Karnataka High Court
Shivanagouda S/O Ninganagouda Biradar vs The State Of Karnataka & Ors on 15 September, 2017
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
W.P.NO.201726/2017 (LB-RES)
Between:
Shri Shivanagouda
S/o Ninganagouda Biradar
Age: 26 years, Adhyaksha
Gram Panchayat, Harnal
Tq: Sindagi, Dist: Vijayapura - 586 101
... Petitioner
(By Sri Huleppa Heroor, Advocate)
And:
1. The State of Karnataka by its
Secretary to Government
Rural Development and
Panchayat Raj Department
M.S. Buildings
Bangalore - 560 001
2. The Chief Executive Officer
Zilla Panchayat, Vijayapura District
Vijayapura - 586 101
3. The Executive Officer
Taluk Pancyat, Sindagi
Vijayapura District
Vijayapura - 586 101
2
4. The Panchayat Development Officer
Gram Panchayat, Harnal
Tq: Sindagi, Dist: Vijayapura - 586 101
5. Manjunath
S/o Goudappa Kokatanur
Age: Major
Occ: Agriculture Member,
Gram Panchayat, Harnal
R/o Ingalgi, Tq: Sindagi
Dist: Vijayapur
6. Shivanand
S/o Channabasappa Yashgeeri
R/o Haranal
7. Kanteppa
S/o Bheemappa Madar
R/o Ingalagi
8. Shantabai
W/o Sangamesh
R/o Harnal
9. Kasturibai
W/o Sanganna Malagar
R/o Othihal
10. Ameeka
W/o Kanteppa Madar
R/o Ingalagi
11. Gouse
S/o Bandagisab Mankadar
R/o Othihal
12. Neelamma
W/o Parasuram Waddar
R/o Haranal
3
13. Mallamma
W/o Suryakant Kottnalli
R/o Haranal
14. Sangamma
W/o Gundu Rao Guddahalli
R/o Haranal
All are Member of
Gram Panchayat, Harnal
Tq. Sindagi, Dist. Vijayapura
(Amended as per Hon'ble Court order
dated 7/6/2017)
... Respondents
(Sri A. Syed Habeeb, AGA for R1;
Smt. Ratna Shivayogimath, Adv. for R2 to R4;
Sri G.G. Chagashetti &
Sri I.R. Biradar, Advs. for R5 to R14)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari, quashing
the impugned Official Memorandum bearing office Order dated
31.03.2017 in No.Graap/1171/Grapamma/2016, Bengaluru, A
Copy of the same is placed at Annexure-F, issued by the 1st
respondent holding the same as illegal, bad in law and arbitrary
one.
This petition coming on for disposal this day, the Court
made the following:-
4
ORDER
The petitioner has called in question the order dated 31.03.2017 passed by the first respondent, whereby the petitioner is removed from the office of Adhyaksha and the membership of the Harnal Gram Panchyat.
2. The petitioner was elected as Adhyaksha of the Harnal Gram Panchayat on 06.07.2015. On the allegations that the petitioner was involved in financial irregularities inasmuch as 13th and 14th financial planning in respect of the said Panchayat and withdrawn the amount in his personal name from the account of the Gram Panchayat, a report was submitted by the respondent No.2, on the basis of which respondent No.1 issued the order removing the petitioner from the office of the Adhyaksha and the membership of Harnal Gram Panchayat. Aggrieved by the same, the petitioner is before this Court.
3. The learned counsel Sri Huleppa Heroor appearing for the petitioner would submit that the order impugned is 5 without jurisdiction and hit by the principles of natural justice and contrary to Section 48(4) of the Karnataka Gram Swaraj and Pancyahat Raj Act, 1993 ('the Act' fort short). It is the primary ground of challenge inasmuch as not complying with the mandatory requirement of affording an opportunity of hearing to the petitioner. Learned counsel placing reliance on Sections 43-A and 48(4) of the Act would contend that the petitioner is victimized on the allegations made by the persons with political rivalry and animosity. No allegations were proved after holding an enquiry and recording the statements of the petitioner. The unilateral decision taken by the respondent No.1 merely based on the report of the respondent No.2 is without application of mind. In support of his contentions, the learned counsel placed reliance on the following judgments:
1. Basanagouda v. State of Karnataka and Others - 2013 (1) Kar.L.J. 53;
2. Shantamma Vs. the Principal Secretary, Department of Panchayat Raj, Government of Karnataka and Others -
2013 (1) KCCR 539;
6
3. Smt. T. Bhagyalakshmi vs State of Karnataka and Anoter - ILR 1998 KAR 478;
4. Rajkumara Neelakantharaya Desai v The Secretary Department of Rural Development and Panchayat Raj, Bangalore and Others - 2011 (3) Kar.L.J. 387.
4. The learned Additional Government Advocate appearing for respondent No.1 supported the impugned order, placing reliance on the judgment of this Court in Writ Petition No.15797 of 2006 (D.D.20.06.2007). It is the contention of the learned Additional Government Advocate that the petitioner was served with a notice, to which reply was furnished by the petitioner. No personal hearing was sought by him. Hence, no principles of natural justice are violated.
5. The learned counsel Smt. Ratna N. Shivayogimath appearing for the respondent Nos.2 to 4 has filed the statement of objections and it was submitted that the petitioner has committed financial irregularities holding the office of Adhyaksha which is proved as per the report 7 submitted by the Panchayat Development Officer, Zilla Panchayat, Vijayapur. The petitioner has become incapable of performing duties as a member or Adhyaksha, persistently remiss in performing duties. As such, the action taken by the respondent Nos.2 and 3 in furnishing the report to the respondent No.1 to take further action in terms of Sections 43-A and 48(4) of the Act cannot be said to be unsustainable. The learned counsel inviting the attention of this Court to the statement of bank accounts of the Gram Panchayat, pointed out that the Adhyaksha-petitioner has drawn the amount of Rs.30,000/- in his personal name on 15.10.2015 and similarly a sum of Rs.30,000/- on 08.07.2016. It is also alleged that the amounts were drawn by the petitioner in the name of his relatives. In addition to this, the petitioner has not taken any action plan for the 13th and 14th financial planning and the amount released for the said financial planning scheme was also misappropriated. The learned counsel placing reliance on the report of the Panchayat Development Officer, Zilla Panchayat, Vijayapura submitted 8 that in view of the enquiry conducted by the Panchayat Development Officer prior to furnishing of the report, no further enquiry/personal hearing of the petitioner is required. In terms of Section 48(4) of the Act, notice was served on the petitioner, the petitioner has replied the same and sought to drop the proceedings. The petitioner was present at the time of the inspection by the Panchayat Development Officer at the Gram Panchayat. As such, the petitioner cannot raise any grouse against the personal hearing not provided by the respondent No.1 prior to the issuance of the impugned order.
6. Learned counsel Sri G.G. Chagashetti appearing for the respondent Nos.5 to 14 supporting the arguments advanced at the hands of the learned Additional Government Advocate and the learned counsel appearing for the Zilla Panchayat contended that the admitted facts need not be proved. The petitioner has not denied the financial irregularities committed by him while holding the office of the Adhyaksha. It is after providing sufficient opportunity to the 9 petitioner to put forth his explanation for the allegations made, the order impugned was passed, which is in confirmity with the Act.
7. Adverting to the rival submissions of the learned counsel appearing for the respective parties, it is beneficial to refer to sub-section (4) of Section 48 of the Act, which runs thus:
"48. (4) Every Adhyaksha and Upadhyaksha of Grama Panchayat shall, after an opportunity is afforded for hearing him, and if necessary after obtaining a report from the Taluk Panchayat and considering the same be removable from his office and Adhyaksha or Upadhyaksha by the Government for being persistently remiss or guilty of misconduct in the discharge of his duties and an Adhyaksha or Upadhyaksha so removed who does not cease to be a member under sub-section (2) shall not be eligible for re-election as Adhayksha or Upadhyaksha during the remaining term of office as member of such Grama Panchayat."
8. Section 43-A (ii) provides that the Government if it thinks fit, on the recommendation of the Gram Panchayat, or otherwise, may remove any member after giving him an 10 opportunity of being heard and after such enquiry as it deems necessary if the member becomes incapable of performing duties as a member, or persistently remiss in performing duties.
9. Thus, it is clear that in exercise of the powers conferred under Section 43-A of the Act, the State Government can remove a person from the membership of the Gram Panchayat and similarly exercising the powers under Section 48(4) of the Act, the State Government can remove a person holding the office of Adhyaksha or Upadhyaksha of Grama Pancyanat. The basis of such removal can be as per the clause (i), (ii) & (iii) enumerated in Section 43-A of the Act. Clause (ii) of Section 43-A of the Act would be applicable to the facts of the present case. It emerges that a notice dated 19.01.2017 was issued by the respondent No.1 to show cause why the petitioner cannot be removed from the office of the Adhyaksha in terms of Sections 43-A and 48(4) of the Act. The petitioner has replied to the said notice, denying the 11 allegations and sought to drop the proceedings initiated under the notice.
10. It may be true that the allegations were made against the petitioner as regards the financial irregularities and enquiry is also conducted by the respondent No.2 to ascertain the genuineness of the allegations. The documents placed on record, more particularly, bank statements of the Gram Panchayat speaks that the petitioner has drawn the money in his name from the Gram Panchayat account which is perse illegal. It is also true that the inspection report submitted by the Panchayat Development Officer discloses about the financial irregularities committed by the petitioner. But, the question would be as to whether the State Government can hold the person incapable of performing duties, or persistently remiss in performing duties sans an opportunity of affording hearing to him. The intention of the Legislature is clear that in Section 43-A of the Act, it is provided that "after giving him an opportunity of being heard 12 and after such enquiry as it deems necessary" action can be taken. Whereas, in Section 48(4) of the Act, an Adhyaksha or Upadhyaksha of Grama Pancyayat shall "after an opportunity is afforded for hearing him and if necessary after obtaining a report from the Taluk Panchayat and considering the same"
be removable from his office. Thus, affording an opportunity for hearing the person affected is mandatory.
11. It is not in dispute that no personal hearing was provided to the petitioner. Merely issuing show cause notice and considering the reply would not be suffice to take drastic punitive action, such as removing an elected representative from the post of Adhyaksha or Upadhyaksha and also from the membership from the Gram Panchayat, unless the enquiry is held recording the statements of the petitioner by the Enquiry Officer under the proceedings initiated. In the judgment relied upon by the learned Additional Government Advocate, enquiry was held and the statement of the affected person was recorded. Similarly, in the judgments relied upon 13 by the learned counsel appearing for the petitioner also, enquiry was conducted and statements were recorded. In the light of these judgments, it is clear that affording an opportunity of hearing to the affected person has to be strictly adhered to, any order passed in violation of the same would be illegal and unjustifiable.
12. For the reasons aforesaid, this Court is of the opinion that the order impugned herein is unsustainable for non-compliance of the mandatory requirement of, providing an opportunity of hearing, contemplated under Sections 43-A and 48(4) of the Act and deserves to be set aside.
Hence, the following:
ORDER The petition is allowed, the order impugned herein is set aside and the matter is remanded to the respondent No.1 to hold an enquiry, affording an opportunity of hearing to both the parties and take a decision in the matter in accordance with law.14
The petitioner shall appear before the respondent No.1 on 03.10.2017 without awaiting for any notice.
The respondent No.1 shall consider the matter and pass the orders in accordance with law in an expedite manner within eight weeks thereafter.
All the rights and contentions of both the parties are left open to be considered in accordance with law.
Rule discharged.
In view of disposal of the writ petition, I.A. No.3/2017 filed for vacating stay does not survive for consideration and is accordingly disposed of.
Sd/-
JUDGE LG