Karnataka High Court
Mune Gowda vs The State Of Karnataka on 13 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.19761 OF 2021 (LB-RES)
BETWEEN:
MUNE GOWDA
S/O P.JAYARAMAIAH
AGED 54 YEARS
R/A NO.10, BAGALURU VILLAGE
JALA HOBLI
YELAHANKA TALUK
BENGALURU - 562 149. ... PETITIONER
(BY SRI JAYAKUMAR S.PATIL, SR.ADVOCATE A/W
SRI B.RAMESH, ADVOCATE (PHYSICAL HEARING))
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF RURAL DEVELOPMENT
AND PANCHAYAT RAJ
M.S.BUILDING
DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
REP. BY PRINCIPAL SECRETARY.
2. THE UNDER SECRETARY
DEPARTMENT OF RURAL
DEVELOPMENT AND PANCHAYATH
RAJ DEVELOPMENT
M.S.BUILDING
DR.AMBEDKAR VEEDHI
2
BENGALURU - 560 001.
3. THE REGIONAL COMMISSIONER
DEPARTMENT OF RURAL
DEVELOPMENT AND PANCHAYAT RAJ
BMTC BUILDING
K.H.ROAD, SANTHINAGAR
BENGALURU - 560 027.
4. THE COMMISSIONER
DEPARTMENT OF
RURAL DEVELOPMENT
AND PANCHAYAT RAJ
K.G.ROAD
BENGALURU - 560 001.
5. THE CHIEF EXECUTIVE OFFICER
BENGALURU URBAN ZILLA PANCHAYAT
S.KARIYAPPA ROAD
BENGALURU - 560 070.
6. BAGALURU GRAM PANCHAYAT
JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 562 149
REPRESENTED BY ITS PDO.
... RESPONDENTS
(BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 TO R4 (PHYSICAL
HEARING)
R6 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD. 30.10.2021 PASSED BY THE R-2 AND THE ORDER
DTD. 05.04.2021 BY THE R-3 WHICH ARE PRODUCED AND
MARKED AS ANNX-T AND K.
3
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 06.12.2021, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDER
The petitioner calls in question the order dated 30-10-2021 passed by the 2nd respondent and the foundational order dated 05-04-2021 passed by the 3rd respondent/Regional Commissioner, Department of Rural Development and Panchayat Raj, whereby the petitioner is removed from the post of Adyaksha of Bagaluru Gram Panchayat.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings are, as follows:
The petitioner is an elected representative/Member of Bagaluru Gram Panchayat, Jala Hobli, Bangalore North Taluk.
It is the claim of the petitioner that he was working in the said Panchayat since 2000 and pursuant to an election held during 2016-17 the petitioner was again elected to the said Panchayat as its Member and thereafter elected as President of the Bagaluru Gram Panchayat. The petitioner began to discharge 4 his duties as President of Bagaluru Gram Panchayat with effect from 19-12-2016. It is the claim of the petitioner that after he assumed charge as President of the Panchayat, several Panchayat Development Officers were appointed during his tenure and were transferred also. During the tenure of Sri Ramesh as Panchayat Development Officer ('PDO' for short) one contractor by name Venkatesh sought permission from the hands of the petitioner for laying Optic Fiber Cables ('OFC') of Jio Company ('Company' for short). The permission was accorded by the Gram Panchayat and in terms of the said permission, the said contractor i.e., Venkatesh executed the said contract by laying OFC in Bagaluru Gram Panchayat. During the tenure of Mr. Ramesh who was the PDO a demand notice was issued to the Company demanding tax of Rs.47,40,000/-
but the said tax was not paid by the contractor of the Company.
The said PDO later was transferred and the incumbent by name Smt. Annapurneshwari was deputed as PDO to the said place.5
3. At that juncture, the petitioner along with the incumbent PDO inspected the works carried out under the jurisdiction of the Panchayat as also laying down of OFC in the precincts of the Panchayat. During the inspection and on enquiry it is the claim of the petitioner that he comes to know that the Company was carrying out laying of OFC without paying requisite tax despite the demand notice issued to the Reliance Jio Infocom Limited. Again a notice demanding a sum of Rs.12,60,000/- was issued for carrying further works within the limits of the Panchayat. This resulted in a complaint being registered before the Deputy Commissioner of Police on 8.02.2020 by the PDO Smt. Annapurneshwari wherein the PDO had alleged that she had issued a demand notice to Jio Digital Fiber Private Limited directing it to pay Rs.12,60,000/- and the said notice was personally received by two contractors and also alleged that the said contractors had handed over the demand draft for a sum of Rs.12,60,000/- to the petitioner and also alleged that the petitioner had also confirmed that the demand 6 draft was with him and required some corrections and that he would hand over the same to the complainant in due course.
4. It is alleged that the complainant later came to know that the demand draft was deposited in HDFC Bank at Sanjaynagar Branch, Bangalore where the Gram Panchayat did not have any account and on that score the ultimate allegation was that the petitioner has misutilized or misappropriated the funds belonging to the Panchayat. A FIR came to be registered against unknown persons in Crime No.32 of 2020 for the offence punishable under Section 420 of the Indian Penal Code. On registration of the crime, the Chief Executive Officer of the Zilla Panchayat communicates to the PDO seeking furnishing of entire account details to an Audit Committee that was constituted to go into the allegations. It is, thereafter, the Chief Executive Officer communicates to the Competent Authority on 09-09-2020 to take appropriate action against the petitioner in terms of Section 48 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('the Act' for short).
75. Pursuant to the said communication, the Regional Commissioner, Competent Authority issued a notice to the petitioner. It is here the proceedings against the petitioner commenced on the aforesaid allegations. Pursuant to holding of certain proceedings, the Regional Commissioner submitted his report on 15-12-2020 which became subject matter of Writ Petition No.12057 of 2020. This Court disposed of the writ petition by its order dated 9.07.2021 directing the petitioner to appear before the State Government and place all relevant documents which were allegedly not considered by the Regional Commissioner. The amendment that was called in question was not interfered with. Pursuant to the order passed by this Court, the State Government held proceedings which resulted in the impugned order dated 30-10-2021. It is this order that is called in question by the petitioner.
6. The impugned order directs removal of the petitioner from the post of President of Bagaluru Gram Panchayat. This Court by an order dated 9-11-2021 granted stay of the 8 impugned order with a direction that the petitioner shall not take any decision with regard to financial aspects in the Panchayat.
7. Heard Sri Jayakumar S.Patil, learned Senior Counsel along with Sri B.Ramesh, learned counsel representing the petitioner and learned Additional Government Advocate Smt. Prathima Honnapura representing respondents 1 to 4.
8. The learned Senior Counsel would submit that the proceedings right from the word go against the petitioner have been conducted in blatant violation of the principles of natural justice as certain statements which were recorded during the investigation in the criminal trial are looked into by the Competent Authority without affording makers of such statements for cross-examination and certain reports were relied on without even furnishing those copies to the petitioner. The order impugned narrates that since charge sheet is filed in the criminal case against the petitioner, the petitioner is removed 9 from the post of President and would emphasise on the fact that mere pendency of criminal trial would not empower the Government to remove the elected President.
9. On the other hand, the learned Additional Government Advocate Smt. Prathima Honnapura refutes the contentions and would submit that the petitioner was well aware as to what is the report against him and what is the case against him. Every report that the petitioner complains of not being furnished were all available with him. His detailed replies submitted are a vindication of the submission as not a single word in the entire reply given, not once but twice, the contention that he was not furnished the report is taken up and would submit that it is only a summary procedure where the petitioner is held guilty of the misconduct of misappropriation of funds belonging to the Panchayat and would also submit that this Court should not interfere with the case where misappropriation is writ large.
10. I have given my anxious consideration to the submissions made by the respective learned Senior Counsel and 10 the learned Additional Government Advocate and perused the material on record.
11. Certain provisions of the Act are required to be noticed at the outset before considering the issue on merits of the matter. Sections 43A and 48 of the Act read as follows:
"43A. Removal of members.- (1) The Government or an Authority authorised by 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 11 Provided that where an application is made by a member to the Grama Panchayat for leave to absent himself and Grama panchayat fails to inform the applicant of its decision on the application within a period of seven days from the date of the application, the leave applied for shall be deemed to have been granted by the Grama Panchayat.; and
(iv) if the member, by coercion or fraud entice anyvoter or member of Gram Panchayat or Taluk Panchayat or Zilla Panchayatas 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 otherwise associated in any transaction related to such work as a partner, employee or a member on the Committee of such organisation, or otherwise.
(vi) if a former Adhyaksha or Upadhyaksha or member of Grama Panchayat has been accused and proved guilty for misconduct or misappropriation in an Inquiry.
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;
12(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".
... ... ... ...
48. Resignation or removal of Adhyaksha and Upadhyaksha.-(1) The Adhyaksha of the Grama Panchayat may resign his office by writing under his hand addressed to the Assistant Commissioner and the Upadhyaksha of the Grama Panchayat may resign his office by writing under his hand addressed to the Adhyaksha and in absence of the Adhyaksha to the Assistant Commissioner.
Provided that Adhyaksha or Upadhyaksha of a Gram Panchayat shall,-
(i) on the grounds of proven physical or mental incapacity certified by a competent authority approved by the State Election Commission; or;
(ii) on the grounds of securing employment in central Government or State Government or public undertakings; -resign his office or membership, or be liable for removal.
Provided further that the Assistant Commissioner shall enquire into the cause of resignation and satisfy that resignation has not been submitted under threat, coercion, undue influence and allurement and is submitted voluntarily;
13(2) Every Adhyaksha or Upadhyaksha of the Grama Panchayat shall vacate his office if he ceases to be a member of the Grama Panchayat.
(3) Every resignation under sub-section (1) shall take effect on the expiry of ten days from the date of its receipt by the Assistant Commissioner or the Adhyaksha, as the case may be, unless within the period of ten days he withdraws such resignation by writing under his hand addressed to the Assistant Commissioner or the Adhyaksha, as the case may be.
(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 as Adhyaksha or Upadhyaksha by the Government or an authority authorised 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 subsection (2) shall not be eligible for re-election as Adhyaksha or Upadhyaksha during the remaining term of office as member of such Grama Panchayat.
(5) An Adhyaksha or Upadhyaksha removed from his office under sub-section (4) may also be removed by the Government from the membership of the Grama Panchayat."
Sub-section (4) of Section 48 deals with removal of the President.
12. Before embarking upon the facts obtaining at the case on hand I deem it appropriate to notice the law laid down by the 14 Apex Court and that of this Court with regard to the kind of enquiry and the proceedings to be drawn particularly when it concerns removal of Adhyaksha of the Panchayat. The Apex Court in the case of SHARADA KAILASH MITTAL v. STATE OF M.P.1 has held as follows:
"23. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the President, Vice-President or Chairman of a Committee on four broad grounds, namely, (a) public interest; (b) interest of the Council; (c) incapability of performing his duties; and (d) working against the provisions of the Act or the Rules made thereunder. In addition, under Section 41-A(2), the State Government at the time of removal from office may also pass an order disqualifying the person from holding the office of the President, Vice-President or Chairman for the next term. The question to be determined is what is the scope of the application of Section 41-A and what is the nature of power of the Government?
... ... ... ...
25. For taking action under Section 41-A for removal of the President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the office- bearer concerned and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office-bearer.1
(2010) 2 SCC 319 15
26. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation."
(Emphasis supplied) Later, the Apex Court in the case of RAVI YASHWANT BHOIR v.
COLLECTOR2 has held as follows:
"29. The Constitution Bench of this Court in G. Sadanandan v. State of Kerala [AIR 1966 SC 1925: 1966 Cri LJ 1533] held that if all the safeguards provided under the statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed.
30. There can also be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature.2
(2012) 4 SCC 407 16 [Vide Indian National Congress (I) v. Institute of Social Welfare [(2002) 5 SCC 685: AIR 2002 SC 2158]. This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab [AIR 1963 SC 395] and Union of India v. H.C. Goel [AIR 1964 SC 364]. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer.
31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-
fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full-fledged inquiry.
... ... ... ... Recording of reasons
38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.
... ... ... ...
46. The emphasis on recording reason is that if the decision reveals the "inscrutable face of the sphinx", it can by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the 17 reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."
(Emphasis supplied) A Division Bench of this Court interpreting the very provision, in the case of BASANAGOUDA v. STATE OF KARNATAKA3 has held as follows:
"15. The word guilty of misconduct has a definite connotation in legal parlance and this conduct of a person has to be proved, and by a proper determination.
16. In the instant case, while it is true that there was a complaint registered against the petitioner and he has also been charge sheeted for offences punishable under Sections 323, 353, 504 and 506 IPC, which is not tried at the Criminal Court but this case is still pending trial before the Criminal Court.
17. Therefore, the question will be as to whether the State Government can hold a person guilty of misconduct at this stage. A determination of guilt is normally by the Court and not by an administrative authority and even before the Court, the accused is presumed to be innocent until proved to be guilty.
18. We do not find even in the impugned order of the State Government any determination to the effect that the writ petitioner was guilty of a particular misconduct. The order itself recites that while the criminal case is still pending and the trial has not yet begun in the criminal case and 3 ILR 2012 KAR 3315 18 there is not even a definite finding of misconduct, which can be characterized as guilty of misconduct, is conspicuously absent in the order passed by the State Government. Even the word 'or guilty of misconduct' should be interpreted ejusdem generis with the previous phrases as persistently remiss as both these phrases qualify the conduct in the discharge of duties as Adhyaksha or Upadhyaksha. While persistently remiss in discharge of duties as Adhyaksha or Upadhyaksha can be easily understood as a conduct of total negligence in attending to the responsibilities of the post, the word 'guilty' of mis- conduct also should be understood in the context of the discharge of duties and not in independent of it.
19. Though the petitioner had not appeared before the enquiry officer on the last date of the hearing, it is not an adverse interference that can be drawn due to the absence of the petitioner on the day, but orders have to be passed only on the basis of material available on record and particularly, on the examination of the explanation offered by the person. We do not find any consideration of the explanation offered, except to record the finding that the enquiry officer was satisfied that there is a prima facie case against the petitioner."
(Emphasis supplied) In the latest judgment in the case of AJITHKUMAR v. STATE OF KARNATAKA4 this Court following the judgment in RAVI YASHWANT BHOIR has held as follows:
"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 4 ILR 2019 KAR 67 19 being heard in the course of an enquiry. In the instant 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 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 Panchayat. In the instant case, all the above factors 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 Panchayat. 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 Upalokayukta 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 consequential."
(Emphasis supplied) Subsequently, several Co-ordinate Benches of this Court have followed the law laid down in the cases afore-extracted.
2013. What would unmistakably emerge on a conjoint reading of the interpretation of law by the Apex Court and this Court insofar as they concern removal of the President is that, the action of removal causes a serious stigma on the person and to the life of the office bearer and would result in disqualification to hold such office in the next term. Therefore, on such exercise of power which has grave civil consequences should not be exercised in a casual manner and should be dealt with strictly in consonance with law by affording every opportunity to defend herself or himself in the said inquiry. On the touchstone of the principles laid down in the aforesaid judgments, the facts obtaining in the case at hand are required to be noticed.
14. The afore-narrated allegations are the genesis of these proceedings being not in dispute need not be reiterated. A complaint registered by the complainant i.e., the PDO Smt.Annapurneshwari before the Deputy Commissioner alleging misappropriation of Rs.12,60,000/- reads as follows:
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The allegation is that the money that belonged to the Panchayat is deposited in HDFC Bank by opening a fake account with the connivance of the Bill Collector and in the name of the Bill Collector by the President. This results in a complaint being registered against unknown persons in Crime No.32 of 2020 for offence under Section 420 of the IPC. The proceedings there have gone on and are pending adjudication before the competent criminal Court.
15. On 07-09-2020 one Sri R.N. Tulasiramaiah and Sri T.Nagaraju were deputed to the Panchayat to audit the accounts of the Panchayat. The audit of the Panchayat resulted in a report being submitted with regard to misappropriation of an amount of Rs.64,20,000/-. The communication is made by 23 the Chief Accounts Officer of the Zilla Panchayat to the Chief Executive Officer on 1-10-2020 narrating the entire report submitted by the Accounts team. The relevant observations in the report which are germane are as follows:
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On the basis of the report submitted on 1-10-2020 alleging misappropriation of Rs.64,20,000/- a show cause notice was issued to the petitioner on 21-09-2020 seeking the petitioner to show cause as to why the proceedings under Section 43A of the 25 Act should not be initiated. It is here the bone of contention arises.
16. It is the case of the petitioner that the alleged report of the audit team which had indicated misappropriation of Rs.64,20,000/- which formed part of the notice was not furnished. The show cause notice was issued by the 3rd respondent/Regional Commissioner who is the Competent Authority. The notice results in certain proceedings against the petitioner which began on 17-11-2020 and concluded on 15-12- 2020 and an order is passed on 5-04-2021. The commencement of proceedings pursuant to a notice dated 21-09-2020 became subject matter of Writ Petition No.12057 of 2020 wherein the petitioner sought to quash the notice issued upon him on 24.09.2020 on the ground that it is in violation of the principles of natural justice as the audit team did not consider any of the documents placed by the petitioner during the enquiry. This Court disposed of the writ petition by the following order:
"6. The materials on record which are placed along with amended application would clearly reveal that 26 respondent No.2 has submitted an enquiry report to the State Government. Therefore, writ petition filed questioning the show cause notice may not survive consideration. However, all contentions are kept open and the petitioner is at liberty to appear before the State Government an place all the relevant materials which were not considered by respondent No.2.
7. Insofar as the amendment sought by the petitioner seeking writ of mandamus to issue a direction to respondent Nos.1 and 2 is concerned, this Court is of the view that the averments made in the amendment with regard to the relief of writ of mandamus is a subsequent cause of action and it is an independent cause of action and therefore, all the contentions raised in the amendment application are kept open and it is open for the petitioner to challenge the same in accordance with law. Therefore, liberty is reserved to the petitioner to file a comprehensive writ petition before this Court.
8. With these observations, writ petition stands disposed off. Liberty is reserved to the petitioner to file a fresh writ petition insofar as the relief sought in the amended application is concerned."
The writ petition was disposed of reserving liberty to the petitioner to raise all such contentions and file a comprehensive writ before this Court at a given point in time.
17. During the pendency of the said writ petition a second show cause notice was issued to the petitioner enclosing the report of enquiry by the Regional Commissioner. The second 27 show cause notice was issued on 15-04-2021. The notice reads as follows:
"JgÀqÀ£Éà PÁgÀt PÉüÀĪÀ £ÉÆÃnÃ¸ï ²æÃ.eÉ.ªÀÄÄ£ÉÃUËqÀ, CzsÀåPÀëgÀÄ, ¨ÁUÀ®ÆgÀÄ UÁæªÀÄ ¥ÀAZÁ¬Äw, AiÀÄ®ºÀAPÀ vÁ®ÆèPÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ f¯Éè gÀªÀgÀ «gÀÄzÀÞzÀ DgÉÆÃ¥ÀUÀ¼À ¥ÁæzÉòPÀ DAiÀÄÄPÀÛgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ «¨sÁUÀ, ¨ÉAUÀ¼ÀÆgÀÄ gÀªÀgÀÄ ¢£ÁAPÀ:05.04.2021 gÀAzÀÄ ¸À°è¹gÀĪÀ «ZÁgÀuÁ ªÀgÀ¢AiÀÄ ¥ÀæwAiÀÄ£ÀÄß EzÀgÉÆqÀ£É ®UÀwÛ¹zÉ. ¤ªÀÄä «gÀÄzÀÞ PÀ£ÁðlPÀ UÁæªÀÄ ¸ÀégÁeï ªÀÄvÀÄÛ ¥ÀAZÁAiÀÄvï gÁeï C¢ü¤AiÀĪÀÄ 1993gÀ ¥ÀæPÀgÀt 43(J) ªÀÄvÀÄÛ 48(4) gÀr PÀæªÀÄ dgÀÄV¸À®Ä wêÀiÁð¤¹zÀÄÝ, F £ÉÆÃnøï vÀ®Ä¦zÀ 15 ¢£ÀUÀ¼ÉƼÀUÁV ¤ªÀÄäUÀ¼À °TvÀ «ªÀgÀuÉAiÀÄ£ÀÄß ¸ÀPÁðgÀPÉÌ ¸À°è¸ÀĪÀAvÉ ¸ÀÆa¹zÉ. vÀ¦àzÀ°è ¤ªÀÄä ºÉýPÉ K£ÀÆ EgÀĪÀÅ¢®èªÉAzÀÄ ¥ÀjUÀt¹ ¤AiÀĪÀiÁ£ÀĸÁgÀ ªÀÄÄA¢£À PÀæªÀÄ PÉÊUÉƼÀî¯ÁUÀĪÀÅzÉAzÀÄ F ªÀÄÆ®PÀ w½¸À¯ÁVzÉ."
(Emphasis added) Here again, the learned Senior Counsel emphasizes on the fact that there was report of inquiry that was enclosed. It was only indicated that the report was enclosed but in reality no report was enclosed. The petitioner submits his reply to the second show cause notice on 14-06-2021. The reply was to the notice dated 15-04-2021 received on 19-04-2021. The petitioner narrates in complete details of the entire proceedings against him right from his assumption of charge as President of Gram Panchayat up to the show cause notice that was issued.
Nowhere in the reply the petitioner makes out a case that he has 28 not been furnished with any report of inquiry. The reply given by the petitioner on 14-06-2021 reads as follows:
"To The Under Secretary, Department of Zilla and Taluk Panchayat, M.S.Building,Dr.B.R.AmbedkarVeedhi,.
Bangaloore-560 001.
From:
J.Mlunegowda, President of Bagaluru Village Gram Panchayat, Jala Hobli, Bangalore North District.
Subject: Reply to your notice dated 15-04-2021 received on 19-04-2021.
--
1. I undersigned submits that I am, an elected representative/member of Bagaluru Gram Panchaya, Jala Hobli, Bengaluru North Taluk. I submit that I have been elected by the people of the Bagaluru Gram Panchayat ever since 2000. I submit that pursuant to the election held during 2016-17, I was once again elected as a member of the said panchayat and thereafter I was elected as President to the said Gram Panchayat.
2. I submit that I am discharging as a President of Bagaluru Gram Panchayat ever since 19-12-2016 without having any nature of allegations and having unblemished records either in the panchayat or surrounding areas.
3. I submit that ever since I taking the charge as President of Bagaluru Village Gram Panchayat I am serving for the needs of the people and working for the development of the panchayat and in the said process, I do not have any blemish record regarding misutilization 29 and misappropriate the any nature of funds of the BagaluruVillage Gram Panchayat ever since 19-12-2016 as a President till to-day and also from the date of appointing a member.
4. I submit that from the date of becoming a member of the Bagaluru Village Gram Panchayat several Panchayat Development Officers were posted and they have and they are transferred and had honestly worked under them with utmost respect and without any allegations against me. I submit that I was reelected as a member in the elections held during 2016-17 to the said panchayat and I was also elected as a President. I submit that during my tenure as a President, several Panchayat Development Officers were appointed i.e., Bhaskar L., Praveen Kumar, Nagaraj, Ramesh.S and also Smt. Annapurneshwari G from 05-05-2019.
5. I submit that in my tenure as a President, none of the Panchayat Development Officers had made a single complaint against me by stating that I had misutilised, misappropriated or diverted the funds of the Gram Panchayat. Further there is also no allegation against with regard to misutilisation, misappropriation or diversion the funds of the Gram Panchayat ever since from the date of I becoming a member of Bagalur Gram Panchayat.
6. I submit that I myself had huge sum of my personal funds for development of the Gram Panchayat and the said facts was well within the knowledge of all the members and Panchayat Development Officers and they have appreciated by the said persons and also by the villagers.
7. I submit that, I was born and brought up in Bagaluru Village. I submit that, my family is agricultural family having vast extent of land from which my family is getting sufficient source of income. I submit that, some of 30 the my properties were also acquired by KIADB for the formation of an industrial area and under the said process my family was granted compensation. I submit that I and my family utilized the said compensation amount for purchasing both agricultural and non-
agricultural lands i.e., commercial site in and around Bengaluru City and Bengaluru Rural District i.e., near Devanahalli. I submit that, out of the said income I and my family members also developed the said land by planting grape garden. I submit that from the said garden I and my family were receiving huge income and from the said income myself had purchased several agricultural lands and also constructed commercial building and from which I was also receiving huge income. I submit that from the above stated source facts I and my family had sufficient source of income. Hence, question of I misutilising, misappropriating or diverting the funds of the Gram Panchayat does not arise.
8. I submit that during the tenure of one Ramesh who was working as Panchayat Development Officer in Bagaluru Grama Panchayat one Venkatesh a contractor had sought permission for laying Optic Fiber Cables of Jio Company and the said permission was also accorded by the Gram Panchayat. I submit that in terms of the permission accorded by Gram Panchayat, the said contractor i.e., Venkatesh was carrying on the working in Bagalur Gram Panchayat limits by laying Optic Fiber Cables. I submit that during the tenure of Ramesh who was a Panchayat Development Officer he had issued a demand notice to the said company for payment of requisite tax for a sum of Rs.47,40,000/-. I submit that the said amount was not paid by the said contractor for its best known reasons. I submit that as the facts stood at that stage the said PDO i.e., Ramesh was transferred and Smt. Annapurneshwari was deputed as PDO to our Gram Panchayat and she was reported to duty on 05-05- 2019.
9. I submit that, as the facts stood at that stage on 21-09-2019 when I along with Smt. Annapurneshwari 31 i.e., Panchayat Development Officer were inspecting works carried in the jurisdiction of Bagalur Gram Panchayat limits, we also inspected the work carried on by one Anand, Contractor for laying Optic Fiber Cables of Jio Digital Fiber Private Limited. I submit that during the course of inspection and on enquiry by the present Panchayat Development Officer it came to know that said company who are carrying on work of laying Optic Fiber Cables had not paid requisite tax to the jurisdictional Bagaluru Village Gram Panchayat. Hence, the Panchayat Development Officer on 21-09-2019 had issued demand notice without my knowledge to Reliance Jio Infocom Limited by demanding them to pay a sum of Rs.12,60,000 for carrying on further work in the limits of the Bagaluru Village Gram Panchayat
10. I submit that as the facts stood at that stage, I was shock and surprise to know that the present Panchayat Development Officer had lodged a complaint before the Deputy Commissioner of Police, North Division, Yeshwanthapura, Bengaluru on 08-02-2020 wherein she had specifically stated that on 20-01-2020 she had issued a demand notice to Jio Digital Fiber Private Limited by directing them to pay a sum of Rs.12,60,000/- for carrying of their work in Bagaluru Gram Panchayat limits and the said notice was personally received by Ananda, a contractor who was carrying on work of laying Optic Fiber Cables along with Venkatesh who is also contractor. Further she had also stated that on enquiry she came to know the Andanda had handed over the said demand draft for a sum of Rs.12,60,000 to J.Munegowda i.e., to me and she had also stated that on enquiry with Munegowda he had started that said demand draft was with him and same is required some corrections and correction he would be handed over the same and also stated that said demand draft was never deposited in the account of the said Gram Panchayat and also stated that she came to know that said demand draft was deposited in the bank HDFC at Sanjaya Nagar Branch, Bengaluru and also stated that the said Gram 32 Panchayat do not have any bank account in the HDFC at Sanjayua Nagar Branch, Bengaluru and also stated that account was opened in the name of Panchayat Development Officer of the Bagaluru Village Gram Panchayat without her knowledge and the said demand draft issued by Anand was deposited in the said account and the said amount was mis-utilised and accordingly sought for taking appropriate action against the said persons for misusing the funds of the Panchayat.
11. I submit that pursuant to the complaint lodged by PDO the jurisdictional police had registered an FIR in Crime No.32/2020 for the offences punishable under Section 420 of IPC against unknown persons. I submit that as the facts stood at that stage the Chief Executive Officer, Zilla Panchayat wrote a letter to the Panchayat Development Officer of the Bagaluru Village Gram Panchayat requesting on 07-09-2020 seeking for furnishing the account details to the Audit committee and also furnish the documents. I submit that thereafter the Chief Executive Officer, Zilla Panchayat had wrote letter to this authority on 09-09-2020 to take appropriate action in accordance with law Section 48 of the Act against myself. I submit that the Regional Commissioner on 21-09-2020 issued a notice directing me to submit my reply.
12. I submit that as the facts stood at that stage pursuant to the complaint lodged by PDO, the jurisdictional police conducted a partial investigation by recording statement of Anand, Munivekatarama, Kirshna Narayana Nayak, Mahesh Kumar and the statement of PDO i.e., Smt. Annapurneshwari and secured the account details of HDFC Bank, Sanjaya Nagar Branch, Bengaluru. It is submitted that the jurisdictional police without conducting the enquiry in proper manner and also without conducting the enquiry in proper manner and also without verifying the correct facts filed a charge sheet against me by arraying as accused No.1, Venkatesh (Contractor) as accused No.2 and Lakshminarayana as accused No.3 and 33 CharathaiaHirematt as accused No.4 for the offence punishable under Sections 406, 408, 409, 420 and 120B read with Section 34 of IPC.
13. I submit that pursuant to the notice issued by the Regional Commissioner I have submitted my detailed explanation by stating I have not committed any offence as alleged against me and also stated that I have been falsely implicated in the said proceedings and also specifically stated I have not at all diverted or mis-used any funds of the Panchayat till date. I submit that I had specifically stated that the said account was opened by the present PDO i.e., Smt. Annapurneshwari and also stated that she had mis-used and diverted the funds of the Panchayat.
14. I submit that as the facts stood at that stage I and other members of the Panchayaat came to know the PDO has misused and diverted the funds and cause to loss to the Panchayat. I submit that in view of the same I and other 14 members of the Panchayat had lodged a complaint to the jurisdictional Minister on 16-10-2020 in which mis-use and diversion of funds alleged against PDO and also said complaint is pending consideration before the jurisdictional Minister as on to-day.
15. I submit that in the said complaint it was specifically stated that the said account was opened by the present Panchayat Development Officer after she took charge. Further the it was also alleged that both PDO and the contractor i.e., Venkatesh in collusion with each other has opened an account in HDFE Bank, Sanjayanagar Branch Bengaluru by falsely showing the name of PDO as Munivenkatraramanappa i.e., Bill Collector and the said account was opened on 08-05- 2019 i.e., after three days from the date of present PDO taking charge of Panchayat.
16. I submit that Munivenkataramanappa was not in services as on the date of opening the account as he 34 was suspended by the earlier PDO for certain misconduct on 30.04.2019. I submit that the PDO had not taken any action for withdrawing the amount of Rs.47,40,000/- was deposited and same has been withdrawn in the name of one Venkatesh, Mohan Kumar, Skanda Enterprises which is run in the name of Venkatesh's wife and Manjunatha which was also belonging to Bagaluru Grama Panchayat which is also received towards tax from Jio company. Further a sum of Rs.12,60,000/- was also received from Jio Company which was also towards tax and the said amount was also deposited in the said account and same was also withdrawn by Venkatesh i.e., contractor was carrying the work of laying Optic Fiber Cables. I submit that the present PDO and Venkatesh and Anand in collusion with each other had diverted and mis-utilised the funds of the Panchayat and sought for taking action against the said persons.
17. I submit that for the past 20 years I am working as a Member in the Bagaluru Village Gram Panchayat and there is no any allegation against me by any member or by any Panchayat Development Officer of the Bagaluru Village Gram Panchayat regarding I mis - utilising, mis - appropriating and diversion of the funds of the Gram Panchayat. I submit that, the present Panchayat Development Officer in order to safeguard her misconduct and her conduct has shifted the entire burden on me. I submit that I have never indulged any such activities as contended by the present Panchayat Development Officer and statement of parties before the jurisdictional Police.
18. I submit that, on perusal of the statement of Anand Kumar it is seen that the demand draft was handed over to Venkatesh and also stated that he in turn handed over the same to me. I submit that on perusal of the statement of Anand Kumar, it can be seen that Anand Kumar and Venkatesh are the contractors who were carrying the work of laying Optic Fiber Cables in the Bagalur Gram Panchayat limits and they both have 35 colluded with PDO had opened the account by Venkatesh in HDFC Bank only on 08-05-2019 and also deposited certain amounts by Venkatesh in the said account. I submit that neither of the parties have spoken about mis- utilisation and diversion of Rs.47,40,000/- from this it is clear that the alleged offence is committed by the present PDO, Anand and Venkatesh.
19. I submit that on perusal of the documents it can be seen that the account in HDFC Bank, Sanjayanagar Branch was opened on 08-05-2019 and a demand draft of Rs.47,40,000/- was deposited on 09-05-2019 and the said amount was also withdrawn by Venkatesh and his family members and the said account was in transaction from 09-05-2019 till 16-10-2019. I submit that entire transaction taken place on 09-05-2019 and 16-10-2019 was not all within my knowledge. I submit that I have been falsely implicated in order to see that my political career is destroyed and should not be continue in the Gram Panchayat in future.
20. I submit that there are several allegations against the present Panchayat Development Officer before she reporting as a Panchayat Development Officer of Bagaluru Village Grama Panchayat regarding mis- utilisation, mis-appropriation and diversion of the fund of the Panchayat and she was also suspended and enquiry proceedings are also pending consideration before the competent authority.
21. I submit that after the present PDO took charge of the Bagaluru Gram Panchayat on 05-05-2019 and the account in HDFC Bank at Sanjaynagar Branch, Bengaluru was opened on 08-05-2019 and first DD was deposited on 09-05-2019 towards the demand raised by earlier PDO i.e., Ramesh and 2nd DD was deposited on 21-09-2019. I submit that the complaint was lodged by PDO only on 08.02.2020 i.e., after 5 months she issuing a demand notice to Jio Company for deposit of tax and after she issuing demand notice without my knowledge 36 she has also not proceeded with and form this its is clear that there is hand in glow with the contractors and PDO in diversion of funds of Panchayat. I submit that the present PDO in order to fill up her lacuna has falsely implicated me in the present proceedings.
22. I submit that the jurisdictional police have filed charge sheet by stating that I am absconding after the complaint is lodged, the said fact is factually incorrect, in view of the fact that I am permanent resident of Bagaluru Village and I am also performing my duties ever since 08.02.2020 till date. I submit that I have also in the process of signing the cheques of the Panchayat for the payment of salary to the staff and also signing the cheques for the expenditure incurred each and every month. I submit that I am fully available within the jurisdiction of the Panchayat doing my routine work of the Panchayat which is also well within the knowledge of the by catering the needs of the people in the Panchayat and hence question of I absconding does not arise.
23. I submit that the present PD who has given her statement on 19-02-2020 before the jurisdictional police has also signed the cheques issued on behalf of the said Panchayat along with me from February-2020 till date.
24. From the above stated facts it can be seen that none of the witnesses or the PDO have produced any documents to substantiate the fact that I have opened the account in HDFC Bank at Sanjaynagar Branch, Bengaluru and diverted the funds of the Panchayat.
25. I submit that on perusal of the bank statement of HDFC Bank, Sanjaynagar Branch, Bengaluru it is clear that PDO in her complaint dated 08-02-2020 has not been whispered any single sentence in respect of the amount withdrawn of Rs.47,40,000/- by the Venkatesh and his family members. I submit that from this itself it is clear that present PDO is hand-in-glow with Venkatesh and others by diverting the funds have misappropriated 37 the funds of Bagaluru Village Gram Panchayat. Hence, appropriate account has been initiated against the present Panchayat Development Officer.
26. I submit that, I have utmost respect in the surrounding villages of Bagaluru Gram Panchayat. I submit that in view of the above stated false and baseless allegations made by PDO is without any basis. I submit that, I have not indulged any activities of mis- utilisation, mis-appropriation and diversion of funds of the Bagaluru Gram Panchayat ever since 2000 till date.
27. I submit that after I am other members of the Panchayat came to know that the present PDO herself had diverted the funds of the Panchayat and caused loss. I submit that in view of the same I and other members of the Panchayat had submitted a detailed representation/ complai8nt to the higher authorities requesting them to take appropriate action against the said PDO. I submit that the said complaint is pending consideration before the authorities and no action has been taken till date. I submit that, once against on 16- 10-2020, I and other members of the Panchayat had made representation to Principal Secretary, Department of Rural and Panchayat Development Commissioner, Department of Rural and Panchayat Development and Chief Executive Officer, Zilla Panchayat requesting them to take necessary action against the present PDO for mis- utilising her power. I submit that, the Hon'ble Minister has also directed the Principal Secretary, Department of Rural and Panchayat Development to investigate in the matter and take appropriate action. I submit that, further the Director, Officer of Commissioner Department of Rural an d Panchayat Development under its letter dated 30- 11-2020 had also directed the Chief Executive Officer to hold and enquiry and submit a report to that effect. I submit that till date the said authorities are not yet conducted any enquiry for their best known reasons.
3828. I submit that, as the facts stood at that stage I also came to know that the present PDO has also cause loss to the Panchayat and on verification I came to know that on 20-02-2020 the PDO had issued a demand notice to Jio Digital Private Limited by directing them to pay a sum of Rs.22,20,000/- in order to carry on the work of laying Optic Cables. I submit that even after the demand the said persons have not deposited the said amount till date, however, they have already completed their work about six to eight months back without depositing single penny. I submit that, from the above stated fact it is clear that the PDO is hand in glow with the said persons and cause loss to the panchayat and also it is clear that the PDO has not furnished any document to show the she has collected the said amount and deposited in the account of the Panchayat. I submit that, this is one example of mis-utilisation of the funds and causing loss to the Panchayat.
29. I submit that, I also came to know that the present PDO was either while she was working in Nariga Gram Panchayat certain misconducts were levied against her regarding mis-utilisation of her power. I submit that, to that effect an enquiry was also held by the retired District Judge and the said authority had also submitted his report wherein the charged levied against her was proved. I submit that based on the same she had filed an appeal and in the said appeal based on her undertaking the said appeal was allowed and charged levied against her was dropped. I submit that, in the said proceedings the said PDO had accused against one deceased Sunil Kumar and he was not alive in order to substantiate the charges levied against him and hence the said appeal was allowed. But in the instance case there is numerous documents to prove that the present PDO is involved in misutilisation and diversion of funds of the Panchayat and caused loss to the Panchayat. I submit that the charges levied against me is also false and the said funds are also mis-utilised by the present PDO and hence I request this authority to initiate appropriate action 39 against the present PDO and drop the charges levied against me.
30. I submit that this authority has also invoked Section 43A and Section 48(4) of the Act against me. I submit that the said provisions are not at all applicable to the facts and circumstances of the case. I submit that I have not committed any nature of offence as alleged in the said provisions. I submit that I have also not committed any misconduct as alleged by PDO against me. I submit that, till to-day none of the members of the Panchayat has alleged that I have mis-utilised/diverted the funds of the Panchayat at any point of time till date. Hence, I request this esteemed authority drop the proceedings initiated against me.
WHEREFORE, in view of the above stated facts I request this esteemed authority to drop the proceedings initiated against me and take appropriate action against present PDO i.e., Smt. Annapurneshwari of Bagalur Village Gram Panchayat pursuant to the complaint lodged by me and other 14 members of the said Gram Panchayat before the Minister on 16-10-2020.
I would be grateful this authority in this regard. Thanking you, Yours faithfully, (MUNE GOWDA)"
(Emphasis added) In the reply the petitioner clearly narrates that he has perused every statement - one given by Munivenkataramanappa and another by Anand Kumar. At paragraph 16 the petitioner narrates about the statement of Munivenkataramanappa and at paragraph 18 narrates about the statement of Anand Kumar.40
Therefore, it is clear from those paragraphs that the petitioner had the benefit of the reports and statements of persons.
Pursuant to the reply submitted by the petitioner, the petitioner was called for personal hearing on 10.06.2021 by the respondent/State before whom the petitioner files detailed statement of objections.
18. In the statement of objections, the petitioner again reiterates the reply given to the show cause notice. What is added was that he was not afforded with reasonable opportunity.
This is for the first time that is brought out in the objections filed during the personal hearing. The added narration by the petitioner reads as follows:-
"22. It is submitted that, on perusal of the report submitted by the Regional Commissioner it is clear that there is no enquiry was conducted and enquiry was closed on only on two sitting i.e., in one sitting the respondent was given one chance to file his reply and on the next sitting by receiving the reply the matter was posted for orders. Further, from the order passed by the Regional Commissioner it is not disclosed what was the material relied by the Regional Commissioner and what are the charges levied on the respondent. It is submitted that the Regional Commissioner did not permit the respondent to test the veracity of the documents and also did not record any statement of the parties and also not 41 furnished any documents before holding or issuing notice for enquiry.
23. It is submitted that, in view of the above stated fact it is clear that regional commissioner did not conduct an enquiry as stipulated as per provision of the Act by affording an opportunity to the respondent by furnishing the documents and examination of the witnesses who have given statement.
24. It is submitted that, the Regional Commissioner without affording an opportunity to hearing and without holding an enquiry as stipulated under the provisions of the Act and the law declared by the Hon'ble High Court and also without affording an opportunity of hearing had proceeded to close the proceedings in one hearing. It is submitted that, the Regional Commissioner had proceeded to submit a report on 05-04-2021 to the said authority by holding that the respondent is guilty of the misappropriation of funds of the Gram Panchayat by merely relying on the charge sheet submitted by jurisdictional Police which is still under investigation and complete charge sheet was not filed and the criminal court has not commenced the trial. It is submitted that the Regional Commissioner without there being any material produced against the respondent and without affording an opportunity to the respondent to defend his case and also without affording an opportunity to the respondent to disprove the statement made by the authority and the PDO was incorrect has submitted its report. It is submitted that the entire proceedings initiated by the Regional Commissioner is violation of the Principle of natural justice and the contrary to the law declared by the Apex Court in various judgment.
25. It is submitted that the Regional Commissioner in one stretch merely recording that a criminal case has to be against the respondent and charge sheet is also fined and accordingly recommendation for the 42 substantive and proceedings against the PDO also to be initiated. It is submitted that pursuant to the report submitted before the Regional Commissioner this authority has issued second show cause notice to the respondent without appreciate the law declared by the Hon'ble High Court in various judgment."
(Emphasis added) All the aforesaid proceedings resulted in the impugned order dated 30-10-2021 being passed removing the petitioner from the office of President as also Member of the Gram Panchayat. The narration in the order is germane to be noticed and is extracted herein for the purpose of quick reference:
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(Emphasis added) Two glaring circumstances emerge from the narration in the order as afore-noticed. That the order refers to statements of Sri Anand Kumar and Sri Munivenkataramanappa who had alleged certain acts against the petitioner and the order refers to the report of audit and the report of the Regional Commissioner pursuant to an inquiry.
19. Though the petitioner narrates the contents of the report and also the contents of the statements of Sri Anand Kumar and Munivenkataramanappa have been seen by the petitioner, there is no document forthcoming to demonstrate 49 that the report of inquiry - both of audit and of the Regional Commissioner were furnished to the petitioner and the statements of Sri Anand Kumar and Sri Munivenkataramanappa which also formed part of the impugned order were statements given to the Police during investigation. The petitioner may have been in possession of the said statements but the makers of those statements before the Investigating Officer in the criminal trial could not have been used in the inquiry without at the outset offering the makers of the statements for cross-
examination, failure of which violates the principle of "mere marking of a document would not amount to its proof". This principle is applicable to any proceeding which would result in civil consequence against the victim of such consequence.
20. It is not in dispute that the makers of the statements have not been examined in the inquiry nor were offered for cross-examination. However, their statements are marked. The petitioner is also privy to the statements made. This would not suffice for the principle of audi alteram partem and affording of 50 reasonable opportunity. The submission of the learned Additional Government Advocate that the petitioner has all the documents in his possession though not furnished by the Government cannot be accepted, as in law the petitioner should be furnished all those documents and makers of the statements should be offered for cross-examination.
21. The other circumstance that finds place in the order is pendency of criminal case also being made a reason, inter alia, to remove the petitioner from the post of President. The criminal proceedings are pending; they are yet to culminate in a final order being passed albeit charge sheet is filed against the petitioner. Therefore, that could not have been made a foundation, inter alia, for passing the impugned order.
22. It is germane to notice the judgment of the Apex Court in the case of S.L. KAPOOR v. JAGMOHAN5 wherein it is observed as follows:
"12. The next question for consideration is whether the Committee was given an opportunity to 5 (1980) 4 SCC 379 51 make its representations against the allegations upon which the order of supersession was ultimately founded. We have already mentioned that the first allegation was about the agreement to pay "mobilisation advance" to M/s Tarapore& Co. It appears that the work of construction of New Delhi City Centre was initially awarded to Mohinder Singh & Co. in October 1976 but on account of their inability to complete the work within the stipulated time it was decided to invite "restricted tenders" from other contractors. . That was done and the contract was awarded to Tarapore& Co.
One of the conditions of the contract which was accepted by the Committee was that the contractor should be paid 7½ per cent of the value of the tender as "mobilisation advance". On December 31, 1979, the New Delhi Municipal Committee addressed a letter to the Secretary (Local Self-Government), Delhi Administration requesting the sanction of the Lt. Governor for payment of "mobilisation advance" to the contractors. It was mentioned in the letter that the contractors had offered to pay interest at the rate of 9% per annum and to give a bank guarantee to cover the advance as well as the interest. While the question of the grant of approval by the Lt. Governor was under consideration, Mohinder Singh, the original contractor appears to have submitted a representation to the Government of India about the award of the contract to Tarapore& Co. On February 11, 1980, the Deputy Secretary, Ministry of Works & Housing, Government of India, forwarded a copy of the representation to Shri S.C. Chhabra, President, New Delhi Municipal Committee and requested him "(a) to send a factual report on the subject, and (b) not to make further payments, commitments or arrangements or to do anything irrevocable till the New Delhi Municipal Committee hears from this Ministry". The President of the New Delhi Municipal Committee submitted the factual report on February 13, 1980, and on February 19, 1980 wrote a letter to Shri M.K. Mukherjee, Secretary, Ministry of Works & Housing, pointing out that a serious situation and stalemate had been created because of the direction 52 contained in the Deputy Secretary's letter dated February 11, 1980 not to make further payments to the contractors until they again heard from the Government of India. The circumstances under which the contract had been awarded to Tarapore& Co. were explained and the Government of India requested to communicate their decision at an early date. A copy of the letter was also sent to the Lt. Governor and to the Secretary, Local Self- Government, Delhi Administration. On February 19, 1980 the Deputy Secretary, Ministry of Works & Housing, Government of India wrote to Shri Shaiza, Secretary, Local Self-Government, Delhi Administration pointing to the letter from him (the Deputy Secretary, Government of India) to the President, New Delhi Municipal Committee, a copy of which had been sent to Shri Shaiza and referring to a subsequent telephonic conversation between the two of them, and mentioning that a report had since been received from the New Delhi Municipal Committee. The Deputy Secretary, Ministry of Works & Housing also reminded Shri Shaiza that he had given him to understand that the Lt. Governor had not agreed to the grant of mobilisation advance of Rs 15 lakhs by the New Delhi Municipal Committee to M/s Tarapore& Co. He requested Shri Shaiza to expedite the views of the Delhi Administration on Mohinder Singh & Co's. representation and the modalities of the grant of the contract for the remainder of the work to M/s Tarapore& Co. It is to be noted here that though according to this letter Shri Shaiza had already informed the Deputy Secretary, Government of India, that the Lt. Governor had not agreed to the grant of the mobilisation advance, the New Delhi Municipal Committee themselves had not been so informed by the Delhi Administration until then, nor even later. What is even more curious is the circumstance that after receiving Shri Shaiza's letter, the Deputy Secretary, Government of India, on February 22, 1980, wrote to the President, New Delhi Municipal Committee informing him that the Ministry of Works & Housing had considered the position and that the New Delhi Municipal Committee might deal with the matter according to law and that the request 53 made in sub-para (b) of his D.O. letter of even number dated February 11, 1980, addressed to the President, New Delhi Municipal Committee might be treated as withdrawn. This was to be without prejudice to any action that the Ministry of Home Affairs and/or the Delhi Administration might like to take in the matter. This was how the matter stood when the impugned order was passed on February 27, 1980, by the Lt. Governor. The order was signed by Shri Shaiza, Secretary, Local Self- Government, Delhi Administration. It appears that Shri Shaiza had made a notice on the file on February 12, 1980, apparently for the consideration of the Lt. Governor. However, that was entirely an internal matter about which the New Delhi Municipal Committee could have had no knowledge. This is the entire material placed before us in support of the claim made by the learned Attorney-General on behalf of the Delhi Administration that the Committee had the opportunity of making its representation in regard to the first of the allegations made in the impugned order. It is difficult to sustain the claim of the learned Attorney-General even in a remote way. In the first place the correspondence that passed was between the Government of India and the New Delhi Municipal Committee and not between the Delhi Administration and the New Delhi Municipal Committee. The authority competent to take action under Section 238(1) of the Punjab Municipal Act was the Delhi Administration and not the Government of India. It cannot, therefore, be contended that the Delhi Administration ever gave any opportunity to the New Delhi Municipal Committee to make any representation about this matter. In the second place the correspondence that passed between the Government of India and the New Delhi Municipal Committee was in regard to the representation of Mohinder Singh & Co. about the award of the contract to Tarapore& Co. The letter dated February 11, 1980, from the Deputy Secretary, Ministry of Works & Housing to the President, New Delhi Municipal Committee does not 54 even mention the mobilisation advance. In the third place, throughout the correspondence, there is not a hint or whisper about any proposal to take action under Section 238. On the material before us we find it impossible to hold that the New Delhi Municipal Committee was ever put on notice of any proposed action by the Delhi Administration in regard to first of the allegations made in the impugned order. If any information was sought from the New Delhi Municipal Committee and if any information was given by the Committee such information was furnished and gathered in the course of an exploratory or fact-finding expedition and was never intended to be an answer to an action-inspired notice.
... ... ... ...
16. Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under Section 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject- matter of any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a "double opportunity" that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the 55 requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession.
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22. In Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd. v. Secretary (Food & Agriculture), Govt. of A.P. [(1977) 4 SCC 337, 341, 343-344 : (1978) 1 SCR 563, 567, 569-70] there was a non-compliance with Section 77(2) of the Cooperative Societies Act which provided that no order prejudicial to any person shall be passed unless such person had been given an opportunity of making his representation. The argument was that since the facts were clear the non-compliance did not matter. It was also said that the appellant had of his own motion made some representation in the matter. This Court rejected the arguments observing (at pp. 567, 569-50): (SCC pp. 341 & 343- 44, paras 11 & 21-22) "... It is submitted that the government did not afford any opportunity to the appellant for making representation before it. The High Court rejected this plea on the ground that from a perusal of the voluntary applications filed by the appellant it was clear that the appellant had anyhow met with the points urged by the respondents in their revision petition before the government. We are, however, unable to accept the view of the High Court as correct. . . ."
As mentioned earlier in the judgment the government did not give any notice communicating to the appellant about entertainment of the application in revision preferred by the respondents. Even though the appellant had filed some representations in respect of the matter, it would not absolve the government from giving notice to the appellant to make the 56 representation against the claim of the respondents. The minimal requirement under Section 77(2) is a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever has been alleged in his petition. It is true that a personal hearing is not obligatory but the minimal requirement of the principles of natural justice which are ingrained in Section 77(2) is that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing grounds of complaint or other objection preferably by furnishing a copy of the petition on which action is contemplated in order that a proper and effective representation may be made. This minimal requirement can on no account be dispensed with by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for.
It is admitted that no notice whatever had been given by the government to the appellant. There is, therefore, clear violation of Section 77(2) which is a mandatory provision. We do not agree with the High Court that this provision can be by- passed by resort to delving into correspondence between the appellant and the government. Such non-compliance with a mandatory provision gives rise to unnecessary litigation which must be avoided at all costs."
23. The observations of this Court in Chintapalli Agency Taluk Arrack Sales Cooperative Society v. Secy.[(1977) 4 SCC 337, 341, 343-344: (1978) 1 SCR 563, 567, 569-70] are clearly against the submissions of the learned Attorney-General."
(Emphasis supplied) 57 In the aforesaid judgment the Apex Court holds that even if the person is aware of the allegations against him and contents of particular report, that would not absolve the duty of the State in furnishing such statement and affording an opportunity to such person of submission of reply.
23. Therefore, in the light of the afore-narrated facts and the judgments of the Apex Court, the impugned order is rendered unsustainable for want of compliance of principles of natural justice.
24. The other submission by the learned Senior Counsel that the impugned order is bereft of reasons and suffers from non-application of mind is unacceptable, as the order extracted (supra) is not cryptic or without application of mind and has reasons for rendering the order. Therefore, the submission of the learned Senior Counsel and the judgments relied upon to buttress such submission are unacceptable.
5825. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The impugned orders dated 30-10-2021 passed by the 2nd respondent and 05-04-2021 passed by the 3rd respondent stand quashed.
(iii) The matter is remitted back to the 3rd respondent/ Regional Commissioner to consider the matter afresh in consonance with principles of natural justice by affording an opportunity to the petitioner to submit his defence and then pass appropriate orders in accordance with law.
(iv) The State Government shall thereafter consider the report and the defence of the petitioner and then pass appropriate orders in accordance with law.
(v) The aforesaid proceedings shall be concluded by the 2nd and 3rd respondents within 4 months from the date of receipt of a copy of this order.
(vi) It is needless to mention that the petitioner shall co-
operate with the proceedings for its conclusion within time.
59(vii) Till such time the inquiry proceedings are conducted and concluded, the petitioner shall be reinstated to the office of Adhyaksha but he shall not exercise any such financial powers except to the extent of exercising statutory functions and making necessary statutory payments.
Ordered accordingly.
Sd/-
JUDGE bkp CT:MJ