THE HON’BLE THE ACTING CHIEF JUTICE SRI B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO W.A.No.503 of 2010 23rd November, 2010 Between :- G.Vasuram Naik .. Appellant/Petitioner And The District Collector (Panchayat Raj), Nizambad District, Nizamabad And others .. Respondents/Respondents THE HON’BLE THE ACTING CHIEF JUTICE SRI B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO W.A.No.503 of 2010 JUDGMENT:- (Per VSAR,J) Having failed to persuade the learned Single Judge to accept the prayer of the appellant to quash G.O.Rt.No.688, Panchayat Raj and Rural Development (PTS-II) Department, dated 18-5-2010 issued by the 4th respondent herein as illegal, improper, unjust and contrary to law and in violation of principles of natural justice, the appellant has preferred the present writ appeal under Section 15 of the Letters Patent Appeal. The relevant facts leading to filing of this appeal are:- The appellant was elected as Sarpanch, Achanpally Gram Panchayat, Bodhan Mandal, Nizambad District, in the year 2006. On 18-11-2009, the Upa-Sarpanch i.e., the 3rd respondent herein lodged a complaint alleging that the appellant has committed financial irregularities and abused his Office as Sarpanch. Basing on the said complaint, the District Collector got the complaint enquired through the 2nd respondent herein - Divisional Panchayat Officer. On 24-11-2009 the 2nd respondent herein - Divisional Panchayat Officer submitted a report to the District Collector, Nizambad, stating that the appellant did not produce the records during the enquiry conducted by him. Thereafter, the District Panchayat Officer issued a notice dated 26-11- 2009 directing the appellant to submit his explanation within one week. Accordingly, the appellant submitted his explanation on 5-12- 2009 to the District Panchayat Officer stating that the previous Panchayat Secretary did not handover the records to the newly posted Incharge Secretary and he has not deposited the amounts collected by the Gram Panchayat in the Bank. It is also further stated that in view of the absence of the regular Panchayat Secretary, the Incharge Secretary could not properly maintain the records up-to-date. As the appellant is an illiterate and does not know anything, except putting his signature in English, he requested the District Collector to provide an opportunity to update the records through the Secretary of the Gram Panchayat. Basing on the report of the 2nd respondent, the 1st respondent – District Collector without furnishing copies of the complaint of the 3rd respondent and report of the 2nd respondent and without verifying the records issued proceedings No.677/2009-B5(Pan)-1, dated 19-2-2010, removing the appellant from the post of Sarpanch by exercising the power under Section 249(1) of the Andhra Pradesh Panchayat Raj Act, 1994 (in short, hereinafter referred to as ‘the Act’ for the purpose of convenience). Thereafter, the appellant filed an appeal before the 4th respondent – the Principal Secretary, Panchayat Raj Department, Secretariat, Hyderabad, who is the appellate authority. Thereafter, the appellant filed W.P.No.4942 of 2010 before this Court to direct the 4th respondent to pass interim orders on the suspension petition filed by him and this Court disposed of the said Writ Petition on 4-3-2010 directing the 4th respondent to pass appropriate orders on the suspension petition filed by the appellant herein within a period of two weeks and also dispose of the appeal as expeditiously as possible, preferably within a period of three months. In spite of the said order by this Court, the 4th respondent has not passed any orders. Therefore, the appellant filed C.C.No.457 of 2010 for deliberate disobedience of the orders of this Court. Thereafter, the 4th respondent passed interim orders vide Memo No.5188/Pes.II/A/2010-2, dated 31-3-2010 by suspending the proceedings of the 1st respondent No.677/2009-B5 (Pan)-1, dated 19-2-2010 pending appeal. On 22-4-2010 the appellant appeared before the 4th respondent and requested 15 days time for producing the material and the 4th respondent granted time orally and permitted him to produce the records and also informed him that he will intimate the next date of hearing. When he was under the impression that the date of hearing will be intimated, the 4th respondent passed the impugned G.O.Rt.No.688, dated 18-5-2010, dismissing the appeal without hearing the appellant, which amounts to violation of principles of natural justice. The learned single Judge adverted to the factual matrix of the case, perused the record and held that “the District Collector conducted a two-stage enquiry. After receiving the complaint of the Upa-sarpanch, he got it verified through Divisional Panchayat Officer and after petitioner submitted explanation to the show cause notice, the Collector called for the records of second respondent. All the records produced by the petitioner and receipts produced by petitioner were duly given credit and for the balance of amount, the petitioner did not offer any explanation. In every item of expenditure, there are clear findings that petitioner made payments without approval of the Engineer and for certain other works MB records were not event maintained. It is not disputed that whenever any development work is taken up by Gram Panchayat, unless and until the concerned Panchayat Engineer verifies the work and approves the same, the bills cannot be paid by Sarpanch. In this case, this rule was followed by the petitioner more in breach. The Government considered the record and came to the same conclusion and accordingly dismissed the Writ Petition.” The learned senior Counsel appearing for the appellant submitted that the appellant was not furnished with copies of the complaint of the 3rd respondent and the report of the 2nd respondent – Divisional Panchayat Officer and the appellant was not given sufficient opportunity by the 4th respondent before passing the impugned G.O. dismissing him from the post of Sarpanch. In support of his contention, the learned senior Counsel relied on a decision of the Division Bench of this Court reported in D.SATHI REDDY Vs. COMMISSIONER, PANCHAYAT RAJ [1]. Learned Government Pleader for Panchayat Raj and the learned Counsel appearing for the 3rd respondent – Upa-sarpanch supported G.O.Rt.No.688, dated 18-5-2010, issued by the 4th respondent. In D.Sathi Reddy’s case (referred 1 supra) this Court held that “if the competent authority is placing reliance on any report before issuing a show cause notice, the Sarpanch shall have to be supplied with a copy of such report and failure to do so would not be a sufficient compliance with the principles of natural justice and with the mandatory provision of giving an opportunity to offer an explanation. Before forming an opinion in regard to the existence or non-existence of the essential pre-conditions for passing an order of removal the authorities (original and appellate) should apply their mind and an error of law which is apparent on the face of the record is both an illegality and an impropriety which is amenable to judicial review.” In this connection, a reference can be appropriately be made to the provisions of Section 249(1) of the Act. Sub-section (1) of Section 249 of the Act says that a Sarpanch can be removed when:- a) he was willfully disobeyed the orders of the Government. b) When he is guilty of misconduct in discharge of his duties. c) When he abused the powers vested in him under the Act. d) When he failed to perform his functions and duties to the detriment of the Panchayat and/or e) When he was become incapable of performing his functions and duties. Sub-section (1) of Section 249 of the Act further indicates that the Collector or as the case may be, the Government, may remove such Sarpanch or Upa-sarpanch, President or Vice-President or as the case may be the “Chairperson” or the “Vice-Chairperson”, after giving him an opportunity for explanation. In the instant case, the appellant alleged that he appeared before the appellate authority i.e., the 4th respondent herein on 22-4-2010 and sought for 15 days time to produce the records for the works executed and that the 4th respondent granted time orally and permitted him to produce the records and also informed that he will inform the next date of hearing and when the appellant was under the impression that the date of hearing would be intimated to him, surprisingly, the appellant was served with G.O.Rt.No.688, dated 18-5-2010, on 26-5-2010 rejecting his appeal. The 1st respondent – District Collector who filed a counter affidavit in this appeal clearly admitted at last para of page No.4 that “a hearing was conducted on 22-4-2010 wherein the appellant herein attended the hearing though he sought time to produce the records, the same was rejected and after considering all the issues raised by the appellant, the Government i.e., the 4th respondent herein dismissed the appeal.” Para 5 of the impugned G.O. also clearly indicates that “the case was heard on 22-4-2010. The Sarpanch and the District Panchayat Officer, Nizamabad District were attended the hearing. The Sarpanch has sought for some more time to produce the records for the works executed. It has observed that the Collector removed the Sarpanch from office on the ground that he hwas resorted to misuse of funds and abuse of power.” At para 6 it has been further mentioned that “Government after careful examination of the material consider that the orders of the District Collector issued vide reference 1st read above are in accordance with the provisions of the APPR Act, 1994. Hence, the appeal petition filed by Sri G.Vasuram Naik, Sarpanch (Removed), Achanpally Gram Panchayat, Bodhan Mandal of Nizamabad District, is hereby rejected.” A perusal of the counter affidavit of the 1st respondent and the impugned G.O. at paras 5 and 6 clearly show that though the appellant requested for some more time to produce the records, the 4th respondent – appellant authority neither granted the time nor rejected the request of the appellant. The impugned G.O. also is silent about the next date of hearing. Though the matter was heard on 22-4-2010, reasons were not mentioned for issuing the impugned G.O. on 18-5- 2010. Basing on the material available before this Court and in view of the decision of the Division Bench of this Court (referred 1 supra), we hold that the impugned G.O.Rt.No.688, dated 18-5-2010 issued by the 4th respondent can be said to have been issued in violation of principles of natural justice. The appeal is therefore allowed suspending the G.O.Rt.No.688, dated 18-5-2010. However, the 4th respondent – Principal Secretary, Panchayat Raj Department (appellate authority) is directed to dispose of the appeal filed by the appellant afresh after giving reasonable opportunity to the appellant as required under Section 249 (1) of the Act, within two months from the date of receipt of this Order. For the foregoing reasons, W.A.M.P.No.1185/2010 is also allowed. Since the petitioner in W.A.M.P.No.1491 of 2010 was not impleaded in the main writ petition and as a sequel to the allowing of this appeal, WAMP N0.1491 of 2010 is liable to be dismissed and accordingly dismissed. __________________________ B.PRAKASH RAO, HACJ, ________________________ V.Suri Appa Rao, J 23rd November, 2010 smr [1] 1999 (5) ALT 535 (D.B.)