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2016 DIGILAW 1802 (GUJ)

BHARATBHAI FATEHSINH VASAVA v. STATE OF GUJARAT

2016-08-23

RAJESH H.SHUKLA

body2016
JUDGMENT : RAJESH H.SHUKLA, J. 1. The present petition is filed by the petitioner under Articles 14, 19, 21 and 226 and 227 of the Constitution of India as well as under the provisions of the Gujarat Panchayat Act, 1993 for the prayer inter alia that the order passed in Appeal No. 8 of 2016 by Respondent No.1 dated 19.4.2016 confirming the order passed by Respondent No.2 dated 9.2.2016 may be quashed and set aside on the grounds stated in the memo of petition. It is further prayed that Respondent No.2 may be directed that the petitioner may be permitted to perform the duties as Sarpanch of Village Dholekham Group Gram Panchayat. 2. Heard learned Advocate Shri R.K. Mansuri for the petitioner and learned AGP Shri V.R.Jani for the Respondent State. 3. Learned Advocate Shri Mansuri referred to the background of the facts and referred to both the impugned orders and submitted that the offence has been registered, but, it cannot be said to be amounting to moral turpitude. He submitted about the background of the facts, which lead to the filing of the complaint or the FIR, and submitted that it is an abuse, and till the verdict by the competent court is declared, merely because there is an FIR, the petitioner may be allowed to function, as he is an elected representative. Learned Advocate Shri Mansuri has also referred to and relied upon the judgment of the Larger Banch of the High Court reported in 2001 (3) GLH 133 : [ 2001 (3) GLR 2213 (FB)] in case of Nasirkhan Nivaskhan Pathan v. District Development Officer and submitted that, as observed in this judgment, the offtence under the Indian Penal Code passed ipso facto would not constitute moral turpitude. He also referred to the order at Annexure-F passed by the Development Commissioner to support his contention. He referred to and relied upon the judgment of this Court (Coram: Akil Kureshi, J) reported in 2006 (1) GLH 67 in case of Somabhai Bhagwanbhai Gohil v. State of Gujarat and ors. and submitted that mere involvement in offence ipso facto would not constitute moral turpitude. He emphasized the observations made in paragraph 9 and submitted that in that case also the offence under Sections 323, 324, 504 and 506 I.P.C. were registered and it was observed that it would not constitute the offence involving moral turpitude. 4. and submitted that mere involvement in offence ipso facto would not constitute moral turpitude. He emphasized the observations made in paragraph 9 and submitted that in that case also the offence under Sections 323, 324, 504 and 506 I.P.C. were registered and it was observed that it would not constitute the offence involving moral turpitude. 4. As could be seen from the background of the facts and the affidavit-in-reply filed on behalf of Respondent No.2, it is not in dispute that the petitioner was elected as Sarpanch of Village Dholekham Group Gram Panchayat. However, a complaint was filed that the petitioner is involved in a criminal case, and on the basis of the inquiry made by the Taluka Development Officer, a report dated 15.10.2015 was submitted, which reflected that the FIR has been registered for the offence under I.P.C. and the petitioner was arrested on 15.5.2015 and remained in judicial custody till 27.5.2015 and thereafter was enlarged on bail. Therefore, as the offence alleged against the petitioner in the said FIR being I-CR No. 14 of 2015 with Ummalla Police Station for the offence under Sections 326, 323, 452, 427, 504 and 114 of I.P.C. is said to have been registered, it is in this background, whether the impugned order, which is passed can be said to be illegal. The submissions have been made that whether the offences which have been registered ipso facto would entitle the authority to pass the order suspending the petitioner as Sarpanch on the ground of moral turpitude. Therefore, though the submissions have been made referring to the judgments of the High Court reported in 1999 (2) GLH 963 : [ 1999 (3) GLR 2693 ] in case of Bhikhumiya Sarfumiya Malek v. D.D.O. Mehsana & Anr. as well as 2006 (1) GLH 67 in case of Somabhai Bhagwanbhai Gohil v. State of Gujarat & Ors., these judgments have a reference to the statutory provisions and the aspect of suspension. 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. 5. 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. 5. Both the judgments, which have been referred to by learned Advocate Shri Mansuri have a reference to the observations made by learned Single Judge as to whether the registration of the offence would amount to moral turpitude, which ipso facto justify the suspension. The Full Bench judgment of this Court in a judgment reported in 2001 (3) GLH 133 : [ 2001 (3) GLR 2213 (FB)] in case of Nasirkhan Nivaskhan Pathan v. District Development Officer has made the observations referring to the interpretation and applying the doctrine of ‘noscitur a sociis” and also the doctrine of ‘ejusdem generis’. Referring to the statutory provisions and the background or the intention of the legislature also, these principles have been considered. It has been observed: “Applying the aforesaid principles of "noscitur a sociis" and doctrine of “ejusdem generis” the correct interpretation is required to be reached. Obviously, when doubt is raised about the intent, content and the colour of the word, phrase or sentence of a provision in the enactment, an aid of colouring agent provides useful guide, helpful aid, in finding out the true legislative intendment.” Thus, such provisions which referred to the disqualification, lead to suspension from the post, have to be considered. In this judgment of the Full Bench, the Full Bench has considered with reference to the word ‘pending criminal proceedings’. In this judgment of the Full Bench, the Full Bench has considered with reference to the word ‘pending criminal proceedings’. However, the Division Bench of the High Court in a judgment reported in 2012 (1) GLR 719 in case of Keshabhai Panabhai Solanki v. Dahyaji Babaji Thakor & Ors., after referring to the earlier judgment of the Full Bench as well as the judgment of the Hon'ble Apex Court has observed: “Another aspect which also should guide the competent authority in exercising the discretion and the power under subsection (1) of section 59 is that the provision has been made in respect of the office of local body where the person holds the office upon being elected by the electorate who does not have the power to recall the elected members of the local body and that therefore the legislature recognized the requirement to provide a safeguard so that such member who is elected for holding the public office of Sarpanch or Up-Sarpanch in the local body, does not misuse the absence of right of being recalled by the electorate and upon recognizing the said requirement, the legislature made the provision by way of sections 57 and 59 of the Act. At the same time suspension of elected representative by administrative order ought to be done cautiously and fine balance between the need to maintain purity of public office and tenure of elected member has to be maintained.” 6. Again while exercising the discretion before passing the order, the competent authority has to apply the mind. The fulcrum, for all decisions will, however, be morality or its absence and that is what must act as a guiding force for the authority. 7. It is well accepted that in the democratic set up or the democratic process the elected representative with the background of criminal cases adversely affects the esteem of the social institutions and also the post held by such person. Therefore, the underlying object of all the discussions has a reference to the standard of purity in administration and the morality of the person holding such posts. This in turn will have creating an image for the social institutions like Panchayat or the Municipality or the local body and also the post like Sarpanch. Therefore, the underlying object of all the discussions has a reference to the standard of purity in administration and the morality of the person holding such posts. This in turn will have creating an image for the social institutions like Panchayat or the Municipality or the local body and also the post like Sarpanch. If the persons having the background with criminal complaint is held or is permitted to continue, it would run counter to the basic philosophy of purity and morality, which is needed in democratic set up to maintain the faith of the people. It is in this background, a useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment reported in (2003) 4 SCC 642 : [2003 (2) GLR 1577 (SC) in case of Bipinchandra Parshottamdas Patel (Vakil) v. State of Gujarat and ors., which has, while interpreting the provisions of Gujarat Municipalities Act and the word ‘trial’ for the purpose of holding of the post, has observed: “Therefore, the word “trial” should not be given a restricted meaning.” It has also been observed: “The manifest intention and obvious purpose of Section 40 is to ensure the proper functioning of the Office of the President or Vice-President of the Municipalities by keeping the public confidence. A person, who is detained in prison, will not be able to effectively discharge his public duties. So the Act aims to keep those persons, against whom serious criminal proceedings are initiated or who are detained in prisons, away from the public office of the President or Vice-President of the Municipalities until they are cleared of the charge. Actual conviction for the alleged offence is not a necessary pre-condition for any suspension under Section 40.” On the same analogy, the order impugned to suspend the petitioner from the office of Sarpanch is thus considering the nature of charges or the offence for charges under the I.P.C. reflecting about the conduct of the petitioner covered under the moral turpitude. 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.” Again the morality has to be considered on the basis of the conduct of a person in public life holding the public post or the elected representative. It is in this context, to suggest that merely because the person is charged for the offence under the I.P.C. justifying the action of suspension, would rather run counter to the legislative intent and the basic principles of democratic set up. The word ‘moral turpitude’ has to be considered in background of the facts and the relevant factors like the nature of offence, the person who is alleged to have committed the offence or the post held by him, the manner and circumstnaces in which the alleged act has been committed. Thus, whether the allegation for the offence under the I.P.C., constitutes a moral turpitude or not, has to be judged, depending upon the facts of each case, and there cannot be any rigid or inflexible rule laid down as to which type of cases or the offence would be covered justifying the exercise of such discretion at the stage when the FIR is lodged and the charge sheet is filed. Therefore, the competent authority must have a record to various factors and the ultimate object of the legislature, which, as stated above, will have the bottom line of purity and morality. 8. It may not be out of place to say that every allegation for the offence under the I.P.C., by itself, would be a moral turpitude, but the competent authority, while exercising the discretion, and taking the decision for suspension, in exercise of statutory power, has to consider all such relevant facts, including the possibility of concocted and frivolous complaint, personal animosity on one hand also. In the facts of the case, having regard to the aforesaid background, it cannot be said that the impugned order is erroneous, which would call for exercise of discretion under Article 226. The present petition, therefore, deserve to be dismissed and accordingly stands dismissed.