IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.09.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.18702 of 2011 Soma Thamilarvan ... Petitioner vs. 1. The District Collector and Inspector of Panchayats, Tiruvarur District, Tiruvarur. 2. The Block Development Officer, Needamangalam. 3. The Additional Block Development Officer, Needamangalam. 4. The Tahsildar, Needamangalam Taluk, Needamangalam, Tiruvarur District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records of the proceedings of the 1st respondent made in Na.Ka.No.1038/2011A2 AD(P) dated 28.06.2011 and the proceedings of the 4th respondent made in Na.Ka.No.4437/2011/A1 dated 02.08.2011 and quash the same and pass appropriate orders. For Petitioner : Mr.P.Vijendran For Respondents : Ms.V.M.Velumani, Special Government Pleader O R D E R By consent of the learned counsel on either side, this writ petition is taken up for disposal. 2. Heard Mr.P.Vijendran, learned counsel for the petitioner and Ms.V.M.Velumani, learned Special Government Pleader appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 3. According to the petitioner, he was elected as President of the Rishiyur Village Panchayat during the year 1980 unanimously without any contest. Thereafter, he has been elected in different spells as President of the said Village unopposed and except the present term, he has contested the election with the support of AIADMK during the year 2006 and has been rendering his services and duties as President of the Village without giving any room for complaint or whatsoever for the past several years. 3a. The petitioner would submit that his term of office expires during October 2011. The Finance Minister of the State, during his budget speech clarified that the Election to the Local Bodies will be conducted during the month of October 2011 and therefore, the petitioner is officially entitled to continue as President of the Village Panchayat for the remaining period. While that be so, a political leader of Thiruvarur District departed from AIADMK and joined in DMK party with large number of cadres. Being one of the followers of the said leader, the petitioner joined the DMK party very recently. From the date of departure, the opposite party people having vengeance over the petitioner's attitude started to trouble him in all ways. 3b. In the recent election, AIADMK won all over the State and formed the Government. But, in respect of Mannargudi Constituency, AIADMK lost its candidate. Being a cadre of the opposite party, the petitioner worked so hard to make his party candidate as a successful candidate. Since, a large number of Dalit voters bank have continuously been supporting the petitioner for long years, the petitioner extended his help and accordingly, the present MLA from Mannargudi got elected in the Assembly Elections 2011. 3c. In order to take vengeance against the petitioner, the local Ruling party members directed the Officials of the District Administration to see that he will not be re-elected in the forthcoming election. In order to prevent the petitioner from becoming the President of the Village Panchayat, the District Administration started to trouble him in various angles. On 27.05.2011, the 2nd and 3rd respondents along with their Officials made a surprise visit to the Panchayat Office and in his absence and in the absence of the Panchayat Assistant, seized some records namely, cash register and other records. It is the duty of the officials of the Revenue Department to inspect the documents available in the Panchayat Office with prior permission of the President and issue necessary acknowledgement or receipts for seizure of documents if any. Admittedly, since the entire seizure happened in the absence of the President and the Panchayat Assistant, the Officials failed to issue acknowledgement or mahazar. Therefore, being a democratically elected President, the petitioner issued Lawyer's notice to the respondents 1 to 3 on 28.05.2011. Subsequently, the Assistant Director of Panchayats inspected the Panchayat premises and Office in https://hcservices.ecourts.gov.in/hcservices/ his presence on 22.06.2011. Based on the surprise visit and seizure of documents, the 1st respondent issued a show cause notice under Section 205(1) of the Tamil Nadu Panchayats Act (hereinafter referred to as 'Act'), thereby calling upon him to offer his explanation on the 14 charges levelled against him. 3d. The petitioner would further submit that all the charges were related to the mode of payments for the work done in the Panchayat. In all the charges, the Contractor executed the work and received payment in their own name or in the name of their staff for their own purpose and they have issued Vouchers in the Contractor's name. Since, the same has been followed in several Panchayats and the same had been allowed by the Officials without any objections, the petitioner followed the same. Absolutely, there is no single charge of misappropriation charged against the petitioner nor the petitioner has caused loss to the exchequer. 3e. In order to prevent the petitioner from contesting the forthcoming Panchayat election, the impugned notice was issued to the petitioner for flimsy charges. All the works executed by the Panchayat and the payments made by the Panchayat are presented before the next Village Panchayat Meeting and the Panchayat used to ratify the same or refuse to ratify the same. So far as the charges are concerned, some works have already been executed and payment for the said works were disbursed to the contractors either in the name of their proprietor or in the name of their staff. The said payments were placed before the Village Panchayat meeting held on 23.07.2011 for its ratification. The Panchayat unanimously passed resolutions thereby ratifying the payments effected by the Panchayat President. 3f. According to the petitioner, he has been active in politics for the past several decades and majority of the people in the said area are Dalits and belong to Communist Party of India. Had he really committed any wrong and earned wealth more than his source of income or disproportionate to his earnings, certainly the public would have complained about the same to the authorities concerned. As on date, no complaint is received from the Villagers, except one Ward Member belonging to AIADMK, who has lodged a complaint about the petitioner before the respondents. 3g. The charges framed against the petitioner are flimsy, issued at the whims and fancies of the authorities. All the charges levelled against the petitioner are that, the petitioner has executed work through a contractor and issued cheque in favour of an individual and obtained voucher from the Contractor. Had the authorities really complained against the petitioner about misappropriation or loss to the Government, then he has no case before this court except to defend himself before the Statutory Authorities. Hence, in the interest of justice and in order to safeguard his interests and reputation earned so far, the petitioner https://hcservices.ecourts.gov.in/hcservices/ has come forward with the present writ petition before this court. 4. The 1st respondent has filed counter affidavit, wherein, he has stated that the allegation of the petitioner that the charges in the impugned notice dated 28.06.2011 are framed and issued at the instance of the Ruling Party members is false and it is the usual allegation made by a politician. He would state that there was no direction or pressure imposed on the Officials of the District Administration. The Inspection of Village Panchayat is a routine duty of the 2nd and 3rd respondents and they have visited the Panchayat in usual manner only and the records were seen by them in the Panchayat Office premises. But, the records were brought to the Needamangalam Panchayat Union, which is the Headquarters of all 44 Panchayats. Moreover, the records were brought by the Rishiyur Panchayat Assistant Thiru. Senthil to the Panchayat Union Office. At that time, the petitioner also was present in the premises of the Panchayat Office. The matter of bringing of records is done in the presence of the petitioner. But, he has not registered any objection and claimed any acknowledgement. After that, the records were perused by the Assistant Director of Panchayat. On a perusal of the records, many defects have been found and the charges were framed. It is clearly stated that there was no motivation or political pressure in this incident. 4a. The allegations of the petitioner are quiet wrong. The payments should be made to the third parties, like Contractors (or) merchants, by means of crossed cheques only. There is no exemption to give the amount through cash or open cheque in the name of their staff, etc. If this type of wrong procedure is found, it is being objected by the Inspecting Officials in regular manner. The statement of the petitioner that he has followed the same, is not acceptable. All the charges framed against the petitioner are based on the violation of rules which would pave way for corruption. Further, a reading of the charges in the impugned Notice clearly reveals that many payments were not supported by vouchers and proper entries are not made. These payments are clear misuse of power of the petitioner and misappropriation of funds of the Panchayat. 4b. According to the respondents, there is no intention to prevent the petitioner from contesting the ensuing Ensuing Panchayat Elections. The charges were framed on the basis of records and as per the Panchayat Rules and Acts only. They are not flimsy charges. These charges are of grave nature involving misuse of power, public fund and misappropriation. As per the rules, the council of Village Panchayat may accept the expenditure, but it has no powers to ratify the violation of rules. The payments should have not been made in the name of the individuals even though they were the staff of contractor. It should compulsorily be made by means of crossed cheques only. The Village Panchayat has no powers to ratify the violation of rules. https://hcservices.ecourts.gov.in/hcservices/ 4c. The charges were framed in full shape as per the Panchayat Act Rules. The issuance of cheque to the individuals and non-receipt of quotation are definitely objectionable which may cause for the route of corruption. On the basis of the rules and procedures only, the defects have been found and the charges framed. Hence, they pray for dismissal of the writ petition. 5. Learned counsel for the petitioner would contend that the entire exercise of issuance of notice to the petitioner is liable to be set aside on the ground that the same is unguided and as such violates Article 14 of the Constitution of India. It is his contention that as per Section 205 of the Act, the Inspector of Panchayats, on his own motion or on representation received from majority of members of the Panchayat, initiates proceedings to remove the President. But, in the case of the petitioner, there was no complaint from the Panchayat and that the action of the respondents in issuing Show Cause Notice in a hurried manner is high handed with arbitrariness and discrimination. 5a. In support of his case, learned counsel for the petitioner has relied on the following : (i) a decision of the Supreme Court reported in 1992 (4) SCC 80 in the case of Mohan Lal Tripathi vs. District Magistrate, Rai Bareilly and others "2. Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common law right’ but a special right created by the statutes,1 or a ‘political right’ or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested right’2. ‘Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.’3 Right to remove an elected representative, too, must stem out of the statute as ‘in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers’. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary, the right of recall is defined as, ‘a provision enabling voters to remove an elected official from office before his or her term expired’. American Jurisprudence explains it thus, ‘Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an https://hcservices.ecourts.gov.in/hcservices/ election called for such purpose by a specified number of citizens’. It was urged that ‘recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in accordance with popular will’ therefore the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, ‘A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy’ the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a “public officer is indeed a ‘servant of the people’ and can therefore be dismissed by them”9 . In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power. ‘Under a constitutional provision authorizing municipalities of a certain population to frame a charter for their own government consistent with and subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the Mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision’. Therefore, the validity or otherwise of a no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy." https://hcservices.ecourts.gov.in/hcservices/ (ii) yet another Supreme Court decision reported in (2001) 6 SCC 260 in the case of Tarlochan Dev Sharma vs. State of Punjab and others "15. It is interesting to view the present-day bureaucrat-politician relationship scenario: “A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladin's lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy.… The Ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The Minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it.” (iii) a Full Bench decision of this court reported in 2009 (4) CTC 609 in the case of The District Collector and Inspector of District Panchayat, Villupuram District vs. Devi Parasuraman and another "10. In A.K.Kraipak vs. Union of India, AIR 1970 SC 150, the Supreme Court while holding that the aim of the Rules of Natural Justice is to secure justice or to put it negatively to prevent miscarriage of justice, further held that the rules could operate only in areas not covered by any law validly made. The Apex Court held as follows: "20. The concept of natural justice has undergone a great deal of change in recent years. In the past, it was thought that it included just two rules, namely, (1) no one shall be a judge in his own cause (Nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that the quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years, many more subsidiary rules came to be added to the rules of natural justice. Till very recently, it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the Rules of Natural Justice. The validity https://hcservices.ecourts.gov.in/hcservices/ of that limitation is not questioned. If the purpose of the Rules of Natural Justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi- judicial enquiry. 17. In the light of the discussions made above, we summarise our views as follows: (i) An act of the Inspector under Section 205 is quasi-judicial in nature; (ii) If the Inspector is satisfied with the explanation submitted by the President under Section 205, he is required to record his satisfaction for dropping the proceeding; and (iii) If the Inspector differs with the views expressed by the Village Panchayat and decides to remove the President or to drop the proceeding against the President, he is not only required to record the reasons for differing with the views of the Village Panchayat, but before taking any decision to remove the President, the Inspector is also required to provide further notice to the President intimating the reasons for difference and can issue notification only on consideration of cause, if any, shown by the President." (iv) a Division Bench decision of this court reported in 2011 (5) CTC 197 in the case of The State of Tamil Nadu vs. S.Ramasamy "10. Section 205 of the Act is a very drastic provision intended to be exercised in very exceptional circumstances. Village Panchayat is constituted as local self-Government to undertake welfare measures for the benefit of Village people. This is part of decentralization of our administration. The development should benefit the common man living in villages. Administration of the Panchayat is given to the representatives elected by the members of the respective Panchayats in a democratic manner. Electorates have https://hcservices.ecourts.gov.in/hcservices/ given mandate to the President and the members to continue in office for the full term. By removing the elected representatives on account of the alleged misconduct, the Inspector of Panchayat was practically interfering with the administration of local self- Government. Therefore, action taken under this provision cannot be taken very lightly. It should be taken with all its seriousness. The action of the Inspector of Panchayat should not result in oppression. 11. In a democratic set up, will of the people is supreme. So long as the elected body enjoys the confidence of the people, they should be permitted to continue in office. Section 205 of the Act gives a supervisory jurisdiction to the District Collector in his capacity as Inspector of Panchayat, over the democratically elected President and Vice President of the Village Panchayat. The statute permits the Inspector to take action on his own motion or at the instance of 2/3rd of the members of the Panchayat. Therefore, such absolute power should be exercised with utmost care and caution and not in a routine or casual manner. 13. The provision regarding recording the views of the Village Panchayat by convening the Panchayat meeting was made with a specific purpose. Sub-sections (2) to (10) of Section 205 of the Act clearly gives an indication that due weight should be given to the views expressed by the Village Panchayat. In case, the jurisdiction of the Collector is absolute, there is no necessity to ascertain the views of the members of Village Panchayat. They are the best persons to comment about the conduct or misconduct of the President of the Village Panchayat. Section 205(9) of the Act indicates that the Village Panchayat should be given a free hand in the matter of taking action against the President. It is only because of this, Tahsildar, was restrained from speaking on the merits of the notice or the explanation given to the charges. Therefore, the inevitable conclusion is that the Inspector has no authority to remove the President without considering the views expressed by the members of the Panchayat objectively." 6. On the other hand, learned Special Government Pleader appearing for the respondents would submit that the Village Panchayat President may be removed from the post by the Inspector of Panchayat/District Collector on the ground of financial misappropriation and other activities violating the Rules and that the action taken against him is absolutely as per the law and the rules of the Act and not violative of Article 14 of the Constitution of India. She would further submit that the Inspector of Panchayats has all the powers to inspect and take action against the Village https://hcservices.ecourts.gov.in/hcservices/ Panchayat President even without any petition from the members of Panchayats. Actually, the records of the said Panchayat have been inspected by the 2nd and 3rd respondents in the usual manner only. After defects were found, the 1st respondent initiated action against the said President and that the records were not taken away by the officials and they were submitted by the Panchayat Assistant to the Panchayat Union. Therefore, there is no reason or circumstances warranting interference by this court in respect of the action initiated under Section 205 of the Act. 7. A circumspection of the facts of the case would reveal that the petitioner having been elected to the post of President of Rishiyur Village Panchayat in 2006 has been rendering his services and his tenure is at the closing end. While so, on 27.05.2011, the 2nd and 3rd respondents along with their Officials made a surprise visit to the Panchayat Office and on that date, the petitioner as well the Panchayat Assistant were absent and in their absence, the Officials, instead of inspecting the documents, seized some records like Cash Register and other documents. It is claimed by the petitioner that for the said seizure, the Officials failed to issue acknowledgement or Mahazar. Immediately, the petitioner issued a legal notice on 28.05.2011. 8. It is seen that subsequently, the Assistant Director of Panchayats inspected the Panchayat premises and Office in the presence of the petitioner on 22.06.2011. Based on the surprise visit and seizure of documents, the 1 st respondent issued a show cause notice under Section 205(1) of the Act, calling upon the petitioner to offer his explanation on 14 charges levelled against him, most of which relate to the mode of payments for work done in the Panchayat, for which necessary documents and vouchers are on record and the same have been allowed by the Officials. But, the petitioner claims that it is only a routine work and also placed the same before the Panchayat meeting for its ratification and on unanimous resolutions, the entire payments were effected by the Panchayat President. 9. It appears that the petitioner has consistently pleaded that one