Gujarat High Court
Chetan Vitthalbhai Patel vs Additional Development Officer & on 15 March, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/18263/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18263 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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CHETAN VITTHALBHAI PATEL....Petitioner
Versus
ADDITIONAL DEVELOPMENT OFFICER & 1....Respondents
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Appearance:
MR.AMIT R JOSHI, ADVOCATE for the Petitioner.
MR V.R.JANI, LD.ASSTT.GOVT. PLEADER for Respondent No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 15/03/2016
ORAL JUDGMENT
1. By way of the present petition under Articles 14 and 226 of the Constitution of India, the petitioner, who has been removed from the post of Sarpanch of Vasna (BO) Gram Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT Panchayat, Taluka: Borsad, Dist.Anand has prayed as under:
"8(A) Your Lordship be pleased to issue writ of certiorari or any other appropriate writ order or direction, quashing and setting aside the order passed by the Respondent No.2 authority dated 17.08.2015, at Annexure-A to the petition and also quashing and setting aside the order passed by the Respondent No.1 dismissing the appeal filed by the petitioner by order dated 07.10.2015 at Annexure-B to the petition;
(B) Pending admission, hearing and final disposal of this petition, Your Lordship be pleased to stay the operation, implementation and execution of the order passed by the Respondent No.2 authority dated 17.08.2015 at Annexure-A to the petition, and also the order passed by the respondent no.1 dated 07.10.2015 at Annexure-
B to the petition;
(C) Cost of this petition be provide for;
(D) Be pleased to grant such other and further relief/s that is justice, fit and expedient in the facts and circumstance of the case may be granted."
2. Pursuant to the Notice issued by this Court, respondent No.2 has appeared through learned advocate Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT Mr.H.S.Munshaw and filed Affidavit-in-reply on behalf of respondent No.2.
3. After hearing the learned advocates appearing on behalf of the respective parties and considering their pleadings, the co-ordinate bench of this Court had issued Rule on 24/02/2016, which was made returnable on 14/03/2016. Hence, this matter is taken up for final hearing today.
4. Brief facts, arise from the record, are as under:
The petitioner was elected as Sarpanch of Vasna (BO) Gram Panchayat, Taluka: Borsad, Dist.Anand (hereinafter referred to as "the Panchayat") on 20/06/2011 and again reelected with heavy majority in the month of February,2013. The petitioner continued his functioning as Sarpanch of the said village.
A Charitable Trust namely Vasna Education Trust is imparting education by running School in the village. It is the case of the petitioner that since the said trust was acting arbitrarily and dismissing the names of the students from the school, by demanding extra fees, creating false absence in presence registers of the students and was not maintaining other registers and beating the student deadly, raised his voice against the same, has led to the dismissal from the post of Sarpanch.
One Amarprasad Gaud, resident of said village lodged an FIR with Borsad Police Station on 08/08/2014 inter- alia alleging that the Principal of the School has misbehaved with his son, who is studying in the said school and was bitten by the Principal on 07/08/2014 i.e. one day prior to the date of lodgement of the FIR. Amarprasad Gaud also submitted an Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT application to the Sarpanch (present petitioner) on 11/08/2014 with regard to the said incident. Considering the above averments made therein, the petitioner being Sarpanch of the said Village, forwarded the said application to the District Education Officer, which in turn forwarded to the Taluka Development Officer. The Taluka Development Officer deputed one lady Assistant Teacher namely Rohini Patel to visit the School. She had visited the school on 21/08/2014.
It is also the case of the petitioner that certain students had preferred Special Civil Application No.15690 of 2014 before this Court under the guidance of the petitioner for arbitrary action of the school management. The dispute was settled and accordingly the said petition was disposed of by this Court vide oral order dated 12/12/2014. Since the school was acting in high-handed manner, the petitioner intervened and once again visited the School.
It is the case of the petitioner that Chairman of the Education Trust, who is residing at U.S.A., has requested the Taluka Development Officer of Borsad District by sending an email, by making allegations against the petitioner on 6/10/2014 and raised grievance against the petitioner that he is trying to mislead the students by using derogatory language and instigating the students to come in the school with sticks and use the same for their rights.
After receiving the said complaint, Taluka Development Officer initiated inquiry and submitted his report dated 29/12/2014 after recording statements of the students. The said report prepared by Taluka Development Officer was submitted to the District Development Officer, Anand.
District Development Officer, Anand had issued a show cause notice u/s.57(1) of the Gujarat Panchayat Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT Act,1993 to the petitioner and asked to show the cause as to why he should not be removed from the post of Sarpanch for disgraceful conduct. The petitioner appeared and filed his objections as well as his explanation. District Development Officer after hearing the parties passed an order on 17/08/2015 and removed the petitioner from the post of Sarpanch. The said decision of the District Development Officer came to be challenged by the petitioner by way of filing an appeal u/s.57(3) of the Act, being Appeal No.86/2015 before learned Additional Development Officer, State of Gujarat. Learned Additional Development Officer dismissed the appeal filed by the petitioner on 07/10/2015. Hence, this petition.
5. Learned advocate appearing for the petitioner has vehemently submitted that the orders passed by the authorities below are contrary to the law and have been passed in absence of any material, which established that the petitioner, who is Sarpanch, is guilty of misconduct in discharge of his duties or any disgraceful conduct, as alleged in the application. Petitioner has been elected for consequetive two times and was working for welfare of the students. That the petitioner has been awarded by the Government for an award namely "Swarnim Gram" for raising funds of Panchayat to the tune of Rs.17 Lacs in very short period of his term. He would submit that his activities of creating awareness about rights of the students as well as their parents. He would submit that one student was bitten by the Principal of the School, for which an FIR has already been filed against the Principal, by the Chairman of the said Trust, who is settled in U.S.A. He would submit that the application Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT submitted by father of the student, who was bitten, was forwarded to the concerned Department by the petitioner. Pursuant to which, one lady Assistant Teacher, at the instance of the District Education Officer, had visited the School. By taking me through the relevant documents, he would submit that school management is not keeping proper register and trying to mislead the authority by showing that boy as absent, though he was present in the School. He would submit that the said aspect was verified by the Assistant Teacher, who has visited the school. The statements of the students, which were recorded, would not lead the petitioner for guilty of misconduct, as alleged by the respondent authority. He would further submit that those students, whose statements were recorded, clarified the same by their further statements that they were studying in standard X and they were compelled to sign their statements against the petitioner- Sarpanch that too in absence of their parents. The statements have not been considered by the learned Appellate Authority. He, therefore, submit that the authorities have wrongly exercised their powers u/s.57 of the Act and, therefore, impugned orders are required to be quashed and set aside.
In support of his submissions, he has relied upon the reported decision delivered by Division Bench of this Court in the case of Raysangbhai Ranchhodbhai Thakor V/s. State of Gujarat and others reported on 2011(4) GLR 3130. He would submit that it is not the case of the respondent authority that the petitioner is guilty of misconduct in discharging his duties or of any disgraceful conduct or abuse his powers being Sarpanch. He would submit that the allegations are vague in nature and cannot be treated as disgraceful conduct and, therefore, drastic action Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT of removing the petitioner from the post of Sarpanch, upon which the person is elected, ought not to have been taken against the petitioner.
He has also relied upon the decision in the case of Dineshbhai Govabhai Makwana V/s. State of Gujarat and others reported in 2012(3) GLR 2285, and submitted that drastic action of removal of elected person .e. Sarpanch under provisions of Sec.57(1) can be invoked only for strong and weighty reasons, which is not the case here. Therefore, he would submit that the petition may be allowed.
6. On the other hand, Mr.H.S.Munshaw, learned advocate appearing for the respondent would submit that Taluka Development Officer after collecting relevant materials, submitted report to the District Development Officer, who in turn, after hearing the petitioner, passed the order, which has been confirmed by the Appellate Authority, does not call for any interference of this Court. He would submit that the petitioner had remained present in the school on various occasions, which is recorded in CCTV footage. Statement of the Assistant Teacher appointed by the Education Department was also recorded subsequent to the inquiry, which is against the petitioner. He would submit that entering in the school premises and instigating the students, would certainly fall under the head of disgraceful conduct. He would submit that being a Sarpanch, he is required to behave properly in public places and in the present case, he had entered in the school premises and instigated the students, which would entitle the authority to exercise power u/s.57 of the Act and in the present case, the authority has rightly exercised the same. He would submit that the authority has rightly placed reliance on the statements of the students, Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT which categorically involved the petitioner with regard to his misconduct being Sarpanch and, therefore, the petition may be dismissed.
7. Mr.V.R.Jani, learned Assistant Government Pleader appearing for respondent No.1 has supported the impugned orders passed by the authorities below and submitted that the petition may be dismissed.
8. I have heard learned advocates appearing on behalf of the respective parties. Pleadings of the parties suggest that the proceedings against the petitioner with regard to his alleged misconduct, begun subsequent to the incident taken place in the school, run by the Charitable Trust, wherein a student was bitten by the Principal of the School. An FIR is already registered against the Principal. When a Sarpanch, who is taking keen interest with regard to the welfare of the students, received application from the father of the said student, he has rightly forwarded the same to the District Education Officer, who in turn, appointed one lady Assistant Teacher to verify the same. The petitioner being Sarpanch might have visited the school, however, nothing was reported by any of the authorities, as alleged against him.
9. Office of the Taluka Development Officer started inquiry in the matter only after receiving the complaint from the Chairman, who is residing in U.S.A. through E-mail. Some students have stated that the petitioner was teaching that they should not be afraid from anybody including principal of the School and should come with sticks and use them for their rights. Similar statements were given by other students.
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C/SCA/18263/2015 JUDGMENT
These statements are not established that conduct of the petitioner was disgraceful, which would lead to remove him from his services as an elected person. It is pertinent to note that the students, who were studying in standard X, have clarified in their subsequent statements that earlier statements were recorded under pressure. The guardians have also supported the same. Except these statements of the students, who have subsequently clarified the facts, there is no material or evidence which would empowered the authority in passing the order u/s.57 of the Act. Section 57 of the Gujarat Panchayats Act,1993, reads as under:
"57(1) 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 inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, UpaSarpanch 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 functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the UpsSarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat.
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C/SCA/18263/2015 JUDGMENT
(2) The competent authority may, after
following the procedure laid down in sub section (1) disqualify for a period not exceeding five years any person who has resigned his office as a member. Sarpanch or UpaSarpanch, or otherwise ceased to hold any such office and has been guilty of misconduct specified in subsection (1) or has been incapable of performing his duties and functions:
Provided that an action under this sub section shall be taken within six months from the date on which the person resigns or ceases to hold any such office.
(3) Any person aggrieved by an order of the competent authority under subsection (1) or (2) may, within a period of thirty days from the date of the communication of such order, appeal to the State Government."
10. Considering the material on record, findings which have been recorded by both the authorities below, are not sufficient to pass an order u/s.57 of the Act. I do not find any material in support of the findings recorded by the authorities below and, therefore, in my opinion, ratio laid down in the case of Raysangbhai Thakor (supra) would be applicable in the present case. I am also in agreement with the judgement of co-ordinate bench of this Court delivered in the case of Dineshbhai Govabhai Makwana (supra) that power of Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Mar 20 01:10:49 IST 2016 C/SCA/18263/2015 JUDGMENT removal can be invoked only for strong and weighty reasons, which I do not find in the present case.
11. Considering the overall facts and circumstances of the case, the impugned order dated 17/08/2015 passed by respondent No.2 authority as well as order 07/10/2015 passed by respondent No.1 authority are hereby quashed and set aside. Rule is made absolute accordingly.
Direct service is permitted.
sd/-
[A.J.DESAI,J.] *dipti Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Mar 20 01:10:49 IST 2016