Jagdish Mannalalji Sancheriya vs The State Of Maha. Thr. Ministry Of ...
2022 Latest Caselaw 5797 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR
                      WRIT PETITION NO. 4805 OF 2021
Shri Jagdish Mannalalji Sancheriya
Aged about 51, Occupation :
Agriculturist,                                          .. Petitioner
R/o. Anji (Mothi)
Tah. & Dist. Wardha
                   Versus

1. The State of Maharashtra
Through      its   Minister  of          Rural
Development
Mantralaya, Mumbai - 32
2. The Additional Commissioner,
Nagpur, Civil Lines, Nagpur.
3. The Chief Executive Officer
Zilla Parishad, Wardha.
4. The Gram Panchayat Anji (Mothi),
Dist. Wardha through its Secretary                    .. Respondents
5. Shri Satish Manikrao Pawar
Aged about 36, Occupation : Business,
R/o Ward No.2, Potdar Layout,
Dhangarpura Anji (Mothi),
Tah. & Dist. Wardha
6. Shri Rajendra Dodaskar
Aged about 52, Occupation: Agriculturist,
R/o Ward No.3, Anji (Mothi),
Tah. & Dist. Wardha

Mr. A.M. Ghare, Advocate for petitioner.
Mr. K.L. Dharmadhikari, Addl.G.P. for respondent Nos.1 & 2.
Ms. Sangita Jachak, Advocate for respondent No.3.
Mr. A.A. Sambaray, Advocate for respondent No.6.

                                     CORAM :     MANISH PITALE, J.
                       RESERVED ON           :   08/06/2022.
                PRONOUNCED ON                :   24/06/2022


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      ::: Uploaded on - 24/06/2022                    ::: Downloaded on - 25/06/2022 08:15:09 :::
 JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with consent of the learned counsel for the parties.

(2) The petitioner is aggrieved by his removal from the

elected post of Sarpanch of Gram Panchayat, Anji (Mothi), District -

Wardha, under Section 39(1) of the Maharashtra Village Panchayats

Act, 1959. The respondent No.2 - Additional Commissioner passed

impugned order dated 23.08.2021, removing the petitioner from the

elected post of Sarpanch, on the ground that he was found guilty of

neglect in performance of his duties. The petitioner had approached

the respondent No.1 under Section 39 (3) of the said Act, to challenge

the order of his removal, but the respondent No.1 dismissed the

appeal, thereby confirming the said order.

(3) The petitioner was directly elected as Sarpanch of

the said Municipal Council for a period of five years in an election held

in March, 2019, thereby showing that his term would expire in the

year 2024. The respondent Nos.5 and 6 approached the respondent

No.3 - Chief Executive Officer (CEO) with complaint against the

petitioner and claimed that he deserved to be removed from the said

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post of Sarpanch. The respondent No.3 - CEO took into consideration

the complaints submitted by respondent Nos.5 and 6. It appears that

the said respondent No.3 - CEO conducted a preliminary enquiry into

the matter and sent a communication to the respondent No.2 -

Additional Commissioner, stating that he found prima facie substance

in the complaints submitted by respondent Nos.5 and 6. Thereupon,

the respondent No.3 - CEO sought permission of the respondent No.2 -

Additional Commissioner for conducting an enquiry against the

petitioner. In response, the respondent No.2 - Additional

Commissioner appears to have granted permission and the enquiry

was initiated by respondent No.3 - CEO.

(4) On the basis of the report submitted by the

respondent No.3 - CEO, on 05.11.2020, the respondent No.2 -

Additional Commissioner exercised power under Section 39(1) of the

aforesaid Act, to call upon the petitioner to submit his explanation. On

20.07.2021, the petitioner submitted a detailed reply to the report of

the respondent No.3 - CEO. The petitioner contended that adverse

findings rendered in the said report were not borne out from the

record and that they were unsustainable. It was submitted that the

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Gram Panchayat acted in a collective manner and that the petitioner,

as the Sarpanch, could not be singled out in the context of decisions

taken by the Gram Panchayat collectively. It was highlighted by the

petitioner on each issue raised in the report of the respondent No.3-

CEO that no ingredient of Section 39(1) of the said Act was made out

and that therefore, the proceedings initiated against him deserved to

be dropped.

(5) By order dated 23.08.2021, the respondent No.2 -

Additional Commissioner considered the material on record and

rendered findings against the petitioner on six issues. Thereupon, the

respondent No.2 - Additional Commissioner rendered a finding that

the petitioner was guilty of neglect in performing his duties. On this

basis, the respondent No.2 - Additional Commissioner passed the

order removing the petitioner from the post of Sarpanch. It is

significant that in the operative portion of the impugned order, the

respondent No.2 - Additional Commissioner recorded that the

application/complaint of the respondent No.3 - CEO was being

allowed and the enquiry report submitted by the said respondent was

being confirmed.

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

appeal under Section 39(3) of the said Act before the respondent No.1.

Various grounds of challenge were raised on behalf of the petitioner in

the appeal proceedings. Hearing was conducted on the prayer for

interim stay, but since no order was passed thereon, the petitioner was

constrained to file Writ Petition No.4324/2021, before this Court. By

order dated 28.10.2021, this Court allowed the writ petition, directing

the respondent No.1 to decide the appeal filed by the petitioner in a

time bound manner and it was directed that in the meanwhile election

would not be held for the post of Sarpanch of the said Gram

Panchayat.

(7) On 25.11.2021, the respondent No.1 passed its

order dismissing the appeal filed by the petitioner, thereby confirming

the order passed by the respondent No.2 - Additional Commissioner,

removing the petitioner from the post of Sarpanch. Aggrieved by the

same, the petitioner filed the present writ petition, wherein notices

were issued. The respondents entered appearance through counsel

and the petition was taken up for final disposal.

(8) Mr. A.M. Ghare, learned counsel appearing for the

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petitioner submitted that the impugned orders deserved to be set aside

because the proceedings conducted before the respondent No.2 -

Additional Commissioner stood vitiated due to violation of the

mandatory procedure prescribed under Section 39 of the said Act. It

was submitted that under the provisions of the said Act, the

respondent No.2 - Additional Commissioner could remove the

petitioner as the elected Sarpanch on specific grounds, subject to a

report being called from the respondent No.3 - CEO after conducting a

proper enquiry. It was emphasized that upon the respondent No.2 -

Additional Commissioner receiving information or complaint, that the

procedure under Section 39 of the said Act could be triggered and it is

thereupon that the CEO is expected to conduct an enquiry and submit

report before the Commissioner. According to the learned counsel for

the petitioner, in the present case the said procedure was violated,

inasmuch as the respondent No.3 - CEO himself acted as the

complainant by approaching the respondent No.2 - Additional

Commissioner stating that a prima facie case existed against the

petitioner, further seeking permission to conduct enquiry into the

matter. It was highlighted that the operative portion of the impugned

order passed by the Additional Commissioner itself recorded that the

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complaint of the respondent No.3- CEO was being allowed and the

report of the said authority was being confirmed. On this basis, it was

submitted that due to the said procedural flaw in the present case, the

impugned orders deserved to be set aside.

(9) On the merits of the matter, it was submitted that

the petitioner had furnished a detailed reply on each and every issue

raised by the respondent No.3-CEO in his report. The petitioner had

explained the circumstances in which the Gram Panchayat, discharging

its collective responsibility, had taken certain decisions on the issues

that were highlighted in the report. It was submitted that none of the

said decisions could be said to be the individual responsibility of the

petitioner and that in any case no material had come on record to

indicate that the petitioner could be held guilty for neglect in

performing his duty. By placing reliance on judgment of the Division

Bench of this Court in the case of Baburao Vishwvanath Mathpati Vs.

State of Maharashtra and others 1996 (1) Mh.L.J. 366 , the learned

counsel for the petitioner submitted that the word "neglect" was

explained in the said judgment of this Court to mean that "gross

neglect" would have to be demonstrated against an elected Sarpanch,

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Upa-Sarpanch or Member of the Gram Panchayat to justify his or her

removal. It was submitted that the said position of law demonstrated

that the material on record ought to show gross neglect and absolute

irresponsible conduct on the part of an elected Sarpanch, Upa-

Sarpanch or Member of the Gram Panchayat, to justify his or her

removal under Section 39(1) of the said Act. On the basis of the

material on record, it was submitted that no such case of neglect in

performing duties was made out against the petitioner and that

therefore, the impugned orders deserved to be set aside.

(10) The learned counsel for the petitioner also placed

reliance on judgment of the Hon'ble Supreme Court in the case of Ravi

Yashwant Bhoir Vs. District Collector, Raigad and others 2012 (4) SCC

407, to emphasize that when the Commissioner exercising powers

under Section 39 of the said Act, was removing an elected

representative and thereby nullifying the verdict of the people, strict

and high standards of proof of ingredients of the aforesaid provision

were necessary to justify such an action of removal of the elected

representative. It was submitted that no such material was available

on record in the present case to justify the impugned orders. On this

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basis, it was submitted that the writ petition deserved to be allowed.

(11) Mr. A.A. Sambaray, learned counsel appearing for

contesting respondent No.6 i.e. one of the original complainants,

submitted that there was no substance in the contentions raised on

behalf of the petitioner. On the question of alleged procedural defect or

flaw in the present case, the learned counsel emphasized that even if

the respondent No.2 - Additional Commissioner had referred to the

respondent No.3 - CEO as a complainant in the operative portion of

the impugned order removing the petitioner from the post of

Sarpanch, it could not vitiate the said order, for the reason that

respondent No.3 - CEO had conducted enquiry on specific directions

given by the respondent No.2 - Additional Commissioner, in terms of

the proviso to Section 39(1) of the said Act. It was submitted that

merely because respondent No.5 and 6 had approached the respondent

No.3 - CEO with their grievance and the CEO had in turn brought the

same to the notice of the respondent No.2 - Additional Commissioner,

it could not be said that the CEO had acted as the complainant himself.

Even if, the respondent No.3 - CEO in the communication to the

respondent No.2 - Additional Commissioner, referring to the grievance

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of respondent Nos.5 and 6 had opined that a prima facie case was

made out against the petitioner, it could not be said that the

proceedings stood vitiated or that there was a procedural flaw in the

present case. The learned counsel emphasized that there was

substantial compliance with the requirement of Section 39(1) of the

said Act and that therefore, there was no substance in the said

contention raised on behalf of the petitioner.

(12) As regards the merits of the matter, it was submitted

that the report of the respondent No.3 - CEO stated in detailed as to

the manner in which the petitioner as the Sarpanch of the Gram

Panchayat had avoided performing statutory duties and this had

resulted in pecuniary loss to the Gram Panchayat. It was submitted

that the petitioner had taken lead in passing Resolutions of the Gram

Panchayat against earlier Resolutions, in the teeth of the statutory

requirements, which had resulted in unfair advantage to persons who

were rank encroachers. It was further submitted that the respondent

No. 2 - Additional Commissioner took into consideration the reply

filed by the petitioner and it was found that at least on six issues the

petitioner was unable to give proper explanation and thereupon, it was

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found that he was guilty of neglect in performing his duties. On this

basis, it was submitted that no error could be attributed to the

respondent No.2 - Additional Commissioner for having passed the

impugned order and the respondent No.1 having confirmed the same.

(13) Mr. K.L. Dharmadhikari, leaned AGP appeared on

behalf of the respondent Nos.1 and 2 and defended the impugned

orders. Ms. Sangita Jachak, learned counsel appeared on behalf of

respondent No.3.

(14) Having heard the learned counsel for the rival

parties, in the backdrop of the material placed on record, two points

arise for consideration in the present petition. Firstly, as to whether it

can be said that the procedure adopted in the present case was in

consonance with the statutory requirements of Section 39 of the

aforesaid Act, particularly when the respondent No. 3 - CEO had

approached the respondent No.2 - Additional Commissioner to

proceed against the petitioner, stating that a prima facie case was

made out. Secondly, as to whether the respondent No.2 - Additional

Commissioner was justified in concluding that the petitioner deserved

to be removed from the elected position of Sarpanch for being guilty of

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neglect in performance of his duties. Both these points will have to be

examined in the backdrop of the settled position of law laid down by

the Supreme Court in the case of Ravi Yashwant Bhoir (supra),

wherein a note of caution has been sounded when an elected

representative of the people is sought to be removed from office.

(15) The Supreme Court in the aforesaid judgment in the

case of Ravi Yashwant Bhoir Vs. District Collector and Ors., (supra), in

the context of removal of a representative of people, concerning local

self-Government, held as follows :

"22. Amendment 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.

28. In State of Punjab v. Baldev Singh, 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

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the statute have to be kept in mind while exercising such a power. The Court considering its earlier judgments in Mohinder Kumar v. State and Ali Mustafa Abdul Rehman Moosa v. State of Kerala, held as under:

"It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed."

29. The Constitution Bench of this Court in G. Sadanandan v. State of Kerala, held that if all the safeguards provided under the Statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed.

32. 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."

(16) The aforesaid observations were made by the

Supreme Court in the context of a pari materia provision concerning

removal of President of Municipal Council under the Maharashtra

Municipal Councils, Nagar Panchayats and Industrial Townships Act,

1965. Thus, a stringent standard has to be applied for examining the

validity of the action of the respondent No. 2 - Additional

Commissioner in the present case in removing the petitioner from the

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elected position of Sarpanch of the Gram Panchayat under Section 39

of the said Act. Strict adherence to the mandatory requirements of the

statute is necessary and therefore, the procedure adopted in the

present case needs to be examined in detail.

(17) The procedural flaw claimed by the petitioner,

which has allegedly caused substantive injustice, is that in the present

case, the respondent No.3 - CEO himself approached the respondent

No.2 - Additional Commissioner, on the basis of a complaint submitted

by respondent Nos.5 and 6, claiming that prima facie case was made

out against the petitioner for removal from the elected position of

Sarpanch and permission was sought to conduct enquiry against the

petitioner. It is for this reason that in the impugned order dated

23.08.2021, it is recorded at the outset that the respondent No.3 -

CEO was the applicant, who applied on 30.07.2020, making a

complaint against the petitioner. In the operative portion of the said

impugned order also it is specifically stated that the complaint filed by

the applicant/complainant i.e. respondent No.2 - CEO was being

allowed and the enquiry report dated 05.11.2020, was being

confirmed.

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(18) A perusal of Section 39 of the aforesaid Act, in this

context becomes relevant and it reads as follow:

"Section 39 - Removal from office. - (1) The Commissioner may,-

(i) remove from office any member or any Sarpanch or Upa- Sarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or

(ii) remove from office the member, Sarpanch or, as the case may be Upa-Sarpanch, if not less than twenty per cent of the total number of voters in the village who have paid all dues of the panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the panchayat on the development activities are not placed before the Gram sabha; and the information thereof is not displayed on the notice board as required by sub-section (1) or (1A) of section 8:

Provided that, no such person shall be removed from office unless, in case of clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned, through the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month:

Provided further that, the Commissioner shall, after giving the person concerned a reasonable opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer, within a period of one month from the date of receipt thereof.];

[(1A) Where a person is removed from office of the Sarpanch or

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Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch during the remainder of the term of office of members of the panchayat.]

[(2) The Commissioner may subject to like condition disqualify for a period of not exceeding [six years], any person who has resigned his office as a member, Sarpanch or Upa-Sarpanch and has been guilty of the acts and omissions specified in sub-section (1).

(3) Any person aggrieved by an order of the Commissioner under sub-section (1) or (2) may, within a period of fifteen days from the date of the receipt of such order, appeal to the State Government and the Government shall decide the appeal within a period of one month from the date of receipt thereof."

(19) A bare reading of the above quoted provisions

shows that the role of the CEO is specified in the proviso to Section

39(1) of the Act, which mandates that the CEO shall hold an enquiry

under the orders of the respondent No.2 - Additional Commissioner,

when the Commissioner considers the question of removal of

Sarpanch, Upa-Sarpanch or Member of the Gram Panchayat from the

elected Office. The role of the CEO starts upon a specific order of the

Commissioner, who intends to remove a Sarpanch, Upa-Sarpanch or

Member from the elected Office. Thus, under the statutory scheme,

the CEO is expected to act as an authority which conducts an

independent enquiry into the matters that may be referred by the

Commissioner in the context of the question of removal of a Sarpanch,

Upa-Sarpanch or a Member of the Gram Panchayat.

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(20) But, in the present case, the respondent No.3 - CEO

himself approached the respondent No.2 - Additional Commissioner as

an applicant/complainant and sought permission to hold an enquiry

against the petitioner for removal from the elected office of Sarpanch.

In the said communication dated 20.07.2020, the respondent No.3 -

CEO himself stated that prima facie he was convinced that a case was

made out against the petitioner. No doubt, the respondent No.3 - CEO

referred to the grievances raised by the respondent Nos.5 and 6, but

the tenor of the communication sent by the respondent No.3 - CEO to

the Commissioner clearly indicated that the CEO had already reached

a prima facie conclusion that the petitioner was liable to be removed

under section 39(1) of the said Act.

(21) It is in response to the said communication sent by

the respondent No.3 - CEO that the Commissioner, on 07.08.2020,

passed the order directing the CEO to conduct the enquiry. A perusal of

the said order shows that the respondent no.2-Commissioner simply

stated that since the CEO had asked permission to conduct enquiry, it

was being ordered that such an enquiry shall be conducted. The order

does not show any application of mind on the part of the respondent

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no.2-Commissioner about existence of circumstances for initiation of

such an enquiry against the petitioner. The direction to conduct the

enquiry was to the very same CEO, who as an applicant/complaint,

had approached the Commissioner for removal of the petitioner under

Section 39(1) of the said Act.

(22) This Court is of the opinion that such a procedure

was not only flawed and defective, but it was not in strict adherence to

the requirements of the above quoted Section 39 of the said Act. As

laid down by the Supreme Court in the case of Ravi Bhoir (supra), in

cases where elected representatives are sought to be removed from

elected Office, all safeguards provided in the statute have to be

scrupulously followed and if such safeguards are not observed and an

adverse order is passed, such an order can be characterized as having

been passed malafide, rendering it liable to be quashed and set aside.

(23) In a given case the CEO may place complaints and

other material before the Commissioner for consideration, upon which

after application of mind the Commissioner may deem it fit to direct

the CEO to conduct an enquiry as mandated under proviso to section

39(1) of the said Act. But, in the facts of the present case, it is found

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that the CEO conducted a preliminary enquiry on the complaints

submitted by respondent nos. 5 and 6. Thereupon, the CEO reached

prima facie conclusion that the petitioner was liable to be removed

under section 39(1) of the said Act. The CEO sent the said

communication dated 20.07.2020 to the respondent Commissioner,

who in turn mechanically passed the order dated 07.08.2020, granting

the direction to conduct such an enquiry merely on the asking of the

CEO, demonstrating no application of mind on the part of the

Commissioner and further the enquiry was directed to be conducted by

the very same CEO.

(24) In the present case, the respondent No.3 - CEO

himself was the applicant/complainant before the Commissioner

against the petitioner and the said CEO himself conducted the enquiry

in the matter and thereupon, the respondent No.2 - Additional

Commissioner relied on the findings rendered in such an enquiry to

remove the petitioner from the elected Office of Sarpanch. This Court

is of the opinion that such a procedure adopted in the present case

suffered from serious procedural flaw, demonstrating that the

safeguards provided in Section 39 of the said Act, were not observed

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and on this ground itself the impugned order passed by the

Commissioner was rendered unsustainable and liable to be set aside.

The respondent No.1 failed to appreciate that this aspect of the matter

while dismissing the appeal filed by the petitioner.

(25) Despite the aforesaid findings on the first point that

arises for consideration in the present case, this Court is proceeding to

consider the second point concerning the merits of the matter. It is

found from the material available on record that the respondent No.2

- Additional Commissioner passed the impugned order dated

23.08.2021, holding the petitioner guilty of neglect in performing

duties, on the basis of six findings rendered against the petitioner.

These findings were entirely based on the report submitted by the

CEO. It is necessary to examine as to whether the aforesaid findings

were based on a proper appreciation of the material available on

record and as to whether the reply filed by the petitioner was taken

into consideration on each of the points on which the respondent -

Commissioner held against the petitioner.

(26) The material on record shows that the respondent

No.3 - CEO submitted a detailed enquiry report dated 05.11.2020, on

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various issues. On some of the issues, the respondent No.3 - CEO

found that the Secretary of the Gram Panchayat was also to be held

responsible, but in respect of majority of the points taken up for

consideration, conclusions were rendered against the petitioner.

(27) The petitioner submitted a detailed reply dated

20.07.2021, before the respondent No.2 - Additional Commissioner on

the points that arose for consideration in the light of the report of the

respondent No.3 - CEO dated 05.11.2020. The explanation furnished

in the said reply pertained to the six issues on which the respondent

No. 2 - Additional Commissioner rendered findings against the

petitioner in the impugned order dated 23.08.2021, while holding the

petitioner guilty of neglect in performing duties. The findings rendered

on the six issues in the said impugned order and the discussion prior to

rendering findings, shows that the detailed reply and explanation

given on behalf of the petitioner was not considered in the proper

perspective and reasons were not stated as to why the explanation was

not found worthy of acceptance and why the respondent No.2 -

Additional Commissioner reached the conclusion that the petitioner

was guilty of neglect in performing his duties. Before considering the

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correctness or otherwise of the findings rendered by the respondent

No.2 - Additional Commissioner and as to whether the conclusion

about the petitioner being guilty of neglect in performing duties is

sustainable, it would be appropriate to refer to the position of law on

the question as to what can be said to be negligence on the part of a

Sarpanch or elected representative in performing his or her duties.

(28) In this context, a Division Bench of this Court, in the

context of a pari materia provision under the Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act, 1965, on the

expression "neglect" held that the said expression ought to mean gross

neglect, indicating that it is willful, intentional or culpable. It was

found that since removal from an elected office has a drastic

consequence, negligence or the expression neglect ought not to be

construed in its usual meaning. The relevant portions of the said

judgment of the Division Bench of this Court in the case of Baburao

Mathpati (supra) read as follows :

"50. We may observe that a confusion may arise by reading the words "neglect' and 'negligence'. The word 'neglect' appears to have a different connotation than the word 'negligence'. The word 'neglect' as earlier said means 'gross neglect', wilful, intentional, culpable or flagrant disregard of duties." It is mentioned earlier that the President of Municipal Council can be dislodged by resorting to the power

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conferred on the councillors by moving no-confidence motion under Section 55 of the Act for no grounds or reasons are required to be stated. The object behind this is that there should not be any stigma on the President so removed. We have also referred to Section 313 of the Act where the power is conferred on the State Government for supersession of the Municipal Council by appointing an administrator. There the word "mis-conduct" has been interpreted to mean "gross misconduct". Section 55A of the Act no doubt confers power on the State Government to remove the President on account of "misconduct, neglect of duties, incapacity to perform duties and disgraceful conduct." This provision sufficiently entails civil consequences and attaches stigma to the President and therefore, in order to remove a President on these grounds the order must be founded on strong grounds. Therefore, the word "neglect" must be understood from the gravity of the charges and therefore, the word "neglect" as used in the section means "gross neglect" which may be synonymous to the word "wilful, intentional or culpable as the case may be". There should be flagrant disregard of duties so as to call for removal of the President under Section 55A of the Act. Therefore, applying the 'golden rule' of construction of statute which has been recognised by the Apex Court, we have no hesitation to come to the conclusion that the word 'neglect' has a connotation as 'gross', 'wilful' or 'intentional' neglect. Here we are concerned with either gross neglect or gross statutory neglect on the part of the petitioner. We therefore, proceed to consider the other contention of the learned counsel in regard to the procedure to be followed when power under Section 55A of the Act is to be exercised."

(29) The said position of law laid down by the Division

Bench of this Court applies in the present also because the petitioner

as the elected Sarpanch has been removed from Office on the ground

that he was guilty of neglect in performing his duties. The material on

record must indicate that such neglect, if at all, was gross neglect,

willful or intentional on the part of the petitioner. With this backdrop,

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the material on record needs to be considered to examine the

correctness or otherwise of the impugned orders passed by the

respondents.

(30) Findings on Issue Nos.1 and 2 in the impugned

order of the respondent No.2 - Additional Commissioner dated

23.08.2021, show that they pertained to the alleged failure of the

petitioner to remove encroachment. It is found by the respondent

No.2 - Additional Commissioner that when removal of the said

encroachment was to be carried out from a School under the Gram

Panchayat, while a status quo order from a competent Court had been

obtained only by two encroachers, the process of removal of

encroachment was stayed at the behest of the petitioner for all the

encroachers. In this context, it is also found that the petitioner, as the

Sarpanch, was guilty of having called a meeting for passing

Resolutions by the Gram Panchayat by a majority of eight against six

members while concurrence of at least eleven members was required

for passing such a resolution to keep the process of removal of

encroachment in abeyance.

(31) In the context of the aforesaid findings, when the

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reply and the explanation therein submitted by the petitioner is

perused, it is found that when two of the encroachers had admittedly

obtained orders of status quo, from the competent Court, guidance was

sought by the Gram Panchayat and the petitioner from Officials as to

what was to be done in the matter as regards other persons, who had

allegedly encroached upon the said property. It was claimed by the

petitioner that when no such specific guidance was made available, a

meeting of the Gram Panchayat was fixed, wherein Resolution was

passed by majority to keep the process of removal of encroachment in

abeyance in respect of even those persons who had not obtained

orders of status quo from the Court. According to the petitioner, the

Gram Panchayat by majority was of the opinion that in such a

situation, it may be appropriate to wait for further orders of the Court.

It is an admitted position on record that after the monsoon season was

over, the encroachments were indeed removed.

(32) In such a situation, it needs to be examined whether

the petitioner individually can be held responsible for the sequence of

events. The record shows that the Gram Panchayat collectively in the

aforesaid meeting by majority decided to adopt the aforesaid course of

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action. As an elected body consisting of representatives elected by the

people for local self-Government, in situations that may arise

concerning action to be taken by the elected body, an individual cannot

be held solely responsible for a particular act or omission. The

respondent No. 2 - Additional Commissioner did not at all take into

consideration the explanation given by the petitioner and proceeded as

if the petitioner as the Sarpanch was solely and individually

responsible for the sequence of events, in the context of removal of

encroachment. This Court is of the opinion that the approach adopted

by the respondent No. 2 - Additional Commissioner was not justified,

inasmuch as the petitioner was singled out as the only person

responsible for the aforesaid turn of events.

(33) Finding No.3 rendered by the respondent No.2 -

Additional Commissioner in the impugned order dated 23.08.2021,

shows that the petitioner was found responsible for delay in deducting

and depositing income tax as well as GST. It was also found that the

petitioner was responsible for making payments in the context of

projects and development works in violation of the relevant rules and

in the absence of administrative approval.

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(34) Here again, the explanation tendered by the

petitioner was not discussed and properly considered by the

respondent No.2 - Additional Commissioner. The material on record

shows that the deductions pertaining to income tax and GST and

depositing the same within time was in the area of operation of the

Gram Sewak and the Village Development Officer. Reference was

made to circulars in that regard. The respondent No.2 - Additional

Commissioner failed to consider as to whether an elected Sarpanch

was to sit and make deductions towards GST and income tax and

deposit the same and if there was any delay in the same, it would

justify drastic action of removal under Section 39 of the said Act. The

aforesaid duties of making statutory deductions within time are

matters to be handled by the Officer specified as per procedure laid

down in Government Circulars and the elected Sarpanch cannot be

held individually responsible, if there is delay in performance of the

said duties. In the model of local self-Government, the elected

Sarpanch, Upa-Sarpanch and Members of the Gram Panchayat are

expected to collectively ensure development work for the benefit of

people. Delay in making statutory deductions and depositing them

cannot be said to be the individual duty of the elected Sarpanch and

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any delay in performance of the same cannot lead to a conclusion that

such a Sarpanch is guilty of gross, willful or intentional neglect,

justifying his removal under Section 39 of the said Act. The

respondent No.2- Additional Commissioner, therefore, erred in holding

against the petitioner on the said issue.

(35) Even as regards alleged violation of rules for taking

administrative sanction regarding development works, the petitioner in

his detailed reply before the Commissioner had referred to a

Resolution whereby administrative approval was granted for such

works. The date of the Resolution was specified and a copy of the

same was annexed. There was no discussion in the impugned order

dated 23.08.2021, passed by the Commissioner, as to why the said

explanation and the document placed on record was not acceptable

and despite such explanation the petitioner individually was to be held

responsible. As noted above, the Gram Panchayat as an elected body

collectively passed such Resolutions wherein approvals were granted

and therefore, the petitioner could not be said to have indulged in

gross, willful or intentional neglect of his duties.

(36) The respondent No.2 - Additional Commissioner,

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while rendering Finding No.4 against the petitioner held that he was

responsible for benefit given to two individuals under a Government

scheme pertaining to encouraging use of toilets. The petitioner had

explained in his detailed reply that the said persons were given such

benefit on the recommendation of the Zilla Parishad and when it was

found in the case of one of the individuals that he was not eligible for

the same, it was ensured that the amount disbursed was refunded by

the said individual by way of cheque.

(37) In the case of the other individual, it was explained

that the amount was not actually disbursed, when it was found that

the said person was not eligible. The said explanation has not been

dealt with by the respondent No.2 - Additional Commissioner, while

reaching adverse findings against the petitioner.

(38) As regards Finding No.5 in the impugned order,

indicating that financial loss was caused to the Panchayat due to the

act of the petitioner, it was found that again the explanation put forth

by the petitioner was not discussed and it was not stated as to why,

despite the explanation, adverse finding was being rendered against

him. In any case, there was no finding rendered as to why the

PAGE 29 OF 33

respondent No.2- Additional Commissioner concluded that the act of

omission or commission on the part of the petitioner had led to

financial loss. In fact, in the reply submitted by the petitioner, it was

stated, in the context of Finding No.5 in the impugned order, that rates

were called regarding annual rent from Government recognized Civil

Engineer and considering the condition of the building in question, the

rent was fixed based upon the report of the said Government

recognized Engineer. The same was finalized in a meeting of the Gram

Panchayat and all recognized procedures as laid down by the Zilla

Parishad were followed, thereby demonstrating that no financial loss

was actually caused to the Gram Panchayat. These aspects were not

considered by the respondent No.2 - Additional Commissioner, while

erroneously holding the petitioner individually responsible.

(39) As regards Finding No.6, pertaining to failure in

calling for tenders and approving them within time, it was explained

that tenders were opened a few days late because of the fact that there

were holidays due weekend and few festivals and thereafter, delay in

the entire process occurred because of the Covid - 19 Pandemic having

hit the nation in March 2020. The impugned order passed by the

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respondent No.2 - Additional Commissioner does not show

consideration of any of these aspects highlighted in the explanation

forwarded by the petitioner in his detailed reply.

(40) The respondent No.2- Additional Commissioner

simply referred to the stand taken by the petitioner in brief and then

proceeded to render the aforesaid six findings against him.

Thereupon, it was concluded that the petitioner was guilty of neglect

in performing his duties and on that basis, he was removed from the

elected office of Sarpanch. Despite the fact that the petitioner raised

detailed grounds of challenge in the appeal filed before the respondent

No.1, the said respondent simply repeated and concurred with the

findings of the respondent No.2 - Additional Commissioner, to dismiss

the appeal and to confirm the impugned order removing the petitioner

from the elected office of Sarpanch.

(41) This Court is of the opinion that the finding

rendered by the respondents in the impugned orders that the

petitioner was guilty of neglect in performing his duties are not

sustainable on the basis of the material available on record. The

material available on record could not lead to the conclusion that the

PAGE 31 OF 33

petitioner was guilty of gross, willful or intentional neglect, attracting

an order of removal from the elected office of Sarpanch. The stringent

standards laid down by the Division Bench of this Court in the context

of the pari materia provision of the Maharashtra Municipal Councils,

Nagar Panchayats and Industrial Townships Act, 1965, in the case of

Baburao Mathpati (supra), pertaining to the expression 'neglect', are

not satisfied by the material available on record, which the

respondents failed to appreciate while passing the impugned orders. It

is also found that in terms of the law laid down by the Supreme Court

in the case of Ravi Bhoir (supra), the stringent requirements of a

provision like Section 39 of the aforesaid Act are not satisfied in the

facts and circumstances of the present case, to justify removal of the

petitioner from the elected office of Sarpanch.

(42) Hence, it is found that the impugned order dated

23.08.2021, passed by the respondent No. 2- Additional

Commissioner, is unsustainable. It is found that, not only was the said

order rendered unsustainable due to the glaring procedural flaw of the

respondent No.3 - CEO himself acting as the complainant against the

petitioner and then conducting enquiry into the matter, but even on

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the merits of the matter, the material available on record does not

justify the adverse findings rendered by respondent No.2 - Additional

Commissioner against the petitioner, while concluding that the

petitioner deserved to be removed from the elected office of Sarpanch,

for being guilty of neglect in performing his duties.

(43) In the light of the above, this Court finds that the

impugned orders are unsustainable and they deserve to be quashed

and set aside.

(44) Accordingly, the writ petition is allowed. The

impugned orders are quashed and set aside. Consequently, it is held

that the petitioner deserves to continue as the elected Sarpanch of the

said Gram Panchayat.

(45)                       Rule made absolute in above terms. Pending

applications, if any, stand disposed of.



                                                [ MANISH PITALE J.]



Prity



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