@JUDGMENTTAG-ORDER
T. Raja, J.@mdashThis writ petition has been filed by Mr. A. Ganesan, who was initially appointed as a part-time Clerk on 11.12.84 by the
Commissioner of St. Thomas Mount Panchayat Union on a consolidated pay of Rs. 25/-. Subsequently, on 1.3.86, he was appointed as full time
Clerk in the regular time scale of pay and was posted at Okkiyam Thuraipakkam Panchayat and designated as panchayat Assistant. Challenging
the impugned charge memo issued by the District Collector, Kancheepuram District, the first respondent herein dated 26.11.2001 as well as the
enquiry report dated 7.1.2005 on two grounds, the learned counsel for the petitioner submitted that when the petitioner was serving as a full time
panchayat Assistant, the first respondent-District Collector has no power to issue the charge memo, since the District Collector being the Inspector
of Panchayat, as per the Tamil Nadu Panchayats Act, 1994, is only the second appellate authority and if at all any disciplinary proceedings are
warranted, the executive authority of the concerned panchayat alone can initiate departmental proceedings by issuing appropriate charge memo,
followed by enquiry, which will culminate in the passing of order of punishment, if the charges are held proved in terms of Section 83. But in the
present case, the first respondent has straight-away issued the charge memo to the petitioner. It was also pleaded that Section 84 of the Tamil
Nadu Panchayats Act, 1994 clearly shows that the executive authority has to carry into effect the resolutions of the village panchayat. Again
referring to Section 106, it was pleaded that the executive authority may pass any order of punishment including censure, fine, withholding of
increments or promotions from or reduction to a lower rank in the seniority list, etc. However, the power conferred u/s 106 also includes the
power to suspend, remove or dismiss any officer or servant in the service of village panchayat or panchayat union council or the district panchayat,
as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct. Section
106 is very clear and plain that the executive authority alone has got the power to impose the punishment. He pleads, a joint reading of the
provisions of Sections 83, 84 and 106 of the Tamil Nadu Panchayats Act goes to show that the executive authority in the present case is the
President of the panchayat, as he was appointed under G.O.Ms. No. 225, Rural Development Department dated 15.10.96. While so, the charge
memo issued by the District Collector has to be set aside, as he has no authority to issue the same. Finally, it was pleaded that when the power to
impose punishment is also vested with the President, as he being the executive authority of the village panchayat in question, the impugned order
calling upon the petitioner to submit his explanation on the basis of the report submitted by the enquiry officer, being improper and unlawful, is
liable to be interfered with. A detailed counter affidavit has been filed by the first respondent-District Collector opposing the above stand taken by
the petitioner stating that the petitioner, while serving as full time panchayat Assistant, had not maintained the records and registers which have been
assigned to him as panchayat Assistant. Therefore, for his lapses, he was issued with the charge memo and he has given his explanation stating that
the panchayat cheques were issued on the instructions of the panchayat President, not on the basis of the bills received, therefore, the excess
drawal against cash book entry had occurred. When the petitioner has not produced any basic records or witness to prove that the cheques were
issued on the instructions of the panchayat President, it goes to show that he has misappropriated a sum of Rs. 3,20,000/-. Moreover, the enquiry
officer also, who was appointed to go into the allegation of charges, during the course of enquiry, specifically asked the petitioner Mr. A. Ganesan
whether he wanted to examine any witness for the charges levelled against him, for which the petitioner replied in the negative that he did not want
to examine any witness on his behalf. Therefore, the District Collector being the Inspector of Panchayat and that the petitioner is working as a full
time panchayat Assistant, whose appointment is vested with the Inspector of Panchayat, initiated the departmental proceedings rightly against the
petitioner.
2. This stand taken by the first respondent, as pleaded by the learned Additional Government Pleader, to support the issuance of the charge memo
issued by the District Collector and the subsequent proceedings cannot be espoused by this Court. The reason being that for initiating action
against the full time panchayat Assistant like the petitioner herein, the President of the third respondent-Village Panchayat is the executive authority.
This could be seen from Sections 83, 84 and 106 of the Tamil Nadu Panchayats Act, which are extracted herein below:-
83. Executive authority of village panchayat.--The Government may, by notification, appoint any person, who shall, subject to such rules as may be
prescribed, exercise the powers and perform the functions of the executive authority of a village panchayat.
84. Functions of executive authority.--The executive authority shall,--
(a) carry into effect the resolutions of the village panchayat:
Provided that where the executive authority considers that a resolution has not been legally passed or is in excess of the powers conferred by this
Act or that, if carried out, it is likely to endanger human life or health or the public safety, the executive authority shall refer the matter to the
Government for orders and their decision shall be final
(b) control all the officers and servants of the village panchayat;
(c) discharge all the duties specifically imposed and exercise all the powers conferred on the executive authority and subject to all restrictions and
conditions imposed, by or under this Act, exercise the executive power for the purpose of carrying out the provisions of this Act and be directly
responsible for the due fulfilment of the purposes thereof.
106. Power to punish officers and servants.--Subject to such control as may be prescribed, the executive authority, the commissioner or the
secretary may censure, fine, withhold increments or promotions from, or reduce to a lower rank in the seniority list, or to a lower post or time-
scale or to a lower stage in a time-scale, suspend, remove or dismiss any officer or servant in the service of village panchayat or panchayat union
council or the district panchayat, as the case may be, for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of
duty or other misconduct.
A perusal of Section 83 clearly shows that the appointment of the executive authority shall be made by the Government by notification. Section 84
clearly mentions that the executive authority shall carry into effect the resolutions of the village panchayat. This could be again seen u/s 106 of the
Tamil Nadu Panchayats Act, which says that the executive authority, the President in this case, shall have the power to punish the officers and
servants. Therefore, when the first respondent-District Collector is not the executive authority, admittedly, the power to initiate departmental
proceedings vests only with the executive authority of the village panchayat, namely, the President. This could be again seen in the subsequent
Government Order issued by the Government in G.O.Ms. No. 175, Rural Development Department dated 5.12.2006 and a reading of clause (v)
therein clearly shows that the power to initiate departmental proceedings against the village panchayat Assistant vests only with the panchayat
President. If the disciplinary proceeding is not fairly conducted and if any punishment is imposed against the panchayat Assistant, clause (vi) also
provides for an appeal remedy against the order before the Block Development Officer. Once again the aggrieved person, if aggrieved by the
order of the Block Development Officer, can go for further appeal at the hands of the District Collector. While so, the District Collector, the first
respondent herein being only the second appellate authority to consider the correctness of the order passed by the Block Development Officer,
who is the first appellate authority, in my considered view, ought not to have issued the charge memo to the petitioner. If the impugned proceeding
in issuing the charge memo by the District Collector against the full time panchayat Assistant is upheld, then the legal repercussions will be serious
and precarious, for the reason that the affected petitioner would be left without any remedy of first appeal and second appeal which are available
to all other aggrieved persons. Therefore, this Court, without going into the correctness of the charge memo, finding that the irregularity has
occurred in issuing the charge memo, by quashing the proceedings, gives liberty to the third respondent-President to proceed afresh against the
petitioner for the lapses alleged to have been committed by him. Accordingly, the writ petition is allowed. Consequently, W.P.M.P. No. 17028 of
2005 and W.V.M.P. No. 94 of 2008 are closed. No costs.
