Smt. Chandan Bai vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 11-7-2002 (Annexure-P/10) passed by the Collector, Kawardha, directing Tahsildar, Kawardha, to recover a sum of Rs. 2,54,327/- from the petitioner, as during her tenure there was misappropriation of funds. Indisputable facts, in brief, as projected by the petitioner, are that the petitioner was the elected Sarpanch of Gram Panchayat Chachedi, Tahsil & District Kawardha for the period from 13-7-1994 to 16-3-2000. The respondent No. 5 was the Upsarpanch during that period. It was found that there was misappropriation of funds to the tune of above-stated amount during the tenure of the petitioner, as the amount sanctioned for the purpose of various constructions were not utilised in accordance with the requirement. The Audit Officer found that there was misappropriation of fund to the above extent. Accordingly, a show cause notice was issued on 21-11-2000 (Annexure-P/2) calling upon the petitioner to appear in the office and explain the same within a period of 15 days, failing which the appropriate steps, thereon, may be taken. The petitioner responded to the said notice on 1-12-2000 (Annexure-P/3) stating therein that she was not supplied with audit report, which was mentioned in the notice, as enclosed with the notice.

Thereafter, a detailed notice was issued from the office of Zila Panchayat on 23-6-2001 (Annexure-P/4) detailing all the objections and loss of money to the treasury along with a copy of the report. The petitioner by letter dated 9-7-2001 (Annexure-P/5) reported that she had approached the Gram Panchayat for settlement of accounts, however, she could not be provided with relevant documents and, as such, it was difficult to settle the accounts. No reply to the notice as well as audit report was filed.

After considering all the aspects, as no reply to the detailed show cause notice dated 23-6-2001 (Annexure-P/4) was filed, the Collector, Kawardha by the impugned order dated 11-7-2002 (Annexure-P/10) directed the Tahsildar, Kawardha, to register a case and recovery the amount to the tune of Rs. 2,54,327/-. There against, the petitioner had preferred an appeal before the Commissioner. The Commissioner by order dated 16-9-2002 (Annexure-P/12) rejected the appeal holding that the same was not maintainable. Thus, this petition.

Shri Sharma, learned counsel for the petitioner, would submit that Rule 12 of the Chhattisgarh Panchayat Audit Rules, 1997 (for short "the Rules, 1997") provides for settlement of objections. It prescribes that the Auditor shall discuss all items of objection raised by him either with the Sarpanch or Secretary and settle objections on the spot, excepting such item which require further investigation. He shall certify in writing in the audit report the fact of his having discussed the objections/suggestions with the Sarpanch. Since no opportunity was provided to the petitioner, as the petitioner, after demitting the office, was not in a position to have access to the documents and, as such, it was not possible to settle the objections raised by the Auditor. Shri Sharma would further submit that opportunity of hearing was not afforded, as the petitioner was not in possession of copies of the documents, which have been referred in audit objection holding that there was misappropriation of funds. Shri Sharma would also submit that no report of accounts was submitted by him, as there was no provision to submit the report before 27-7-1999 i.e. before the Chhattisgarh Gram Panchayats (Accounts) Rules, 1999 (for short "the Accounts Rules, 1999"), came into force.

Per contra, Shri Murthy, learned Dy. Adv. General appearing with Shri Sridhar, learned Panel Lawyer, for the State, would submit that the petitioner has not questioned the audit objections at an appropriate time, though after audit objections, proper opportunity of hearing was afforded to the petitioner, therefore, the same attained finality. Thereafter, the impugned order of recovery was passed. Learned counsel would further submit that the petitioner had failed to submit the detailed reply to the notice dated 23-6-2001 (Annexure-P/4) except that she could not see the documents in the office of the Gram Panchayat. No response was submitted in respect of specific detailed report. Learned counsel would also submit that the Chief Executive Officer, Janpad Panchayat Kawardha, is a necessary party, as the action was initiated from the stage of notice issued by the Chief Executive Officer. Thus, the petition may be dismissed on the ground of non-joinder of necessary party.

In the return filed by the respondents No. 5 & 6, though none appeared, it has been clearly stated that the allegation of the petitioner that she was denied access to the documents was wrong. The respondents have made available all the records of Gram Panchayat in respect of the relevant time when the petitioner was Sarpanch and misappropriation of the money of Gram Panchayat was fond proved on audit report. It has also been stated that in the audit objection all the documents were shown for settlement, as prescribed under the provisions of Rule 12 of the Rules, 1997.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

It is evident that the relevant audit report (Annexure-P/8) deals with each and every transaction as well as irregularities & misappropriation, in detail. The petitioner has not responded to the same except the fact that she was not in a position to respond in absence of documents. The petitioner ought to have explained the detailed objections even without documents and also, if it was not possible, she ought to have sought for more time to file response. Case of the respondent/State is that despite sufficient opportunity given to the petitioner, the petitioner had not come forward to explain and also to file detailed response. In view that the contention of the petitioner that she was not afforded proper opportunity is noticed to be rejected.

On bare perusal of Rule 12 of the Rules, 1997, it is manifest that the audit objections have to be settled by the, then, Sarpanch, not by others on the spot i.e. in the office of Gram Panchayat, not elsewhere. It is not the case of the petitioner that the documents were not supplied to the Auditors. After examining all the objections, the detailed report has been prepared, which clearly indicates that irregularities were found only on examining all the documents. It was a case of grant of money for a particular head and bad utilization of money for the same and for other purpose also.

Proviso to Rule 12 of the Rules, 1997 clearly provides that Rule 12 shall not be applicable where the Sarpanch is involved or is suspected of being involved in any fraud or embezzlement. There was a suspicion of embezzlement and, as such, proper notice was issued to the petitioner twice with the audit report and the petitioner has deliberately not submitted her response in any manner. Thus, the contention of the petitioner that settlement of objection was not done in her presence on the basis of documents does not merit acceptance.

The contention of the petitioner that report was not submitted, as the Accounts Rules, 1999 came into force subsequently i.e. on 27-7-1999, is misplaced. The petitioner continued as Sarpanch till 16-3-2000, even after the said Accounts Rules, 1999 came into force. It was incumbent on the petitioner to submit complete accounts to the concerned department before demitting the office. On objection, the petitioner had not submitted the accounts, as required, within the stipulated time and, as such, she cannot raise the objection subsequently when she demitted the office. All the papers were in possession of Gram Panchayat and it appears that the documents were shown to the officers of the audit department at the time of audit.

At this stage, challenging the recovery order, when the same was passed on proper enquiry, examination and after affording proper opportunity of hearing, is not sustainable. The Chief Executive Officer who had issued show cause notice has also not been impleaded as party-respondent. In fact, the Chief Executive Officer was a necessary party, as the Gram Panchayat functions under the supervision of the Chief Executive Officer, Janpad Panchayat/Zila Panchayat and on that count also the petition deserves to be dismissed for non-joinder of necessary parties. In the result, the writ petition is liable to be and is hereby dismissed. No order as to costs.