8. 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 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.”
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at
page 821 defines ‘misconduct’ thus:
10“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.”
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).
119. 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).
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2085 of 2012
Ravi Yashwant Bhoir V District Collector, Raigad & Ors.
Dr. B. S. CHAUHAN, J.
Citation;AIR2012SC1339, 2012(2)ALLMR962, 2012(2)BomCR859(2012)4SCC407,
1. This appeal has been preferred against the impugned
judgment and order dated 18.6.2009 passed by the High Court of
Bombay in Writ Petition No. 4665 of 2009 by which the High
Court has affirmed and upheld the judgment of the Hon’ble Chief
Minister of Maharashtra declaring that the conduct of the appellant
was unbecoming of the President of Uran Municipal Council and
declared him to be disqualified for remaining tenure of municipal
councilorship under Section 55B of the Maharashtra Municipal
Councils, Nagar Panchayats and Industrial Townships Act, 1965
(hereinafter called as the `Act 1965) and further declared himdisqualified for a period of six years from the date of the order i.e.
21.3.2009.
2. Facts and circumstances giving rise to this appeal are:
A. That the appellant was elected as member of Uran
Municipal Council and, subsequently, elected as a President of the
Municipal Council. The appellant was served with a show cause
notice dated 3.12.2008 by the State of Maharashtra calling upon
him to explain why action under Section 55B of the Act 1965 be
not taken against him. The chargesheet contained the following six
charges:
Charge No.1
Uran Charitable Medical Trust has built up unauthorized
construction on Survey Nos. 8 + 9 + 10 + 11 situated at Mouje
Mhatawali to the extent of 1140 square meters for their hospital
and you are the Trustee of the said Trust. Municipal Council
had issued notice dated 17.10.2006 for demolishing the said
unauthorized construction on its own. Shri Dosu Ardesar
Bhiwandiwala had filed Regular Civil Suit No.95/07 against
the said notice in the court of Civil Judge, Junior Division,
Uran and the same was decided on 19.12.2007 in which
plaintiff's application was rejected.
Junior Engineer of Uran Municipal Council lodged a
complaint with Uran police Station under Sections 53 and 54 of
the Maharashtra Regional and Town Planning Act, 1966
against the said unauthorized construction on 24.7.2007. Shri
Jayant Gosal and three others filed Public Interest Litigation
No. 57 of 2008 concerning the said unauthorized construction
of the said Trust in the Bombay High Court and the same is
presently subjudice. You are the Trustee of the said Trust and
2as President of the Municipal Council, you are duty bound to
oppose the unauthorized construction. However, you did not
take any action to oppose the same and it appears that you have
supported the unauthorized construction. You have, therefore,
violated Sections 44, 45, 52 and 53 of the Maharashtra
Regional and Town Planning Act, 1966.
Charge No.2
The Municipal Council had called the General Body Meeting
on 22.3.2007 by way of Resolution No. 2 Survey Nos. 8 + 9 +
10 + 11 at Mouje Mhatawali area admeasuring about 4000
square meters was proposed for reservation of garden.
However, instead of that, the resolution was passed for
reserving the same for hospital, nursing home and medical
college. At that time, you were presiding over the meeting. By
this illegal Act, you have violated Sections 44( 1 )(e) and 42(1),
(2) and (3) of Maharashtra Municipal Councils, Panchayat
Samiti and Industrial Township Act, 1965.
Charge No.3
After you were elected as the President on 20.12.2006, a
General Body Meeting was held on 9.1.2007. Although it is
required under Section 80(1) of the Maharashtra Municipal
Councils, Panchayat Samiti and Industrial Township Act, 1965
to hold the General Body Meeting once in two months, no such
meeting was held for a period of three months between
28.2.2007 and 28.5.2007. By the said act, you have violated
Section 81 (1) of the Maharashtra Municipal Councils,
Panchayat Samiti and Industrial Township Act, 1965.
Charge No.4
In the meeting held on 9.1.2007, the suggestion to the Agenda
No.4 made by Members Shri Chintaman Gharat and Shri
Shekhar Mhatre that a rented car be provided for the use of the
President was rejected by you. Similarly, the Members Shri
Chintaman Gharat and Shri Shekhar Mhatrehad made
suggestion to the Agenda No.ll of the same meeting that new
Nalla be constructed near Ughadi at Bhavara Phanaswadi. The
said suggestion was rejected after being read over. Similarly,
3Members Shri Chintaman Gharat and Shri Shekhar Mhatre had
made suggestion to the Agenda No.20 in the same meeting that
new Nalla be constructed in front of the house of Shri Kailash
Patail at Bhavara Phanaswadi. The said suggestion was
rejected. Similarly, suggestion was made by Shri Chintaman
Gharat and Shri Shekhar Mhatre to Agenda No.23 that the
Standing Committee be authorized to open the tender/approvals
and give sanctions for diverse works of the Municipal Council.
The said suggestion was rejected. Similarly, suggestion was
made by Shri Chintaman Gharat and Shri Shekhar Mhatre to
Agenda No. 27 of the same meeting regarding allotment of
contract for spraying insecticides in Ward Nos. 1 to 17 of the
Municipal Council. It appears from the minutes of the meeting
dated 9.1.2007 that even said suggestion was rejected. You
have, therefore, violated rules 30, 32(1) and (2) of the
Maharashtra Municipal Councils (Conduct of Business) Rules,
1966 by frequently rejecting the suggestions of the Members of
the Municipal Council.
Charge No.5
Tenders were invited on 5.10.2006 for installing CI Pipeline of
300 mm. diameter for outlet and inlet of GSR Tank at
Sarvodayawadi within Uran Municipal Council by the
construction department of Maharashtra Jeevan Pradhikaran,
Panvel by its Outward No.MJPBV /MC/MS/Uran /311/3/06
dated 7.12.2006 at the Town Hall of the Uran Municipal
Council. Pursuant to the same three tenders were invited,
details whereof are as follows :
Name &
Address of the
Contractor
Tender Amount
1. M/s Shailesh
Construction
Ulhasnagar
9,11,351.50
2. M/s Padmavati
Enterprise,
Ambernath
8,92,375.00
3. M/s Kiran B.
Jadhav,
Ulhasnagar
8.47,462.98
4Out of the aforesaid three tenders, the lowest tender of M/s
Kiran B. Jadhav, Ulhasnagar was accepted as per Clause 171 of
the Maharashtra Accounts Code, 1971. However, the estimate
was prepared as per the DSR of 2005-2006. As a result when
the tenders were invited, there was a difference of more than
10% in the tender amount. Therefore, by citing Item No.44 of
the Standing Order No.36 of the Commissioner and Director,
Directorate of Municipal Administration, the Municipal
Council called for the current market rates from the concerned
commercial dealers. M/ s Nazmi Electrical & Hardware
Limited, Kalyan and M/s Sanjay Steel Tube Corporation
Limited on 5.1.2007 to compare the difference in the rates of
the tenderers/ contractors and the market rates and decided that
the rates of the tenderers were less than the market rates on the
basis of the comparison and sanctioned the tenders and the bills
of the tenderers were paid thereby you have violated
paragraphs Nos. 44 to 47 of Standing Order No.36 regarding
inviting tenders and approvals dated 29.12.2005 bearing No.
NPS/Inviting Tenders/2005/Case No.151/05and Rule No.171
of the Maharashtra Accounts Code, 1971.
Charge No.6
Tenders were invited on 5.10.2006 for installing CI Pipeline of
300 mm. diameter for outlet and inlet of GSR Tank at
Sarvodayawadi within Uran Municipal Council by the
construction department of Maharashtra Jeevan Pradhikaran,
Panvel by its Outward No.MJPBV/MC/MS/Uran /311/3/06
dated 7.12.2006 at the Town Hall of the Uran Municipal
Council. Pursuant to the same three tenders were invited,
details whereof are as follows:
Name & Address
of the Contractor
Tender
Amount
1. M/s Shailesh
Construction
Ulhasnagar
4,21,165.00
2.
M/s Padmavati
Enterprise,
Ambernath
4,18,889.28
M/s Kiran B. 3,78,507.78
53. Jadhav,
Ulhasnagar
Out of the aforesaid three tenders, the lowest tender of M/s
Kiran B. Jadhav, Ulhasnagar was accepted as per Clause 171 of
the Maharashtra Accounts Code, 1971. However, the estimate
was prepared as per the DSR of 2005-2006. As a result when
the tenders were invited, there was a difference of more than
10% in the tender amount. Therefore, by citing Item No.44 of
the Standing Order No.36 of the Commissioner and Director,
Directorate of Municipal Administration, the Municipal
Council called for the current market rates from the concerned
commercial dealers. M/s Nazmi Electrical & Hardware
Limited, Kalyan and M/s Sanjay Steel Tube Corporation
Limited on 5.1.2007 to compare the difference in the rates of
the tenderers / contractors and the market rates and decided that
the rates of the tenderers were less than the market rates on the
basis of the comparison and sanctioned the tenders and the bills
of the tenderers were paid thereby you have violated
paragraphs Nos. 44 to 47 of Standing Order No.36 regarding
inviting tenders and approvals dated 29.12.2005 bearing No.
NPS/lnviting Tenders/2005/Case No.151/05 and Rule No.171
of the Maharashtra Accounts Code, 1971.
B. The appellant submitted his explanation dated
18.12.2008 in writing. After considering the same, the appellant
was issued a notice for hearing on 23.1.2009. The appellant
remained present alongwith his advocate before the competent
authority i.e. Hon’ble Chief Minister holding the portfolio of
Department. However, vide impugned order dated 21.3.2009, the
appellant was declared disqualified for his remaining tenure and
6further declaring him disqualified for a period of six years even as
member of the Council.
C. Being aggrieved, the appellant filed the writ petition
challenging the order dated 21.3.2009. The writ petition stood
dismissed vide impugned judgment and order dated 18.6.2009.
Hence, this appeal.
3. Shri Vinay Navare, learned counsel appearing for the
appellant, has submitted that only three charges i.e. charge nos.3, 5
and 6 have been held proved against the appellant. One charge is
that the appellant did not call for a meeting for a period of three
months i.e. from 28.2.2007 to 28.5.2007 as required under Section
81(1) of the Act 1965, for which the appellant had furnished
explanation which was worth acceptance. The officer concerned of
the municipal council did not inform the appellant, nor the
members asked to hold such meeting as required under Section
81(1) of the Act 1965, so it was merely an inadvertent act and could
not be intentional. Therefore, the question of committing any
misconduct could not arise.
4. Other charges which stood proved are regarding the
acceptance of fresh tenders at high rates for incomplete work of
7laying down 300 mm. CI pipeline for water supply. The tender for
lower estimated cost was not accepted rather there was a difference
of more than 10 per cent in tender amount. The explanation was
furnished by the appellant that there was a resolution by the council
itself accepting the said tenders and, therefore, the appellant
exclusively could not be held responsible for acceptance of tenders
on the high rate of CI pipes. Even the rate of C.I. pipe purchased
by Maharashtra Jivan Pradhikaran were also considered and after
considering all these factors, the lowest bid was accepted by the
Uran Municipal Council. The Chief Officer, the Junior Engineer
has also considered the technical aspect, and, then the
recommendation was forwarded under the signature of President,
Chief Officer and Jr. Engineer and thereafter, the Municipal
Council passed resolution and accepted the said tender. Therefore,
it cannot be said that by doing this the appellant has breached any
of the statutory provisions.
5. It is further submitted that at the time of hearing on
21.3.2009, the complainant wanted to rely upon some new grounds,
and, therefore, the appellant raised the objection. The Hon’ble
Chief Minister directed the Secretary to fix up a date of hearing,
however, no date of hearing was fixed and impugned order dated
821.3.2009 had been passed without affording any opportunity of
hearing to the appellant. Therefore, the said order was passed in
utter disregard of the principles of natural justice and cannot be
sustained in the eyes of law.
The Competent/Statutory authority has not recorded reasons
for conclusions arrived, by which, at least the three charges stood
proved against the appellant. The expression ‘misconduct’ has not
been understood in correct perspective. Even if the three charges
stood proved, the punishment imposed is totally disproportionate,
more so, was not warranted in the facts and circumstances of the
case. The High Court erred in not appreciating the facts in correct
perspective, therefore, the impugned judgment and order is liable to
be set aside.
6. Shri Mike Prakash Desai and Shri Sudhansu Choudhary,
learned counsel appearing on behalf of the respondents, have
vehemently opposed the appeal contending that charges proved
against the appellant constituted grave misconduct on his part and
was liable to be removed and has rightly been declared disqualified
for further period of six years. The appellant had been given full
opportunity to defend himself. The period of disqualification has
lapsed, thus this Court is dealing with an academic issue. The
9impugned order does not warrant any interference in the facts and
circumstances of the case. The appeal lacks merit and, accordingly,
is liable to be dismissed.
7. We have considered the rival submissions made by the
learned counsel of the parties and perused the record.
Before considering the case on merits, it is pertinent to deal
with certain legal issues.
MISCONDUCT:
8. 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 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.”
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at
page 821 defines ‘misconduct’ thus:
10“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.”
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).
119. 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).
10. 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.
1211. 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.
12. Conclusions about the absence or lack of personal qualities
in the incumbent do not amount to misconduct holding the person
concerned liable for punishment.
(See: Union of India & Ors. v. J. Ahmed, AIR 1979 SC 1022).
13. 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,
13Appellate Authority, Bank of India & Anr. v. Mohd.
Nizamuddin AIR 2006 SC 3290).
14. 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.
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 :
1415. The expression ‘disgraceful conduct’ is not 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.
REMOVAL OF AN ELECTED OFFICE BEARER :
16. The municipalities have been conferred Constitutional
status by amending the Constitution vide 74th Amendment Act,
1992 w.e.f. 1.6.1993. The municipalities have also been conferred
various powers under Article 243B of the Constitution.
17. Amendment in the Constitution by adding Parts IX and IXA
confers upon the local self Government a complete autonomy on
the basic democratic unit unshackled from official control. Thus,
exercise of any power having effect of destroying the Constitutional
15Institution besides being outrageous is dangerous to the democratic
set-up of this country. Therefore, an elected official cannot be
permitted to be removed unceremoniously without following the
procedure prescribed by law, in violation of the provisions of
Article 21 of the Constitution, by the State by adopting a casual
approach and resorting to manipulations to achieve ulterior purpose.
The Court being the custodian of law cannot tolerate any attempt to
thwart the Institution.
The democratic set-up of the country has always been
recognized as a basic feature of the Constitution, like other features
e.g. Supremacy of the Constitution, Rule of law, Principle of
separation of powers, Power of judicial review under Articles 32,
226 and 227 of the Constitution etc. (Vide: His Holiness
Keshwananda Bharti Sripadagalvaru & Ors. v. State of Kerala
& Anr., AIR 1973 SC 1461; Minerva Mills Ltd. & Ors. v. Union
of India & Ors., AIR 1980 SC 1789; Union of India v.
Association for Democratic Reforms & Anr., AIR 2002 SC 2112;
Special Reference No. 1 of 2002 (Gujarat Assembly Election
Matter), AIR 2003 SC 87; and Kuldip Nayar v. Union of India &
Ors., AIR 2006 SC 3127).
1618. It is not permissible to destroy any of the basic features of
the Constitution even by any form of amendment, and therefore, it is
beyond imagination that it can be eroded by the executive on its
whims without any reason. The Constitution accords full faith and
credit to the act done by the executive in exercise of its statutory
powers, but they have a primary responsibility to serve the nation
and enlighten the citizens to further strengthen a democratic State.
Public administration is responsible for the effective implication of
the rule of law and constitutional commands which effectuate fairly
the objective standard set for adjudicating good administrative
decisions. However, wherever the executive fails, the Courts come
forward to strike down an order passed by them passionately and to
remove arbitrariness and unreasonableness, for the reason, that the
State by its illegal action becomes liable for forfeiting the full faith
and credit trusted with it. (Vide: Scheduled Castes and Scheduled
Tribes officers Welfare Council v. State of U.P. & Ors., AIR
1997 SC 1451; and State of Punjab & Ors. v. G.S. Gill & Anr.,
AIR 1997 SC 2324).
19. Basic means the basis of a thing on which it stands, and on
the failure of which it falls. In democracy all citizens have equal
17political rights. Democracy means actual, active and effective
exercise of power by the people in this regard. It means political
participation of the people in running the administration of the
Government. It conveys the State of affair in which each citizen is
assured of the right of equal participation in the polity. (See: R.C.
Poudyal v. Union of India & Ors., AIR 1993 SC 1804).
20. In Peoples Union for Civil Liberties (PUCL) & Anr. v.
Union of India & Anr., AIR 2003 SC 2363, this Court held as
under:–
“The trite saying that “democracy is for the
people, of the people and by the people” has to be
remembered for ever. In a democratic republic, it is
the will of the people that is paramount and
becomes the basis of the authority of the
Government. The will is expressed in periodic
elections based on universal adult suffrage held by
means of secret ballot. It is through the ballot that
the voter expresses his choice or preference for a
candidate “Voting is formal expression of will or
opinion by the person entitled to exercise the right
on the subject or issue”, as observed by the Court
in Lily Thomas v. Speaker, Lok Sabha, (1993) 4
SCC 234 quoting from Black’s Law Dictionary. The
citizens of the country are enabled to take part in
the Government through their chosen
representatives. In a parliamentary democracy like
ours, the Government of the day is responsible to
the people through their elected representatives.
The elected representative acts or is supposed to
act as a live link between the people and the
Government. The people’s representatives fill the
18role of law-makers and custodians of the
Government. People look to them for ventilation
and redressal of their grievances.”
21. In State of Punjab v. Baldev Singh etc. etc., AIR 1999 SC
2378, this Court considered the issue of removal of an elected office
bearer and held that where the statutory provision has a very
serious repercussions, it implicitly makes it imperative and
obligatory on the part of the authority to have strict adherence to the
statutory provisions. All the safeguards and protections provided
under the statute have to be kept in mind while exercising such a
power. The Court considering its earlier judgments in Mohinder
Kumar v. State, Panaji, Goa (1998) 8 SCC 655; and Ali Mustafa
Abdul Rehman Moosa v. State of Kerala, AIR 1995 SC 244, held
as under:–
“It must be borne in mind that severer the
punishment, greater has to be the care taken to see
that all the safeguards provided in a statute are
scrupulously followed.”
22. The Constitution Bench of this Court in G. Sadanandan v.
State of Kerala & Anr., AIR 1966 SC 1925, held that if all the
safeguards provided under the Statute are not observed, an order
having serious consequences is passed without proper application of
19mind, having a casual approach to the matter, the same can be
characterised as having been passed mala fide, and thus, is liable to
be quashed.
23. There can also be no quarrel with the settled legal
proposition that removal of a duly elected Member on the basis of
proved misconduct is a quasi-judicial proceeding in nature. (Vide:
Indian National Congress (I) v. Institute of Social Welfare &
Ors., AIR 2002 SC 2158). This view stands further fortified by the
Constitution Bench judgments of this Court in Bachhitar Singh v.
State of Punjab & Anr., AIR 1963 SC 395 and Union of India v.
H.C. Goel, AIR 1964 SC 364. Therefore, the principles of natural
justice are required to be given full play and strict compliance should
be ensured, even in the absence of any provision providing for the
same. Principles of natural justice require a fair opportunity of
defence to such an elected office bearer.
24. Undoubtedly, any elected official in local self-government
has to be put on a higher pedestal as against a government servant.
If a temporary government employee cannot be removed on the
ground of misconduct without holding a full fledged inquiry, it is
difficult to imagine how an elected office bearer can be removed
20without holding a full fledged inquiry. In service jurisprudence,
minor punishment is permissible to be imposed while holding the
inquiry as per the procedure prescribed for it but for removal,
termination or reduction in rank, a full fledged inquiry is required
otherwise it will be violative of the provisions of Article 311 of the
Constitution of India. The case is to be understood in an entirely
different context as compared to the government employees, for the
reason, that for the removal of the elected officials, a more stringent
procedure and standard of proof is required.
25. This Court examined the provisions of the Punjab
Municipal Act, 1911, providing for the procedure of removal of the
President of the Municipal Council on similar grounds in
Tarlochan Dev Sharma v. State of Punjab & Ors., AIR 2001 SC
2524 and observed that removal of an elected office bearer is a
serious matter. The elected office bearer must not be removed
unless a clear-cut case is made out, for the reason that holding and
enjoying an office, discharging related duties is a valuable statutory
right of not only the elected member but also of his constituency or
electoral college. His removal may curtail the term of the office
bearer and also cast stigma upon him. Therefore, the procedure
21prescribed under a statute for removal must be strictly adhered to
and unless a clear case is made out, there can be no justification for
his removal. While taking the decision, the authority should not be
guided by any other extraneous consideration or should not come
under any political pressure.
26. 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 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.
27. 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
22post, but he cannot be removed without strictly adhering to the
provisions provided by the legislature for his removal (Vide: Jyoti
Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983; Mohan
Lal Tripathi v. District Magistrate, Rai Barelly & Ors., AIR
1993 SC 2042; and Ram Beti etc. etc. v. District Panchayat
Rajadhikari & Ors., AIR 1998 SC 1222).
28. 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 his choice. A
duly elected person is entitled to hold office for the term for which
he has been elected 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
23would have serious repercussions when he is removed from the
office and further declared disqualified to contest the election for a
further stipulated period.
RECORD ING OF REASONS:
29. It is a settled proposition of law that even in administrative
matters, the reasons should be recorded as it is incumbent upon the
authorities to pass a speaking and reasoned order. In Kumari
Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991
SC 537, this Court has observed as under:–
“Every such action may be informed by reason and
if follows that an act un-informed by reason is
arbitrary, the rule of law contemplates governance
by law and not by humour, whim or caprice of the
men to whom the governance is entrusted for the
time being. It is the trite law that “be you ever so
high, the laws are above you.” This is what a man
in power must remember always.”
30. In L.I.C. of India & Anr. v. Consumer Education and
Research Centre & Ors., AIR 1995 SC 1811, this Court observed
that the State or its instrumentality must not take any irrelevant or
irrational factor into consideration or appear arbitrary in its
decision. “Duty to act fairly” is part of fair procedure envisaged
under Articles 14 and 21. Every activity of the public authority or
24those under public duty must be received and guided by the public
interest. A similar view has been reiterated by this Court in Union
of India v. M.L. Capoor & Ors., AIR 1974 SC 87; and Mahesh
Chandra v. Regional Manager, U.P. Financial Corporation &
Ors., AIR 1993 SC 935.
31. In State of West Bengal v. Atul Krishna Shaw & Anr.,
AIR 1990 SC 2205, this Court observed that “giving of reasons is
an essential element of administration of justice. A right to reason
is, therefore, an indispensable part of sound system of judicial
review.”
32. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984,
it has been held that the object underlying the rules of natural justice
is to prevent miscarriage of justice and secure fair play in action.
The expanding horizon of the principles of natural justice provides
for requirement to record reasons as it is now regarded as one of the
principles of natural justice, and it was held in the above case that
except in cases where the requirement to record reasons is expressly
or by necessary implication dispensed with, the authority must
record reasons for its decision.
2533. In Krishna Swami v. Union of India & Ors., AIR 1993
SC 1407, this Court observed that the rule of law requires that any
action or decision of a statutory or public authority must be founded
on the reason stated in the order or borne-out from the record. The
Court further observed:
“Reasons are the links between the material, the
foundation for their erection and the actual
conclusions. They would also demonstrate how
the mind of the maker was activated and actuated
and their rational nexus and synthesis with the
facts considered and the conclusions reached.
Lest it would be arbitrary, unfair and unjust,
violating Article 14 or unfair procedure offending
Article 21.”
34. This Court while deciding the issue in Sant Lal Gupta &
Ors. v. Modern Co-operative Group Housing Society Ltd. &
Ors., (2010) 13 SCC 336, placing reliance on its various earlier
judgments held as under:
“28. It is a settled legal proposition that not only
administrative but also judicial order must be
supported by reasons, recorded in it. Thus, while
deciding an issue, the Court is bound to give reasons
for its conclusion. It is the duty and obligation on the
part of the Court to record reasons while disposing
of the case. The hallmark of order and exercise of
judicial power by a judicial forum is for the forum to
disclose its reasons by itself and giving of reasons
has always been insisted upon as one of the
fundamentals of sound administration of the justice –
delivery system, to make it known that there had been
26proper and due application of mind to the issue
before the Court and also as an essential requisite of
the principles of natural justice. “The giving of
reasons for a decision is an essential attribute of
judicial and judicious disposal of a matter before
Courts, and which is the only indication to know
about the manner and quality of exercise undertaken,
as also the fact that the Court concerned had really
applied its mind.” The reason is the heartbeat of
every conclusion. It introduces clarity in an order
and without the same, the order becomes lifeless.
Reasons substitute subjectivity with objectivity. The
absence of reasons renders an order
indefensible/unsustainable particularly when the
order is subject to further challenge before a higher
forum. Recording of reasons is principle of natural
justice and every judicial order must be supported by
reasons recorded in writing. It ensures transparency
and fairness in decision making. The person who is
adversely affected must know why his application has
been rejected.”
35. In Institute of Chartered Accountants of India v. L.K.
Ratna & Ors., AIR 1987 SC 71, this Court held that on charge of
misconduct the authority holding the inquiry must record reasons
for reaching its conclusion and record clear findings. The Court
further held:
“In fairness and justice, the member is entitled to
know why he has been found guilty. The case can be
so serious that it can attract the harsh penalties
provided by the Act. Moreover, the member has
been given a right of appeal to the High Court
under S. 22 A of the Act. The exercise his right of
appeal effectively he must know the basis on which
the Council has found him guilty. We have already
pointed out that a finding by the Council is the first
27determinative finding on the guilt of the member. It
is a finding by a Tribunal of first instance. The
conclusion of the Disciplinary Committee does not
enjoy the status of a "finding". Moreover, the
reasons contained in the report by the Disciplinary
Committee for its conclusion may or may not
constitute the basis of the finding rendered by the
Council. The Council must, therefore, state the
reasons for its finding”.
36. The emphasis on recording reason is that if the decision
reveals the ‘inscrutable face of the sphinx’, it can be its silence,
render it virtually impossible for the courts to perform their
appellate function or exercise the power of judicial review in
adjudging the validity of the decision. Right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind of the authority before
the court. Another rationale is that the affected party can know why
the decision has gone against him. One of the salutary requirements
of natural justice is spelling out reasons for the order made. In other
words, a speaking out, the inscrutable face of the sphinx is
ordinarily incongruous with a judicial or quasi-judicial performance.
MALICE IN LAW :
37. This Court has consistently held that the State is under an
obligation to act fairly without ill will or malice- in fact or in law.
28Where malice is attributed to the State, it can never be a case of
personal ill-will or spite on the part of the State. “Legal malice” or
“malice in law” means something done without lawful excuse. It is a
deliberate act in disregard to the rights of others. It is an act which is
taken with an oblique or indirect object. It is an act done wrongfully
and wilfully without reasonable or probable cause, and not
necessarily an act done from ill feeling and spite. Mala fide
exercise of power does not imply any moral turpitude. It means
exercise of statutory power for “purposes foreign to those for which
it is in law intended.” It means conscious violation of the law to the
prejudice of another, a depraved inclination on the part of the
authority to disregard the rights of others, where intent is manifested
by its injurious acts. Passing an order for unauthorized purpose
constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur
v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr.
Govt. of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005)
8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath
Narichania & Ors., AIR 2010 SC 3745).
38. Section 55 of the Act 1965 provides for removal of the
President of the Council by No Confidence Motion. Sections 55A
29and 55B provide a mode of removal of duly elected President on
proved misconduct or negligence etc., which read as under:
Section 55A.- Removal of President and Vice-President by
Government:-
Without prejudice to the provisions of Section 55-1A and
55, a President or a Vice-President may be removed from
office by the State Government for misconduct in the
discharge of his duties, or for neglect of or incapacity to
perform, his duties or for being guilty of any disgraceful
conduct, and the President or Vice-President so removed
shall not be eligible for re-election or re-appointment as
President or Vice-President as the case may be, during the
remainder of the term of office of the Councillors:
Provided that, no such President or VicePresident
shall be removed from office, unless he has been
given a reasonable opportunity to furnish an explanation.
55B.- Disqualification for continuing as Councillor or
becoming Councillor on removal as President or VicePresident
:
Notwithstanding anything contained in Section
55A, if a Councillor or a person is found to be guilty of
misconduct in the discharge of his official duties or being
guilty of any disgraceful conduct while holding or while he
was holding the office of the President or Vice-President, as
the case may be, the State Government may,-
(a) disqualify such Councillor to continue as a
Councillor for the remainder of his term of office as a
Councillor and also for being elected as a
Councillor, till the period of six years has elapsed
from the order of such disqualification;
(b) Disqualify such person for being elected as a
Councillor till the period of six years has elapsed
from the order of such disqualification.
3039. It is also pertinent to refer to the provisions of Section 81 of
the Act 1965 which reads as under:
“Section 81- Provisions in regard to meetings of Council:
The following provisions shall be observed with respect
to the meetings of a Council:
(1) For the disposal of general business, which shall
be restricted to matters relating to the powers,
duties and functions of the Council as specified
in this Act or any other law for the time being
in force, and any welcome address to a
distinguished visitor, proposal for giving
Manpatra to a distinguished person or
resolution of condolence (where all or any of
these are duly proposed), an ordinary meeting
shall be held once in two months. The first
such meeting, shall be held within two months,
from the date on which the meeting of the
Council under Section 51 is held, and each
succeeding ordinary meeting shall be held
within two months from the date on which the
last preceding ordinary meeting is held. The
President may also call additional ordinary
meetings as he deems necessary. It shall be the
duty of the President to fix the dates for all
ordinary meetings and, to call such meetings in
time.
(1A) If the President fails to call an ordinary meeting
within the period specified in clause (1), the Chief Officer
shall forthwith report such failure to the Collector. The
Collector shall, within seven days from receipt of the Chief
Officer’s report or may, suo motu, call the ordinary
meeting. The agenda for such meeting shall be drawn up by
the Collector, in consultation with the Chief Officer:
(2) The President may, whenever he thinks fit, and
shall upon the written request of not less than one-fourth of
the total number of Councillors and on a date not later than
31fifteen days after the receipt of such request by the
President, call a special meeting. The business to be
transacted at any such meeting shall also be restricted to
matters specified in clause (1).
(3) If the President fails to call a meeting within the
period specified in clause (2), the Councillors who had
made a request for the special meeting being called, may
request the Collector to call a special meeting. On receipt
of such request, the Collector, or any officer whom he may
designate in this behalf, shall call the special meeting on a
date within fifteen days from the date of receipt of such
request by the Collector. Such meeting shall be presided
over by the Collector or the Officer designated, but he shall
have no right to vote.”
40. The instant case requires to be examined in the light of
aforesaid settled legal propositions and the statutory provisions.
41. The case has initially originated because of the complaint
filed by Shri Chintaman Raghunath Gharat, Ex-President and the
then sitting Municipal Councillor, Uran Municipal Council
(Respondent No.5) dated 3.5.2007 regarding the misconduct of the
appellant. The preliminary inquiry was conducted through
Collector, Raigad. The Collector, Raigad made an inquiry through
Deputy Collector and submitted the inquiry report dated 25.8.2008
and as no action was taken by the Statutory Authority against the
appellant, Shri Gharat filed a Writ Petition No. 2309 of 2008 before
the High Court which was disposed of vide order dated 3.4.2008
32directing the respondent no. 2 (Hon’ble Minister of State, Urban
Development, the then Hon’ble Chief Minister) to take a decision
on the application/complaint submitted by Shri Gharat within a
period of 8 weeks. As the decision could not be taken within that
stipulated time, Shri Gharat filed Contempt Petition No. 379 of
2008 which was disposed of by the High Court directing the
statutory authority to take up the decision expeditiously.
It was, in fact, in view of the High Court’s order, the
chargesheet/showcause notice dated 3.12.2008 containing 6
charges was served upon the appellant. In response to the said
chargesheet dated 3.12.2008, the appellant furnished explanation
dated 18.12.2008 denying all the charges framed against him and
furnished a detailed explanation. In this respect, hearing was held
on 23.1.2009 wherein the appellant as well as the complainant
appeared alongwith their advocates and made their submissions
before the Hon’ble Minister. The impugned order was passed on
21.3.2009 holding the appellant guilty of three charges imposing the
punishment as referred to hereinabove.
The impugned order dated 21.3.2009 runs from pages 28 to
52 of the appeal paper-book. The facts and the charges run from
pages 28 to 36. Explanation furnished by the appellant runs from
33pages 36 to 47. The order of the Hon’ble Minister runs only to 5
pages. It is evident from the said order that the Hon’ble Minister
did not make any reference to the pleadings taken by the appellant
either in his reply to show cause or during the course of hearing.
The order simply reveals that the Hon’ble Minister noticed certain
things. Two paragraphs at page 48 are not relevant at all for our
consideration. The admission of the appellant that meeting was not
held for a period of 3 months between 28.2.2007 to 28.5.2007 has
been relied upon. In other paragraphs reference has been made to
Standing Order 36 issued by the Director and Commissioner,
Directorate of Municipal Administration, providing for the
procedure for inviting tenders and then straightaway without giving
any reason, finding is recorded as under:
“Out of the 3 tenders received for installation of 300
mm diameter pipeline for outlet and inlet of GSR
tank at Sarvodayawadi and Town Hall of Uran
Municipal Council, lowest tender is accepted as per
clause 171 of the Maharashtra Municipal Council
Accounts Code, 1971. However, the tenders were
invited as per the DSR rates for the year 2005-2006.
The lowest tender received at that time and was
more than 10% of the rates of the estimate
(approximately 31% and 37%). Despite this, the
said tender was accepted.”
Then, a very cryptic order of punishment has been passed.
3442. The explanation furnished by the appellant for not holding
the meeting and acceptance of tender by the council itself and not
by the appellant, has not been considered at all. No reasoning has
been given by the Statutory Authority for reaching the conclusions.
We fail to understand as on what basis such a cryptic order
imposing such a severe punishment can be sustained in the eyes of
law.
43. The High Court has also erred in not dealing with any of the
issues raised by the appellant while furnishing his explanation rather
relied upon the findings recorded by the Hon’ble Minister. There is
nothing in the judgment of the High Court wherein the grievance of
the appellant has been considered or any reasoning has been given
to uphold the findings recorded by the Statutory Authority imposing
such a severe punishment.
44. Shri Chintaman Raghunath Gharat, Ex-President was the
complainant, thus, at the most, he could lead the evidence as a
witness. He could not claim the status of an adversial litigant. The
complainant cannot be the party to the lis. A legal right is an
averment of entitlement arising out of law. In fact, it is a benefit
conferred upon a person by the rule of law. Thus, a person who
35suffers from legal injury can only challenge the act or omission.
There may be some harm or loss that may not be wrongful in the
eyes of law because it may not result in injury to a legal right or
legally protected interest of the complainant but juridically harm of
this description is called damnum sine injuria. The complainant has
to establish that he has been deprived of or denied of a legal right
and he has sustained injury to any legally protected interest. In case
he has no legal peg for a justiciable claim to hang on, he cannot be
heard as a party in a lis. A fanciful or sentimental grievance may
not be sufficient to confer a locus standi to sue upon the individual.
There must be injuria or a legal grievance which can be appreciated
and not a stat pro ratione valuntas reasons i.e. a claim devoid of
reasons. Under the garb of being necessary party, a person cannot be
permitted to make a case as that of general public interest. A person
having a remote interest cannot be permitted to become a party in
the lis, as the person wants to become a party in a case, has to
establish that he has a proprietary right which has been or is
threatened to be violated, for the reason that a legal injury creates a
remedial right in the injured person. A person cannot be heard as a
party unless he answers the description of aggrieved party. (Vide:
Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of
36Maharashtra, AIR 1971 SC 385; Jasbhai Motibhai Desai v.
Roshan Kumar, Haji Bashir Ahmed & Ors., AIR 1976 SC 578;
Maharaj Singh v. State of Uttar Pradesh & Ors., AIR 1976 SC
2602; Ghulam Qadir v. Special Tribunal & Ors., (2002) 1 SCC
33; and Kabushiki Kaisha Toshiba v. Tosiba Appliances
Company & Ors., (2008) 10 SCC 766). The High Court failed to
appreciate that it was a case of political rivalry. The case of the
appellant has not been considered in correct perspective at all.
45. In such a fact-situation, the complaint filed by the
respondent No. 5 could at the most be pressed into service as a
material exhibit in order to collect the evidence to find out the truth.
In the instant case, as all the charges proved against the
appellant have been dealt with exclusively on the basis of
documentary evidence, there is nothing on record by which the
complainant could show that the General Body meeting was not
called, as statutorily required, by the appellant intentionally.
46. Not calling the meeting of the General Body of the House
may be merely a technical misconduct committed inadvertently in
ignorance of statutory requirements. It is nobody’s case that the
appellant had done it intentionally/purposely in order to avoid some
37unpleasant resolution/demand of the council. No finding of fact has
been recorded either by the competent authority or by the High
Court that some urgent/important work could not be carried out for
want of General Body meeting of the council. Merely not to
conduct oneself according to the procedure prescribed or omission
to conduct a meeting without any corresponding loss to the
corporate body, would not be an automatic misconduct by inference,
unless some positive intentional misconduct is shown. It was an
admitted fact that the meeting had not been called. However, in the
absence of any imputation of motive, not calling the meeting by the
appellant could not in itself, be enough to prove the charge.
Section 81 of the Act 1965 requires that for the disposal of
the general business, the President should call the meeting of the
Council within a period of two months from the date on which the
last preceding ordinary meeting was held. The statutory provisions
further provided that in case the President fails to call the ordinary
meeting within the said stipulated period, the Chief Officer may
report such failure to the Collector and the Collector can call the
ordinary meeting of the Council following the procedure prescribed
therein. The President can also call the meeting on the request of
the members not less than one-fourth of the total number of
38councils. Therefore, the cogent reading of all the provisions makes
it clear that in case the President fails to call the meeting, there are
other modes of calling the meeting and in such an eventuality where
reasonable explanation has been furnished by the appellant to the
show cause notice on this count, the competent authority could not
have passed such a harsh order.
47. So far as the other charges regarding laying down the
pipelines at a much higher rate are concerned, it has been a positive
case of the appellant that as earlier contractor had abandoned the
work in between and there was a scarcity of water in the city, the
Chief Officer, the Junior Engineer considered the technical aspect
and then recommendations were forwarded under the signatures of
the appellant, the Chief Officer and Junior Engineer to the council,
which ultimately passed the resolution accepting the said tenders. In
such a fact-situation, it was a collective consensus decision of the
house after due deliberations. Admittedly, it was not even the
ratification of contract awarded by the appellant himself. Thus, even
by any stretch of imagination it cannot be held to be an individual
decision of the appellant and the competent authority failed to
appreciate that the tenders were accepted by the Council itself and
39not by the appellant alone. Therefore, he could not be held
responsible for acceptance of tenders.
We have gone through the counter affidavit filed by
respondent No.5, complainant before this court and he has not stated
anywhere that the tenders were not accepted by the council, rather
allegations have been made that the tenders had been accepted at a
higher rate so that the contractor could get the financial gain.
Similarly, technical issue has been raised for not calling the
meeting, committing serious irregularities sufficiently warranting
dis-qualification of the appellant on his omission to call the
meeting, but it is not his case that he did it intentionally. The
counter affidavit filed by the State does not reveal anything in
relation to the issues involved herein and it appears that the
deponent/officer has merely completed the formalities without any
purpose.
48. To conclude, we are of the considered opinion and that too
after appreciation of the entire evidence on record that the first
charge proved against the appellant for not calling the meeting of
Council, did not warrant the order of removal and the explanation
furnished by appellant could have been accepted. Other charges
could not be proved against the appellant, in view of the fact, that
40the tenders at a higher rate were accepted by the Council itself and
the appellant could not be held exclusively responsible for it. The
Respondent no. 5, being a political rival, could not have been
entertained as a party to the lis. The charge of not calling the
meeting of the Council had been admitted by the appellant himself,
thus, no further evidence was required, for the reason, that the
admission is the best evidence. The competent authority could have
considered his explanation alone and proceeded to take a final
decision. So far as the other charges are concerned, as has been
observed hereinabove, it had been a consensus collective decision
of the Council to accept the tender at higher rate and the appellant
could not have been held guilty of the said charges. Thus, the
instant case has been a crystal clear cut case of legal malice and
therefore, the impugned orders are liable to be quashed. The duly
elected member/chairman of the council could not have been
removed in such a casual and cavalier manner without giving strict
adherence to the safeguards provided under the statute which had to
be scrupulously followed.
49. The appellant has raised a question of fact before the High
Court as well as before this Court submitting that at the time
of hearing before the Hon’ble Chief Minister, respondent
41No.5 has raised new grounds and the appellant raised
serious objections as he had no opportunity to meet the
same. Thus, in order to give the appellant an opportunity to
rebut the same the competent authority had adjourned the
case and directed the Secretary to fix a date so that the
appellant may meet those new objections/grounds.
However, the order impugned removing the appellant from
the post and declaring him further disqualified for a period
of six years had been passed. It is not evident from the
order impugned as what could be those new grounds which
had not been disclosed to the appellant. Thus, to ascertain as
to whether in order to give an opportunity to the appellant to
meet the alleged new grounds, the competent authority had
adjourned the case, this Court while reserving the judgment
vide order dated 13.2.2012 asked the learned Standing
Counsel for the State Shri Mike Prakash Desai to produce
the original record before this Court within a period of two
weeks. For the reasons best known to the State Authorities
neither the record has been produced before us, nor any
application has been filed to extend the time to produce the
same.
42 In fact, this Court has been deprived of seeing the original
record and to examine the grievance of the appellant. We express
our grave concern and shock the way the State Authorities has
treated the highest court of the land. In such a fact-situation, the
court has no option except to draw the adverse inference against the
State.
50. In view of the above, the appeal succeeds and is allowed.
The judgment and order of the High Court dated 18.6.2009 as well
as the order passed by the Hon’ble Chief Minister dated 21.3.2009
are hereby set aside.
This Court while entertaining the petition had granted
interim protection to the appellant vide order dated 17.7.2009,
which was extended till further orders vide order dated 13.8.2009
and, thus, the orders impugned remained inoperative. Thus, it will
be deemed as no order had ever been passed against the appellant.
In the facts and circumstances of the case, there will be no
order as to costs.
A copy of the order be sent directly to the Chief Secretary,
State of Maharashtra, Bombay, who may conduct an enquiry and
send his personal affidavit as under what circumstances the State
Authorities could decide not to ensure compliance of the order of
43this Court dated 13.2.2012, within a period of four week from the
date of receipt of this order, to the Registrar General of this Court
who may place it alongwith the file before the Bench.
....…………….....................J.
( Dr. B.S. CHAUHAN )
.…………............................J.
( J.S. KHEHAR )
New Delhi,
March 2, 2012
44
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