Pugazhendran President, Brammapuram Village Panchayat, Katpadi Panchayat Union vs B.G. Balu, The District Collector, (Inspector of Panchayats) and The Government of Tamil Nadu

Markandey Katju, C.J.—This writ appeal involves an important question of law, which has arisen in many cases, and hence we are giving

this detailed judgment.

We have heard the learned counsel for the parties, and have perused the records, as well as the impugned judgment.

The controversy in this case is regarding the interpretation of Section 188 (3) of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to

as �the Act�), which states:-

� Subject to such general control as the village panchayat may exercise from time to time, all cheques for payment from Village Panchyat Fund

or other funds constituted under Sub-section (2) shall be signed jointly by the president and vice-president and in the absence of the president or

vice-president, as the case may be, by the vice-president or the president and another member authorized by the village panchayat at a meeting in

this behalf�

As can be seen from a perusal of Section 188(3) of the Act, all cheques for payment from the Village Panchayat Fund or other funds constituted

under Sub-section (2) have to be signed jointly by the President and Vice President, and in the absence of President or Vice-President, as the case

may be, by the Vice-President or President and another member authorized by the village panchayat at a meeting in this behalf.

The question, which arises in this case, is that if the president or vice president refuses to sign a cheque, whether it should be treated as

�absence� within the meaning of the word in Section 188(3) of the Act. A situation may arise where the president and vice-president of the

village panchayat may be of different political parties or may be adversaries for other reasons, and one of them refuses to sign a cheque of the

Village Panchayat Fund or other funds constituted under Sub-section(2).

To deal with this situation, G.O.Ms.No. 92 dated 26.3.1997 has been issued by the Government of Tamil Nadu, in which it is stated:-

�All the accounts should be jointly operated by the President and the Vice President. In exceptional cases, when there is adversarial relationship

between the President and the Vice President, the panchayat, may, by a resolution authorize any other member other than the Vice President to

jointly operate the account along with the President. Provided that prior approval of the Inspector of Panchayats (District Collector) will be

obtained for this�

The petitioner in W.P.No. 1828 of 2004 has alleged that he is the Vice-President of Brammapuram Village Panchayat, Katpadi Taluk, Vellore

District. It is alleged by the petitioner in paragraph-3 of the affidavit that the President of the Village Panchayat is doing several acts detrimental to

the interest of the panchayat, and he misused his power to the extent possible. The petitioner has alleged that the President of the Village Panchayat

got a resolution passed on 07.10.2002 to the effect that the powers of the Vice-President to sign the cheque should be cancelled, and such power

should be given to another member Mr. V. Srinivasan. Pursuant to the said resolution, and the recommendation of the Block Development Officer,

Katpadi, the District Collector/first respondent passed an order cancelling the writ petitioner�s power to sign the cheques jointly with the

President and granting the power to Mr. V. Srinivasan. It is alleged that this order is violative of Section 188(3) of the Act. The petitioner has

alleged that there was no delay on his part to sign the cheques. He has further alleged that he was available and has not been removed and hence, it

cannot be said that he was absent. It is further alleged that the rules of natural justice were violated, as no notice was given to the petitioner before

passing the impugned order.

A counter affidavit has been filed by the first respondent, the District Collector, Vellore, who is also the Inspector of Panchayats, Vellore

District. In dparagraph-4 of the counter, it is alleged that the Vice-President did not co-operate with the smooth functioning of the village

panchayat and therefore, Brammapuram Village Panchayat in its resolution dated 12.09.2002 and 07.10.2002 resolved with the majority of 6

members except the petitioner and one other member to change the joint signatory power from the petitioner to the first ward member Mr.

Srinivasan. In paragraph-5 it is stated that the proceeding of the first respondent is passed on the basis of the resolution of the village panchayat

dated 12.09.2002 and 07.10.2002 and in tune with G.O.Ms.No. 92 Rural Development (C2) Department dated 26.03.1997. It is also in tune

with Section 188(3) of the Act. The petitioner filed the writ petition after the lapse of one year and two months. The order of the first respondent

has been in effect for this period. The reason for changing the signatory power of the Vice President was that whenever the cheque was given for

signature to him, he would either return the cheque without signing it or he used to demand a percentage to sign the cheque. It is alleged that there

was non-cooperation on the part of the vice president in running the village administration. It is alleged that there was no violation of natural justice.

Counter-affidavit has also been filed by the second respondent/President of the Village Panchayat. It is alleged in paragraph-7 of the counter

that the District Collector, Vellore in his capacity of Inspector of Panchayats has the power and jurisdiction to cancel the power of signing the

cheque in view of G.O.Ms.No. 92, Rural Development (C2) Department dated 26.03.1997. It is alleged that the District Collector has to look to

the interest of the smooth functioning of the village panchayat and not the interest of the individual. It is alleged that the District Collector, as

Inspector of Panchayats, has acted in accordance with G.O.Ms.No. 92 Rural Development (C2) Department dated 26.03.1997. It is alleged that

whenever a cheque was taken for the signature of the Vice-President he would either return the cheque without signing it or used to demand a

percentage of money to sign the cheque. It is alleged that the contention of the petitioner that there was no undue delay on his part to sign the

cheques is factually not correct. In paragraph 7 of the counter affidavit, it is also alleged:-

� The petitioner refused to sign in 1). Cheque No. 018486 dated 11.09.2002 for a sum of Rs. 19,180/- issued in favour of Block Development

Officer, Katpadi Municipality Union for receipt of cement bags for the scheme work 2). Cheque No. 021492 dated 01.10.2002 for a sum of Rs.

6,270/- issued in favour of the Panchyat Assistant for the disbursement of salary to the panchayat employees. 3). Cheque No. 021493 for a sum

of Rs. 3,928/- issued in favour of Mr.Rajagopal for maintenance of water supply. 4). Cheque No. 021494 dated 02.10.2002 for a sum of Rs.

500/- issued in favour of Tamilselvi towards the funeral rights of her husband as per the Government scheme. 5). Cheque No. 021495 dated

02.10.2002 for a sum of Rs. 2,900/- issued in favour of Panchayat Assistant Rajagopal for the maintenance of street light. 6). Cheque No.

021626 for a sum of Rs. 19,930/- issued in favour of Vasu and Co. approved dealer for supply of accessories in maintenance of water supply and

street light. The President has not made any false allegation against the petitioner. The first respondent has passed order based on the resolution of

the Pinhead and the report of the Block Development Officer (VP), Katpadi who is the controlling officer for Panchayats of Panchayat Union,

Katpadi. It is apt to point out at this juncture that all the other six members and the President fall on one side and the petitioner and two other

members is against the interest of the smooth functioning of the Village Panchayat�

It is further alleged that the Panchayat Council of Brammapuram Village Panchayat had resolved to authorize another member to sign the

cheque as the per the Government order in G.O.Ms.No. 92 Rural Development (C2) Department dated 26.03.1997. It is alleged that there is non

co-operation of the Vice President in the smooth functioning of the village administration. In paragraph-12 it is alleged that there was a

compromise, but subsequently the petitioner failed to keep his words to cooperate with the panchayat administration by signing the cheques as

usual, and he abruptly refused to sign the cheques and hence, the second respondent passed order on 07.10.2002 to know the views of the

panchayat. Six ward members, and the President voted in favour of the resolution dated 07.10.2002 changing the joint-signatory power of the

Vice-President and empowering the first ward member to sign jointly with the President. In paragraph-13 of the counter, it is denied that the

petitioner was not given any notice. He was served with the agenda for the resolutions passed on 12.09.2002 and 07.10.2002. The petitioner

participated in the meeting and voted against the resolution along with two other members. The Block Development Officer, Panchayat Union,

Katpadi on 16.10.2002, conducted necessary enquiry. The petitioner also attended the enquiry along with the ward members. Six members gave

in writing that the petitioner is not co-operating with the President in the administration of the panchayat, and he refused to sign the cheques and

thereby there is stagnation in the administration. The Panchayat Assistant also gave in writing to that effect. In paragraph-14 of the counter it is

alleged that the petitioner was not discharging his duties as Vice-President diligently, sincerely and in the interest of the public.

The learned single Judge, who heard the writ petition, allowed the same by judgment dated 17.04.2004. The view taken by the learned single

Judge was that if the Vice-President refused to sign the cheques, then action should have been taken against him either u/s 203 or u/s 206 of the

Act. u/s 206, power vests with the Inspector to remove the Vice-President. Section 206 states: -

1(1) If in the opinion of the Inspector, the vice-president willfully omits or refuses to carry out or disobeys any provisions of the Act, or any rule,

by-law, regulation, or lawful order made or issued under this Act or abuses any power vested in him, the Inspector shall by notice in writing,

require the vice-president to offer within a specified date, his explanation with respect to his cases of omission or commission mentioned in the

notice.

(2) the provisions of Sub-sections (2) to (13) (both inclusive) of Section 205 shall, as far as my be, apply in relation to the removal of the president

by the Inspector on his own motion.

Section 203 of the Act confers emergency powers on the Collector and Inspector. However, the learned single Judge was of the view that

unless the Vice-President is absent, a member cannot be authorized by the village panchayat to sign the cheque. According to the learned single

Judge, refusal or omission to sign the cheque does not amount to absence of the Vice-President. Such refusal can only attract Section 206 of the

Act, and it does not amount to absence u/s 188(3) of the Act.

In paragraph-15 of his judgment, the learned single Judge has observed: -

� The recommendations of the committee constituted for rationalization of the village panchayat accounts, which was accepted in G.O.Ms.No.

92, Rural Development (C.III) Department dated 26.3.1997, is also in tune with the principles laid down in Section 206 of the Act. Even though

the said Government Order empowers the panchayat to authorize the president and another ward member, such a resolution could be passed only

with the prior approval of the Inspector of Panchayats, obtained in this regard, as provided in the Government Order dated 26.3.1997, which

means that no resolution could be passed without the prior approval of the Inspector of Panchayats. Hence, the statute contemplates that if the

Vice-President refuses to sign the cheque for the operation of the village panchayat fund, it is obligatory on the part of the president to seek the

prior approval or permission from the Inspector of Panchayats to proceed with the matter. In such event, the Inspector, either exercising the

powers conferred u/s 206 of the Act, seek an explanation from the vice-president as to the refusal to sign the cheques, or alternately exercise the

emergency powers vested on him u/s 203 of the Act referred to above, and pass appropriate directions as temporary arrangement, in order to

maintain the day to day affairs of the panchayat. But, in no case the president can pass any resolution without the prior approval of the Inspector of

Panchayats. Reading Sections 188(3), 203 and 206 of the Act harmoniously, makes it clear that once prior approval or permission to take action

against the Vice President, who refuses to sign the cheque, is sought for, a duty is cast on the Inspector of Panchayats to seek an explanation from

the vice-president and pass appropriate orders. Therefore, the Inspector of Panchayats, before proceeding further on the allegation of refusal to

sign the cheque against the vice-president, has to read the procedure contemplated u/s 206(1) of the Act, into the procedure provided u/s 188(3),

before giving effect to any such resolution. Pending such action, the Inspector of Panchayats is at liberty to invoke emergency powers conferred

Section 203 of the Act

We agree with the learned single Judge that before granting prior approval to the resolution of the Village Panchayat authorizing any other

member to operate the account along with the President, as provided by G.O.Ms.No. 92, Rural Development (C.III) Department dated

26.3.1997, the Inspector of Panchayats (District Collector) has to give a notice to the Vice President and an opportunity of hearing to him. Such

hearing need not be a personal hearing and he can only be given a show cause notice asking him to give a reply to the allegations in the show cause

notice within a reasonable period. In our opinion, such a procedure would comply with the principles of natural justice, and it is not necessary that

the Vice President must be allowed to appear in person along with his counsel, witnesses etc. vide M.P.Industries v. Union of India, 1966 SC

671(vide paragraph 20), Anil Kumar Srivastava v. Chairman, L.I.C. of India 2003 ALJ 1744, Narain Das Jain Vs. Commissioner of Wealth-tax,

etc. As observed by the Supreme Court in The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, ,

Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, 2001 (1) SCC 182 natural justice is not an unruly horse. The rules of natural justice are

flexible and are not a strait-jacket formula, vide Bar Council of India v. High Court of Kerala, JT 2004 Supp. (1) SCC 428 , The Maharashtra

State Financial Corporation Vs. M/s. Suvarna Board Mills and another, , Union of India and Another Vs. Tulsiram Patel and Others, .

In Union of India and another Vs. M/s. Jesus Sales Corporation, , the Supreme Court observed: -

�The Courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the

persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise

discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the

competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-judicial

authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that

before dismissing such appeals or applications in all events the quasi judicial authorities must hear the appellants or the applicants, as the case may

be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does

not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present

his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if

he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to

such authority to decide the appeal or the application after affording a personal hearing. But any order passed after taking into consideration the

points raised in the appeal or the application shall not held to be invalid merely on the ground that no personal hearing had been afforded.

In the present case, we are satisfied that there was violation of natural justice, since no notice was given by the Collector before passing order

dated 07.11.2002. This averment has been specifically been made by the writ petitioner in paragraph-4 of his affidavit as well as in ground (d), but

there is no specific denial of this allegation by the Collector in his counter affidavit. Hence this allegation must be deemed to be correct.

It is true that a G.O or Executive Order cannot violate a statutory provision. However, if the statute and the G.O can be read harmoniously

then effort should be made by the Court to do so. Under G.O.Ms.No. 92 dated 26.03.1997, in exceptional cases, where there is adversarial

relationship between the President and the Vice President, the Panchayat, may, by a resolution, authorize any other member other than the Vice

President (or President, as the case may be) to jointly operate the account along with the President (or Vice-President). However, prior approval

of the Inspector of Panchayats (District Collector) has to be obtained for this.

The question which arises in this case is, where if the Vice President (or President, as the case may be) has adversarial relationship with the

President (or Vice President) of the Panchayat, and if for ulterior motive he refuses to sign the cheque, can this be treated as his �absence�?

In other words, whether the provision in G.O.Ms.No. 92 dated 26.03.1997, which states that in exceptional cases where there is adversarial

relationship between the President and the Vice President, the panchayat, may, by a resolution authorize any other member other than the Vice

president (or President, as the case may be) to jointly operate the account along with the President (or Vice President), is inconsistent with Section

188(3) of the Act?

In this connection, it may be mentioned that the Supreme Court in B.R. Enterprises Vs. State of U.P. and Others, observed: -

It is also well settled that first attempt should be made by the Courts to uphold the charged provision and not to invalidate it merely because one of

the possible interpretations leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one

invalidating the law and the other upholding, the latter should be adopted

Hence, we have to see whether there can be a reasonable interpretation, which makes G.O.Ms.No. 92 dated 26.03.1997 consistent with Section

188(3) of the Act. In Tamil Nadu Electricity Board and Anr. v. Tamil Nadu Electricity Board Engineers� Association (W.A.No. 1081 of 2004

delivered on 28.01.2004, we have discussed the scope of judicial review of administrative orders in great detail. We have observed that the Court

should exercise judicial restraint and should not readily strike down administrative orders, unless it is wholly unavoidable. The entire case law on

this issue has been discussed in the aforesaid judgment, and we reiterate the same.

The word �absence� can have several connotations. It can mean physical absence, but it can also mean mental absence, in the sense of

showing �lack of attention�, vide �The Concise Oxford Dictionary (tenth edition�).

In Collins �Concise Dictionary� (21st Century Edition), the word �absent� has been defined as; - 1) away or not present. 2) lacking

3) inattentive. Thus, the word �absent� does not merely mean being not physically present, but it can also mean lacking or inattentive, which

really means �mental absence�.

In The Chambers Dictionary (1998 Edition)�, the word �absent� has been defined as: -

� being away; not present; inattentive or dreamy�.

The word �absence� has been defined in the same dictionary as follows: -

� state of being away or not present; want or lack; non-existence; abstraction; inattention; sudden loss of consciousness of which the sufferer is

later unaware.

The above definition in Chambers Dictionary would also indicate that the word �absence� does not have one single meaning.

In The New International Webster�s Dictionary and Thesaurus� the word � absence� has been defined as follows: -

1) The state, fact, or time of not being present. 2) Lack; want. 3) Mental abstraction; lack of attention

Thus, the above definition also indicates that one can be absent in the sense of being inattentive or being mentally absent without being physically

absent.

In our opinion, we can give a wider meaning to the word �absence� than mere �physical absence�. One word can have several

meanings, just as several words can have one meaning (synonyms). It all depends on the context in which it has been used. For example, the word

�desertion� appearing in Section 13 of the Hindu Marriage Act implies not only factum of separation, but also �animus deserendi�, vide

Lachman Utamchand Kirpalani Vs. Meena alias Mota, . There can be constructive desertion. The husband and wife may be living together under

the same roof, but the husband may have legally deserted her (wife) by his conduct. Similarly the word �absence� is a word of wide

connotation, and is not necessarily limited to �physical absence�. The indifferent or obstructionist attitude of a person or avoidance can, in our

opinion, amount to absence in some situations.

In our opinion, if the Vice President (or President, as the case may be) by his conduct makes it impossible for the village panchayat to function

(either by neglecting his duties or by causing regular obstruction in the administration or otherwise) he may be said to be �absent�. Such

interpretation of the word �absence� in Section 188(3) would be taking a practical view otherwise the Vice President (or President, as the

case may be) if he has adversarial relationship with the Vice President (or President as the case may be) can make it very difficult for the Village

panchayat to function by his simple act of refusing to sign cheques. Funds are often required for various purposes and if the President or Vice

President refuses to sign cheques for ulterior motives, as is the allegation in the counter affidavit in this case, the functioning of the village panchayat

may become impossible. We are not expressing any opinion as to whether in this case, the Vice President has refused to sign for some ulterior

motives, but we are certainly of the opinion that Section 188(3) of the Act, as well as G.O.Ms.No. 92 dated 26.03.1997 can be read

harmoniously in the manner mentioned above. We do not agree with the learned single Judge that if the Vice President (or President, as the case

may be) refuses to sign it can never be a case of �absence� within the meaning of the word in Section 188 (3) of the Act, and the only

recourse which can be taken to is u/s 206. It may be noted that Section 206(2) of the Act states that before removing the Vice President the

procedure mentioned in Sub-sections (2) to (13) of Section 205 has to be complied with, and that procedure is a cumbersome, time consuming

one. Surely for signing every cheque it would be impracticable to resort to that procedure. If the conclusion of the learned single Judge that for

refusal to sign cheques action could be taken u/s 206(3) of the Act for removal of the Vice President (or President, as the case may be) the time

bound programmes like Village Panchayat, ear-marked grant account like Sampoorna Grama Yojgas Yojana Scheme (Food for work), Village

Panchayat Scheme Fund Account etc. will lapse if the funds are not utilized within the time stipulated, since the procedure mentioned in Sub-

sections (2) to (13) of Section 205 is very elaborate and cumbersome.

We would however point out that before granting prior approval it would be the duty of the Inspector of Panchayats (District Collector) to

give a hearing to the Vice President or (President, as the case may be) (which need not be a personal hearing as already mentioned above), and

apply his mind and decide by a written order giving reasons as to whether in his opinion, the Vice President (or President, as the case may be) is

refusing to sign the cheque for ulterior motive, or for genuine reasons in the interest of the village panchayat. It will be the duty of the Inspector of

Panchayats, to decide this matter objectively and impartially without being influenced by any extraneous pressures or considerations. If the refusal

to sign the cheque is for good and genuine reasons in the interest of the Village Panchayat, the Inspector should refuse approval, but if it is for

extraneous considerations or is mala fide he should grant it.

In view of the above discussions, we are of the opinion that G.O.Ms.No. 92 dated 26.03.1997 is not violative of Section 188(3) of the Act

and the two can be read harmoniously as stated above.

In the present case a perusal of the order of the District Collector, Vellore (Inspector of Panchayats, Vellore) dated 07.11.2002 cancelling the

power of the Vice President to sign the panchayat�s cheques as joint signatory, shows that the District Collector has merely acted on the

recommendation of the Block Development Officer, Katpadi Panchayat Union, and he has not applied his mind independently to the facts of the

case, and he has not come to any independent conclusion that the refusal to sign cheques by the Vice President was mala fide or for ulterior

motives. The District Collector, Vellore without issuing notice to the petitioner appears to have mechanically accepted the report of the Block

Development Officer, Katpadi Panchayat Union, which in our opinion was not proper.

In paragraph-4 of the petitioner�s affidavit it has been specifically alleged that no notice was given by the District Collector before passing

the impugned order, and this allegation has not been denied by the Collector in his counter affidavit. In our opinion, the District Collector�s order

dated 7.11.2002 has civil consequences, and hence it was incumbent on him to give a show cause notice to the petitioner before passing it, which

was not done. Hence, in our opinion, there was violation of the principles of natural justice, and the impugned order becomes illegal.

The District Collector, Vellore should have given a show cause notice and an opportunity of hearing to the Vice President (which need not

have been a personal hearing as already stated above), and after considering the explanation and other materials submitted by the Vice President,

he should have applied his mind independently and in a fair and impartial manner, and should have recorded his own reasons in the order he

passed. Since that does not appear to have been done in the order of the District Collector, Vellore dated 07.11.2002, in our opinion, the said

order was rightly quashed. The matter is remanded to the District Collector, Vellore to pass a fresh order after giving an opportunity of hearing to

the Vice President and President of the Panchayat, and others concerned, and after recording his reasons. This should be done very expeditiously

by the District Collector, Vellore.

The writ appeal is disposed of accordingly. No costs. Consequently, W.A.M.Ps are closed.