The recovery sought from the petitioner must be in accordance with the recommendations and preceded by a show cause notice, and the statutory appeal remedy may not be available in certain cases.

JUDGMENT :

A. S. CHANDURKAR, J.

1. RULE. Rule made returnable forthwith and heard the learned Counsel for the parties.

2. The challenge raised in this Writ Petition filed under Article 226 of the Constitution of India is to the communication dated 26/11/2021 issued by the Chief Executive Officer, Zilla Parishad, Yavatmal thereby directing the petitioner to pay an amount of Rs.1,12,662/- with interest @ 18% per annum pursuant to the alleged irregularities committed in the Scheme implemented under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (for short “Act of 2005”).

3. The facts relevant for considering the challenge as raised are that the petitioner was elected as a Sarpanch of Village - Parsoda, Taluka - Arni, District – Yavatmal for the period from 2015 to 2021. In the said Village, a Scheme was implemented under the provisions of the Act of 2005. A complaint was made by respondent No.4 alleging misappropriation while undertaking that Scheme. On receiving such complaint, the Chief Executive Officer on 5/7/2021 directed an enquiry to be held by an Enquiry Committee of eight members. The said Enquiry Committee submitted its report to the Chief Executive Officer. After considering the same, the Chief Executive Officer on 20/8/2021 issued a show cause notice to the petitioner seeking his response to the findings recorded by the Enquiry Officer. Since the nature of charges against the petitioner were not clear, he demanded a copy of the enquiry report by his communication dated 2/9/2021. A reminder was again issued on 13/9/2021 and after receiving copy of that report, the petitioner submitted his reply to the same.

4. Thereafter, on 4/10/2021, hearing was conducted before the Chief Executive Officer as regards the action to be taken pursuant to the said enquiry report. It was observed in those proceedings that an amount of Rs.5,63,308/- had been misappropriated by four persons named in the report and it was recommended that an amount of Rs.1,40,827/- should be recovered from each of the said four persons. As regards the petitioner, it was recommended that a fine of Rs.1,000/- should be imposed on him.

5. Pursuant to the aforesaid, the Chief Executive Officer on 25/10/2021 issued another notice to the petitioner calling upon him to explain as to why action under Section 25 of the Act of 2005 should not be taken. The petitioner’s response was called for within a period of ten days. By a similar notice issued on the same day, the other four persons named in the report were also issued a show cause notice as to why the amounts mentioned therein should not be recovered.

6. The petitioner replied to the aforesaid notice and on 26/11/2021, the Chief Executive Officer issued the impugned communication calling upon the petitioner to deposit an amount of Rs.1,12,662/- with 18% interest with the State.

Being aggrieved, the aforesaid communication is under challenge.

7. Shri N.B. Kalwage, learned Counsel for the petitioner submitted that as per the recommendations of the Committee constituted by the Chief Executive Officer, it was purposed to recover the amount in question from the four persons named therein excluding the petitioner. Insofar as the petitioner was concerned, it was recommended that a fine of Rs.1,000/- should be imposed. Based on such recommendations, the notice issued to the petitioner on 25/10/2021 merely referred to taking action under Section 25 of the Act of 2005. Hence issuance of the impugned communication seeking to recover the amount of Rs.1,12,662/- with interest @ 18% per annum was contrary to the recommendations of the said Committee and beyond the show cause notice issued to him. Placing reliance on the decision in 2004(3) Mh.L.J. 151 (Diwakar Pundlikrao Satpute Vs. Zilla Parishad, Wardha and others), it was submitted that by seeking to recover the aforesaid amount which was not referred to in the show cause notice the impugned communication was illegal and thus liable to be set aside. Insofar as the