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2016 DIGILAW 1352 (GUJ)

Niraj Kaushikchandra Desai v. State of Gujarat

2016-07-18

RAJESH H.SHUKLA

body2016
JUDGMENT : Rajesh H. Shukla, J. 1. The present petition is filed by the Petitioner under Articles 14, 21, 226 of the Constitution of India as well as under the provisions of Gujarat Panchayats Act, 1993 (hereinafter referred to as "the Act") for the prayer inter-alia quashing and setting aside the order passed by the Additional Development Commissioner in Appeal No. 9 of 2016 dated 19.4.2016 at Annexure-E by which he has set aside the order of the District Development Officer, suspending the Respondent No. 6 vide order dated 29.1.2016 on the grounds stated in the memo of petition. 2. The facts of the case briefly summarized are that the Petitioner is serving in a Company named Royal Arc Electrodes Company Limited as Human Resources Assistant. He gave an application in Zaroli Gram Panchayat requesting that the assessment may be made for the amount of property to be deposited so that the amount of tax can be paid. He met the Talati and the Sarpanch. The Sarpanch of the Gram Panchayat evaded the assessment and in turn demanded Rs. 25000/- as illegal gratification for the purpose of making the assessment. Therefore, the complaint was lodged with Valsad and Dang ACB Police Station, on the basis of which, FIR was registered with the ACB Police Station, Valsad for the offence under the Prevention of Corruption Act. The Sarpanch of the Gram Panchayat was caught red-handed demanding and accepting the amount of bribe (illegal gratification). The Sarpanch of the Gram Panchayat was arrested on 10.1.2016 and produced before the learned Special Judge, Valsad on 11.1.2016 and he was taken to the judicial custody and thereafter he was released on bail. However, as per Section 59 of the Act regarding suspension of Sarpanch or Upa-Sarpanch, the powers are vested with the District Development Officer, who can suspend the Sarpanch of the Panchayat against whom the criminal proceedings in respect of the offence involved in moral turpitude has been instituted or who has been detained in prison during trial for any offence amongst other exigencies. Therefore, the District Development Officer, on the basis of the alleged incident of demand and acceptance of illegal gratification amounting to moral turpitude has observed that it is not befitting a public servant, and therefore, in exercise of powers under Section 59 of the Act, suspended the Sarpanch - Respondent No. 6 from the post of Sarpanch of Zaroli Gram Panchayat. Pending the final outcome of the special case, Respondent No. 6 challenged the said order by way of Appeal No. 9 of 2016 before the Additional District Development Commissioner, State of Gujarat. The Additional District Development Commissioner partly allowed the Appeal filed by Respondent No. 6 and set aside the order of suspension passed by the District Development Officer, Valsad on the ground that before the order of suspension, an opportunity of hearing has not been provided and has remanded the matter back. It is this order which has been assailed in the present petition. 3. Heard learned Advocate Shri Zubin F. Bharda for the Petitioner. Learned Advocate Shri Bharda has referred to the provisions of Section 59 of the Gujarat Panchayat Act for suspension of the Sarpanch or the Upa-Sarpanch. He submitted that it is required to be considered that the Sarpanch or the Upa-Sarpanch involved in an offence of moral turpitude and detained in prison during trial would attract the provisions of Section 59(1) of the Act. He therefore submitted that the Development Commissioner while partly allowing the Appeal could not have set aside the order merely because the District Development Officer has not afforded an opportunity of hearing, which is not even contemplated under the Act. Learned Advocate Shri Bharda submitted that for the purpose of order of suspension, what is required to be considered is whether the person has been involved in any offence amounting to moral turpitude and the law provides for suspension because such a person in discharge of his public duties cannot be permitted to indulge into such acts. He submitted that the Development Commissioner while partly allowing the same has committed an error and overlooked the background of the fact that the Sarpanch was caught red-handed for the illegal gratification, and if such a person is allowed to continue, it would be against the public interest. 4. He submitted that the Development Commissioner while partly allowing the same has committed an error and overlooked the background of the fact that the Sarpanch was caught red-handed for the illegal gratification, and if such a person is allowed to continue, it would be against the public interest. 4. Learned Advocate Shri Zubin Bharda has referred to and relied upon the judgment of the High Court of Gujarat reported in 2009 (22) GHJ 190 in case of Aswinbhai Somabhai Kachhia Patel v. State of Gujarat and emphasized the observations made in paragraphs 8, 11 and 12. Learned Advocate Shri Bharda submitted that referring to the earlier judgment of the Hon'ble Apex Court reported in (2003) 4 SCC 642 in case of Bipinchandra Parshotamdas Patel v. State of Gujarat, the same issue with reference to the powers under Section 59 of the Act have been considered. He submitted that as observed, the phrase 'during trial' may not be given restrictive meaning and it has to be considered. He submitted that the opportunity of hearing was also considered and it has been observed that the opportunity has no role to play. 5. Learned Advocate Shri Bharda has also referred to and relied upon the judgment of the High Court of Gujarat reported in 2010 (3) GLR 2506 in case of Gopalbhai Khemchanddas Patel v. District Development Officer, Mehsana and Ors. He emphasized the observations made in the Head Note B:- "Section 59 expressly confers discretionary powers upon the District Development Officer to suspend Sarpanch or Upa-Sarpanch, predicated upon fulfilment of certain conditions and does not provide for an opportunity of being heard or even issuance of a show-cause notice. If, even then, the D.D.O. Has sought to observe the principles of natural justice, the suspended Sarpanch cannot be allowed to bank, upon some defect or omission in the show-cause notice, if he were otherwise liable to be suspended. In view of the conscious exclusion of any adjudication preceding the suspension, and in view of the urgent and summary nature of requisite verification about fulfilment of conditions precedent to exercise of power, the order of suspension under Section 59 of the Act cannot be assailed on the grounds of violation of principles of natural justice." 6. In view of the conscious exclusion of any adjudication preceding the suspension, and in view of the urgent and summary nature of requisite verification about fulfilment of conditions precedent to exercise of power, the order of suspension under Section 59 of the Act cannot be assailed on the grounds of violation of principles of natural justice." 6. Finally, learned Advocate Shri Zubin F. Bharda has also referred to and relied upon the judgment of the Hon'ble Division Bench of this Court [Coram: S.J. Mukhopadhaya, C.J. (as he then was) and K.M. Thaker, J.] in Letters Patent Appeal No. 2220 of 2010 in Special Civil Application No. 3553 of 2010, reported in 2012 (1) GLR 719 in case of Keshabhai Panabhai Solanki v. Dahyaji Babaji Thakor & Ors. as regards the locus standi. He submitted that in an identical situation it was held that the issue or the subject matter raises an issue about the suitability of incumbent in public office and whereas such an order is challenged, the citizen has a right and special interest in such a subject matter and can file a petition under Article 226 and 227 of the Constitution of India. He therefore submitted that the present petition may be allowed. 7. Learned AGP Shri Janak Raval for the Respondent - State has made an attempt to refer to the provisions of Section 59 of the Act and submitted that it refers to the fact that it would not automatically disqualify him from continuing as member. He submitted that the order of the Additional Development Commissioner modifying the order of the District Development Officer may not be disturbed and appropriate order may be passed. 8. In view of these rival submissions, it is required to be considered whether the present petition deserve consideration. 9. The first aspect about the locus standi has been set at rest in light of the judgment of the Hon'ble Division Bench of this Court (Coram: Hon'ble Mr. S.J. Mukhopadhyaya, C.J. (as he then was) and Mr. Justice K.M. Thaker) in Letters Patent Appeal No. 2220 of 2010, reported in 2012 (1) GLR 719 in case of Keshabhai Panabhai Solanki v. Dahyaji Babaji Thakor & Ors. where it has been discussed at length with regard to the locus standi and the concept of locus standi of categorizing or classifying the petitioner as "stranger", "busy body", "interested person", "aggrieved person". 10. where it has been discussed at length with regard to the locus standi and the concept of locus standi of categorizing or classifying the petitioner as "stranger", "busy body", "interested person", "aggrieved person". 10. After considering these aspects relying on the earlier judgment particularly with emphasis on "aggrieved persons", the observations have been made: "Thus, in the matter of filing a writ petition the Apex Court recognized the right and locus of a citizen who has "special interest" and some deeper concern" in the subject matter. Likewise when some compelling and conscience disturbing facts or when an order dealing with alleged act or conduct in the nature of moral turpitude rendering a person unfit to continue to hold public office, or when such conduct by a person holding public office is made the ground for preferring writ petition so as to question the respondent's suitability in the office and to behold the dignity and purity of public office then in such cases, depending on its facts, it may not be proper or justified to allow the ground of locus standi to be an impediment and/or to deny a writ on the ground of lack of locus standi of the person seeking corrective command by the Court." 11. Reference is also made to the judgment of the Hon'ble Apex Court reported in (1991) 4 SCC 54 in case of Bangalore Medical Trust v. B.S. Muddappa. Therefore the locus standi of the petitioner cannot be a matter of question. 12. Again, the Petitioner seeking to challenge the order passed by the Additional Development Commissioner allowing partly the Appeal filed by Respondent No. 6 staying the order of suspension passed by the DDO, Valsad is required to be considered. 13. As recorded herein above, it has been set aside on the ground that an opportunity of hearing has not been provided and the matter has been remanded back. The provisions of the Act particularly Section 59 of the Act does not contemplate for providing any such opportunity. The word "suspension" as per Black's Law Dictionary is defined as:- "The temporarily deprivation of a person's powers or privileges, esp. of office or profession." Thus, it is a measure to keep someone away or at arms length from either exercising the powers or continuing in the public office, which may not be in the public interest. 14. The word "suspension" as per Black's Law Dictionary is defined as:- "The temporarily deprivation of a person's powers or privileges, esp. of office or profession." Thus, it is a measure to keep someone away or at arms length from either exercising the powers or continuing in the public office, which may not be in the public interest. 14. It is required to be stated that while considering the public interest, it has to be given a wider meaning suggesting that a person belonging to the public office may not be allowed to remain there with some charges of moral turpitude. It is in the public interest that if such a person is suspended and not allowed to remain in office, it would sustain the faith and morality of the people in such public administration. A useful reference could be made to the observations made by the Hon'ble Apex Court in a judgment reported in (2003) 4 SCC 642 in case of Bipinchandra Parshottamdas Patel v. State of Gujarat referring to this very issue, wherein it has been observed:- "Responding to the contention regarding lack of opportunity of hearing, it was submitted that the Circular issued by the State Government was in the form of internal instructions and even if the same had not been adhered to, yet the order would not be vitiated considering the fact that the term 'suspension' itself indicated that the same had to be imminent. It was submitted that when the Provision of section 59(1) of the Act is read in juxtaposition with Provision of section 57 of the Act, it was apparent that legislature had consciously provided for an opportunity of hearing in case of removal only and not in a case of suspension." This aspect has also been referred to in the judgment of the High Court (Coram: D.A. Mehta, J.) reported in 2009 (0) GLHEL-HC 221759 in case of Aswinbhai Somabhai Kachhia Patel v. State of Gujarat. The High Court while considering this very issue of "suspension" of Sarpanch on the ground of moral turpitude and exercise of powers under Section 59 of the Act, has discussed and interpreted the provisions of Section 59 of the Act. The High Court while considering this very issue of "suspension" of Sarpanch on the ground of moral turpitude and exercise of powers under Section 59 of the Act, has discussed and interpreted the provisions of Section 59 of the Act. The condition as provided in Section 59 of the Act for exercise of powers of suspension is that:- "(i) In case of a Sarpanch against whom a criminal proceedings instituted for the offence involving moral turpitude have been instituted. (ii) In case of a Sarpanch who has been detained in a prison during trial for any offence. (iii) In case of a Sarpanch, who is undergoing such a sentence of imprisonment as would not disqualify him from continuing as a member of the Panchayat under Section 30. (iv) In case of a Sarpanch, who has been detained under any law relating to preventive detention for the time being in force. These conditions which have been referred to are to be read disjunctively and independent of each other, meaning thereby, in a given case, one or more conditions may be attracted simultaneously. However, for the purpose of determining whether the condition is fulfilled or not, it has to be considered whether the Sarpanch, who is elected could be suspended on fulfillment of these conditions. In the facts of the case, the Respondent No. 6 has been caught red-handed, for which the offence under the Prevention of Corruption Act has been registered, was taken in custody and thereafter has been released on bail. Therefore, these conditions are fully attracted and the institution of criminal proceedings in respect of having involved in moral turpitude is sufficient." 15. Moreover, it is well settled that the provisions of the statute has to be read as it is. Therefore, where the statute is silent in case of suspension under Section 59 of the Act, consciously providing for hearing in case of removal, it has to be necessarily implied that the legislature has consciously not provided for such hearing for the purpose of suspension. It has to be also considered that the exercise of such discretion of suspension is in public interest and considering the nature of moral turpitude one may have to be kept out of office urgently and therefore the legislature in its wisdom has not provided for such interim measure. It has to be also considered that the exercise of such discretion of suspension is in public interest and considering the nature of moral turpitude one may have to be kept out of office urgently and therefore the legislature in its wisdom has not provided for such interim measure. It is well established that the suspension does not necessarily mean any punishment and it is as and by way of temporary measure pending some proceedings either departmental inquiry or criminal trial or any such proceedings like in the present case for removal. Therefore, the concept of rules of natural justice cannot be stretched even while analyzing catena of judicial pronouncements though the statutory provisions or rules may not have expressly provided for hearing. The observations have been made that it may be read into it. However, there are also exceptions provided and it is well settled that the rules of natural justice may not have to be followed if the public interest so demands. Therefore, the moot question in such case is the transparency and faith of the people which is to be maintained in the administration suggesting that a person accused of moral turpitude may not be allowed to function or continue to remain on post. The word 'moral turpitude' is defined in the Black's Law Dictionary as: "Conduct that is contrary to justice, honesty, or morality - In the area of legal ethics, offenses involving moral turpitude - such as fraud or breach of trust." Thus the word 'moral turpitude' has to be considered in background of all the relevant facts like the nature of offence, the person who is alleged to have committed the offence or the post held by him, the manner and circumstances in which the alleged act has been committed. 16. It is well accepted that in a democratic set up, the elected representative with background of criminal cases adversely affects the esteem of social institutions and also the post held by such person. Therefore, the underlying philosophy of all the discussion and the judgments referred to herein above, has reference to standard of purity in administration and the morality of the person holding such posts. It will have a bearing on the image of the social institutions like Panchayats or the Municipalities or the local bodies and the post like Sarpanch. Therefore, the underlying philosophy of all the discussion and the judgments referred to herein above, has reference to standard of purity in administration and the morality of the person holding such posts. It will have a bearing on the image of the social institutions like Panchayats or the Municipalities or the local bodies and the post like Sarpanch. Therefore, as observed in a judgment of the Hon'ble Apex Court reported in (2003) 4 SCC 642 in case of Bipinchandra Parshottamdas Patel (Vakil) v. State of Gujarat and Ors. the observations have been made while interpreting the word 'trial' for the purpose of holding of the post, and it has been observed: "Therefore, the word "trial" should not be given a restricted meaning." Therefore, the allegations for corruption in the facts of the case would constitute a moral turpitude has to be considered. There may not be any rigid or inflexible rule. However, the fact that the ACB case is registered, the competent authority while considering this aspect of suspension has to consider all such relevant facts. 17. Again it may be added that there has to be some prima facie case made out and mere allegation or the vague allegations itself would be a ground for exercise of such power of suspension. In the facts of the case, Respondent No. 6 has been caught red-handed in the trap by the ACB itself prima facie suggest for a justification for the suspension in exercise of statutory power under Section 59 of the Act. 18. A useful reference can also be made to the observations made by this Court (Coram: D.H. Waghela, J.) in a judgment reported in 2010 (3) GLR 2506 in case of Gopalbhai Khemchanddas Patel v. District Development Officer, Mehsana & Ors. Therefore, it suggest that truth of the allegations is not required to be gone into in a proceeding under Section 59(1) of the Act. It is not necessary that the offence should have been committed in connection with the duties of a Sarpanch. It may be any offence involving moral turpitude which would make him unfit to continue in the office of Sarpanch and the suspension would be justified. The offence under the Prevention of Corruption Act would certainly justify the exercise of such discretion under Section 59 of the Act. 19. Therefore, the present Petition deserve to be allowed and accordingly stands allowed. The offence under the Prevention of Corruption Act would certainly justify the exercise of such discretion under Section 59 of the Act. 19. Therefore, the present Petition deserve to be allowed and accordingly stands allowed. The impugned order passed by the Additional Development Commissioner partly allowing Appeal No. 9 of 2016 vide order dated 19.4.2016 at Annexure-E and remaining the matter back to the District Development Officer, Valsad is hereby quashed and set aside. The order of suspension passed by the District Development Officer, Valsad dated 29.1.2016 deserve to be upheld and maintained. The present Petition accordingly stands allowed. Rule is made absolute. Petition Allowed.