Ravi Yashwant Bhoir Vs.
District Collector, Raigad & Ors.
[Civil Appeal No.
2085 of 2012]
J U D G M E N T
D r. B. S. CHAUHAN, J
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 him disqualified for
a period of six years from the date of the order i.e. 21.3.2009.
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 as 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 & Tender Amount Address of the Contractor
1. M/s Shailesh 9,11,351.50
2. M/s Padmavati 8,92,375.00
3. M/s Kiran B. 8.47,462.98
Jadhav, Ulhasnagar 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 Tender of the Contractor Amount
1. M/s Shailesh 4,21,165.00
Construction Ulhasnagar M/s Padmavati 4,18,889.28
2. Enterprise, Ambernath
M/s Kiran B. 3,78,507.78
3. 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.
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.
charges which stood proved are regarding the acceptance of fresh tenders at high
rates for incomplete work of laying 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.
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.
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.
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
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:
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: "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).
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).
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.
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.
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).
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
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
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 :
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 :
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.
in the Constitution by adding Parts IX and IX-A 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 Institution 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).
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).
means the basis of a thing on which it stands, and on the failure of which it falls.
In democracy all citizens have equal political 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).
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 18 role of law-makers and custodians of the
Government. People look to them for ventilation and redressal of their
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
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
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.
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 without 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.
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 prescribed 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.
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.
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 & 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).
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 would have
serious repercussions when he is removed from the office and further declared
disqualified to contest the election for a further stipulated period.
RECORD I NG OF
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."
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.
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."
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.
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."
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 proper 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
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 determinative 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".
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. MA LICE
IN LAW :
Court has consistently held that the State is under an obligation to act fairly
without ill will or malice- in fact or in law. Where 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).
55 of the Act 1965 provides for removal of the President of the Council by No
Confidence Motion. Sections 55A and 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 Vice- President shall
be removed from office, unless he has been given a reasonable opportunity to
furnish an explanation.
for continuing as Councillor or becoming Councillor on removal as President or Vice-
President : 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
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
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 31 fifteen
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
instant case requires to be examined in the light of aforesaid settled legal
propositions and the statutory provisions.
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 directing 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 pages 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
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
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.
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.
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 Maharashtra, 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.
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
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
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
The President can
also call the meeting on the request of the members not less than one-fourth of
the total number of councils. 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.
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.
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 the
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
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 No.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. 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.
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 this
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.
(Dr. B.S. CHAUHAN)