Allegations of misconduct warrant an inquiry under Section 43A, preceding disqualification proceedings under Section 13 of the Act.

ORDER

The petitioner is elected to Utaknoor Grama Panchayat, and she is presently elected as the President of the said Grama Panchayat. The first respondent, in exercise of the jurisdiction under Section 43A of the Karnataka Grama Swaraj and Panchayat Raj Act , 1993, [for short, ‘the Act'] has issued the impugned notice dated 07.12.2023 [Annexure-C] informing the petitioner that the enquiry held on 29.11.2023 will be continued on 20.12.2023.

The petitioner apart from impugning this notice dated 07.12.2023 has also impugned the enquiry notice dated 18.05.2023 [Annexure-A] and the report thereafter dated 13.07.2023 [Annexure-B].

2. Sri Praveen Kumar Raikote, the learned counsel for the petitioner, responding to the office objection on the maintainability, is categorical that the petitioner limits her grievance in this petition to the merits of the notice dated 07.12.2023 and the learned counsel is accordingly heard after extending an opportunity of hearing to Sri. Naveen Chandrashekar, the learned Additional Government Advocate, on behalf of the first respondent.

3. The allegation against the petitioner is that she and another [the then President] have misappropriated the funds without necessary documents for utilization of the funds, and this is an allegation that is contemplated for disqualification under Section 12 (h) of the Act. Sri Praveen Kumar Raikote, the learned counsel for the petitioner, submits that the petitioner cannot be disqualified on such allegations unless the proceedings are held under Section 13 (2) of the Act. Sri Praveen Kumar Raikote next canvasses that the first respondent has observed in the notice that the allegations of misappropriation are true, and therefore, the contemplated enquiry would be futile.

4. Sri Naveen Chandrashekar, the learned Additional Government Advocate, submits that if the election of the petitioner is to be challenged on the ground of disqualification based on the allegations as aforesaid, the appropriate remedy for the concerned would be under Section 13 (2) of the Act, but where there is an allegation of misconduct in discharging the duties as an elected member in the current term, the proceedings will have to be necessarily held under Section 43A thereof. As regards the second contention, Sri.Naveen Chandrashekar does not controvert that notwithstanding the language used in the notice, the petitioner will be entitled to show cause against the allegation and the material that could be relied upon to substantiate the allegations.

5. The rival submissions must be considered in the light of the provisions of Sections 12 , 13 and 43 of the Act. The provisions of Section 12 [h] of this Act reads as under:

"12. Disqualification for members – A person shall be disqualified for being chosen and for being a member of a Grama Panchayat –

[a] xxxxx [h] if, save as hereinafter provided he has directly or indirectly any share or interest in any work done by order of the Grama Panchayat, or in any contract or employment with, or under, or by or on behalf of the Gram Panchayats; [or if he is either directly or indirectly by himself or by his agent, partner or employee involved in obtaining or execution of any such work or contract on behalf of the Grama Panchayat or of any contract for the supply of goods and services to the Grama Panchayat; or"

There cannot be dispute that an allegation of misappropriation of funds can be a reason for disqualification of the concerned member.

6. The question is, if there is reason for disqualification of a member under Section 12 [h] of the Act, should there be proceedings under Section 43A thereof, or sho