Dwarkabai W/O. Prabhakar Sangle vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 3731 Bom

                                                  CORRECTED-Judgment WP 1246.2021.odt




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

                   WRIT PETITION NO. 1246 OF 2021

   Sau. Dwarkabai W/o. Prabhakar
   Sangle Aged 46 yes, Sarpanch Gram
   Panchayat Jevulka, At Post Dusarbid,               .. Petitioner
   Tah. Sindhkhedraja, Dist. Buldhana

                Versus

1) The State of Maharashtra, through its
   Secretary, Department of Rural
   Development, Mantralaya,
   Mumbai - 032

2) The Commissioner, Amravati                       .. Respondents
   Division, Amravati

3) Namdeo Masaji Budhwat
   Aged Major, Up-Sarpanch Gram
   Panchayat Javulka, Post Dusarbid,
   Tahsil Sindkhedraja, Dist.Buldhana

Mr. P. B. Patil, Advocate for petitioner.
Mr. D. P. Thakare, Addl.G.P. for respondent Nos.1 & 2.
Mr. S. S. Dhengale, Advocate for respondent No.3.

                           CORAM :            MANISH PITALE, J.
                   RESERVED ON            :   16/03/2022
              PRONOUNCED ON               :   06/04/2022



JUDGMENT

Heard finally with the consent of the learned counsel

for the rival parties.

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(2) By this writ petition, the petitioner has challenged

orders passed by respondent Nos. 1 and 2, under the provisions of the

Maharashtra Village Panchayat Act, 1959, whereby she stood removed

from the position of Sarpanch and Member of Gram Panchayat,

Javluka, Tahsil Sindkhedraja, District Buldhana.

(3) The petitioner was elected as Sarpanch of the said

Gram Panchayat in November, 2017. In January, 2019 respondent

No.3, also a Member and Upsarpanch of the said Gram Panchayat,

filed a complaint against the petitioner. It was alleged that the

petitioner as Sarpanch had illegally spent amounts of the Gram

Panchayat, without seeking requisite permission and that there were

discrepancies in the records of the Gram Panchayat. It was also

alleged that the petitioner had withdrawn amount of Rs.17,000/- in

the name of her husband from the funds made available to the Gram

Panchayat, thereby attracting Section 39 of the aforesaid Act, which

pertains to removal of a Sarpanch or Member of the Gram Panchayat

who has indulged in misconduct in discharge of duty or has indulged

in any disgraceful conduct or is found to be persistently remiss in the

discharge of duty. As contemplated under Section 39 of the said Act,

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the respondent No.2 Commissioner called for a report from the

respondent No.5 Chief Executive Officer in respect of the allegations

made against the petitioner. On 11/04/2019, the Chief Executive

Officer submitted a report to the Commissioner making adverse

observations against the petitioner.

(4) Upon receipt of the aforesaid report, the respondent

No.2 Commissioner issued notice to the petitioner, in response to

which she filed detailed reply on 25/06/2019 and refuted the

allegations levelled against her. The petitioner claimed that the

complaint was politically motivated and that there was no substance in

the findings given by the Chief Executive Officer in the report. In fact,

it was claimed that the Chief Executive Officer had failed to inquire

into the matter himself and that the report was actually prepared by an

Extension Officer.

(5) After hearing the parties, the respondent No.2

Commissioner passed order dated 03/09/2019, holding that the

allegations levelled against the petitioner were proved and that she

had attracted removal from office under Section 39(1) of the said Act.

Accordingly, the respondent No.2 Commissioner passed the order

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removing the petitioner as Sarpanch and Member of the Gram

Panchayat.

(6) Aggrieved by the said order, the petitioner filed

appeal before the respondent No.1 State, under Section 39(3) of the

said Act, along with an application for grant of interim stay. Since the

Minister of the concerned department was unable to take the appeal

and the application for interim relief for consideration urgently, the

petitioner was constrained to file Writ Petition No.6747 of 2019, before

this Court, wherein notice was issued and interim relief was granted in

favour of the petitioner. Thereafter, on 05/02/2020, the writ petition

was disposed of with a direction that the interim order granted by this

Court would continue to operate for a period of three weeks and that

the petitioner would be at liberty to pursue the appeal and the stay

application before the appellate authority i.e. the State Government.

(7) By the impugned order dated 22/02/2021, the

Minister of the concerned department dismissed the appeal and

thereby confirmed the order passed by the respondent No.2

Commissioner.

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(8) Aggrieved by the same, the petitioner filed the

present writ petition on 08/03/2021. While issuing notice, this Court

granted interim stay in favour of the petitioner, as a consequence of

which she has continued to function as Sarpanch of the said Gram

Panchayat. Upon the respondents entering appearance, this petition

was taken up for final disposal.

(9) Mr. P. B. Patil, learned counsel appearing for the

petitioner submitted that in the present case drastic action of removal

of the petitioner as Sarpanch and Member of Gram Panchayat was

unsustainable, for the reason that mandatory requirements of Section

39(1) of the said Act were not satisfied. It was submitted that the

report of the respondent No.5, Chief Executive Officer, could not have

been relied upon by the respondent No.2 Commissioner while passing

the impugned order dated 03/09/2019. It was submitted that a

perusal of the report dated 11/04/2019, submitted by the respondent

No.5 Chief Executive Officer would show that it entirely relied upon an

enquiry actually conducted by the Extension Officer. Since the enquiry

was not conducted by respondent No.5-Chief Executive Officer, the

report was vitiated and it could not have been considered by the

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respondent No.2 Commissioner while exercising power under Section

39(1) of the said Act. It was further submitted that even otherwise,

the allegations levelled against the petitioner were not proved by the

material brought on record. It was submitted that the amounts spent

by the Gram Panchayat for development works were all accounted for

and that there was not even an allegation that the funds for

development works were either misused or diverted by the petitioner.

(10) It is submitted that there is no substance in the

allegation that the petitioner had failed to take approval from the

Gram Sabha with regard to the expenses for development work funds

made available as per the 14th Finance Commission, because the

respondent No.3 i.e. complainant himself had proposed the resolution

in the meeting of the Gram Panchayat, whereby decisions were taken

for utilization of such funds for development work. It was further

submitted that even if the amount of Rs.17000/- was withdrawn in the

name of the husband of the petitioner, there was nothing on record to

show that the said amount was misused by her and her husband or

that it was not spent for the purpose for which it was withdrawn.

(11) The learned counsel for the petitioner emphasized

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that material was placed on record to show that utensils etc. were

purchased from the said amount of Rs.17000/- and such material was

in fact produced during the course of the enquiry itself. On this basis,

it was submitted that the allegations levelled against the petitioner

were baseless, which the authorities failed to appreciate while holding

that the petitioner was liable to be removed as Sarpanch and Member

of Gram Panchayat.

(12) The learned counsel for the petitioner submitted

that the petitioner could not be found guilty for abuse of powers and

that since she was holding an elected office in a democratic institution,

she could not have been removed from the office in such a casual

manner. The learned counsel placed reliance on judgment of this

Court in the case of Sou. Alka w/o Manoj Kakde vs. The State of

Maharashtra and others decided on 21/10/2013 bearing Writ Petition

No.1199 of 2013 and judgment of the Hon'ble Supreme Court in the

case of Tarlochan Dev Sharma vs. State of Punjab and others (2001) 6

SCC 260.

(13) On the other hand, Mr. S. S. Dhengale, learned

counsel appearing for the contesting respondent No.3 submitted that

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in the present case, the report submitted by the Chief Executive Officer

recorded in detail the financial bungling done by the petitioner. It was

submitted that withdrawal of amount from the funds of the Gram

Panchayat in the name of the husband of the petitioner clearly

indicated that she was correctly removed from office by exercising

power under Section 39(1) of the aforesaid Act, as she was guilty of

misconduct and disgraceful conduct.

(14) It was further submitted that the Chief Executive

Officer in the report may have referred to certain materials gathered

by the Extension Officer. Though the enquiry was conducted with the

assistance of the Extension Officer, it could not be said that the process

of enquiry was delegated to the Extension Officer. It was further

submitted that the material on record clearly proved the misconduct

on the part of the petitioner and therefore, the impugned orders did

not deserve interference. The learned counsel placed reliance on

judgment of this Court in the case of Sou. Priya Alkesh Kalbande and

others vs. State of Maharashtra, Writ Petition No.1244 of 2018,

decided on 08/01/2019.

(15) Having heard the learned counsel for the rival

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parties, it would be necessary to refer to the relevant provision

pertaining to removal of a Sarpanch or a Member or Up-Sarpanch

under the provisions of the aforesaid Act. Section 39 of the Act

pertains to removal from office. A perusal of the same shows that the

petitioner as Sarpanch and Member of the Gram Panchayat could be

removed from office for indulging in misconduct in discharge of duties

or for disgraceful conduct or showing incapacity to perform her duty

or being persistently remiss in discharge thereof. Since the person is

sought to be removed from an elected office, the aforesaid provision

lays down a procedural safeguard in the form of a mandate that such

person shall not be removed from office, unless a report is called from

the Chief Executive Officer in respect of the allegations levelled against

such a person holding an elected office.

(16) In the present case, there is no dispute about the

fact that the respondent No.2 Commissioner did call for a report from

the respondent No.5 i.e. the Chief Executive Officer in the context of

the allegations levelled against the petitioner. A report dated

11/04/2019 was submitted by the Chief Executive Officer wherein

reference was made to the allegations as also the material gathered

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during the course of enquiry and conclusions were specifically

recorded in the context of the two main allegations levelled against the

petitioner.

(17) The report concluded that insofar as allegations

pertaining to failure to prepare and maintain accounts regarding the

amounts spent by the Gram Panchayat for development activities was

concerned, it was found that technical permissions for the works,

estimates and valuation and other such details were not available on

record and it was found that the petitioner as the Sarpanch along with

the Secretary of the Gram Panchayat were responsible for amount of at

least Rs.1,24,600/-. It was also recorded that approval of the Gram

Sabha was not obtained for such works carried out at the behest of the

Gram Panchayat. On the other allegation, it was found that a cheque

for an amount of Rs.17000/- was issued in favour of the husband of

the petitioner and this was in the teeth of Government Circular dated

17/07/2007, that close relatives of elected Members shall not interfere

with the working of the office of the Gram Panchayat.

(18) The principal attack on the aforesaid report

launched on behalf of the petitioner was that the enquiry was actually

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conducted by the Extension Officer and not the Chief Executive Officer,

thereby violating the mandatory requirement under proviso to Section

39(1) of the said Act. In order to examine the said contention raised

on behalf of the petitioner, this Court considered the report dated

11/04/2019 in detail. It was found that although reference has been

made to assistance provided by the Extension Officer in the process of

the enquiry, it cannot be said that the entire enquiry was conducted

and the report was prepared by the Extension Officer rather than the

Chief Executive Officer. The tenor of the report substantially complied

with the mandatory requirement, under proviso to Section 39(1) of the

aforesaid Act. Thus, there is no substance in the said contention raised

on behalf of the petitioner.

(19) As regards the order passed by the respondent

Commissioner, which was confirmed by the Minister, whereby the

petitioner stood removed from the elected position of Sarpanch and

Member of Gram Panchayat, it was submitted that the findings did not

indicate either that the petitioner had indulged in misconduct or that

her conduct could be said to be disgraceful or indicating negligence in

performance of duties or being persistently remiss in performing her

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duties. According to the petitioner the findings did not indicate misuse

of funds of the Gram Panchayat or that the petitioner had illegally

gained any financial benefit because of such activities. Much emphasis

was placed on the fact that failure to seek approval of Gram Sabha was

a collective failure of the Members of the Gram Panchayat along with

the petitioner and this was evident from the fact that the proposal

pertaining to such development activities was moved by the contesting

respondent No.3 i.e. the original complainant himself. As regards the

amount of Rs.17000/- disbursed in favour of the husband of the

petitioner, it was submitted that as long as the said amount was

utilized for the benefit of the Gram Panchayat, the grounds for removal

under Section 39(1) of the Act, were not attracted.

(20) This Court has perused the impugned orders passed

by the Commissioner as well as the Minister. The findings reveal that

what was held against the petitioner was not only failure to seek

approval of the Gram Sabha, but the fact that requisite technical

approvals were not obtained and the estimates and valuation of the

works done were not found in order, in the record of the Gram

Panchayat. The petitioner cannot escape liability by contending that

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the Secretary of the Gram Panchayat was responsible for such

deficiencies and that therefore, the grounds for removal under Section

39(1) of the said Act were not made out. As the elected Sarpanch and

Member of the Gram Panchayat, the petitioner was required to ensure

necessary compliance of the requirements, particularly in the context

of development works and the utilization and accounting of finance in

that context. Even if it was to be said that failure to seek approval in

the Gram Sabha would not amount to misconduct, the failure on the

part of the petitioner to effectively ensure proper accounting and

utilization of funds pertaining to development work was an indicator

of misconduct and negligence as well as being remiss towards

performance of her duties.

(21) Reliance placed on the judgment of the Hon'ble

Supreme Court in the case of Tarlochan Dev Sharma (supra) cannot

take the case of the petitioner any further, for the reason that in the

said judgment it is laid down as to what could be said to be abuse of

power and it is stated that an elected person ought not to be removed

from such office in a casual manner. Even if the ratio of the said

Judgment is to be applied to the facts and circumstances of the present

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case, it is seen that the material on record was considered by the

Commissioner as well as the Minister to render specific findings

against the petitioner regarding misconduct and negligence in

performance of duties as Sarpanch and Member of the Gram

Panchayat.

(22) The second allegation levelled against the petitioner

is even more serious, for the reason that it is an admitted position that

a cheque of Rs.17000/- from the funds of the Gram Panchayat was

issued to the husband of the petitioner. The report submitted by the

Chief Executive Officer does show that during the course of enquiry

some receipts were relied upon by the petitioner to contend that the

said amount was utilized for buying certain utensils and other things

for the Gram Panchayat. As a person holding an elected office, the

petitioner was expected to ensure that funds of the Gram Panchayat

were accounted for and disbursal of funds in the name of her husband

goes against the very principle of ensuring that there is no conflict of

interest or that there is no misuse of the office by the elected person.

In the present case, cheque for an amount of Rs.17000/- from the

funds of the Gram Panchayat was issued in the name of the husband of

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the petitioner. No material has been placed on record to indicate as to

what was the urgency or emergency for issuance of cheque in the

name of the husband of the petitioner. This clearly indicates not only

misuse of office, but it also amounts to disgraceful conduct on the part

of the petitioner while holding the elected office of Sarpanch and

Member of Gram Panchayat.

(23) The judgment in the case of Alka Kakde (supra)

upon which reliance is placed on behalf of the petitioner is clearly

distinguishable on facts. In the said case, the allegation was that the

petitioner therein was held guilty and removed from office under

Section 39(1) of the aforesaid Act for the reason that in the absence of

proper resolutions of the Gram Panchayat, the petitioner therein had

temporarily withdrawn amounts from the account of Indira Awas Yojna

for disbursing salary of the Gram Panchayat staff. It was alleged

against the petitioner therein that such act without proper resolutions

of the Gram Panchayat amounted to misconduct, inviting order of

removal from office under Section 39(1) of the said Act. It was in such

facts that this Court held in favour of the petitioner, on the basis that

undisputedly the amount in question was never personally retained by

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the petitioner therein. Instead it was disbursed to the employees

towards arrears of their salary and that subsequently the amount was

redeposited in the account.

(24) In the present case, the petitioner did indulge in

misconduct and disgraceful conduct when cheque for an amount of

Rs.17000/- was issued in the name of her husband. Although it was

claimed that the said amount was utilized for buying certain utensils

and other items for the Gram Panchayat and certain receipts issued by

a shop were sought to be relied upon, there was no explanation

forthcoming as to why the Gram Panchayat could not make payment

directly to the shop from which such items were allegedly purchased.

Issuance of the cheque and disbursal of the amount of Rs.17000/-

directly in the name of husband of the petitioner, clearly amounted to

misconduct and disgraceful conduct on the part of the petitioner as

elected Sarpanch and Member of the Gram Panchayat.

(25) In the facts of the present case, this court, while

exercising jurisdiction under Article 227 of the Constitution of India, is

not convinced that interference is warranted in the concurrent orders

passed against the petitioner by the Commissioner as well as the

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Minister. The material on record has been appreciated in a reasonable

manner and the findings rendered by the Commissioner as well as the

Minister cannot be said to be perverse or against the material available

on record. Hence, the petitioner has failed to make out a case for

interference in the impugned orders.

(26) Accordingly, writ petition is dismissed.

[ MANISH PITALE J.]

After pronouncement of judgment, the learned

counsel appearing for the petitioner sought stay of the judgment and

order passed today by this Court. The learned counsel appearing for

respondent No.3 opposed the aforesaid prayer.

(2) This Court is of the opinion that considering the

findings rendered in the judgment pronounced today, the aforesaid

prayer for stay cannot be granted. Accordingly, the prayer is rejected.

[ MANISH PITALE J.]

KOLHE Digitally signed byRAVIKANT CHANDRAKANT KOLHE Signing Date:06.04.2022 18:39 PAGE 17 OF 17