Gujarat High Court
Vasantiben Vashrambhai Galchar vs Commissioner, Municipalities ... on 9 August, 2021
Bench: Sangeeta K. Vishen
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9277 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VASANTIBEN VASHRAMBHAI GALCHAR
Versus
COMMISSIONER, MUNICIPALITIES ADMINISTRATION, GUJARAT STATE
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Appearance:
MR RASHESH SANJANWALA, Senior Advocate with MR DIPEN
DESAI(2481) for the Petitioner(s) No. 1,10,11,12,13,14,15,2,3,4,5,6,7,8,9
MR BHARAT VYAS, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,3
MR D V KANSARA(7498) for the Respondent(s) No. 10,12,13,4,8
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 2
MR C.B. UPADHYAYA WITH MR. ANAND V THAKKAR(7091) for the
Respondent(s) No. 11,14,5,6,7,9
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 09/08/2021
ORAL JUDGMENT
1. With the consent of the learned advocates appearing for the
respective parties, the matter is taken up for final disposal.
2. Rule. Mr. Bharat Vyas, learned Assistant Government
Pleader waives service of notice of rule on behalf of the
respondent nos.1 and 3, Mr. Anand V. Thakkar, learned advocate
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
waives service of notice of rule on behalf of the respondent nos.5,
6, 7, 9, 11 and 14, Mr. D.V. Kansara, learned advocate waives
service of notice of rule on behalf of the respondent nos.4, 8, 10,
12 and 13 and Mr. Vijay H. Nangesh, learned advocate waives
service of notice of rule on behalf of the respondent no.2.
3. The petitioners are aggrieved by the order dated 18.6.2021
passed by the respondent no.1 - Commissioner, Municipalities
Administration (hereinafter referred to as "the Commissioner") in
exercise of the powers conferred under Section 37 of the Gujarat
Municipalities Act, 1963 (hereinafter referred to as 'the Act of
1963') whereby, the petitioners are removed as Councillors of the
respondent no.2-Dhanera Municipality (hereinafter referred to as
'the Municipality'). It is alleged that the order is passed with mala
fide intention because the petitioners belong to the Indian
National Congress (hereinafter referred to as 'INC') and are in
majority in the Municipality.
4. Mr. Rashesh Sanjanwala, learned Senior Advocate submitted
that election of President of the Municipality was declared by the
Deputy Collector, Dhanera, issuing agenda notice dated 7.8.2020
and elections were held on 20.8.2020. It is submitted that since
the ruling party was in minority, the show cause notices under
Sections 37 and 70 of the Act of 1993 were issued to the
petitioners and at that point of time, the proceedings were
initiated only with a view to removing/disqualifying the
petitioners so that they cannot participate in the elections of the
President and Vice-President.
4.1 It is submitted that the show cause notice under Section 37
of the Act of 1963 was issued considering the inquiry report
dated 12.6.2020 and 15.7.2020 recommending to initiate the
proceedings against all the Councillors of the Municipality.
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
However, the notice under Section 37, was issued only to the
Councillors belonging to the INC though all the 13 charges for
which the notice has been issued, resolutions whereof have been
passed in general body meeting when other Councillors
belonging to the opposite party were also present, and the
decision taken were unanimous.
4.2 It is submitted that the scope of Section 37 of the Act of
1963, has been succinctly discussed by this Court in the case of
Virbalaben Girishbhai Trivedi vs. State of Gujarat reported in 2010
(1) GLH 753. This Court has held that mere irregularity or even an
illegality in the discharge of duties or causing loss to the
Municipality does not by itself empower the State Government or
its delegate to remove a Councillor or President from the elected
office, and there must be a finding supported by evidence to
show that the concerned Councillor or the President/Vice-
President of the Municipality has been guilty of misconduct in
discharge of his duties or of disgraceful conduct or is incapable of
performing his duties under the Act. This Court, emphasised that
it must be remembered that the President/Vice-President or a
Councillor of a Municipality hold an elected office and the order of
removal of such elected representative cannot be lightly passed
without giving findings supported by evidence to show that one
or the other conditions stipulated in Section 37(1) is satisfied.
4.3 Further reliance is placed on the judgment in the case of
Sharda Kailash Mittal vs. State of M.P. reported in (2010) 2 SCC
319. It is submitted that Section 41A is in pari materia with
Section 37 of the Act of 1963, the Apex Court while explaining the
scope of section 41A, has held that it gives power to the State
Government to remove the President/Vice-President or Chairman
of a committee on grounds mentioned therein. The judgment in
the case of Tarlochan Dev Sharma vs. State of Punjab reported in
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(2001) 6 SCC 260 has been referred wherein, it has been held
that a singular or casual aberration or failure in exercise of power
is not enough; a course of conduct or plurality of aberration or
failure in exercise of power and that too involving, dishonesty of
intention is. The legislature could not have intended the occupant
of an elective office, seated by popular verdict, to be shown exit
for a single innocuous action or error of decision. The Apex Court
in paragraph 18, held that keeping in view the nature of the
power and the consequences that flows on exercise of powers it
has to be held that such power can be invoked by the State
Government only for the very strong and weighty reason. Such
power is not to be exercised for minor irregularities in discharge
of duties by the holder of elected post.
4.4 Reliance is placed on the judgment in the case of Ravi
Yashwant Bhoir vs. The Collector, Raigad reported in (2012) 4 SCC
407. It is submitted that the case before the Apex Court arose out
of the order removing the President. While inviting the attention
to paragraph 3, where in charges have been set out, it is
submitted that the charges were, inter alia, for not taking any
action and supporting the unauthorised construction. It is
submitted that one of the charges, was as regards irregularity in
the tender process. The Apex Court has examined the term
misconduct in detail and it has been held that the expression
'misconduct' has to be understood as a transgression of some
established and definite rule of action, a forbidden act, unlawful
behaviour, willful in character. It has also been observed that
misconduct is to be measured in terms of the nature of the
misconduct and the court must examine as to whether
misconduct has been detrimental to the public interest. It is
submitted that so far as the present case is concerned, there are
no allegations that misconduct is detrimental to the public
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
interest.
4.5 It is submitted that while adverting to the Seventy-fourth
Amendment Act to the Constitution and adding of parts IX and
IXA, the Apex Court has also held that there can be no quarrel
with the settled legal proposition that removal of a duly elected
member on the basis of proved misconduct is a quasi-judicial
proceeding in nature and therefore, the principles of natural
justice are required to be given full play and strict compliance
should be ensured, even in the absence of any provision
providing for the same. While dealing with the aspect of recording
of reasons, it is submitted that the Apex Court has held that in
administrative matters, the reasons should be recorded as it is
incumbent upon the authorities to pass a speaking and reasoned
order. While laying emphasis on paragraph 46, it is submitted
that the Apex Court has held that right to reason is an
indispensable part of a sound judicial system, reasons at least
sufficient to indicate an application of mind of the authority
before the Court. Another rationale is that the affected party can
know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the
order made; in other words, a speaking out. It is further
submitted that considering the order passed by the authority, it
would be clear that except the cosmetic changes, no reasons are
recorded inasmuch as, the reasons which are germane and
relevant, has been missed out. The reason is germane to pass the
order or sine qua non considering the fact that it is a drastic step,
which is taken for removal of the elected representative.
4.6 In the aforesaid backdrop, Mr. Sanjanwala, learned Senior
Advocate, invited the attention of this Court to the order dated
18.6.2021 to contend that assuming that there are illegalities and
irregularities, though not, however, the same are of not such a
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nature allowing invocation of powers under Section 37 of the Act
of 1993. It is submitted that in all, there were 13 charges against
all the members of the Municipalities and out of which, charge
nos.1, 2, 4, 7, 10, and 12, were held to be proved while charge nos.3,
5, 6, 8, 9, 11, 13 were held not be proved and therefore dropped .
4.7 It is submitted that while laying the charges, it has not
been indicated that what is the procedure much less any
requirement of law. That the charges are also silent about non-
observing of the statutory provisions or any process. The
provisions of law should have been pointed out so also the non-
observance. It is next submitted that there has to be some loss
suffered by the Municipality; however, nothing of the sort has
been mentioned in the show cause notice. The allegations, are
absurd, and they do not call for removal of the members from the
Municipality. It is submitted that there are no allegations of
favouritism, nepotism, financial loss etc. Had it been the
allegation of the favouritism etc., it would permit the Municipality
to take action, however, the Municipality has carried out the
procedure and at the most, it would be a procedural lapse.
4.8 It is submitted that so far as the two charges are concerned,
as regards construction on the Government land are purely on
hypothesis. It is submitted that there already exists a school,
which is more than 53 years old. Further, there are allegations
that the off-line tendering process has been undertaken instead
of online tendering process. It is submitted that what weighed
with the authority is that the Municipality has gone for off-line
tendering; however, similar practice was being adopted by the
previous body of floating tender off-line; which charges have
been dropped. It shows that it is mere irregularity of procedure
and will not constitute misconduct. While reiterating, it is
submitted that the order is nothing, but with cosmetic changes
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
with bit of elaboration, however, reasons are still absent. It is
therefore, submitted that the order deserves to be quashed and
set aside on merits as well as on the ground that it lacks reasons.
5. On the other hand, Mr. Bharat Vyas, learned Assistant
Government Pleader, appearing for the respondent authority has
submitted that a detailed affidavit has been filed by the State
Government substantiating the order under challenge. which has
been passed after considering all the aspects on merits as well as
on law. While narrating the earlier round of litigation, it is
submitted that as is discernible, pursuant to the direction of this
Court, notices were issued and hearing was fixed. Sufficient
number of opportunities were provided. Also, explanation of Chief
Officer, Dhanera Nagarpalika was called for, who in turn, has sent
his reply on 12.4.2021. After considering the arguments of the
petitioners, the explanation offered by the Chief officer, that the
reasoned order has been passed, inter alia, holding that all the
six charges, have been proved.
5.1 While dealing with charges, it is submitted that so far as the
charge no.1 is concerned, the authorities found the action of the
Municipality in awarding tender in breach of duty. So far as
charge no.2 is concerned, it was found that despite the members
were aware about the fact of encroachment, carried out the
construction of shed on the Government land, incurring
expenditure of Rs.50,61,253/- and if the encroachment is directed
to be removed, Municipality would suffer an amount of
Rs.50,61,253/-. So far as charge no.4 is concerned, authority
found it having been proved on the ground that expenses were
made over the Government land without obtaining any
permission, which would be an encroachment and therefore,
according sanction, was not in the interest of the Municipality. So
far as charge no.7 is concerned, the work of water supply
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
involving an amount of Rs.2,66,80,000/- was awarded without
carrying out online tendering. It is submitted that when the
tender is awarded for such a huge amount, it could not have
been by way of off-line tender and it ought to have been invited
through online tender. Such a decision of the body was not in
conformity with the provisions of law and hence, the charge was
found to be proved. So far as the charge no.10 is concerned, the
construction work was awarded by inviting off-line tender without
following the due procedure and resultantly, causing financial loss
to the Municipality. Clearly, the tenders were floated off-line
instead of online tender. Such charge was also found to be proved
inasmuch as Councillors were present and have voted in favour of
passing of the resolution. Similarly, charge no.12 was for
installation of five statues, the work was also without inviting
online tender and therefore, it was against the legal provisions
causing financial loss to the Municipality. Therefore, all the
charges were held to be proved considering the fact that the
Councillors have taken the decision, disregarding the applicable
provisions and law.
5.2 It is also submitted that all the Councillors including the
petitioners have participated in the meeting and accorded their
sanction. The conduct of the Councillors were not in conformity
with the guidelines and provisions of law and therefore, the
decisions and the conduct cannot be said to be a mere
irregularity when, huge financial expenses have been incurred
over the Government land on an assumption of getting approval.
Such conduct is nothing, but loss to the public exchequer and
therefore, misconduct on the part of the petitioners and others.
The authority has rightly passed the order dated 18.6.2021 under
Section 37 by which, the petitioners have been removed for guilty
of misconduct with a further direction to issue fresh show cause
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
notice to other Councillors who have participated in such
meetings and accorded their sanction.
5.3 In support of the aforesaid submission, reliance is placed on
the judgment of the Apex Court in the case of Baldev Singh
Gandhi vs. State of Punjab reported in (2002) 3 SCC 667 to
contend that the Apex Court, has discussed the term 'misconduct'
to mean wrong or improper conduct, unlawlful behaviour,
misfeasance, wrong conduct, misdemeanour etc. There being
different meaning of the expression 'misconduct', the expression
"misconduct", has to be construed with reference to the subject
and the context wherein said expression occurs. Regard being
had to the aims and objects of the statute. It is submitted that
the Apex Court has held that the prime object of the local body is
to serve the local people and to provide amenities and service to
the people residing within the Municipality.
5.4 Reliance is also placed on the judgment of this Court in the
case of Mustaq Ahmed Hasanbhai Mansuri vs. V. C. Trivedi
reported in 2003 (1) GLH 745. It is submitted that this Court,
while explaining the term "misconduct" used in the phrase "has
been guilty of misconduct in the discharge of his duties" has held
that misconduct means misconduct in office. It has been
observed that misconduct is a transgression of some established
and definite rule of action, a forbidden act, a dereliction from
duty, unlawful behaviour, wilful in character, improper or wrong
behaviour; whereas the word "disgrace" means ignominy; shame;
dishonour. While discussing in length the terms "misconduct" and
"disgraceful" in connection with the provisions of Section 37, it
has been held that the said provision will have to be read as if,
had been inserted after the words "has been guilty of misconduct
in the discharge of his duties". So read, it becomes evident at
once that the subsequently following phrase "or of any
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disgraceful conduct" has no reference to the discharge of his
duties and that disgraceful conduct can be committed otherwise
also. Reliance is placed on the judgment of this Court in the case
of Nitinkumar M. Brahmbhatt vs. State of Gujarat reported in
2006 (3) GLR 2615.
5.5 Further reliance is placed on the judgment of this Court in
the case of A.I. Patel vs. State of Gujarat reported in 1994 (2) GLR
1402. While dealing with the provisions of the Gujarat Panchayats
Act, this Court has held that when there are findings of facts
recorded, no interference is called for unless the impugned order
or decision is shown to be manifestly perverse, illegal or against
the provision of law or if it is shown to be actuated with ulterior
and extraneous considerations like male fides. In short, the power
of superintendence contemplated by the provision of Article 227
has been limited in a narrow compass. It has also been held that
a person knowing what he is doing, also being conversant with
the consequences, if does something which is wrong, bad, illegal
or causing loss or damages, his conduct obviously would
tantamount to misconduct. It is therefore, submitted that the
present case is such. There is no denying of the fact that the
petitioners have committed misconduct, knowing full well that
their action and decision, has caused loss to the Municipality. It is
submitted that the petitioners are the members - elected
representatives being trustees are expected to take care of the
people at large and the coffers of the Municipality as well.
5.6 While adverting to the contention of the petitioners as
regards haste having been shown for the election of President, it
is submitted that such contention is misplaced. It is submitted
that that the election for the post of President, was an
independent action initiated prior in point of time; whereas, the
order of removal, has been passed on 18.6.2021, against all the
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Councillors, including the petitioners and the private respondents.
It is submitted that as per information received, the post of
President fell vacant due to the death of the then President Smt.
Jagalben Kanaji Thakor and therefore, the office of the Dhanera
Nagarpalika had sent the requisition under section 42(3) of the
Act of 1993 to hold election of the President. Apropos the said
communication, the Collector, Banaskantha, vide order dated
15.6.2021, fixed the meeting for election of the President to take
place on 19.6.2021; appointing the Deputy collector, Dhanera as
Presiding Officer who, in turn, issued a notice to all the 27
Councillors; whereas, the order has been passed on 18.6.2021
and therefore, on the date of the election, 15 Councillors having
been removed, were not eligible for voting. The Presiding Officer
had therefore, conducted the elections on 19.6.2021 for the post
of President, Dhanera Nagarpalika. It is submitted that the
election of President and the removal of Councillors are
independent and distinct cause. It is mandatory, as per the
provisions of the Act of 1963 to hold the elections, if the post fall
vacant and there is nothing wrong when the Collector upon
receipt of the requisition, has scheduled the election to be held
on 19.6.2021.
5.7 It is next submitted that so far as the election to the post of
Vice-President is concerned, necessary request under section
42(3) was communicated vide letter dated 29.6.2021. Upon
receipt whereof, the Collector, Banaskantha, vide order dated
14.7.2021, fixed 20.7.2021, the date for holding the election for
the post of Vice-President. The Deputy Collector, being the
Presiding Officer, has issued agenda notice dated 15.7.2021 to all
the Councillors to hold the election. It is submitted that holding
election on the vacant post, is an obligation upon the authority
under the provisions of the Act of 1963 and more particularly,
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Section 42 and therefore, there is no haste shown on the part of
the authority in holding the election.
5.8 It is next submitted that the present is the third round of
litigation. The petitioners were provided fullest opportunity of
hearing, which is clear from the order dated 18.6.2021 and
therefore, the order does not require any interference. Further,
owing to the conduct of the petitioners, there is a loss to the
public exchequer. Huge expenses have been incurred, knowing
full well that it is an encroachment and likely to be removed; the
contract for water supply was running into crore of rupees and
which should have been floated by adopting online procedure and
off-line procedure ought to have been avoided. Therefore, the
decisions taken by the petitioners and the action would definitely
fall within the expression "misconduct" and therefore, the order
dated 18.6.2021 is just and legal. It is submitted that the
Presiding Officer should be allowed to proceed with the election
of the Vice-President and the stay granted by this Court may be
vacated.
5.9 It is submitted that the order dated 18.6.2021 passed by
the Commissioner, is legal and valid. By said order, the
Councillors, who were present in the meeting and supported the
resolutions, were held to be guilty. It is further submitted that
since the private respondents were the appellants/applicants,
after passing of the order dated 18.6.2021, they have been
issued notice dated 3.7.2021, requiring them to show cause as to
why action should not be initiated under Section 37 of the Act of
1963. It is reiterated that the order dated 18.6.2021, is passed in
accordance with law and after providing fullest opportunity of
hearing, examining the record and evidences. It is submitted that
the misconduct, is not a negligible irregularity but, a misconduct
by which, the procedure prescribed under the law has been
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defied in awarding the work contracts/tenders, causing a huge
financial loss to the Municipality and therefore, the action of the
authority in passing the order dated 18.6.2021, removing the
petitioners, is in conformity and does not require interference.
6. Mr. C.B. Upadhyaya, learned advocate appearing with Mr.
Anand B. Thakkar, learned advocate for the respondent nos.5, 6,
7, 9, 11 and 14, at the outset, submitted that the facts are
undisputed, so also the role of the petitioners. It is submitted that
prior to the issuance of the show cause notice, a report was
sought for and report dated 15.7.2020 was submitted in the
matter of commission of illegalities and corruption against the
responsible members. The inquiry report, is supported by
evidence which is self-explanatory.
6.1 It is submitted that the petitioners despite being in
knowledge of everything, have taken the decision and therefore,
the intention of the petitioners from the very beginning was
dishonest. Show cause notice was issued earlier and the order
dated 23.12.2020 came to be passed under section 37 of the Act
of 1963. This Court passed the order dated 5.2.2021, quashing
the order dated 23.12.2020 and the petitioners were given one
more opportunity and after giving opportunity, the order dated
18.6.2021 has been passed. Therefore, it cannot be said that any
error has been committed by the Commissioner.
6.2 While adverting to the contention that the order contained
reasoning of three lines, it is submitted that reasons are
recorded. The order has been passed after considering the reply.
While adverting to charge no.1, it is submitted that reasons are
very much discernible from the discussion. The tenders were
allotted at the higher rate of 9% and therefore, there was a direct
loss to the Municipality. Though explanation has been given that
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the negotiation had taken place and after negotiation, it was
reduced to 9% that is not relevant, test is whether it has caused
loss to the public exchequer. Clearly, loss has been caused to the
Municipality by the decision of the Councillors. It is also submitted
that the contention of the petitioners that it was a unanimous
decision, is a misconception for, the decision was of majority and
not unanimous. Such decision was also taken with a dishonest
intention since the inception.
6.3 While adverting to charge no.2, it is submitted that majority
of the petitioners and the members, were aware of the fact of the
proceedings of Public Interest Litigation filed against the
encroachment and direction to the Collector. The petitioners were
also aware that encroachment is over the Government land,
however, the resolution was passed, prior to placing it before the
general body. It is submitted that the decision was taken on
30.10.2018; whereas, tender was floated on 13.9.2018, i.e., prior
to taking of the decision. While adverting to charge no.4, it is
submitted that decision of construction of shed at Shivnagar
Dumping Shed was objected to and it is incorrect to contend that
the decision was unanimously taken in the meeting dated
30.10.2018 vide Resolution No.27(1). It is submitted that the
resolution was passed by majority, despite being aware from the
very inception that the encroachment is on the Government land,
there was no need available to the Municipality to have taken the
decision of incurring expenditure.
6.4 It is further submitted that so far as charge no.7 is
concerned, authority though has observed that all the members
have taken the decision, in fact, decision is of majority and not
unanimous. It is submitted that vide resolution dated 27.3.2018,
the tender was floated off-line, however, the notice was issued on
7.3.2018; tenders were called for with predetermined agency in
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mind. It is submitted that when the amount involved in the
contract was to the tune of Rs.2,66,80,000/-, proper agency
ought to have been involved and therefore, considering the
nature of the resolution passed and tender awarded for such a
big amount by way of an off-line tender, the dishonest intention is
writ large. While adverting to charge no.12, it is submitted that
work was carried out by off-line tender and that too for five
places and for all the five places, a single person has been
awarded the work, which would be 31% higher than the normal
rate.
6.5 Reliance is placed on the judgment in the case of
Nitinkumar M. Brahmbhatt (supra). While inviting attention to
paragraphs 47, 48 and 49, it is submitted that it has been
observed that when the elected body starts acting in its own
favour or in favour of those only, who are related to them, then, it
acts dishonestly. A dishonest action cannot be termed as good
conduct it obviously would be misconduct. It is therefore,
submitted that intention of each and every member is required to
be gone into. While concluding, it is thus submitted that each and
every contention raised by the petitioners have been considered.
The authority has rightly passed the order and the order requires
to be confirmed.
7. Mr. Rashesh Sanjanwala, learned Senior Advocate, while
dealing with the contention raised on behalf of the respondent-
State Government as well as the private respondents submitted
that the private respondents have filed reply before the
Commissioner, however, no documents have been produced. It is
submitted that even in the captioned proceedings, there was
opportunity available to the private respondents to file the reply,
however, they chose not to file. Therefore, it would be
impermissible for the private respondents to have gone beyond
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the record, because what has been argued was never there
before the authority. It is submitted that the contentions raised by
Mr. Upadhyaya, learned advocate appearing for the private
respondents, are not found in the reply, and therefore, should not
be accepted.
7.1 It is further submitted that the private respondent, has
chosen not to challenge the order and therefore, the order dated
18.6.2021, has attained finality and is binding on all the parties
and therefore, it would be impermissible for the private
respondents to contend that the findings recorded qua them are
incorrect, without challenging them. It is submitted that whatever
is argued and having been recorded, it would not be open to the
Commissioner, to take contrary view, however, it would be no
surprise that the Commissioner can go contrary to his own
decision. It is submitted that if at all the private respondents were
aggrieved; the order should have been immediately challenged.
The order which is confirmed is being sought to be termed as if
seeking exoneration. Such a stand cannot be permitted.
7.2 It is submitted that in the earlier round of litigation, this
Court, while passing the order dated 5.2.2021, expected the
authority to observe the requirement enunciated by the Apex
Court in the case of State of Orissa vs. Chandra Nandi passed in
Civil Appeal No.10690 of 2017 wherein, it has been observed that
every judicial or/and quasi-judicial order passed by the
Court/Tribunal/Authority concerned, which decides the lis
between the parties, must be supported with the reasons in
support of its conclusion. The parties to the lis so also the
appellate/revisionary Court while examining the correctness of
the order, are entitled to know as to on which basis, a particular
conclusion is arrived at in the order. In the absence of any
discussion, the reasons and the findings on the submissions
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urged, it is not possible to know as to what led the Court/Tribunal/
Authority for reaching to such conclusion. It is submitted that the
Court expected to record the basis for arriving at the conclusion,
however, neither there is any basis offered nor the discussion and
reasons cannot be said to be sufficient for coming to the
conclusion about the misconduct.
7.3 Reliance is placed on the judgment of the Apex Court in the
case of Mohinder Singh Gill vs. The Chief Election Commissioner,
New Delhi reported in (1978) 1 SCC 405. It is submitted that the
Apex Court has held and observed that when a statutory
functionary makes an order based on certain grounds, its validity
must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or
otherwise. Reliance is also placed on the judgment of the Apex
Court in the case of Dr. T.P. Senkumar, IPS vs. Union of India
reported in (2017) 6 SCC 801 to contend that the Apex Court, has
declared that when an order is passed in exercise of a statutory
power on certain grounds, its validity must be judged by the
reasons mentioned in the order. Those reasons cannot be
supplemented by other reasons through an affidavit or otherwise.
Were this is not so, an order otherwise bad in law at the very
outset may get validated through additional grounds later
brought out in the form of an affidavit.
7.4 So far as the reply of the State Government is concerned, it
is submitted that the entire scope has been widened because,
what has not even been discussed and observed in the order
dated 18.6.2021, is reflected in the affidavit by producing
additional documents of which, there is not even a whisper in the
order.
7.5 While inviting the attention to the reply dated 18.3.2021
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
filed before the authority, it is submitted that each and every
aspects have been explained by the petitioners, however,
considering the response by the petitioners to the charges, vis-à-
vis the reasons given by the authority, it is clear that the same
cannot be construed as a reason for which, the matter was
remanded back to the authority, by this Court. It is submitted that
the conclusions are same as given in the show cause notice.
7.6 While briefly dealing with the charges, it is submitted that
so far as charge no.1 is concerned, the only allegation is that the
tender has been awarded at a higher rate of 9%, however, what
was submitted in the reply, it has not been considered. Moreover,
paragraph 3 of the order, while dealing with the charge no.1,
specifically records that the resolution has been unanimously
passed in the general body meeting dated 27.3.2018 and
24.7.2018. While referring to charge no.2, it is submitted that it
was brought to the notice of the Commissioner that the school
was already in existence and it was at the instance of a letter
dated 19.4.2018 of the Principal of the Primary School which
requested for construction of the prayer shed, reason behind
entire prayer hall having been damaged. Further, the
Commissioner has observed that the decision was taken in the
general body meeting on 27.3.2018, which was unanimously
approved in the meeting dated 24.7.2018. It is submitted that as
is discernible from the observation, if one discards the
explanation, the paragraph 3 can hardly be regarded as reasons.
Similarly, so far as charge no.7 is concerned, in the show cause
notice, the allegation was that since the work was beyond Rs.5
lakhs, it has undertaken off-line tender instead of online tender.
The only allegation was that above Rs.5 lakhs, the Municipality
ought not to have opted for off-line tender and online tender
should have been observed. Sufficient explanation was offered in
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
the reply by the petitioners to the effect that pursuant to the
notice inviting tenders, the tender was awarded after due
consideration. Further, third party inspection report regarding
satisfactory completion of the work has also been submitted. The
expenses were approved unanimously by all the members,
however, if findings are seen, it cannot be said that they are the
findings. While referring to charge no.10 in the show cause
notice, it is submitted that the charge was to the effect that the
expenses have been approved without following the procedure.
The reply was also filed by the petitioners, inter alia, pointing out
that the decision to undertake off-line tender was taken by the
President and the Chief Officer, however, no action is taken
against them and the petitioners are subjected to the present
proceedings though they have not taken the initial decision.
Further, the tenders were issued by publishing the notice in the
daily newspapers and the lowest bidder has been awarded the
work and therefore also, it is incorrect to say that the tender
process has not been followed. It is submitted that reasoning
given dealing with the said contention is that, instead of
undertaking the procedure as per law, the members have acted
against it. If the charge is about approving expenses, then the
authority concerned ought to have pointed out that the approval
is against which provisions of law and/or rules; however, the
findings are silent. Similarly, charge no.12 was about off-line and
not online tender. A detailed reply was also offered that it was a
unanimous decision taken in the general body meeting dated
27.3.2018, expenses were approved by all the members and
thereafter, the tenders were invited. Pursuant whereof, the
agencies participated and it was decided to give work order to
the lowest bidder-L1 and the work has been satisfactorily
completed and hence, no illegality was committed. It also states
the decision to undertake the work so also to approve the
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
expenses was a unanimous decision by the Municipality and
hence, the proceedings against the petitioners were completely
illegal. The findings recorded by the authority, can hardly be said
to be the findings. Though the Commissioner has recorded that it
is unanimous decision, and held responsible all the members,
however, the petitioners have been subjected to the removal
under Section 37 of the Act of 1963; whereas, notices have been
issued to the private respondents.
7.7 It is submitted that when the matter was remanded with a
specific direction recording the principles enunciated by the
Hon'ble Supreme Court that there has to be a discussion issue-
wise, and the basis; nothing of that sort has been recorded.
Therefore, on the face of it, the order does not meet with the
expectation of the remand. The petitioners, have given valid
reasons, however, it is easy to allege mala fides forgetting that all
the resolutions are passed by the unanimous decision and
therefore, the contention of dishonest intention is completely
misconceived. While concluding, it is submitted that assuming
that the reasons do exist; in two judgments of the Hon'ble
Supreme Court, it has been held that every illegality cannot be
construed as misconduct so as to cover within the sweep of
Section 37. That after a span of three or four years, 13 charges
have been inflicted of which, 7 charges are dropped and if one
sees in totality, these charges are there which are the reasons to
remove the petitioners. The Apex Court has clearly held that
misconduct has to be construed in the context of the statute and
purpose to be achieved. In view of the arguments advanced and
law on the issue, it is urged that the petition deserves to be
allowed.
8. Heard Mr. Rashesh Sanjanwala, learned Senior Advocate
appearing with Mr. Dipan Desai, learned advocate for the
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
petitioners, Mr. Bharat Vyas, learned Assistant Government
Pleader for the respondent nos.1 and 3, Mr. C.B. Upadhyaya,
learned advocate appearing with Mr. Anand V. Thakkar, learned
advocate for the respondent nos.5, 6, 7, 9, 11 and 14.
9. Mr. D.V. Kansara, learned advocate appearing for the
respondent nos.4, 8, 10, 12 and 13 and Mr. Vijay H. Nangesh,
learned advocate appearing for the respondent no.2, have not
made any submissions.
10. Learned counsel appearing for the respective parties have
made host of arguments and cited judgments. The merits and
demerits of the charges have also been argued. After careful
consideration of the arguments advanced by the learned counsel
appearing for the respective parties, this Court is of the opinion
that though the matter was remanded back to the office of the
Commissioner, Municipalities, to assign reason and pass the
order, the order does not meet the expectation of the remand
inasmuch as, the order dated 18.6.2021, is bereft of any reasons
and the petition deserves to be allowed on this count alone, as
discussed herein below.
11. Before proceeding further, the brief facts are that the
petitioners are the Councillors of Dhanera, Nagarpalika. Show
cause notice under Section 37 of the Act of 1963, came to be
issued on 6.8.2020 for 13 charges, which was followed by the
order dated 23.12.2020 whereby, out of 13 charges, charge
nos.3, 5, 6, 8, 9, 11 and 13 were dropped and for rest of the
charges, the petitioners were held guilty. In the earlier round of
litigation, the petition being Special Civil Application No.670 of 2021
was filed before this Court. This Court, was of the clear opinion that
the order dated 23.12.2020, does not reflect the reasons. While
considering various judgments of the Apex Court as well as High
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
Courts, this Court was of the opinion that the order of the
Commissioner, does not satisfy the criteria prescribed in the
decisions inasmuch as, it is not a speaking reasoned order. This
Court expected the Commissioner to offer the reasons, discussion
and basis on which the findings have been arrived at. This Court,
vide order dated 5.2.2021 remanded the matter back, observing
in paragraph 17 as under: -
"17. In view of above facts and circumstances, the interest of
justice would be served for all the concerns, if the petition
is disposed of by giving the following directions:
i) The impugned order dated 23.12.2020 and consequential
order dated 28.12.2020 are hereby quashed and set aside and
the matter is remanded back to respondent no.1 to decide
afresh de-novo.
ii) Respondent no.1 shall issue a notice of hearing to the
petitioners within a period of two weeks from the date of
receipt of this order fixing the date of hearing within two weeks
and thereafter, hear the petitioners or their representatives,
consider the submissions in detail along with the documents to
be relied upon on behalf of the petitioners and pass a detailed
reasoned speaking order considering such submissions by
giving reasons to arrive at the conclusion without being
influenced by earlier order dated 23.12.2020 in accordance
with law. Such exercise shall be completed within four weeks
from the date of hearing given to the petitioners. Respondent
no.1 is again reminded to keep in mind the settled legal
position while passing the order in the capacity of quasi-judicial
authority exercising jurisdiction under section 37 of the Act,
1963."
12. Perceptibly, the order under challenge does not meet
with the directions. This Court has categorically directed to
consider the submissions in detail along with the documents
and pass a detailed reasoned speaking order, and giving
reasons to arrive at the conclusions. It has been directed that
the Commissioner, while doing so, shall keep in mind the
settled legal position in the capacity of quasi-judicial authority
exercising jurisdiction under Section 37 of the Act of 1963.
This Court, referred to the judgment dated 1.4.2019 of the
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
Apex Court in the case of State of Orissa vs. Chandra Nandi
(supra). In the said judgment, the Apex Court, has held that
every judicial or/and quasi-judicial order passed by the
Court/Tribunal/Authority concerned, which decides the lis
between the parties, must be supported with the reasons in
support of its conclusion. It has been held that the parties to
the lis and so also, the appellate/revisionary Court while
examining the correctness of the order are entitled to know as
to on which basis, a particular conclusion is arrived at in the
order. In the absence of any discussion, the reasons and the
findings on the submissions urged, it would not be possible to
know as to what led the Court/Tribunal/Authority for reaching
to such conclusion.
13. Further, the Apex Court, in another decision in the case
of M/s. Kranti Associates Pvt. Ltd. vs. Sh. Masood Ahmed Khan
reported in (2010) 9 SCC 496 has held that reasons have
virtually become as indispensable a component of a decision
making process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative bodies. The
Apex Court while referring to the earlier judgments
summarised the principle in paragraph 47, wherein it has been
observed thus:-
"47. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons,
even in administrative decisions, if such decisions affect anyone
prejudicially.
b. A quasi-judicial authority must record reasons in support of its
conclusions.
c. Insistence on recording of reasons is meant to serve the wider
principle of justice that justice must not only be done it must also
appear to be done as well.
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
d. Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi-judicial or even
administrative power.
e. Reasons reassure that discretion has been exercised by the
decision maker on relevant grounds and by disregarding
extraneous considerations.
f. Reasons have virtually become as indispensable a component of
a decision making process as observing principles of natural justice
by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior
Courts.
h. The ongoing judicial trend in all countries committed to rule of
law and constitutional governance is in favour of reasoned
decisions based on relevant facts. This is virtually the life blood of
judicial decision making justifying the principle that reason is the
soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as
different as the judges and authorities who deliver them. All these
decisions serve one common purpose which is to demonstrate by
reason that the relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in the justice
delivery system.
j. Insistence on reason is a requirement for both judicial
accountability and transparency.
k. If a Judge or a quasi-judicial authority is not candid enough
about his/her decision making process then it is impossible to
know whether the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
l. Reasons in support of decisions must be cogent, clear and
succinct. A pretence of reasons or `rubber-stamp reasons' is not to
be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of
restraint on abuse of judicial powers. Transparency in decision
making not only makes the judges and decision makers less prone
to errors but also makes them subject to broader scrutiny. (See
David Shapiro in Defence of Judicial Candor (1987) 100 Harward
Law Review 731-737).
n. Since the requirement to record reasons emanates from the
broad doctrine of fairness in decision making, the said requirement
is now virtually a component of human rights and was considered
part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain EHRR, at
562 para 29 and Anya vs. University of Oxford, wherein the Court
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
referred to Article 6 of European Convention of Human Rights
which requires,
"adequate and intelligent reasons must be given for judicial
decisions".
o. In all common law jurisdictions judgments play a vital role in
setting up precedents for the future. Therefore, for development of
law, requirement of giving reasons for the decision is of the
essence and is virtually a part of "due Process"."
14. Therefore, it is an obligation upon the judicial, quasi-judicial
or even an administrative authority to record the reasons for,
recording of reasons have virtually become as indispensable a
component of a decision making process as observing principles
of natural justice by judicial, quasi-judicial and even by
administrative bodies. Reasons facilitate the process of judicial
review by superior Courts. It has also been held that reasons in
support of decisions must be cogent, clear and succinct. A
pretence of reasons or `rubber-stamp reasons' is not to be
equated with a valid decision making process.
15. Therefore, in view of the above well-settled provision,
reasons are the basis of the conclusions arrived at by considering
the material and evidence available on record. Recording of the
reasons is the essence of observance of the principles of natural
justice and mere pretence of recording reasons, is not in the
furtherance of fair play. When the authority passes the order and
records the reasons, it should be supported by the evidence and
documents available on record. Giving findings or recording
reasons without indicating the basis, would be a formality to be
considered as a half-hearted inquiry. The conclusion should be
supported by supporting material, clearly indicating what
weighed with the authority concerned to come to such a
conclusion. Without referring to the documents and straightaway
concluding either in favour or against the party, it cannot be said
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
that the decision, has been arrived at in a fair and legal manner.
In the present case, though this Court had remanded the matter
to the Commissioner, discussing the principle at length,
incorporating all the judgments so as to facilitate the
Commissioner to record his reasons, the Commissioner had
exhibited the pretence of giving reason. Mr. Rashesh Sanjanwala,
learned Senior Advocate is justified in contending that in the
earlier order, there were no reasons and in the present order, it is
only cosmetic change with bit of elaboration, which cannot be
construed as reasons. This Court is in full agreement with said
contention.
16. The order dated 18.6.2021 and more particularly, the
findings cannot be construed to be the reasons inasmuch as,
neither the basis nor any discussion is coming forth except
referring in brief about the fact and conclusion that the charge is
proved. Briefly touching the nature of reasons, it would come out
that they cannot be said to be reasons in terms of the order
dated 5.2.2021. So far as charge no.1 is concerned, the reasons
are stated in paragraph 3, which records to the effect that tender
was approved after negotiation and accepting the tender at the
higher rate of 9%, and the resolution being passed unanimously,
the members present in both the meetings are responsible. As
against this, if the reply dated 18.3.2021 of the petitioners is
seen, none of the contentions raised in the reply are dealt with,
much less any discussion on the said point. Similarly, with regard
to charge no.2, except recording that by incurring an expenditure,
the Municipality has suffered financial loss, inasmuch as, the
construction has been carried out on the Government land and in
the event of removal of the encroachment, the Municipality would
suffer loss of Rs.50,61,253/-, nothing has been stated about the
reply. The petitioners have offered explanation, however, the
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
discussion on such explanation is missing. So is the position with
charge no.4. After recording the details of the charge and the
reply in brief, it has been stated that there is a construction on
the Government land for which, expenditure has been incurred to
the tune of Rs.8,61,175/- and the petitioners are responsible for
that. Since the decision is taken in the general meeting dated
30.10.2018 the members who were present and approved are
responsible. The reply of the petitioners which refers to the
letters of the office of the Deputy Executive Engineer, does not
find place in the reasoning of the Commissioner. Charge no.7 is
that while offering the work of Rs.2,66,80,000/-, the Municipality
has not observed the provisions of law, however, the
observations do not indicate as to under which provisions of law,
the Municipality was under an obligation to observe the
procedure and it has not observed and approved the expenses.
For this charge also, all the members were held responsible who
were present in both the meetings dated 27.3.2018 and
26.7.2018. So far as charge no.10 is concerned, findings are
recorded that the President and the Chief Officer have acted
against the rules, and the expenses ought not to have been
approved by the members. However, the provisions of the rules
which the President and the Chief Officer and the petitioners were
obligated to observe, are conspicuously silent. With regard to
charge no.12, in the 3rd paragraph, the reasons which are
recorded are that if the rates would have been invited online,
there would have been a healthy competition, by which the
Municipality would have enured benefits, in terms of finance.
However, by offering off-line tendering and approving the
expenditure, the municipality has suffered a loss. Pertinently, the
said observations do not reflect the reasoning except saying that
by inviting the competent rates, the Municipality would have
been benefited. Again, such findings are mere pretence and
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nothing further.
17. The fact that the Commissioner has not given reason as
required, is fortified by the contents of the affidavit of the State
Government, wherein, reliance is placed on various documents,
however, reference and consequent discussion of none of them
find place in the order dated 18.6.2021. To illustrate, reliance is
placed on the Government Resolution dated 3.6.2016, which is a
purchase policy issued by the Industries & Mines Department. In
support of and to substantiate the misconduct as regards charge
no.7, however, if one sees the discussion, reference of that
resolution is missing. When the Court, for the sake of clarity,
confronted Mr. Bharat Vyas, learned Assistant Government
Pleader to point out the discussion, the learned Assistant
Government Pleader could not point out. Learned Assistant
Government Pleader also could not dispute that the detailed
reference to the documents, which have been placed along with
the affidavit-in-reply, is not finding place in the order. Therefore,
the reasoning given by the Commissioner, is nothing but an
empty formality performed by him while passing the order dated
18.6.2021. It is well settled proposition of law that the members
of the Municipality are the elected representatives and when the
issue of removal of the elected representatives is under
consideration, it is expected that the authorities concerned,
should exercise the powers with great circumspection inasmuch
as, the order passed would have a serious repercussion.
Therefore, the requirement of giving detailed reasons in support
of its conclusion is of utmost importance.
18. As discussed herein above, the reasons should not be a
mere rubber stamp reasons. Under the circumstances, this Court
is of the opinion that the order dated 18.6.2021, by no stretch of
imagination can be said to have been passed as directed by this
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Court while remanding the matter vide order dated 5.2.2021.
Therefore, the order deserves to be quashed and set aside and
the matter is remanded back to the Commissioner, and the
Commissioner is directed to decide the same ensuring that it
meets the directions as indicated in the order dated 5.2.2021.
19. The issue has another dimension attached. The
Commissioner, after hearing the petitioners, has passed the order
dated 18.6.2021, inter alia, holding that charge nos.1, 2, 4, 7, 10
and 12 to be proved and directed removal of the petitioners
under Section 37 of the Act of 1963. The Commissioner, while
coming to such conclusion, has observed that the decision is
taken by the Municipality in the general body meeting and
decision being unanimous; all the members have misconducted
themselves. However, the Commissioner, directed removal of the
petitioners. So far as the private respondents are concerned, it
has been observed that since the respondents were not issued
notice under Section 37, notice be issued and proceedings be
initiated.
20. Clearly, while passing the order dated 18.6.2021, the
Commissioner, has held that all the members of the Municipality
are responsible for passing the resolutions and by doing so, they
have committed misconduct as provided under Section 37 of the
Act of 1963. When the Commissioner himself was of the opinion
that all the members are responsible, it is difficult to fathom as to
after such conclusion, what is left to be determined. Pertinently,
the Commissioner has already concluded that the decisions were
unanimous and all the members are responsible who were
present in the meetings. Once having concluded about the
misconduct being committed by all the members of the
Municipality, how it would be permissible to the Commissioner to
either revise or review his own decision contrary to the findings
C/SCA/9277/2021 JUDGMENT DATED: 09/08/2021
already recorded. Be that as it may.
21. As has been reported, the private respondents are issued
notice under Section 37 of the Act of 1963 and the Commissioner
is seized of the proceedings against the private respondents. The
hearing of the matter is fixed on 3.9.2021. Therefore, the ends of
justice would meet if the Commissioner, takes decision after
considering the reply filed by the petitioners, so also the replies
which would have been filed or filed, if any by the private
respondents and pass a common order instead of passing orders
in piecemeal. The Commissioner is directed to take a decision
preferably within a period of four weeks from the date of the
judgment and communicate the same to the petitioners as well
as the private respondents within a period of two weeks thereafter.
22. The petitioners and the private respondents shall ensure
that no unnecessary adjournments are sought for and co-operate
with the hearing before the Commissioner, without any further
delay.
23. The petition is accordingly allowed. Rule is made absolute to
the aforesaid extent. No order as to costs.
24. The stay granted vide order dated 19.7.2021 stands
vacated.
25. Mr. Anand V. Thakkar, learned advocate appearing for the
private respondents, requests for stay of the judgment. Mr. Dipan
Desai, learned advocate appearing for the petitioners,
vehemently opposes the request of Mr. Thakkar, learned
advocate. The request for stay of the judgment, is rejected.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
