BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 08/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition(MD) No.7683 of 2009 and M.P.Nos.1, 2 and 3 of 2009 Mathina Maharibha .. Petitioner. Versus 1. The District Collector cum Inspector of Panchayats, Madurai District, Madurai. 2.The Block Development Officer (Village Panchayats), Madurai East Panchayat Union, Madurai District. .. Respondents. Prayer Petition filed seeking for a writ of Certiorarified Mandamus, calling for the records of the impugned order passed by the 1st respondent vide his procedings in Na.Ka.No.2724/2009/A4, dated 21.7.2009, and the consequential order passed by the 2nd respondent in Na.Ka.No.2130/2009/Thi.3, dated 23.7.2009 and quash the same and consequently, direct the respondents to handover the entire account books and cheque book to the petitioner. !For Petitioner ... Mr.K.Mahendran ^For Respondents... Mr.S.C.Herold Singh (R1) Government Advocate Mr.M.Saravana Kumar (R2) :ORDER
Heard the learned counsel appearing for the petitioner and the learned
counsels appearing for the respondents.
2. The petitioner has stated that she had been elected as the Vice
President of Mathur Village Panchayat, during the year, 2006. She has been
carrying on the functions, as the Vice President of the said Panchayat, from the
year 2006. One Thanga Pandian, who is a permanent panchayat clerk in Mathur
Village Panchayat and who has been in service for more than 16 years, has been
guiding the petitioner in carrying on her duties. While so, the Government of
India had introduced the “National Rural Employment Guarantee Act“, through
which the “National Rural Employment Guarantee Scheme” had been formulated.
3. The petitioner had also stated that Mathur Village Panchayat had been
selected for the implementation of the National Rural Employment Guarantee
Scheme, during the financial year, 2008-2009 and funds had been allotted for the
implementation of various development works in the village panchayat. Since the
petitioner was not fully conversant with the rules and regulations applicable to
the functioning of the village panchayat and due to the fact that the petitioner
being a muslim lady, various functions and works had been entrusted to the
panchayat clerk, Thangapandian, during the month of March, 2009. Accordingly,
various works were being allotted to the panchayat clerk, by the second
respondent. The cheques for the works carried out were being signed by the
petitioner and the president of the village panchayat, namely, Elango. The
petitioner, as well as the President of the village panchayat, were under the
belief that the release orders produced by him were genuine. Without suspecting
any malpractice, the petitioner and the President of the village panchayat had
been signing the cheques for the works alleged to have been carried out. There
were no complaints, whatsoever, either from the beneficiaries or from the
general public. Therefore, the petitioner was under the impression that the
functions and the works, carried on by the panchayat clerk, were in order.
4. While so, the Deputy Block Development Officer (Village Panchayat),
Madurai East Panchayat Union, had conducted an inspection, on 15.4.2009, in
Mathur Village Panchayat. At the time of the inspection, the petitioner, as well
as the panchayat clerk, Thangapandian, were present and they had fully co-
operated with the Deputy Block Development Officer concerned, to conduct his
inspection. During the inspection, the Deputy Block Development Officer had
found out certain irregularities in the release orders issued on behalf of the
village panchayat and in the consequential payment of funds, through the cheques
signed by the petitioner. It had been found that Thangapandian had prepared
bogus release orders said to have been given by the second respondent. He had
also been maintaining a bogus bank account.
5. The petitioner had stated that Thangapandian, apprehending that a
complaint would be lodged against him, by the petitioner, had remitted a sum of
Rs.2,50,701/-, on 17.3.2009, and remitted a sum of Rs.36,768/-, on 18.3.2009,
amounting to a total sum of Rs.2,87,469/-. Thereafter, Thangapandian, had been
suspended, on 5.6.2009, and a complaint had been preferred before the police, on
19.6.2009. Since the amount mentioned in the complaint was more than Rs.50,000/-
, the Sub Inspector of Police concerned had returned the complaint stating that
it should be given to the District Crime Branch. Therefore, a complaint had been
submitted to the second respondent. Thus, it could be clearly seen that there
was no intention on behalf of the petitioner to misappropriate the funds of the
National Rural Employment Guarantee Scheme.
6. It had also been stated that the Deputy Block Development Officer
concerned, after verifying the relevant records, had submitted a report to the
second respondent stating that the panchayat clerk, namely, Thangapandian, was
the only person responsible for the misappropriation of the funds. A criminal
complaint had also been lodged against Thangapandian, on the file of the
District Crime Branch. Since the Inspector of Police concerned, who had arrested
and remanded Thangapandian, after registering a case, had included the name of
the petitioner. Therefore, she had obtained an anticipatory bail from the
District Sessions Court, Madurai.
7. While so, the second respondent had sent letters, in Letter
Nos.12/2009/Thi.6, dated 19.6.2009, 2.7.2009 and 16.7.2009, to the first
respondent, stating that the petitioner had colluded with the panchayat clerk
and had misappropriated the funds of the National Rural Employment Guarantee
Scheme. Based on the said letters the first respondent, by his proceedings, in
Na.Ka.No.2724/2009/A4, dated 21.7.2009, had directed the second respondent to
stop the cheque issuing powers of the petitioner. The second respondent had also
issued the proceedings, in Na.Ka.No.2130/2009/Thi., dated 23.7.2009, directing
the writ petitioner to handover all the records, including the account books and
the cheques relating to the said village panchayat. Pursuant to the said
proceedings issued by the second respondent all the relevant records had been
handed over to the second respondent. In such circumstances, the petitioner has
preferred the above writ petition, under Article 226 of the Constitution of
India.
8. The learned counsel, Mr.Mahendran, appearing on behalf of the
petitioner had submitted that the impugned orders passed by the respondents are
arbitrary, illegal and void. The said orders have been passed by the
respondents, without affording a reasonable opportunity to the petitioners.
Further, the orders passed by the respondents are contrary to the dictum laid
down by this Court in the cases, reported in S.Udayakumar V. Dist. Collector-
cum-Inspector of Panchayats (2009(5) MLJ 537), Pugazhendran, President,
Brammapuram Village Panchayat, Katpadi Panchayat Union, Katpadi Taluk, Vellore
District Vs. B.G.Balu and others (2005(1) CTC 545) K.Valarmathi Vs. The District
Collector, Coimbatore District and others (2006(2) L.W. 19).
9. The learned counsel for the petitioner had also submitted that the
respondents had failed to comply with Rule 3 of the Tamil Nadu Panchayats
(Control of Emergency Powers of Collector or Inspector) Rules, 2001. He had
further submitted that the respondents ought not to have invoked Section 203 of
the Tamil Nadu Panchayats Act, 1994, as it should have been made use of only
under extraordinary circumstances. The impugned orders have been passed contrary
to Articles 14 and 21 of the Constitution of India and in violation of the
principles of natural justice.
10. In the counter affidavit filed on behalf of the respondents it has
been stated that the petitioner, had been elected as the Vice President of
Mathur Village Panchayat, during the year, 2006. Having assumed charge of the
post of Vice President of the Village panchayat, she should have known the rules
and regulations and the procedures which govern the panchayat adminsitration.
She cannot plead ignorance of such rules and regulations and procedures, by
which she is bound in her functions, which are highly responsible in nature.
Depending on the panchayat clerk and entrusting the entire functions and the
works in his hands amounted to dereliction of her duties, for which she could be
held liable.
11. As per the National Rural Employment Guarantee Scheme the second
respondent had issued the release orders. However, the petitioner had verified
and signed the nominal muster roll and had checked the release order at the time
of the issuing of the cheques. However, the petitioner had concealed the said
facts, for reasons best known to her. It had been found that only the excess
amounts had been drawn through cheques, besides the amounts due to the
beneficiaries, by committing forgery. Therefore, there has been no complaint
from the beneficiaries. No action had been taken against the errant clerk,
except suspending him from service, on 5.6.2009. Later, a complaint had been
lodged before the District Crime Branch since the amount involved is in excess
of Rs.50,000/-. In fact, the inspection had been conducted, on 15.4.2009, in
Mathur Village Panchayat, only by the Deputy Block Development Officer (National
Rural Employment Guarantee Scheme), Madurai East Panchayat Union and not by the
Deputy Block Development Officer (Village Panchayat), as alleged by the
petitioner. In the report submitted by the Deputy Block Development Officer
(National Rural Employment Guarantee Scheme) to the second respondent it has
been stated that forged released orders had been prepared by the Panchayat
clerk, with the help of the petitioner. Thus, an amount of Rs.2,86,131/- had
been misappropriated.
12. It has been further stated that the petitioner had been given
sufficient opportunity to submit her explanation. A show cause notice had been
issued to her, as well as to the Panchayat Clerk, Thangapandian, by the Block
Development Officer (Village Panchayat) Madurai East, in his letters
Rc.No.180/09/T6, dated 15.4.2009, 21.5.2009 and 29.5.2009. No reply had been
received from the petitioner, as well as the panchayat clerk, till date. The
order passed by the first respondent and the consequential order passed by the
second respondent, are well within the rules and the provisions of the Tamil
Nadu Panchayats Act, 1994.
13. The petitioner cannot claim that principles of natural justice had
been violated, since she had been given sufficient opportunity to putforth her
case. However, she had not attended the enquiry, nor had she submitted a reply.
As such the impugned order had been passed only in accordance with Section 203
of the Tamil Nadu Panchayats Act, 1994, after affording sufficient opportunity
to the petitioner. However, neither the petitioner, nor the panchayat clerk,
Thangapandian, had availed the opportunities given to them, to defend
themselves.
14. It has been further stated that a Vice President of a Village
Panchayat is appointed, as its Executive Officer, as per G.O.(Per) No.225
R.D.(E1) Department, dated 15.10.1996. Thereby, the petitioner is responsible
for the financial transactions of the village panchayat. Since the petitioner
had misappropriated more than a sum of rupees Rs.2,50,000/-, the respondents
had to invoke Section 203 of the Tamil Nadu Panchayats Act, 1994. It has also
been stated that the second respondent has the responsibility of inspecting the
panchayat in the capacity of a Block Development Officer, as also that of a
Deputy Block Development Officer, as per G.O.(Per) No.238 R.D (E5) Department,
dated 25.7.1997, and G.O.(Per) No.264 R.D. Department, dated 21.12.1999.
Further, the provisions of the Tamil Nadu Panchayats Act, 1994, provides the
role to the Block Development Officer (Village Panchayat) to perform the
statutory functions, instead of the elected office bearers of the village
panchayats, when they fail to perform their assigned duties, in the right
manner, in accordance with law. Sections 200 and 201 of the Tamil Nadu
Panchayats Act, 1994, stipulates that necessary records may be inspected, during
inspection and to take charge of the records from the elected representatives.
15. It has also been stated that the Assistant Director (Audit) had been
appointed as the Enquiry Officer to enquire into the alleged misappropriation of
funds by the petitioner. He had sent a show cause notice, on 14.7.2009, asking
them to attend the enquiry scheduled to be held, on 20.7.2009. However, the
petitioner has not appeared before the enquiry officer on the said date.
Thereafter, the Assistant Director (Audit) had gone to the panchayat office, on
21.7.2009, and he had made an inspection of the concerned records, in the
presence of the petitioner. Thereafter, he had submitted a report, on 21.7.2009,
stating that Panchayat Funds had been misappropriated, to the tune of
Rs.2,86,131/- and he has requested the District Collector to take appropriate
action against the petitioner and against the Panchayat Clerk concerned. Based
on the report of the Assistant Director (Audit) charges had been framed against
her and a show cause notice had been issued by the District Collector, the first
respondent herein, asking the petitioner to show cause as to why action should
not be taken against her, under Section 205(1) of the Tamil Nadu Panchayats Act,
1994, in his proceedings, in Na.Ka.No.2724/09/A4, dated 25.7.2009. The said
procedure is in accordance with the provisions of the Act and therefore, the
writ petition filed by the petitioner is devoid of merits and therefore, is is
liable to be dismissed.
16. The learned counsel for the petitioner had relied on the following
decisions in support of his contentions:
1) In S.Udayakumar V. District Collector-cum-Inspector of Panchayats
(2009(5) MLJ 537), it has been held as follows:
“The power given to the Collector or Inspector was an emergency power to
do certain acts in the interest of the panchayat. It was not an ordinary power
to interfere in the affairs of the village panchayat. In case the village
Panchayat President or Executive Authority makes default in performing nay of
the duties imposed by or under the provisions of the Act,t he Inspector was
given powers under Section 204 of the Act to take appropriate action. The
Collector or Inspector was not obliged to use the emergency powers as a routine
measure. There was nothing mentioned in Section 203 of the Act which authorises
the Collector to divest the President of his cheque signing powers during the
pendency of a proceeding under Section 205 of the Act. The President would be
divested of his powers only in th event of an order passed under Section 205(11)
of the Act. Unless and until a notification was issued under Section 205(11) of
the Act, the President has tobe permitted to exercise his powers as a President
of the panchayat. The charge against the petitioner was not something related to
his failure to sign the cheque along with the Vice President. The charges were
acts of misappropriation warranting action under Section 205 of the Act. By way
of the impugned proceeding, the Collector, in exercise of the powers under
Section 203 of the ACt, has divested the petitioner of his power to sign the
cheque along with the Vice President. Not even a notice was issued to the
petitioner before issuing such proceedings. It was only as a consequential
proceedings initiated under Section 205 of the Act, the Collector has issued the
impugned proceedings divesting the petitioner of his power to sign the cheque.
In any case, before divesting the petitioner of his power to sign the cheque,
reasonable opportunity should have been given to him. It is not as if the momen
action under Section 205 of the Act was taken against the President, he should
be divested of the power to sign cheques. Section 203 of the Act is not intended
for suchpurposes. It was only to tide over an emergency situation, power is
given to the Collector under Section 203 of the Act. The said power cannot be
used in an ordinary situation. In any case, there was a clear violatin of
principles of natural justice also, as the petitioner was not given notice
before divesting him of the power to sign the cheques.”
2) In W.P.No.4310 of 2009 (Kasi Rajan Vs. The District Collector and
others), this Court, by its order, dated 16.9.2009, by relying on the various
decisions of the Courts of law had held as follows:
“In view of the decisions referred to above, the law on the subject is
well settled that such power vested with the ward member 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 and
without issuing a notice. Admittedly, in the instant case, no notice has been
issued to the petitioner before the impugned was passed. Therefore, on this sole
ground alone, the petitioner has to succeed and accordingly, the writ petition
is allowed and the impugned order is set aside. The matter is remitted back to
the first respondent to issue a fresh notice to the petitioner clearly setting
out the allegations against the petitioner and the reason why the first
respondent proposes to invoke power under Section 206 of the Act and thereafter,
the petitioner shall be entitled to submit his objections and the first
repondent after considering his objections shall pass appropriate orders, on
merits and in accordance with law. The entire exercise shall be completed within
a period of three weeks from the date of receipt of a copy of this order.”
17. In view of the submissions made by the learned counsel appearing on
behalf of the petitioner, as well as the learned counsels appearing on behalf of
the respondents and on a perusal of the records available, this Court is of the
considered view that the petitioner has not shown sufficient cause or reason to
grant the reliefs, as prayed for by her. Even though various grounds had been
raised by the petitioner, in challenging the impugned orders passed by the
respondents, the main ground raised by the learned counsel for the petitioner is
that the petitioner had been divested of her power to sign the cheques on behalf
of Mathur Village Panchayat, without being given an opportunity of hearing.
18. While perusing the records placed before this Court, on behalf of the
respondents and in view of the averments made in the counter affidavit filed in
the above writ petition, it is clear that the petitioner had been given
sufficient opportunity to put forth her case, in respect of the charges levelled
against her. Even though notices had been sent to her, on 15.4.2009, 21.5.2009
and 29.5.2009, by the second respondent, which she had also received, asking her
to submit her explanation and to appear in person, along with the relevant
records, she has not chosen, either to submit her explanation or to appear in
person, along with the relevant records, as required by the second respondent.
Hence, the petitioner cannot claim that she has not been given suficient
opportunity to put forth her case, before the impugned orders had been passed.
19. Further, it would not be open to the petitioner to take shelter under
the guise of ignorance of the rules and regulations and the other statutory
provisions applicable to the functioning of the village panchayat. By merely
saying that due to her ignorance in carrying on her functions and the works
assigned to her, he had delegated his responsibilities to Thangapandian, who is
a clerk in Mathur Village Panchayat, would not be of any help to the petitioner
in defending herself against the allegations of misappropriation of funds
allotted to the National Rural Employment Guarantee Scheme. Even if certain
actions had been initiated against Thangapandian by suspending him from service
and by registering a complaint against him, such actions, by themselves, would
not be sufficient proof of the innocence of the petitioner.
20. Handling of public funds casts a heavy responsibility on the
petitioner. Dereliction of her duties, in handling such responsibilities, would
be a serious lapse. As such she would be fully responsible for the loss of
funds, even if it may not, in the ultimate analysis amount to misappropriation
of funds. However, in the present case, certain serious charges had been
levelled against the petitioner, including the misappropriation of government
funds allotted to the National Rural Employment Guarantee Scheme, by forging of
records and by issuing cheques based on bogus release orders.
21. No doubt the truth, in repsect of the allegations levelled against the
petitioner, has to be ascertained by an impartial enquiry by the officers
concerned, as provided under the provisions of the Tamil Nadu Panchayats Act,
1994, and the rules framed thereunder, till such time the enquiry, in respect of
the charges levelled against her, is not completed she would not be entitled to
have the cheque signing power, as it would be improper and inappropriate in the
given circumstances of the case. It is for the authorities concerned to
investigate into the matter and to come to a fair conclusion, with regard to the
alleged misappropriation of funds.
22. The decisions cited by the learned counsel for the petitioner in
support of his contentions cannot come to the aid of the petitioner, since the
said decisions, cited supra, had been made in the facts and circumstances of
those cases, especially, when the petitioner had been deprived of the cheque
signing power, without the issuing of a notice to him, by the respondents and
without being given a reasonable opportunity of hearing.
23. However, in the present case it is seen from the records available
that notices had been issued to the petitioner asking her to show cause as to
why necessary action should not be initiated, based on the allegations levelled
against her. She had also been asked to appear in person, along with the
relevant records. Even after the receipt of the said notices, the petitioner had
chosen not to appear in person before the respondents, for the necessary
enquiry. Further, no explanation had been submitted by her, to substantiate her
claim that she is innocent.
24. Further, the contention raised on behalf of the petitioner that the
first respondent, District Collector, cannot invoke the extraordinary power
vested in him, under Section 203 of the Tamil Nadu Panchayats Act, 1994, cannot
be countenanced, especially, in view of the fact that an allegation has been
made that more than a sum of Rs.2.50 lakhs had been misappropriated by the
petitioner, along with the clerk of the Mathur Village Panchayat, namely,
Thangapandian. It is for the petitioner to prove that the allegations levelled
against her are without susbtance, by adducing sufficient evidence in support of
her claim, in the manner known to law. For the reasons stated above, the writ
petition is liable to be dismissed. Hence, it is dismissed. No costs.
Consequently, M.P.Nos.1, 2 and 3 are closed.
csh
To
1. The District Collector cum
Inspector of Panchayats,
Madurai District, Madurai.
2.The Block Development Officer
(Village Panchayats),
Madurai East Panchayat Union,
Madurai District.