Bombay High Court
Indu Darbar More vs State Of Maharashtra, Thr. Secr. Dept. ... on 1 April, 2019
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.2129 of 2018
1] Vandana Ramesh Wagh, (respondent)
Aged 37 years, Occ. Sarpanch,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
2] Indu Darbar More, (respondent)
Aged 60 years, Occ. Up-Sarpanch,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Kolhigolar, Post Liha,
Tah. Motala, Dist. Buldhana.
3] Jamuna Sanotosh Pise, (respondent)
Aged 65 years, Occ. Member,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
4] Kailas Ganpat Bhagat, (respondent)
Aged 43 years, Occ. Member,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
5] Gokarna Bhagwat Pise, (respondent)
Aged 55 years, Occ. Member,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
No. 3 to 5 R/o.- At Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
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6] Sarveshwar Shankar Tamger, (respondent)
Aged 35 years, Occ. Member,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
7] Tai Supda Waghode, (respondent)
Aged 55 years, Occ. Member,
Gat Gram Panchayat Kohligolar, Tah. Motala,
Dist. Buldhana, R/o.- Gugali, Post Sindhkhed (Lapali),
Tah. Motala, Dist. Buldhana.
No.6 & 7 R/o.-at Kolhigolar, Post Liha, Tah. Motala,
Dist. Buldhana. .... Petitioners.
-Versus-
1] State of Maharashtra,
through its Secretary, Department of Rural Development
and Panchayat Raj Department, Mantralaya, Mumbai.
2] The Divisional Commissioner, Amravati Division, Amravati.
3] The Chief Executive Office, Buldhana Zilla Parishad, Buldhana.
4] The Secretary, Gat Gram Panchayat, Kolhigolar,
Tq. Motala, Dist. Buldhana.
5] The Block Development Officer, Panchayat Samiti Motala,
Dist. Buldhana. (respondent.)
6] Diwakar Bhaskar Patil, (applicant)
Aged Adult, Occ.-
7] Ashok Vishwanath Shinde,
Aged adult, Occ.-
Both R/o.-At Gugali, Post Sindhkhed, Tah. Motala,
Dist. Buldhana. .... Respondents.
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Mr. S.D. Chopde, Counsel for petitioners.
Mr. P.R. Wagh, Counsel for resp. nos. 3 and 5.
Mr. K.L. Dharmadhikari, AGP for resp. no.1.
Coram : Manish Pitale, J.
Date of reserving the judgment : 22nd February, 2019.
Date of pronouncing the judgment : 01st April, 2019.
JUDGMENT
Rule. Rule returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties.
2. The petitioners herein were the elected Sarpanch, Up-sarpanch and members of Gram Panchayat Kolhigolhar, Taluka Motala, District Buldhana, who stood removed from the said office by impugned order dated 22-03-2017, passed by respondent no.2-Divisional Commissioner and the appeal filed by them before respondent no.1 stood dismissed by impugned order dated 17-01-2018, thereby confirming their removal from office. The petitioners were removed from office on a complaint submitted by respondent nos. 6 and 7, under Section 39 of the Maharashtra Village Panchayats Act, 1959 [for short, 'Act of 1959'], on the ground that they had indulged in misconduct in discharge of their duties by holding meetings of the Gram Sabha when Model Code of Conduct was in operation, in view of election programme declared for a by-election to a seat of member of the said Gram Panchayat. It was found that the petitioners in the said meetings took up the issue of distributing benefits to the residents of the very ward for which the election had been declared, thereby not only violating the Model Code of Conduct, but polluting the ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 4 wp 2129.18.odt entire election process, making them liable for removal under the said provision of the Act of 1959.
3. The petitioners were elected as Sarpanch, Up-sarpanch and members of the said Gram Panchayat in July/August, 2015. The petitioner no.6 was elected from two constituencies and he resigned from one of them, leading to the necessity of holding a by-election for the seat that had fallen vacant. On 30-09-2015, a notice was issued for holding a meeting of Gram Sabha on 02-10-2015. But, on the said date i.e. 02-10-2015, there was lack of quorum as a result of which the meeting was adjourned to 12-10-2015. On the said adjourned date of meeting, the Gram Sabha was attended by large number of residents of various wards of the Gram Panchayat and decisions were taken in the said Gram Sabha regarding allotment of Farm Ponds and other benefits to various persons in the wards of the Gram Panchayat, including persons from Ward No.1, where by- election was declared.
4. In this backdrop, on 29-10-2015, respondent nos. 6 and 7 filed a complaint before respondent no.2, under Section 39 of the Act of 1959, contending that the petitioners had indulged in misconduct by holding the two meetings of Gram Sabha on 02-10-2015 and 12-10-2015, wherein decision was taken for allotment of Farm Ponds to the residents of various wards, including Ward No.1. It was contended that by granting such benefits to the residents of Ward No.1, the petitioners had been instrumental in influencing the voters in election that was to take place as per election programme declared on 28-09-2015 and when the Model Code of Conduct had already come into operation.
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5. As per the requirements of the aforesaid provision, respondent no.2 called for a report from the Chief Executive Officer of the Zilla Parishad in respect of the said complaint submitted by respondent nos. 6 and 7. On 21-12-2015, the Chief Executive Officer of Zilla Parishad submitted a report stating that although election programme had been already declared and the Model Code of Conduct had come into operation on 28-09-2015, since the petitioners were not aware about the same, holding of meetings of Gram Sabha on 02-10-2015 and 12-10-2015, could not be said to be a deliberate act on the part of the petitioners. On this basis, the Chief Executive Officer of Zilla Parishad concluded that the misconduct or disgraceful conduct alleged against the petitioners could not be said to have been proved and they could not be held guilty under Section 39(1) of the Act of 1959.
6. Despite the aforesaid report of the Chief Executive Officer of Zilla Parishad, by impugned order dated 22-03-2017, respondent no.2 held that the petitioners had clearly violated the Model Code of Conduct by holding meetings of the Gram Sabha on 02-10-2015 and 12-10-2015, because it could not be accepted that the petitioners as Sarpanch, Up-sarpanch and elected members of the Gram Panchayat, were not aware about the election programme, particularly when the programme of election was published in the newspapers and copies of the same had been given to the Gram Panchayat and Block Development Officer by the Tahsildar and the same was affixed on the notice board of the Gram Panchayat office. It was held that the petitioners had willfully violated the Model Code of Conduct with a view to influence the voters in Ward No.1 where the election was to be held, by distributing benefits like Farm Ponds ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 6 wp 2129.18.odt to the residents of the said Ward No.1. On this basis, the respondent no.2 declared that the petitioners stood disqualified as members of the said Gram Panchayat.
7. Aggrieved by the same, the petitioners filed appeal before respondent no.1. By impugned order dated 17-01-2018, respondent no.1 rejected the appeal filed by the petitioners under Section 39(3) of the Act of 1959. The respondent no.1 agreed with the reasoning of respondent no.2 and held that the petitioners had indulged in misconduct making them liable for removal from office under Section 39(1) of the Act of 1959. Aggrieved by the same, the petitioners have filed the present Writ Petition.
8. Mr. S.D. Chopde, learned Counsel appearing for the petitioners, submitted that the petitioners were never made aware about the declaration of election programme for Ward No.1 and that the Model Code of Conduct had come into operation with effect from 28-09-2015. It was submitted that in the absence of knowledge of existence of Model Code of Conduct, it could not be said that holding of meeting of Gram Sabha by the petitioners was a deliberate act of misconduct for which they could be removed from office under Section 31(1) of the Act of 1959. Even otherwise, it was submitted that the decisions that were taken in the meeting of the Gram Sabha on 12-10-2015, were attributable to the Gram Sabha, which was distinct from the Gram Panchayat and that large number of villagers and members of the Gram Sabha had taken part in the said meeting, leading to allotment of Farm Ponds and other benefits to the residents of various wards including Ward No.1. On this basis, it was submitted that only the petitioners could not be held liable for the decisions ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 7 wp 2129.18.odt of the Gram Sabha and that the findings rendered by the respondent nos. 1 and 2 regarding misconduct or the disgraceful conduct committed by the petitioners, were unsustainable and the impugned orders deserved to be set aside. Reference was made to various provisions of the Act of 1959, including definition of "Gram Sabha" and also the mandate on the petitioners as members of the Gram Panchayat to hold regular meetings of the Gram Sabha, to contend that the respondent nos. 1 and 2 had clearly erred in holding against the petitioners. It was submitted that when benefits were given to the residents of all the wards in the Gram Panchayat and not only Ward No.1 where the election was to be held and that too by decision of the Gram Sabha, it could not be said that the petitioners had indulged in misconduct or disgraceful conduct.
9. It was submitted that the respondents had failed to place on record cogent material to show that the petitioners were indeed aware about the Model Code of Conduct having come into operation on 28-09- 2015 and that the complaint of respondent nos. 6 and 7 was a result of political rivalry, which respondent nos. 1 and 2 failed to appreciate. The learned Counsel appearing for the petitioners relied upon judgment of the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir vs District Collector, Raigad and others, reported at (2012) 4 SCC 407 to contend that the actions of the petitioners were not covered under the expression "misconduct" or "disgraceful conduct" as laid down in the aforesaid judgment. The learned Counsel also placed reliance on the judgments of this Court in the case of Umesh Dattatraya Naik vs The Hon'ble Minister of State Ministry of Urban Development and others, reported at 2008(3) Mh.L.J. 747 and Dr. Gazala Yasmeen w/o Maruf Khan vs ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 8 wp 2129.18.odt State of Maharashtra and others (judgment and order dated 22-01-2019 passed in Writ Petition No.4792 of 2018).
10. Mr. P.R. Wagh, learned Counsel appearing for respondent nos. 6 and 7, submitted that respondent nos. 1 and 2 had correctly interpreted the law pertaining to Section 39(1) of the Act of 1959 and its application to the facts of the present case, while holding against the petitioners. It was submitted that the petitioners could not claim that they were not aware of the Model Code of Conduct having come into operation on 28-09-2015, because they were elected members of the Gram Panchayat and a copy of the election programme was pasted on the notice board of the Gram Panchayat office and it had been duly notified to the Secretary of the Gram Panchayat. It was submitted that the defence raised on behalf of the petitioners that since they were unaware about the election programme and the Model Code of Conduct having come into operation, they had not indulged in any misconduct or disgraceful conduct, could not be accepted because it amounted to an admission on their part that the act of holding meetings of the Gram Sabha on 02-10-2015, and 12-10-2015, during the operation of the Model Code of Conduct, was indeed an act that invited action under Section 39(1) of the Act of 1959. It was further submitted that the very judgment of the Hon'ble Supreme Court on which the petitioners were relying in the case of Ravi Yashwant Bhoir vs District Collector, Raigad and others, (supra) laid down the position of law against the petitioners. It was submitted that the decisions taken in the meeting of the Gram Sabha on 12-10-2015 clearly gave benefits, including allotment of Farm Ponds, to the residents and voters of Ward No.1, amongst others, where the election was slated as per the ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 9 wp 2129.18.odt election programme that was already declared. This was a clear act of misconduct and/or disgraceful conduct as the petitioners were instrumental in calling for such meeting of the Gram Sabha, not once but twice, wherein such benefits were distributed to villagers and voters of various wards, including Ward No.1. It was submitted that the purity of the process of election had been diluted by such act of the petitioners to deliberately influence the voters of Ward No.1 in the by-election and therefore, respondent nos. 1 and 2 were justified in removing the petitioners from their offices. On this basis, it was contended that the Writ Petition deserved to be dismissed.
11. Mr. K.L. Dharmadhikari, learned AGP appearing for the State authorities, submitted that the Model Code of Conduct had come into operation from 28-09-2015, about which the petitioners were certainly aware, because copy of the election programme itself had been sent to the Secretary of the Gram Panchayat and Block Development Officer and it was also affixed on the notice board of the office of the Gram Panchayat. On this basis, it was contended that the petitioners were not justified in claiming that they were not aware about the declaration of the election programme and the Model Code of Conduct having come into operation. It was further submitted that the State Election Commission had given detailed guidelines as to the manner in which the Model Code of Conduct was to operate and the fact that action was required to be taken against all those persons who would violate the Model Code of Conduct. On this basis, it was contended that there was no substance in the present Writ Petition and that it deserved to be dismissed.
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12. Heard Counsel for the parties and perused the record. The undisputed facts in the present case are that the petitioners did hold meeting of the Gram Sabha on 02-10-2015, but due to lack of quorum it stood adjourned to 12-10-2015. It is also a fact that on 12-10-2015, in the meeting of the Gram Sabha, conducted at the behest of the petitioners as members of the Gram Panchayat, decisions were taken to give benefits, including allotment of Farm Ponds to various residents/ villagers /voters in the wards of the Gram Panchayat, including Ward No.1 where the by- election was to be conducted. It is also undisputed that the election programme already stood declared and that the Model Code of Conduct had come into operation on 28-09-2015, much prior to both the dates when the meetings of Gram Sabha were held by the petitioners.
13. The Chief Executive Officer of the Zilla Parishad, in his report dated 21-12-2015, opined that the material on record demonstrated that the petitioners were not aware about the declaration of election programme and the Model Code of Conduct having come into operation. On this basis, conclusions were given in favour of the petitioners by holding that since they had inadvertently conducted meetings of the Gram Sabha during the operation of the Model Code of Conduct, it could not be said that they had indulged in misconduct as defined in Section 39(1) of the Act of 1959 or that they could be held guilty of such misconduct.
14. But, in the impugned order dated 22-02-2017, respondent no.2 has found that the petitioners were not justified in feigning ignorance about declaration of by-election for Ward no.1 and the Model Code of Conduct having come into operation on 28-09-2015. The respondent no.2 ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 11 wp 2129.18.odt has found that the election programme was published in newspapers and copies of the election programme were sent by the Tahsildar to the Secretary of the Gram Panchayat and the Block Development Officer and further that a copy of election programme was affixed on the notice board of the office of the Gram Panchayat. In this situation, respondent no.2, gave a finding that the petitioners were certainly aware about declaration of election programme and the Model Code of Conduct having come into operation when the two meetings of the Gram Sabha were held on 02-10-2015 and 12-10-2015. These findings have been confirmed by respondent no.1 in its impugned order dated 17-01-2018.
15. The material on record shows that the said findings rendered by respondent nos. 1 and 2 cannot be said to be erroneous or perverse. This shows that the petitioners were aware of the declaration of election programme and the Model Code of Conduct having come into operation, well before the two meetings of the Gram Sabha dated 02-10-2015 and 12-10-2015 were conducted by the petitioners. This further shows that the tenor of the report dated 21-12-2015 submitted by the Chief Executive Officer of Zilla Parishad was not correct and that respondent nos. 1 and 2 were justified in disagreeing with the same and holding against the petitioners under Section 39 (1) of the Act of 1959.
16. Having held that respondent nos. 1 and 2 were justified in concluding that the petitioners were aware about the declaration of election programme and the Model Code of Conduct having come into operation, it would be necessary to examine whether holding of meetings of Gram Sabha on 02-10-2015 and 12-10-2015, wherein certain benefits were ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 12 wp 2129.18.odt distributed to residents/villagers/voters of various wards including Ward No.1 wherein the by-election was slated, could be said to be misconduct or disgraceful conduct under Section 39(1) of the Act of 1959. Although the nature of stand taken by the petitioners before respondent nos. 1 and 2 that they conducted the meetings of the Gram Sabha because they were unaware of the declaration of by-election in Ward No.1, shows that they conceded to the fact that if they were aware, they would not have conducted such meetings of the Gram Sabha, but, it would still be necessary to examine whether the petitioners were liable to be removed under Section 39(1) of the Act of 1959, because the present case concerns removal of elected representatives of the Gram Panchayat.
17. In this regard, both the parties have placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir vs District Collector, Raigad and others (supra), wherein the Hon'ble Supreme Court has considered Section 39(1) of the Act of 1959 and it has been examined as to what could be said to be "misconduct" and "disgraceful conduct" under the said previsions. The relevant portion of the said judgment, reads as follows :-
"MISCONDUCT:
11. Misconduct has been defined in Black's Law Dictionary, Sixth Edition as:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 13 wp 2129.18.odt synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offense, but not negligence or carelessness."
Misconduct in office has been defined as: "Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. 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."
12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines `misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 :::
14 wp 2129.18.odt Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve....".
(See also: State of Punjab & Ors. v. Ram Singh Ex.
Constable, AIR 1992 SC 2188).
13. Mere error of judgment resulting in doing of negligent act does not amount to misconduct.
However, in exceptional circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds etc. constitutes a serious misconduct, inviting severe punishment. (Vide:
Disciplinary Authority-cum-Regional Manager & Ors. v. Nikunja Bihari Patnaik, (1996) 9 SCC 69; Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571; Inspector Prem Chand v. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566; and State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594).::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 :::
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14. In Government of A.P. v. P. Posetty, (2000) 2 SCC 220, this Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post.
15. In M.M. Malhotra v. Union of India & Ors., AIR 2006 SC 80, this Court explained as under:
".......It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject- matter and the context wherein the terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab & Ors., AIR 2002 SC 1124.
16. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment.
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17. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been detrimental to the public interest. (Vide: General Manager, Appellate Authority, Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290).
18. The expression `misconduct' has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as mis-demeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.
19. Further, the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest.
DISGRACEFUL CONDUCT :
20. The expression `disgraceful conduct' is not ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 17 wp 2129.18.odt defined in the statute. Therefore, the same has to be understood in given dictionary meaning. The term `disgrace' signifies loss of honor, respect, or reputation, shame or bring disfavour or discredit. Disgraceful means giving offence to moral sensibilities and injurious to reputation or conduct or character deserving or bringing disgrace or shame. Disgraceful conduct is also to be examined from the context in which the term has been employed under the statute. Disgraceful conduct need not necessarily be connected with the official of the office bearer. Therefore, it may be outside the ambit of discharge of his official duty."
18. In this context, the learned Counsel for the petitioners has specifically contended that the action on the part of the petitioners in holding meetings of Gram Sabha on 02-12-2015 and 12-10-2015 cannot be said to be misconduct or disgraceful conduct because, the provisions of the Act of 1959 mandate that the petitioners as members of the Gram Panchayat must hold regular meetings of the Gram Sabha. Reference has been made to the definition of "Gram Sabha" under Section 3(9) of the Act of 1959 and meetings of Gram Sabha under Section 7 thereof, under which it is mandated that there shall be at least four meetings of the Gram Sabha every financial year on such date at such time and place and in such manner, as may be prescribed and further that if the Sarpanch or in his absence the Up-sarpanch fails without sufficient cause to hold any of such four meetings, he shall be disqualified for continuing as Sarpanch or Up-sarpanch as the case may be. It was further pointed out that the Gram Sabha in the meeting held on 12-10-2015 had taken the decisions regarding distribution of benefits including allotment of Farm Ponds to the ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 18 wp 2129.18.odt residents of various wards and as many as 172 persons were signatories to the decision taken in the meeting of the Gram Sabha, thereby demonstrating that the petitioners could not be said to have indulged in misconduct or disgraceful conduct for being removed from their offices under Section 39(1) of the Act of 1959.
19. There cannot be any doubt about the fact that under the provisions of the Act of 1959, the Gram Sabha is definitely a body specifically defined and recognized as such and that it consists of persons registered in the electoral rolls relating to a village comprised within the area of Gram Panchayat. In this sense the decisions taken in meetings of the Gram Sabha would certainly be the decisions of the Gram Sabha as a body recognized under the provisions of the Act of 1959 and in the context of the powers and duties specified in the Act of 1959 attributable to a Gram Sabha. It is also no doubt true that the decisions taken in the meetings held on 12-10-2015 were those of the Gram Sabha, wherein various benefits were distributed to the residents and voters of wards, including Ward No.1 where the by-election was slated. But, the crucial question in this case is not about the Gram Sabha having taken the decisions in the meeting held on 12-10-2015, but the action on the part of the petitioners in having called meetings of the Gram Sabha to consider the said issue pertaining to distribution of benefits. The petitioners not only called the meeting on 02-10-2015, but in the absence of quorum, held the meeting on 12-10-2015. As held above, the petitioners could not feign ignorance about declaration of election programme pertaining to Ward No.1 and the fact that the Model Code of Conduct had come into operation on 28-09-2015 itself. This was because by-election of Ward No.1 had been occasioned ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 19 wp 2129.18.odt due to petitioner no.6 resigning from the seat as he was elected from two wards in the election held in July/August, 2015. The respondent no.2 has recorded a finding that the election programme was not only published in newspapers but it was also sent by the Tahsilder to the Gram Panchayat and Block Development Officer and a copy of the same was affixed on the notice board of the office of the Gram Panchayat. Therefore, the petitioners were fully aware about the Model Code of Conduct having come into operation on 28-09-2015. They were aware about the fact that during the operation of the Model Code of Conduct, they could not have undertaken any such action that would lead to distribution of benefits to the residents and voters of Ward No.1 wherein by-election was to take place.
20. Having knowledge about the Model Code of Conduct and knowing fully well that grant of benefits to the residents/voters of Ward No.1 would influence their voting, the action of the petitioners amounted not only to violation of the Model Code of Conduct, but also rendered the process of election in Ward No.1 as impure. Being elected representatives of local body like a Gram Panchayat the petitioners were expected to ensure that no such action was undertaken that would lead to influencing voters of Ward No.1 where the by-election was to take place.
21. The petitioner no.1 was the Sarpanch, petitioner no.2 was the Up-sarpanch and petitioner nos. 3 to 7 were the elected members of the Gram Panchayat which were instrumental in holding meeting of the Gram Sabha on 02-10-2015 and in absence of quorum holding meeting of the Gram Sabha on 12-10-2015. The petitioners were fully aware that the agenda of the meeting of the Gram Sabha on both these dates pertained to ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 20 wp 2129.18.odt distribution of benefits to residents/voters, including those of Ward No.1 where the by-election was to be conducted and that therefore, an action that would lead to grant of such benefits. It is immaterial that decision taken by the Gram Sabha on 12-10-2015 pertained to grant of benefits also to the residents/voters of wards other than Ward No.1, or that about 172 persons signed on such decision taken by the Gram Sabha. It is significant that the petitioners were also signatories to the said decision taken by the Gram Sabha on 12-10-2015.
22. Thus, the petitioners violated the Model Code of Conduct as they triggered such meetings. It is not the case of the petitioners that if the meeting of the Gram Sabha slated on 02-10-2015 or 12-10-2015 was not held, they would fall foul of the requirement of Section 7 of the Act of 1959, thereby exposing the petitioner nos. 1 and 2 as Sarpanch and Up- sarpanch of the Gram Panchayat to the vice of disqualification. The petitioners could certainly have held meetings of the Gram Sabha after the Model Code of Conduct had ceased to operate after the election for Ward No.1 was over in the first week of November, 2015. In the absence of any material or even a contention raised on behalf of the petitioners that holding of meeting of Gram Sabha was necessary to avoid action under Section 7 of the Act of 1959, it becomes clear that the petitioners had certainly indulged in misconduct under Section 39(1) of the Act of 1959. In this connection, the law laid down by the Hon'ble Supreme Court in the above quoted decision of Ravi Yashwant Bhoir vs District Collector, Raigad and others (supra) becomes relevant, wherein it has been held that misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 ::: 21 wp 2129.18.odt character, improper or wrong behavior. Its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety or mismanagement. The aforesaid action of the petitioners to hold meetings of the Gram Sabha during the operation of the Model Code of Conduct was certainly an action that could be said to be a misdemeanor and an act forbidden by the requirement of Model Code of Conduct and an act being willful in character because the petitioners as Sarpanch, Up-sarpanch and elected members of the Gram Panchayat were certainly aware about the requirements of the Model Code of Conduct upon declaration of the election programme. Here what was at stake was the purity of the process of election, which stood vitiated by the aforesaid misconduct on the part of the petitioners.
23. Therefore, it cannot be said that respondent nos. 1 and 2 committed any error in holding that the petitioners were liable to be removed from office under Section 39(1) of the Act of 1959. Reliance placed on the judgments of this Court in the case of Umesh Dattatraya Naik vs The Hon'ble Minister of State Ministry of Urban Development and others and Dr. Gazala Yasmeen w/o Maruf Khan vs State of Maharashtra and others (supra) is misplaced, because the said cases are clearly distinguishable from the facts of the present case.
24. In view of the above, the Writ Petition is found to be without any merit and accordingly, it is dismissed.
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25. Rule stands discharged in above terms. No costs.
JUDGE Deshmukh ::: Uploaded on - 01/04/2019 ::: Downloaded on - 02/04/2019 04:55:34 :::