2010(4) ALL MR 728
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M. BORDE, J.
Sow. Pratibha W/O. Sanjay Hulle Vs. The Additional Collector, Latur, Dist.-Latur & Ors.
Writ Petition No.1083 of 2010
16th April, 2010
Petitioner Counsel: Mr. V. D. GUNALE
Respondent Counsel: Mr. V. B. GHATGE,Mr. P. R. TANDALE,Mr. V. D. SALUNKE,Mr. R. N. DHORDE,Mr. P. G. RODGE,Mr. S. M. GODSAY,Mr. S. P. SONPAWALE
Bombay Village Panchayats Act (1958), Ss.7, 36 - Disqualification of Sarpanch - Failure to hold mandatory meetings of Gram Panchayat by petitioner/Sarpanch - Applications and complaints made to Additional Collector were not forwarded to Sarpanch - Notice issued to petitioner by Additional Collector did not disclose charges - Absence of transparent procedure and non-application of mind by Additional Collector - Order of disqualification of Sarpanch is liable to be quashed and set aside. (Paras 4, 5)
3. Order impugned in this petition is one passed by the Additional Collector, Latur on 19-1-2010. Additional Collector, Latur in exercise of powers conferred under section 7 r/w. section 76 of the Bombay Village Panchayat Act has declared the petitioner, Sarpanch of the Village Panchayat, Waigaon, as having incurred disqualification and has further ordered that the post of Sarpanch has fallen vacant on account of disqualification incurred by the Sarpanch and further that the occupant of the post i.e. the petitioner herein is disqualified to hold the office of Sarpanch for further period. Petitioner herein is elected Sarpanch of Village Panchayat Waigaon and is occupying the office of Sarpanch since the date of his election by the members of the Village Panchayat. Application is stated to have been received by the Additional Collector on 7-7-2009 making grievance in respect of failure to hold the mandatory meetings of the Village Panchayat which in itself is disqualification for holding the office of Sarpanch as prescribed under section 7 of the Bombay Village Panchayat Act. The Collector was urged to initiate action for holding the petitioner disqualified to occupy the office of Sarpanch on account of failure to hold the mandatory meetings of Village Panchayat. Order passed by the Additional Collector discloses that on receipt of an application dt.7-7-2009, enquiry into the matter was directed at the hands of Block Development Officer, Panchayat Samiti, Udgir. Petitioner herein was issued notice in respect of the allegations levelled against her and was called upon to tender her reply. After considering the report of enquiry conducted by the Block Development Officer as well as on consideration of the reply tendered by the petitioner, the Additional Collector reached conclusion that the petitioner has failed to hold the required number of meetings as prescribed by section 7 of the act and as such, has incurred disqualification and is further not entitled to continue to occupy the office of Sarpanch.
4. I have perused the impugned order passed by the Collector. The very first paragraph of the order makes a reference to the application received by the Collector on 7-7-2009. The order also records that in pursuance to receipt of the application, the Block Development Officer was directed to hold enquiry and the report of enquiry was received on 31-8-2009. While passing the order, the Additional Collector has referred to the application stated to have been received by on 29-6-2009 from one Dhondiba and other members of the Village Panchayat and the said application is stated to have been allowed. Petitioner has made a grievance that she has not been served with proper notice of enquiry nor has she received the copy of the complaint mentioned in the impugned order. On perusal of the report of enquiry conducted by the Block Development Officer, it transpires that the application received by the Collector on 29-6-2009 appears to have been transmitted to the Block Development Officer for conducting enquiry. Notice issued by the office of Additional Collector, Latur does not make any reference to the date of the application whereas, according to the petitioner, the copy of complaint annexed at Exh.D on page 47 dt.4-8-2009 has been transmitted to her alongwith the notice. Neither the complaint dt.7-7-2009 nor the complaint dt.29-6-2009 appears to have been transmitted to the petitioner. Notice issued by the Collector on 11-9-2009 also does not disclose the charges. Petitioner therefore was handicapped in tendering her reply as no charges were indicated by the Collector. The procedure adopted for holding enquiry appears to be improper. Affidavit-in-reply has been presented by the Additional Collector, Latur who has decided the matter and has passed the impugned order. The answering respondent in terms has admitted that the complaint received on 4-8-2009 is transmitted to the petitioner. It is further stated in the reply that the complaints received by the Additional Collector on 29-6-2009 and 4-8-2009 were transmitted to respondent no.2 i.e. the Block Development Officer for conducting enquiry. However, it has not been stated in the affidavit that the complaints received by the Additional Collector either on 29-6-2009 or on 7-7-2009 were forwarded to the petitioner. In the absence of transmission of the complaints on which reliance is placed by the authorities for initiating action against the petitioner, final order is not sustainable. The Additional Collector has dealt with the matter in most causal manner and the impugned order passed by the Additional Collector demonstrates non-application of mind. The proceedings are conducted by the officials in most casual manner and in utter disregard to the provisions of law which has necessitated this court to cause interference in the matter. Applications and the complaints received by the authorities were not transmitted to the petitioner although enquiry is initiated against her and an action involving penal consequences of her removal from the office has been taken. I cannot restrain myself from commenting on the conduct of the Additional Collector in dealing with the matter. Notice issued by him also demonstrates his utter non-application of mind and shows his culpable callousness. The notice issued on 11-9-2009 merely calls upon the petitioner to appear in the office of Additional Collector on 29-9-2009. The petitioner has not been informed about the charges. Infact, it was the responsibility of the deciding authority, after receipt of the application, to direct holding of enquiry by Block Development Officer and, after receipt of the report of enquiry, the petitioner ought to have been communicated specific charges alongwith the copy of the report. Observance of such transparent procedure enables the person against whom the charges are levelled to tender proper explanation and answer the charges. In the absence of observance of such procedure, enquiry initiated cannot be said to be proper. The person against whom enquiry is initiated is entitled to know as to what are the charges levelled against him.
5. In the instant matter, as a result of non-communication of charges by the deciding authority, the whole procedure adopted and the final order passed by the deciding authority is vitiated and is required to be quashed and set aside. Section 7 of the Bombay Village Panchayat Act relates to holding of meeting of Gram Sabha. Section 7 of the Act reads thus :
"7(1) There shall be held at least [six meetings] of the Gram Sabha [every financial year] on such date, at such [time and place, and in such manner], as may be prescribed [and if the Sarpanch, or in his absence the Upa-Sarpanch fails without sufficient cause, to [hold, [any of such four meetings he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the remainder of the term of office of the members [of the panchayat; and the Secretary of the panchayat shall also if, prima facie, found responsible of any lapse in convening such meeting, be liable to be suspended, and for being proceeded against, for such other disciplinary action as provided under the relevant rules]. The decision on the Collector on the question whether or not there was sufficient cause shall be final].
[Provided that, the Sarpanch may, at any time of his own motion, and shall, on requisition of the Standing Committee, Panchayat Samiti, or Chief Executive Officer, call a meeting of the Gram Sabha within the period specified in the requisition; and, on the failure to do so, the Chief Executive Officer shall require the Block Development Officer to call the meeting within fifteen days from the date he is so required to do. The meeting shall, notwithstanding the provisions of sub-section (3), be presided over by him or any officer authorised by the Block Development Officer, in that behalf.] :
[Provided further that , a period of not more than three months shall be allowed to elapse between the two meetings of the Gram Sabha :
Provided also that, if the Sarpanch or Upa-Sarpanch, as the case may be, fails to call any such meeting within the specified period, the Secretary shall call the meeting and it shall be presumed that, such meeting has been called with the concurrence of the Sarpanch or, as the case may be, Upa-Sarpanch.
2. Any Officer authorised in this behalf by the [Standing Committee, Panchayat Samiti or Chief Executive Officer] by general or special order shall have the right to speak in, and otherwise to take part in, the proceedings of a meeting of the Gram Sabha, but shall not be entitled to vote.
[3. Unless otherwise provided in this Act, the first meeting of the Gram Sabha after each general election to a panchayat and thereafter the first meeting of every year, shall be presided over by the Sarpanch and in his absence by the Upa-Sarpanch; and all other subsequent meetings of the year of the Gram Sabha, shall be presided over by a person elected by the persons present in that meeting of the Gram Sabha.]
4. If any dispute arises as to whether a person is entitled to attend a meeting of a Gram Sabha, such dispute shall be decided by the person presiding, regard being had to the entry in the list of voters for a whole village or ward thereof, as the case may be, and his decision shall be final.
[5. The meeting of the women members of the Gram Sabha shall be held before every regular meeting of the Gram Sabha, convened under sub-section (1).
6. The Gram Sabha shall have the disciplinary control over the Government, semi-Government and panchayat employees working in the village including the matters relating to their daily attendance in the office. The annual evaluation of such employees shall be brought to the notice of their respective higher authorities by the Gram Sabha.
7. The Gram Sabha shall report to the concerned Block Development Officer, the irregularities, if any, committed by any of such employees. The Block Development Officer shall consider such report within the period of three months from the date of its receipt. Such matters and the actions taken thereon shall be reviewed in the regular meetings of the Panchayat Samiti. If, the Block Development Officer fails to dispose of such reports within the specified period of three months, the same shall on the expiry of the said period, stand transferred to the Chief Executive Officer of the concerned Zilla parishad for disposal, whose decision shall be final. The Chief Executive Officer of the Zilla Parishad shall take the decision on such reports so transferred to him, within a period of three months from the date of their receipt.
8. The Gram Sabha shall select the beneficiaries for individual beneficiary schemes of the State, or as the case may be, of the Central Government.
9. The gram Sabha shall generally fix the date, time and place of the next meeting of the State, in its previous meeting.
10. Unless exempted by the Gram Sabha, all the Government, Semi-Government and panchayat employees working in the village shall attend the meetings of the Gram Sabha.
11. The proceedings of every meeting of the Gram Sabha shall be prepared and maintained by the concerned Secretary of the panchayat and in his absence, the proceedings shall be prepared by any Government, Semi-Government or panchayat employee working in the village, such as Teacher, Talathi or Anganwadi Sevika as directed by the Sarpanch and the same shall be handed over to the panchayat for records.]"
Provisions of section 36 are also required to be taken note of. Those read thus :
"36. The time and place of sitting, and the procedure at a meeting, of the panchayat shall be such as may be prescribed :
[Provided that, if the Sarpanch, or his absence the Upa-Sarpanch, fails without sufficient cause, to convene the meetings of the panchayat in any financial year according to the rules prescribed in that behalf, he shall be disqualified for continuing as Sarpanch or, as the case may be, Upa-Sarpanch or for being chosen as such for the reminder of the term of office of the members of the panchayat. The decision of the Collector on the question whether or not there was sufficient cause shall be final.]"
The Sarpanch of the Village Panchayat is required to hold atleast six meetings of the Gram Sabha in every financial year and if he fails to hold the required number of meetings without sufficient cause, he shall be disqualified from continuing in the office. It is mandatory for the Sarpanch to hold the required number of meetings in the financial year and without there being any sufficient cause, if he fails to perform his function, it leads to incurring of disqualification by him. If the Sarpanch, as in the instant case, is charged in respect of failure to hold required number of meetings, he is to be specifically communicated in that regard and, if such a communication is made, he is entitled to put forth his defence and disclose circumstances for his failure to hold any of the mandatory meetings. The person holding office is entitled to put forth his defence and demonstrate sufficient cause for his failure to perform the statutory obligations. In order to enable him to raise proper defence and explain sufficient cause for his failure to perform any statutory function, he must be informed essentially as regards his failure meaning thereby he must be communicated the specific charges. In the instant matter, on account of failure to inform the specific charges, the resultant enquiry and the order is vitiated. For the reasons stated above, the impugned order passed by the Additional Collector, Latur on 19-1-2010 is quashed and set aside. At the same time, it is made clear that it would be open for the authorities to take cognizance of any complaint received or that may be received and after adopting proper procedure may proceed to hold enquiry, if found necessary in the matter. Copy of this order be transmitted to the Secretary, Revenue Department, with a view to facilitate him to hold appropriate enquiry in the matter of failure of Additional Collector, Latur in performing his statutory obligations. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs.