Surendrasinh Gajubha Zala vs State of Gujarat and Another

D.A. Mehta, J.—This petition has been preferred challenging the action initiated against the petitioner u/s 57(1) of the Gujarat Panchayats Act, 1993 (the Act) culminating in an order dated 07/10/2008 made by the District Development Officer, Mehsana (DDO) removing the petitioner from the post of Sarpanch, which in turn has been confirmed by the Additional Development Commissioner in Appeal No. 129 of 2008 by order dated 23/03/2009.

The petitioner was elected as Sarpanch of Vidaj Gram Panchayat, Tal. Kadi, Dist: Mehsana. On 24/07/2008 in exercise of powers u/s 57(1) of the Act show-cause notice came to be issued to the petitioner by the DDO on the basis of report dated 27/06/2008 of the Taluka Development Officer, Kadi. The show-cause notice stated that the petitioner had by his acts of commission and omission committed misconduct and abused powers in relation to the following four items.

i) Purchase of materials was effected for amounts exceeding value of Rs. 500/- without inviting competitive rates from at least three traders in violation of the requisite rules set out in the show-cause notice;

ii) payment of sums exceeding Rs. 1,000/- was made in cash instead of by account payee cheques again in contravention of the requisite rules;

iii) amounts were paid as labour charges to five persons without the vouchers mentioning the names of the persons to whom the payments were made and without obtaining signatures of the recipients;

iv) the petitioner had failed to take necessary steps as required by Section 105 of the Act for removing the encroachment over Panchayat Land. The petitioner as well as the Talati submitted their explanation / written reply in response to the show-cause notice accompanied by affidavits of five labourers as well as copy of Panchnama showing removal of encroachment. This was followed by a further reply submitted on 24/09/2008.

On 07/10/2008 the DDO found that the petitioner had failed in discharging his duties as provided in law and had thus committed misconduct resulting in misappropriation of funds belonging to Panchayat. The petitioner challenged the said order of removal by preferring an appeal before the appellate authority but vide impugned order dated 23/03/2009 the appellate authority has confirmed the order made by DDO without assigning independent reasons, according to the petitioner.

Learned Advocate for the petitioner vehemently contended that the alleged act of misconduct could neither be treated to be misconduct within the terms of Section 57(1) of the Act, nor could it be termed to be abuse of powers as alleged, but at the highest the same would amount to mere irregularity in maintenance of record which would not lead to removal of an elected representative. It was further submitted, that as explained by the petitioner in response to the show-cause notice, the petitioner had assumed office for the first time and was not fully conversant with the relevant rules; that the Talati had not invited attention of the petitioner to the relevant rules and the standing instructions issued by the State Government. That the petitioner had categorically averred that the petitioner has not misappropriated any amount nor caused any financial loss to the Panchayat, had acted in accordance with the Resolutions passed by the Panchayat and therefore the petitioner should not be penalized by removal from the office in absence of anything more being available on record. In relation to the first default it was submitted that the petitioner had made purchases in cash for items exceeding in value of Rs. 500/- each without inviting competitive bids on record, but in fact had made the purchases in presence of two or three members of the Panchayat after verification of the rates from three or four traders. In relation to the second charge it was submitted that payments for purchases exceeding Rs. 1000/- in value had admittedly been made in cash but this was because the village, according to the petitioner, did not have any Branch of any Bank nor had the payees any Bank account. In relation to the third charge the explanation was that the work had been carried out, payments had been made to the labourers, the presence of the labourers had been noted in the register, affidavits of the said five persons were placed on record before the authority and therefore mere absence of name or signature in the voucher would not be sufficient to visit the petitioner with penalty of removal from office. In so far as the fourth allegation was concerned the authority had accepted the explanation tendered.

In support of the submissions made learned Advocate submitted that the DDO had committed an error in law in coming to the conclusion that there was misappropriation of fund belonging to the Panchayat when the same was not forming the basis for initiation of action as could be seen from the show-cause notice. Therefore, according to the learned Advocate, the order made by DDO could not have been upheld by the appellate authority. That in so far as appellate authority is concerned, it was submitted, the said authority had failed to assign any independent reasons and had merely recorded conclusions after narrating facts. That none of the grounds raised by the petitioner had been dealt with by the appellate authority. Relying on judgment of this High Court in the case of Kamlaben Rohitbhai Patel v. Additional Development Commissioner reported in 2000 (2) GLR 1174 it was submitted that a Sarpanch, being an elected representative could not be treated as an employee and mere procedural irregularities or irregularities in accounting procedure could not be made a basis for removing a Sarpanch. Paragraph No. 11 of the judgment was read with emphasis. Learned Advocate therefore submitted that the entire action of the respondent-authorities was required to be struck down.

Learned Advocate for the DDO and the learned Assistant Government Pleader appearing for the appellate authority have been heard. Both of them have supported the orders made by the respondent-authorities. Learned Assistant Government Pleader has placed reliance on the same judgment on which the learned Advocate for the petitioner has placed reliance.

Section 57(1) of the Act stipulates that the competent authority may remove from office any member of a Panchayat, a Sarpanch or a Upsarpanch, after giving such person an opportunity of being heard and giving due notice in the said behalf to the Panchayat, and after such inquiry as competent authority deems necessary. The caveat being, such person should be guilty of misconduct in the discharge of his duties, or should be guilty of any disgraceful conduct, or should have abused his powers in performance of his duties and functions under the Act, or has made persistent default in the performance of his duties and functions under the Act, or has become incapable of performing his duties. In so far as the petitioner is concerned the show-cause notice is based on the petitioner having committed four defaults amounting to misconduct in the discharge of his duties and / or abuse of the powers in the performance of his duties.

At the first blush the contention raised on behalf of the petitioner that in absence of any specific allegation as to misappropriation of any amount such observation could not have appeared in the order of the DDO appears to be attractive but a closer scrutiny of the facts and the record reveals that the said observation is merely an observation in the passing without any finding in this regard being recorded as shall be demonstrated hereinafter.

In so far as the three charges are concerned it is not necessary to set out the facts in detail once again. Suffice it to state that the petitioner has in terms accepted that there was violation of relevant rules in the form of purchases in cash exceeding the specified limit, payment being made in cash in excess of specified limit instead of by account payee cheques, and payment to labourers whose names and signatures do not appear on the debit vouchers under which the payments were made.

It is not possible to state that the said defaults are mere procedural lapses when one considers the provision of Section 55 of the Act which sets out the executive functions of the Sarpanch read with Section 143 of the Act which stipulates compulsory audit of the accounts of the Panchayat. Each of the default would indicate that they relate to financial transactions which would not be amenable to verification as and when the accounts are audited and therefore it is not possible to state that this was merely an accounting procedural lapse. The Sarpanch as the Head of the Elected Body is having not only responsibility, but fiscal responsibility to manage the funds of the Panchayat in accordance with the law and the Rules laid down therefore and cannot be heard to say as Head of the Elected Body that he is not personally answerable as to management of the funds of the elected body. He is acting in a fiduciary capacity as trustee of public funds. The underlying idea and purpose of the rules would indicate that it becomes possible to verify and confirm that the amounts have been actually used for the purpose for which they are shown to be used, with a further requirement to ascertain as to whether the amount has actually been expended to the extent debited, in full or in part. In other words, the expenses in question are not expended to the detriment of the Panchayat. Similarly payments in cash would not be possible to verification, more particularly as to identity of the recipients, in cases where neither the names of the recipients nor their identity is established. In this connection the production of affidavits of five persons in the present case before the DDO would not carry the case of the petitioner any further in absence of any material available on record to link for the purpose of cross verification whether the deponent of the affidavit is the same person to whom the payment is shown to have been made by debit voucher in absence of any corelation. Similarly the explanation that purchases in cash were made in presence of two or three members of the Panchayat also does not merit acceptance, being a bald explanation, in absence of any confirmation or the names of the other members of Panchayat who accompanied the Sarpanch at the time of so-called purchases. Therefore, on facts of the present case it is not possible to accept the contention that these are merely procedural irregularities or lapses which should be condoned without the petitioner being proceeded against under provisions of Section 57(1) of the Act.

In so far as payments exceeding the limit of Rs. 1,000/- in cash instead of account payee cheques the explanation that the recipients did not have Bank accounts is not germane to the issue. The relevant rules in this behalf do not make an exception in case of recipients who do not possess bank accounts. Admittedly all the transactions of the Panchayat in relation to receipt of income / grant etc, are through Banking channel and therefore the facile explanation that cheque book was obtained only after the show-cause notice was issued and future payments would be made by account payee cheque would not absolve the petitioner in relation to the defaults already committed.

When one reads the entire order of the DDO the so-called reference to misappropriation is merely an observation in the passing but in fact the petitioner has been proceeded against on the basis of the defaults committed in discharge of his duties and abuse of powers while carrying out his duties so as to continuously repeat the defaults. It is in this context that the finding in the earlier part of the order has to be appreciated, as regards the purchases made from 28/04/2007 upto 12/02/2008 on different dates for different amounts ranging from Rs. 5,000/- upto Rs. 41,000/- in cash in excess of the stipulated limit, and therefore the contention that the petitioner was new to the job and was not aware of the rules cannot be accepted. In fact the DDO has referred to the explanation tendered by the Talati wherein categorically the Talati has stated that at the appropriate time the Sarpanch had been informed to act in accordance with the relevant rules in this regard. The submission of the petitioner that it was word of the Talati against the word of the petitioner also does not merit acceptance because the petitioner himself was aware that both the petitioner and the Talati were called upon to tender explanation and both of them had tendered their respective replies. Nor has the petitioner led any evidence to contend and establish that the Talati had any previous animosity against the petitioner.

In the circumstances on none of the grounds pleaded can it be stated that on facts the DDO has committed any error so as to warrant interference. The appellate authority has confirmed the order made by the DDO. It is settled position in law that in a case where the appellate authority confirms the order of the subordinate authority it is not necessary to once again repeat all the reasons. The only requirement is that the appellate order must indicate the application of mind by the appellate authority and a clear indication that the appellate authority has concurred with the order of the subordinate authority. It is only in a case where the appellate authority wants to make departure from the view expressed by the subordinate authority that independent and detailed reasons would be required. Hence the contention that the order of the appellate authority does not contain independent reasons also does not merit acceptance.

In the result the petition does not merit acceptance considering the facts and circumstances of the case and in light of what is stated herein before. The petition is accordingly rejected. Notice discharged. There shall be no order as to costs.