BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08/09/2009
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.6071 of 2009
and
M.P.(MD)No.1 of 2009
D.Devaraj ... Petitioner
Vs
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
Department of Rural Development,
Secretariat,
Chennai.
2.The Inspector of Panchayat &
The District Collector,
Sivagangai District,
Sivagangai.
3.The Tahsildhar,
Sivagangai Taluk,
Sivagangai District. ... Respondents
Writ Petition has been filed under Article 226 of the Constitution of
India praying for the issuance of a writ of Certiorarified Mandamus, to call for
the records relating to the order passed by the 2nd respondent in his
proceedings No.Na.Ka.A7/Vu.E(Vuu)/681/2007, dated 10.06.2009 and the
consequential notification No.VI(2)/314/2009, dated 11.06.2009 published in the
Tamil Nadu Government Gazette, dated 24.06.2009 and quash the same as illegal
and consequently, direct the 2nd respondent to restore the petitioner to his
office as President of Arasanoor Village Panchayat.
!For Petitioner ... Mr.M.Ramadhas
^For Respondents ... Mrs.R.Anitha
Additional Govt.Pleader
:ORDER
Heard both sides.
2.The petitioner was elected as President of Arasanoor village Panchayat
in Sivagangai Panchayat Union, Sivagangai District. The election was held in the
year 2006. In respect of certain irregularities alleged to have been committed
by the petitioner, the 2nd respondent, by his proceedings, dated 08.02.2008
under Section 205(1) of the Tamil Nadu Panchayat Act,1994 framing the following
charges:
i.The Government has allotted Rs.2.30 lacs for laying Sembur Colony Cement
road and that money ought to have been disbursed after calling for tenders and
the completion of work or after assignment of the work down. But the
petitioner without following that procedure and contravening the guidelines of
the Government and without getting prior permission from the technical experts,
sanctioned Rs.2.75 lacs as advance even before the completion of the work. Thus,
he has paid in excess a sum of Rs.71,568/- caused loss of that amount.
ii.For the year 2005-2006, Rs.1,03,700/- was allotted for two projects and
the petitioner spent Rs.41,036/- for other purposes by contravening the
guidelines of the 12th Financial Commission contrary to the guidelines
prescribed by the 12th Finance Commission and thus caused loss of Rs.41036/- .
iii.The petitioner spent a sum of Rs.1,15,088/- without getting prior
permission from the Panchayat or without getting any tender or preparation of
bill and without any Panchayat resolution and thus has misappropriated the said
amount.
iv.As per the Tamil Nadu Panchayat Act, for any expenses exceeding
Rs.500/- the payment can be made after getting necessary prize list and estimate
and the amount shall be only paid by cheque. But in respect of three items, he
spent a sum of Rs.47,350/- without getting permission from the technical expert
or estimate and thus caused Rs.47,350/- to the Panchayat.
v.The petitioner has failed to follow the procedures and acted for his
personal benefit.
3.The petitioner submitted his reply, which was received by the 2nd
respondent on 03.03.2008 and in that reply, he has given his explanation for
various charges. In respect of charge No.1, he has stated that the work was
entrusted to the contractor, Mr.C.Palanisamy after calling for tenders and after
measurements were taken on the completion of the work a sum of Rs.2,29,432/- was
paid to the contractor. In respect of charge No.2 he has stated that a sum of
Rs.1,03,700/- was spent as per the guidelines of the 12th Finance Commission.
In respect of charge No.3, he has stated that after getting price list and after
getting permission from the Panchayat, expenses were incurred and in respect of
charge No.4, he has also stated that only after getting the Panchayat permission
and after getting the price list, expenses were incurred and on certain
occasions having regard to the emergency nature of expenses, he incurred
expenses and latter got ratification from the Panchayat and therefore, he has
stated in his reply that he has not acted contrary to the provisions of the
Panchayat Act or he has not committed anything illegal and due to his
inexperience some defects might have been committed by him in the procedural
matters and he assured that he will not do the same in future.
4.The 2nd respondent after the receipt of the explanation given by the
petitioner directed the Block Development Officer, Sivagangai Panchayat to
conduct enquiry and the Block Development Officer, by his report, dated
05.03.2008 recommended the 2nd respondent to accept the explanation given by the
petitioner and relieve him from all the charges. The recommendation of the
Block Development Officer was mainly based on the submission of the petitioner
in his explanation that due to inexperience and lack of proper education and
knowledge some defects had occurred and on that ground, according to the opinion
of the Block Development Officer, the petitioner be relieved from all the
charges.
5.The 2nd respondent not being satisfied with the explanation given by the
petitioner, directed the Tasildhar, to convene a meeting of the Panchayat as per
Section 205(2) of the Tamil Nadu Panahayct At and as provided under that
section, the Tasildhar, Sivagangai, convened the meeting of the members of
Arasanoor Village Panchayat on 26.06.2008 at 11.00 A.M. On that day, out of nine
members, 7 members were present excluding the petitioner and the Tasildhar
explained to the members present about the charges levelled against the
petitioner and the reply given by the petitioner, sought the opinion of the
members, whether the petitioner can be removed from the post of President. Out
of seven members 4 members viz.,V.G.Ramachandran, R.Amutha, M.Karuppiah and
K.Banumathi recommended the removal of the President and three members viz.,
K.Jayabalan, K.Meenakshi and M.Dinakar recommended that the petitioner can be
allowed to continue in the post of President. The 2nd respondent after going
through the report of the Tasildhar passed the impugned order, dated 10.06.2009
removing the petitioner from the post of President in the Arasanoor Panchayat
Union and the same was published in the Tamil Nadu Gazette, dated 24.06.2009.
The petitioner challenged the proceedings of the 2nd respondent in removing him
from the post of President and also consequently, the Government Notification,
dated 26.06.2009.
6.At the time of admission, Mrs.R.Anitha, the learned Additional
Government Pleader, took notice for the respondents and submitted that the writ
petition is not maintainable as the petitioner has got alternative remedy by
filing the revision under 219 of Tamil Nadu Pachayat Act and it has also been
held before the Divisional Bench of this Honourable Court in W.A.(MD)No.98 of
2006 dated 13.03.2006 in the matter of Sivaperumal vs.1.The Government of Tamil
Nadu rep. by Secretary to Government,Rural Development Department, Chennai, 2.
The District Collector-cum-Inspector of Panchayats, Tirunelveli District,
Tirunelveli, 3.The Tahsildar, Tirunelveli Taluk, Tirunelveli District. She
further submitted that the Collector has acted in accordance with the provisions
of the Act and after being satisfied about the illegalities and mis-
appropriation committed by the petitioner, he came to the conclusion that the
charges levelled against the petitioner were proved and thereafter, directed the
Tasildhar to convene the meeting of the Panchayat to ascertain the views of the
members of the panchayat and therefore, has taken proper decision and the order
of the 2nd respondent cannot be questioned and proper reasons have been stated
by the respondents for arriving at the conclusion.
7.The learned counsel appearing for the petitioner, Mr.Ramadhas vehemently
contended that the Block Development Officer, who conducted the initial enquiry
has recommended to the Collector, the 2nd respondent herein, to withdraw the
charges and therefore, the 2nd respondent/Collector ought to not have proceeded
further and accepted the recommendation of the Block Development Officer and
dropped the further proceedings against the petitioner. He further submitted
that in the meeting of the Panchayat members convened by the Tasildhar, out of
seven members, four members supported him and only 3 members recommended for his
removal. But in the impugned order, it is stated that 6 members recommended for
his removal and only one person opposed for the removal of the petitioner from
the post of President and therefore, the action of the 2nd respondent is not
legally correct. As the learned counsel appearing for the petitioner disputed
the recommendation of the members in the meeting held by the Tasildhar called
for the entire file and the same was produced by the learned Additional
Government Pleader and I perused the same. It is seen from the minutes of the
Panchayat members meeting held on 26.06.2008 , seven members were present and
the petitioner was also present and out of the members K.Jayabalan, K.Meenakshi
and M.Dinakaran recommended the retention of the petitioner as President and the
members R.Amutha, VG.Ramachandran, M.Karuppaih and K.Banumathi voted for the
removal of the petitioner from the post of President. Therefore, out of seven
members, 4 members cast their votes for the removal of the petitioner and 3
members against that. The majority of the members present in the meeting voted
against the petitioner and recommended his removal. Therefore, the contention
of the learned counsel appearing for the petitioner that 4 members supported him
is not correct.
8. Further it is seen from the records that the second respondent has
given finding in respect of different charges and found that the charges are
proved and passed the final order. This is evident from the report of the 2nd
respondent, dated 04.06.2009. Thereafter, the impugned order was passed by the
2nd respondent removing the petitioner from the post of President. Therefore, a
perusal of the records would reveal that after giving an opportunity to the
petitioner and after following the procedures contemplated under Section 205 of
the Tamil Nadu Panchayat Act, 1994 the impugned order was passed by the 2nd
respondent.
9.The learned counsel appearing for the petitioner, Mr.Ramadhas submitted
that as per the judgment reported in 2006(3) MLJ 537 in the case of J.Maria
Selvam vs. Government of Tamil Nadu, represented by Secretary, Department of
Local Administration and Rural Development and Another that there is no
alternative remedy available to the petitioner and the remedy provided under the
Act is not an effective appeal remedy and therefore, it cannot be contended that
the appeal filed against the order of the 2nd respondent. In that case reported
in 2006(3) MLJ 537, the learned judge has allowed the writ petition and set
aside the order of the Inspector of Panchayat on the ground that out the total
13 members, 11 members have given their views in favour of the President and
that was not properly appreciated by the Inspector of Panchayat and the
Inspector of Panchayat even did not discuss about the decision taken by the
Panchayat members in his order and the Inspector of Panchayat has relied upon
the report of the Block Development Officer, which was obtained behind the back
of the petitioner therein and in that order, the Inspector of Panchayat did not
refer to the explanation given by the petitioner and on that grounds set aside
the order of removal. But in this case, the Block Development Officer has
recommended the dropping of charges against petitioner not on valid
consideration, but on the basis of the assurance given by the petitioner that
due to his inexperience and lack of proper education that some defects had taken
place and he would rectify them in future.
10.Therefore, the 2nd respondent has rightly rejected the views of the
Block Development Officer. Further as per the judgment cited by the petitioner,
the request of the Block Development Officer need not be considered as per the
provision of Section 205 of the Act. Further, in this case, the 2nd respondent
has given reason for holding that charges were proved and also referred to the
report submitted by the Tasildhar, Sivagangai and after considering all those
materials found that the petitioner has mis-appropriated a sum of of
Rs.2,02,142/- and taken final decision removing the petitioner from the post of
President as the petitioner has acted against the provisions under Section 46(E)
of the Tamil Nadu Panchayat Act and in the interest of Panchayat administration
and public interest the decision to remove the petitioner from the post of
President of Arasanoor Panchayat union was taken. Therefore the decision
reported in 2006(3) MLJ 537 cannot support the case of the petitioner and the
facts of that case is entirely different.
11.The learned counsel appearing for the petitioner Mr.Ramadhas submitted
another judgment of this Court reported in 2009 Writ L.R.538 in the case of
S.Udayakumar vs. The District Collector-cum-Inspector of Panchayats, Tuticorin
District, Tuticorin and 3 others and in that case also this court has set aside
the order of the Inspector of Panchayat on the ground that the Inspector of
Panchayat does not consider the opinion expressed by the members of the
panchayat and he has not stated for the reason of disagreeing with their
opinions and no opportunity was given to the petitioner therein and initiation
any proceedings.
12.As stated supra, the facts of those cases are different and in this
case sufficient opportunity was given to the petitioner to reply to the show
cause notice and the meeting of the Panchayat members was also convened and
taken into consideration of the views of the Panchayat Union members and on the
basis of the explanation given by the petitioner, the 2nd respondent has taken
the decision.
13.It is seen from the judgment of the Division Bench of this court in
W.A.98 of 2006 in the case of Sivaperumal vs. The Government of Tamilnadu re. by
Secretary to Government ,Rural Development, Chennai and 2 others, after quoting
the various provisions under Section 205 of the Panchayat Act, the Honourable
Division Bench has held that against the order of the removal of the President
passed by the Inspector of Panchayat exercising his power under Section 205(11)
of the Act, aggrieved party can invoke Section 219 of the Act and granted
permission to the appellate court under Section 219 of the Act.
14.In this case, the petitioner has challenged the order of the 2nd
respondent on the ground that the 2nd respondent has not given opportunity to
the petitioner, while passing the order of removal and the Tasildhar only
obtained the views of the Panchayat under Section 205(8) of the Act and there is
violation of 205(3) 8 and 9 of the Tamil Nadu Panchayat Act.
15.It is seen from the provision of the 205(3) of the Tamil Nadu Panchayat
Act that the Tasildhar should convene a meeting for the consideration of the
notice and the explanation, if any and the proposal for the removal of the
President from the office of the village Panchayat at a time appointed by the
Tasildhar and the said notice shall be served on the President and to all the
members of the village panchayat as per the 205(4) of the Act and as
contemplated under Section 205(5) of the Act the Tasildhar shall preside at the
meeting and the Tasildhar should not allow any debate in that meeting and he
must place the notice of the Inspector and explanation of the President and the
proposal for the removal of the President for the consideration of the members
under Section 205(8) and 8A of the Act.
16.It is seen from the file submitted by the Additional Government Pleader
that the Tasildhar has acted in accordance with the provision of the Act and it
is also not disputed by the petitioner in the affidavit that the Tasildhar has
not acted in accordance with 205(3)(2) and 8(A) of the Act.
17.Therefore, from the proceedings of the Tasildhar, I am of the view that
the Tasildhar has acted in accordance with the provision of the Act and the
second respondent also passed the impugned order after taking into consideration
of the various provisions of the Act and on the basis of the explanation given
by the petitioner and the report of the Tasildhar came to the conclusion that
the petitioner has committed irregularities as stated in the charge memo and
also stated the reason in the impugned order and passed the impugned order
removing the petitioner from the post of President.
18.As the 2nd respondent has passed the order after giving opportunity and
recording the reason for the decision, this court sitting under Article 226 of
the Constitution of India cannot go into veracity of the reasons given by the
2nd respondent and the scope of judicial review is also limited only to find out
whether the process of decision making has been done properly or not.
19. The Honourable Supreme Court in the judgment reported in 2007(1)MLJ
306(SC) in the case of Jayrajbhal Jayantibhai Patel vs. Anilbhai Jayantibhai
Paten and others, has held in para 18 as follows: ” it is manifest that the
power of judicial review may not be exercised unless the administrative decision
is illogical or suffers from procedural impropriety or it shocks the conscience
of the court in the sense that it is in defiance of logic or moral standards,
but no standardised formula, universally applicable to all cases, can be
evolved. Each case has to be considered on its own facts, depending upon the
Authority that exercises the power, the source, the nature or scope of power and
the indelible effects it generates in the operation of law or affects the
individual or society. Though judicial restrain, albeit self-recognised, is the
order of the day, yet an administrative decision or action which is based on
wholly irrelevant considerations or material; or excludes from consideration the
relevant material; or it is so absurd that no reasonable person could have
arrived at it on the given material, may be struck down. In other words, when a
court is satisfied that there is an abuse or misuse of power, and its
jurisdiction is invoked, it is incumbent on the court to intervene. It is
nevertheless trite that the scope of judicial review is limited to the
deficiency in the decision-making process and not the decision.
20.It is further held in para 27 that ” there is substance in the
submission of the learned counsel. In Tata Cellular v. Union of India AIR 1996
SC 11; (1994)6 SCC 651:JT 1994 (4) SC 532, this court has observed that the
judicial restrain has two contemporary manifestations, namely, one, the ambit of
judicial intervention and the other, the scope of the court’s ability to quash
an administrative decision on its merits. Judicial review is not concerned with
reviewing the merits of the decision in support of which the application for
judicial review is made, but the decision-making process itself. Unless that
restriction on the power of the court is observed, the court will, as opined in
Chief Constable of the North Wales Police v, Evans (1982)3 All ER 141 at 154,
“under the guise of preventing the abuse of power, be itself guilty of usurping
power”, which is the case here.
21.The principles of “Wednesbury unreasonableness” or irrationality,
classified by LORD DIPLOCK as one of the grounds for intervention in judicial
review, was lucidly summarised by LORD GREENE M.R. in Associated Provincial
Picture Houses Ltd. vs. Wednesbury Corporation (1948)1 KB 223: (1947)2 All ER
680 as follows: “… the court is entitled to investigate the action of the
local Authority with a view of seeing whether it has taken into account matters
which it ought not to take into account, or conversely, has refused to take into
account or neglected to take into account matters which it ought to take into
account. Once that question is answered in favour of the local Authority, it may
still be possible to say that the local Authority, nevertheless, have come to an
conclusion so unreasonable that no reasonable Authority could ever have come to
it. In such a case again, I think the court can interfere”.
22.In this case, the 2nd respondent has followed all the procedures as
contemplated under the Act and took into account, the relevant details as
contemplated under the Act and hence, the decision of the 2nd respondent does
not call for any interference in the writ petition.
23.In fine, the writ petition is dismissed. However,the petitioner is at
liberty to approach the competent authority under 291 of the Act within a period
of one month from the date of receipt of a copy of this order. Consequently,
connected Miscellaneous Petition is also dismissed. No costs.
er
To,
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
Department of Rural Development,
Secretariat,
Chennai.
2.The Inspector of Panchayat &
The District Collector,
Sivagangai District,
Sivagangai.
3.The Tahsildhar,
Sivagangai Taluk,
Sivagangai District.
4.The Additional Government Pleader,
Madurai Bench of Madras High Court,
Madurai.