Bhavesh Kamleshbhai Patel vs Commissioner, Municipality ...
2023 Latest Caselaw 1998 Guj

     C/SCA/822/2022                              JUDGMENT DATED: 02/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 822 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                             Yes

2    To be referred to the Reporter or not ?                           Yes

3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                  No

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution                No
     of India or any order made thereunder ?

==========================================================
                    BHAVESH KAMLESHBHAI PATEL
                               Versus
              COMMISSIONER, MUNICIPALITY ADMINISTRATION
==========================================================
Appearance:
MR NIRAV C THAKKAR(2206) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GOVT. PLEADER & SR. ADVOCATE WITH MS
SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 02/03/2023

                            ORAL JUDGMENT

1               The   matter     was        extensively         heard           on






     C/SCA/822/2022                                    JUDGMENT DATED: 02/03/2023

20.2.2023 and it was agreed among learned advocates

for the parties that the matter was being heard

finally, and therefore, on 20.2.2023, the following

order was passed:

"Heard learned advocate Mr.Nirav Thakkar for the petitioner, learned Government Pleader Ms.Manisha Lavkumar Shah assisted by learned Assistant Government Pleader Ms.Shruti Pathak and learned advocate Mr.Deepak Sanchela for the Respondent No.2 - Nagar Palika.

Arguments are concluded. List for orders on 27.02.2023."

2 In view of the aforesaid order, issue Rule.

Ms.Shruti Pathak, learned Assistant Government

Pleader waives service of rule for respondent No.2

and learned advocate Mr.Deepak Sanchela waives

service of rule for respondent No.2.

3 By way of the petition, the petitioner has

prayed for quashing and setting aside the order dated

28.12.2021 passed by the Commissioner of Municipality

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(Administration) whereby the petitioner was removed

as Member of the Unjha Municipality by Commissioner,

Municipal Administration in exercise of powers under

Section 37(1) of the Gujarat Municipalities Act, 1963

(for short, `the Act, 1963').

4 The facts of the case in nutshell are that

the petitioner is an elected councillor of Unjha

Nagarpalika for which elections took place in

February, 2021 and results were declared on 1.3.2021.

In Unjha Nagarpalika, 36 candidates were elected and

the petitioner is one of them.

4.1 On 26.4.2021, as per the case of the

petitioner, despite there being no official

directions of the State Government or the Central

Government, one Mr.Jasminbhai Patel, Chief Sanitary

Inspector of Unjha Nagarpalika, was moving in local

market and forcing shopkeepers to shut down their

shops. As per the petitioner he was asking the shop

owners to hand over keys to him and he was also

collecting fine of Rs.1,000/- from them. According to

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the petitioner, the aforesaid action was not backed

by any order in writing by the Chief Officer or any

other competent authority nor was it supported by any

of the instructions from the State Government or

Central Government. Hence, the petitioner resisted

the aforesaid action upon complaints received by him

and initially he asked Mr.Patel, Chief Sanitary

Inspector to stop acting in such an illegal manner

politely, but as the said request according to the

petitioner fell on the deaf ears of the Chief

Sanitary Inspector, the petitioner raised his voice

and at that time some one captured those moments as

video clip and the same was circulated. According to

the petitioner, the video clip does not depict the

entire incident and does not give the correct picture

of what had happened on that day. When the aforesaid

video went viral, it created a one sided impression

due to the fact that it was not a video clip

depicting the entire incident.

4.2 As the petitioner is a councillor he made a

complaint about the highhanded action of Mr.Patel,

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Chief Sanitary Inspector on the same day and filed a

complaint against Mr.Patel.

4.3 It was the case of the petitioner that on

the basis of the aforesaid video clip, respondent

No.2 recommended actions under the provisions of

Section 37(1) of the Act, 1963 to respondent No.1

vide communication dated 3.5.2021. Thereafter vide

show cause notice dated 20.9.2021 the petitioner was

asked as to why steps under Section 37(1) of the Act,

1963 may not be initiated against him. Upon the

receipt of show cause notice, the petitioner vide

communication dated 23.9.2021 and 27.9.2021 asked for

certain information to enable him to submit his reply

to the notice. It is the case of the petitioner that

though the hearing was scheduled on 7.10.2021, the

documents asked for by the petitioner were partially

supplied to him after 5 p.m. on 6.10.2021. On

7.10.2021 the petitioner was not given any further

time to reply to the notice. However, the matter

could not be heard on 7.10.2021. Ultimately, the

petitioner was heard subsequently and vide order

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

dated 28.12.2021 by exercising powers under Section

37(1) of the Act, 1963 the Commissioner, Municipality

Administration passed order dated 28.12.2021 removing

the petitioner as a Member of the Municipality. The

aforesaid action is under challenge by way of the

present petition.

5 A coordinate Bench of this Court vide order

dated 16.2.2022 while issuing notice, granted

interim relief in favour of the petitioner.

Thereafter, the respondent No.2 filed reply wherein a

stand was taken that behaviour of the petitioner

directly attracts feature of Section 37 of the Act,

1963 as the act of the petitioner is absolutely

disgraceful as well as amounts to misconduct in

respect of his duties as well. In the affidavit, it

was stated that Mr.Patel, Sanitary Inspector was

performing his duty on 26.4.2021 and the petitioner

insulted him by administering threats and using

improper language in the open market and the same was

captured in mobile phone and the same was put on his

Facebook account by himself and tried to show himself

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

as a headstrong person, and therefore, the conduct of

the petitioner completely attracts disgraceful

conduct as well as misconduct in respect of his

duties or both, and therefore, the aforesaid action

would attract the provisions of Section 37 of the

Act, 1963 and therefore, the impugned action is

justified. In the affidavit, the respondent No.2 has

taken a stand that if the actions of the Chief

Sanitary Inspector were beyond his powers, in that

case, the petitioner, who is the municipal

councillor, could have brought it to the notice of

the municipality by a written complaint and action

could have been taken as per the provisions of

Section 49 of the Act, 1963 by the Chief Officer. In

any case, the petitioner could not have misbehaved

with the officer of the municipality. The reply has

also emphasized about the situation prevailing at

that point of time relating to COVID-19 and it is

stated that in a joint meeting the President of the

Municipality, Mamlatdar and Police Sub-Inspector

decided to close down all the markets till 5.5.2021.

Therefore, the aforesaid behaviour on the part of the

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petitioner was absolutely uncalled for. Mr.Patel,

Chief Sanitary Inspector was acting in a good faith

and under the instructions of the Municipality, and

therefore, he ought not have threatened. The reply

also refers to a detailed reply filed by

Mr.Jasminbhai Patel, Chief Sanitary Inspector.

5.1 In sum and substance, by way of the

affidavit in reply, the Municipality tried to defend

the action of the respondent No.1 on the basis of

proposal of respondent No.2.

6 The petitioner had filed further affidavit

wherein it is placed on record by way of affidavit

that pursuant to the alleged similar incident, which

happened on 2.6.2021, an FIR was registered against

the petitioner and other two councillors. However,

during the course of hearing before the respondent

No.1, one of the complainants admitted before the

authority that he had filed a false complaint against

the petitioner. By way of the further affidavit, the

petitioner has alleged the conduct of the Chief

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

Officer and others and submitted that it is the Chief

Sanitary Officer and other officials of the

municipality, who are interested in removal of the

petitioner from the post of councillor on one or the

other pretext, and therefore, this action was

initiated.

7 Mr.Nirav Thakkar, learned advocate for the

petitioner, submitted that the act of the petitioner

cannot be said to be misconduct or disgraceful

conduct as the petitioner was not fighting for

himself, but was performing his duty as an elected

councillor of the Municipality as despite there being

no instructions either by the State or the Central

Governments or by the Chief Officer, the Sanitary

Inspector was forcing the shop owners to shut down

their shops, who was snatching the keys and

collecting fine of Rs.1,000/-. Learned advocate for

the petitioner further submitted that in the show

cause notice there is no reference about any usage of

filthy or abuse language by the petitioner. However,

in the impugned order while ordering the removal of

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

the petitioner as a councillor of the municipality

one of the grounds weighed with the authority is

about usage of filthy and abusive language as well

for which the allegations are not made even in the

show cause notice. Therefore, while passing the final

order, the authority has considered the material

which was not part of show cause notice or the

allegations which were not levelled against the

petitioner.

7.1 Mr.Thakkar, learned advocate for the

petitioner, submitted that pursuant to the complaints

received by the petitioner from some of the people

stating that the Sanitary Inspector was acting in a

very highhanded manner, the petitioner went to stop

and resist the action of the Sanitary Inspector. He

further submitted that the action of the petitioner

was in good faith and cannot be termed as misconduct.

Further, the petitioner made a complaint on 26.4.2021

to the respondent No.2 informing the entire incident

and requested him to take action in this regard.

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

7.2 Mr.Thakkar, learned advocate for the

petitioner, submitted that the petitioner has been

removed as a councillor of the Municipality only on

the basis of one video clip having length of less

than a minute, which would not depict the correct

picture. Whether the act of the petitioner can be

said to be a misconduct or not or can be said to be

misbehaviour or not, cannot be determined by a video

clip having less than one minute duration and the

entire incident is required to be seen as a whole and

not on the basis of selective version of the same.

Therefore, the impugned order passed by the

respondent No.1 is bad and illegal and required to be

quashed and set aside.

7.3 Mr.Nirav Thakkar, learned advocate for the

petitioner, relied upon the decision dated 18.12.2020

rendered by Division Bench of this Court in the case

of Yashinbhai Ismail Mandli vs. State of Gujarat in

Letters Patent Appeal No.1272 of 2018. By relying

upon para 10 of the above judgment, learned advocate

for the petitioner, submitted that in a similar set

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of facts, Division Bench of the Court observed that,

the appellant could not have been removed on the

ground of having threatened the Chief Officer since

except for a written complaint and copy of the

statement given to the Police Sub-Inspector, Viramgam

Town Police Station, there is no material to

substantiate the allegation of administering threat.

Learned advocate for the petitioner further submitted

that in the instant case also, except for video clip,

there is no other material to substantiate the case

against the petitioner, and therefore, the petitioner

could not have been removed from the post of Member

of the Municipality by the respondent No.1.

7.4 Mr.Nirav Thakkar, learned advocate for the

petitioner, next relied upon the judgment of the

Hon'ble Supreme Court in the case of Ravi Yashwant

Bhoir vs. District Collector, Raigad & Ors, (2012)4

SCC 407, more particularly, by relying upon the head

note [E], submitted that removal of an elected member

of the municipality for misconduct has serious

restrictions as it casts stigma and take away their

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

valuable right as well as rights of people of their

respective constituencies to be represented by them,

and therefore, they can be removed only under

exceptional circumstances.

7.5 Learned advocate for the petitioner

submitted that even the authenticity of the video

clip has not been verified and in absence of

authenticity of the aforesaid video clip on the basis

of which actions were taken, the impugned order could

not have been passed.

7.6 By making the aforesaid submissions,

Mr.Thakkar, learned advocate for the petitioner,

prayed for allowing the petition by quashing and

setting aside the impugned order.

8 Ms.Manisha Lavkumar, learned Government

Pleader assisted by Ms.Shruti Pathak, learned

Assistant Government Pleader, vehemently opposed the

petition. It is submitted that the action on the part

of the petitioner of misbehaving with the Chief

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

Sanitary Inspector of the municipality has rightly

been considered as misbehaviour and on the basis of

which the Administrator of the Municipality has

removed the petitioner. It is further submitted that

on 25.4.2021 a meeting of all the business

associations of Unjha took place under the

Chairmanship of the President of the Municipality,

wherein the Chief Officer, Police Sub-Inspector and

Mamlatdar had remained present and in that meeting

all the associations unanimously decided to close

down the market till 2.5.2021 completely on its own

volition with an exception of permitting milk,

medical, fruit and vegetable shops to keep their

business open from 7 to 10 a.m. and the Chief

Sanitary Officer was taking action pursuant to the

decision taken in the said meeting. Mr.Manisha

Lavkumar, learned Government Pleader, submitted that

this decision and its implementation was necessitated

as second wave of COVID-19 pandemic was in its full

swing and the death ratio was on the higher side. In

almost all the hospitals beds were occupied and there

was a huge scarcity of beds and oxygen and even

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

ambulances were not easily available, and therefore,

the only way to come out of that situation was to

curb the spread of COVID-19 by maintaining social

distance as COVID-19 is an air borne decease which

spreads from person to person through air. In that

exceptional circumstances, keeping the markets closed

was one of such decisions. At that point of time,

human lives were more precious than carrying out

business. Even the doctors also were the victims of

the spread of COVID-19, and therefore, considering

this emergency like situation, those measure were

discussed with various associations and thereafter as

it was unanimously supported and accepted by them, it

was decided to keep the markets closed. Learned

Government Pleader submitted that the petitioner

being the councillor was expected to cooperate with

the said decision and to make people understand about

the deadly impact of COVID-19. It is also expected of

the petitioner to convince the people to implement

the aforesaid decision. However, instead of

cooperating in such a critical situation, the

petitioner started provoking the people and

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

misbehaved with the Chief Sanitary Inspector by

restraining him from performing his duties.

Therefore, considering the situation at the relevant

point of time, the aforesaid action has rightly been

considered as a misconduct by the respondent No.1,

and therefore, this Court may not interfere with the

aforesaid decision.

8.1 Ms.Manisha Lavkumar, learned Government

Pleader, submitted that the respondent No.1 has after

overall appreciation of material available before him

and after arriving at the subjective satisfaction

passed the order of removal of the petitioner as

councillor of the Municipality.

8.2 Ms.Manisha Lavkumar, learned Government

Pleader, by relying upon the decision dated 1.9.2009

of this Court in Special Civil Application No.9059 of

2009 the case of Mohammedbhai Sulemanbhai Maththa vs.

Director of Municipalities & 2, more particularly

para 5, submitted that there cannot be any dispute

with the proposition that an elected member of the

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Municipality could not be removed casually, but at

the same time if the facts and circumstances

establish fulfillment of requirement of invocation of

Section 37 of the Act, 1963 merely because the

delinquent is an elected member, he cannot be

absolved. By relying upon the aforesaid judgment,

learned Government Pleader submitted that whether the

act of a councillor would attract the provisions of

Section 37 of the Act, 1963 would depend upon the

facts of each case and there may not be any straight

jacket formula for the same. Learned Government

Pleader further submitted that under the facts and

circumstances of the present case, the petitioner has

stopped the Chief Sanitary Inspector from performing

his duty and misbehaved with him and hence the

respondent No.1 has rightly passed the impugned order

removing the petitioner as councillor of the

municipality.

8.3 Mr.Manisha Lavkumar, learned Government

Pleader, by pointing out from the judgment cited by

Mr.Nirav Thakkar, learned advocate for the petitioner

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in the case of Ravi Yashwant Bhoir (supra), more

particularly, paragraphs Nos.13, 14, 17, 18 and 19,

submitted that the word misconduct is having wider

meaning and while examining the aspect of misconduct,

the Court is required to examine as to whether the

misconduct has been detrimental to the public or not

as 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. Learned Government Pleader

further submitted that the expression `misconduct' is

to be construed and considered in reference and

context wherein the term occurs taking into

consideration the scope and object of the statute.

Misconduct is to be measured in terms of the nature

of misconduct and it should be viewed with the

consequences of misconduct as to whether it has been

detrimental to the public at large or not.

8.4 By referring to paragraphs 13, 14, 17, 18

and 19 of the judgment in the case of Ravi Yashwant

Bhoir (supra), learned Government Pleader submitted

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that the Court is required to consider the fact that

whether the action of the Chief Sanitary Inspector

was in larger public interest and pursuant to a

decision taken by the business associations, police,

Mamlatdar and office bearers of the municipality or

not. If a decision was taken in the larger public

interest, and while the same being implemented if the

petitioner obstructed the implementation of the said

decision, the same can be said to be misconduct. In

the instance case, the petitioner has not only

obstructed the officer from performing duty in larger

public interest, but also misbehaved with him and

used filthy language, and therefore, considering the

fact that the misconduct is required to be construed

by keeping in mind the larger public interest, the

instant case can be said to be a case of misconduct,

and therefore, the petitioner has rightly been

removed as councillor.

8.5 Ms.Manisha Lavkumar, learned Government

Pleader, submitted that usage of abusive or filthy

language is a part of misbehaviour, and therefore,

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when misbehaviour is alleged against the municipal

councillor, use of abusive language even if not

allowed separately, the same is rightly considered by

the respondent No.1, and therefore, the same cannot

be said to be a consideration by the authority beyond

scope of show cause notice.

8.6 Learned Government Pleader submitted that

the petitioner himself had posted the aforesaid viral

video clip on his Facebook page, which would amount

to an admission on his part, more particularly, when

the aforesaid video clip has not been questioned by

the petitioner, the question of its authenticity

should not be doubted. Learned Government Pleader

further submitted that the petitioner is not

disputing the video clip, but insisting that the

entice incident is not depicted in video clip.

Learned Government Pleader further submitted that

even if at a particular stage a person has misbehaved

and if that would fall within the purview of Section

37 of the Act, 1963, the act of misbehaviour which

can be termed as misconduct is important and it may

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last for few minutes or seconds, the same is captured

in the video clip, and therefore, the entire incident

is not required to be considered. By making the

aforesaid submissions, Ms.Manisha Lavkumar, learned

Government Pleader prayed for dismissal of the

petition with exemplary costs.

9 Mr.Deepak Sanchela, learned advocate for

the respondent municipality, supported the case of

respondent No.1 and adopted the arguments advanced by

learned Government Pleader.

10 Heard learned advocates for the parties and

perused the record of the case, including the

judgments cited by learned advocates for the parties.

The entire case revolves around the following issues,

which are required to be determined by the Court:

[1] Whether the action of the petitioner of

stopping the Chief Sanitary Inspector from

performing his duty, which according to the

petitioner was beyond the powers of the Chief

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Sanitary Inspector or he was not authorized to

take such actions as there was no instruction,

order or guidelines in writing would amount to

misconduct or not.

[2] That in absence the entire incident having

been video-graphed and only a small clip of the

incident is available, in that case, whether the

act of petitioner can be said to be a misconduct

or not, if the first issue held against the

petitioner.

[3] If the first and second issues are held

against the petitioner, in that case, whether

the respondent No.1 was justified in passing the

impugned order or not.

10.1 First of all, the Court is required to

determine as to whether the act of the petitioner can

be said to be a misconduct or not. In this regard, in

the judgment of Ravi Yashwant Bhoir (supra) the

Hon'ble Supreme Court while dealing with the aspect

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of what can be said to be misconduct, has observed in

paras 11 to 19, as under:

"MISCONDUCT:

11 "Misconduct" has been defined in Black's Law Dictionary, Sixth Edition as:

"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offense, but not negligence or carelessness."

"Misconduct in office" has been defined as:

"Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."

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12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines `misconduct' thus:

"The term `misconduct' implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

officer, by which the rights of a party have been affected."

           Thus        it     could        be       seen       that        the        word
   `misconduct'              though        not        capable         of      precise
   definition,                on       reflection               receives               its

connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve....".

[emphasis supplied]

(See also: State of Punjab & Ors. v. Ram Singh Ex. Constable, AIR 1992 SC 2188).

13 Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional

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circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds etc. constitutes a serious misconduct, inviting severe punishment. (Vide: Disciplinary Authority-cum-Regional Manager & Ors. v. Nikunja Bihari Patnaik, (1996) 9 SCC 69; Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571; Inspector Prem Chand v. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566; and State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594).

14 In Government of A.P. v. P. Posetty, (2000) 2 SCC 220, this Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post.

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   15             In M.M. Malhotra v. Union of India &

Ors., AIR 2006 SC 80, this Court explained as under:

"17.......It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve."

A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab & Ors., AIR 2002 SC 1124.

16 Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See: Union of India & Ors. v. J. Ahmed, AIR 1979 SC 1022).

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17 It is also a settled legal proposition that misconduct must necessarily 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. (Vide: Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290).

18 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 may be synonymous as mis-demeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.

19 Further, the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the

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terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest."

10.2 The aforesaid observations of the Hon'ble

Supreme Court based upon how the misconduct is

defined in various judgments of the Hon'ble Supreme

Court as well as various dictionaries would indicate

that misconduct is having a wider meaning and the

same is required to be construed by keeping in mind

the nature of misconduct, the circumstances for which

the misconduct is alleged as well as whether it

affects the larger public interest or not. Therefore,

the Court is required to take into consideration the

circumstances leading to the allegations of the

misconduct.

10.3 It is an undisputed fact that during the

period of 26.4.2021, second of COVID-19 was in full

swing and all the hospitals were flooded with the

patients. During that crucial period, the entire

country was running shortage of oxygen, beds,

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

medicines, ambulances, etc. Though the aforesaid

facts are not stated in the petition by the

petitioner as we have all passed through that phase

which had traumatized the lives of every citizen, and

therefore, those were the exceptional circumstances.

At that time what was known to the people was the

fact that COVID-19 is an air borne disease and one of

most important way to save the people from the

pandemic was to maintain social distancing. During

that period though vaccination drive was also going,

the herd immunity from the COVID-19 was not fully

developed and a large number of people succumbed to

corona virus and the entire nation had witnessed the

undeclared medical emergency like situation and the

entire world was fighting with the pandemic.

10.4 With a bonafide intention to reduce or curb

the spread of corona virus, a voluntary decision was

taken by the municipality in consultation with the

police authorities and business associations to keep

the shops closed for a week from 25.4.2021 to

2.5.2021 with some relaxation to the vendors

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

essential commodities like milk, fruits, vegetable

and medical stores. At that relevant point of time,

it was not expected from the authorities to issue all

the orders or instructions in writing, as exceptional

circumstances always lead to exceptional and

unexpected way of fighting with the situation.

10.5 When the above decision to close down the

shops for a week from 25.4.2021 to 2.5.2021 was taken

and when the Chief Sanitary Inspector without there

being any selfish motive was acting in a direction to

implement that decision, any action of confronting

with such decision would amount to misconduct by the

petitioner, who is an elected councillor of the

municipality. He is a leader and public always follow

the footsteps of a leader. When the petitioner was

knowing that human lives are precious than business,

being a leader and an elected representative, he was

expected to cooperate with the local administration

and to help the authorities in convincing the public

to voluntarily to close down the shops. The

petitioner not only miserably failed in his duty, but

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

by obstructing the Chief Sanitary Inspector from

performing his duty, which he was performing in

larger public interest to see that spread of corona

virus is reduced or stopped, the petitioner not only

confronted with him but also misbehaved with him. The

matter does not end here. Thereafter, the petitioner

when came to know that the video clip of some moments

of confrontation where the petitioner was misbehaving

with the Chief Sanitary Inspector had gone viral, the

same was posted on the Facebook page of the

petitioner. According to the petitioner, the

petitioner was tagged with the aforesaid video clip

on the Facebook and it was not posted by the

petitioner. Be that as it may, when the petitioner

uses social media, it is expected that the petitioner

knows how to handle the social media or that

particular application or platform, if something is

not posted by him. If the petitioner had posted that

video clip on Facebook page that action perpetuates

the misconduct and if the petitioner has not posted

the video clip he could have de-tagged himself from

the said video clip. The fact remains that when such

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

video clip is posted on petitioner's Facebook page,

it was capable of instigating other people to defy

the unanimous decision. However, I leave the

aforesaid aspect of posting the clip on Facebook page

here itself for the reason that subject matter of the

petition is about alleged misconduct whereby the

petitioner has misbehaved with the Chief Sanitary

Inspector and whether such action can be said to be

misconduct or not.

10.6 This Court is firmly of the view that the

action of the petitioner of confronting with the

Chief Sanitary Inspector and interrupting him in

performing his duty and misbehaving with him, can

certainly be said to be misconduct as the officer was

performing his duty in the larger public interest and

the petitioner being an elected councillor could not

have stopped the petitioner and misbehaved with him.

Considering the aforesaid aspect, the misbehaviour by

the petitioner can be said to be a misconduct.

10.7 As far as the submission of learned

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advocate Mr.Thakkar that though use of abusive or

filthy language by the petitioner has not been a

ground in the show cause notice and the same was

considered by the respondent No.1 while passing the

final order is concerned, this Court is of the view

that the use of abusive language is also one of the

ingredients or elements of misbehaviour as the

misbehaviour has a wider meaning and usage of abusive

or filthy language is just one of the ingredients,

elements or components of misbehaviour.

10.8 Hence, once this Court is of the view that

the petitioner's act would fall within the expression

`misbehaviour', which according to this Court can be

termed as misconduct, the proceedings under Section

37 of the Act, 1963 were rightly initiated against

the petitioner. Therefore, once prima facie, the act

of the petitioner is held to be misconduct, the next

question that arises for consideration of the Court

is that whether a video clip of less than one minute

would be sufficient to hold the act of the petitioner

as a sufficient piece of evidence to arrive at a

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

conclusion that it was an act of misconduct.

10.9 To consider the aforesaid aspect, this

Court perused the material available on record of

this petition. It was not the defence of the

petitioner before the authority that the aforesaid

video clip of less than one minute is engineered or

fabricated or not authentic. The petitioner has never

made an application to send the video clip to

Forensic Science Laboratory or any other laboratory

questioning its authenticity. In absence of

petitioner having questioned the aforesaid video

clip, this Court is of the view that once the

genuineness of the video clip is not questioned, it

comes to that whatever shown in the video clip had

actually happened. Further, misconduct would not

require a minute to minute or second to second

videography. Misconduct can take place even for a

very short period, but still it can be said to be a

misconduct. Misconduct does not have any requirement

that it must be continued for a particular duration.

If a person slaps another person, that hardly takes a

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

few seconds, but heated arguments between two persons

may have lasted for hours. Still the act of slapping

of duration of few seconds can be said to be

misconduct. For that the entire heated arguments are

not required to be captured on electronic device. If

misconduct has taken place at a particular moment,

depiction of the same is sufficient evidence to

determine as to whether the misconduct has taken

place or not. In the instant case, a video clip of

less than one minute duration was available for

respondent No.1 to determine as to whether the

behaviour of the petitioner captured in the aforesaid

video clip amounts to misconduct or not. The word

`misconduct', as per the submission of Mr.Thakkar,

learned advocate for the petitioner that since the

video clip was of very short duration, it does not

give a clear picture about the misconduct and hence

cannot be said to be a sufficient evidence, cannot be

accepted. Now, as both the issues are held against

the petitioner, the third issue that the Court is

required to determine is whether the authority was

justified in passing the impugned order removing the

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

petitioner as councillor.

10.10 A perusal of the impugned order passed by

the respondent No.1 shows that the respondent No.1

had taken into consideration the written submissions

of the petitioner. Whether misconduct has taken place

or not and if the misconduct is believed by the

authority, that conclusion is a matter of subjective

satisfaction. When the authority is prima facie

satisfied that the action of the petitioner amounts

to misconduct in that case, the authority was

justified in passing the order of removal of the

petitioner from the post of councillor of the

municipality. Therefore, on perusal of the order

passed by respondent No.1, I do not see any

illegality or error committed by the authority while

passing the impugned order.

10.11 As far as reliance placed by Mr.Thakkar,

learned advocate for the petitioner, on the decision

of Division Bench in the case of Yashinbhai Ismail

Mandli (supra), is concerned, this Court finds that

C/SCA/822/2022 JUDGMENT DATED: 02/03/2023

in the above case the observations made in para 10 by

Division Bench were on the basis of a complaint and a

copy of statement given to the police Inspector and

as there was no other materiel to substantiate the

allegation, the Court took a view that the material

was insufficient to remove the petitioner on the

ground of giving a threat to the Chief Officer.

However, in the instant case, there is a video clip

showing the petitioner misbehaving with the Chief

Sanitary Inspector, and therefore, the said act can

certainly be said to be credible material as the

genuineness of the clip has not been questioned by

the petitioner. Hence, the aforesaid judgment will

not help the petitioner.

10.12 As far as the decision relied by Ms.Manisha

Lavkumar, learned Government Pleader in the case of

Mohammedbhai Sulemanbhai Maththa (supra) is

concerned, in para 5 of the decision, it is

categorically observed by the Court that if the facts

and circumstances establishes fulfillment of any of

of the conditions specified by provisions of Section

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37 of the Act, 1963 merely because the delinquent is

an elected councillor he cannot be absolved.

Therefore, in the present case also, when there is a

strong evidence in the form of video clip while

misbehaving with the Chief Sanitary Inspector and

when the same is proved on the basis of the

subjective satisfaction of respondent No.1, the

decision taken by respondent No.1 cannot be said to

be erroneous or illegal and no interference is called

for by this Court in the present petition.

10.13 As far as the submission of Mr.Thakkar,

learned advocate for the petitioner, relying upon the

decision in the case of Ravi Yashwant Bhoir (supra)

that removal of an elected member of the municipality

for misconduct has serious restrictions as it casts

stigma and take away their valuable right as well as

rights of people of their respective constituencies

to be represented by them is concerned, as the

removal is based on proved misconduct, the aforesaid

contention would not help and the petitioner being an

elected member of the municipality it is expected

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that the elected member would act in a manner which

may aid the action which is proposed or taken in the

public interest. Therefore, the aforesaid contention

also is required to be rejected.

11 In view of the above discussion, this

petition is required to be dismissed and the same is

dismissed. Rule discharged. Interim relief granted

earlier stands vacated forthwith. However, there

shall be no order as to costs.

Sd/-

(NIRZAR S. DESAI,J)

At this stage, learned advocate Mr. Nirav

Thakkar, prayed to stay the aforesaid order for a

period of four weeks. However, the aforesaid prayer

is rejected.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM