Mr G Somashekar Vs Chief Accounts Officer

CHIEF ACCOUNTS OFFICER BENGALURU URBAN ZILLA PANCHAYATH, 515, 1^ST CROSS ROAD, CHANDRA LAYOUT, UMARGHAG LAYOUT, BANASHANKARI TEMPLE WARD, BENGALURU-560078

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CHIEF EXECUTIVE OFFICER BENGALURU URBAN ZILLA PANCHAYAT 515, 1^ST CROSS ROAD, CHANDRA LAYOUT, UMARBHAG LAYOUT, BANASHANKARI TEMPLE WARD, BENGALURU-560078

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THE EXECUTIVE OFFICER TALUK PANCHAYAT, BENGALURU NORTH TALUK NES OFFICE ROAD, SUGGAPPA LAYOUT, EAST COLONY YELAHANKA, BENGALURU-560064

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HUSKURU GRAMA PANCHAYAT DASANAPURA HOBLI, BENGALURU NORTH TALUK-562162 REPRESENTED BY ITS PANCHAYAT DEVELOPMENT OFFICER

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THE POLICE INSPECTOR MADANAYAKANAHALLI POLICE STATION, SIDEDAHALLI MAIN ROAD, MADANAYAKAHALLI, BENGALURU-562162

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…RESPONDENTS

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(BY SRI. MAHESH R. UPPIN, ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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SRI. M.S. DEVARAJU, ADVOCATE FOR RESPONDENT NOS.3 AND 4; SRI. B. BOPANNA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.5;

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SRI. SAMPATH BAPAT, ADVOCATE FOR PROPOSED RESPONDENT)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE REPORT DATED 12.07.2017 VIDE ANNEXURE-C BEARING NO.BUZP:CAO:PAVA:ACCOUNTS-2:GRAPAN:2017-18 AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged the report of respondent No.1 bearing No.¨ÉA£Àf¥ÀA:ªÀÄÄ¯ÉC:¥ÀªÀ:¯ÉPÀÌ-2:UÁæ¥ÀA:2017-18 dated

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12.07.2017 (Annexure - C). He has also challenged the

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communication bearing No.DqÀ½vÀ(1)¹¹J-08/2017-18 dated 25.10.2017 addressed by the respondent No.2 to the respondent No.3 based on the report at Annexure - C. He has also challenged a notice bearing No.¨ÉAGvÁ¥ÀA/PÁPÉÃ£ÉÆÃ/2017-18 dated 16.11.2017 addressed by the respondent No.3 to the respondent No.4. Likewise, he has challenged the communication dated 04.12.2017 addressed by the respondent No.3 to the respondent No.5 to register a complaint in view of the report at Annexure - C.

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(i) The petitioner was elected as the President of the respondent No.4 - Grama Panchayat. A notice dated 16.11.2017 was issued to him by respondent No.3 calling for an explanation regarding findings of the respondent No.1 in his report dated 12.07.2017. The petitioner replied to the notice dated 16.11.2017 contending that respondent No.1 had no authority to entertain a complaint and also to conduct an enquiry. The petitioner contends that he was not aware of the enquiry being conducted by the respondent No.1 and no notice in that regard was issued by the respondent No.1. The respondent No.2 addressed a letter dated 25.10.2017 to the

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respondent No.3 directing him to initiate proceedings under Section 43-A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (henceforth referred to as 'Act, 1993') and also initiate criminal action. The petitioner then challenged the letter dated 25.10.2017 addressed by the respondent No.2, report dated 12.07.2017 submitted by the respondent No.1 and the consequent notice dated 18.11.2017 in W.P.No.54139/2017. The said writ petition was dismissed on the ground that it was premature as the reply of the petitioner was yet to be considered.

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(ii) The petitioner contends that he was not issued with

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any notice of hearing and that respondent No.3 had addressed a letter dated 04.12.2017 to respondent No.5 to register a case against him. While doing so, respondent No.3 had referred to the reply furnished by the petitioner to the show cause notice, thereby establishing that the letter dated 04.12.2017 was also based on the report of the respondent No.1 dated 12.07.2017. The petitioner contends that respondent No.5 registered a case in Crime No.561/2017 against him for the offences punishable under Section 43-A of the Act, 1993 and Sections 406, 408 and 409 of IPC. The petitioner filed Criminal Miscellaneous

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No.1927/2017 before the I Additional District and Sessions Judge, Bengaluru Rural District, for anticipatory bail.

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(iii) The petitioner is therefore, before this Court challenging the enquiry report dated 12.07.2017, notice dated 16.11.2017 as well as the letters dated 25.10.2017 and 04.12.2017, referred supra.

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The learned counsel for the petitioner contended that to initiate proceedings under Section 43-A of the Act, 1993 as it then stood, it was the Government alone which could take a decision regarding conduct of proceedings under Section 43-A of the Act, 1993. He therefore, contends that neither the respondent No.2 nor respondent No.3 had any role in the proceedings under Section 43-A of the Act, 1993. Thus, he contends that the whole exercise falls foul of Section 43-A of the Act, 1993 and the consequent proceedings initiated in directing respondent No.5 to register a criminal complaint against the petitioner are all liable to be set at nought. Learned counsel invited the attention of the Court to Section 43-A of the Act, 1993 prior to its amendment by Act No.49/2020 and contended that it was the Government alone

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which had to take a decision as to whether a member had incurred disqualification. He therefore, contends that the impugned proceedings initiated on the basis of the report of respondent No.1 by respondent No.3 has no basis and the same is liable to be set at nought.

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The writ petition is opposed by the respondent Nos.3 and 4 who have filed statement of objections inter alia contending that the petitioner was elected as President of respondent No.4 at a meeting held on 09.07.2015. It is contended that the petitioner has challenged the report dated 12.07.2017 submitted by respondent No.1 and the consequent communication which was based on the report dated 12.07.2017. It is contended that the only ground urged by the petitioner in support of this writ petition is that he was not provided with an opportunity before an enquiry report was submitted by the respondent No.1. It is contended that respondent No.4 has only acted upon the instructions of respondent Nos.1 and 2 and therefore, neither the respondent No.4 nor the respondent No.3 has any role in the preparation of the report or implementation/action based on the report. It is contended that there were severe irregularities committed by

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the petitioner in procuring materials from a particular entity where he had a direct interest. It is therefore, contended that the report of respondent No.1 is based on the materials collected and hence, the petitioner cannot find fault with the same.

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The learned counsel for the respondent Nos.3 and 4 reiterated the above contentions.

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The learned counsel for respondent Nos.1 and 2 submitted that though Section 43-A of the Act, 1993 as it then stood did not provide for an enquiry by respondent Nos.1 and 2 and action by respondent No.3, he submitted that after the amendment, it is the State Government who after being duly satisfied by any report submitted by the Regional Commissioner, can take a decision under Section 43-A of Act, 1993. He therefore, submits that the report submitted by the respondent No.1 may be treated as information and ordered to be placed before the Regional Commissioner, who may be directed to take necessary steps and place it before the State Government. As regards, communication addressed by the respondent No.3 to respondent No.5, he contends that though

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this was based on the report submitted by the respondent No.1, FIR registered against the petitioner could independently be looked into by respondent No.5 and therefore, the said communication cannot be interfered with.

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Learned Additional Government Advocate on the other hand, submitted that FIR was registered against the petitioner based on the communication addressed by the respondent No.3. He contends that respondent No.5 would conduct an investigation into the matter independently and without being influenced by the report submitted by the respondent No.1 and proceed in accordance with law.

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I have considered the submissions of the learned counsel for the petitioner as well as the learned counsel for the respondent Nos.1 and 2, learned counsel for respondent Nos.3 and 4 and the learned Additional Government Advocate for respondent No.5.

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An application (I.A.No.1/2018) for impleading is filed by the complainant at whose instance, the enquiry was conducted by the respondent No.1. However, in view of the

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findings that would be recorded hereinafter, it is unnecessary to consider this application.

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A perusal of the proceedings show that respondent No.1 based on the complaint of the proposed respondent/complainant, had conducted an enquiry and had submitted a report indicting the petitioner of certain illegalities and irregularities. Based on this report, the respondent No.3 had issued a show-cause notice calling upon the petitioner to respond to the allegations made in the report. A perusal of the show-cause notice indicates that the same was issued to initiate proceedings under Section 43-A of the Act, 1993. As rightly contended by the learned counsel for the petitioner, for proceedings under Section 43-A of the Act, 1993 as it then stood, it was the Government alone which had to take a decision based on the recommendation made by the Gram Panchayat. The report of the respondent No.1 could at the most be considered by the Gram Panchayat and it could have recommended to the State Government to consider the report and initiate proceedings under Section 43-A of the Act, 1993. Therefore, the impugned show-cause notice issued by the respondent No.2 based on the report submitted by respondent

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No.1 is without authority of law. However, having regard to the seriousness of the allegations made against the petitioner, it is incumbent upon the authorities concerned to initiate suitable proceedings by considering the report submitted by the respondent No.1 and if necessary, to take out proceedings under Section 43-A of the Act, 1993. Having said that, this Court cannot come in the way of the respondent No.5 investigating into the allegations made against the petitioner independently.

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In that view of the matter, the following order is

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passed:

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ORDER

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(i) This writ petition is allowed in part. (ii) The impugned show-cause notice dated 16.11.2017 issued to the petitioner by respondent No.3 is quashed.

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(iii) The report submitted by the respondent No.1 dated 12.07.2017 shall now be placed before the State Government, who shall, if

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necessary, initiate appropriate proceedings as provided under Section 43-A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. It is open for the State Government to take steps as per Section 43A of the Act, 1993 as it exists today. If the State Government decides to proceed, then the Regional Commissioner shall not be influenced by any observations made in the course of this Order.

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(iv) The Regional Commissioner shall take an independent decision regarding recommendation to the State Government to initiate proceedings under Section 43-A of the Act, 1993. If the State Government is of

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the opinion that the action has to be initiated

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against the petitioner, the same shall be done in accordance with law after hearing the petitioner.

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(v) As regards challenge to the FIR lodged against the petitioner, the respondent No.5 shall proceed independently uninfluenced by the report dated 12.07.2017 submitted by the respondent No.1 and proceed in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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PMR List No.: 1 Sl No.: 7

Mr G Somashekar v. Chief Accounts Officer

Case brief

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Mr G Somashekar v. Chief Accounts Officer

Case brief

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