Sau. Leena Ramesh Dongarwar vs The Commissioner, Nagpur ...
2017 Latest Caselaw 7418 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR




                              WRIT PETITION NO.688/2016


Sau. Leena Ramesh Dongarwar,
aged about 27 Yrs., Occu. Agriculturist, 
R/o Navegaon Bandh, Taluka Arjuni Morgaon, 
Distt. Gondia.                                                                            ..Petitioner.

     ..Vs..

1.   The Commissioner, Nagpur Division,
     Civil Lines, Nagpur.

2.   The Deputy Commissioner (General),
     Nagpur Division, Civil Lines, Nagpur. 

3.   The Chief Executive Officer,
     Zilla Parishad, Gondia. 

4.   Block Development Officer (Upper Grade),
     Panchayat Samiti, Arjuni Morgaon, 
     Taluka Arjuni Morgaon, Distt. Gondia. 

5.   Maharashtra Agricultural Competitiveness
     Project, F/E -78, First Floor, Bhuvikas Bank 
     Training Center Building, Gultekdi, Market 
     Yard, Pune - 411 037. 

6.   Rhushi S/o Naktuji Pustode,
     aged 65 Yrs., Member Gram Panchayat
     Navegaon Bandh, R/o at Post Navegaon
     Bandh, Taluka-Arjuni Moregaon, 
     Dist. Gondia. 

7.   Sanjay S/o Premlalji Ujawane,
     aged about 42 Yrs.,  Member Gram Panchayat
     Navegaon Bandh, R/o at Post Navegaon
     Bandh, Taluka-Arjuni Moregaon, 
     Dist. Gondia.                                                                     ..Respondents.


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            Shri M.V. Samarth, Adv. for the petitioner. 
            Shri A.Y. Kapgate, Adv. for respondent No.3. 
            Ms. M.A. Barabde, A.G.P. for respondent Nos.1, 2, 4 and 5.
            Shri R.S. Kurekar, Advocate for respondent Nos.6 and 7. 
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                                                                 CORAM :  S.C. GUPTE, J.

                                                                 DATE  :     21.9.2017.


ORAL JUDGMENT

1. Heard learned counsel for the petitioner, learned A.G.P. for

respondent Nos.1, 2, 4 and 5, learned counsel for respondent Nos.3 and 4 and

learned counsel for respondent Nos.6 and 7 (intervenors).

2. Rule. Taken up for hearing with the consent of learned counsel.

3. This petition challenges an order passed by the Deputy

Commissioner, Rehabilitation, Nagpur Division, Nagpur under Section 39(1) of

the Maharashtra Village Panchayats Act ( for short "Act") removing the

petitioner from the office of Sarpanch of the village panchayat. The removal

was on the ground that she was guilty of misconduct in discharge of her duties.

The enquiry itself was initiated on the complaint of respondent Nos.6 and 7.

The main allegation concerns the allotment of the contract for construction of

weekly market. The construction project was under the Maharashtra

Agricultural Competitiveness Project. It was the grievance of the complainant

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that this work, which was of an estimated value of Rs.25,000,00/-, was

awarded to the brother of Up-Sarpanch, one Shailesh Ravishankar Jaiswal,

without a proper and genuine tender process with adequate publicity. On this

complaint, the Divisional Commissioner of Nagpur directed the Chief Executive

Officer of Zilla Parishad, Gondia to make an enquiry and present a report.

(Preliminary enquiry in this behalf was carried out by the Block Development

Officer, Panchayat Samiti, Arjuni Morgaon.) The enquiry, so ordered, was

thereafter held by the Chief Executive Officer. All concerned, including the

petitioner herein, were heard by the Chief Executive Officer and their

submissions were recorded and considered. The Chief Executive Officer came

to the conclusion inter alia that a tender notice was proposed by the Panchayat

to be issued under the signature of the petitioner as Sarpanch. The tender

notice was to contain details such as the estimated value of the work, the date

of distribution of tender documents, date of receipt as well as for opening of

tenders, and the other broad tender conditions and notices. The Chief

Executive Officer found that as against this tender notice, another tender notice

of the same date (i.e. 14th September, 2017) was issued on the letterhead of the

Grampanchayat under the signature of the petitioner as Sarpanch containing

hardly any description of the tender process or conditions and it was this

tender notice which was in fact published in the local newspapers. The Chief

Executive Officer was of the view that the work called for an E-tendering

process for award of work; not only was the norm of E-tendering not followed

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but the tender notice in the local newspapers was without adequate particulars.

The Chief Executive Officer was of the view that issuing of two separate tender

notices on the same date and actual publication of the incomplete and

inadequate tender notice was a deliberate act on the part of the petitioner as

Sarpanch with a view to see that there was no adequate publicity of the tender

notice and the prospective tenderers were misled. After this inadequate notice,

three tenders were shown as received on the last date of receipt at the closing

hours and the work was awarded to one Shailesh Jaiswal, brother of the Up-

sarpanch. After this fact finding exercise, the Chief Executive Officer, in his

report submitted to the Commissioner, expressed his opinion that the petitioner

was liable to be removed under Section 39(1) of the Act from the posts of

Sarpanch and Member of the Grampanchayat. The petitioner and others were

thereafter granted an opportunity to show cause and heard by the Deputy

Commissioner, Nagpur Division, Nagpur. The Deputy Commissioner thereafter

passed his impugned order dated 23rd December, 2015, expressing

concurrence with the report submitted by the Chief Executive Officer and

removing the petitioner from the post of Sarpanch as well as Member of the

Grampanchayat. The Commissioner inter alia found that the tender notice was

not issued by disclosing adequate particulars and the contract was deliberately

awarded to one Shailesh Jaiswal, real brother of the Up-Sarpanch and that the

responsibility for this misconduct was squarely on the petitioner as Sarpanch.

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4. At the hearing of the petition, learned counsel for the petitioner,

firstly, contended that contrary to the first proviso to Section 39(1) of the Act,

the enquiry in the present case was not conducted by the Chief Executive

Officer but by the Block Development Officer and that too without due notice

to the Panchayat and the petitioner. Learned counsel, secondly, submitted that

contrary to the second proviso to Section 39(1) of the Act, the decision on the

report submitted by the Chief Executive Officer was not taken by the

Commissioner but by the Deputy Commissioner. Learned counsel also

submitted that there was neither notice of the enquiry nor a proper opportunity

to show cause to the petitioner at any stage of the proceedings i.e. either before

the Chief Executive Officer or the Deputy Commissioner. On merits, learned

counsel submitted that the work being tendered under the Maharashtra

Agricultural Competitiveness Project, no E-tendering was required. So also, no

newspaper advertisement was required to be issued. Learned counsel also

submitted that every decision taken in this behalf was collectively taken by the

Grampanchayat and not by the petitioner alone as a Sarpanch and that each of

the decisions was in accordance with the instructions of the Nodal Officer

who was co-ordinating the work on behalf of the Maharashtra Agricultural

Competitiveness Project.

5. In support of his contention that an enquiry in the matter of removal

of Sarpanch or Member of Gram Panchayat must be made by the Chief

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Executive Officer himself and no delegation is permissible, learned counsel

relied on the judgment of our Court in the case of Nimba Yadav Bhoi v/s.

President Standing Committee, Zilla Parishad, Jalgaon, reported in 2002(3)

Mh.L.J. 466. There is no quarrel with the proposition canvassed by learned

counsel for the petitioner. The fact of the matter is that this requirement is

satisfied in the present case. What was initially carried out by the Block

Development Officer was merely a preliminary enquiry. The inquiry within the

meaning of the first proviso to Section 39(1) of the Act was indeed undertaken

by the Chief Executive Officer himself. There is, therefore, no need to consider

the question of delegation in this behalf. As far as compliance with the second

proviso to Sub-section (1) of Section 39 is concerned, there is a provision in the

Act (Section 182) authorizing the Commissioner, subject to the general or

special orders of the State Government, to delegate powers exercisable by the

Commissioner under this Act to an Officer not below the rank of a Mamlatdar,

Tahsildar or Naib-Tahsildar. The powers of the Commissioner in this behalf are

delegated under this provision to the Deputy Commissioner. The observations

in Nimba Yadav Bhoi's case that no delegation of powers under Section 39(1) is

permissible were in the context of the powers of the Chief Executive Officer to

inquire into the matter, for which there is no provision in law for delegation.

The powers of the Commissioner, on the other hand, are expressly permitted in

the Act itself to be delegated, as noted above. No challenge can be laid,

therefore, on the basis of Nimba Yadav Bhoi's judgment to the delegation here.

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Such   delegation   is     recognized   and   countenanced   by   this   Court   in   case   of

Mohd. Izaz Abdul Refique vs. Addl. Commissioner, Amravati, reported in 2010(2)

ALL MR 355. The hearing conducted as well as the decision taken by the

Deputy Commissioner is thus intra vires the statute.

6. On the question of notice, it is apparent from the tenor and text of

the report submitted by the Chief Executive Officer that the petitioner appeared

and submitted her say in writing. The submissions made by the petitioner have

been briefly set out in the report submitted by the Chief Executive Officer. In

the face of this report and considering that there was no specific complaint in

this behalf, it is not permissible to go behind the record and hold that there was

either no notice or that there was no hearing given to the petitioner by the

Chief Executive Officer. This is equally true of the hearing before the Deputy

Commissioner and the opportunity made available to her to show cause before

the former. The State has produced record to show that the notice was duly

issued, that a copy of the report of the Chief Executive Officer was given to the

petitioner and she was allowed to show cause thereon.

7. As far as the merits of the observations of misconduct are

concerned, though learned counsel for the petitioner is right in submitting that

since the contract work was covered under Maharashtra Agricultural

Competitiveness Project, E-tendering process, otherwise applicable to

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government contracts, was not applicable, the guidelines issued, however, in

respect of Maharashtra Agricultural Competitiveness Project require an

adequate tender notice of works concerning weekly markets to be published in

local news papers as well as by displaying notices at prominent places. Such

tender notice ought to contain the description of the work, the various criteria

to be considered for award of the work and the time-lines concerning the

submission, scrutiny and acceptance etc. of tenders. There is no compliance in

the present case with these requirements. Even otherwise, it is clear that what

the Grampanchayat had approved was a more specific and detailed tender

notice and what was published in local newspapers under the signature of the

petitioner was a very sketchy notice giving no particulars whatsoever of either

the project or the nature of the work or the estimated value of the work or any

other details including the time-lines concerning the tender process. The

advertisement issued by the petitioner in local newspapers, roughly translated,

goes like this:

"It is hereby informed that open tenders are invited by the Grampanchayat Navegaonbandh for Weekly Market Improvement Scheme.

The interested tenderers registered under the Sales Tax Act should submit tenders during the working hours on the working days up to 27-09-2013 till 3-00 P.M. exactly.

The tender forms are available in the office of Grampanchayat.

The terms and conditions can be seen in the office of Grampanchayat during the working hours on the working days."

As is apparent from the foregoing text, no contractor worth his salt

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could be expected to respond to an advertisement such as this. The

observations of the Chief Executive Officer and the Deputy Commissioner in

this behalf in support of their conclusion that the whole process was conducted

with a specific purpose to award the tender to a close relative of the Up-

Sarpanch of the Grampanchayat by subverting the tendering process, are

clearly, to say the least, in the realm of good probability.

8. Learned counsel for the petitioner relied on the judgment of the

Supreme Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad

and others reported in (2012) 4 SCC 407 to submit that a mere error of

judgment resulting into a negligent act does not amount to misconduct.

Learned Counsel also submitted that whilst considering removal, elected

representatives stand on a higher pedestal than government servants, and in

their case, a strict compliance with the law is necessary before they are

removed. There is, once again, no quarrel with the proposition. But that only

means that one could expect a stricter scrutiny by the authorities entrusted

with removal of elected representatives. That still does not mean that the

standard of proof is any different from other cases of civil nature. It is not that

the misconduct is required to be proved beyond reasonable doubt, as in the

case of, say, corrupt electoral practices under the Representation of People Act.

The offices of elected legislators, in this respect, cannot be compared to elected

members of local bodies, whose removal is entrusted to officers of the State

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Government, though the officers themselves are expected to perform quasi

judicial functions in the matter. The enquiries before the officers, no doubt,

have to be performed in all solemnity and with due regard to the consequences

of removal. But the principles of scrutiny of the orders by the writ Court are no

different from ordinary principles of judicial review under administrative law.

9. Two fact finding authorities, in the present case, after due notice to

the petitioner and other concerned and after hearing them and after applying

their mind to the material on record, have passed concurrent orders. These

orders cannot be said to be either vitiated by factual or legal mala fides or

entailing any failure of justice. The orders are clearly supported by evidence on

record. They cannot be termed as orders passed on no evidence. There is no

consideration of any irrelevant or non-germane material and no germane or

relevant material is disregarded.

10. In the premises, there is no infirmity with the impugned orders

passed by the authorities below and no interference is called for within the writ

jurisdiction of this Court. Accordingly, there is no merit in the petition. The

petition is dismissed.

11. Learned counsel for the petitioner applies for continuation of the ad

interim order passed in this case, which has continued throughout the

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pendency of the petition before this Court. Learned counsel for the respondent

opposes the application. Considering the fact that the ad interim order has

been operating in this matter since 1 st February, 2016, it is reasonable to

extend the same for some more period. Accordingly, the ad interim order

passed on 1st February, 2016 shall operate for a further period of three weeks

from today.

JUDGE

Tambaskar.