Sasikala vs The District Collector and Others

B. Rajendran, J.—This Writ Petition has been filed by the Vice President of Kuruvikarambai Village Panchayat challenging the order of the first respondent withdrawing her cheque signing power and permitting the fourth respondent to sing the cheque in the place of the petitioner.

The only ground raised by the petitioner is that even though there was a recommendation by the panchayat resolution, before passing such an order, the District Collector should have issued notice calling upon the petitioner to give explanation. In this case, no such notice has been issued and thereby violated the principles of natural justice. No explanation was called for and the order is not supported by any reason by the Collector. The Collector has not independently looked into the matter and passed orders. Therefore, the order is per se illegal in view of the judgment of the Division Bench in Pugazhendran President, Brammapuram Village Panchayat, Katpadi Panchayat Union Vs. B.G. Balu, The District Collector, (Inspector of Panchayats) and The Government of Tamil Nadu, and K. Valarmathi Vs. The District Collector. Coimbatore District, Coimbatore - 641 018, The Assistant Director (Panchayat), Collectorate. Coimbatore -641 018, The Block Development Officer (Panchayat), Perianaickenpalayam, Coimbatore-641 020 and P.V. Mani--> .

The third respondent President of the Panchayat has filed a counter in the form of vacate stay petition stating that the petitioner was not at all cooperating with the functions of the panchayat in signing the cheques and with a view to stall the very functioning of the panchayat, she had voluntarily created such a havoc and 90% of the members have supported the resolution. In the meeting held for such a resolution, the petitioner herself has participated along with one of her supporters and opposed it and gone into the details of the meeting. Having participated in the meeting, now it is not open to her to say that no notice was issued to her.

The learned Additional Government Pleader appearing for the first respondent, though not filed any counter, they have filed a typed set of papers and submitted that the Collector has got necessary inputs not only from the minutes but also from the reply of the third respondent and considered the resolution and passed an order in accordance with law. Therefore, the order is per se correct.

Heard all the parties.

As rightly pointed out, the only question raised is whether the Collector before passing the impugned order pursuant to the resolution passed by the panchayat had issued any notice to the petitioner. On a careful reading of the impugned order itself would clearly indicate that no notice was issued to the petitioner. The reference in the order is only relating to the resolution and the explanation submitted by the third respondent viz., the President. Thereafter, the Collector has not sent any separate notice to the petitioner calling upon her regarding the cancellation of withdrawal of the power to sign the cheque. As rightly pointed out, the cheque signing power is a statutory power which has been vested on the Vice President. Therefore, before withdrawing such power, the authority should have given a notice. In this connection reference was made to the judgment of the Division Bench in Pugazhendran President, Brammapuram Village Panchayat, Katpadi Panchayat Union Vs. B.G. Balu, The District Collector, (Inspector of Panchayats) and The Government of Tamil Nadu, and the relevant portion of the judgment reads as under:

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 Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), , Anil Kumar Srivastava Vs. Chairman, L.I.C. of India and Others, , 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. Vs. Girja Shankar Pant and Others, 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 Vs. High Court of Kerala, , The Maharashtra State Financial Corporation Vs. M/s. Suvarna Board Mills and another, , Union of India and Another Vs. Tulsiram Patel and Others, .

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 7.11.2002. 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 26.3.1997, 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.

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 the present case a perusal of the order of the District Collector, Vellore (Inspector of Panchayats, Vellore) dated 7.11.2002 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.

Similarly, following the above Division Bench judgment, a single Judge in K. Valarmathi Vs. The District Collector. Coimbatore District, Coimbatore - 641 018, The Assistant Director (Panchayat), Collectorate. Coimbatore -641 018, The Block Development Officer (Panchayat), Perianaickenpalayam, Coimbatore-641 020 and P.V. Mani--> has held as under:

"9. A resolution was passed by the panchayat withdrawing the power of signing cheques from the petitioner on 27.12.2004. The said resolution was communicated to the Block Development Officer on the same day. The Block Development Officer also communicated the resolution on the same day to the District Collector, who passed the impugned order on 31.12.2004 within a period of five days.

No material is produced by the first respondent to contend that he gave notice to the petitioner, after receiving the report in respect of the resolution from the Block Development Officer, as to the resolution. In the absence of production of such material and by the fact that the impugned order has been passed solely on the report of the Block Development Officer, I am of the considered view that the above judgment of the Division Bench is squarely applicable to the facts of this case.

As per the Division Bench judgment, before passing an order cancelling the power of the Vice President to sign cheques as joint signatory, the District Collector has to issue notice to the Vice President and has to apply his mind independently as to the allegations on which the decision of withdrawal of cheque signing power is to be taken. In the absence of affording of such an opportunity, the impugned order is liable to be set aside.

In view of the above judgment, I am of the considered view that the impugned order is liable to be set aside on the sole ground that the same has been passed without notice to the petitioner to explain her stand."

In this case also no counter has been filed by the Government showing that any notice was issued before passing the order by the Collector. Therefore, the averment that no notice was issued prior to passing of the order withdrawing the cheque signing power has not been controverted in accordance with law. Further, even on a careful reading of the order, it is clear that the Collector has not independently considered the matter before passing the order excepting to state that adopting the resolution and that too without notice. Therefore, the impugned order is set aside. The Writ Petition is allowed. However, it is always open to the Collector to pass appropriate orders after issuing notice to the petitioner calling upon her to give explanation and thereafter, opportunity of personal hearing need not be given.