IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 13694 of 2009 Between: Balavanthapu kavitha W/o.B.Ravi Kumar R/o.Mondikunta vilalge, Aswapuram Mandal Khammam District ..... PETITIONER AND 1 The District Collector (Panchayat Wing) Khammam District, Khammam 2 The District Panchayat Officer Khammam District, Khammam 3 The Divisional Panchayat officer, Kothagudem Khammam District 4 The Mandal Parshad Development officer, Aswapuram Mandal, Khammam District 5 The Panchayat Secretary, Gram panchayat Mondikunta village, Aswapuram Mandal, Khammam District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue appropriate writ or order or direction more particularly one in the nature of writ of mandamus declaring the action of 1st and 2nd respondents in harassing the petitioner and issuing the Notice No.Rc.No.P6/525/2008 dated 21.3.2009 Notice No.R.C.No.P6/525/2008 dated 13.5.2009 and Notice No.R.C.No.P6/525/2008 dated 23.6.2009 as illegal, arbitrary,and against the principles of natural justice and violative of Article 14,16 & 17 of Constitution of India and set a side the same and consequently direct the respondents to restore cheque power to the petitoner and not to harass the petitioner and pass such other suitable orders. Counsel for the Petitioner:MR.P.GIRI KRISHNA Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.13694 of 2009 ORDER: 1. Heard Sri P.Giri Krishna representing the writ petitioner and the learned Assistant Government Pleader for Panchayat Raj and Rural Development and Sri Elisha representing the respondents. 2. Sri Giri Krishna had taken this Court through the contents of the affidavit filed in support of the Writ Petition and would maintain that this is nothing but harassment or abuse of power and hence the Writ Petition to be allowed. 3. On the contrary, the learned Assistant Government Pleader for Panchayat Raj would maintain that this is only a show cause notice under Section 249(1) of A.P. Panchayat Raj Act and the petitioner is at liberty to submit explanation and without submitting any explanation this Writ Petition had been filed. The learned Assistant Government Pleader also had taken this Court through the several of the proceedings placed before this Court as material papers along with the counter affidavit of the 2nd respondent. 4. Heard the Counsel. 5. The Writ Petition is filed for a writ of mandamus declaring the action of the 1st and the 2nd respondents in harassing the petitioner and issuing the notice R.C.No.P.6/525/2008, dated 21-3-2009, notice R.C.No.P6/525/2008 dated 23-6-2009 as illegal, arbitrary and against the principles of natural justice and violative of Articles 14, 16 and 17 of the Constitution of India and to set aside the same and consequently direct the respondents to restore the cheque power to the petitioner and not to harass the petitioner and to pass such other suitable orders. 6. It is stated in the affidavit filed in support of the Writ Petition that the petitioner was elected as Sarpanch of Gram Panchayat Mondikunta village, Aswapuram Mandal, khammam District in August 2006 and since then she had been discharging her duties to the satisfaction of the villagers and also the Government. It is stated that there are about ten ward members in the petitioner’s Gram Panchayat and from the ten members kondabathula Upender (B.C. category) had been elected as Upa-Sarpanch. The petitioner belongs to S.C. caste and is an illiterate. The post of Sarpanch of the Gram Panchayat is reserved for S.C. category. While the matters stood thus, the Upa- Sarpanch along with other majority ward members belonging to Reddy community are creating obstacles to the petitioner in smooth running of her office. It seems that they made a complaint against the petitioner to the District Panchayat Officer, Khammam in the first week of june 2008 and since then the District Panchayat Officer had been issuing notices to the petitioner calling her explanation on the allegations made by the Ward members. In September 2008 the District Panchayat Officer issued first show cause notice Rc.No.525/2008 dated 16-6-2008 calling explanation from the petitioner within 15 days from the date of receipt of the said show cause notice. In the said show cause notice it was alleged that the petitioner had not convened the executive body meeting from October 2007 and Grama Sabha which was to be held on 14-4-2008 and also the income of the Gram Panchayat was not remitted to Treasury. By the said notice the cheque power of the petitioner had been suspended and is not yet restored. It is also stated that on receipt of the said show cause notice, the petitioner met the 2nd respondent personally and explained that the Panchayat Secretary is responsible for the said misdeeds as he did not hand over the charge to the petitioner till 13-8-2008. The petitioner further explained that on 14-4-2008, the petitioner was bedridden and in coma due to cerebral malaria. It is also further stated that again the District Panchayat Officer had issued another show cause notice Rc.No.525/2008 dated September 2008 calling explanation from the petitioner within 15 days from the receipt of the said show cause notice. In the said notice about nine allegations had been made against the petitioner which are similar to the earlier notice dated 16-6-2008 and the said allegations are as hereunder:- (1) On 26-9-2009 onwards the Gram Panchayat had not conducted the meetings. On 2-4-2008 the agenda notice had not been sent the members of the Gram Panchayat. The Secretary of the Gram Panchayat is not responsible to maintain the Minutes Book. (2) On 14-4-2008 and 2-10-2007 the said Gram Panchayat had not conducted the village meetings. (3) Rs.1,76,904/- had been withdrawn and the same had not been entered in the cash books and also not submitted the vouchers, bills and the said funds had been misused. (4) Rs.35,440/- had been withdrawn and the same had not been entered in the cash books and on enquiry the relevant bills and vouchers had not been shown. (5) Rs.2,47,015/- had been withdrawn and the same had not been entered in the cash books and on enquiry the relevant bills and vouchers had not been shown. On enquiry, vide Ch.No.681863, dated 30-11-2007 not shown the details. (6) Rs.91,069/- TFC funds were not entered in the cash book and also not entered in M.B. Record. (7) Rs.10,842/- had been collected under water taxes to the Secretary under Book No.1 and the same had not been deposited; cash book also not maintained properly and expenditure was not shown. (8) Rs.46,988/- funds misused the Sarpanch and pump operator under Book No.2 the same had not been deposited; cash book also not maintained properly and the expenditure was not shown. (9) The present Sarpanch had constructed houses in forest land and violated the rules and regulations and the same had been given in writing. It is also further stated that to the said show cause notice, the petitioner gave suitable reply on 27-10-2008 answering all the allegations as hereunder:- Allegation No.1 : on 26-9-2007 onwards the Gram Panchayat had not conducted the meetings. On 2-4-2008 the agenda had not been sent to the members of the Gram Panchayat. The Secretary of the Gram Panchayat is not responsible to maintain the Minutes Book. On 14-4- 2008 and 2-10-2007 the said Gram Panchayat had not conducted the village public meetings. Ans: The said Gram Panchayat Secretary had handed over the charges to the petitioner on 13-8-2008. On the said day the records of the Panchayat had not been completed and the same should be handed over to the petitioner. But the authorities told that the Secretary is not responsible to maintain the record but now questioning how the Secretary is not responsible. Allegation No.2: from 14-4-2008 to 2-10-2007 the Gram Panchayat public meetings are not held. Ans: The Gram Panchayat Secretary had handed over the charge to the petitioner on 13-8-2008. The petitioner informed the Secretary to conduct the Gram Panchayat public meeting but he had not taken any action and also kept the Registers with him. That’s why the petitioner had not conducted the Gram Panchayat public meeting. Allegation No.3 : Rs.1,76,904/- withdrawn and vouchers and the bills had not been submitted because the funds had been misused. Ans: After the petitioner’s election i.e., 20-9-2007, the said cheque books and pass books were lying with the Secretary. After that PREORD kept the same. Every time vouchers and bills and M.Bs. had been submitted to the concerned officers and withdrawn the amounts. Allegation No.4: Rs.35,440/- withdrawn and the same had been entered in cash books, but vouchers and bills had not been shown in the enquiry. Ans: The cash book entries should be made by the Secretary. The concerned vouchers and bills were kept with him. The said vouchers and the bills were not shown and the mistake should be of the Secretary only. Allegation No.5 : Rs.2,47,015/- had been withdrawn but the same was not entered in the cash books and also the relevant bills and vouchers were not submitted by the Secretary at the time of enquiry. Ch.No.681682 dated 4-12-2007 and Cheque No.681683 dated 30-11- 2007. Ans: The Secretary should be responsible to write the cash books. The Secretary should have each and every cheque detail and the cheque books are also lying with him. The details of Cheque No.681682 dated 4-12-2007 and Cheque No.681683 dated 30- 11-2007 should be submitted by PREORD. Allegation No.6 : Rs.91,069/- TFC funds had not been entered in the cash book. The M.Bs. should not be produced at the time of enquiry. Ans: The petitioner gave M.B. books to the Secretary to withdraw the FTS funds and that’s why the concerned Secretary had not produced the relevant material before the enquiry and the mistake was done by the Secretary. Allegation No.7 : An amount of Rs.10,842/- collected by the Secretary under water cess under receipt book-1 but the same had not been deposited and was not shown in the cash books and also not shown the expenses. Ans: The said allegation of the amount of Rs.10,842/- collected by the Secretary under water cess under receipt book-1 but the same had not been deposited and was not shown in the cash books and also not shown the expenses is the mistake done by the Secretary. Allegation No.8 : The Sarpanch and pump operator misused an amount of Rs.48,986/- from the Gram Panchayat funds. The said pump operator informed that he collected the money and handed over to the Sarpanch and the same is accepted by the Sarpanch also but the said Sarpanch had not shown the details of the said amount. Ans: under Receipt book-2 an amount of Rs.33,700/- had been deposited in the bank. The said expense bills produced and handed over the same to the Secretary. Allegation No.9 : The concerned Sarpanch had constructed a house in the Forest Department land. Ans: The petitioner along with his family members are residing for the last 25 years at Mondikunta village. The petitioner is poor and belong to S.C. community. For the last 25 years the petitioner is residing in rented houses. Petitioner is having a hut in the area of Gram Panchayat. In the year 2007 the petitioner fell sick for about ten days and was in coma. The said allegation is foisted and is not good. Allegation No.10 : The husband of the Sarpanch actively participated in the Gram Panchayat activities. Ans: The said allegation is false and denied. On enquiry of D.L.P.O. the petitioner’s husband was not there. The petitioner further stated that that she belongs to S.C. community and is an illiterate and do not know reading and writing. The petitioner also explained that the Panchayat Secretary falsely implicated the petitioner in the aforesaid allegations and in fact the Secretary had produced the records on 13-8-2008 only. It is also further stated that after the said explanation, the District Panchayat Officer had ordered an enquiry by the 3rd respondent. It seems the 3rd respondent had submitted a report on 27-1-2008 and on receipt of the said report the 2nd respondent had issued another notice vide Rc.No.P6/525/2008 dated 21-3-2009 to the petitioner in the name of the 1st respondent. The 2nd respondent did not furnish copy of the report to the petitioner but extracted the substance of the report in the said notice which shows that the allegations in the earlier notice are proved. In the said show cause notice it was stated that the Divisional Panchayat officer, Kothagudem had submitted his report stating that the Panchayat Secretary is not responsible to conduct the meeting and to maintain the Registers and hence the Sarpanch is responsible for misappropriation of the funds of Rs.2,61,505/- on different accounts. Hence the 2nd respondent called explanation from the petitioner within 15 days to show cause why the petitioner should not be suspended. The petitioner met the District Panchayat Officer personally and explained that the Panchayat Secretary is responsible to submit the cash book registers and M.B. books and bills but he did not submit the same till 13-8-2008. Even the Divisional panchayat Officer in his letter dated 17-12-2008 had made it clear that the record should be maintained by the Panchayat Secretary only and he had neglected his duties and the letter of the Divisional Panchayat Officer makes it clear. Except the general fund the cheques of all other funds like TFC, SFC and SJRY should be countersigned by either the Panchayat Secretary or the M.P.D.O. or PREORD. It is also further stated that even then the 2nd respondent had issued notice dated 13-5-2009 and final notice on 23-6-2009 to the petitioner in the name of the 1st respondent for the same allegations which were made in the earlier notice dated 16-6- 2008 and September 2008. The respondents 1 and 2 knowing well that the Panchayat Secretary had handed over the charge only on 13- 8-2008, are issuing notices to the petitioner only with an intention to harass her as she belongs to S.C. community. The said action of the respondents 1 and 2 in harassing the petitioner by issuing series of notices is illegal, arbitrary and against the principles of natural justice. The final notice R.C.No.P6/525/2008 dated 23-6-2008 had been issued by the respondents 1 and 2 with the ulterior motive of removing the petitioner from the office at the instigation of the Upa-Sarpanch and other Ward members and the said notices are violative of Articles 14, 16 and 17 of the Constitution of India. It is also further stated that for the sincere and clean services of the petitioner, the Central Government had awarded the petitioner “Nirmal Gram Puraskar Award” and the petitioner had obtained the same from the Hon’ble President of India on 5-4-2007. This Court ordered Notice before admission on 9-7-2009 and the 2nd respondent filed counter affidavit along with several material papers, the different proceedings inclusive of different show cause notices. It is stated in para-2 of the counter affidavit that there are ten Ward members along with the petitioner elected for the Gram Panchayat Mondikunta in the third ordinary elections to Gram Panchayats 2006. Out of said ten Ward Members, eight members including the Upa-Sarpanch made a representation stating that the petitioner had not been conducting monthly regular meetings of the Gram Panchayat and the daily collections i.e., house taxes, water tap deposits, fees, cattle pond etc., are not being remitted to the concerned accounts of the Gram Panchayat and misappropriated the same and further requested to take necessary action against the petitioner. Accordingly the 2nd respondent issued orders vide Pro.No.P6/525/2008 dated 15-5-2008 withholding the cheque drawing powers of the petitioner as per Rule 42(1) of G.O.Ms.No.30, Panchayat Raj and Rural Development Department dated 20-1-1995 regarding levy and collection of taxes and lodging of money received by the Gram Panchayats and payment of moneys from Gram Panchayat funds and further directed the concerned Sub-Treasury Officer and Bank Managers not to honour the cheques of the Gram Panchayat Mondikunta until further orders and directed to District Panchayat Officer, Kothagudem to conduct a detailed enquiry and submit report within seven days. Accordingly, the District Panchayat Officer, Kothagudem had conducted an enquiry and submitted report vide Lr.No.A2/63/2008 dated 28-6-2008 stating that the petitioner had committed the following irregularities: 1. The Sarpanch had drawn an amount of Rs.35,440/- from the Treasury through Cheque Nos.156788, 156791, 156793, 156795, 156798 and 1566679 but the vouchers and bills were not produced. 2. The vouchers, bills and records for drawl of an amount of Rs.2,47,015/- were not produced which was drawn through cheque Nos.681851 and 681873. 3. The M.Bs., vouchers, bills and records for drawl of an amount of Rs.2,47,015/- were not produced which was drawn through cheque Nos.681851 to 681873. 4. The M.Bs., vouchers and bills for drawl of an amount of Rs.91,069/- from TFC funds were not produced which was drawn through cheque Nos.156783, 156787, 156792, 156794, 156796 and 156797. 5. The Panchayat Secretary, Gram Panchayat had collected an amount of Rs.10,842/- towards water tax and new connections through Book No.1 and had not remitted to the concerned funds. 6. The Sarpanch and the pump operators had collected an amount of Rs.46,986/- towards water tax vide Book 2 and 3 and the same was not deposited into the Bank/Sub-Treasury office. 7. The Sarpanch/Panchayat Secretary failed in conducting regular Gram Panchayat meetings and Gram Sabhas. 8. The Panchayat Secretary failed in maintenance of Gram Panchayat records including cash book etc. 9. The Sarpanch herself occupied the forest land and concerned a house in it and the Forest Department had removed the house and again the petitioner re-concerned the house in the same occupied site. It is further stated that basing on the report of the District Panchayat Officer dated 28-6-2008, the 2nd respondent issued show cause notice vide Rc.No.P6/525/2008 dated 27-9-2008 obstructing the report of the District Panchayat Officer, Kothagudem and asked the petitioner as to why necessary action should not be initiated against the petitioner and sought explanation within 15 days from the date of receipt of the notice. The petitioner had submitted her explanation dated 27-10- 2008 was not supported by records. The petitioner simply explained in all charges shown in the show cause notice that the Panchayat Secretary is responsible for non-conduct of the Gram Panchayat meetings and the non-submission of records for drawl of funds on 26- 9-2007 and since the Panchayat Secretary was deputed to Mandal Parishad office vide Proc.No.B/PS/2007 of the Mandal Parishad Development Officer, Mandal Parishad, Aswapuram dated 6-8-2007, the records were handed over to the Extension Officer, Panchayat Raj and Rural Development concerned and the petitioner had obtained the required records from the Mandal and had drawn the said amount. After receipt of the representation from the members, the entire records of the Gram Panchayat were handed over to the petitioner on 13-8- 2008 but the petitioner failed in submitting proper explanation with connected records for drawl of funds and hence the explanation of the petitioner was not satisfactory. It is also further stated that the 2nd respondent had conducted personal hearing in which the petitioner, Upa-Sarpanch, Extension Officer (Panchayat Raj and Rural Development) and District Panchayat Officer, Kothagudem on 21-1- 2009 were present and the petitioner was once again given three days to produce the records pertaining to the financial allegations to the District Panchayat Officer, Kothagudem and the District Panchayat Officer, Kothagudem was asked to submit his remarks with reference to the explanations of the petitioner. The District Panchayat Officer, Kothagudem had submitted remarks vide his Lr.No.A2/63/2008, dated 27-1-2009 that the petitioner and the Panchayat Secretary, Gram Panchayat, Mondikunta had produced a partial information on 23-1- 2009 and as per the information submitted by the petitioner and the Panchayat Secretary, the records of the Gram Panchayat were verified with reference to the available records and explanation of the petitioner and submitted the following charge-wise remarks. 1. The meetings of the Gram Panchayat were not conducted from 26-9-2007 and the Gram Sabhas were also not conducted. The petitioner and the Panchayat Secretary are responsible. 2. The details/bills/vouchers/records for drawl of following funds from the TFC funds not produced. (a) Cheque No.369975 dated 7-1-2007 Rs.3200/- (b) Cheque No.913916 Rs.8975/- ------------- Total: Rs.12,175/- ------------- 3. The details/bills/vouchers/records for drawl of an amount of Rs.1,19,717/- were not produced out of drawl of funds for Rs.2,00,515/- from general funds. 4. The details of records for an amount of Rs.48,219/- were not produced out of total drawl of funds from TFC funds for Rs.91,069/-. 5. The details for an amount of Rs.35,440/- drawn from general funds were not submitted. 6. The receipt of fees/deposits towards water tap connections for an amount of Rs.45,954/- were not remitted to the concerned funds and not produced details. 7. The audit of accounts for the year 2007-08 was completed. It is also further stated that the petitioner had misused the following funds of Rs.2,61,505/-: (a) Gram Panchayat general funds Rs.1,55,157/- (b) TFC funds Rs. 60,394/- (c) Water tax Rs. 45,954/- ------------------- Total Rs.2,61,505/- ------------------- In view of the huge financial irregularities of the petitioner, a show cause notice vide Rc.No.P6/525/2008 dated 21-3-2009 under Section 249(6) of A.P. Panchayat Raj Act 1994 was issued to the petitioner as to why action should not be initiated for suspension from the post of Sarpanch, but the petitioner failed to submit her explanation to the said show cause notice. Therefore, the petitioner was kept under suspension as per Section 249(6) of A.P.Panchayat Raj Act for a period of three months vide Pro.No.P6/525/2008 dated 13-5-2009. It is also further stated that after the suspension of the suspension of the petitioner dated 13-5-2009, the 1st respondent issued a show cause notice vide Rc.No.P6/525/2-005 dated 23-6-2009 under Section 249(1) of A.P. Panchayat Raj Act 1994 as to why she should not be removed from the post of Sarpanch and further issued another show cause notice vide Rc.No.Ex.P.6/525/2009 dated 23-6-2009 under Section 265(1) of A.P. Panchayat Raj Act 1994 to the petitioner for recovery of the misused funds of Rs.2,61,505/-, but the petitioner failed to submit her explanations. The petitioner had misused the Gram Panchayat funds of Rs.2,61,505/- and had not submitted any records pertaining to the drawls of the said funds and had not submitted any explanations to the show cause notices issued. The petitioner had not only failed in discharging her duties but also failed to explain the charges made against her and as such a notice under Section 249(1) of A.P. Panchayat Raj Act 1994 had been issued for removal. In stead of reply to the said show cause notice, the petitioner approached this Court which clearly shows that the petitioner does not want to reply to the show cause notice and wants to protract the issue on technical grounds. Hence it is prayed that the Writ Petition being devoid of merit, the same is liable to be dismissed. 7. The following proceedings and the show cause notices also had been placed before this Court: 1. Proc.No.P6/525/2008 of the District Panchayat Officer, Khammam/2nd respondent dated 16-6-2008. 2. Report Rc.No.A2/63/2008 of the District Panchayat Officer, Kothagudem/3rd respondent dated 28-6-2008. 3. Show cause notice No.P6/525/2008 of the District Panchayat Officer, Khammam/2nd respondent dated 27-9-2008. 4. Explanation of the petitioner/Sarpanch dated 27-10-2008 5. Proc.No.B/P.S/2007 of the MPDO, Aswapuram dated 6-8- 007. 6. Report Rc.No.A2/63/2008 of the District Panchayat Officer, Kothagudem/3rd respondent dated 27-1-2008. 7. Show cause notice No.P6/525/2008 dated 21-3-2009 of the District Collector(PW), Khammam/1st respondent under Section 249(6) of A.P.Panchayat Raj Act. 8. Proc.No.P6/525/2008 dated 13-5-2009 of the District Collector(PW), Khammam/1st respondent under Section 249(6) of A.P.Panchayat Raj Act. 9. Show cause notice No.P6/525/2008, dated 23-3-2009 of the District Collector (PW), Khammam under Section 249(1) of A.P.Panchayat Raj Act/1st respondent. 10. Show cause notice No.P6/525/2008 dated 23-3-2006 of the District Collector (PW), Khammam under Section 265(1) of A.P.Panchayat Raj Act/1st respondent. Certain submissions were