Partly allowed

K.Gurumurthy v. Secretary

Karnataka HC22 Oct 2020WP/22248/2013

Case brief

AI extract

What is this about?

This court read down an order removing a Grama Panchayat President and initiating proceedings as a 'show cause notice' as the original notice covered only 5 of the 21 alleged works. The court directed the petitioner to reply within four weeks and the State to consider the reply within eight weeks, citing violation of natural justice.

What did the court decide?

The order dated 05.04.2013 is read down as a show cause notice; petitioner to reply within four weeks; State to consider reply and pass appropriate orders within eight weeks.

K.Gurumurthy Vs Secretary — Public Procurement and Tenders | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF OCTOBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO.22248/2013 [LB - RES]

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BETWEEN:

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K.GURUMURTHY, S/O. KRISNAPPA AGED ABOUT 36 YEARS, PRESIDENT GRAMA PANCHAYATH DONEHALLI, JAGALUR TALUK, DAVANGARE DISTRICT-577 001. …PETITIONER (BY SRI.B.K.MANJUNATH, ADVOCATE)

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AND:

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SECRETARY, GOVT PANCHAYATH RAJ OFFICE OF THE RURAL DEVELOPMENT PANCHAYATH RAJ, M.S.BUILDING, BANGALORE-500 001.

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CHIEF ADMINISTRATIVE OFFICER, ZILLA PANCHAYATH, DAVANGARE-577 001.

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H.PRAKASH REDDY, MEMBER. MAJOR AGED 48 YEARS, DONEHALLI GRAMA PANCHAYATH, JAGALUR TALUK, DAVANGARE DISTRICT-577 001.

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DONEHALLI GURUMURTHY, MAJOR, AGED 50 YEARS,

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NEWS REPORTER AND MEMBER OF

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THE KISSAN SHABA, DONEHALLI,

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JAGALUR TALUK, DAVANGARE DISTRICT-577 001.

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DONNEHALLY GROUP PANCHAYATH, DONNEHALLI, JAGALUR TALUK, DAVANGARE DISTRICT

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(ADDED AS PER COURT ORDER)

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...RESPONDENTS

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(BY SRI. R.SRINIVASA GOWDA, AGA FOR R1; SRI. N.R.JAGADEESWAR, ADVOCATE FOR R2; NOTICE TO R3 & R4 ARE D/W V/O. DATED 15.07.2013; R5-SERVED UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE 1^ST RESPONDENT DATED 05.04.2013 VIDE ANNEXURE-E. GRANT AN INTERIM ORDER TO STAY THE OPERATION OF THE ORDER DATED 05.04.2013 PASSED BY THE 1^ST RESPONDENT VIDE ANNEXURE-E.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING-B THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner in this writ petition has called in

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question the order dated 05.04.2013 passed by the State,

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whereby two directions were issued, they are as follows;

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(1) Removal of the petitioner as member of the Donnehalli Gram Panchayat.

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(2) Initiation of criminal proceedings against the petitioner.

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Brief facts leading to the filing of this petition are as follows:

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The petitioner was elected as Adhyaksha of Donnehalli Gram Panchayat, Jagalur Taluk, Davanagere District. Alleging certain omissions and commissions against the petitioner, at the time of his functioning as a President of the Grama Panchayat, a communication was issued by the Chief Executive Officer, Zilla Panchayat, to the Secretary, Taluk Panchayat, in terms of Annexure ‘A’, dated 03.10.2012 depicting that out of 21 works that were undertaken by the Panchayat under the NAREGA scheme at the time when the petitioner was a President of the panchayat, five such works undertaken in this scheme were doubted and it was alleged that in those five particular works, there has been misutilization of funds.

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Another communication dated 18.10.2012 was

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issued by the Chief Executive Officer to the Secretary, reiterating those five works that were found in Annexure ‘A’. The addition was that the petitioner along with others to be prosecuted.

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In terms of the aforesaid two communications, a show cause notice was issued to the petitioner on 21.12.2012, directing him to show cause as to why proceedings should not be initiated under Sections 43(A) and 48(4) of the Panchayat Raj Act, 1993. The petitioner by his reply dated 27.12.2012 submitted that none of the allegations levelled in the report enclosed in the notice are true and further reiterated that in his tenure of 26 months as President of the Grama Panchayat, there was no misutilization of funds or no violation of any guidelines of the Government in implementation and execution of the works under the NAREGA scheme.

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Claiming to be in consideration of the reply of

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the show cause notice issued to the petitioner, the State

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Government passed an order directing removal of the petitioner from the membership of the Grama Panchayat and also to initiate criminal proceedings against him. It is this order that is called in question in the subject writ petition.

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Heard Sri. B.K. Manjunath, learned counsel for the petitioner, Sri. R. Srinivasa Gowda, learned counsel for Respondent No.1 and Sri. N.R. Jagadeeswar, learned counsel for Respondent No.2.

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The learned counsel for the petitioner would contend that in terms of the documents placed at Annexures ‘A’ and ‘B’, the show cause notice was issued, particularly alleging that out of the 21 works that the Panchayat undertook under the Presidentship of the petitioner, only 5 were of doubtful in nature wherein funds appeared to have been mis-utilized and a show cause notice was also issued to that effect. But while passing the order, all the 21 works were included as the allegations to which the petitioner had no opportunity to reply.

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On the other hand, the learned Additional Government Advocate would contend that the show cause notice clearly indicated that the action would be taken in terms of the enquiry report that was submitted and furnished to the petitioner along with the notice and the petitioner being prima facie guilty of the allegations that are leveled against him, no indulgence is called for at the hands of this Court.

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I have given my anxious consideration to the

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submissions made by the learned counsel for the parties and perused the record.

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Admittedly, the petitioner was issued with a

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show cause notice on the strength of two documents at Annexures ‘A’ and ‘B’, which in unequivocal terms indicated that five particular works undertaken by the Panchayat under the Presidentship of the petitioner were doubtful and funds utilized for the said works were misutilized. The show cause notice was replied to by the petitioner against the

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communication of allegations that were levelled in terms of Annexures ‘A’ and ‘B’. But the order that was passed against the petitioner was considering all the 21 works that the Panchayat executed under the Presidentship of the petitioner, as could be clearly gathered in the narration of the order. The order further indicates that an oral enquiry was conducted on 01.02.2013 and certain allegations against the petitioner were recorded.

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The order impugned passed by the State Government including all the 21 works that were executed when the petitioner was the President of the Grama Panchayat. Annexures ‘A’ and ‘B’ which formed the basis of the show cause notice were concerning only five works executed by the petitioner out of 21 to be of doubtful nature due to misutilisation of funds allotted under the scheme. The communication at Annexure ‘A’ clearly indicates that on an investigation/enquiry conducted of all the 21 works that were executed at the time when the petitioner was President, only five have been found to be dubious and the

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total amount of misutilisation was to the tune of Rs.16.31 lakhs.

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Restricting to five works in the notice, the final order brings in all the 21 works to which the petitioner had no opportunity to reply. Hence, the order impugned came as a bolt from the blue to the petitioner. It is settled principle of law that a case that was not made out by the State in terms of the show cause notice cannot be made a part of the final order as an opportunity to show cause against those findings was not available to the petitioner, which would be in violation of the principles of natural justice. The Apex Court in the case of RECKITT & COLMAN OF INDIA LTD. V. CCE , reported in (1997) 10 SCC 379 has held as follows:

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“ 3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show-cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch,

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the Tribunal should have allowed the appeal. It was beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. It is upon this ground alone that the appeal must succeed.”

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The afore-extracted judgment of the Apex Court makes it clear that a case that was not made out by the State in the show cause notice cannot be made a part of the final order. Therefore, the order impugned which takes into consideration matters that were not the subject to show cause notice or earlier communication to the petitioner will have to be read down as a show cause notice with an opportunity to the petitioner to submit his reply.

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For the aforesaid reasons, I pass the

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following:

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ORDER

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a. Writ petition is allowed in part.

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b. The order dated 05.04.2013 is read down and treated as a ‘show cause notice’.

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10 - -

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c. The petitioner is directed to furnish his reply to the order which is now read down as a ‘show cause notice’ within four weeks from the date of the receipt of a copy of this order.

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d. The State is directed the consider the reply of the petitioner and pass appropriate orders in accordance with law within eight weeks thereafter.

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e. All contentions of both the parties are kept open.

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Sd/JUDGE

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Snc

K.Gurumurthy v. Secretary

Case brief

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K.Gurumurthy v. Secretary

Case brief

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