Disposed

Ananth Rao Deshpande v. The State of Telangana and 3 others

Telangana HC1 Oct 2020WP/12778/2020

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the suspension of a Sarpanch. It held that suspension under Section 37(5) is pending investigation, not enquiry, and allowed the suspension order while directing the inquiry to be completed within six weeks.

What did the court decide?

The writ petition was disposed of; suspension order remains; inquiry directed to be completed within six weeks.

Ananth Rao Deshpande Vs The State of… — Constitutional and Fundamental Rights | Telangana HC (2020)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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THURSDAY, THE FIRST DAY OF OCTOBER TWO THOUSAND AND TWENTY

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PRESENT

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THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT PETITION No. 12778 OF 2020

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Between:

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Ananth Rao Deshpande, S/o. Vittal Rao, aged 39 years, Occ: Ag riculture and Sarpanch Pochampally Gram Panchayat, Velpur Mandal, Nizamabad D istrict.

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...PETITIONER

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AND

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1 The State of Telangana, Rep. by its Principal Secretary, Panchayat Raj and Rural Development Department, Secretariat, BRK Bhavan, Saifabad, Hyderabad

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2 The District Collector, Nizamabad District. 3 The District Panchayat Officer, Nizamabad District.

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4 Pochampally Gram Panchayat, Velpur Mandal, Nizamabad District, Rep. by Panchayat Secretary.

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...RESPONDENTS

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Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an order/direction or any appropriate writ more particularly one in the nature of Writ of lr/andamus declaring the Order No 85127112020(Pts)-1, Dated: 21-07- 2020 passed by the Respondent No.2 suspending the petitioner from the Office of Sarpanch, Pochampally Gram Panchayat under Section 37(5) of The Telangana Panchayat Ral Act, 2018 as illegal, null and void and contrary to the provisions of the Telangana Panchayat Raj Act, 2018 besides violation of Article 14 of The Constitution of lndia and set aside the same directing the respondents herein to continue the petitioner as Sarpanch of Pochampally Gram Panchayat, Velpur lt4andal, Nizamabad District

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lA NO: 1 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of impugned Order No:85/27112020(Pts-1 , Dtd:21-07-2020 issued by Respondent No:2 enabling the petitioner to continue as Sarpanch of Pochampally Gram Panchayat, Velpur [Vlandal, Nizamabad District.

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Counsel for the Petitioner: SRI JITHENDER RAO VEERAMALLA

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Counsel for the Respondent No.1:

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GP FOR PANCHAYAT RAJ & RURAL DEVELOPMENT

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Counsel for the Respondent No.4: SRI G. NARENDER REDDY,

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STANDING COUNSEL FOR GRAM PANCHAYAT

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT PETITION No.12778 of 2020

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ORDER

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ln this writ petition petitioner prays for declaring the order dated 21 .07.2020 passed by respondent No 2-District Collector. Nizamabad. suspending him from the Office of Sarpanch, Pochampally Gram Panchayat, Velpur lt/andal, Nizamabad District, illegal, null and void and contrary to the provisions of the Telangana Panchayat Raj Act, 2018 (for short 'the Act'), and consequently. direct the respondents to continue him as Sarpanch

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Learned counsel for the petitioner contends that the omissions and commissrons on the part of the petitioner. as alleged in the show cause notice. are trivial in nature, that the petitioner having been elected as Sarpanch for the first time, not being aware of the niceties of the procedural aspects with regard to conducting of the Office of the Sarpanch, committed sonre lapse in complying with the procedural aspects, that a detailed explanation submitted by him to the show cause notice was not considered in proper perspective, more particularly, with regard to maintenance of records, responsibility, of which, is of the Panchayat Secretary but not the Sarpanch and that there is no allegation levelled against the petitioner with regard to misappropriation or misuse of funds and the petitioner had not conducted the affairs of the Panchayat efficiently. l-1e'"lurther contends that no charges were framed against the petrtioner invoking Section 37 (1 1 of the Acl. as such the order inrpugned suspending rrim frorn the Office of Sarpanch pending

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ll'P.No l)118 ol l0)0

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enquiry under Section 37(5) of the Act is unauthorized and ultra y/res. ln support of his contention. he has placed reliance on the ludgment^{inYerneni KusumaVs. Government of Andhra Pradesh} , wherein, this Court while considering the provisions of the Andhra Pradesh Panchayat Raj Act. 1994. more particularly Section 249 thereof. which is in pan mateia with Section 37, held that it is only in the process of enquiry rnitiated under Section 249(2). aclton could be taken under Section 249(6). He has also placed reliance on the^judgment of the Division Bench of this Court in Madasu Ravi Vs. State of Telangana'as well as the order dated 09.02.2010 passed by this Cou( in W.P.No.24320 of 2009.

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On the other hand, learned Government Pleader for Panchayat Raj and Rural Development appearing for respondent Nos.1 to 3, while placing reliance on the^judgments in Janagama Shankaraiah Vs. Government of A.P. and othersr and M.Kavitha Vs. Government of Andhra Pradesh and others' would submit that the order of this Court in W P No 24320 of 2009 referred to by the learned counsel for the petitioner. was distinguished in the judgment in Janagama Shankaraiah (3 supra). He would further submit that as against the impugned order. there is a remedy of Appeal available to the petitioner under Section 141 of the Act. He would also submit that enquiry has been initiated under Section 37(1) of the Act and suspension is only pending investigation, hence. the impugned order does not call for interference by this Court.

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2010^(6)ALD 737 == MANUiAP/0390/201 0

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2018 (5)ALD 235 DB

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2011⁽¹⁾ ALD 251

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2010⁽⁵⁾ ALD 750

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( (1?.,/

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t, \Lt t)-''\ 0l l0l0

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With respect to removal of Sarpanch from the Office under Section 37 (1)of the Act the District Collector should come lo^pima faae opinion on the allegations to be enquired into and^provide an opportunity for submltting/f urn ish ing explanation therefor. Section 37(5) of the Act empowers the District Collector to^pass an order suspending the Sarpanch from the Office for a period not exceeding six months, if there is breach or violation of the conditions enumerated in Section 37(1) of the Act

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The language employed in Section 37(5) of the Act is clear Suspension can be ordered^'pending investigation into the charges'. but it is not with respect to^'pending enquiry into the charges' Section 37(1) of the Act is with respect to initiation of proceedings for removal of Sarpanch from the Office. whereas Section 37(5) of the Act is to meet the contingencres that may arise on account of the onrrssions prescribed in Section 37(1)(i) and (ii) of the Act For better appreciation, Section 37 (1) of the Act may be noted hereunder

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"37. Power of District Collector to remove Sarpanch and intimate deemed removal:- (1) lf in the opinion of the District Collector the Sarpanch,-

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(i)omitted or refused to carry out the orders of the District Collector or Commissioner or Government for the proper working of the concerned Gram Panchayat or

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(ii) abused his position or the powers vested in him; or

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(ii,) is guilty of misconduct in the discharge of his duties, or

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(iv) is guilty of embezzlement of Gram Panchayat Funds, or

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(v) persistently defaulted in the performance of his functions and duties entrusted to him under the Act to the detriment of the functioning of the Grarn Panchayat or has become incapable of such performance.

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;r ". I '.:

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The District Collector may remove such Sarpanch after giving him an opportunity for explanation."

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It would be clear from the above that inasmuch as the enquiry, which may ultimately result in removal of Sarpanch, may take substantial time and in lhe rnterregnunl, the affairs of the Panchayat cannot be^jeopardized, by specifying the time period not exceeding six months. suspension pending investigation has been envisaged rn Section 37(5) of the Act Even the said power is required to be exercised by the Collector consciously. after gatherrng material and coming to the pnma facre opinion that the rnformation gathered by way of investigation or preliminary enquiry warrants suspension of the Sarpanch ln other words. when continuation of the Sarpanch in the Office is prejudicial to the affairs of the Panchayat, a notice is required to be issued to the Sarpanch calling for explanation as to why his/her suspension shall not be ordered.

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Be that as it may, the scope of appreciation by this Court with respect 1o lhe prima faae findings recorded by the Collector is only supervisory and limited and it should not sat in appeal over the findings recorded by the Collector except in the cases of clear violation of law Further. since a detailed enquiry is specifred under Section 37(1), whlle passing suspension order under Section 37(5) there is no need to explain the reasons therefor

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The judgment of this Court reported in Yerneni Kusuma (1 supra) as well as the judgment of the Division Bench of this Court ln Madasu Ravi (2 supra) would only mention about the suspension being effected and the procedure to be followed. As a matter of fact,

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in Yerneni Kusuma ('t supra) while dealing with the contention that the impugned suspension order lacks reasons, and the same is the result of non-application of mind, this Court had held in^paragraph 12 of the^judgment as under

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"12. ...... The reasons need not be elaborate nor such authorities who in most of the cases are not legally trained are not expected to appreciate the nuances and subtleties of law. lf a quasi-judicial authority determines the facts, determines the principles applicable and applies the principles to determined facts in a reasonable manner, the court ot^judicial review is precluded from considering the issue. The possibility of a second or third view in determining the facts and applying the principles of the facts is not ordinarily within the purview of .judicial review. lnsofar as determining the principle of law applicable to the case squarely falls within the species of "error of law" and amenable to^judicial review. lf a quasi^judicial authority misconstrued the law. the Court can always set right. ln any view of the matter, the judicial review cannot act as an appellale authority.'

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ln other words, the opinion that is requrred to be formed by the District Collector is an objective opinion and prima facie opinion that pending further enquiry into the allegation and pending investigation, the continuation of an individual as Sarpanch would not be in the interest of Gram Panchayat, as what all is required is not an elaborate consideration at this stage. However, the District Collector is required to keep in view the functions to be discharged by the Sarpanch by exercising powers vested in him under Section 32 and 44 of the Act, and keeping in view the functions of the executrve authority (the Panchayat Secretary) in terms of Section 43 of the Act These aspects were in fact elaborated in relation to the erstwhile A P Panchayat Raj Act. by this Court in Yerneni Kusuma (1 supra) Further, the^judgnrent in Janagama Shankaraiah (3 supra) is not in conflrct with the 1r-rdgment rn Yerneni Kusuma (1 supra)

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and, as a matter of fact, further explains by drawing a fine distinctton between the enquiry under Section 37(1) and action to be taken pending investigation which may lead to further enquiry for removal of Sapranch in terms of Section 37(1) of the Act. Further, the distinction, which was pointed out by this Court in Janagama Shankaraiah (3 supra) was not in issue and did not fall for consideration before the Division Bench of this Court. A close reading of the Division Bench^judgment in Madasu Ravi (2 supra) case would disclose that the facts in the said case were different

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ln Madasu Ravi (2 supra). challenge was to the removal of Sarpanch invoking Section 2a9(6) of the Act on the ground that the Sarpanch was arrested and thus being a public servant within the meaning of Section 258 of the Act cannol continue in office. The same would be clear if one peruses the order of the learned single Judge of this Court in W.P.No 7260 of 2018 dated 12.03.2018, wherein the learned single Judge had held that while Sarpanch could be held to be a public servant, the^provision to suspend from office, invocation of power under Section 2a9(6) of the Act is ultra vires. While discussing the case. the Division Bench in paragraph 6 had mentioned about Section 249(6) Thrs aspect would be clear from the observations of the Division Bench in Paragraph 10 of the judgment which is as under

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"10. That, however, does not mean that the 5"' respondent-writ petitioner can avoid an enquiry being caused against him, for the power to impose punishment under Section 2491'll of the Act is independent of the power to place a Sarpanch under suspension under Section 24916:) ol the Act. Sri S. Rahul Reddy, learned Counsel for the 5'h respondent-writ petitioner, would submit that the 5rh respondent-writ petitioner would fully co-operate in the

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enquiry, and make available all such records as are required by the enquiry officer. Suffice it, therefore, to make it clear that it is open to the District Collector to take all such steps. as are available to him in law, to ensure that the enquiry initiated against the Sth respondent-writ petitioner, is continued unhindered, and is completed at the earliest. Subject to the aforesaid observations, the writ appeal fails and is, accordingly, dismissed. lvliscellaneous petitions pending, if any, shall also stand dismissed. There shall be no order as to costs."

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It may be noted that Section 37(5) of the Act can also be vrewed independently as, before initiating proceedings under Section 37(5) of the Act. the District Collector is required to come to a prima faoe opinion that the facts warrant initiation of proceedings under Section 37(1)(i) and (ii) of the Act and thereafter. he is required to make further investigation into the allegations by gathering necessary information so as to arrive at the definite opinion that continuation of Sarpanch would not be in the interests of the Panchayat, AS long as the opinion formed is an objective opinion, and there is a prima facie basis for forming such opinlon, keeping in view the powers and functions to be discharged by a Sarpanch in relation to the Gram Panchayat. Then only, suspension not exceeding for six months shall be ordered lt should be borne in mind that suspension up to the^period of six months is not^a measure of punishment but it is only to enable the^{authoritiesto} conduct investigation with respect to the charges^{framed under} Section 37(1)(i) and (ii) of the Act smoothly

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At the cost of repetjtion. in the^present case,^enquiryhas already been initiated under Section 37(1) of^{the Act and suspension}

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pending investigation has been ordered under Sectjon 37(5) and the enqutry is yet to be concluded

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ln those circumstances. this court is not incrined to interfere with the rmpugned order. at this stage. However, it is directed that the enqurry with respect to the allegations levelled against the petitioner is to be compreted in arr respects by the District coilector within a period of six weeks from the date of receipt of a copy of this order and he shall pass appropriate orders on merits after giving due opportunity to the petrtioner

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Sublect to the above, the writ petition is disposed of

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l,4iscellaneous Petitions, if any pending, shall stand closed

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There shall be no order as to costs.

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SD/.K.SAI HI ASSISTANT RE R

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,TRUE COPY'

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SEC N OFFICER