Kar HC | Interpreting the term ‘enquiry’ under S. 43A of Karnataka Panchayatraj Act 1993, Court lays strict emphasis on procedural compliance before any State Action of removal; Petition allowed

Karnataka High Court: A Division Bench of G. Narendar and M.I. Arun JJ., allowing the present petition, discussed the meaning, scope and ambit of the word ‘enquiry’ and provisional application of Section 43-A of the Karnataka Panchayatraj Act, 1993.

Background

A complaint was lodged against the petitioners before Lokayukta, on the ground of misconduct in the discharge of official duties (allowing alleged wrongful construction). The Upalokayukta (3rd Respondent) registered a case and conducted an investigation under Section 9 of the Karnataka Lokayukta Act, 1984. During investigation, the petitioners intimated that the Assistant Executive Engineer of the Public Works Department (PWD) had failed to respond to the panchayat letter dated 03-07-2014 and as it had neither rejected nor granted the NOC, for the proposed construction and as there was an unnecessary and unwarranted delay on the part of the PWD, the council passed a resolution granting the proposal unanimously. Following the said event, the Lokayukta submitted a report under Section 12(3) of the Lokayukta Act and further directed action under Section 48(4) of the Karnataka Panchayatraj Act, 1993. Thereafter, the 2nd respondent passed the impugned order, invoking Section 43-A of the aforementioned Act.

Issue

Whether there is compliance with the provisions of Section 43-A(1) of the Karnataka Panchayatraj Act, 1993 in the process of passing the impugned order, thereby removing the petitioners not only from their respective offices but also from the membership of the Gram Panchayath?

Relevant Provisions of the Karnataka Panchayatraj Act, 1993

  • Section 48 Resignation or removal of Adhyaksha and Upadhyaksha; ss.4: Every Adhyaksha and Upadhyaksha of Grama Panchayat shall, after an opportunity is afforded for hearing him, and if necessary after obtaining a report from the Taluk Panchayat and considering the same be removable from his office as Adhyaksha or Upadhyaksha by the Government for being persistently remiss or guilty of misconduct in the discharge of his duties and an Adhyaksha or Upadhyaksha so removed who does not cease to be a member under sub-section (2) shall not be eligible for re-election as Adhyaksha or Upadhyaksha during the remaining term of office as member of such Grama Panchayat.
  • Section 43A Removal of members for misconduct: The Government if it thinks fit, on the recommendation of the Grama Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member.

 Observations

The Court reproduced the relevant provision of the Karnataka Panchayatraj Act, 1993 and placed reliance on M.N. Dasanna v. State of Andhra Pradesh, (1973) 2 SCC 378, for understanding the meaning of the word ‘enquiry’.

Further, under Para 12, the Court cited the meaning of the word ‘Enquire’ and ‘Enquiry’ as defined in the book ‘The Law Lexicon with Maxims’ by Sumeet Malik,

Enquire – To enquire or inquire means to make investigation, i.e., to examine systematically in detail and it can never mean that conclusions of investigation would have any binding force or be conclusive,

Enquiry – Covers the hearing of the case, i.e., recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on the record by both the sides that the stage of reporting a finding would arise.

The Court, continued to say, “It can be gainfully stated that the word ‘enquiry’ as occurring in the Section clearly implies an investigation by the Government and a concomitant to such an enquiry is furnishing of material upon the Government and an opportunity to rebut or test the veracity of the material put against or the persons acted against, and thereafter, the provision visualizes an opportunity of being heard which necessarily implies an opportunity of hearing to the parties to present their summation on the merits of the material relied upon and merits of the case. Further, the powers vested in the Government can be invoked only on proof of certain charge as enumerated under clause (i) to (v) of the Section 43-A of the Panchayatraj Act, 1993.” Enumerating the said charges briefly, in addition to considering the order directing removal, the Court observed, “The impugned order fails to state as to which ground has been proved enabling the competent authority to pass the order of removal and punishment under sub section (2) of Section 43-A of the Karnataka Panchayatraj Act.”

Dismissing the entire enquiry, the Court remarked that “(…) no enquiry worth its name has been conducted as the enquiry stood terminated on the first and only date of hearing itself. It does not reflect as to whether relied upon materials were furnished to the petitioners or as to whether the authors of statements were tendered for cross-examination to test the veracity of their statements.”

Decision

Allowing the present petition, the Court said, “When the law provides a thing to be done in a particular manner, the authorities shall perform the act in that manner only. The use of the word ‘enquiry’ is not superfluous. It has been used conjunctively with the phrase ‘opportunity of being heard’ … what is envisaged by the provision cannot be treated as a summary enquiry by the competent authority and an enquiry and opportunity of hearing are mandatory.”

[Bhavani v. State of Karnataka, 2020 SCC OnLine Kar 2011, decided on 08-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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