prepared either to support the proposal or to oppose the proposal. Forwarding the notice, explanation and the proposal to remove the President for ascertaining the views of the Members of the Village Panchayat, to the Tahsildar, under Section 205(2) of the Act, is only for the purpose of furnishing the same to the concerned Members of the Village Panchayat. In fact, 7 days clear notice provided under Section 205(4) of the Act is for the Members of the Panchayat to look into those materials that led to the formation of opinion of the third respondent proposing to remove of the petitioner from the post of President. The other reason for giving at least 7 days notice is to adjust the other works of the Members, so as to participate in the meeting. The prime object of 7 days notice is to look into the materials to express their views on the proposal of the third respondent. Therefore, while furnishing the show cause notice, the explanation, the order dated 03.03.2009 proposing for the removal of the petitioner and other records that were relied on by the third respondent to arrive the conclusion, those records should be furnished to the Members of the Village Panchayat, so as to participate effectively in the Village Panchayat meeting to express their views on the proposal. Otherwise, it would only be an empty formality. In this case, only notice was served and no papers were served along with the notice to the Members as well as to the President.
41.I am also of the considered opinion that at least 7 days notice provided under Section 205(4) of the Act is a mandatory one and it is meant for the Members of the Panchayat to look into the materials based on which removal was proposed by the Inspector of Panchayats and to form their opinion. I am not in agreement with the learned Additional Advocate General that Section 205(4) of the Act is not mandatory. The reliance placed on by the learned Additional Advocate General on the judgment of this Court in P.EZHIL ARASU VS. THE INSPECTOR OF PANCHAYATS reported in CDJ 2008 MHC 4231 to the effect that 7 days notice is not mandatory, is also not correct. That issue did not come for consideration at all. It was a case, wherein the Deputy Tahsildar issued a first notice and the second notice was issued by the Tahsildar. The learned Judge came to the conclusion that since the Tahsildar issued the notice pursuant to which the meeting took place, there is no illegality in the conduct of the meeting. There is no discussion therein as to whether there was 7 days notice available to the Members to express their views on the proposal and whether 7 days notice is mandatory.
42.From the records, I found that the notice dated 15.06.2009 was served to all the Members of the Panchayat. But the fifth respondent did not see to it on what date the notices were served on the Members. Few of the Members only recorded the date of receipt of the notice. In view of Section 205(4) of the Act, it is incumbent on the part of the fifth respondent to record the date of service of the notice under Section 205(4) to ascertain whether at least 7 days notice is available to the Members. The Members, who have recorded the date on which they received the notice, recorded that they received the notice on 17.06.2009. Hence those Members were not given 7 days notice. In any event, when the meeting was adjourned from 23.06.2009 to 26.06.2009, there was no 7 days notice. Section 205(6) contemplates that there should be 7 days notice, when the meeting was adjourned to another date. I am not in agreement with the learned Additional Advocate General that since all the Members participated in the meeting, the 7 days notice prescribed in Sections 205(4) and 205(6) is of no consequence. When the statute prescribes 7 days notice, the same should be strictly followed by the fifth respondent.
43.As rightly contended by the learned counsel for the petitioner that when the statute prescribes certain procedure, the authorities are bound to carry out the same, in accordance with the procedure prescribed. That is, when the statute contemplates that at least 7 days notice should be given, it is incumbent on the part of the fifth respondent to give 7 days clear notice in compliance with the provisions of the statute. The judgments reported in 2001 (6) SCC 260, 1996 (9) SCC 495 and 2010 (3) LW 489 relied on by the petitioner for this proposition of law squarely apply to the facts of this case.
44.According to the learned Additional Advocate General, before forming his final opinion to remove the petitioner from the post of President, notice dated 06.08.2009 was sent to the petitioner and the petitioner also gave her reply on 14.08.2009 and under such circumstances, the petitioner could not complain that she was not heard before taking a final decision under Section 205(11) of the Act. But, the order dated 18.08.2009 was issued by the third respondent under Section 205(11) of the Act, removing the petitioner from the office of the President, taking into account the report of the fifth respondent and the report of the sixth respondent, those reports should have been given to the petitioner along with the notice dated 06.08.2009. But the same was not done. The third respondent shall not rely on the report of the sixth respondent to remove the petitioner without furnishing the same to her. Hence, the impugned order dated 18.08.2009 of the third respondent is violative of principles of natural justice.
45.As rightly contended by the learned counsel for the petitioner, the order dated 13.04.2010 of the first respondent states that the impugned order of the third respondent is based on the report of the sixth respondent and also on the report of the internal audit. If the third respondent relied on those reports, it is incumbent on the part of the third respondent to furnish those reports, so as to give reasonable opportunity to the petitioner to submit her explanation. Since the Act nowhere contemplates holding of a detailed enquiry giving opportunity to produce oral and documentary evidence and cross examination on those materials, the third respondent Inspector has to furnish all the materials that were relied on for issuing the show cause notice, along with the show cause notice under Section 205(1) calling for explanation, so as to afford reasonable opportunity to the President to submit explanation. Further, the third respondent Inspector of Panchayats arrives at a conclusion to remove the President based on fresh materials i.e. the remarks given by the fourth and sixth respondents, those remarks should have been provided to the petitioner, before the third respondent acted on them in consonance with the principles of natural justice. On reaching conclusion to remove the petitioner based on certain materials, the third respondent forwarded the proposal to remove to the fifth respondent to ascertain the view of the Members of the Panchayat. Those materials relied on by the third respondent to arrive at tentative conclusion to remove the petitioner, should be furnished. Likewise, when the third respondent took ultimate decision to remove the petitioner from the office of President, after obtaining report from the fifth respondent, placed reliance on the report of the sixth respondent, the same should be furnished to the petitioner and her views should have been obtained before taking ultimate decision. That is, whenever the authority arrives at a conclusion adverse to a party based on certain materials, those materials should be furnished before arriving at a conclusion in consonance with the principles of natural justice as held by the Honourable Apex Court in NAGARJUNA CONSTRUCTION COMPANY LTD., VS. GOVERNMENT OF ANDHRA PRADESH reported in 2008 (16) SCC 276.
46.Since the petitioner is made to loose the elected office, it should be seen that all the opportunities should be given to the petitioner before ousting her from the office. In fact, the learned Additional Advocate General fairly brought to my notice the full Bench judgment of this Court in R.PARI VS. THE SPECIAL TAHSILDAR, ADI-DRAVIDAR WELFARE, DEVAKKOTTAI reported in 2006 (4) CTC 609. According to the learned Additional Advocate General, the judgment is not applicable to the facts of this case and I am not in agreement with the submissions made by the learned Additional Advocate General. The principles enunciated therein squarely applies to the facts and circumstances of this case. Whenever certain material is relied on by the authorities against a person, the aggrieved person shall be furnished with those materials, so as to make his views on those materials.
47.For all the reasons stated above, the impugned order dated 13.04.2010 of the first respondent and the order dated 18.08.2009 of the third respondent stand set aside and the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed.
20.07.2010 Index : Yes Internet : Yes Note : Issue order copy on 01.10.2010 TK To
1.The Chief Secretary to Government Rural Development and Panchayatraj (Para . 4) Department Secretariat, Chennai.
2.The Commissioner Rural Development cum Panchayatraj Department Chennai 600 015.
3.The Inspector of Panchayat Union cum District Collector Dharmapuri, Dharmapuri District.
4.The Assistant Director (Panchayats) Dharmapuri, Dharmapuri District.
5.The Tahsildar Dharmapuri, Dharmapuri District.
6.The Block Development Officer Dharmapuri, Dharmapuri District.
D.HARIPARANTHAMAN, J.
TK W.P.NO.10676 OF 2010 20.07.2010