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2004 DIGILAW 403 (GUJ)

Mafatbhai Popatbhai Patel v. District Development

2004-06-28

K.S.JHAVERI

body2004
M. R. SHAH, J. ( 1 ) THE Ex-Sarpanch of Piploi Village Gram panchayat who was also, at the relevant time, the Secretary of Piploi Cooperative Society, had preferred the present Special Civil application under Article. 226 challenging the order passed by the District Development officer, Anand dated 11. 2. 2004 passed under section 59 (1) of the GUJARAT PANCHAYATS ACT, 1993, 1993 suspending the petitioner and also the order passed by the Revisional Authority, state Government i. e. Addl. Development commissioner dated 29. 3. 2004 in dismissing the same and confirming the order passed by the District Development Officer dated 11. 2. 2004. ( 2 ) THE petitioner was the Sarpanch of piploi Village Gram Panchayat. He was also serving as a Secretary of Piploi Village Gram panchayat. He was also serving as a secretary of Piploi Cooperative Society. That a criminal case being C. R. No. 158 of 2002 came to be filed against one Munawarkhan pirkhan Pathan, Clerk of Piploi Cooperative society for the offences punishable under section 4o8 of the Indian Penal Code. During the course of investigation, it was found by the Investigation Officer that the petitioner who was serving as a Secretary of the said society was also involved in the same case by which a misappropriation of Rs. 2,53,398. 75 ps. is alleged. The petitioner came to be arrested and was in judicial custody for 4 days. As it was found by the District development Officer, Anand that a criminal case is constituted against the petitioner for the offences involving moral turpitude and that he was in judicial custody, proceedings under Section 59 of the Gujarat Panchayat act (hereinafter referred to as the "act") came to be initiated by him. A show cause notice was issued upon the petitioner dated 24. 1. 2003 under Section 59 (1) of the Act directing the petitioner to show cause why the petitioner should not be suspended under section 59 of the GUJARAT PANCHAYATS ACT, 1993 as the petitioner is involved in a case for the offence involving moral turpitude. In the show cause notice itself, it is stated that the petitioner was arrested on 23. 11. 2002 and that he was in judicial custody upto 28. 11. 20o2. After hearing the petitioner, the District development Officer, Anand by its order dated 11. 2. In the show cause notice itself, it is stated that the petitioner was arrested on 23. 11. 2002 and that he was in judicial custody upto 28. 11. 20o2. After hearing the petitioner, the District development Officer, Anand by its order dated 11. 2. 2004 passed an order of suspension under section 59 (1) of the GUJARAT PANCHAYATS ACT, 1993 holding that the petitioner is involved in a criminal case for the offence Involving moral turpitude and It Is not proper to continue the petitioner to hold the post of Sarpanch. ( 3 ) THAT being aggrieved and dissatisfied with the order passed by the District development Officer, Anand dated 11. 2. 2004, the petitioner preferred Revision Application before the Additional Development commissioner, State of Gujarat, Gandhinagar. At the time of hearing of the revision application it was contended on behalf of the petitioner that the petitioner was also serving as a Secretary of the society and was removed from the post of Secretary on the basis of the said criminal case. However, subsequently by order dated 10. 4. 2003, the order passed by the District Registrar removing the petitioner as a Secretary has been set aside by the Deputy Secretary (Appeals), Agriculture and Cooperation Department in which it Is held that prima facie, there is no case of misappropriation and It is a case of recovery only and that criminal case is pending against the petitioner with regard to misappropriation and the investigation is going on and the case is not finally decided and that the society has taken written admission of guilt by force and coercion and therefore, it was requested that as the petitioner Is exonerated by the revisional Authority i. e. the Deputy Secretary (Appeals), Agriculture and Cooperation department, Gandhinagar, the order of suspension passed against the petitioner under Section 59 (1) Is not warranted and requested to quash and set aside the same. The Additional Development Commissioner, state of Gujarat, Gandhinagar by its judgment and order dated 13. 7. 2003 partly allowed the revision application quashing and setting aside the order passed by the District Development officer, Anand dated 19. 5. 2003 remanding the matter to the District Development Officer, anand for deciding the same afresh considering the latest position and the order passed by the Deputy Secretary (Appeals), agriculture and Cooperation Department, gandhinagar dated 10. 4. 2003. 7. 2003 partly allowed the revision application quashing and setting aside the order passed by the District Development officer, Anand dated 19. 5. 2003 remanding the matter to the District Development Officer, anand for deciding the same afresh considering the latest position and the order passed by the Deputy Secretary (Appeals), agriculture and Cooperation Department, gandhinagar dated 10. 4. 2003. ( 4 ) ON remand, the District development Officer, Anand considering the fact that the petitioner is involved in a criminal case involving moral turpitude and that the petitioner was also in judicial custody and that he has also admitted with regard to his guilt, again passed an order suspending the petitioner under Section 59 (1) of the gujarat PANCHAYATS ACT, 1993. ( 5 ) BEING aggrieved and dissatisfied with the said order passed by the District development Officer, Anand dated 11. 2. 2004, the petitioner preferred Revision Application before the Learned Additional Development commissioner, the Revenue Department, state of Gujarat, Gandhinagar and the additional Development Commissioner by its judgement and order dated 29. 3. 2004 dismissed the said revision application confirming the order passed by the District development Officer, Anand by holding that the petitioner was in judicial custody for more than 4 days and that the petitioner is involved in a criminal case involving moral turpitude and that he has also admitted the guilt. The learned Additional Development commissioner also considered the fact that against the judgement and order dated 10. 4. 2003 passed by the Deputy Secretary (Appeals), Agriculture and Cooperation, SCA no. 6611 of 2003 is filed and the same is pending. ( 6 ) BEING aggrieved and dissatisfied with the judgment and order passed by the additional Development Commissioner, State of Gujarat, Gandhinagar dated 29. 3. 2004 in dismissing the revision application and confirming the order passed by the District development Officer, Anand dated 11. 2. 2004 by which the petitioner is suspended as a sarpanch under Section 59 of the Gujarat panchayat Act, the petitioner has preferred the present Special Civil Application under article 226 of the Constitution of India. ( 7 ) SHRI Pradeep J Patel, Learned advocate representing the petitioner has submitted that it cannot be said that the petitioner is involved in a case involving the offence of moral turpitude. ( 7 ) SHRI Pradeep J Patel, Learned advocate representing the petitioner has submitted that it cannot be said that the petitioner is involved in a case involving the offence of moral turpitude. That it is a allegation against the petitioner and additional charge against the petitioner is under Section 114 of IPC and because of the political rivalry, a false case has been filed against the same. He has submitted relying upon the judgment of this Court reported in 1997 (1) GLR PAGE 599 AND 1999 (2) GLH PAGE 963 that whether the act alleged constitutes an offence of moral turpitude, there cannot be straight jacket formula and a Sarpanch cannot be thus suspended on institution of criminal case. Rule of suspension of a person holding public office is based on a public policy to maintain purity in life and looking to the current aggressive competitive politics, the powers are required to be exercised with great circumspection. While criminalisation in public life is not the intention, false implication has also become hazards of public life and hence, the order under Section 59 of the Act Is required to be passed after proper scrutiny of the case, Shri Pradeep Patel has further submitted that in view of the order passed by the Deputy Secretary (Appeals), agriculture and Cooperation Department and the finding given by the said authority, there is no case against the petitioner Involving moral turpitude and the order by which the petitioner was removed as Secretary of the society as having been quashed and set aside, the order of suspension under Section 59 of the Act suspending the petitioner as Sarpanch is also required to be quashed and set aside. He has also submitted that the alleged writing of admission of guilt by the petitioner Is taken by force and coercion and the same should not be considered against the petitioner. ( 8 ) THIS matter came up for hearing before this Court (Coram : A. R. Dave, J) on 16. 4. 2004 and the Learned Advocate Shri pradeep Patel sought an adjournment as he wanted to see the document signed by the petitioner whereby the petitioner has admitted the fact that the petitioner and other person named Munavarkhan Pirkhan pathan had misappropriated the funds of piploi Cooperative Society. Thereafter, the present Special Civil Application came up for admission hearing before this Court. Thereafter, the present Special Civil Application came up for admission hearing before this Court. At the time of hearing of the present Special Civil application, the petitioner was asked whether any chargesheet has been filed against the petitioner in connection with the aforesaid criminal complaint or not. The petitioner sought time to verify the same and on the next date, Shri Pradeep Patel, Learned advocate representing the petitioner had submitted that a chargesheet is already filed against the petitioner for the offences punishable under Section 408 read with section 114 IPC for misappropriation of rs. 2,53,398. 75 ps. of Piploi Cooperation society. The copy of the said chargesheet is taken on record. ( 9 ) I have heard Shri Pradeep Patel, learned Advocate for the petitioner and considered the submissions put forth by him. The contention that the petitioner is not involved in a criminal case involving moral turpitude has no substance at all. The allegation against the petitioner is for misappropriation of Rs. 2,53,398. 75 ps. of the funds of the society in which the petitioner was serving as Secretary. The contention of the petitioner that because of political rivalry, a false complaint has been filed against the petitioner has also no basis. On the contrary after throrough investigation by the investigation Officer, a chargesheet has been filed against the petitioner for the offence punishable under Section 4o8 read with section 114 of the IPC for misappropriation of Rs. 2,53,398. 75 ps. Therefore, it cannot be said that there is no case made out against the petitioner. In view of the fact that the chargesheet is filed against the petitioner now, there is prima facie case against the petitioner for the offence under Section 408 read with section 114 of the IPC. Under the circumstances, the contention of the petitioner that he has been falsely involved in the case and that because of political rivalry, a false case has been filed against him has no substance whatsoever and the said contention is required to be rejected. Under the circumstances, the contention of the petitioner that he has been falsely involved in the case and that because of political rivalry, a false case has been filed against him has no substance whatsoever and the said contention is required to be rejected. So far as the argument made on behalf of the petitioner on the basis of the judgment of this Court reported in 1997 (1)GLR page 599 and 1999 (2) GLR Page 963 laying down the proposition of law that a Sarpanch cannot be suspended just on institution of a criminal case and whether the act alleged constitute an offence of moral turpitude, there cannot be straight jacket formula, this Court is in agreement with the reasoning given by this court in the aforesaid 2 judgments. It is true that there is no straight jacket formula that moment the criminal case is filed against the sarpanch, he is required to be suspended. Whether the criminal case filed against the petitioner is for the offence involving moral turpitude is concerned, it is required to be considered in the facts and circumstances of each case. In the present case, the allegation against the petitioner is for misappropriation of Rs. 2,53,398. 75 ps. and under Section 408 read with Section 114 IPC as there is a prima facie case against the petitioner, the petitioner is required to be tried for the aforesaid 2 offences. A chargesheet is also filed against the petitioner in the competent Criminal court for the offences under Section 408 read with Section 114 of the IPC. If the petitioner who being the Head of the Village is involved in a case of misappropriation and a criminal case against the petitioner for the offence under Section 408 read with Section 114 IPC is instituted and is pending for misappropriation of the amount of Cooperative society, in which he was serving as a secretary, by no stretch of imagination, it can be said that the said offence is not involving moral turpitude. In fact, the sarpanch is required to act and behave like a gentleman. As observed by the Honourable supreme Court in the case of bipinchandra PARSHOTTAMDAS patel VS. STATE OF GUJARAT reported IN (2003) 4 SCC PG. In fact, the sarpanch is required to act and behave like a gentleman. As observed by the Honourable supreme Court in the case of bipinchandra PARSHOTTAMDAS patel VS. STATE OF GUJARAT reported IN (2003) 4 SCC PG. 642, the object of the provision is to keep criminal elements away from local bodies and to allow public offices to be held by persons with apparent intergrity and normal conduct. In fact, the village people are required to learn a lesson from him. Considering the aforesaid facts and circumstances and even considering the aforesaid two judgments, this Court is of the opinion that the order passed by both the authorities below suspending the petitioner under Section 59 (1) of the Act are just and proper in accordance with law. ( 10 ) SO far as the another contention of the petitioner relying upon -the order passed by the Deputy Secretary (Appeals), Agriculture and Cooperation department dated 10. 4. 2003 whereby the order passed by the District registrar removing the petitioner as a secretary of the cooperative society is concerned, both the proceedings i. e. proceedings under Section 59 (1) of the Gujarat panchayat Act and the order of removal are required to be considered separately. Both are independent proceedings and have different objects. What is required under section 59 of the GUJARAT PANCHAYATS ACT, 1993 is whether a criminal case is instituted against the Sarpanch for the offence involving moral turpitude and whether the Sarpanch was in judicial custody or not. It is found that a criminal case is instituted against a Sarpanch of the offence involving moral turpitude and/or that a sarpanch is in judicial custody, order of suspension is required to be passed. So far as removal from the service is concerned, there are different standards. Standards while considering removal as Secretary of cooperative Society cannot be compared with the standards required while suspending a sarpanch under Section 59 of the Gujarat panchayat Act. In the present case, it is also found by the District Development Officer and Additional Development Commissioner that apart from the fact, when criminal case was instituted against the petitioner, he was in custody for more than 4 days. Even considering the reasoning by the Deputy secretary (Appeals), Agriculture and cooperation Department dated 10. 4. In the present case, it is also found by the District Development Officer and Additional Development Commissioner that apart from the fact, when criminal case was instituted against the petitioner, he was in custody for more than 4 days. Even considering the reasoning by the Deputy secretary (Appeals), Agriculture and cooperation Department dated 10. 4. 2003, upon which reliance has been placed by the petitioner, the same is based on the fact that with regard to the allegation of misappropriation, criminal complaint is filed, investigation is going on and there is no final decision taken. So far as the finding by the said authority with regard to the fact that it is not a case of misappropriation and it is a case of recovery is concerned, this Court is not required to consider the same. However, in view of the fact that a criminal case was pending against the petitioner with regard to misappropriation and the trial is still to proceed further as such, the said authority could not have given the finding to the effect that it is not a case of misappropriation and it is only a case of recovery. Be that as it may, so far as the proceedings under Section 59 (1) of the GUJARAT PANCHAYATS ACT, 1993 are concerned, as stated hereinabove, there are different standards than the standards and the evidence which is required to be considered while taking a decision for removal of a Secretary and having found that the petitioner is involved in a criminal case for the offence involving moral turpitude (with regard to misappropriation) of the offence under Section 408 read with Section 114 IPC and that there is a chargesheet filed against the petitioner and that the petitioner was in judicial custody for more than 4 days, it cannot be said that the judgment and order passed by both the authorities below suspending the petitioner under Section 59 (1) of the Act are in any way illegal and/or arbitrary and/or contrary to the provisions of Section 59 of the GUJARAT PANCHAYATS ACT, 1993 which calls for interference of this Court exercising powers under Article 226 of the Constitution of India. This Court is of the opinion that both the authorities are justified in passing an order of suspension, suspending the petitioner as. This Court is of the opinion that both the authorities are justified in passing an order of suspension, suspending the petitioner as. a sarpanch of Piploi Gram Panchayat, the said orders are just and proper and in accordance with law and in consonance with the provisions of Section 59 (1) of the Gujarat panchayat Act and in public interest. Under the circumstances, there is no substance in the present Special Civil Application and the same is hereby dismissed. .