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Judgment
Heard learned counsel for the petitioner, learned A.G.P. for respondent Nos.1, 2, 4 and 5, learned counsel for respondent Nos.3 and 4 and learned counsel for respondent Nos.6 and 7 (intervenors).
Rule. Taken up for hearing with the consent of learned counsel.
This petition challenges an order passed by the Deputy Commissioner, Rehabilitation, Nagpur Division, Nagpur under Section 39(1) of the Maharashtra Village Panchayats Act ( for short "Act") removing the petitioner from the office of Sarpanch of the village panchayat. The removal was on the ground that she was guilty of misconduct in discharge of her duties. The enquiry itself was initiated on the complaint of respondent Nos.6 and 7. The main allegation concerns the allotment of the contract for construction of weekly market. The construction project was under the Maharashtra Agricultural Competitiveness Project. It was the grievance of the complainant that this work, which was of an estimated value of Rs.25,000,00/-, was awarded to the brother of UpSarpanch, one Shailesh Ravishankar Jaiswal, without a proper and genuine tender process with adequate publicity. On this complaint, the Divisional Commissioner of Nagpur directed the Chief Executive Officer of Zilla Parishad, Gondia to make an enquiry and present a report. (Preliminary enquiry in this behalf was carried out by the Block Development Officer, Panchayat Samiti, Arjuni Morgaon.) The enquiry, so ordered, was thereafter held by the Chief Executive Officer. All concerned, including the petitioner herein, were heard by the Chief Executive Officer and their submissions were recorded and considered. The Chief Executive Officer came to the conclusion inter alia that a tender notice was proposed by the Panchayat to be issued under the signature of the petitioner as Sarpanch. The tender notice was to contain details such as the estimated value of the work, the date of distribution of tender documents, date of receipt as well as for opening of tenders, and the other broad tender conditions and notices. The Chief Executive Officer found that as against this tender notice, another tender notice of the same date (i.e. 14th September, 2017) was issued on the letterhead of the Grampanchayat under the signature of the petitioner as Sarpanch containing hardly any description of the tender process or conditions and it was this tender notice which was in fact published in the local newspapers. The Chief Executive Officer was of the view that the work called for an Etendering process for award of work; not only was the norm of Etendering not followed but the tender notice in the local newspapers was without adequate particulars. The Chief Executive Officer was of the view that issuing of two separate tender notices on the same date and actual publication of the incomplete and inadequate tender notice was a deliberate act on the part of the petitioner as Sarpanch with a view to see that there was no adequate publicity of the tender notice and the prospective tenderers were misled. After this inadequate notice, three tenders were shown as received on the last date of receipt at the closing hours and the work was awarded to one Shailesh Jaiswal, brother of the Upsarpanch. After this fact finding exercise, the Chief Executive Officer, in his report submitted to the Commissioner, expressed his opinion that the petitioner was liable to be removed under Section 39(1) of the Act from the posts of Sarpanch and Member of the Grampanchayat. The petitioner and others were thereafter granted an opportunity to show cause and heard by the Deputy Commissioner, Nagpur Division, Nagpur. The Deputy Commissioner thereafter passed his impugned order dated 23rd December, 2015, expressing concurrence with the report submitted by the Chief Executive Officer and removing the petitioner from the post of Sarpanch as well as Member of the Grampanchayat. The Commissioner inter alia found that the tender notice was not issued by disclosing adequate particulars and the contract was deliberately awarded to one Shailesh Jaiswal, real brother of the UpSarpanch and that the responsibility for this misconduct was squarely on the petitioner as Sarpanch.
At the hearing of the petition, learned counsel for the petitioner, firstly, contended that contrary to the first proviso to Section 39(1) of the Act, the enquiry in the present case was not conducted by the Chief Executive Officer but by the Block Development Officer and that too without due notice to the Panchayat and the petitioner. Learned counsel, secondly, submitted that contrary to the second proviso to Section 39(1) of the Act, the decision on the report submitted by the Chief Executive Officer was not taken by the Commissioner but by the Deputy Commissioner. Learned counsel also submitted that there was neither notice of the enquiry nor a proper opportunity to show cause to the petitioner at any stage of the proceedings i.e. either before the Chief Executive Officer or the Deputy Commissioner. On merits, learned counsel submitted that the work being tendered under the Maharashtra Agricultural Competitiveness Project, no Etendering was required. So also, no newspaper advertisement was required to be issued. Learned counsel also submitted that every decision taken in this behalf was collectively taken by the Grampanchayat and not by the petitioner alone as a Sarpanch and that each of the decisions was in accordance with the instructions of the Nodal Officer who was coordinating the work on behalf of the Maharashtra Agricultural Competitiveness Project.
In support of his contention that an enquiry in the matter of removal of Sarpanch or Member of Gram Panchayat must be made by the Chief Executive Officer himself and no delegation is permissible, learned counsel relied on the judgment of our Court in the case of Nimba Yadav Bhoi v/s. President Standing Committee, Zilla Parishad, Jalgaon, reported in 2002(3) Mh.L.J. 466. There is no quarrel with the proposition canvassed by learned counsel for the petitioner. The fact of the matter is that this requirement is satisfied in the present case. What was initially carried out by the Block Development Officer was merely a preliminary enquiry. The inquiry within the meaning of the first proviso to Section 39(1) of the Act was indeed undertaken by the Chief Executive Officer himself. There is, therefore, no need to consider the question of delegation in this behalf. As far as compliance with the second proviso to Subsection (1) of Section 39 is concerned, there is a provision in the Act (Section 182) authorizing the Commissioner, subject to the general or special orders of the State Government, to delegate powers exercisable by the Commissioner under this Act to an Officer not below the rank of a Mamlatdar, Tahsildar or NaibTahsildar. The powers of the Commissioner in this behalf are delegated under this provision to the Deputy Commissioner. The observations in Nimba Yadav Bhoi''s case that no delegation of powers under Section 39(1) is permissible were in the context of the powers of the Chief Executive Officer to inquire into the matter, for which there is no provision in law for delegation. The powers of the Commissioner, on the other hand, are expressly permitted in the Act itself to be delegated, as noted above. No challenge can be laid, therefore, on the basis of Nimba Yadav Bhoi''s judgment to the delegation here. Such delegation is recognized and countenanced by this Court in case of Mohd. Izaz Abdul Refique vs. Addl. Commissioner, Amravati, reported in 2010(2) ALL MR 355. The hearing conducted as well as the decision taken by the Deputy Commissioner is thus intra vires the statute.
On the question of notice, it is apparent from the tenor and text of the report submitted by the Chief Executive Officer that the petitioner appeared and submitted her say in writing. The submissions made by the petitioner have been briefly set out in the report submitted by the Chief Executive Officer. In the face of this report and considering that there was no specific complaint in this behalf, it is not permissible to go behind the record and hold that there was either no notice or that there was no hearing given to the petitioner by the Chief Executive Officer. This is equally true of the hearing before the Deputy Commissioner and the opportunity made available to her to show cause before the former. The State has produced record to show that the notice was duly issued, that a copy of the report of the Chief Executive Officer was given to the petitioner and she was allowed to show cause thereon.
As far as the merits of the observations of misconduct are concerned, though learned counsel for the petitioner is right in submitting that since the contract work was covered under Maharashtra Agricultural Competitiveness Project, Etendering process, otherwise applicable to government contracts, was not applicable, the guidelines issued, however, in respect of Maharashtra Agricultural Competitiveness Project require an adequate tender notice of works concerning weekly markets to be published in local news papers as well as by displaying notices at prominent places. Such tender notice ought to contain the description of the work, the various criteria to be considered for award of the work and the timelines concerning the submission, scrutiny and acceptance etc. of tenders. There is no compliance in the present case with these requirements. Even otherwise, it is clear that what the Grampanchayat had approved was a more specific and detailed tender notice and what was published in local newspapers under the signature of the petitioner was a very sketchy notice giving no particulars whatsoever of either the project or the nature of the work or the estimated value of the work or any other details including the timelines concerning the tender process. The advertisement issued by the petitioner in local newspapers, roughly translated, goes like this:
"It is hereby informed that open tenders are invited by the Grampanchayat Navegaonbandh for Weekly Market Improvement Scheme.
The interested tenderers registered under the Sales Tax Act should submit tenders during the working hours on the working days up to 27-09-2013 till 3-00 P.M. exactly.
The tender forms are available in the office of Grampanchayat.
The terms and conditions can be seen in the office of Grampanchayat during the working hours on the working days."
As is apparent from the foregoing text, no contractor worth his salt could be expected to respond to an advertisement such as this. The observations of the Chief Executive Officer and the Deputy Commissioner in this behalf in support of their conclusion that the whole process was conducted with a specific purpose to award the tender to a close relative of the UpSarpanch of the Grampanchayat by subverting the tendering process, are clearly, to say the least, in the realm of good probability.
Learned counsel for the petitioner relied on the judgment of the Supreme Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others reported in (2012) 4 SCC 407 to submit that a mere error of judgment resulting into a negligent act does not amount to misconduct. Learned Counsel also submitted that whilst considering removal, elected representatives stand on a higher pedestal than government servants, and in their case, a strict compliance with the law is necessary before they are removed. There is, once again, no quarrel with the proposition. But that only means that one could expect a stricter scrutiny by the authorities entrusted with removal of elected representatives. That still does not mean that the standard of proof is any different from other cases of civil nature. It is not that the misconduct is required to be proved beyond reasonable doubt, as in the case of, say, corrupt electoral practices under the Representation of People Act. The offices of elected legislators, in this respect, cannot be compared to elected members of local bodies, whose removal is entrusted to officers of the State Government, though the officers themselves are expected to perform quasi judicial functions in the matter. The enquiries before the officers, no doubt, have to be performed in all solemnity and with due regard to the consequences of removal. But the principles of scrutiny of the orders by the writ Court are no different from ordinary principles of judicial review under administrative law.
Two fact finding authorities, in the present case, after due notice to the petitioner and other concerned and after hearing them and after applying their mind to the material on record, have passed concurrent orders. These orders cannot be said to be either vitiated by factual or legal mala fides or entailing any failure of justice. The orders are clearly supported by evidence on record. They cannot be termed as orders passed on no evidence. There is no consideration of any irrelevant or nongermane material and no germane or relevant material is disregarded.
In the premises, there is no infirmity with the impugned orders passed by the authorities below and no interference is called for within the writ jurisdiction of this Court. Accordingly, there is no merit in the petition. The petition is dismissed.
Learned counsel for the petitioner applies for continuation of the ad interim order passed in this case, which has continued throughout the pendency of the petition before this Court. Learned counsel for the respondent opposes the application. Considering the fact that the ad interim order has been operating in this matter since 1st February, 2016, it is reasonable to extend the same for some more period. Accordingly, the ad interim order passed on 1st February, 2016 shall operate for a further period of three weeks from today.