Allowed

Sri.Kanti Veeresh v. the State of Karnataka

Karnataka HC24 Aug 2021WP/137136/2020

Case brief

AI extract

What is this about?

The High Court quashed an order removing the petitioner from the post of Adhyaksha and Member of the Nandihalli Gram Panchayath. The Court held the removal order violated principles of natural justice as it was passed without affording a sufficient opportunity for a personal hearing, contrary to statutory mandates and prior judicial directions.

What did the court decide?

Impugned order quashed; matter remitted to Respondent No.1 for a fresh inquiry after affording sufficient opportunity for a personal hearing.

Sri.Kanti Veeresh Vs the State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 24^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO.137136/2020 (LB-RES)

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BETWEEN

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SRI. KANTI VEERESH, AGED ABOUT 35 YEARS, PRESIDENT OF NANDIHALLI, GRAMA PANCHYATH, TQ: HADGALLI, DIST: BALLARI.

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...PETITIONER

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(BY SRI SUNIL S.DESAI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA REP.BY ITS DEPUTY DIRECTOR AND EX-OFFICIO SECRETARY, RURAL AND PANCHAYAT RAJ DEPARTMENT, VIKAS SOUDHA, BENGALURU.

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THE DEPUTY COMMISSIONER, BALLARI, DIST: BALLARI.

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THE CHIEF EXECUTIVE OFFICER, ZILLA PANCHAYAT, BALLARI, DIST: BALLARI.

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THE EXECUTIVE OFFICER, TALUK PANCHAYAT, HUVIN HADAGALI, DIST: BALLARI.

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THE PANCHAYAT DEVELOPMENT OFFICER, NANDIHALLI GRAM PANCHAYAT,

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NANDIHALLI, TQ: HUVIN HADAGALI, ANDUR, DIST: BALLARI.

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... RESPONDENTS

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(BY SRI V.S.KALASURMATH, HCGP FOR R1 AND R2; SRI V.SHIVARAJ HIREMATH, ADVOCATE FOR R3 TO R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 24.01.2020 PASSED BY THE 1^ST RESPONDENT AS PER ANNEXURE-AC AS ILLEGAL, ARBITRARY AND ONE PASSED IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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In this writ petition, the petitioner seeks quashing of the impugned order at Annexure-AC dated 24.01.2020 passed by respondent No.1 whereby the petitioner has been removed from the post of Adhyaksha and Member of respondent No.5/Nandihalli Gram Panchayath and for other reliefs.

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Heard learned counsel for the petitioner

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and learned HCGP for respondent Nos.1 and 2 and

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learned counsel for respondent Nos.3 to 5. Perused the material on record.

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In addition to reiterating the various contentions put forth in the memorandum of writ petition and referring to the documents produced by the petitioner, learned counsel for the petitioner invites my attention to the order Annexure-W dated 20.12.2018 passed in the earlier round of litigation in W.P.No.101717/2018 in order to contend that this Court has come to the conclusion that no opportunity of personal hearing was afforded/granted in favour of the petitioner prior to passing the earlier order and consequently this Court set aside the earlier order and remitted the matter back to respondent No.1 for reconsideration afresh after giving sufficient and reasonable opportunity in favour of the petitioner. Under the said order, this Court also directed the petitioner to appear before respondent No.1 on 14.01.2019.

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It is submitted that despite the petitioner

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submitting representations dated 11.01.2019 and 14.01.2019 to respondent No.1 enclosing the copy of the aforesaid order passed by this Court, respondent No.1 did not take any steps to conduct the proceedings. Instead on 05.07.2019, respondent No.1 issued a notice calling upon the petitioner to appear before respondent No.1 on 06.07.2019 at 3.00 p.m. It is the grievance of the petitioner that the time granted by respondent No.1 to appear before him between the date of notice dated 05.07.2019 and 06.07.2019, the date fixed for hearing was extremely small coupled with the fact that the petitioner was not in a position to attend the hearing since he was held up in a quarterly meeting as can be seen from Annexure-AA dated 30.06.2019. It is therefore submitted that the impugned order passed by respondent No.1 closing the hearing on 06.07.2019 itself without affording sufficient or reasonable opportunity to the petitioner is clearly violative of

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principles of natural justice as well as the provisions of Section 43-A of the Panchayath Raj Act (for short, ‘the Act’) as held by this Court in the case of N.Rama Murthy V/s State of Karnataka and others, W.P.No.20304/2018 dated 21.02.2019. Under these circumstances, learned counsel for the petitioner submits that the impugned order passed by respondent No.1 being violative of principles of natural justice deserves to be quashed.

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Per contra , learned HCGP as well as learned counsel for respondent Nos.3 to 5 jointly submit that sufficient and reasonable opportunity was granted in favour of the petitioner to appear and contest the proceedings and consequently the impugned order passed by respondent No.1 does not suffer from any illegality and infirmity warranting interference by this Court.

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I have given my anxious consideration to the rival contentions and perused the material on

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record. Before adverting to the rival contentions, it is necessary to note that this Court in N.Rama Murthy’s case supra, has held as under:

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“As regards the inquiry, though neither Section 48 nor Section 43A of the Act provide for any procedure for the conduct of inquiry nor are there any Rules governing the procedure of holding of an inquiry, the procedure of conducting the inquiry should be such that principles of natural justice are adhered to. While it would not be appropriate to detail the steps as such that require to be followed in the inquiry, as this aspect is left to the State and appropriate Authority, this Court nevertheless could examine the procedure adopted in the particular facts of the present case and can come to a finding as to its legality.

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The inquiry in the present matter has the effect of casting a stigma and would visit serious consequences disentitling him from re-election for the remaining term of office as regards the post of Adhyaksha and Upadhyaksha (as provided under

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Section 48 of the Act) and if an order under Section 43-A is passed, that would not only result in loss of membership but would also result in such member being disqualified from contesting election to any Panchayat for the ‘next six years’.

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The contention of the petitioner that the inquiry was concluded in a hurried manner without affording any opportunity of personal hearing, is a matter that requires consideration.

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Before adverting to the various contentions raised, the contention of the learned Additional Government Advocate that issuance of show-cause notice and affording an opportunity to reply to the same is by itself sufficient and is to be construed to be a part of the inquiry process and requires to be considered.

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The issuance of the show cause notice and an opportunity afforded to the petitioner to reply relates to a pre-inquiry stage. As was rightly held by this Court in Writ Petition No.201726 of 2017

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(LB-RES), in the case of Shivanagouda v. State of Karnataka and Others , by order dated 15.09.2017, the issuance of show-cause notice and considering the reply should not be treated as a substitute or as supplementing the inquiry as mandated under Section 43-A and Section 48(4) of the Act. Having addressed this contention as above, the contentions regarding adherence to principles of natural justice during the inquiry proceedings are considered herein below.

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The impugned order has been passed purportedly under Sections 43A and 48(4) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. It is no doubt true that the show-cause notice came to be issued which has been replied by the petitioner. Section 43A of the Act specifically provides that the member who is subjected to the inquiry is to be afforded an opportunity of being heard. Section 48(4) of the said Act also provides that “an opportunity is afforded for hearing him”.

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This requirement apart from being prescribed under the statute also flows from the general principle that the nature of inquiry relating to removal of elected members being quasi-judicial necessarily contemplates adherence to principles of natural justice which would include affording an opportunity of personal hearing.

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The Apex Court in the case of Ravi Yashwanth Bhoir Vs. District Collector, Raigad and others reported in (2012) 4 SCC 407 while dealing with proceedings relating to disqualification of a President of the Municipal Council has, in detail, stated the principles that are required to be followed in any inquiry and dealt with the expression ‘misconduct’.

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The Apex Court while dealing with the procedure required to be adopted in the inquiry has observed that there should be strict compliance with the principles of natural justice and that “principles of natural justice require a fair opportunity of defence to such an elected office bearer.”

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Para-30 of the judgment is extracted hereinbelow:-

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“30. There can be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide Indian National Congress (I) v. Institute of Social Welfare] This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab, and Union of India v. H.C. Goel. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer.”

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It is also observed that the elected representatives cannot be removed unless a clear case is made out, as such representative is discharging duties in exercise of a statutory right and also represents the interest of those who have

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elected him. It is further observed that removal would cast a stigma and hence proceedings ought to be strictly viewed.

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The Apex Court has also observed:

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“31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a Government servant. If a temporary Government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full fledged inquiry.”

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In the present case, on perusal of the order sheet as contained in the file made available, it is noticed that the only effective date of hearing was 24.07.2017 and on the said date, time was sought for by the petitioner which having been refused, the matter was posted for orders providing a week’s time for filing of written submissions. A copy of the proceedings also reveals that the matter was fixed for

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hearing on 22.05.2017 which came to be adjourned to 14.06.2017 and on 14.06.2017, once again the matter came to be adjourned to 24.07.2017.

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Hence it is clear that the request for adjournment made on 24.07.2017 can, by no stretch of imagination be described to be an unreasonable request for accommodation. The demand for an opportunity of personal hearing should be so construed that every reasonable accommodation ought to be provided without sticking to undue technicalities.

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Hence, in the present case, clearly the mandate under Section 43A as well as Section 48 as regards affording an opportunity of personal hearing has not been fulfilled. In light of the observations of the Apex Court taking note of the nature of consequences that would visit the elected member by virtue of he being removed which would also involve a stigma, clearly the inquiry in the facts of the present case is vitiated.”

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As held by this Court in N.Ramamurthy’s case supra, any order passed by respondent No.1 under Section 43-A of the said Act without affording sufficient and reasonable opportunity to the petitioner or hearing him is clearly violative of principles of natural justice and the same deserves to be quashed. Coming to the facts of the instant case as rightly contended by learned counsel for the petitioner, the extremely short time gap between 05.07.2019 and 06.07.2019 when the notice was issued by respondent No.1 calling upon the petitioner to appear on 06.07.2019 itself coupled with the fact that even on 06.07.2019, after noting the absence of the petitioner in the proceedings, respondent No.1 did not grant one more opportunity in favour of the petitioner nor hearing him before passing the impugned order is sufficient to establish that the impugned order passed by respondent No.1 is violative of principles of natural justice and contrary to the letter and spirit of the earlier order dated

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21.02.2019 passed by this Court particularly when

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respondent No.1 did not deem it fit to comply with the earlier order passed by this Court in W.P.No.101717/2018 referred to supra, directing the

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petitioner to appear before respondent No.1 on 14.01.2019 though the petitioner submitted two representations dated 11.01.2019 and 14.01.2019 expressing his readiness and willingness to appear before respondent No.1 on that day. Under these circumstances, I am of the view that the impugned order passed by respondent No.1 deserves to be quashed and the matter remitted back to respondent No.1 for reconsideration afresh after affording sufficient and reasonable opportunity of personal hearing to the petitioner and to proceed thereafter in accordance with law.

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In the result, I pass the following:

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ORDER

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i. The petition is allowed.

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ii. Impugned order dated 24.01.2020 hereby quashed. Matter is remitted back to the respondent No.1 for reconsideration afresh after affording sufficient and reasonable opportunity to petitioner and after giving him personal hearing in the matter.

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iii. Petitioner undertakes to appear before respondent No.1 on 06.09.2021 at 3.00 p.m.

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iv. It is further directed that if for any reason, respondent No.1 does not decide to hold sitting and/or conduct the proceedings on 06.09.2021 as stated supra, respondent No.1 should adjourn the proceedings to a subsequent date and also notify the said petitioner about the adjourned date of hearing so as to enable the petitioner to be present and contest the proceedings on such adjourned date.

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