IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22 / 09 / 2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.10632 OF 2010 AND CONNECTED MISCELLANEOUS PETITIONS Ramasamy ... Petitioner Versus 1.State of Tamil Nadu Rep. by Secretary to Government Rural Development and Local Administration Dept. Fort St. George, Chennai – 600 009. 2.The Inspector of Panchayat / The District Collector Villupuram District, Villupuram. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, to call for the records pertaining to the order passed in Na.Ka.No.A2/5830/2007 dated 30.04.2010 and gazette notification No.130 dated 04.05.2010 on the file of the second respondent and to quash the same. For Petitioner : Mr.R.N.Amarnath For Respondents : Mr.S.Ramasamy Additional Advocate General Assisted by Mrs.Lita Srinivasan Government Advocate O R D E R This writ petition has been filed by the petitioner seeking to quash the order dated 30.04.2010 and the Tamil Nadu Government Gazette Notification No.130 dated 04.05.2010 of the second respondent, issued under Section 205(11) of the Tamil Nadu Panchayats Act, 1994 (shortly "the Act"). https://hcservices.ecourts.gov.in/hcservices/ 2.The brief facts leading to the filing of the present writ petition are as follows: (a) The petitioner was elected as President of Jampadai Panchayat in Villupuram District for the period 2006-2011. (b) The second respondent issued a show cause notice dated 04.10.2007 under Section 205(i)(a) of the Act, seeking explanation for the charges made against him. Those charges are: (i)The petitioner incurred expenses without Form 19 and vouchers. (ii) When the second respondent sanctioned drought relief funds with a direction to reserve funds for the works in the Panchayat, the petitioner failed to do the same and he misappropriated the Panchayat fund. (iii) The petitioner incurred expenditure exceeding the ceiling limit fixed for the maintenance of hand pump, water tank and street lights, without getting the approval from the Panchayat. (iv) The petitioner failed to record the purchases of spare parts purchased for the maintenance of street lights and water tank in the relevant register. (c) The petitioner submitted his explanation on 21.11.2007 denying the allegations. With regard to charge No.1, he explained that when the inspection took place, the vouchers were not produced by the concerned Clerk and the defect was rectified. Regarding charge No.2, it was explained that the work was carried out under the drought relief scheme and that there was a sum of Rs.50,138/- in Panchayat fund, when the inspection took place and there was no misappropriation of funds. As regards charge No.3, it was explained that the maintenance works relating to drinking water tank and street lights are essential and urgent in nature and that therefore, the expenses were incurred over the limit expecting that the same could be approved by the Panchayat. It was also stated that the Panchayat later approved the same. With regard to charge No.4, it was stated that the details of purchases were not registered when the inspection was made and the same has been done now in Form 18. https://hcservices.ecourts.gov.in/hcservices/ (d) It seems that the second respondent issued an order dated 28.01.2008 to the Tahsildar, Sankarapuram to ascertain the views of the members of the Panchayat on the charges and the explanation submitted by the petitioner. (e) Accordingly, the Tahsildar, Sankarapuram, convened the Panchayat meeting on 06.03.2008 and sent a report dated 10.03.2008 stating that the members of the Panchayat opined that the explanation submitted by the petitioner could be accepted. (f) Thereafter, the second respondent sent a notice dated 24.11.2008 to the petitioner and other members of the Panchayat to appear before him on 08.12.2008 to hear the views of the petitioner and other members, before taking final decision. (g) The petitioner and other members appeared before the second respondent on 08.12.2008. They gave written representation that the explanation submitted by the petitioner could be accepted and the proceedings could be dropped. (h) However, the second respondent issued a show cause notice dated 12.03.2010 stating that the petitioner and the other members of the Panchayat accepted the mistakes and the explanation offered by the petitioner was rejected. The petitioner was also asked to submit his explanation on the said notice. (i) Accordingly, the petitioner submitted his explanation reiterating his earlier stand and requesting to drop the proceedings. (j) However, the second respondent passed the impugned order dated 30.04.2010 under Section 205(11) of the Act removing the petitioner from the office of President on the ground that the petitioner attempted to misappropriate the Government funds and also abused his power as President. (k) The removal order was also notified in the Tamil Nadu Government Gazette No.130 dated 04.05.2010 stating that the removal takes effect from the date of publication. (l) In the gazette notification, it is stated that the petitioner was removed for incurring improper expenditure, abusing the office and for having misappropriated the Panchayat funds. Hence, the petitioner has come up with the present writ petition seeking to quash the impugned order removing him from the office of President and also the Gazette Notification. 3.While admitting the writ petition on 12.05.2010, this Court granted interim stay. https://hcservices.ecourts.gov.in/hcservices/ 4.The second respondent filed counter affidavit and also a petition to vacate the interim stay that was granted on 12.05.2010. 5.Heard the submissions made on either side and perused the entire file produced by the learned Additional Advocate General. 6.The learned counsel for the petitioner assailed the impugned order and the gazette notification by submitting that these proceedings were issued in blatant violations of the principles of nature justice and without jurisdiction and also contravened Section 205 of the Act. 7.Further, the learned counsel for the petitioner submitted as follows: (i) Unless the second respondent came to the conclusion that the petitioner abused his power wilfully, Section 205 of the Act could not be invoked. Nowhere in the entire proceedings, it was stated by the second respondent that the petitioner wilfully abused his power. Hence, the entire action of the second respondent in passing the impugned order lacks jurisdiction. (ii) The impugned order states some reasons for removal, while the impugned notification states different reasons. This is violative of principles of natural justice. (iii) While the second respondent passed the order dated 28.01.2008 directing the Tahsildar, Sankarapuram to ascertain the views of the Members of the Panchayat on the notice issued under Section 205(i)(a) of the Act and also the explanation submitted by the petitioner, there was no proposal from the second respondent for the removal of the petitioner from the post of President and seeking the views of the Members of the Panchayat on the proposal for removal. This contravenes Section 205(2) of the Panchayat Act. (iv) In the meeting convened by the Tahsildar, Sankarapuram, the Members of the Panchayat did not consider the proposal for removal of President. Thus, the same contravenes Section 205(3) of the Act. (v) Likewise, in the meeting, the Tahsildar did not read any proposal for removal of the petitioner as President. Hence, Section 205(8) of the Act was contravened. 8.The learned counsel for the petitioner also submitted that there was no categorical statement, in the notice dated 24.11.2008 directing the petitioner to appear for personal hearing on 08.12.2008, that the second respondent was of the view to remove the petitioner from the office of the President. It was further submitted https://hcservices.ecourts.gov.in/hcservices/ that when the Members of the Panchayat expressed their views not to remove the President and for dropping the proceedings, the second respondent ought to have issued notice to the petitioner intimating the reasons for his differing views and seeking his explanation. But the notice dated 12.03.2010 was passed straight away rejecting the views instead of recording reasons for difference. In this regard, the learned counsel for the petitioner relied on the Full Bench decision of this Court in THE DISTRICT COLLECTOR AND INSPECTOR OF DISTRICT PANCHAYAT VS. DEVI PARASURAMAN reported in 2009 (4) CTC 609. 9.The learned counsel for the petitioner also heavily relied on the decisions of the Honourable Apex Court in STATE OF ORISSA VS. MD. ILLIYAS reported in AIR 2006 SC 258, SHARDA KAILASH MITTAL VS. STATE OF MADHYA PRADESH AND OTHERS reported in 2010 (2) SCC 319 and TARLOCHAN DEV SHARMA VS. STATE OF PUNJAB AND OTHERS reported in 2001 (6) SCC 260 and submitted that the second respondent could not remove the elected President in the casual manner, unless there was wilful abuse of power, as per the law laid down by the Honourable Apex Court. It was also submitted that some mere irregularities are not sufficient for interfering with the office of the President. 10.The learned counsel for the petitioner also relied on the decisions of the Honourable Apex Court RAKAPALLI RAJA RAMA GOPALA RAO VS. NARAGANI GOVINDA SEHARARAO reported in 1989 (4) SCC 255 and ABAN LOYD CHILES OFFSHORE LTD. VS. COMMISSIONER OF CUSTOMS reported in 2006 (6) SCC 482, wherein the Honourable Apex Court considered in detail about "wilfulness". According to the learned counsel, in the absence of the second respondent recording that there was "wilful omission" or "wilful abuse of power", the impugned order of removal is without jurisdiction and opposed to the above referred decisions of the Honourable Apex Court. In the said circumstances, it is submitted that the writ petition is maintainable as per the decision of the Honourable Apex Court in and the alternative remedy providing for appeal cannot be cited as a bar. 11.The learned counsel for the petitioner further submitted that the second respondent erroneously proceeded as if the petitioner and the Members of the Panchayat admitted the charges. Hence, the impugned order was passed without application of mind. 12.On the other hand, the learned Additional Advocate General submitted that the writ petition is not maintainable, as there exists effective alternative remedy under Section 205(12) of the Act. In this regard, the learned Additional Advocate General heavily relied on the decision of a Division Bench of this Court in THE DISTRICT COLLECTOR CUM INSPECTOR OF PANCHAYAT VS. S.SENTHAMIZH SELVI reported in 2009 (1) CTC 356. https://hcservices.ecourts.gov.in/hcservices/ 13.The learned Additional Advocate General submitted that the submission of the learned counsel for the petitioner that the entire action of the second respondent under Section 205 of the Act was without jurisdiction, has no merit. According to the learned Additional Advocate General, the want of jurisdiction could arise only if the initiation of proceedings was not made by the second respondent and it was done by the subordinates to the second respondent, such as Revenue Divisional Officer etc. The learned Additional Advocate General further submitted that the removal order was final and that was notified in the Tamil Nadu Government Gazette and whether the allegations stated in the Gazette Notification were contrary to the allegations stated in the removal order were of no consequence, as notification was a mere formality. 14.I have considered the submissions made on either side. The impugned order dated 30.04.2010 removing the petitioner from the post of President reads as follows: "jkpH;ehL Cuhl;rpfs; rl;lk; 1994 gphpt[ 205 cl;gphpt[ 11d; fPH; Cuhl;rpfspd; Ma;thsh; kw;Wk; khtl;l Ml;rpahpd; cj;jut[. jpU/rp//,uhkrhkp Cuhl;rp kd;wj;jiytu; $k;gil Cuhl;rp mth;fspd; kPJ jkpH;ehL Cuhl;rpfs; rl;lk; 1994 gphpt[ 205d;go vLj;j eltof;ifapy; ,uz;lhtJ Kiw tpsf;fk; nfhug;gl;ljpd; gjpy; kw;Wk; ,ju gpw midj;J Mtz';fisa[k; ghprPypf;fg;gl;lJ. 1/Ma;tpd;nghJ Jiz bryt[ rPl;Lfs;. gotk; 19 fhz;gpf;f ,aytpy;iy/ , jid vGj;jh; jdpj;jdpahf itj;jpUe;jhh; vd;gJk;. Jiz bryt[ rPl;L bgwg;gl;l gpd;dh;jhd; brytpdk; nkw;bfhs;sg;gl;lJ vd;w gjpy; Vw;fj;jf;f tifapy; ,y;iy/ Kiwahf mDkjpa[k; brytpdKk; nkw;bfhz;oUg;gpd; Jiz bryt[ rPl;L Ma;tpd;nghnj fhz;gpj;J ,Uf;f ,aYk;/ mij fhz;gpf;f ,ayhikf;F rhpahd fhuzKk; Twtpy;iy/ ,J jtW bra;jij cWjpg;gLj;JfpwJ. 2/,nj nghd;n;w twl;rp fhyk; vd;gjhy; xnu neuj;jpy; FoePh; gzpfs; nkw;bfhs;sg;gl;ljhy; cldoahf gzpfs; Kof;f ,aytpy;iy vd;gJk; Vw;f ,aytpy;iy/ twl;rp vd;gjhy; tpjpfSf;F g[wk;ghf bray;gl;lij Vw;f ,ayhJ/ 3/FoePh; bghUl;fs; vd;gjhYk; tpjpf;F khwhf bray;gl;lJ jtW/ nkw;fhQqk; Fw;wr;rhl;LfSf;F ,uz;lhtJ Kiw tpsf;fk; mspj;jJk; nkw;Twpa fhuz';fspdhy; Vw;f ,aytpy;iy/ vdnt tprhuiz kw;Wk; Mtz';fspd; mog;gilapy; KiwnfLfs; cWjpahd epiyapy; muR epjpapid ifahly; bra;a Kad;w fhuzj;jpdhYk; Cuhl;rp kd;wj;jiyth; vd;Dk; mjpfhuj;ij jtwhf gad;gLj;jpa $k;gil Cuhl;rp kd;wj;jiytu; jpU/rp//,uhkrhkp vd;gtiu gjtp ePf;fk; bra;jpl Kot[ bra;ag;gl;lJ." https://hcservices.ecourts.gov.in/hcservices/ In the ultimate conclusions in the impugned order, there is no reference to charge No.4. 15.Charge No.2 alone made allegations of misappropriation. But, there is nothing stated while recording its final decision on charge No.2 that the petitioner misappropriated the funds. In fact, the charge No.2 itself was vague without giving the details of misappropriation. In this regard, para 9 of the judgment of the Honourable Apex Court in TRANSPORT COMMISSIONER VS. A. RADHA KRISHNA MOORTHY reported in 1995 (1) SCC 332 is extracted hereunder: "9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that respondent’s name was not included in the schedule appended to GOMs 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf." 16.Furthermore, while the findings relating to charge Nos.1 to 3 in the impugned order under Section 205 (11) of the Act nowhere recorded that the petitioner involved in misappropriation of funds. It was stated therein that the petitioner attempted to https://hcservices.ecourts.gov.in/hcservices/ misappropriated the funds. There is no such allegation. Moreover, in the notice under Section 205 (1)(a) of the Act making the charges, there was no mention that the petitioner abused his power. But in the final order, it was stated that there was abuse of power. 17.In the Tamil Nadu Government Gazette Notification dated 04.05.2010, the following was notified: "jkpH;ehL Cuhl;rpfs; rl;lk;. 1994 gphpt[ 205. cl;gphpt[ 11d; fPH; Cuhl;rpfspd; Ma;thsh; / khtl;l Ml;rpj; jiytUf;F mspf;fg;gl;Ls;s mjpfhuj;jpd;go. $k;gil Cuhl;rp kd;wj;jiytu; Cuhl;rp epjpapy; gotk; 19 kw;Wk; Jiz bryt[r;rPl;Lfs; VJk; ,y;yhky; brytpdk; nkw;bfhz;lJ/ twl;rp epthuz gzpfSf;F khtl;l Ml;rpah; eph;thf mDkjp mspj;J Cuhl;rp epjpapy; ,g;gzpapid Jt';fhkYk;. nghjpa epjp , Ug;g[ itf;fhkYk; Cuhl;rp epjpapid ifahly; bra;jJ. Kiwnflhf brytpdk; nkw;bfhz;l Cuhl;rp kd;wj;jiyth; vd;Dk; mjpfhuj;ij jtwhf gad;gLj;jp Cuhl;rpf;F ,Hg;gpid Vw;gLj;jpa $k;gil Cuhl;rp kd;wj;jiyth; jpU.rp.,uhkrhkp vd;gtiu gjtp ePf;fk; bra;J mwptpf;if btspaplg;gLfpwJ/ ,e;j mwptpf;if jkpH;ehL murpjHpy; btspaplg;gLk; ehs; Kjy; mKYf;F tUfpwJ/" 18.While the impugned removal order dated 30.04.2010 stated that the petitioner attempted to misappropriate the funds, the Gazette Notification dated 04.05.2010 stated that the petitioner misappropriated the Government funds. As already stated that while abuse of power was not specifically stated in the charge sheet, it was stated so in the impugned removal order dated 30.04.2010 as well as in the Gazette Notification dated 04.05.2010. 19.The show cause notice dated 04.10.2007 under Section 205 (1) (a) of the Act was issued based on the inspection report of the Assistant Director, Villupuram. However, nowhere in the inspection report, the Assistant Director stated that the petitioner misappropriated the Government funds. The deficiencies noted during his inspection was stated as follows: "21.,ju FiwghLfs; : 1) vt;tp[j brytpd rPl;LfSk; ,y;yhky; Cuhl;rp epjpapy; brytpdk; nkw;bfhs;sg;gl;Ls;sJ/ 2) bjhif gl;Lthlh nkw;bfhz;likf;F gotk; 14y; xg;g[jy; VJk; bgwg;gltpy;iy/ 3) bjU kpd;tpsf;F kw;Wk; ,ju cgfuz';fs; bfhs;Kjy; Kiwahf nkw;bfhs;sg;gltpy;iy/ gotk; 18 & 17y; gjpag;gltpy;iy/" 20.In my considered view, the learned counsel for the petitioner was correct in his submission that the reasons for removal given in the Gazette Notification dated 04.05.2010 were different https://hcservices.ecourts.gov.in/hcservices/ from the reasons contained in the removal order dated 30.04.2010. But the learned Additional Advocate General submitted that the different reasons found in the Gazette Notification were immaterial, as it was a formality to notify the removal order as contemplated under Section 205(11) of the Act and one should look only into the removal order. 21.I am not in agreement with the submissions made by the learned Additional Advocate General. When the second respondent came to the conclusion to remove the petitioner from the elected office of President, they should exercise more care and caution as observed by the Honourable Apex Court in TARLOCHAN DEV SHARMA VS. STATE OF PUNJAB AND OTHERS reported in 2001 (6) SCC 260. The relevant passage from para 16 of the said judgment is as follows: "16..........Yet we have no hesitation in holding that the impugned order betrays utter non- application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue." 22.As rightly contended by the learned counsel for the petitioner, the ultimate finding in the removal order relating to charge Nos.1 to 3 were mere some irregularities and not following certain procedures in the maintenance of records and accounts. Those matters could not form the basis for removal of the elected President as held by the Honourable Apex Court in its decision reported in 2001 (6) SCC 260. In this regard, paras 7, 8 and 9 of the said judgment are extracted hereunder: "7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the https://hcservices.ecourts.gov.in/hcservices/ returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of “abuse of his powers” (of President), inter alia. This is the phrase with which we are concerned in the present case. 8. The proceedings for removal must also satisfy the requirements of natural justice. Second proviso to Section 22 requires that the reason for the proposed removal shall be communicated to the person proceeded against by means of a registered letter and he shall be allowed 21 days for putting up his explanation in writing. And thereafter alone, the State Government may proceed to notify his removal. In between, a duty to take decision by due application of mind to the allegations made and the explanation given is implicit and shall have to be read in the provision though not expressly stated therein. The appellant is not charged with habitual failure to perform the duties of President of the Municipal Council. He is charged with having abused his powers of President. The vires of the impugned order dated 1-10-1999 have to be tested on the touchstone of the availability of this ground. 9. The phrase “abuse of powers” as providing a ground for proceeding under Section 22 is not defined in the Act. Black’s Law Dictionary (7th Edn., 1999) gives the meaning of “abuse” as “to depart from legal or reasonable use in dealing with (a person or thing)”, “to injure (a person) physically or mentally”, “to damage (a thing)”. In Corpus Juris Secundum (Vol. 1, p.402) it is so stated: “ABUSE As noun.—It has been said that the word is not a term of art in the law and that its https://hcservices.ecourts.gov.in/hcservices/ everyday popular sense is well known; but that its proper signification when employed depends upon the context and subject-matter. In its largest sense, ill-use or improper treatment of another; misuse. In the plural as used with reference to the authority of governmental commissions to correct ‘abuses’, the word has been held to mean a disregard of duty imposed by law; any improper use of a right or privilege.” The word “abuse” as occurring in Section 5(1)(d) of the Prevention of Corruption Act, 1947 came up for consideration of this Court in M. Narayanan Nambiar v. State of Kerala1. This Court observed: (AIR p.1118, para 10) “ ‘Abuse’ means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word ‘otherwise’ has wide connotation and if no limitation is placed on it, the words ‘corrupt’, ‘illegal’, and ‘otherwise’ mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word ‘otherwise’ with the words ‘corrupt or illegal means’, and the dishonesty implicit in the word ‘abuse’ indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause.”" https://hcservices.ecourts.gov.in/hcservices/ 23.Likewise, in the judgment reported in 2010 (2) SCC 319 the Honourable Apex Court categorically held that the removal of President could be resorted to only under grave and exceptional circumstances. Paras 22, 24, 26 and 27 of the said judgment are extracted hereunder: "22. The analysis of these materials, particularly, the background shows that the State Government failed to appreciate that the decisions for publication of advertisements, calling for tenders and payment of salaries were made by the entire Council and the President, appellant could not be singled out for those decisions taken by the Council. The High Court failed to appreciate that the removal under Section 41-A of the Act could be resorted to only under grave and exceptional circumstances which were not present in the appellant’s case. No charge of causing financial loss to the Nagar Palika could be established by the State Government. 23...... 24. In Tarlochan Dev Sharma v. State of Punjab1 this Court while dealing with the removal of a President of the Council under the Punjab Municipal Act of 1911, held in para 7 as under: (SCC pp.268-69) “7. In a democracy governed by the rule of law, once elected to an