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Judgment
K.V. Narayana Raju, M.-This petition under Section 207 of the Karnataka Village Panchayat and Local Boards Act is from the order dated 2-12-1980 passed by the learned Divisional Commissioner. Belgaum Division, Belgaum dismissing Apl. VPC. AP. 7/ 80-81 from the order dated 27-6-1980 passed by the learned Assistant Commissioner, Chikodi in VPC. SR. 2113 removing the petitioner not only from the Chairmanship of the Town Panchayat Committee, Boragaon but also from the Membership thereof, besides directing the recovery of Rs. 10,886 mis-utilised by the petitioner-Chairman.
On complaints by several persons including M.A. Kapse, the Vice Chairman, who is impleaded as respondent on his request, about certain acts and omission on the part of the present petitioner who was the Chairman, the Assistant Commissioner, Chikodi after a preliminary enquiry submitted a report to the Deputy Commissioner, Belgaum who directed a detailed inspection and enquiry and action against the Chairman.
After such instructions from the Deputy Commissioner the Assistant Commissioner served charge nemo dated 24-5-1980 which listed as many as five charges. The petitioner-chairman filed his reply statement on 9/13-6-80. After hearing the counsel for the petitioner the Assistant Commissioner passed order dated 27-6-1980 visiting the petitioner-chairman with the punishments stated above.
The petitioner preferred appeal before the learned Divisional Commissioner, Belgaum who by his order dated 2-12-1980 dismissed that Appeal VPC. AP. 7/80-81. The learned Divisional Commissioner has held that the petitioner-chairman was guilty of negligence in not paying the occupancy price of Rs. 1,275 in respect of Sy. Nos. 432, 433, 434 and 435 within the time prescribed by the Tahsildar. The learned Divisional Commissioner has rightly expressed his great surprise at the Tahsildar directing the Town Panchayat Committee to pay occupancy price towards the lands which were used as gairan or kuran or gomal for the cattle of the village. With regard to the second charge of not crediting the sale proceeds of grass grown on the lands, the learned Divisional Commissioner has said that the Town Panchayat Committee was wrong in selling the goods after the lands revested in the Government under the Order dated 11-2-1976, that however the amount collected had to be credited to the Government, that there was an error in crediting the amount to the Panchayat fund (no amount as such has been credited to the Panchayat Fund but only towards medical sub-centre); and that the petitioner before us was wholly responsible for such irregularity;that the resolution dated 21-1-1980 was signed by only seven out of sixteen Members, and not by a majority of sixteen Members, and that therefore the resolution remitting Rs. 120 from the amount of bid for the sale of compost and Rs. 200 as cooly charges was illegal, and that the petitioner before us acted irresponsibly in admitting an illegal resolution; that the amount realised by sale of compost should have been first credited to the Town Panchayat Committee Fund and then to the Health Committee after obtaining the sanction of the competent authority. The learned Divisional Commissioner has concluded that the petitioner persistently failed to perform the duties on account of his negligence, and therefore the Assistant Commissioner was right in removing him from both the offices.
The petitioner has contended before this Tribunal that the enquiry held by the Assistant Commissioner was perfunctory and contrary to law; that no sufficient opportunity was afforded to the petitioner to cross examine the Vice-Chairman of the Town Panchayat Committee and his followers: that the learned Divisional Commissioner ought to have seen that the amount of Rs. 1275 was not credited within time owing to the negligence of the Secretary; and that in any event the amount had not been retained or mis-used by him (petitioner); that it ought to have been seen the Town Panchayat Committee had not collected any amount for the grass grown on the Panchayat land: and that it was the Local Committee of the villagers which collected the amount to make up the local contribution for constructing a medical sub-centre, that there was no basis for the conclusion that the petitioner was guilty of mis-conduct, negligence or persistent remissness in the discharge of his duties.
The counsel for the petitioner, the learned Assistant State Representative for respondents 1 and 2 and the learned advocate for the respondent 3 were heard. For the reasons which follow, we are of the opinion that the material on record does not make out a ground for the removal of the petitioner from any of the offices, or demanding payment of any amount from him as misapplied or mis-utilised.
The Tahsildar, Chikodi ordered on 27-8-1979 the payment of occupancy price of Rs. 1,275 in respect of kuran lands Sy. Nos. 432 to 435. The reason for such an order is not easy to find. However it appears that the Panchayat credited the amount on 28-2-1980 to the Land Revenue account. It is seen that the Panchayat collected the amount from the villagers and had first credited such amount into its own account on 12-11-79. It is not possible to understand how the Chairman could be held guilty of either misconduct or negligence in the performance of his duties.
It may not be necessary to mention that the mis-conduct referred to in Section 34 of the Village Panchayat and Local Boards Act means such conduct which involves moral turpitude and consists in misuse of the office for gaining personal advantage. Negligence which can result in the punishment of the Chairman or the Vice Chairman should be of a serious type involving a breach of statutory duty imposed on the chairman for public good. Unless certain damage has flown from the alleged negligence, it may not be just or proper to remove the Chairman or Vice-Chairman from such office or from the Membership of the Panchayat. There was no specific charge that the Chairman had violated any statutory duty and thereby caused loss either to any Member of the public or the Panchayat for that matter. A mere omission to carry out a duty not resulting in damage cannot be treated as negligence warranting disciplinary action under Section 34 of the Village Panchayat and Local Boards Act.
The second charge is that a sum of Rs. 25/- was collected for pair of bullocks grazing on the Panchayat lands, and the third charge is that the amount of Rs. 7,250/- so collected was not credited to Panchayat Fund but made over to the account of the medical sub-centre. The objection of the petitioner was that the Panchayat did not collect any money from the owners of the bullocks for grazing, and that on the other hand no amount was recoverable for the use of grass; and that however the Panchayat resolved that persons who were deriving benefit from the kuran lands should contribute Rs. 25/- per pair of bullocks towards construction of medical sub-centre; and that the Local Committee collected such amount and made it over for the purposes of the medical sub-centre. It appears that the villagers who were asked to contribute 50% of the cost of the medical sub-centre devised that method of collection. We are unable to understand how the Assistant Commissioner and the learned Divisional Commissioner without even referring to the defence put forth reached the conclusion that the Chairman had mis-applied the funds of the Panchayat. It is nobody''s case that the Panchayat was obliged to collect any amount from the persons who used the grass. The lands were meant as free pasturage and the Chairman or any other person could not be blamed merely because all wanted and agreed that the beneficiaries should be the first to contribute amount for having a medical sub-centre. The Chairman and others who ought to have been complimented for what has been done, ironically or paradoxically enough, are being punished. We neither see any misconduct or negligence on the part of the petitioner in this matter.
The fourth charge was that a sum of Rs. 120/- was allowed as remission from the highest bid of Rs. 5006 for the compost sold on 16-5-1979 in favour of P.A. Patil, and that a sum of Rs. 200 was paid as cooly charges and no voucher was taken. It is also said that one third of the amount of bid was not collected on the same day as per the condition of the auction. It is also alleged that Rs. 1500 received from the Secretary in November and December 1979 was not shown in the books of the Panchayat and that amount along with what was realised later was all credit d to the account of Medical sub-centre on 24-1-1980. The petitioner has replied that the compost was never being sold but freely taken away by villagers and that on the request of the local committee the villagers who used the compost which was no more than the silt in the drains paid money, which after resolution dated 21-1-1980, was handed over for the purposes of the medical sub-centre. We do not think that the petitioner who was the Chairman could have been singled out for being punished. A copy of the resolution is available and that tells eight persons who were present all approved the proposal of another member to make over the amount collected from the owners of the bullocks and those who took the so called compost, to the medical sub-centre. The same resolution also authorised the remission of Rs. 120/- since there were stones in the silt. Though there has been some mixing up of the affairs of the Panchayat with those of the local committee, we are of the opinion that since there has been no detriment to public interest, the Chairman could not have been found guilty of either misconduct or negligence.
We may mention here that negligence mentioned in Section 34 in the Village Panchayat and Local Boards Act is only actionable negligence, i.e. suchnegligence as causes injury to another. It may not be out of place to refer to what Lord Simon, L.C. has said in East Suffolk Catchment Board vs. Kent, 1941 A.C. 74. He said:
"In strict legal analysis, negligence properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty is owing."
We are satisfied that the facts which are suggested in support of the fourth charge do not make our either mis-conduct or negligence or persistent remissness in the discharge of duties.
The last charge is that the Chairman utilised only Rs. 700 against Rs. 10,000 reserved for the welfare of the scheduled castes and scheduled tribes. The petitioner has stated in his reply that every effort and action was taken for the welfare of the scheduled castes and scheduled tribes as and when necessary, that there was no negligence or inaction, and that he would definitely carry out any suggestion that was given by the Assistant Commissioner in this behalf. In the appeal memorandum before the Divisional Commissioner the present petitioner said that 18% of the land revenue grant was not utilised towards the welfare of the scheduled castes and scheduled tribes, as there was no programme for utilisation of the grant, and that in any event the chairman alone cannot be held liable. The learned Divisional Commissioner has only said that the petitioner before us should have followed the instructions for utilisation of 18% amount in the light of Government Orders in force. Neither he nor the Assistant Commissioner has told about what the Government Orders are; and there is nothing to show that at any time the Superintending Officers such as the Block Development Officer or the Assistant Commissioner had required the chairman to take steps for utilisation of the amount available for the welfare of the scheduled casts and scheduled tribes. The Assistant Commissioner has only said the expenditure incurred was highly unsatisfactory. The circumstances being what they are we cannot say that the petitioner was guilty of misconduct, negligence or persistent default in the performance of the duties.
We are of the opinion that certain formal breaches of the Rules and procedures have been tried to be distorted and magnified as grave acts or omissions amounting to misconduct or gross negligence warranting punishment under Section 34 of the Village Panchayats and Local Boards Act, It is impossible to say that the petitioner had mis applied and much less misappropriated the funds of the Panchayat to merit an order of payment by him. In fact the charge memo never said that it was proposed to recover any amount from him.
For the foregoing reasons we are satisfied that the orders passed by the authorities below are contrary to law and if left as they are would cause great injustice to the petitioner.
The revision petition is allowed and the orders passed by the learned Divisional Commisioner and the Assistant Commissioner are set aside.