IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 WP(C).No. 202 of 2010(A) ------------------------ PETITIONER(S): --------------- P.D.LEELAMMA, SECRETARY (SPECIAL GRADE), PERUMANNA GRAMA PANCHAYATH, PERUMANNA, KOZHIKODE. BY ADV. SRI.P.P.JACOB SRI.T.P.GOPAKUMAR RESPONDENT(S): --------------- 1. THE MANAGING COMMITTEE OF THE PERUMANNA GRAMA PANCHAYATH, PERUMANNA, KOZHIKODE, REPRESENTED BY ITS PRESIDENT. 2. SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE PHOTOCOPY OF THE NOTICE OF MEETING DTD.24.12.2009. EXT.P2 TRUE PHOTOCOPY OF TH ENOTICE ISSUED TO THE PETITIONER BY THE PRESIDENT OF THE PANCHAYAT DTD.26.12.2009. EXT.P3 TRUE COPY OF NOTICE OF MEETING DTD.26.12.2009. EXT.P4 TRUE COPY OF TH EREPLY FURNISHED BY THE PETITIONER DTD.30.12.2009. EXT.P5 TRUE COPY OF THE STATEMENT OF ALLEGATIONS PRESENTED IN THE PANCHAYAT MEETING DTD.31.12.2009. EXT.P6 TRUE COPY OF THE RESOLUTION NO.1 DTD.31.12.2009 OF THE PANCHAYAT. RESPONENT'S EXHIBITS: EXT.R1(A) TRUE COPY OF ORDER NO.E1-10/2007 DTD.5.2.2009 OF THE DIRECTOR OF PANCHAYAT. EXT.R1(B) A COPY OF THE RESOLUTION PASSED BY THE PANAMARAM GRAMA PANCHAYAT. EXT.R1(C) COPY OF THE COMPLAINT SUBMITTED BY THE CONVENOR, MOBILE TOWER ACTION COMMITTEE TO THE PRESIDENT DTD.7.1.2010 AND THE REPORT OF THE OVERSEER. TRUE COPY P.A.TO JUDGE CSS/ K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.202 of 2010 ------------------------------------------- Dated this the 13th day of January, 2010 JUDGMENT The petitioner who is the Secretary of the Perumanna Grama Panchayath. Perumanna, Kozhikode has filed this Writ Petition challenging Ext.P6 resolution of the Perumanna Grama Panchayat on the ground that the resolution has been passed in violation of the rules and the principles of natural justice. As per Ext.P6 resolution, the Panchayat has decided to recommend to the Government to transfer the petitioner. According to the petitioner, she joined duty as a Secretary in the Panchayat only on 24.2.2009. On 24.12.2009, the President of the Panchayat is alleged to have issued a notice of agenda to convene a special meeting relating to the transfer of the Secretary as per notice dated 24.12.2009. According to her, the said notice was issued even without giving an opportunity to the petitioner to submit her explanation. The same is Ext.P1. However, the meeting was later adjourned to 31.12.2009. Thereafter, as per Ext.P2 notice dated W.P.(C)No.202/2010 2 26.12.2009, the President required the Secretary to submit explanations, if any to the allegations contained therein before 31.12.2009. On the very same day, Ext.P3 notice was issued to her scheduling a meeting of the Panchayat on 31.12.2009. As per the said notice also, the agenda was for transferring the Secretary as provided under Section 179(4) of the Kerala Panchayat Raj Act, 1984. Though the petitioner requested for two weeks time to file a detailed explanation to the allegations against her, according to her, such an opportunity was not granted. At the meeting held on 31.12.2009, a decision was taken to recommend to the Government to transfer the petitioner. 2. According to the counsel for the petitioner, Ext.P6 resolution suffers from a number of infirmities. A reading of Ext.P6 shows that it was moved by the President himself and was not seconded by anybody. According to the counsel, the rules required a resolution to be moved by a member and to be seconded by another. 3. My attention is also drawn to Ext.R1(b), a similar resolution passed by the Panamaram Grama Panchayat to W.P.(C)No.202/2010 3 substantiate the above argument. According to the counsel for the petitioner, Section 179(4) mandates that an opportunity to make a representation before the Panchayat or the President and to be heard are necessary to be afforded to the petitioner before any action to transfer her is taken. It is pointed out that in the present case, the said valuable opportunity has been denied to her, thereby rendering Ext.P6 a nullity. 4. Counsel for the first respondent Panchayat has filed a counter affidavit refuting the allegations in the Writ Petition. According to the counsel, the Panchayat has acted in a fair and reasonable manner though the allegations of grave irregularities were subsisting against the petitioner. Though initially the meeting was scheduled to be held on 26.12.2009, the same was postponed so as to afford an opportunity to the petitioner to submit her explanation. Though the rules permit the holding of a special meeting with even a lesser period of notice, such a procedure was not adopted, but the petitioner was directed to submit her explanation. According to the W.P.(C)No.202/2010 4 counsel, instead of submitting her explanation, the petitioner had sought time. Therefore, the meeting was conducted on 31.12.2009 and in the said meeting, the resolution was moved by the President and was passed by the majority of the members who were present. The irregularities of not being proposed by a member and seconded by another are only minor discrepancies that cannot vitiate the entire proceedings, it is contended. According to the counsel, the Panchayat had the absolute authority to recommend to the Government to transfer the petitioner, which it had done. According to the counsel, the petitioner has no right to impose herself on the Panchayat when the Panchayat does not want her services. The counsel has also placed reliance on the decisions reported in Poruthissery Grama Panchayat v Director of Panchayats (2000(2) KLT 776) and Parameswaran v Director of Panchayat (2005(2) KLT 248) in support of his contentions. 5. I have heard Sri.P.P.Jacob who appears for the petitioner as well as Mr.P.V.Kunhikrishnan who appears W.P.(C)No.202/2010 5 for the Panchayat. I have given anxious consideration to the contentions of the rival parties. 6. Section 179(4) reads as follows: “The Government or any authority authorised by Government may, at any time, transfer Secretary from a Panchayat and shall do so if such transfer is recommended by a resolution of the Panchayat passed at a special meeting called for the purpose and supported by a simple majority of votes of the allowed strength of the Panchayat. [Provided that before considering such a resolution by the Panchayat, the Secretary shall be given an opportunity to make a representation before the Panchayat or the President and shall be heard by them if necessary].” The provision clearly confers power on the Panchayat to recommend to the Government by a resolution to transfer a Panchayat Secretary working in the said Panchayat. However, it has also been provided that such a resolution shall be passed at a special meeting called for the purpose and supported by a simple majority of votes of the allowed strength of the Panchayat. The proviso to the Section further mandates that before considering such a W.P.(C)No.202/2010 6 resolution by the Panchayat, the Secretary shall be given time to make a representation before the Panchayat or the President and shall be heard by them, if necessary. Therefore, the two conditions to be complied with before considering such a resolution by the Panchayat are, i) An opportunity is given to the Secretary to make a representation before the Panchayat or the President and ii) Shall be heard by them, if necessary. 7. The Proviso clearly stipulates that the opportunity to make a representation has to be given before considering such a resolution by the Panchayat. In the present case, without giving such an opportunity to the Secretary, a meeting was initially scheduled on 26.12.2009 as per Ext.P1 notice dated 24.12.2009. However, the meeting was adjourned to 31.12.2009 since no notice was given to the Secretary. Ext.P2 is a notice issued to the Secretary on 26.12.2009 seeking her explanation. On the same day, Ext.P3 notice is seen to have been issued notifying a meeting on 31.12.2009 with the agenda for the removal of the Secretary. Thereafter, W.P.(C)No.202/2010 7 the matter was considered on 31.12.2009. 8. The issue of Ext.P3 notice on 26.12.2009 and the issue of another notice on the same day itself convening a meeting for removal of the Secretary on 31.12.2009 shows that the authority had decided to proceed with the efforts to pass a resolution for removing the Secretary even while seeking the explanation of the petitioner. It was for the said reason that though time was requested for by the petitioner for submitting her explanation, no time was granted. The entire procedure has been completed within a period of seven days from 24.12.2009. There is no explanation for the undue haste in which the proceedings were initiated. 9. The counsel for the first respondent has relied on the decision Poruthissery Grama Panchayat v Director of Panchayats (2000(2) KLT 776). Particular reference is made to the observation of this Court that it is obligatory on the part of the Government to transfer a Secretary if the Panchayat requests for that. It certainly cannot be disputed that the Panchayat has the power to recommend W.P.(C)No.202/2010 8 the transfer of the Secretary to the Government. The counsel has also placed reliance on the decision reported in Parameswaran v Director of Panchayat (2005(2) KLT 248). The said decision also re-iterates the proposition that the Panchayat has ample power to take a decision as to who shall be its Secretary or who shall not be its Secretary and that the power is traceable to the nature of the institution, which is one of local self Government. It has also been held that the power under Section 179(4) is absolute and that the Government has to act in the terms thereof. However, it is to be noted that the power that is conferred under Section 179(4) has to be exercised in compliance with the mode of exercise of such power prescribed by the said Section. When the provision mandates that the power conferred shall be exercised only in the particular manner prescribed, any other mode of exercising the said power would be illegal. When, by virtue of exercise of the said power, the principles of natural justice is also violated, the same is an added reason for interference with the said decision. W.P.(C)No.202/2010 9 10. The counsel for the petitioner has relied on the decision reported in Ellakkal Service Co-operative Bank v State of Kerala (1997(2) KLT 85). In the said decision, this Court has held as follows: “In Ridge v Baldwin (1964 A.C. 40), House of Lords pointed out the extent of the area where the principles of natural justice have to be followed and judicial approach has to be adopted, must depend, principally on the nature of the jurisdiction and the power conferred on the authority or body by statutory questions to deal with the question affecting the rights of citizens. Unlike general principles of natural justice, when principles of natural justice are enshrined in a statutory provision, the statutory authorities are bound to obey the rule strictly. As held in Wiseman & anr. v Borneman & Ors. (1971 A.C.297) it is well established that when a statute has conferred on anybody the power to make any decisions affecting individuals, court will ensure that the procedural safeguards as mentioned in the rules are followed”. I am in respectful agreement with the above proposition. 12. As already noticed, the hasty procedure adopted in the present case does not find any justification in the facts. Therefore, Ext.P6 decision cannot be sustained. W.P.(C)No.202/2010 10 The same is accordingly set aside. However, the Panchayat is free to take a proper decision in the matter, if the circumstances, warrant under Section 179(4) of the Act, in compliance with the stipulations contained therein. It is made clear that I have set aside only the resolution Ext.P6. Therefore, it follows that the Panchayat is entitled to continue the proceedings in accordance with law from the stage of Ext.P2. The Writ Petition is allowed as above. No costs. K.SURENDRA MOHAN, JUDGE css/