Bombay High Court
Umesh Rupraoji Gabhane vs The State Of Maharashtra, Through ... on 5 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
1 / 17 wp6927.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6927 OF 2016
Umesh Rupraoji Gabhane
Aged about 51 years,
Vice-President of Nagar Panchayat, Mouda
R/o. Mouda, Taluka Mouda
District Nagpur .. PETITIONER
...V E R S U S...
1) The State of Maharashtra
Through the Secretary,
Urban Development Department,
New Administrative Building,
Opposite Mantralaya, Mumbai.
2) Minister of State for Urban Development
New Administrative Building,
Opposite Mantralaya, Mumbai.
3) The Collector,
Civil Lines, Nagpur
4) Nagar Panchayat, Mouda,
through its President,
Mouda, Taluka Mouda,
District Nagpur.
5) Mr. Gajanan Bhoyar,
District Administrative Officer,
Gadchiroli. .. RESPONDENTS
-------------------------------------------------------------------------------------------
Shri. C. M. Samarth, counsel for petitioner.
Smt. H. N. Prabhu, AGP for respondents No.1 to 3.
Shri. Abdul Subhan h/f. Shri. F. T. Mirza, counsel for
respondents No.4 and 5.
-------------------------------------------------------------------------------------------
::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
2 / 17 wp6927.16.odt
CORAM:- MANISH PITALE J.
DATED :- 05/02/2020
ORAL JUDGMENT
Heard.
(2) Rule. Rule made returnable forthwith. Heard finally by the consent of learned counsel appearing for the rival parties.
(3) By this writ petition, the petitioner has challenged order dated 29/11/2016, passed by the respondent No.2, whereby the petitioner was removed from his elected office of Vice-President of the Nagar Panchayat, Mouda and it was further directed that, he stood disqualified for a period of six years from holding such office. The respondent No.2 exercised powers under Section 55A and 55B of the Maharashtra Municipal Councils Nagar Panchayats and Industrial Townships Act, 1965.
(4) This Court issued notice in this writ petition on 09/12/2016 and granted interim relief in favour of the ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 3 / 17 wp6927.16.odt petitioner by taking note of the fact that charge was yet to be handed over by the petitioner. This Court specifically observed that the real question involved in the writ petition was, as to the nature of enquiry to be conducted before removal of democratically elected person holding the office of President or Vice President of the Nagar Panchayat. (5) The petitioner was elected as Vice President of the said Nagar Panchayat in January, 2014, for a period of two and half years. On 07/05/2016, the petitioner as the Vice President of the said Nagar Panchayat and other members submitted a representation before the respondent No.3-Collector stating that the Chief Officer was not performing his duties properly, due to which funds that were available for development work were not being utilized. A request was made for transferring the then Chief Officer (respondent No.5 herein) due to his alleged incapacity to work. The material on record also shows that on 10/05/2016, the then Guardian Minister of Nagpur had taken note of the complaint/representation made by the petitioner and others against the respondent No.5 (the then Chief Officer) and directions were given to the Principal ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 4 / 17 wp6927.16.odt Secretary of Urban Development Ministry at Mumbai to take immediate steps for inquiring into the matter and to take action for immediate transfer of respondent No.5. (6) In this backdrop, on 14/06/2016, the respondent No.5 submitted a complaint before the respondent No.3 stating that on the said date at about 11:35 a.m., when the respondent No.5 reached his office, the petitioner obstructed him and used abusive language. The respondent No.5 sought appropriate action against the petitioner with regard to the said incident. In pursuance of the said complaint, the respondent No.3 issued a show- cause notice dated 14/06/2016 to the petitioner, asking him to show-cause as to why action under Section 55A of the said Act ought not to be taken against him. (7) The petitioner submitted his explanation dated 16/06/2016, before the respondent No.3, denying use of abusive language against respondent No.5. It was specifically stated that respondent No.5, as Chief Officer, was not performing his duties properly and that he was always coming late to the office. It was also stated that on the date of the alleged incident, the respondent No.5 came ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 5 / 17 wp6927.16.odt to office at about 12:00 noon, due to which the petitioner requested him not to come late to office as administrative work was suffering. The petitioner completely denied any kind of obstruction created by him or use of abusive language against respondent No.5.
(8) In fact, the petitioner requested respondent No.3 to conduct a detailed enquiry, so that justice was done in the matter. It is relevant that on 17/06/2016, the respondent No.5 stood transferred to Gadchiroli.
(9) On 04/10/2016, the respondent No.3 submitted report to the Secretary Urban Development Department at Mumbai, recording that the petitioner had admitted to having obstructed the respondent No.5 from entering his office and that in his explanation dated 16/06/2016, the petitioner stood by such statements given in his explanation. On this basis, it was concluded by respondent No.3 that the petitioner obstructed not only respondent No.5 from entering his office, but he also prevented other employees in the office from performing their work.
::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
6 / 17 wp6927.16.odt (10) It is in this backdrop, that the impugned order dated 29/11/2016 was passed by respondent No.2, whereby the petitioner stood removed from his elected office of Vice-President, Nagar Panchayat and he further stood disqualified from holding the said office for a period of six years. The respondent No.2 relied upon the report of the respondent No.3-Collector in order to hold against the petitioner.
(11) It is pointed out that at the relevant time, the petitioner, although elected as Vice President of the Nagar Panchayat, was holding charge as the President of the Nagar Panchayat.
(12) As noted above, while issuing notice in the present writ petition, challenging the said order passed by respondent No.2, this Court granted interim relief in favour of the petitioner. Although the term of office of the Vice President of the said Nagar Panchayat expired with passage of time, the order of disqualification for a period of six years from the date of the impugned order still operates, due to which the petitioner is aggrieved by the impugned order.
::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
7 / 17 wp6927.16.odt (13) The learned counsel appearing for the petitioner submitted that the manner in which the impugned order was passed and the proceedings were conducted against the petitioner, demonstrates that drastic order under Sections 55A and 55B of the said Act was passed, removing democratically elected petitioner from the post of Vice President of the Nagar Panchayat, without proper enquiry into the matter and without adhering to the principles of natural justice. It was submitted that the backdrop of the complaint submitted by respondent No.5 was not taken into consideration by the respondent No.2 while passing the impugned order.
(14) Reliance was placed on judgment of the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir vs. Chief Minister and others reported in (2012) 4 SCC 438, to contend that a democratically elected person like the petitioner could not have been thrown out of elected office in a casual manner.
(15) The learned AGP appeared on behalf of respondents No.1 to 3, and opposed the contentions raised on behalf of the petitioner. The impugned order was ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 8 / 17 wp6927.16.odt defended by the learned AGP by stating that the petitioner had acted in a manner that could be said to be disgraceful conduct on his part.
(16) Shri. Abdul Subhan h/f. Shri. F. T. Mirza, learned counsel for the respondent No.5, also supported the contentions raised on behalf of respondents No.1 to 3. (17) The present case concerns an order passed by respondent No.2, removing the petitioner from the elected position of Vice President, Nagar Panchayat. Not only was the petitioner removed from the said office by exercising power under Section 55A of the said Act, but it was also directed that he stood disqualified to hold the said office for a period of six years. There cannot be any doubt about the fact that the impugned order passed by respondent No.2 had drastic consequences. A perusal of Section 55A of the said Act would show that there is power vested in the State Government for removing an elected President or Vice President Nagar Panchayat, in case it is found that such a person holding the office has indulged in misconduct in discharge of his duties or that his conduct could be said to be of disgraceful nature, apart from being negligent or the ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 9 / 17 wp6927.16.odt person being rendered incapable of performing duties. The proviso to Section 55A of the said Act mandates that the President or Vice President of the Nagar Panchayat would not be removed unless a reasonable opportunity is granted for furnishing explanation.
(18) In the case of Ravi Yashwant Bhoir vs. Chief Minister and others (supra), the Hon'ble Supreme Court had an occasion to consider the purport of expressions "misconduct" and "disgraceful conduct". This was in the context of the very same provision under which the respondent No.2 in the present case passed the impugned order removing the petitioner from the post of Vice President of the Nagar Panchayat. In the said judgment, the Hon'ble Supreme Court also struck a note of caution for the authorities considering the question of removal of persons from elected offices. It was held in the said judgment as follows :-
"34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
10 / 17 wp6927.16.odt requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.
35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal, Mohan Lal Tripathi v. District Magistrate, Rae Bareily and Ram Beti v. District Panchayat Raj Adhikari).
36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office- bearer but his constituency/electoral college is also deprived of representation by the person of their choice.
37. A duly elected person is entitled to hold office for the term for which he has been elected ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 11 / 17 wp6927.16.odt and he can be removed only on a proved misconduct or any other procedure established under law like "no confidence motion", etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period."
(19) Thus, it becomes clear that the State is supposed to exercise powers under Section 55A of the said Act, cautiously and in a conscientious manner, so as to ensure that a democratically elected person is not casually removed from office.
(20) In the present case, a perusal of the impugned order passed by respondent No.2 shows that the said respondent has wholly relied upon report given by respondent No.3-Collector. It is recorded that since the respondent No.3 came to the conclusion that the petitioner had admitted to having obstructed the respondent No.5 i.e. the then Chief Officer from entering his office, there was sufficient ground for exercising power under Section 55A of the said Act. The impugned order does not show detailed discussion of the entire material on record. ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
12 / 17 wp6927.16.odt (21) A perusal of the report of the respondent No.3 also shows that it is recorded by the said respondent that the petitioner had admitted to having obstructed the respondent No.5 from entering his office on 14/06/2016, and that the petitioner stood by the explanation given in his reply to the show-cause notice. A perusal of the report of the respondent No.3 shows that the said respondent appeared to have gathered an impression that the petitioner had admitted to wrong doing, but a perusal of the reply given by the petitioner to the show-cause notice demonstrates that the petitioner elaborated about the backdrop in which the incident dated 14/06/2016 had taken place. According to the petitioner, respondent No.5 used to report late to office and this was causing difficulty in the administrative work of the Nagar Panchayat. It was stated in the reply that on the date of the incident the respondent No.5 came to the office at 12:00 noon and due to this, the petitioner had requested the respondent No.5 not to come late to the office in view of the burden of pending work with the Nagar Panchayat.
(22) It was specifically denied that any abusive ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 13 / 17 wp6927.16.odt language or obstructive approach was adopted by the petitioner at the time of the incident. The petitioner also reminded respondent No.3 about representation dated 07/05/2016, submitted by the petitioner and other members of the Nagar Panchayat, complaining about the improper functioning of respondent No.5. After having denied any wrong doing, the petitioner requested the respondent No.3 to conduct a detailed enquiry, so that justice was done in the matter. A perusal of the said reply given by the petitioner does not give an impression that he admitted to any wrong doing. Yet, the respondent No.3 in his report recorded findings against the petitioner, as if he had admitted to the allegations levelled by respondent No.5.
(23) It is also significant that on 07/05/2016, the petitioner, acting as the President of the Nagar Panchayat along with other members of the Nagar Panchayat, had sent a representation to respondent No.3, with copy marked to the Guardian Minister, complaining about the lack of interest shown by the respondent No.5, while working as Chief Officer of the Nagar Panchayat. It was ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 14 / 17 wp6927.16.odt specifically stated in the said representation/complaint that funds available with the Nagar Panchayat to the tune of about Rs.5 Crores were not being utilized because of the approach adopted by respondent No.5. On 10/05/2016, the Guardian Minister had sent a note to the Principal Secretary, Urban Development Department at Mumbai, referring to the said representation / complaint dated 07/05/2016 and directing that appropriate steps be taken for immediate transfer of respondent No.5 and to inquire into the matter. It is a matter of record that on 17/06/2016, the respondent No.5 was indeed transferred from the said position of Chief Officer of the Nagar Panchayat, Mouda to District Gandchiroli. (24) The aforesaid series of events were extremely significant and yet neither the respondent No.3 while submitting his report, nor respondent No.2 while passing the impugned order, dealt with the same. The material on record indicates that the petitioner, acting as the President of the Nagar Panchayat at the relevant time along with other members, had placed on record their serious objection to the manner of functioning of respondent No.5. ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::
15 / 17 wp6927.16.odt In this situation, when the complaint regarding incident dated 14/06/2016 was submitted by the respondent No.5, it was incumbent on the respondent No.3 to have conducted a detailed enquiry into the matter, with particular reference to complaints/representation submitted by the petitioner and other members of the Nagar Panchayat dated 07/05/2016. The Guardian Minister took cognizance of such grievances of the petitioner and other members of the Gram Panchayat, which ultimately led to transfer of respondent No.5 on 17/06/2016. This had a bearing on the manner in which the complaint submitted by the respondent No.5, regarding alleged obstruction and abusive language used by the petitioner, was to be dealt with. Yet, the impugned order does not discuss this aspect of the matter at all. (25) It is significant that under the provisions of the aforesaid Act, particularly Section 58 of the Act, as it then stood, under Section 58(1)(d), one of the functions of the President of Nagar Panchayat was to exercise supervision and control over the acts and proceedings of the Chief Officer in matters of execution and administration. As a ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 16 / 17 wp6927.16.odt democratically elected Vice President of the Nagar Panchayat, who at the relevant time was functioning as President thereof, the petitioner had raised grievances regarding the manner of functioning of respondent No.5 and in fact, under the aforesaid provision, he was enjoying power to do so to ensure that administrative and executive functioning of the Nagar Panchayat was properly handled. This aspect was not even referred to by respondent No.2, while passing the impugned order. The approach adopted by respondent No.2 in the present case was clearly against the position of law as laid down by the Hon'ble Supreme Court in the case of Ravi Yashwant Bhoir vs. Chief Minister and others (supra), particularly in the paragraphs quoted above. The petitioner as a democratically elected representative of the people was thrown out of office in a very casual manner by respondent No.2 and a further direction was given that he would not be eligible to hold office for six years. Such a drastic order ought not to have been passed by the respondent No.2 in a casual manner. (26) In view of the above, it is found that the impugned order is wholly unsustainable. Accordingly, the ::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 ::: 17 / 17 wp6927.16.odt writ petition is allowed and the impugned order is quashed and set aside. No order as to costs.
(27) Rule made absolute in above terms.
JUDGE
KOLHE/P.A.
::: Uploaded on - 12/02/2020 ::: Downloaded on - 22/03/2020 08:07:17 :::