Bombay High Court
Ganesh S/O Shamrao Borkar vs State Of Maharashtra Thr. Its ... on 3 March, 2016
Bench: V.A. Naik
1/6 0303WP6831.15-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6831 OF 2015
PETITIONER :- Ganesh S/o Shamrao Borkar, Aged about 45
years, Shastri Nagar, Govt. Dairy Road, Akola
44405, District Akola.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through it's Secretary
Department of Women & Child
ig Development, Mantralaya, Mumbai-32.
2. Deputy Department of Women & Child
Development, Mantralaya, Mumbai-32.
3. Commissioner of Department of Women &
Child Development, Maharashtra State, 28,
Rani's Baug, Near Old Circuit House, Pune-
1.
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Mr. R. J. Mirza, counsel for the petitioner.
Mr. P. S. Tembhare, counsel for the respondents.
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CORAM : SMT. VASANTI A. NAIK &
A.S.CHANDURKAR, JJ.
DATED : 03.03.2016
O R A L J U D G M E N T (Per A.S.Chandurkar, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally with the consent of the learned counsel for the parties.
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2. The challenge in the present writ petition is to the
Notification dated 13/10/2015 issued by the State Government thereby
holding the petitioner guilty of misuse of powers vested in him as
Chairperson of the District Advisory Board under the Juvenile Justice
(Care and Protection of Children) Act, 2000 (for short, the said Act) and
thereby terminating the appointment of the petitioner as Chairperson.
3. It is the case of the petitioner that he is the Secretary of a
Non-Government Organization and thereby qualified for being
appointed as a Chairperson of the District Advisory Board under the
said Act. On 09/07/2013 the petitioner was so appointed as the
Chairperson of the District Advisory Board, Akola for a period of three
years. It is his further case that on the basis of some complaints against
him that were made to the State Government and the respondent No.3,
without holding any proper enquiry and without any notice to the
petitioner, he came to be removed by the Notification dated
13/10/2015. Hence, the petitioner has challenged the aforesaid
notification in the present writ petition.
4. Shri R.J.Mirza, the learned counsel for the petitioner,
while challenging the impugned Notification dated 13/10/2015, made
twofold submissions. It was firstly submitted that the removal of the
petitioner from the post of Chairperson was without following the due
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procedure. According to him, the provisions of Rule 92 (2) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007 (for
short, the said Rules) prescribes the holding of an enquiry by the
Selection Committee before the action of recommending the
termination of appointment of a Member is to be taken. He submitted
that under Rule 91 of the said Rules, the appointment of a Member of
the Advisory Board is made by a Selection Committee as contemplated
therein and it is only for such Selection Committee to hold necessary
enquiry and recommend the termination of appointment of a Member.
He submitted that the procedure as prescribed by Rule 92 (2) of the
said Rules was not followed while terminating the appointment of the
petitioner by issuing the impugned Notification. It is, therefore,
submitted that on this count the removal of the petitioner is bad in law.
It was then submitted that the removal of the petitioner
was against the principles of natural justice, as no due opportunity was
given to him before the decision was taken to remove him from the post
of Chairperson. He submitted that an enquiry was held by the
respondent No.3-Commissioner of Women and Child Development, who
however did not give due notice to the petitioner and by relying upon
certain material that was never supplied or which was not brought to
his notice, the respondent No.1 acted on the said report and removed
the petitioner. He submitted that if a proper opportunity would have
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been given to the petitioner, he would have been in a position to defend
the action of proposed removal. He, therefore, submitted that the
impugned order is liable to be set aside on this count also.
5. Shri P. S. Tembhare, the learned Assistant Government
Pleader for the respondents, supported the impugned Notification dated
13/10/2015. He submitted that the petitioner was not appointed by a
Selection Committee that was constituted under Rule 91 of the said
Rules. He submitted that in terms of the provisions of Rule 11 of the
Maharashtra Juvenile Justice (Care and Protection of Children) Rules,
2002 (for short, the Rules of 2002), the Advisory Board was constituted
by the State Government. He, therefore, submitted that it was not open
for the petitioner to urge that his removal should be in the manner as
prescribed by Rule 92 (2) of the said Rules as the petitioner was never
appointed by the Selection Committee under Rule 91 of the said Rules.
He then submitted that presently the Advisory Board under Rule 11 of
the Rules of 2002 that had appointed the petitioner was not in existence
and in its place another temporary Advisory Board had been constituted
as per communication dated 02/09/2013. He, therefore, submitted that
the removal of the petitioner was in accordance with law not requiring
any interference. He also submitted that the State Government had
acted on the report submitted by the respondent No.3-Commissioner
which in turn had acted on various complaints received against the
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petitioner. According to him, seriousness of the allegations had
warranted removal of the petitioner and, therefore, there was no case
made out to interfere with the impugned action.
6. At this stage, Shri R. J. Mirza, the learned counsel for the
petitioner, on instructions, submits that the petitioner does not desire to
pursue his challenge to his removal on the ground that the same was
not made by the Selection Committee in terms of Rules 91 and 92 of the
said Rules. He, therefore, submits that the challenge of the petitioner
may be restricted to the denial of proper opportunity prior to his
removal.
7. Considering the validity of the Notification dated
13/10/2015 on the ground that same has been issued in breach of
principles of natural justice, Shri P. S. Tembhare, the learned Assistant
Government Pleader for the respondents, on instructions, submitted
that it was a fact that the petitioner was not heard before the action of
his removal was taken by the respondent No.1. He submitted that in
case the removal of the petitioner is liable to be set aside on the ground
that same has been effected in breach of principles of natural justice, it
should be open for the State Government to proceed with the matter in
accordance with law.
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8. In view of aforesaid, as the impugned action of removing
the petitioner from the post of Chairperson of the District Advisory
Board, Akola has been taken without grant of proper opportunity of
hearing to the petitioner, the same is liable to be set aside.
9. In view of aforesaid, the Notification dated 13/10/2015
issued by the respondents is quashed and set aside. The respondent
No.1 shall give due opportunity of hearing to the petitioner before
taking any fresh action against the petitioner with regard to his removal
from the post of Chairperson of the District Advisory Board. The
petitioner in that regard shall remain present before the respondent
No.1 on 14/03/2016. The State Government shall take necessary
decision with regard to the aspect of removal of the petitioner from the
post of Chairperson within a period of six weeks from 14/03/2016. The
question of restoring the petitioner on the post of Chairperson of the
District Advisory Board would depend upon the outcome of the
proceedings before the State Government.
10. Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
KHUNTE
