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Judgment
J.M. Panchal, J.—In instant reference made at the instance of the learned single Judge, two questions arise for consideration of the Larger
Bench, namely, (1) whether the words ""or of any disgraceful conduct"" occurring in Section 37(1) of the Gujarat Municipalities Act, 1963 (''the
Act'' for short), are referable to misconduct committed by a Councillor or President or Vice-President, with the words ""in the discharge of his
duties"", and (2) whether a Councillor, even if elected as a Member of a Committee, should be treated as a Councillor alone for the purposes of
Section 37 of the Act as Section 37 of the Act does not recognise a Chairman or a Member of any committee as a separate class.
In order to answer the above-referred to issues, it would be necessary to notice the relevant facts in brief.
2.1 In the year 1999, the petitioner was elected as a Municipal Councillor of Dabhoi Municipality, which is impleaded as respondent No. 2 in the
petition. He was also appointed as a Member of Malaria Committee of the Municipality. Some complaints were received against the
conduct/behaviour of the petitioner. According to the complaints, the petitioner had gone to a pumping station and picked up quarrel with the
superior field worker one Shri Sanjaykumar Inamdar. He had also used filthy language and threatened to hit him. As per the complaints, earlier
also the petitioner had behaved in a similar manner with one Shri A.B. Amin, who was then holding the post of Malaria Inspector. Further, as per
the complaints, the petitioner had frequently gone to the residence of the President of the Municipality who was a lady living alone, and abused her
as well as behaved in an indisciplined manner. On receipt of the complaints a notice dated August 31, 2000 was issued upon the petitioner u/s 37
of the Act, calling upon him to show cause as to why he should not be removed from the office of the Municipal Councillor. The notice was replied
by the petitioner on December 4, 2000. The petitioner was also given an opportunity of personal hearing. After holding inquiry against the
petitioner, the Director of Municipalities, who is impleaded as respondent No. 1 in the petition, passed an order dated December 14, 2000
removing the petitioner from the office of Councillor against which Special Civil Application No. 370 of 2001 is directed.
2.2 At the time of hearing of the petition it was argued on behalf of the petitioner that the petitioner was not supplied copy of the reports of the
Deputy Collector and the Collector, which have been referred to and relied upon by the Competent Authority while passing the order, and
therefore, the order removing the petitioner from the office of Councillor having been made in violation of principles of natural justice was liable to
be set aside. The said contention has been rejected by the learned single Judge by holding that the reports of the Deputy Collector and the
Collector were in fact not relied upon by the Competent Authority and that the reports being preliminary reports were not required to be supplied
to the petitioner.
2.3 The second contention which was urged on behalf of the petitioner before the learned single Judge was that the words ""or of any disgraceful
conduct"" occurring in Section 37 of the Act have reference only to the discharge of duties either by a Councillor or President or Vice-President, as
the case may be, and as it is not the case of the respondents that the petitioner is guilty of any disgraceful conduct in discharge of his duties as a
Councillor, he could not have been removed from the office of the Councillor. The learned single Judge noticed that in Chimanbhai R. Patel and
etc. Vs. Anand Municipality, Anand and Others, , a Division Bench of this Court has taken a view that a person who misconducts himself or
conducts himself in a disgraceful manner while performing his duties as a President or a Chairman of a Committee constituted by the Municipality
under the Act, can be removed from the office of the President or Chairman, as the case may be, but it seems difficult to hold that he can also be
removed from the office of the Municipal Councillor even though the alleged misconduct or disgraceful conduct was not referable to anything done
in the discharge of duties as the Municipal Councillor. On critical analysis of the decision in Chimanbhai R. Patel (supra), the learned single Judge
noted that in that case the question was whether the petitioner who was found guilty of misconduct committed in the discharge of his duties as a
Chairman of a Committee constituted by the Municipality, could have been removed from the office as a Municipal Councillor, though the
misconduct committed by him was not referable to his office as a Municipal Councillor, and therefore, the observations made by the Division
Bench to the effect that disgraceful conduct has reference to the discharge of duties are mere obiter. It was further noticed by the learned single
Judge that the decision rendered by the Division Bench in Chimanbhai R. Patel (supra) was followed by another Division Bench of this Court in
Popatlal Devidan Gandavi Vs. Satishkumar Rameshchandra Ahir and Others, . At the same time, the decision of the learned Judge delivered in
Anishbhai Isabhai Patel v. State of Gujarat and Ors. 1994 (2) GLR 1402, was brought to the notice of the learned single Judge where a view has
been taken that the misconduct must be misconduct in the discharge of the duties, whereas disgraceful conduct is pre-fixed by the expression ""any
and need not necessarily be in discharge of the duties. After noticing the view expressed by the learned single Judge in Anishbhai (supra), the
learned single Judge has expressed an opinion that the words ""in the discharge of his duties"" occurring in Section 37(1) of the Act only qualify the
words ""guilty of misconduct"" alone and not the words ""guilty of any disgraceful conduct"". Therefore, the question which arises for consideration of
the Larger Bench is whether a Councillor or President or Vice-President can be removed if he is guilty of any disgraceful conduct which was not
committed by him in discharge of his duties.
2.4 The third contention which was raised on behalf of the petitioner was that the petitioner had committed alleged misconduct in his capacity as a
Member of Malaria Committee, but not in the capacity of Municipal Councillor, and therefore, he could not have been removed from the office of
Councillor. While dealing with this contention, the learned single Judge noticed that in Chimanbhai R. Patel (supra) the Division Bench of this Court
has taken a view that when a person who misconducts himself while performing his duties as President or Chairman, he can be removed from the
office of President or Chairman, but not from the office of Municipal Councillor. The learned single Judge was of the view that Section 37 of the
Act does not recognise a Chairman or a Member of any Committee as a separate class and the only classes which are recognised are that of the
President, the Vice-President or the Councillor. As per the learned single Judge, any misconduct committed by the member of a Committee in
discharge of his duties, is for the purpose of Section 37 of the Act, a misconduct committed by the Councillor, and therefore, a Councillor, even if
elected as a Member of a Committee, should be treated as a Councillor alone for the purpose of Section 37 of the Act. The learned single Judge
has expressed the view that if a member of a Committee commits misconduct in discharge of his duties, he is liable to be removed as a Municipal
Councillor u/s 37 of the Act. This view is contrary to the view expressed by the Division Bench in Chimanbhai R. Patel (supra). Thus, the question
which arises for consideration of this Bench is whether a President or Vice-President or a Member of a Committee of the Municipality who
commits misconduct in discharge of his duties as such can be removed as a Municipal Councillor u/s 37 of the Act.
We have heard the learned Counsel for the parties at length and in detail, and considered the relevant statutory provisions.
First of all, we take up the issue for consideration whether the words ""in the discharge of his duties"" occurring in Section 37(1) of the Act qualify
the words ""guilty of misconduct"" alone or also qualify the words ""guilty of any disgraceful conduct"". In this regard we notice that in Chimanbhai R.
Patel (supra), the question which was directly posed for consideration of the Division Bench was whether the petitioner in that case who was found
guilty of misconduct committed in the discharge of his duties as a Chairman of a Committee constituted by the Municipality could have been
removed from office as Municipal Councillor, though the misconduct committed by him was not referable to his office as a Municipal Councillor.
The question whether the words ""in the discharge of his duties"" occurring in Section 37(1) of the Act qualify the words ""guilty of misconduct"" alone
or also qualify the words ""guilty of any disgraceful conduct"" was not a matter at issue. In our view, the Division Bench had no occasion to decide
the issue after active application of mind, and therefore, the observations made by the Division Bench that a person who misconducts himself or
conducts himself in a disgraceful manner in the discharge of his duties as a President or a Chairman of a Committee constituted by the Municipality
under the Act can be removed from the office of the President or Chairman, as the case may be, will have to be regarded as mere obiter, We
further notice that in Popatlal Devidan Gandavi (supra) another Division Bench of this Court has merely followed the obiter laid down in
Chimanbhai R. Patel (supra), and held that a Councillor, a President or a Vice-President can be removed from the office for disgraceful conduct
provided that the same has relation to official duties, but not otherwise. We notice that the view taken by the learned single Judge in Anishbhai
Isabhai Patel (supra) that disgraceful conduct need not necessarily be connected with the official function of the Member of the Panchayat was
brought to the notice of the Division Bench which decided the case of Popatlal Devidan Gandavi (supra), but the Division Bench has not overruled
the decision of the learned single Judge in Anishbhai Isabhai Patel, and has relied upon the decision of the Division Bench in Chimanbhai R. Patel
(supra) for taking the view that the Councillor, President or Vice-President can be removed from the office for disgraceful conduct provided that
the same has relation to his official duties, but not otherwise.
4.1 In order to appreciate the controversy raised in the Reference, it would be necessary to refer to the relevant provisions of Section 37 of the
Gujarat Municipalities Act, 1963, which read as under :
Section 37(1) The State Government may remove from office -
(a) any Councillor of a Municipality, on its own motion or on receipt of a recommendation of the Municipality in that behalf supported by a
majority of the total number of the then Councillors of the Municipality, or
(b) any President or Vice-President of a Municipality,
if, after giving the Councillor, President or as the case may be, Vice-President an opportunity of being heard and giving due notice in that behalf to
the Municipality and after making such inquiry as it deems necessary, the State Government is of the opinion that the Councillor, President or as the
case may be, Vice-President has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of
performing his duties under this Act.
(2) A President or Vice-President removed under Sub-section (1) shall not be eligible for re-election as a President or Vice-President during the
remainder of the term of the Municipality.
A bare reading of the Section would indicate that on the recommendation of the Municipality, by resolution duly passed for the removal of the
Councillor, the State Government may order removal if it is satisfied that the Councillor or President or Vice-President of a Municipality is guilty of
misconduct in the discharge of his duties, or guilty of any disgraceful conduct, or has become incapable of performing his duties as a Councillor and
the explanation furnished by him, if any, is not satisfactory and after making inquiry as is necessary. We notice that after the phrase ""has been guilty
of misconduct in the discharge of his duties"", the legislature has used the words ""or of any"". The word ""or"" is a disjunctive part used to express an
alternative or to give a choice of one among two or more things. It is well settled that the reading of ""or"" as ""and"" is not to be resorted to unless
some other part of the same statute or the clear intention of it requires that to be done. If the word ""or"" occurring in Section 37(1) of the Act is
read as ""and"", it does not convey any intelligible meaning, but renders the said provision absurd and mutilated. The word ""or"" is used in Section
37(1) of the Act as a function word to indicate an alternative between different or unlike things. As the phrase ""of any disgraceful conduct"" is
preceded by the word ""or"", it will have to be interpreted that the words ""the Councillor, President or Vice-President, has been guilty of any
disgraceful conduct"", have no relation to the discharge of duties of the Councillor, President or Vice-President as the case may be. It is relevant to
note that if the phrase ""of any disgraceful conduct"" is interpreted to mean that the disgraceful conduct must have relation to the discharge of duties,
the words ""of any"" occurring in the phrase ""of any disgraceful conduct"" would be rendered nugatory and such a construction of a statutory
provision must be avoided. Moreover, the word ""misconduct"" is specified by the phrase ""in the discharge of his duties""; whereas, no such
qualification is prescribed by the legislature, so far as expression ""disgraceful conduct"" is concerned. By reading the Section to mean that the words
or of any disgraceful conduct"" have reference to the ""discharge of his official duties"", the Court will have to rewrite the provision which is not
permissible.
4.2 In order to understand the object and purpose of the legislature in enacting Section 37, it will be worthwhile to notice legislative history
because it is settled principle of interpretation of statute that the Court is entitled to take into account such external or historical facts as may be
necessary to understand the subject-matter of the statute or have regard to the surrounding circumstances which existed at the time of passing of
the statute. By Section 279 of the Gujarat Municipalities Act, 1963, the Bombay District Municipal Act, 1901 and Bombay Municipal Boroughs
Act, 1925 have been repealed. Section 16 of the Bombay District Municipal Act, 1901 was as under :
The State Government in the case of City Municipalities, and the Commissioner in other cases, if it or he thinks fit, on the recommendation of
the Municipality, may remove any Councillor elected or appointed under this Act, if such Councillor 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 Councillor.
Whereas Section 23, Sub-section (7) of the said Act, which dealt with office of President and Vice-President inter alia was as under :
...Every President and every Vice-President shall be removable from his office as such President or Vice-President by the State Government for
misconduct, or neglect of or incapacity to perform, his duty...
A glance at the above-referred to provisions makes it more than clear that u/s 16 of the Bombay District Municipal Act, 1901 a Councillor could
have been removed from his office if he had been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or had become
incapable of performing his duties as a Councillor; whereas a President or Vice-President could have been removed from his office for misconduct,
or neglect of, or incapacity to perform, his duty under the provisions of the Bombay District Municipal Act, 1901. Therefore, under the provisions
of the Bombay District Municipal Act, 1901 a President or Vice-President could not have been removed from his office on the ground that he had
been guilty of any disgraceful conduct. So far as the Bombay Municipal Boroughs Act, 1925 is concerned, it is to be noticed that u/s 21(2) of the
said Act a President or Vice-President could have been removed from his office for misconduct, or negligent of, or incapacity to perform his duty,
whereas as per Section 27 of the said Act a Councillor could have been removed if he had been guilty of misconduct in the discharge of his duties,
or of any disgraceful conduct or had become incapable of performing his duties as a Councillor. Thus, even under the Bombay Municipal
Boroughs Act, 1925, it was never provided that a President or Vice-President could have been removed from office if he had been guilty of any
disgraceful conduct. The Gujarat Municipalities Act, 1963 was enacted to consolidate and amend the law regarding the Municipalities in the State
of Gujarat so as to give them wider powers in the management of Municipal affairs. For the first time, it has been provided in the Act of 1963 that
a President or Vice-President of a Municipality can be removed from his office if he is guilty of any disgraceful conduct. This legislative history
would indicate that disgraceful conduct has been treated as a separate class from misconduct committed by the Councillor in the discharge of his
duties and the disgraceful conduct may be in the discharge of duty or otherwise. Therefore, the legislative history also makes it abundantly clear
that the words ""of any disgraceful conduct"" have no reference to the words ""in the discharge of his duties"" following the words ""has been guilty of
misconduct"" and by no reason of interpretation can be read to mean that the disgraceful conduct must have reference to the discharge of duty and
not otherwise.
4.3 Further, the word ""misconduct"" used in the phrase ""has been guilty of misconduct in the discharge of his duties"" means misconduct in office. As
explained in Black''s Law Dictionary, Sixth Edition by the Publisher''s Editorial Staff, ""misconduct"" is any unlawful behaviour by a public officer in
relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed
improperly, and failure to act in the face of an affirmative duty to act. Misconduct is a transgression of some established and definite rule of action,
a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour; whereas the word ""disgrace"" means
ignominy; shame; dishonour. Disgraceful conduct need not be circumscribed to something done in the course of one''s duty as holder of the office.
The word ""disgrace"" is frequently used with an odious implication and as a term of general disparagement and equally discreditable as applied to all
persons. In this sense the term may imply disfavour, shame, contumely or even dishonour and is defined as meaning a cause of shame or reproach.
The term ""disgraceful"" is synonymous with infamous. Therefore, a President or Vice-President or the Councillor of a Municipality may be guilty of
any disgraceful conduct in the discharge of his duties or otherwise also and it cannot be interpreted to mean that the disgraceful conduct must be in
the discharge of duties and not otherwise. At this stage, we may refer to well settled canon of interpretation that where it is necessary to give a
provision a particular construction which is at variance with the way in which the Section is punctuated, it may be read as though there were in fact
punctuation where none appears on the face of the Act. In Re : Naranjan Singh 1962 (1) QB 211 Section 10 of the Fugitive Offenders Act, 1881
was considered. The said Section conferred on a superior Court power to discharge a fugitive where ""by reason of the trivial nature of the case, or
by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise ... it would be unjust or
oppressive or too severe a punishment to return"" him. It was held that, apart from cases of a trivial nature, the Court''s discretion to discharge a
fugitive could be exercised in any case in which the return of the man would be unjust or oppressive or too severe, and was not confined to cases
in which the application appeared not to have been made in good faith. In other words, the Section was given a wide construction, as though a
comma had been inserted before ""or otherwise"". Applying the same principle to the provisions of Section 37 of the Act, we find that the provision
will have to be read as if comma had been inserted after the words ""has been guilty of misconduct in the discharge of his duties"". So read, it
becomes evident at once that the subsequently following phrase ""or of any disgraceful conduct"" has no reference to the discharge of his duties and
that disgraceful conduct can be committed otherwise also.
4.4 The scheme of Section 37 of the Act is clear and unambiguous. As observed earlier, Sub-section (1) thereof empowers the State Government
to remove any Councillor or President or the Vice-President of a Municipality from the office (a) if he is guilty of misconduct in the discharge of his
duties, (b) or if he has been guilty of any disgraceful conduct or (c) if he has become incapable of performing his duties under the Act. A
disgraceful conduct is much more grave than a mere misconduct. A disgraceful conduct brings disrepute not only to the Councillor who is guilty of
such conduct, but would also cast a stigma upon the institution, namely, the Municipality. Webster gives the word ""disgraceful"" meaning as
synonymous of ""infamous"", ""detestable"", ""odius"", ""scandalous"", ""base"", ""vile"", ""shameful"", ignominious"". Acts sanctioned by law are not disgraceful.
The natural consequence of disgraceful conduct is that it brings the person committing the same into contempt among honourable persons. If the
legislative intention had been to confine the power of removal in case of disgraceful conduct committed in the discharge of the duties, an express
provision could have been made or the words ""in the discharge of his duties"" would have followed the second contingency also. Such being not the
language employed by the Legislature, we are of the opinion that the words ""in the discharge of his duties"" do not qualify the words ""disgraceful
conduct"" also. Disgraceful conduct has a reference to his behaviour as a citizen and not necessarily as a Councillor. If a person behaves
disgracefully in the public or in the office of Municipal Council, he is liable to be removed from his office of Councillor notwithstanding the fact that
the misconduct was not with reference to the discharge of his duties. Thus, the first question which is referred to the Larger Bench is answered by
holding that the phrase ""or of any disgraceful conduct"" occurring in the Section cannot be construed to mean that the disgraceful conduct must have
been committed in the discharge of duties only and not otherwise. The President, Vice-President or Councillor, as the case may be, can be
removed from office if he is guilty of any disgraceful conduct which is committed in the discharge of duties or otherwise because the President,
Vice-President or Councillor of a Municipality, as the case may be, is a public figure holding public post and is supposed to conduct himself in such
a manner whether in the discharge of his duties or otherwise, that his conduct does not bring shame or dishonour or ignominy to himself or the
institution. The decisions taking contrary view on this point stand overruled.
The second question which requires to be considered by this Bench is whether a Councillor, who is a member of a Committee constituted under
the provisions of the Act, can be removed from the office of Member of Committee or from the office of Councillor. On plain reading of Section
37 of the Act, we are of the opinion that on the recommendation of the Municipality by resolution duly passed for the removal of the Councillor,
the State Government may order removal if it is satisfied that the Councillor is guilty of misconduct in the discharge of his duties, or guilty of any
disgraceful conduct or has become incapable of performing his duties as a Councillor, and the explanation furnished by him, if any, is not
satisfactory and after making inquiry as is necessary. The Act envisages constitution of certain statutory committees such as Executive Committee
which is contemplated by Section 53 of the Act, or Pilgrim Committee as provided in Section 54 of the Act, and other Committees u/s 55 of the
Act and Consultative Committees as contemplated by Section 56 of the Act. When a Councillor becomes member of any of the Committees, he
continues to hold the office of Councillor also. The Councillor, who may be removed u/s 37 of the Act may be a mere Councillor or a Member of
any Committee or a President or Vice-President of the Municipality. When the Councillor happens to be a President, or Vice-President or a
Member of any Committee and is removed as a Councillor under this Section the office of the President or the Vice-President or as the case may
be, the office of the Member of any Committee becomes vacant and the vacancy is to be filled up as provided in the Act. Section 11 of the Act
provides for general disqualifications for becoming a Councillor and vacation of seat, whereas Section 38 provides for disabilities from continuing
as a Councillor. The scheme of Section 37 of the Act is such that when a Councillor in the capacity of President or Vice-President or a Member of
any Committee has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct or has become incapable of performing
his duties under the Act, it will have reflection on the office of the Councillor also, and therefore, a President, a Vice-President or a Member of any
Committee can be removed from the office of the Councillor. As noticed earlier, a Councillor is a public figure holding a public post and is also a
public servant. Therefore, he is supposed to conduct himself in such a manner that he does not commit any misconduct in the discharge of his
duties either as a President, Vice-President or a Member of any Committee or is not guilty of any disgraceful conduct either as a President, Vice-
President or a Member of any Committee. Under the circumstances, a Councillor who is a President or Vice-President or a Member of any
Committee can be removed as Councillor if he has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct as
President, Vice-President or a Member of any Committee. This does not mean that the Competent Authority has only one alternative, namely, that
the President or Vice-President has to be removed from the office of Councillor also. In a given case, the Competent Authority may remove a
President or Vice-President from the said post and allow him to hold the office of Councillor. In that eventuality, the President or the Vice-
President will continue to hold the post of Councillor subject to the limits prescribed in Section 37(2) of the Act. But, once a President or the Vice-
President, or as the case may be, a member of a Committee is removed from office of the Councillor, he ceases to be President or Vice-President
or the Member of the Committee. This aspect has not been considered by the Division Bench which decided the case of Chimanbhai R. Patel
(supra) and the decision is rendered on the basis of the language of Section 37 of the Act and Section 49(1) of the Gujarat Panchayats Act, 1961.
5.1 Under the circumstances, the view taken by the Division Bench in the case of Chimanbhai R. Patel (supra) to the effect that if a Councillor has
misconducted himself or conducted himself in a disgraceful manner while performing his duties as a President of the Municipality or Chairman of a
Committee appointed under the Act, and if his acts have nothing to do with the office of the Municipal Councillor, he can only be removed from
the office of the President or Chairman, as the case may be, but not from the office of Municipal Councillor held by him, is hereby overruled. Our
answer to the second question posed for our consideration is that a Municipal Councillor can be removed from the office of Councillor if he is
guilty of misconduct in the performance of his duties or of any disgraceful conduct as President, Vice-President or a Member of any Committee
and when the Councillor happens to be the President or Vice-President or a member of any Committee and is removed as a Councillor under this
Section the office of the President or the Vice-President or a Member of any Committee becomes vacant and the vacancy is to be filled up as
provided under the Act.
The Reference accordingly stands answered. The Office is directed to place the petition for further hearing before the Court taking up such
matters.