IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.09.2009 Coram The Honourable Mr. JUSTICE K.VENKATARAMAN Writ Petition No. 11387 of 2009 and M.P. Nos.1 and 2 of 2009 S. Sheikh Akbar ... Petitioner -Vs.- 1.The Inspector of Village Panchayats cum District Collector, Villupuram District. 2.The Government of Tamilnadu, Rep. by its Principal Secretary to the Govt., Department of Local Administration, Fort St. George, Chennai – 600 009. ... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the 2nd respondent in Government Order (P) No.232 dated 29.04.2009 and Order No. A2/653/2007/U.E.U dated 12.11.2008 on the file of the 1st respondent and to quash the respective orders made therein and to direct the petitioner's restoration as President of the Murarpalayam Village Panchayat, Sankarapuram Taluk, Villupuram District forthwith. For Petitioner : Mr. V.T.Gopalan, Senior Counsel for S.Sathiaseelan. For Respondents : Mr. P.Wilson, A.A.G Asst. By Mrs. D.Geetha, A.G.P O R D E R Challenging the order of the first respondent dated 12.11.2008, an order of the Inspector of Panchayat, Villupuram, removing the petitioner from the post of the president of Murarpalayam village panchayat and the confirmation of the same, by the Government of Tamil Nadu, the present writ petition was filed. 2.1. The case of the petitioner in nutshell is set out here under:- https://hcservices.ecourts.gov.in/hcservices/ 2.2. The petitioner was elected unopposed in September 2006 for a term of five years as the President of the Murarpalayam village panchayat and was functioning as such. On 08.10.2007, he received a notification from the first respondent alleging certain irregularities and asking him to submit his explanation. He duly submitted his explanation. After few months i.e., on 21.02.2008, the Tahsildar, Sankarapuram Taluk, Villupuram District sent a notice to him that he was appointed under Section 205 of the Tamil Nadu Panchayat Act 1994 (herein after referred to as the Act) for taking legal action against him regarding certain irregularities and misappropriation of funds in the National Rural Employment Guarantee Scheme (NREG). It has been stated in the said notice that the opinion of the members of the panchayat would be called for in the meeting to be convened on 03.03.2008. The meeting was presided over by the Tahsildar. All the nine ward members have expressed their opinion that the explanation submitted by the petitioner can be accepted. The minutes of the meeting was recorded by the Tahsildar. While so, suddenly the first respondent passed an order removing him from the post of the President and the same was published in Tamil Nadu Government Gazette on 02.07.2008. 2.3. The petitioner filed a writ petition before this Court in W.P. No.16393/2008, challenging the order of removal passed by the first respondent. This Court by an order dated 13.08.2008, had set aside the order of the Collector, Villupuram and remitted the same to him to consider the explanation offered by the petitioner and other relevant records and pass orders afresh after giving reasons thereof. 2.4. Thereafter the petitioner reliably came to know that the Collector referred the matter to the Government Pleader for his opinion. The Government Pleader seems to have opined that it was not known as to whether the person who sent the message was examined or not and in the absence of any complaint in writing or in person, the fax message ought not to have been taken for enquiry. The Government Pleader further seems to have opined that the entire proceedings have to be considered by the District Collector on the basis of the explanation offered by the petitioner and on the opinion expressed by the other ward members. 2.5. After the matter was remitted to the first respondent, the person who made complaint by fax had appeared before the Collector and submitted that he knew only to sign and that he do not know to read or write. Further, he has stated that he did not know anything personally as regards the complaint made against the petitioner. While so, the first respondent ought to have dropped further proceedings on such statement. But, the first respondent by an order dated 12.11.2008, removed him from the post of President of the said panchayat without holding any enquiry. https://hcservices.ecourts.gov.in/hcservices/ 2.6. Aggrieved over the said order, the petitioner preferred an appeal before the Government under Section 205(12) of the said Act. However, without considering the grounds raised in his appeal, the Government viz., the second respondent herein dismissed the said appeal on 29.04.2009. Aggrieved over the same, the present writ petition is laid. 3.1. Counter affidavit was filed by the respondents. The short facts of the counter affidavit of the respondent are set out here under:- 3.2. The petitioner misappropriated the NREGS fund. He had drawn a sum of Rs.2,99,600/- as if NREGS work had been done by employing 535 workers for 7 days at the rate of Rs.80/- per day. But the enquiry report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division reveals that only 2 days of work was done by 535 workers and payment was made only for 2 days for an amount of Rs.85,600/- .The remaining amount of Rs.2,14,000/- was misappropriated by him by fabricating records and forging signatures as if work was done for extra 5 days by 535 workers. The petitioner after following due process of law as contemplated under said Act was removed from the post of the President, with effect from 02.07.2008. 3.3. After the matter was remanded by this Court, the explanation offered by the petitioner and other relevant records were perused. In addition to that, one Thiru.Kannan, who lodged complaint about misappropriation of NREGS funds by the petitioner, was personally heard by Collector on 21.10.2008 and ascertained that the petition was given by him. After carefully examining the records and the explanation offered by the petitioner, an order of removal was passed on 12.11.2008 and published in Government Gazette on 19.11.2008. 3.4. The petitioner preferred an appeal before the Government and the Government also rejected the appeal by G.O No.232 (Rural development and Panchayat Raj Department) dated 29.04.2009. 3.5. On complaint from Thiru. K. Kannan, ward councillor, the entire records were called for by the Project Officer (DRDA), Villupuram and he verified them. On verification, it was ascertained that corrections were made in the NMR such as dates and most of the signatures in the NMR resembled the same style. As there was a Prima facie case made out in the complaint, a detailed field enquiry was ordered to be conducted by the Assistant Executive Engineer, Kallakurichi Sub-Division. The enquiry officer reported that the work was done only for 2 days by 535 workers as against 7 days of work by 535 workers as recorded in the NMR. The enquiry report and records revealed misappropriation of funds by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3.6. The Panchayat administration is headed by the panchayat president and he has to carry out all work and business of the panchayat. He has also certified that the work has been done and recommended for payment and also drawn the amount for payment and certified that the amount was disbursed. The petitioner has also accepted his guilt and refunded the misappropriated amount of Rs.2,14,000/- along with the penalty of Rs.6000/-. The remittance of the misappropriated amount itself is an admission of guilt by the petitioner. 3.7. The opinion made by the members of the panchayat recommending to accept the explanation offered by the president cannot alone be a reason to drop the proceedings against the petitioner. As per Section 205 (11) of the Act “ Inspector of panchayat namely the District Collector is entitled to consider the views of the Panchayat and in his discretion either remove the President or drop further action“ Thus entire action has been taken against the petitioner in consonance with Section 205 of the said Act. 4. I have heard Mr. V.T.Gopalan, the learned Senior Counsel appearing for the petitioner and Mr. P.Wilson, the learned Additional Advocate General appearing for the respondents assisted by Mr. V.Manoharan, the learned Government Advocate. Mr. V.T.Gopalan, the learned Senior Counsel appearing for the petitioner mainly contended, (i) The panchayat President is not primarily responsible for the allegations made against him. (ii) Against others who should be equally responsible, no action was taken and the petitioner alone was single out. (iii) Various materials were used against the petitioner and the copies have not been furnished to the petitioner. Though information can be obtained from other sources, the petitioner was not put on notice of the same in order to explain his position. (iv) Panchayat council resolution cannot be overlooked. (v) Since there is no loss to the Government the present action taken against the petitioner is uncalled for. On the other hand, Mr. P.Wilson, the learned Additional Advocate General appearing for the respondents contended that, as per THE TAMIL NADU VILLAGE PANCHAYATS (RECEIPTS AND EXPENDITURE AND https://hcservices.ecourts.gov.in/hcservices/ MAINTENANCE OF THE ACCOUNTS OF VILLAGE PANCHAYATS) RULES, 2000, the accounts of the village panchayat, the maintenance of the records are the duties of the village panchayat President. Hence, the petitioner cannot escape by saying that he is not primarily responsible for the failure to do so. Taking action against others may not proclude the Inspector of Panchayat for taking action against the petitioner. The Inspector of Panchayat and the Government have considered the matter in proper perspective and also exercising the power vested with them under Section 205 of the Act, have passed well considered order which does not require any interference by this Court. 5. The first and foremost contention that was urged on behalf of the learned Senior Counsel appearing for the petitioner is that the petitioner, the President of the village panchayat cannot be held liable for the maintenance of the records of the panchayat and the payment made to various workers employed in the project. It is the clerk who maintains the roster, payment particulars etc., and the same has to be verified by the Gram Sevak as well as the Assistant Engineer In-charge of the project and ultimately has to be countersigned by the Block Development Officer. However, the learned Additional Advocate General appearing for the respondents would submit that Sections 31, 32 and 35 provide for payment from village panchayat, payments by cheque and procedure for claims against the village panchayat funds. The said provisions make it amply clear that the maintenance of records lies with the village panchayat. The petitioner, the President of the village panchayat being the executive authority, is responsible for the maintenance of the records, payment of the bills and hence it cannot be heard to say that the President is not responsible for the maintenance of the accounts and payment of the bills. Before considering the said submission made by the learned Senior Counsel appearing for the petitioner as well as the Additional Advocate General appearing for the respondents, it would be useful to extract Section 31, 32 and 35 of the said Rules and the same is extracted here under:- " 31. Payments from Village Panchayat.-- All payments out of the Village Panchayat Fund against bills presenyed to the Village Panchayat shall be made only after the bills are passed by the Executive Authority or by any person authorised by Government in respect of any particular Scheme or Fund. 32. Payments by cheque.-- (1) Payments shall be made only by crossed account payee cheques drawn in favour of the parties as per the procedure laid down by Government from time to time. The Executive Authority may draw amounts in self-cheque only in respect of the following payments :- (1) Salaries to the Village Panchayat staff ; https://hcservices.ecourts.gov.in/hcservices/ (2) Travelling allowance payable to the Executive Authority, Members and Staff of the Village Panchayat. (3) Petty office contingent expenditure ; and (4) Advances to the staff for festival. 35. Procedure for claims against the Village Panchayat Fund.- (1) Every person having any claim against the Village Panchayat Fund shall present a bill in Village Panchayat Office. (2) Wherever possible, printed forms shall be used in preparing bills. (3) Where a claimant presents a bill in a form different from the from provided for the purpose, a separate bill in the proper form shall be prepared by the officer incurring the expenditure and the claimant's bill shall be attached thereto as a sub-voucher. (4) Every bill shall be presented to the Executive Authority of the Village Panchayat who shall enter it in the register of bills and then check and examine the bills as regards its admissibility with reference to sanction or other documents, the propriety of the claim and the arithmetical accuracy. If on such check and examination the bill is found to be correct, the Executive Authority shall pass the bill. (5) In respect of any Scheme or Fund, where the bill is to be scrutinised and passed by a person authorised by Government, the Executive Authority shall send such bill to the authorised person, who shall thoroughly scrutinise the bill as aforesaid and if the bill is found to be correct and inorder, pass and send it back to the Executive Authority within three days for drawing the cheque for the amount passed by the notified person. " The said provisions make it amply clear that the petitioner, the President of the village panchayat being the executive authority, is responsible for the disbursement of the bills drawn for various works undertaken on behalf of the village panchayat. He is also a signatory to the cheques. Thus the arguments advanced in this regard has to be rejected. 6.1. The second contention of the learned Senior Counsel appearing for the petitioner is that except the action against the https://hcservices.ecourts.gov.in/hcservices/ petitioner, no action was taken against others and the petitioner alone was singled out. However, in the counter affidavit, it has been pointed out that explanation was called for from the Block Development Officer, Block Engineer, Overseer, Panchayat Assistant and Makkal Nala Paniyalar. As the explanations submitted by the Block Development Officer, Block Engineer, Overseer are not acceptable, disciplinary action was initiated against them under TNCS (D&A) rule 17(a). Similar action was also initiated against the Panchayat Assistant and Makkal Nala Paniyalar. In view of the said categorical statement made in the counter affidavit that action was taken against other erring officials also, the arguments of the learned Senior Counsel appearing for the petitioner that only the petitioner alone was singled out and other officials were left out scot free, has to be rejected in toto. 6.2. In this connection, the learned Senior Counsel appearing for the petitioner relied on the decision reported in 1986 (2) Madras Law Journal 171, N.Chandrasekharan Vs. Regional Transport Authority, South Arcot. That is the case where a charge memo was issued to the permit holder why the permit granted to him shall not be suspended or cancelled under the provisions of the Motor Vehicles Act. After getting an explanation from the permit holder, it was held that the charges have been proved and the permit was suspended for a day. The same was confirmed by the appellate authority and the permit holder filed revision before this Court. This Court had held that there cannot be discrimination in the sense that action has been taken only against the permit holder and other persons have been allowed scot free. It will be open to the person who has been charged to raise plea of discrimination. Para 9 and 10 of the said judgement are extracted here under:- " 9. As for the driver not carrying the license, undoubtedly, he has to be proceeded against. Equally, the conductor had not carried his license. Yet they had been left out, and for which no valid reason is given. 10. Therefore, this Court considers that whenever contravention of the provisions of the Motor Vehicles Act and the Rules occasions, and for which provision is made for taking action not only against the permit-holder, but also against the crew action taken by the public authority must be against all those who are concerned in the omissions or commissions of such acts, failing which, it will be open to anyone of them who is proceeded against, to raise the plea of discrimination. As to how far discrimination had been practised, would depend upon the facts and circumstances of each case. " 6.3. However in the case on hand, not only action was taken against the petitioner but as stated already in the counter affidavit https://hcservices.ecourts.gov.in/hcservices/ it has been stated that action was taken against the erring officials also. In view of the said fact, the judgement cited above will not be applicable to the facts on hand. 7.1. The third contention of the learned Senior Counsel appearing for the petitioner is that the resolution passed in the panchayat meeting, for acceptance of the explanation offered by the petitioner was overlooked. Nowhere under the Act, it is stated that the resolution passed in the panchayat council meeting has to be accepted in toto. No doubt, Section 205 of the Act contemplates that the Inspector of Panchayat on his own motion or on the representation given in writing signed by required members on satisfaction shall call for an explanation from the President and shall direct the Tahsildar to convene a meeting for considering notice of explanation. The views of the panchayat shall be duly recorded by the Tahsildar and the copy of the minutes shall be forwarded by him to the Inspector. But, however the said provision does not contemplate that the views of the village panchayat have to be accepted by the Inspector of Panchayat. It would be useful to extract Section 205 (10 & 11) and they are extracted here under:- " 205. Removal of President.- (1) The Inspector - (a) of his own motion, or (b) on a representation in writing signed by not less than two-thirds of the sanctioned strength of the Village Panchayat containing a statement of charges against the President and presented in person to the Inspector by any two of the members of the Village Panchayat, is satisfied that the President wilfully omits or refuses to carry out or disobeys any provision of this Act, or any Rule, bye-law, Regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall, by notice in writing, require the President to offer within a specified date, his explanation with respect to his acts of omission or commission mentioned in the notice. *** *** *** *** *** *** (10) The views of the Village Panchayat shall be duly recorded in the minutes of the meeting and a copy of the minutes shall forthwith on the termination of the meeting be forwarded by the Tahsildar to the Inspector. (11) The Inspector, may after considering the views of the Village Panchayat in this regard, in his discretion https://hcservices.ecourts.gov.in/hcservices/ either remove the President from office by notification with effect from a date to be specified therein or drop further action. " The reading of the same would undoubtedly make it clear that it is not obligatory on the part of the Inspector of Panchayat to accept the views of the members of the panchayat. 7.2. In fact, the said issue came up for consideration before this Court and this Court has held that the views of the members of the panchayat are not a deciding factor to take action under Section 205 of the said Act and that Section 205(4) is not unconstitutional. The same is reported in 2000 (IV) Current Tamil Nadu Cases 631, N.M.Selvakumar Vs. The State of Tamil Nadu. Para 22 of the said judgement can be usefully extracted here under:- " Now, according to the learned counsel appearing for the petitioners, the grievance of the petitioners with respect to the above said procedure is that though the Tahsildar is obliged to give a notice of meeting at least seven days before the date of meeting; there is no provision contemplating supply of show cause notice, the explanation, if any, and the proposal of the Inspector to remove the president, and thereby the provision violates the principles of natural justice. The said submission cannot be accepted. The meeting contemplated under the said provision is only to get the views of the village panchayat on the action taken by the inspector. The seven days notice is contemplated only to give an opportunity to the members to keep the meeting day to be free and to attend the same without any inconvenience. It cannot be said that the members are expressing their views on the issue without knowing about the show cause notice, explanation if any, or the proposal of the inspector to remove the President. As contemplated under Section 205(8) of the Act, the Tahsildar in the meeting has to read all the above said materials before the members and the members have to express their views on the same. Moreover; as contemplated under Section 205 (8-A) of the Act the members cannot have any debate in the meeting regarding the said issue, it is also relevant to mention here that the views of the members are not deciding factor to take action under Section 204 of the Act against the president by the Inspector. It is only a guiding factor for the inspector to take further action at his discretion. So, it cannot be said that the members are not having opportunity to know about the show cause notice; the explanation and the proposal of the inspector before expressing their views. As stated above, they are having such opportunity to know about the same. So, the petitioners' case that Section 205 https://hcservices.ecourts.gov.in/hcservices/ (4) of the Act has to be struck down as unconstitutional cannot be accepted. Such provision only directs the Tahsildar to send a copy of the notice of the meeting. The ground on which such contention has been raised also cannot be accepted, in view of the reasons stated above. " 7.3. Thus considering clauses 10 and 11 of Section 205 of the Act and also considering the judgement referred to above, I am of the considered opinion that the views of the members of the panchayat alone are not the deciding factor to take action against the President of the panchayat under Section 205 of the Act. The Inspector of Panchayat after ascertaining the views of the members of the panchayat is vested with a discretion either to remove the president or to drop the further action. In the case on hand, though the petitioner has got full support from the members of the panchayat, Inspector of panchayat after analysing the complaint made against the petitioner, report of the Assistant Executive Engineer (Rural Development), Kallakurichi Sub-Division, has come to the conclusion that the petitioner misappropriated a sum of Rs.2,14,000/- by fabricating the records and forging signatures as though works were done for extra 5 days by 535 workers and thus misappropriated public fund which was sanctioned by the Government for the provision of employment opportunity to the unemployed rural people. Such an independent opinion arrived at by the Inspector of Panchayat basing on the report of the Assistant Executive Engineer, Kallakurichi Sub- Division, referred to above will show that the Inspector of Panchayat in his discretion had to reject the views of the village panchayat and pass the order of removing the petitioner from the post of the village panchayat. 7.4. Thus, I am of the considered opinion that the arguments of the learned Senior Counsel appearing for the petitioner that the views of the panchayat members ought to have been considered by the Inspector of Panchayat and that he has overlooked their views has to be rejected in toto. 8.1. Next contention of the learned Senior Counsel appearing for the petitioner is that the action of the petitioner did not resulted in any loss to the Government and hence the Inspector of Panchayat ought