BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/01/2011 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD).No.579 of 2010 and M.P.No.1 of 2010 C.Ashokkumar, Vice President, Mannor Village Panchayat, Palani Taluk, Dindigul District. ... Appellant Vs. 1.The District Collector/ Inspector of Panchayats, Dindigul. 2.The Assistant Director (Panchayats), Dindigul. 3.The Block Development Officer (Village Panchayat), Thoppampatty Panchayat Union, Dindigul. 4.The President/Executive Officer, Mannor Village Panchayat, Palani Taluk, Dindigul. ... Respondents PRAYER Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 24.08.2010 made in W.P.(MD).No.11475 of 2009 on the file of this Court. !For Appellant ... Mr.R.Venkateswaran ^For Respondents1 and 2 ... Mr.M.Rajarajan Government Advocate For Respondent 3 ... Mr.K.Balasubramanian Additional Government Pleader For Respondent 4 ... No Appearance :JUDGMENT
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[Judgment of the Court was delivered BY
N.PAUL VASANTHAKUMAR,J]
By consent, the main Writ Appeal is taken up for final disposal.
2. This Writ Appeal is directed against the order of the learned Single
Judge dated 24.08.2010 made in W.P.(MD).No.11475 of 2009.
3. The appellant filed W.P.(MD).No.11475 of 2009 challenging the order
passed by the first respondent dated 02.11.2009 dispensing with the cheque
signing power of the appellant as the Vice President of Manoor Village Panchayat
and for a consequential direction to the first respondent to restore his cheque
signing power.
4. The case of the appellant is that he is the Vice-President of Manoor
Village Panchayat. The first respondent, by order dated 18.06.2009, passed an
order divesting the power of cheque signing, which he is entitled to sign along
with President of the Village Panchayat under Section 188 of the Tamil Nadu
Panchayats Act, 1994 [hereinafter referred to as “the Act”]. The said order was
challenged by the appellant in W.P.(MD).No.5547 of 2009. This Court, by order
dated 16.09.2009, allowed the said Writ Petition by following a Judgment of a
Division Bench of this Court in the case of Pugazhendran, President, Brammapuram
Village Panchayat, Katpadi Panchayat Union, Katpadi Taluk, Vellore District vs.
B.G.Balu and others reported in 2005 (1) CTC 545 and held that the power vested
with the Vice – President of the Village Panchayat to act as a co-signatory to
the cheques to be signed for and on behalf of the Panchayat cannot be taken away
without affording an opportunity or without issuing a notice. As no notice
having been issued to the appellant before taking away the power of cheque
signing, the impugned order, which was the subject matter of challenge in
W.P.(MD).No.5547 of 2009, cannot be sustained, and accordingly, the said order
was set aside and the matter was remitted back to the first respondent with a
direction to issue fresh notice to the appellant clearly setting out the
allegations levelled against the appellant and the reasons as to why the first
respondent proposed to invoke power under Section 206 of the Act, and
thereafter, the appellant was directed to submit his objections and after
considering the objections, the first respondent was directed to pass
appropriate orders on merits and in accordance with law within a period of six
weeks from the date of receipt of a copy of the order.
5. After the disposal of the said Writ Petition, the appellant was issued
with a notice on 07.10.2009 calling upon him to appear for an enquiry without
mentioning any allegation, which the appellant has to face. The appellant filed
W.P.(MD).No.10370 of 2009 for issuing a Writ of Mandamus forbearing the second
respondent from conducting enquiry relating to the proceedings dated 07.10.2009
till the disposal of the proceedings dated 21.07.2009. However, on 14.10.2009,
the said Writ Petition was withdrawn and liberty was granted to the appellant to
file a fresh Writ Petition, if he is aggrieved by any order to be passed. The
appellant, without knowing the allegations levelled against him, submitted a
representation on 15.10.2009. The first respondent passed an order on 02.11.2009
again and divested the cheque signing power of the appellant. The said order was
challenged by the appellant in W.P.(MD).No.11475 of 2009. By order dated
24.08.2010, the said Writ Petition having been dismissed, the appellant
preferred the present Writ Appeal.
6. Heard the learned counsel appearing for the appellant, learned
Government Advocate appearing for respondents 1 and 2 and the learned Additional
Government Pleader appearing for the third respondent. The fourth respondent has
not chosen to appear, in spite of service of notice on 30.09.2010.
7. On perusal of the notice issued to the appellant, it is evident that no
allegation, which the appellant has to face, has been mentioned. It is an
elementary principle of law that a show cause notice issued to a person before
taking any action, must contain the allegations levelled against him in a
specific manner so that he will be in a position to controvert or deny the
allegation. Without making any imputation merely calling a person to appear for
an enquriy is in violation of the principles of natural justice. The earlier
order passed by the learned Single Judge Court dated 16.09.2009, which was
accepted by the first respondent, clearly states that the first respondent shall
issue a fresh notice to the appellant clearly setting out the allegations
levelled against him and the reason as to why the first respondent proposed to
invoke power under Section 206 of the Act, and thereafter, the appellant shall
be entitled to submit his objections and after considering the objections, the
first respondent shall pass appropriate orders on merits and in accordance with
law. The first respondent cannot ignore the said direction, which was issued in
compliance with the principles of natural justice. The notice dated 07.10.2009
was issued to the appellant subsequent to the order dated 16.09.2009 passed by
the learned Single Judge. Translated version of the said notice dated 07.10.2009
reads as follows:-
Na.Ka.No.4030/2009/A4 Assistant Director (Panchayats),
Dindigul, dated 07.10.2009.
Urgent Memo
Subject: Enquiry – Thoppampatti Panchayat Union – Manoor
Panchayat – notice issued to appear for enquiry
before the District Collector, as ordered by the
Madurai Bench of Madras High Court, Madurai, in
respect of cancellation of cheque signing power of
the Vice – President reg;
Ref:- (1) Madurai Bench of Madras High Court
W.P.(MD).No.5547/2009/19P(MD).No.2 of 2009.
(2). Proceedings of the District Collector, Dindigul dated
27.09.2009.
In the order passed by the Madurai Bench of Madras High Court, Madurai, in
Writ Petition, under reference first cited, against the withdrawal of the cheque
signing power of the Vice – President, Manoor Panchayat, the Madurai Bench of
Madras High Court has issued a direction to give an opportunity to the Vice –
President.
Accordingly, on 12.10.2009 at 04.00 PM, it is decided to conduct an
enquiry by the District Collector. Therefore, it is informed that steps shall be
taken for the participation of the President, Manoor Panchayat, Vice President,
Manoor Village Panchayat and Ward Councilors in the said meeting and inform the
outcome of the meeting.
Signed
Assistant Director (Panchayats)
Dindigul.
8. The idea behind the issuance of notice in any proceeding is to put on
notice as to what are imputations against the person concerned. The first
respondent, who is discharging a statutory power vested in him under Section 203
of the Act, is bound to act in a reasonable manner expected of from a statutory
power, especially while dealing with a right of an elected representative of a
local body. Issuing a notice need not be treated as a mere ritual or an empty
formality. By the impugned order, the first respondent has taken away a
statutory power conferred under Section 188(3) of the Act, which reads as
follows;-
“Subject to such general control as the village panchayat may exercise
from time to time, all cheques for payment from Village Panchayat Fund shall be
signed jointly by the President and Vice-President and in the absence of the
President or Vice-president, as the case may be, by the Vice-president or the
President and another member authorized by the Village Panchayat at a meeting in
this behalf.”
9. A Division Bench of this Court in the case of Pugazhendran, President,
Brammapuram Village Panchayat, Katpadi Panchayat Union, Katpadi Taluk, Vellore
District vs. B.G.Balu and others reported in 2005 (1) LW 506 : 2005 (1) CTC 545
considered the importance of issuing notice and held that before taking any
action against the Vice – President of Village Panchayat either under Section
203 or under Section 206 of the Act, person concerned should be given a notice,
as any adverse order passed either under Section 203 or under Section 206 of the
Act will have a civil consequence divesting the statutory powers.
10. The Supreme Court in the case of Asitkumar Kar v. State of West Bengal
& Ors reported in 2009 (1) Supreme 647 and in the case of Gurmej Singh v. State
of Punjab and another reported in 2009 (4) Supreme 808 considered similar issues
and held that no adverse orders shall be passed against a person without giving
an opportunity.
11. We are satisfied that in the said notice dated 07.10.2009, no
allegation is levelled against the appellant, and therefore, the consequential
order passed by the first respondent dated 02.11.2009 cannot be sustained, as
the said order is passed in violation of principles of natural justice.
12. Hence, the order of the learned Single Judge dated 24.08.2010 made in
W.P.(MD).No.11475 of 2009 is set aside and the impugned order passed by the
first respondent on 02.11.2009 is quashed and W.P.(MD).No.11475 of 2009 is
allowed and the matter is remitted back to the first respondent, who shall
proceed afresh strictly in accordance with the earlier order dated 16.09.2009
made in W.P.(MD).No.5547 of 2009 and pass fresh orders on merits and in
accordance with law within a period of three months from the date of receipt of
a copy of this order.
13. The Writ Appeal is allowed with the above direction. No costs.
Consequently, connected Miscellaneous Petition is closed.
NB
To
1.The District Collector/
Inspector of Panchayats,
Dindigul.
2.The Assistant Director (Panchayats),
Dindigul.
3.The Block Development Officer (Village Panchayat),
Thoppampatty Panchayat Union,
Dindigul.
4.The President/Executive Officer,
Mannor Village Panchayat,
Palani Taluk, Dindigul.