IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 19-09-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.15560 OF 2011 D.Bagyalakshmi ... Petitioner -vs- 1.The Secretary to Government, Department of Rural Development and Panchayat Raj, Chennai. 2.The Inspector of Panchayats-cum- District Collector, Vellore District Collectorate, Sathuvachari, Vellore-9. 3.The Tahsildar, Gudiyatham, Vellore District. ... Respondents R.3 impleaded as per court order dated 8.9.11 by VDPJ in MP.2/11 in WP.15560/11. For petitioner : Mr.R.Margabandhu. For respondents : Mrs.V.M.Velumani, Spl.Govt.Pleader. Writ Petition under Article 226 of the Constitution of India. O R D E R With the consent of the learned counsel on either side, the Writ Petition itself is taken up for disposal. 2. This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the removal proceeding against the petitioner in G.O.Ms. (p.134), dated 18.03.2011, served on the petitioner on 29.03.2011 from the file of the first respondent, quash the same and consequently direct the second respondent to permit the petitioner to https://hcservices.ecourts.gov.in/hcservices/ continue to function as the President of Sengundram Village Panchayat Union, Vellore District. 3. According the petitioner, she is the elected president of Sengunram village in the election held in the year 2006; she has been discharging her functions as president as per rules and regulations of The Tamil Nadu Panchayats Act,1994, in short, "the Act"; she is not much educated; she is not aware of panchayat administration; she is guided by a panchayat clerk R.Mahendran; as per his directions, she used to sign; due to political rivalry, proceedings have been initiated under Section 205 of the Act; six charges were framed, for which she gave her explanation; without considering the said explanation, the second respondent directed the third respondent, namely, Tahsildar, Gudiyatham, to convene the meeting; the Tahsildar convened the meeting under Section 205 (3) of the Act; there are 9 members of the Panchayat Board; the meeting was held on 27.01.2009; out of 9 members, 2 members were absent and the remaining 7 members voted in her favour to continue as the President of the Panchayat; without considering the views of the members, the second respondent passed the removal order, removing her from the post vide his proceedings Na.Ka.No.A4/4207/2008, dated 24.06.2009; against which order she filed W.P.No.13257 of 2009 before this Court, wherein, on 27.09.2009, she was directed to prefer an appeal under Section 205 (12) of the Act; accordingly, she filed the appeal before the first respondent on 09.11.2009, whereupon, the first respondent passed an order, directing the second respondent to give an opportunity for the unanimous approval given by the members of the panchayat; she offered an explanation, but the same was not accepted; thereafter, she was removed from the post of President under the impugned order G.O.Ms.No.134, dated 18.03.2011, and, hence, this Writ Petition. 4. Respondents have filed a counter, stating as follows : 4.1. Sengundram Panchayat in Gudiyatham Panchayat Union was taken up for special audit by the Assistant Director (Audit) on 11.10.2008, who submitted a report to the Inspector of Panchayats with certain irregularities, based on which the Inspector of Panchayats and Collector of Vellore District, second respondent herein, issued a show cause notice to the President of Sengundram Panchayat, namely, petitioner herein, on 31.10.2008 under Section 205 of the Act. The petitioner submitted her reply on 14.11.2008. As the reply given by the petitioner was not satisfactory, it was decided to conduct a special meeting of Panchayat to get the views of the Village Panchayat. Accordingly, the Tahsildar conducted a special meeting and got the views of the Village Panchayat. All the seven members supported the Panchayat President to continue in office. After getting the views of the Panchayat through Tahsildar, the matter had been considered based on merits and thereafter it was decided to reject the views which were supporting the Panchayat President, since they were against the proved irregularities and, accordingly, the petitioner was removed from the post by the https://hcservices.ecourts.gov.in/hcservices/ Inspector of Panchayats. 4.2. In that regard, the petitioner filed W.P.No.13257 of 2009 before this Court and the same was dismissed, directing the petitioner to approach the authorities under Section 205 (12) of the Act. Based on the said order, the petitioner filed a review petition before the Principal Secretary on 16.07.2009. Personal hearing was conducted by the Principal Secretary on 12.10.2009 and finally he set aside the proceedings of the District Collector/Inspector of Panchayats, directing the District Collector to follow the guidelines given by a Full Bench of this Court in this regard, as per which, final explanation from the petitioner was sought and the same was considered. As the explanation was not satisfactory against the proved charges and available records, the petitioner was removed from the post, after following all the procedures and, therefore, the Writ Petition is liable to be dismissed. 5. Learned counsel for the petitioner would contend that the petitioner had not committed any misappropriation of funds; the Tahsildar had not followed the procedure, by failing to bring to the knowledge of the members about the Inspector's proposal for removal and hence the proceedings of the Tahsildar and also the impugned proceedings are vitiated in law. In support of his contention, the learned counsel has relied upon the following decisions of this Court : (i) Manivannan v. The Government of Tamil Nadu & Others, 2010—L.W.489 : "7.In terms of sub-Section (8), the Tahsildar shall read to the village panchayat the notice issued by the second respondent and the explanation if any submitted by the President and the proposal for the removal of the President for consideration for which the meeting has been convened." "9.The learned counsel for the petitioner would submit that when a statute prescribes a matter to be done in a particular manner, the same shall be done in the manner so prescribed. In support of the said submission, learned counsel placed reliance on the following decisions of the Supreme Court as well as this Court in 1984 (2) SCC 500 (A.R.Antulay Vs.Ramdas Srinivas Nayak and another), 1996 (9) SCC 495 (J.N.Ganatra Vs. Morvi Municipality, Morvi), 2003 (2) SCC 111 (Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd., and others) and 2007 (4) MLJ 584 (Vallivalam Desikar Polytechnic Educational Society, rep.by its Chairman, Nagapattinam Vs.District Registrar (Society Registration), https://hcservices.ecourts.gov.in/hcservices/ Nagapattinam and another)." "10.The proposition which emerges out of the above judgments is that if a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all and the State and other authorities while acting under the statute are only creature of statute. They must act within the four corners thereof." "11.Learned counsel for the petitioner would submit that in the instant case, there is no proposal from the second respondent and therefore, the entire proceedings are vitiated. This issue has been specifically raised in the affidavit filed in support of the writ petition in grounds c,d & e." "13......In fact, learned Government Advocate also went through the files and would submit that there is no specific order/proposal for such purpose." "17.In view of the above reasons, I hold that the order of the second respondent, removing the petitioner from the Office of the Presidentship of the Kulasekarapatty Village Panchayat are illegal and therefore, the same is set aside. The second respondent is directed to take into consideration the explanation submitted by the petitioner on 02.06.2008 to the show cause notice issued on 25.07.2007 and draw a proposal in accordance with law under Section 205 of the Act and along with such proposal forward the same to the third respondent for the purpose of convening a meeting in terms of sub-Section 3 of Section 205 of the Act and thereafter, proceed in accordance with the statute...." (ii) K.Ramalingam v. Secretary to Government, Department of Local Administration, 2011 (2) CTC 134 (DB) : "10.In the light of the above judgments of the Hon'ble Supreme Court of India, if the facts of the present case are analysed, then, we are of the opinion that the act of the President in incurring expenditures over and above the permissible limit would not attract the provisions of sub-section (1) of Section 205 of the Act. It is pertinent to note that in the resolution passed by the members of the Panchayat, it has been unanimously decided not to proceed against the president or to remove https://hcservices.ecourts.gov.in/hcservices/ him from the office of President. Though the second respondent had taken a different view than the one taken by the members of the Panchayat, yet, he had not recorded his reasons, for taking such a view and without giving reasons, he had removed the President from the office. The term of office of the president expires during October 2011. It is settled law that, before taking any penal action against the elected person, vested with such power, must exercise caution..." 6. Conversely, the learned Special Government Pleader appearing for the respondents would contend that only based on the misappropriation committed by the petitioner, the order of removal has been passed as contemplated under Section 205 of the Act after following the due procedure and, hence, the impugned order is perfectly justified. 7. I have heard the learned counsel for the parties and also gone through the records. 8. Petitioner is the elected President of Sengunram village in the election held in the year 2006. While she was functioning in the said post, a special audit was conducted by the Assistant Director (Audit) on 11.10.2008, during which some irregularities were found. Accordingly, a report was submitted by the Assistant Director to the Inspector of Panchayats, namely, District Collector, the second respondent herein. Based on the said report, on 04.11.2008, the second respondent issued a show cause notice to the petitioner under Section 205 of the Act, for the following irregularities : "1. She had issued cheques to her husband, ward member and private parties for Rs.5,48,028/- instead of issuing cheques to the concerned establishments. 2. She had spend independently a sum of Rs.97,335/- from the Panchayat fund without any Panchayat resolutions. 3. A sum of Rs.81,030/- was made as expenditure from Panchayat fund without any vouchers for the period of 2007-2008. 4. No stock entry or distribution details available for the materials purchased for Rs.14,680/- during 2007-2008. 5. A sum of Rs.3,500/- was made as expenditure for funeral rights expenditure without any documents. 6. No bills were produced to audit for the expenditure made in 14 vouchers for a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,54,120/-." 9. To the said show cause notice, the petitioner submitted her explanation on 14.11.2008. As the explanation given by the petitioner was not satisfactory, the second respondent directed the third respondent to conduct a special meeting of the Panchayat to get the views of the Village Panchayat. Accordingly, the third respondent conducted a special meeting on 27.01.2009 and got the views of the Village Panchayat. Of the total nine members of the Village Panchayat, two members remained absent and the remaining seven members supported the Panchayat President to continue in office. After getting the views of the Panchayat, the third respondent sent the minutes of the meeting to the second respondent for action. Thereafter, the second respondent considered the matter and rejected the views of the members, supporting the petitioner, pursuant to which, the petitioner was removed from the post by the second respondent, against which order the petitioner filed W.P.No.13257 of 2009 before this Court, wherein, on 27.09.2009, she was directed to prefer an appeal under Section 205 (12) of the Act. Accordingly, she filed the appeal before the first respondent on 09.11.2009, whereupon, the first respondent remanded the matter to the second respondent to follow the guidelines mentioned in the Full Bench Order of this Court in The District Collector and Inspector of District Panchayat v. Devi Parasuraman, reported in 2009 (4) CTC 609. Thereafter, another explanation was called for from the petitioner and the petitioner submitted the same, but the said explanation was not accepted and the petitioner was removed from the post by the second respondent vide the proceedings dated 21.06.2010. Against the said order, the petitioner preferred a revision before the first respondent, who, by his order vide G.O.Ms.No.134, dated 18.03.2011, confirmed the order of the second respondent, removing the petitioner from the post of President, which is under challenge in this Writ Petition. 10. The issue involved in this Writ Petition has to be dealt with in two angles viz., (i) Sub-section (8) of Section 205 of the Act and (ii) misappropriation of funds by the petitioner. 11. With regard to the first point, it is quite relevant to refer to Sub-section (8) of Section 205 of the Act, which reads as under : "205. Removal of President.- (8) As soon as the meeting convened under this section is commenced, the Tahsildar shall read to the Village Panchayat the notice of the Inspector and the explanation, if any, of the President and the proposal for the removal of the President, for the consideration of which it has been convened." https://hcservices.ecourts.gov.in/hcservices/ 12. The above provision makes it clear that the Tahsildar, after convening the meeting, shall read to the Village Panchayat, the notice of the Inspector and the explanation, if any, of the President and the proposal for the removal of the President. 13. In this regard, it is to be stated that originally, this Sub-section (8) did not provide for reading of the proposal for removal to the Village Panchayat. However, subsequent to the amendment of the said Sub-section vide Act 2 of 1999, reading of the proposal for removal of the President to the Village Panchayat at the meeting has been made mandatory. 14. In this case, though the Tahsildar read the notice of the Inspector of Panchayats and also the explanation of the petitioner to the Village Panchayat at the meeting, despite there being an agenda of proposal for removal of the petitioner from the post, which proposal is crucial for taking any decision, he obviously failed to read the said proposal to the Village Panchayat. Hence, the very object of the amended Act, namely, Act No.2 of 1999, has been defeated. 15. Adverting to the second aspect, it is alleged that the petitioner has misappropriated funds and not maintained accounts thereto. On this score, it is to be stated that there were no complaints of any kind against the petitioner, prior to the one in hand. In this context, it is apt to mention a holding of the Division Bench of this Court in the case of K.Ramalingam, cited above, wherein, it has been held that the act of the President in incurring expenditures over and above the permissible limit would not attract the provisions of sub-section (1) of Section 205 of the Act. 16. Analysing the legal position that after initiation of the proceedings under Section 205 of the Act for charges of misappropriation of funds, when the petitioner has explained that it is a regular way of incurring expenditure over and above the permissible limits and the same would not attract the provisions of the Sub-section (1) of Section 205 to initiate action for removal proceedings and that too on the verge of tenure of her office, before taking any penal action against the elected person i.e., the petitioner, the authorities, who are vested with such power, must exercise caution and proceed with the removal proceedings. Further, it is an underlined principle that the Tahsildar of the jurisdiction concerned, while dealing with the matter of taking the views of the Panchayat, after the amendment of the Act in the year 1999, must read the proposal for removal of the President of the Village Panchayat at the meeting and when such procedure is not followed by the authorities concerned, the method undertaken by the respondents for removal of the petitioner from the post of President is ultra vires of the mandatory provision under Sub-section (8) of Section 205. For this clear violation, this Court has no other option but to interfere https://hcservices.ecourts.gov.in/hcservices/ with the impugned proceedings of the respondents. 17. In view of my findings on points 1 and 2 as above, this Writ Petition is allowed and the order impugned of the first respondent vide G.O.Ms.(P.134), dated 18.03.2011, is set aside. No costs. Consequently, the connected M.P.No.1 of 2011 is closed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. dixit To 1.The Secretary to Government, Department of Rural Development and Panchayat Raj, Chennai. 2.The Inspector of Panchayats-cum- District Collector, Vellore District Collectorate, Sathuvachari, Vellore-9. 3.The Tahsildar, Gudiyatham, Vellore District. 1 cc To Mr.R.Margabandhu, Advocate Sr 58361 1 cc to The Govt. Pleader, SR 58404 W.P.No.15560 OF 2011 nm[co] gp/30.9. https://hcservices.ecourts.gov.in/hcservices/