Jitendrasinh Shivsinh Vansiya vs State of Gujarat and Others

J.B. Pardiwala, J.—The Appellant original Petitioner by way of this appeal under Clause 15 of the Letters Patent calls in question the legality, validity and propriety of the order passed by the learned Single Judge dated 20th October 2010 in Special Civil Application No. 4115 of 2010 wherein the learned Single Judge has rejected the petition confirming the orders passed by the authorities removing the Appellant from the office of Sarpanch.

The brief facts relevant for the purpose of deciding this appeal can be summarised as under:

2.1 The Appellant - original Petitioner was elected as Sarpanch of Sachin Gram Panchayat, Tal. Choryasi, Dist. Surat. While holding the office of Sarpanch, he came to be served with a show-cause notice dated 24.3.2009 issued by the District Development Officer, District Panchayat, Surat, calling upon the Appellant to show cause as to why he should not be removed from the post of Sarpanch on certain charges of misconduct in discharge of his duties as a Sarpanch, u/s 57(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as ''the Act'').

2.2 It appears that a detailed reply was submitted by the Appellant - original Petitioner, which was not found satisfactory and the District Development Officer, Surat vide his order dated 3rd July 2009, ordered removal of the Appellant from the office of Sarpanch, Sachin Gram Panchayat, in exercise of powers under Clause 57(1) of the Act.

2.3 The Appellant preferred an appeal to the State Government under the provisions of Section 57(3) of the Act. The appellate authority, namely, the Additional Development Commissioner, State of Gujarat vide order dated 6th February, 2010 dismissed the appeal confirming the order of removal of the Appellant from the post of Sarpanch, passed by the District Development Officer, Surat.

2.4 The orders passed by the authorities under the Act were subject matter of challenge before the learned Single Judge in a petition being Special Civil Application No. 4115 of 2010. The learned Single Jude came to the conclusion that the allegations against the Appellant are of very serious nature and they stand proved by the evidence on record. The learned Single Judge also came to the conclusion that the authorities below cannot be said to have committed any illegality or impropriety while passing the orders of removal. Accordingly, the learned Single Judge refused to grant any relief to the Appellant -original Petitioner and rejected the petition. The order of the learned Single Judge is now before us by way of this appeal under Clause 15 of the Letters Patent.

We have heard learned Senior Counsel Mr. Nirupam Nanavati, appearing with Mr. S.M. Gohil for the Appellant, Mrs. Krina Calla, learned AGP appearing for Respondents Nos. 1 and 4 and Mr. Pranav V. Shah, learned Advocate appearing for Respondents Nos. 2 and 3.

Before we record the contentions as canvassed by the learned Counsel for the respective parties, it would be expedient to look into the nature of allegations and the charges which were levelled against the Appellant - original Petitioner and on the basis of which the Appellant came to be removed from the office of Sarpanch. The charges read as under:

(a) Appellant indulged in financial irregularities while discharging his duties and in exercise of his powers as Sarpanch of the Gram Panchayats incurring expenses of huge amount of Rs. 6,27,939/-;

(b) Appellant accepted donations of huge amount for setting up a water purification plant for supply of pure drinking water to the villagers, without following requisite procedure as prescribed u/s 55 of the Gujarat Panchayats Act, 1993;

(c) Appellant incurred expenses of Rs. 11,19,024/- for the purchase of vehicles for the Panchayats without following requisite procedure of inviting tenders etc.;

(d) Appellant is said to have created obstructions in the work of supply of water through pipeline undertaken by Water Supply Board and got the project of laying of pipeline stalled;

(e) Appellant failed and showed negligence in getting the Resolution passed by the Gram Panchayats regarding recovery of annual token fee from the hawkers in the village and thereby caused financial loss to the Gram Panchayats;

(f) Appellant violated the guidelines prescribed under the Gokul Gram Scheme, by not opening the Bank account in the joint names of the President of the Committee, Talati-cum-Mantri and the Principal of Primary School, and instead opened a Bank account in the joint names of the Appellant himself and a Member of the Gram Panchayats;

(g) Appellant accepted a cheque in the name of SAI Transport Company and thereby alleged to have gained pecuniary benefit for himself rendering himself liable to action u/s 32(2) of the Gujarat Panchayats Act, 1993;

(h) Appellant failed to convene meeting of the Gram Panchayats once in a month as required under Rule 3(1) of the Rules of Gram Panchayats Procedure, in the year 2008-09;

(i) Appellant is alleged to have harassed the village people while issuing NOC for the purpose of gas connection and also harassed the village people by demanding money for the purpose of supply of ration card etc.;

It appears that out of nine charges which were levelled against the Appellant, except charge (i), all other charges stood proved after due enquiry in this regard and on the strength of which the Appellant came to be removed from the post of Sarpanch.

Learned Senior Counsel for the Appellant vehemently submitted that the judgment and order passed by learned Single Judge is erroneous and contrary to the evidence on record.

Learned Senior Counsel would submit that learned Single Judge rejected the petition without considering important questions of law in so far as the scope and ambit of the powers u/s 57 of the Act is concerned. Learned Senior Counsel vehemently submitted that before issuance of the show cause notice, Taluka Development Officer conducted a preliminary enquiry into the allegations levelled against the Appellant and the TDO, behind the back of the Appellant, conducted an enquiry and placed his report before the District Development Officer, who in turn issued show cause notice and thereafter, ordered removal of the Appellant from the post of Sarpanch. Counsel would submit that the authorities ought to have supplied a copy of the enquiry report prepared by the TDO, Surat and the enquiry could not have been conducted behind the back of the Appellant. He would submit that inspite of demanding copy of the enquiry report, the same was not provided to the Appellant. He would submit that non-supply of the enquiry report prepared by TDO would vitiate the further enquiry and will render the order of removal passed u/s 57 of the Act, untenable in law.

He would further submit that even assuming for the moment that the allegations levelled against the Appellant are true, then also they would remain in the realm of mere irregularity or an illegality in the discharge of duties. He would submit that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Gram Panchayat does not by itself empower the State Government or its delegates to remove a Sarpanch from the elected office. Learned Counsel relied on the following case laws in support of his contentions.

Decision of the Supreme Court in Sharda Kailash Mittal v. State of M.P, reported in 2010 (1) GLH 744 (SC);

Tarlochan Dev Sharma Vs. State of Punjab and Others,

A Division Bench ruling of this Court rendered in the case of Raysangbhai Ranchhodbhai Thakor v. State of Gujarat, LPA No. 2576 of 2010 in SCA No. 4778 of 2010, dated 31.3.2011;

Jyotiba S. Zala Vs. District Development Officer and Another,

Per contra, learned Counsel for the Respondents defended the orders by submitting that both the authorities i.e. District Development Officer and the Additional Development Commissioner have come to the conclusion that the Appellant is guilty of misconduct and abuse of powers and the findings have been affirmed by the learned Single Judge in exercise of powers under Article 226 and 227 of the Constitution of India and therefore, no interference is warranted in the appeal. They submitted that the appeal deserves to be dismissed.

Having given our anxious thoughts and considerations to the rival contentions of the respective parties, we shall now proceed to consider the contentions on merits.

Section 57 of the Act, which mandates five conditions for removal from office, reads as under:

Removal from office.

The competent authority may remove from office any member of the Panchayats, the Sarpanch or, as the case may be, the Upa-Sarpanch, thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the Panchayats and after such inquiry as it deems necessary, if such member, Sarpanch, or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the Panchayats.

On close reading of the provisions of Section 57, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Gram Panchayats does not by itself empower the State Government or its delegate to remove a Sarpanch from the elected office. There must be a finding supported by evidence to show that the concerned Sarpanch has been guilty of misconduct in discharge of his duties or of his disgraceful conduct or is incapable of performing his duties under the Act persistently. There is a vast difference between misconduct in the discharge of duties and dereliction of duty.

In the case of Raysangbhai Ranchhodbhai Thakor v. State of Gujarat (supra), the Division Bench of this Court held as under:

Section 57 does not speak about dereliction of duty. Misconduct is a violation of definite law. Dereliction of duty or carelessness is an abuse of discretion under a definite law. Misconduct is a forbidden act whereas dereliction of duty is forbidden quality of an act and is necessarily indefinite. However, lack of efficiency, failure to attain the highest standard of administrative ability while holding a public post or office like Sarpanch would not by themselves constitute misconduct. Person may be negligent in performance of duty and a lapse in performance of duty or error of judgment in evaluating a developing situation, may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to the negligence would be such as to the repairable or so heavy that the degree of culpability would be very high.

The Division Bench further held as under:

We take notice of the fact, more particularly considering the nature of the charges levelled against the Appellant that the authorities are equating misconduct or disgraceful conduct or persistent defaults to that with dereliction of duty.... Again, at the cost of repetition, we say that the charges as levelled against the Appellant and said to have been proved are not of such a nature which can be termed as misconduct in the discharge of duties or disgraceful conduct. Apparently, it is not a case of persistent default in the performance of duties.

The Honourable Supreme Court in the case of Sharda Kailash Mittal v. State of MP (supra) while considering the analogous provision under the Madhya Pradesh Municipalities Act where the case was of removal of President, observed in paragraphs 18 and 19 as under:

For taking action u/s 41-A for removal of President, Vice-President or Chairman of any Committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office-bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office-bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.

In the present case, the actions of the Appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Government to invoke its extreme power u/s 41

In the case of Tarlochan Dev Sharma v. State of Punjab and Ors. (supra) the Honourable Supreme Court while dealing with the removal of a President of the Council under Punjab Municipal Act, 1911, held in Paragraphs 6 and 11 as under:

In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his elections set aside by a prescribed procedure known to law... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office, a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held

A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is...The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.

Having considered the scope of Section 57 of the Act and the authoritative decisions on the subject, we are of the view that the allegations which were levelled against the Appellant and found to have been proved cannot be termed as mere irregularity or an illegality in the discharge of duties. In the case of Raysangbhai Ranchhodbhai Thakor v. State (supra), the nature of charges which were levelled against the Sarpanch of that case were of such nature which could not be termed as ''misconduct in the discharge of duties''. In the facts of the case, the Division Bench came to the conclusion that the authorities were not justified in equating the misconduct or disgraceful conduct or persistent defaults to that with dereliction of duty. In the present case, we are satisfied that the nature of the charges said to have been proved definitely falls within the ambit of Section 57 of the Act. Further, it cannot be said so far as the present case is concerned, as held by the Supreme Court in Tarlochan Dev Sharma v. State of Punjab (supra) that this is a case of singular or casual aberration or failure in exercise of power, No doubt it is true, as held by the Supreme Court, that removal of a Sarpanch from the office is a serious matter as a stigma is cast on the holder of the office in view of certain allegations. However, it all depends upon the nature of the allegations and the material in support of the same. We at this stage cannot go into the sufficiency or insufficiency of the evidence in support of the allegations levelled against the Appellant, as both the authorities below have taken a view that there is ample material on record to justify removal of the Appellant from the post of Sarpanch, which has been affirmed and upheld by the learned Single Judge.

So far as the case law in Jyotiba S. Zala v. DDO, Ahmedabad, relied upon by the learned Counsel for the Appellant is concerned, the same will not help the Appellant herein because in Jyotiba''s case (supra), the Division Bench of this Court upon facts held that the allegations were not that of misconduct or disgraceful conduct or abuse of powers or persistent default in the performance of duties and functions. In Jyotiba''s case, the Division Bench found that the lapses on the part of the lady Sarpanch were more procedural in nature. In this background, the Division Bench held as under:

It is an admitted position that the Appellant, a lady Sarpanch was holding such office for the first time and was, in all probability, elected to the office reserved for women. The Appellant could not, therefore, be expected to be conversant with the procedural rules in respect of the meetings of the panchayat. The Appellant took charge on 17th January 2007 and the four meetings referred to in the show cause notice were convened within a short time thereafter from 25.1.07 to 25.4.07. In two of the meetings, only two members were present and in two meetings, no member was present. It appears that neither the Talati-cum-mantri nor the members present have drawn the attention of the Appellant to the procedure rules, regarding the requisite quorum. The resolutions passed at various meeting without quorum were in connection with water re-survey of Moti Talav, construction of road of Harijan Vas, construction of public canal near the S.T. Bus-stand, repairing of swimming pool, putting road metal in the village, etc. These activities were certainly for the benefit of the people at large in the village and not to their detriment. In the circumstances, even otherwise the order of removal is very harsh and overlooks the practical aspects of the matter.

We may deal with one more contention canvassed by learned Counsel as regards non-supply of the enquiry report prepared by the Taluka Development Officer, Surat. We fail to understand as to on what basis the Appellant demanded the copy of the said report. We may clarify that TDO conducted a preliminary enquiry into the allegations levelled against the Appellant only for the purpose of coming to the conclusion as to whether any proceedings u/s 57 of the Act deserves to be initiated against the Appellant or not. We may equate such a report with a report of preliminary enquiry in a Departmental proceedings. It is a settled law that a delinquent who is being proceeded Departmentally need not be supplied report of a preliminary enquiry conducted, if any, and non-supply of such a preliminary enquiry report would not vitiate the Departmental enquiry and the final orders which may be passed by the competent authority. Such a report is only for the benefit of the authority who, on the basis of such a report takes the decision as to whether the person holding the office should be called upon to show cause as to why he should not be removed from the post of Sarpanch for the alleged acts of misconduct. We are of the view that the Appellant is not entitled to claim as a matter of right such report prepared by the Taluka Development Officer. We are of the view that by not supplying the copy of the preliminary enquiry report prepared by Taluka Development Officer, Surat, it cannot be said that prejudice has been caused to the Appellant and that there has been violation of the principles of natural justice.

We are also of the view that the word "such enquiry" in Section 57 of the Act does not contemplate the preliminary enquiry which TDO undertakes to look into the allegations levelled against the Sarpanch. The enquiry as contemplated u/s 57 of the Act is after a show cause notice is issued calling upon the Sarpanch to show cause as to why he should not be removed from office. This is very much evident on plain reading of the Section itself. No doubt there has to be some enquiry but the same is not mandatory. The wordings in Section 57 are important. "The Competent Authority may remove from office any member of the Panchayat, the Sarpanch or, as the case may be, the Upa Sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the Panchayat and after such enquiry as it deems necessary....". It is not the case of the Appellant that he was not given an opportunity to meet with the charges or allegations levelled against him. Appellant was served with a show cause notice to which he gave a very exhaustive reply, which was taken into consideration by the authorities and thereafter, the authorities reached to the decision to remove the Appellant from the office of Sarpanch. It is also not the case of the Appellant, as evident from the material on record, that the show cause notice along with the findings recorded by the District Development Officer have travelled much beyond the show cause notice.

The question then is whether the approach adopted by learned Single Judge in not elaborately considering the defence of the Appellant and the evidence on record, as complained by the Appellant, is vitiated by an error of law. We may only say that High Court is not a Court of appeal to appreciate the evidence. The authorities which are empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review, subject to limitations of interference with findings of fact. The authorities below when considers all the material facts and record a finding, though another view, as a Court of appeal may be possible, it is not a ground to reverse the findings. The Court has to see whether the authorities considered all the relevant materials placed before it, or has not applied its mind to relevant facts, which have led the authorities ultimately to record the finding. Each case must be considered in the backdrop of its own facts.

In the above view of the matter, we are of the view that the Appellant is not entitled to any relief. We do not find any error much an error of law said to have been committed by the learned Single Judge, warranting any interference at our hands in this appeal. Hence, the appeal is ordered to be dismissed with no order as to costs.