Bandarupalli Venkateswarlu vs Government of A.P. and Others

B.K. Somasekhara, J.—Since the decision in W.P.No. 7939 of 1994 would make the proceedings in W.P.No. 9860 of 1994 infructuous, both the matters, involving common questions of law and facts, are being heard together and they are being disposed of by means of this judgment to be rendered in W.P.No. 7939 of 1994.

The petitioner was an elected Sarpanch of Dharmavaram Gram Panchayat of Addanki Mandal, Prakasam District. He has been removed from such a status by the impugned order passed by the 2nd respondent in the proceedings Roc.No. 3900/93 (Pts) Al, dated 24-2-1994 confirmed by the 1st respondentGovernment in its proceedings G.O.Rt.No. 532, Panchayat Raj, Rural Development and Relief (JRY. IV) Department, dated 18-4-1994. He was so removed on the charges of dereliction of duty, misappropriation of public funds and disobedience to the orders issued to him by the 2nd respondent. The petitioner has challenged the Telegram issued by the 1st respondent in Rc.No.3900/93 (Pts) Al, dated 18-5-1994 to the Treasury Officer not to honour the bills presented by him in W.P.No. 9860 of 1994. Both the Writ Petitions are resisted by the respondents.

From the impugned orders leading to the Writ Petitions, the admitted facts can be recorded in brief:

While the petitioner was working as Sarpanch of Dharmavaram Gram Panchayat, there were complaints against him alleging certain irregularities in his duties, viz., regarding conduct of public auction of Babul trees, holding of meetings, want of issuing notices to the members, misappropriation of certain funds and disobeying the directions of the District Collector-2nd respondent, in regard to certain matters connecting thereto and in that connection a show cause notice was issued to him u/s 50(3) of the Andhra Pradesh Gram Panchayats Act, 1964 (in short ''the Act'' ) on 17-1-1994 calling upon him to explain in regard to the allegations against him and as to why a suitable action should not be taken against him under the said provision. The petitioner submitted his explanation in regard to the same on 25-1-1994. The 2nd respondent, in the impugned order dated 24-2-1994, recorded the details of the allegations in the form of charges against the petitioner, his explanation, findings on each of the charges and the final order of removal was passed u/s 50(1) of the Act. The petitioner took the matter in appeal to the Government-lst respondent, which came to be dismissed in the proceedings G.O.Rt.No. 532, Panchayat Raj, Rural Development and Relief (JRY. IV) Department, dated 18-4-1994 thereby confirming the order of removal of the petitioner by the 2nd respondent in his impugned order dated 24-2-1994.

Mr. S. Venkateswara Rao, the learned Advocate for the petitioner, in support of the grounds raised in the Writ Petition, has raised the following contentions:

(i) the impugned order of the 2nd respondent is opposed to the principles of natural justice.

(ii) the impugned order of the 2nd respondent is vioiative of the statutory mandate u/s 50 (3) of the Act since no reasons are given in support of the findings in the notification; and

(iii) the impugned order of the 2nd respondent confirmed by the 1st respondent affects the reputation of the petitioner particularly when there is a clear charge of misappropriation on his part regarding the public funds, therefore, it offends his fundamental right to live guaranteed under Article 21 of the Constitution of India, and hence, the impugned orders are liable to be quashed.

The learned Assistant Government Pleader - Ms. Usha Kiran - has supported the impugned orders of Respondents 1 and 2 that they conform to the statutory requirements of sub-sections (1) to (3) of Section 50 of the Act in as much as they are in full conformity with the principles of natural justice whereby the petitioner was given adequate opportunity to explain and defend the alleged charges against him and as per the settled law nothing more was to be done by the respondents before passing the impugned orders and thus the petition has no merit.

The brief contents of the impugned order of the 2nd respondent dated 24-2-1994 would reveal that all the charges levelled against the petitioner are recorded, the explanations given by him are recorded and also the findings on each of the charges are recorded. There are as many as 7 charges against the petitioner. Charge No. 1 deals with the failure of the petitioner to hold monthly meetings as required; Charge No. 2 deals with the failure of the petitioner to serve the agenda notices to four members of the Panchayat and the violation of Rule 3(1) of the rules in Schedule-I of the Act; Charge No. 3 deals with the misappropriation of Rs. 9,370.32 ps. by the petitioner thereby violating the Government Memo. No. 680, P.R., dated 11-12-1964; Charge No. 4 deals with the disobedience of the orders of the 2nd respondent by the petitioner in conducting the resale of Babul trees in Survey No. 327; Charge No. 5 deals with the refusal on the part of the petitioner to obey the lawful orders of the 2nd respondent in Proceedings Re. No. 3900/93 (Pts) Al, dated 30-7-1993 in relation to resale of some Babul trees; Charge No. 6 is another instance of failure of the petitioner in obeying the orders of the High Court in W.P.M.P.No. 15629 of 1993, dated 26-8-1993 and the directions of the 2nd respondent, and Charge No. 7 is the similar instance of disobedience of the orders of the 2nd respondent by the petitioner in conducting the auction sale of Babul trees: The petitioner has given certain explanations in regard to the said charges. In substance, he has denied that he has not conducted the meetings, that he has not served the notices on the members of the Panchayat for the meetings, that he has (not) misappropriated the public funds of Rs. 9,370-32 as alleged and also came out with an explanation that such amounts had been actually drawn and disbursed to the concerned persons and after the irregularity was noticed by the auditors, the amounts were deposited into the Treasury and that he could not conduct the auction of the Babul trees under certain circumstances where there was clogging of water within which the trees had been submerged when intending purchasers were not expected to come forward. The 2nd respondent, while recording the findings, held that the charges have been established against the petitioner leading to the impugned order of removal. As rightly pointed out by the learned Advocate for the petitioner, there is nothing to indicate in the impugned notification that either the explanation given by the petitioner in regard to each or any of the charges is considered or made a reference or they are actually rejected for any affordable and justifiable reasons. The learned Assistant Government Pleader has contended that in effect it amounts to rejection of the explanation and recording the finding based on materials before the authorities.

The propriety or the validity of such a notification has to be judged in the light of sub-sections (1) to (3) and (9) of Section 50 of the Act and also in the background of the true implication of principles of natural justice as rightly pointed out by the learned Advocate for the petitioner.

Under sub-section (1) of Section 50 of the Act, the Commissioner is empowered to remove any Sarpanch or Upa-Sarpanch, who wilfully omits or refuses to carry out or disobeys the provisions of the Act or any rules, bye-laws, regulations or lawful orders etc. That must be done by means of a notification. Under sub-section (2) of Section 50 of the Act, the Commissioner is empowered to remove a Sarpanch by means of a notification on the ground of misconduct in exercising any duty or power or in the purport to exercise any such duties or rights under the provisions of the Act. Therefore, on the face of it, the jurisdiction and the powers of the 2nd respondent to pass the impugned orders cannot be questioned not they are questioned. To such an extent, the impugned order cannot be put into invalidity or nullity. It is also clear that such an order cannot be attacked on the ground of propriety or legality.

Mr. S. Venkateswara Rao, the learned Advocate for the petitioner, has specifically pointed out sub-section (3) of Section 50 of the Act, which reads as follows:

"The Commissioner shall, when he proposes to take action under subsection (1) or sub-section (2), give the Sarpanch, Upa-Sarpanch or member concerned an opportunity for explanation and the notification issued shall contain a statement of reasons for the action taken" .(Underlining is mine) According to the learned Advocate for the petitioner, the authority issuing the notification is mandatorily obliged to give reasons in the notification in Support of the findings leading to the order of removal. In his sincere interpretation of the Rule, it attracts the true principles of natural justice whereby not only the person, who is condemned, before suffering an order of removal should be given reasonable opportunity, but also, such an explanation or the ground should be considered, which will reflect in the reasons given by the authority. It is true that although such an opportunity has been afforded to the petitioner to submit his explanation and when the authority did not even consider it much less give reasons, it practically amounts to negation of the principles of natural justice, which is codified in the said provision. On a careful examination of the legal implications operating on such situation, this court is totally convinced that the impugned orders cannot be supported mainly on the ground of failure to follow the requirements of sub-section (3) of Section 50 of the Act and also in not following the principles of natural justice enshrined therein which operates upon such a situation in the normal concept of the principles of natural justice.

There cannot be any doubt that the authority, who is obliged to act u/s 50(1) of the Act, would be a quasi-judicial authority because he was obliged to disclose the charges against the delinquent to the expectation of his understanding, he was to be given opportunity of exlaining the same and the authority was obliged to consider them by giving adequate reasons to record the findings resulting in the order of removal in accordance with Section 50(1) of the Act. Although, apparently such a function is administrative in character, it would be a clear power to be exercised in the nature of a quasi-judicial function, which can be understood in the words of great jurist H.W.R. Wade in his own words. "A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A standard example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objectors and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is, therefore, an administrative decision which is subject to some measure of judicial procedure, such as the principles of natural justice..-." (P. 47 Administrative Law; H.W.R. Wade 6th Edition).

Here is a case which is still serious than compared to the above illustration. The authority acting under sub-section (1) of Section 50 of the Act does all the functions of a judicial character whereby three essential ingredients are patently expected to be followed, viz., vocate, interrogate and adjudicate (to expess the charge, give the opportunity to explain and to decide by giving reasons). The essential characteristic of a decision or an order of a judicial nature is affording the finding or decision with reasons. Such a decision or finding not supported by reasons should be styled as arbitrary, illegal and to be put into , void. This appears to be the settled law in regard to the functions and duties of an authority exercising judicial or quasi-judicial nature. This court is of the considered view that such a duty has been enjoined upon the authority acting under sub-section (1) of Section 50 of the Act also. Sub-section (3) of Section 50 of the Act in express terms imposes a duty on the authority to record the statement of reasons in the notification of an order of removal to be passed u/s 50(1) of the Act. In other words, it may amount to the codification of the principles of natural justice into a statute in explicit terms. Even in the absence of the same, the principles of natural justice warrant that any authority muchless the quasi-judicial authority is bound to give reasons in support of any decision thereby showing that the opportunity given to a delinquent to explain the charges levelled against him have been really considered and that should be done by giving the reasons. Otherwise, as rightly pointed out by the learned Advocate for the petitioner it would be as good as giving no opportunity at all. That may also be an empty formality without any purpose being served thereto. While dealing with the principles of natural justice in the service matters, certain settled principles have been noted in the precedents. The disciplinary action must always conform to all the statutory safeguards afforded to delinquents. Otherwise, the proceedings would be illegal and would be invalid. M. Ramappa Vs. Government of Andhra Pradesh and Another, and Union of India (UOI) Vs. Ram Kishan, ). An authority conducting the departmental enquiry should be guided by rules of equity and natural justice and it is not bound by the technical formality or a mere technical rule of evidence (State of Orissa v. Muralidhar AIR 1963 SC 404 and Basavarajappa v. State of Mysore 1964(1) Mys.L.J. 314 ). Departmental enquiry should be conformed in conformity with the principles of natural justice because the administrative tribunals perform judicial functions. The rules of natural justice are simple but difficult to define. But the jurists and judicial pronouncements have explained the true meaning of the same. The principle behind the rules is that administrative tribunals should not be required to observe court procedures but should be free to work out their own rules subject to the provision of certain minimum safeguards. Per Lord Loreburn, L.C. of House of Lords, in Board of Education v. Rice; "they must act in good faith and fairly listen to both sides......But I do not think they are bound to treat such a question as though it were a trial.......They can obtain information any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. This theme was developed in Arlidge case, by Lord Haldane. This view was also approved by the Supreme Court in Union of India (UOI) Vs. T.R. Varma, and State of Madhya Pradesh v. Chinthaman AIR 1961 SC 1623).

The succinct meaning of the expession ''natural justice'' has been summarised by David Robertson in the Penguin Dictionary of Politics, New edition, at page 337 as follows:

"By natural justice is meant the ideas that there are some qualities and values inherent in the very concept of law, as opposed to arbitrary decision-making, and that individuals should be able to claim certain basic protections in the legal system regardless of whether they are specifically given those protections by statute. The two most common tenets of natural justice in the British legal system are audi alter am partem (that each party has a right to be heard in any dispute) and Nemo judex in parte sua (that the Judge of a case should have no personal interest in its outcome). In the United Kingdom in the 1960 these quite specific principles of natural justice were applied to a large number of administrative as well as judicial decision-making situations, and as a result the British judiciary both expanded its own jurisdiction and developed something which it had previously lacked-a coherent corpus of aministrative law."

Apart from what is underlined as above regarding principles of natural justice and the concept of reasonable opportunity to be afforded to a delinquent before he is condemned for an act of misconduct leading to damage his reputation etc., Mr. S. Venkateswararao, the learned Advocate for the petitioner, has pointed out the true implications of such natural justice to actually consider the explanation or the findings afford by the delinquent fortifying himself with the latest pronouncement of the Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., . Therein while dealing with the requirements of principles of natural justice that a copy of the report of the Inquiry Officer should be supplied to the delinquent before passing an order of dismissal etc., by way of penalty, it has been rightly pointed out by the learned Advocate for the petitioner that the following observations have been made in the judgment to bring out the requirement to consider such explanation thereafter in addition to the other evidence in the materials. In the very words of the Supreme Court:

"Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer''s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it."

If the disciplinary authority is obliged to consider the representation of the employee, it means that not only they are to be dealt with, not merely by recording in the decision, but also adequate or satisfactory reasons should be given as to why they are going to be rejected. Unless that is done, there cannot be conformity to the true principles of natural justice. Now reading all these implications of natural justice along with the provisions of Section 50(3) of the Act, it is abundantly clear that the authority issuing a notification u/s 50(1) of the Act is mandatorily required to give or record the statement of reasons in support of the order of removal of a Sarpanch or Upa-Sarpanch etc. to demonstrate that reasonable opportunity has been afforded to such a person before issuing a notification by way of penalty under sub-section (1) of Section 50 of the Act.

Therefore, on a proper perspective of the matter and a consideration of the Rule and true implications of the requirements of law and principles of natural justice, the impugned order of the 2nd respondent cannot be sustained. But, as pointed out in Managing Director, ECU v. B. Karunakar (mentioned supra), the matter cannot end there. Otherwise, it would be a compliance of empty formality of principles of natural justice allowing a delinquent to go scot free without being subjected to the Rule of law and the matter should be reconsidered by the authority to conform to such principles and the statuory requirements before passing any order. In other words although the petitioner succeeds in this Writ Petition, the matter should go back to the concerned authority to deal with the matter afresh and in the light of the observations made in this Judgment. Since the impugned order of the 2nd respondent is going to be quashed or set asidefc the impugned order passed by the 1st respondent confirming such an order should also be quashed and it cannot no longer stand.

The petition (W.P.No. 7939/94) is allowed. The impugned orders of Respondents 1 and 2 in removing the petitioner from the post of Sarpanch, under the circumstances stated above, are quashed. The matter is remitted back to the 2nd respondent to dispose of it afresh after giving reasonable opportunity to the petitioner in accordance with law and in the light of the observations made above. In the circumstances, W.P.No. 9860/94 becomes infructuous and the same is accordingly dismissed having become infructuous. No order as to cots.