Parvatagiri Raju vs The State Of Telangana And 5 Others
2022 Latest Caselaw 5121 Tel

      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

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-

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

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

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

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

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

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

(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,

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

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

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