THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.25304 of 2022
ORDER:
Heard the learned counsel for the petitioner, the learned Government Pleader for Panchayat Raj for respondents 1 to 4, Sri C.Kalyan Rao, learned counsel for respondent No.5, and Sri Jithender Veeramalla, learned counsel for respondent No.6. With their consent, the Writ Petition is disposed of at the admission stage.
Aggrieved by the action of respondent No.2 in passing the impugned order No.1717/A3/2021, dated 03.06.2022, removing the petitioner from the post of Sarpanch of Atmakur Gram Panchayat, Atmakur Village and Mandal, Hanmakonda District, the present writ petition is filed.
Learned counsel for the petitioner has stated that the authorities concerned without application of mind and based on the complaint made by the local MLA, have initially issued the show-cause notice dated 24.11.2021. Petitioner has challenged the same by filing W.P. No.24620 of 2021 and the said writ petition was allowed by this Court on 10.06.2022. That during the pendency of the said writ petition, without waiting for the result of the said writ petition, the authorities have issued another show-cause notice dated 16.05.2022 to the petitioner 2 with false and frivolous grounds. That the petitioner has given an explanation to the said show cause notice duly bringing to the notice of the authority concerned about the pendency of the writ petition and also the fact that the enquiry report based on which the said show cause notice was issued has not been furnished to the petitioner. However, the authority concerned without appreciating the said explanation submitted by the petitioner has passed the impugned order dated 03.06.2022 removing the petitioner from the post of Sarpanch. Learned counsel has further contended that to the earlier show cause notice, dated 24.11.2021, the petitioner has submitted a detailed explanation, but the same was also not considered. Learned counsel for the petitioner has stated that the developmental works being undertaken by the Gram Panchayat were all done only after the Gram Panchayat has passed the resolutions. That the petitioner, Upa-Sarpanch and Panchayat Secretary have only implemented the Gram Panhayat resolutions, strictly in accordance with the provisions of the Telangana Panchayat Raj Act, 2018. Moreover, the said developmental works were executed by all the three persons i.e. Sarpanch, Upa-Sarpanch and the Panchayat Secretary and the cheques were signed by both the Sarpanch and the Upa- 3 Sarpanch. Therefore, the question of any misappropriation of the funds of the Gram Panchayat by petitioner alone does not arise. It is further stated that not a single rupee has been misappropriated by anyone, much less the petitioner herein, and whatever amounts were spent were for the development of the Gram Panchayat. Even for the sake of argument, the allegations made against the petitioner are taken to be true, the authorities have take action against all the three persons, but cannot single out the petitioner alone and he cannot be solely held responsible for any misappropriation. That the authority concerned, without taking into consideration the explanation submitted by the petitioner has passed the impugned order. That the second show-cause notice served on the petitioner was not accompanied by the remarks of the Divisional Panchayat Officer, dated 25.04.2022, and on this ground also the impugned order is liable to be set aside. That the authority concerned, without taking into consideration the detailed explanation submitted by the petitioner, has passed the impugned order in a mechanical manner without giving any reasons and therefore prayed to set aside the same.
Per contra, the learned Government Pleader has vehemently opposed the very maintainability of the Writ Petition 4 and has stated that the authorities duly following the procedure contemplated under the law have passed the impugned order. It is contended that the allegations against the petitioner are very serious in nature and the petitioner has misappropriated an amount of Rs.60 lakhs approximately. The impugned order does not call for any interference of this Court. Learned Government Pleader has drawn the attention of the Court to the relevant provisions of law as well as the Government Orders issued from time to time wherein it has been clearly prescribed that for undertaking any works of the Gram Panchayat which exceed Rs.50,000/- tenders shall be invited, but in the case on hand, the petitioner has not followed the said procedure and spent an amount of Rs.60,00,000/- approximately for various works without calling for tenders and therefore the learned Government Pleader prayed for dismissal of the Writ Petition.
Perused the material on record.
A perusal of the documents shows that on 06.10.2021, the petitioner had an altercation with the local MLA and thereafter the initial show cause notice was issued to the petitioner on 24.11.2021, based on the enquiry report dated 18.11.2021 submitted by the Divisional Panchayat Officer. Even though the petitioner has given an explanation on 5 01.12.2021 to the show-cause notice dated 24.11.2021, he was suspended on 08.12.2021 and the Up-Sarpanch was appointed as the In-charge Sarpanch of the Gram Panchayat. The petitioner has challenged the said suspension order in W.P. No.34620 of 2021 and during the pendency of the said writ petition, the present impugned order has been passed. It is pertinent to note that the said writ petition was allowed by this Court on 10.06.2022 wherein this Hon'ble Court has made the following observations:
"From the record, it is also seen that the second respondent, having suspended the petitioner from the post of Sarpanch of the Gram Panchayat in question, appointed the fifth respondent, who is the Upa-Sarpanch of the Gram Panchayat as in- charge of the post of the Sarpanch through the proceedings dated 13.12.2021. The entire allegation against the petitioner is relating to drawing of the amounts from the various funds of the Gram Panchayat for various purposes. In terms of the provisions of the Act, 2018, it is the Sarpanch and the Upa-Sarpanch who are the joint signatories but the second respondent, having been fully aware of the fact that the Sarpanch and the Upa-Sarpanch are the joint signatories for drawing of any funds of the Gram Panchayat, has chosen to keep the fifth respondent as in-charge Sarpanch of the Gram Panchayat in question for the period for which the petitioner is suspended. This also shows 6 that the impugned order as well as the consequential proceedings dated 13.12.2021 are issued without application of mind"
After the petitioner has submitted explanation dated 01.12.2021, remarks were called for from the Divisional Panchayat Officer, Parkal. Thereafter, on 16.05.2022 the second show-cause notice was issued to the petitioner, to which, he has submitted his explanation on 24.05.2022 and the impugned order was passed on 03.06.2022 removing the petitioner form the post of Sarpanch.
A perusal of the impugned order passed on 03.06.2022 shows that the authority concerned while considering the explanation dated 24.05.2022 has held that the petitioner has not submitted any explanation to the charges levelled against the petitioner and therefore he is removed from the post of Sarpanch. The documents filed by the petitioner, more particularly, the enquiry report dated 18.11.2022 submitted by the Divisional Panchayat Officer to the District Panchayat Officer shows that the Divisional Panchayat Officer had conducted enquiry and recorded the statements of the ward members and the ward members of Ward Nos.8, 2, 14, 11, 13, 6 and 9 have clearly deposed that regular meetings of the Gram Panchayat are being held and the Gram Panchayat has been 7 passing resolutions every month. Based on the Gram Panchayat resolutions only the development works are being undertaken and there is no misappropriation of any funds by the Sarpanch. Thereafter, the statement of the Panchayat Secretary was also recoded wherein he has also stated that the meetings of the Gram Panchayat are being held regularly and only after passing of the resolutions by the Gram Panchayat, the works are being undertaken. Further, it is stated that only after the A.E. records in the Measurement Book, the cheque will be issued and that he will be keeping the records of the Gram Panchayat updated regularly. The Divisional Panchayat Officer, on verification of the Gram Panchayat records, has further held that all the works done by the Gram Panchayat from the funds of SFC, FFC and General Fund only after the Assistant Engineer has certified in the Measurement Book but the budget was not approved and the amounts were spent against the Rules. Further, the Divisional Panchayat Officer has stated that the Sarpanch, Upa-Sarpanch and the Panchayat Secretary, should be issued the show-cause notices to explain the lapses. But, there is nothing on record to show as to what action has been initiated against the Upa-Sarpanch and the Panchayat Secretary or whether any show cause notice has been issued to 8 the Upa-Sarpanch and Panchayat Secretary. Admittedly, the Sarpanch and Upa-Sarpanch are co-signatories to the cheques that are issued to the contractors or in case any amounts are withdrawn through cheques from the funds of the Gram Panchayat. Any amounts spent on the development works will be certified by the Panchayat Secretary who after due verification in the M. Book will put up the file for payment of the bills. Therefore, it cannot be said that the Sarpanch alone has misappropriated the funds of the Gram Panchayat. It is also perplexing to note the respondent No.2 while removing the petitioner from the post of Sarpanch has appointed the Upa Sarpanch as in-charge Sarpanch of the Gram Panchayat.
Further, the impugned order also does not reflect that the authority concerned has taken into consideration either the initial explanation or the explanation dated 24.05.2022 submitted by the petitioner before passing the impugned order. A perusal of the provisions of the Act, more particularly Section 37 (1) thereof, which reads as under:
37. (1) If in the opinion of the District Collector the Sarpanch,-
(i) omitted or refused to carry out the orders of the District Collector or Commissioner or Government for the proper working of the concerned Gram Panchayat; or 9
(ii) abused his position or the powers vested in him; or
(iii) is guilty of misconduct in the discharge of his duties; or
(iv) is guilty of embezzlement of Gram Panchayat Funds; or
(v) persistently defaulted in the performance of his functions and duties entrusted to him under the Act to the detriment of the functioning of the Gram Panchayat or has become incapable of such performance;
The District Collector may remove such Sarpanch after giving him an opportunity for explanation.
The above-said provision of law makes it abundantly clear that the grounds on which the Sarpanch can be removed are very limited. Neither the show-cause notice nor the enquiry report nor the impugned order reveal as to what is the actual amount that has been misappropriated by the Sarpanch. Admittedly, in the present case, the petitioner has spent some amounts for laying of moram road and also for replacing of the LED lights. There is nothing in the enquiry report or the impugned order to suggest that the said works have not at all been done by the petitioner or that out of the total amounts spent, how much amount has been misappropriated or that he has submitted some incorrect or inflated bills. Admittedly, development works have taken place for which amounts have been spent from the funds of the Gram Panchayat, if at all, 10 there is any embezzlement of funds of the Gram Panchayat, the petitioner cannot be solely blamed for the same. If there are any procedural lapses then the Upa-Sarpanch and the Panchayat Secretary are equally to be blamed. All these aspects have not been taken into consideration before passing the impugned order. Except making a bald allegation against the petitioner that he has not followed the provisions of G.O.Ms.No.441, Panchayat Raj & Rural Development (Rules), dated 10.12.2022, there is nothing on record as to the quantum of misappropriation if any done by the petitioner. The authority concerned has passed the impugned order in a post haste manner without taking into account the report of the DPO and the explanation submitted by the petitioner.
In Rekapalli Krishna Vasu vs. State of A.P. and others1, this Court held as under:
"11. It is apparent on record that the District Collector endorsed the conclusions arrived by the Divisional Panchayat Officer. No reasons are assigned by the District Collector in drawing the conclusion that the 6th respondent misappropriated Gram Panchayat Funds. A detailed explanation has been submitted by the 6th respondent to the show-cause notice. The order passed by the District Collector does not speak as to how the explanation offered by the 6th respondent was found to be insufficient. In such a situation, the only 1 2005 (5) ALD 276 11 reasonable conclusion is that the District Collector has been simply carried away with remarks submitted by the Divisional Panchayat Officer and the impugned order is not the outcome of his own opinion. What is required under Section 249 (1) of the Act is that the District Collector has to form his own opinion on application of mind to the material on record. A similar question has come up for consideration in W.P. No.23758 of 2004 dated 17-2-2005. Wherein it is observed as follows:
"On a reading of the above provision, it is clear that the Sarpanch can be removed when the District Collector is of the opinion that the same is necessary for any one of the five grounds specified under Sub-section (1) of Section 249 of the Act. Undoubtedly formation of such opinion by the District Collector must be based on application of mind to the material on record and the same shall be apparent from the order itself. In the case on hand, the 2nd respondent failed to assign any reasons in support of his conclusion that the petitioner has misused her powers vested under the Act, but merely relied on report of the Divisional Panchayat Officer, dated 9-8-2004 stating that all the charges are held proved. In the absence of recording any reasons, it cannot be held that the 2nd respondent has applied his mind to the charges levelled against the petitioner or his explanation."
For the afore-stated reasons and in view of the law laid down by this Court in the above referred judgment, the impugned order is set aside and the matter is remanded back to the District Collector-respondent No.2 for passing orders afresh duly taking into consideration the above observations made by 12 this Court. The District Collector before passing the orders shall also take into consideration the explanation submitted by the petitioner and the enquiry report submitted by the Divisional Panchayat Officer, dated 18.11.2022. Needless to state that before passing any order, notice shall be served and an opportunity of hearing shall be afforded to the petitioner.
Having regard to the order passed by this Court in W.P. No.34620 of 2021 dated 10.06.2022 and the order passed in the present Writ Petition the petitioner shall be allowed to discharge his duties as Sarpanch.
Accordingly, the Writ Petition is allowed.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date : 14.10.2022 sur