BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/11/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.(MD)No.8942 of 2008 and M.P.(MD)Nos.1 and 2 of 2008 R.Athi ... Petitioner Vs. 1.The District Collector, Inspector of Panchayats, Ramanathapuram District, Ramanathapuram. 2.The Block Development Officer, Nainar Kovio, Paramakudi Taluk, Ramanathapuram District. 3.The Tahsildar, Paramakudi Taluk, Ramanathapuram District. ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the records pertaining to the impugned removal order made in Na.Ka.Aa3/667/08 dated 05.09.2008 passed by the 1st respondent and the consequential notification No.VI(2) 733/2008 at page No.551 of Tamil Nadu Government Gazette dated 24.09.2008 made by the 1st respondent, quash the same. !For Petitioner ... Mr.T.R.Rajagopalan Senior counsel for Mr.V.Janakiramulu ^For RR1 and 2 ... Mrs.V.Chellammal Spl.Govt.Pleader For Respondent ... Mr.R.Manoharan No.3 Government Advocate * * * * :ORDER
This writ petition has been filed to call for the records pertaining to
the impugned removal order made in Na.Ka.Aa3/667/08 dated 05.09.2008 passed by
the first respondent and the consequential notification No.VI(2) 733/2008 at
page No.551 of Tamil Nadu Government Gazette dated 24.09.2008 made by the first
respondent and quash the same.
2. Heard the learned counsel for the petitioner, Mrs.V.Chellammal, learned
Special Government Pleader, appearing for the respondents 1 and 2 and
Mr.R.Manoharan, learned Government Advocate appearing for the third respondent.
3. The facts giving rise to the filing of this writ petition as stood
exposited from the affidavit accompanying the writ petition could succinctly and
precisely, tersely and briefly be set out thus:
The petitioner is the deseated President of Kottakkudi Village Panchayat
of Nainar Kovil Panchayat Union. Accounts of the said Panchayat were inspected
by the Block Development Officer concerned, who submitted the report to the
first respondent viz., the District Collector/Inspector of Panchayats,
Ramanathapuram District, Ramanathapuram that the petitioner as President of the
Panchayat incurred expenditure over and above the limit prescribed for the
Panchayat. Consequently, a show cause notice was given to the petitioner
leveling as many as eight charges, for which the petitioner gave his reply. The
matter was placed before the Panchayat. Out of six councilors, five voted in
favour of the petitioner. Even then, the District Collector passed the impugned
order deseating the petitioner.
4. Impugning and challenging the said order, this writ petition is
focussed on various grounds interalia thus:
Absolutely there is no element of misappropriation involved in this case.
Out of good faith and to meet the needs of the public, such expenditures were
incurred. The charges were not grave enough for deseating him and the District
Collector also without applying his mind, passed the said order.
5. The learned senior counsel appearing for the petitioner by placing
reliance on the grounds as found set out in the affidavit accompanying the writ
petition, would develop his arguments to the effect that this is not a case of
misappropriation; the petitioner even though apparently seems to have violated
the financial restrictions, yet it was done purely out of good faith and for the
purpose of meeting the immediate requirements of the public.
6. Inviting the attention of this Court to the counter filed by the first
respondent viz., the District Collector, the learned Special Government Pleader
would develop his arguments to the effect that the impugned order of the
District Collector is a discernible one and the violations committed by the
petitioner are found detailed and delineated therein; the petitioner as elected
representative of the people should have conducted himself adhering to the
provisions of law, but he throwing to winds, acted at his whims and fancies and
indulged in exceeding the financial limits. Accordingly, she prayed for the
dismissal of the writ petition.
7. The learned Special Government Pleader would also submit that instead
of availing the effective alternative remedy as contemplated under Section
205(12) of the Tamil Nadu Panchayats Act, 1994, the petitioner straight away
filed the writ petition, which is untenable. She also placed reliance on the
decision of the Division Bench of this Court dated 13.03.2006 in W.A.No.98 of
2006. An excerpt from it would run thus:
“In the premises aforesaid, the liberty given to the appellant to work out
his right under Section 205(12) of the Act by the learned Single Judge in the
order dated 14.02.2006 made in W.P.N.7452 of 2005, in our considered opinion,
deserves interference as the only remedy available to the appellant in the
statute is to work out his right under Section 219 of the Act, inasmuch as
Section 205(12) of the Act only empowers the Government to grant appropriate
interim order pending the proceedings for cancellation of notification in the
case of removal of the President suo motu, purportedly by exercising the power
under Section 219 of the Act. We, therefore, do not find any merit in the
contention of the learned counsel for the appellant that the second respondent
ought not to have issued the notification dated 27.07.2005 in consequence of the
proceedings dated 3.7.2005, without exercising the power conferred under Section
205(12) of the Act to postpone the date of removal of the President from the
office of the Panchayat specified in the notification.”
8. Whereas the learned senior counsel for the petitioner by way of
torpedoing and pulverizing the arguments of the learned Special Government
Pleader, would put forth his arguments to the effect that when there is flagrant
violation of principles of natural justice in deseating the petitioner by the
Collector and that too when there is no proper application of mind on the part
of the District Collector in passing the impugned order, straight way a writ
petition would lie. The learned senior counsel for the petitioner would cite
the following decisions of the Hon’ble Apex Court, in support of his
contentions:
(i) Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others
reported in (1998) 8 Supreme Court Cases 1. An excerpt from it would run thus:
“Constitution of India – Art. 226 – Maintainability – Alternative
remedy/Exhaustion of remedies – Nature of rule of – Existence of alternative
statutory remedies, held, is not a constitutional bar to High Court’s
jurisdiction but is a self-imposed restriction – Further held, the alternative
remedy would not operate as a bar in at least three contingencies: (i) where the
writ petition seeks enforcement of any of the fundamental rights; (ii) where
there is violation of principles of natural justice; or (iii) where the order or
the proceedings are wholly without jurisdiction or the vires of an Act is
challenged – Hence, where the show-cause notice issued by the Registrar of Trade
Marks under S.56(4) of the Trade and Merchandise Marks Act, 1958 was challenged
by a writ petition on the grounds that the notice was wholly without
jurisdiction, held, High Court erred in dismissing the writ petition at the
initial stage without examining that contention – Trade and Merchandise Marks
Act, 1958, Ss.56(4) and 2(1)(x) – Notice under S.56(4) – Writ petition against –
Maintainability – Administrative Law – Natural justice – Notice – Show-cause
notice – Writ petition against – Maintainability – In limine dismissal of –
Whether justified”.
(ii) State of H.P. and others v. Gujarat Ambuja Cement Ltd. and another
reported in AIR 2005 Supreme Court 3938; An excerpt from it would run thus:
“24. If, as was noted in Ram and Shyam Co. v. State of Haryana and others
(AIR 1985 SC 1147) the appeal is from “Caesar to Caeser’s wife” the existence of
alternative remedy would be a mirage and an exercise in futility. In the
instante case the writ petitioners had indicated the reasons as to why they
thought that the alternative remedy would not be efficacious. Though the High
Court did not go into that plea relating to bias in detail, yet it felt that
alternative remedy would not be a bar to entertain the writ petition. Since the
High Court has elaborately dealt with the question as to why the statutory
remedy available was not efficacious, it would not be proper for this Court to
consider the question again. When the High Court had entertained a writ
petition notwithstanding existence of an alternative remedy this Court while
dealing with the matter in an appeal should not permit the question to be raised
unless the High Court’s reasoning for entertaining the writ petition is found to
be palpably unsound and irrational. Similar view was expressed by this court in
First Income Tax Officer, Salem v. M/s.Short Brothers(P) Ltd. (1966(3)SCR 84)
and State of U.P. and others v. M/s.Indian Hume Pipe Co. Ltd. (1977(2)SCC 724).
That being the position, we do not consider the High Court’s judgment to be
vulnerable on the ground that alternative remedy was not availed. There are two
well recognized exceptions to the doctrine of exhaustion of statutory remedies.
First is when the proceedings are taken before the forum under a provision of
law which is ultra vires, it is open to a party aggrieved thereby to move the
High Court for quashing the proceedings on the ground that they are incompetent
without a party being obliged to wait until those proceedings run their full
course. Secondly, the doctrine has no application when the impugned order has
been made in violation of the principles of natural justice. We may add that
where the proceedings itself are an abuse of process of law the High Court in an
appropriate case can entertain a writ petition”.
(iii) Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others
reported in (2003)2 Supreme Court Cases 107. An excerpt from it would run thus:
“Constitution of India – Art. 226 – Maintainability – Alternative remedy-
Exhaustion of remedies – Rules of exclusion of writ jurisdiction by availability
of an alternative remedy – Held, the said rule is of discretion and not one of
compulsion – Contingencies in which High Court could exercise its writ
jurisdiction in spite of availability of the alternative remedy, stated …”
(iv) Sanjana M.Wig v. Hindustan Petroleum Corpn. Ltd. reported in (2005) 8
Supreme Court Cases 242. An excerpt from it would run thus:
“17. A three-Judge Bench of this court in Gujarat Ambuja Cement Ltd.
referring to harbanslal Sahnia held: (SCC pp.517-18, paras 22-23)
“22(24). … There are two well-recognised exception to the doctrine of
exhaustion of statutory remedies. First is when the proceedings are taken
before the forum under a provision of law which is ultra vires, it is open to a
party aggrieved thereby to move the High Court for quashing the proceedings on
the ground that they are incompetent without a party being obliged to wait until
those proceedings run their full course. Secondly, the doctrine has no
application when the impugned order has been made in violation of the principles
of natural justice. We may add that where the proceedings itself are an abuse
of process of law the High Court in an appropriate case can entertain a writ
petition”.
9. Put simply and not to put too fine a point on it, it is a trite
proposition of law that even though an alternative remedy is available in a
case, where principles of natural justice are found violated, then straight away
a writ petition would be maintainable.
10. The main thrust of the arguments put forth by the learned counsel for
the petitioner is to the effect that this is a singularly singular case, wherein
absolutely there is no element of misappropriation or charge of misappropriation
and it is only a mere violation of financial restrictions or ceilings imposed
under the Government Orders.
10. The learned counsel for the petitioner highlighted above upon the
purity of his client in public life, whereupon this Court raised a querry as to
whether his client would be willing to deposit the excess amount of
Rs.1,24,050/- (Rupees one lakh twenty four thousand and fifty only) for which,
the learned senior counsel for the petitioner has come forward with the
submission that the petitioner would be ready to deposit such amount in the
Panchayat concerned.
11. Wherefore a querry has been posed to the learned Special Government
Pleader, as to whether there is any allegation of misappropriation as against
the petitioner. In which, she has stated that here the accusation is not
relating to the misappropriation, but only relating to exceeding of the
financial limits as found prescribed in the Government Orders. In the impugned
order itself, in the first page, the alleged excess amount is found listed:
t. brytpd tpguA;fs; TLjy; vz;. brytpdk;
1. bfhl;lFo Bky;epiy ePh;j;Bjf;fj; bjhl;o gGJ bra;jy; 6500
2 BrJfhy; Bky;epiy ePh;j;Bjf;fj; bjhl;o TLjy; brytpdk; 7300
3. kfsph; Rfhjhu tshfk; gGJ 3300
4. BrJfhy; ifg;gk;g[ guhkhpg;g[ 9170
5. bfhl;lFo Mjpjpuhtplh; fhydp rhiy Bkk;ghL 4780
6. Kl;brofs; mfw;wpaJ 32500
7. FoePh; fpzWfs; Jhh;thh; bra;jy; 44200
8. bjUtpsf;F cjphpghfA;fs; thA;fpajpy; TLjy; brytpdk; 16300
bkhj;jk; 124050
12. Ex facie and prima facie it is clear that those items of expenditure
are all relating to absolute necessary and essential works. The way in which
the petitioner has come forward to bear brunt would speak volumes that the
excess amount incurred by him was purely out of necessity and that there is no
hidden agenda behind it. Hence, in these peculiar circumstances, I am of the
considered view that the guarded discretion of the Court could be exercised in
giving opportunity to the petitioner to continue as President subject to the
following conditions, accordingly the direction would run thus:
Within a period of fifteen days from the date of receipt of a copy of this
order, the petitioner shall deposit a sum of Rs.1,25,050/- (Rupees one lakh
twenty five thousand and fifty only) in the account of the Panchayat, which
shall become part and parcel of the Panchayat fund and thereupon the first
respondent, viz., the District Collector shall reinstate him in the same post of
President of the Panchayat immediately.
13. With the above direction, this Writ Petition is disposed of. No
costs. Consequently, connected Miscellaneous Petitions are closed.
smn
To
1.The District Collector,
Inspector of Panchayats,
Ramanathapuram District,
Ramanathapuram.
2.The Block Development Officer,
Nainar Kovio, Paramakudi Taluk,
Ramanathapuram District.
3.The Tahsildar,
Paramakudi Taluk,
Ramanathapuram District.