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2019 DIGILAW 726 (BOM)

Pradip Vishwanath Lonkar v. State of Maharashtra

2019-03-12

MANISH PITALE

body2019
ORDER : 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 2. By this writ petition, the petitioners have challenged order dated 17.04.2018 passed by the respondent No. 1 dismissing their appeal against an order dated 19.07.2017 passed by the respondent No. 2, in a proceeding leading to their removal from being members of the Gram Panchayat, Zodga under Section 39(1) of the Maharashtra Village Panchayats Act, 1959 (for short ‘the Act’). 3. The petitioners stood removed from their positions of elected members of the Gram Panchayat for having passed a resolution dated 07.11.2015, in a meeting of the Gram Panchayat whereby it was resolved that a high level inquiry was required to be conducted into certain works allotted for construction and development of roads in the jurisdiction of the Gram Panchayat, upon the contract being awarded to a particular construction company. 4. The petitioners along with other persons were elected as Members of the Gram Panchayat in August, 2015. It is found that certain complaints were received as regards the manner in which the roads were constructed on contracts being awarded to a particular construction company and that taking into consideration the said complaint, the aforesaid resolution was passed by the five petitioners on one side and one member on the other of the Gram Panchayat. It was resolved that high level inquiry was required to be conducted into the said complaint because there were allegations of corruption during implementation of the said project of construction and development of roads. 5. Respondent Nos. 4 to 6, also being members of the Gram Panchayat submitted a complaint under Section 39-A of the aforesaid Act for removal of the petitioners in the context of the said resolution dated 07.11.2015, claiming that by passing the said resolution, the petitioners had indulged in misconduct. As required under proviso to Section 39-A of the said Act, an inquiry report was called from the Chief Executive of the Zilla Parishad. Accordingly, a report dated 03.11.2016 was submitted before the respondent No. 2 Divisional Commissioner by the Chief Executive Officer of the Zilla Parishad. As required under proviso to Section 39-A of the said Act, an inquiry report was called from the Chief Executive of the Zilla Parishad. Accordingly, a report dated 03.11.2016 was submitted before the respondent No. 2 Divisional Commissioner by the Chief Executive Officer of the Zilla Parishad. After taking into consideration material on record, it was stated in the said report that although there was material in the form of reports which indicated that that the works of construction of roads were undertaken without any indication of corruption or deficiencies in the works, such reports did not bear any date or outward or inward number and that there were no documents in support of such reports. After taking into consideration all this material, the Chief Executive Officer of the Zilla Parishad in his report opined that the petitioners had passed the said resolution dated 07.11.2015 on the basis of complaints received regarding the quality of the works undertaken by the Gram Panchayat and that by calling for a high level inquiry into the aspect of corruption, it could not be said that the petitioners were guilty in any manner. 6. Despite the aforesaid report in favour of the petitioner, by impugned order dated 19.07.2017, the respondent No. 1 allowed the complaint filed by respondent Nos. 4 to 6 and declared that the petitioners were disqualified from being members of the said Gram Panchayat. It is relevant that respondent No. 6, who was also one of the original complainants, later withdrew her complaint. A perusal of the impugned order dated 19.07.2017 passed by respondent No. 2 shows that the only reason why the said respondents found the petitioners guilty of misconduct was that bills of the construction company stood withheld on the basis of the high level inquiry proposed by the resolution dated 07.11.2015 and that while payments were made to the labourers, the release of the payment to the construction company had been suspended, resulting in violation of the tender conditions and agreement. According to the respondent No. 2, this amounted to misconduct on the part of the petitioners inviting their disqualification/removal under Section 39-A of the aforesaid Act. Aggrieved by the said order, the petitioners had filed an appeal before the respondent No. 1 under Section 39(3) of the said Act. According to the respondent No. 2, this amounted to misconduct on the part of the petitioners inviting their disqualification/removal under Section 39-A of the aforesaid Act. Aggrieved by the said order, the petitioners had filed an appeal before the respondent No. 1 under Section 39(3) of the said Act. By impugned order dated 27.04.2018, the respondent No. 1 dismissed the appeal, agreeing with the findings of the respondent No. 2 and further holding that the action of the petitioners had resulted in the work under the Employment Guarantee Scheme being disturbed and that, therefore, the petitioners could be said to have indulged in misconduct. Aggrieved by the said two impugned orders, the present writ petition has been filed. 7. Mr. H.R. Gadhia, learned counsel for the petitioners, submitted that perusal of the resolution dated 07.11.2015 would show that the petitioners were concerned with the allegations of corruption made in the process of implementation of the project of construction of roads and that the petitioners had passed the said resolution by majority, only with a view to ensure that the complaints made by the residents were inquired into and that the allegations of corruption would be properly attended. It was submitted that this was an action undertaken by the petitioners for the benefit of the people and the functioning of the Gram Panchayat and it would certainly not fall within the grounds for removal of the members of the Gram Panchayat as the grounds pertained to misconduct or disgraceful conduct or of neglect of or incapacity to perform the duty or being persistently remiss in the discharge thereof. According to the learned counsel, the action of the petitioners of being party to the aforesaid resolution, could not be said to be covered by any of the aforesaid grounds and that, therefore, the impugned orders were required to be set aside. The learned counsel placed reliance on judgments of this Court in the case of Prabhakar vs. Harichandra, 2009 (4) Mh. L.J. 850 and Shrikant vs. State of Maharashtra, 2010 (4) Mh. L.J. 856 : 2010 (3) AIR Bom R 457. 8. On the other hand, Mr. The learned counsel placed reliance on judgments of this Court in the case of Prabhakar vs. Harichandra, 2009 (4) Mh. L.J. 850 and Shrikant vs. State of Maharashtra, 2010 (4) Mh. L.J. 856 : 2010 (3) AIR Bom R 457. 8. On the other hand, Mr. S.D. Chopde, learned counsel appearing for respondent No. 4 submitted that the direct effect of the resolution dated 07.11.2015 passed by the petitioners as members of the said Gram Panchayat, was that development work was hampered and payments of the construction company were not released, leading to breach of agreement entered into by the Gram Panchayat. It was submitted that the respondent No. 1 took into consideration the aforesaid impact of the resolution passed by the petitioners and upon finding that development work was disturbed, it was correctly concluded that the passing of the said resolution by the petitioners amounted to misconduct, making them liable for removal from office under Section 39-A of the said Act. It was submitted that there were reports by the authorities of the Government including the Block Development Officer to show that there was nothing wrong in the quality of construction of the roads and that the petitioners had acted in a revengeful manner immediately upon being elected only due to political reasons. On this basis, it was submitted that the concurrent orders passed by respondent Nos. 1 and 2 did not deserve any interference. 9. Mr. A.D. Sonak, learned AGP has appeared on behalf of respondent Nos. 1 and 2 and Mr. Mangesh Bute, learned counsel appeared for respondent No. 3-Zilla Parishad. 10. Heard learned counsel for the parties and perused the record. 11. The duties of elected members of the Gram Panchayat are obviously that they are required to bring to the fore the issues concerning local residents of the Gram Panchayat and to ensure that development works are carried out efficiently and without any corruption. Whenever complaint is made to Members of the Gram Panchayat pertaining to the subject of corruption in development work, it is the duty of the Gram Panchayat members to take note of the same and to take necessary action in the matter, as the representatives of the people at the grass root level, which is the major concern of elected members of the Gram Panchayat like the petitioners. In this backdrop, the resolution dated 07.11.2015 passed by the petitioners by majority of 5 : 1 needs to be analysed. A perusal of the same shows that upon a complaint received in writing regarding corruption in the work of construction of roads, the petitioners resolved that the work of construction of roads was allotted to a particular construction company without any open bids being asked for and that there was material to show there had been corruption in implementation of the said project. On this basis, it was resolved that an inquiry at high level was required to be undertaken into the matter. The resolution, therefore, required a high level inquiry to be undertaken into the said allegations of corruption. The question is, as to whether passing of such a resolution by elected members of the Gram Panchayat can be said to be misconduct or disgraceful conduct on their part to invite an order of removal from office under Section 39-A of the aforesaid Act. 12. In the aforesaid judgment in the case of Shrikant vs. State of Maharashtra (supra), it has been held that while democratically elected representatives are expected to behave responsibly, they cannot be removed from office while undertaking actions as part of the democratic process. In the judgment in the case of Prabhakar v. Harichandra (supra), it has been held that if loss is caused to the Gram Panchayat, it would certainly amount to misconduct or disgraceful conduct on the part of the elected members of the Gram Panchayat. 13. If the resolution dated 07.11.2015 in the present case is tested on the said parameters, it could certainly be concluded that no loss was caused to the Gram Panchayat by passing the said resolution and that the said resolution did demonstrate the concern shown by the petitioners towards necessity of a high level inquiry into the issue of corruption while implementation of the project of construction of roads. 14. In this regard, the report of the Chief Executive Officer of the Zilla Parishad dated 03.11.2016 assumes importance. In the said report, various aspects of the matter have been taken into consideration, including the documents pertaining to the construction of roads and the assessment of the work done. 14. In this regard, the report of the Chief Executive Officer of the Zilla Parishad dated 03.11.2016 assumes importance. In the said report, various aspects of the matter have been taken into consideration, including the documents pertaining to the construction of roads and the assessment of the work done. In conclusion, the Chief Executive Officer of the Zilla Parishad has found that although there were certain documents claiming that the construction work had been conducted in a proper manner, such documents did not bear any date, outward or inward number and there were no documents on record to show that proper inquiry had been conducted before certificates had been given regarding the quality of construction of the roads. In this backdrop, the Chief Executive Officer of the Zilla Parishad concluded that the petitioners had passed the said resolution for holding a high level inquiry due to complaints received in that regard and that the petitioners could not be said to be guilty in any manner. 15. It is interesting that the respondent No. 2 in the impugned order dated 19.07.2017 while holding against the petitioners, has not taken into consideration the report of the Chief Executive Officer of the Zilla Parishad in the correct perspective at all. There is a reference made to the said report but the implication of the same has not been understood. Instead, the respondent No. 2 has proceeded to conclude that payments of the construction company were withheld under the garb of a high level inquiry and that although the payments of labourers were made, the payments due to the construction company were withheld, leading to violation of tender conditions and agreement and that this amounted to misconduct on the part of the petitioners. It is unfortunate that reading of the impugned order dated 19.07.2017 shows that the respondent No. 2 was more concerned with withholding of payment of the construction company, rather than analyzing the report of the Chief Executive Officer of the Zilla Parishad on record and examining the true purport of the resolution dated 07.11.2015 passed by the petitioners as members of the Gram Panchayat. It is strange that misconduct of the petitioners was being analysed on the basis of inconvenience caused to the construction company against which there were allegations of corruption on record. It is strange that misconduct of the petitioners was being analysed on the basis of inconvenience caused to the construction company against which there were allegations of corruption on record. The approach adopted by the respondent No. 2 was absolutely unsustainable, leading to the erroneous impugned order dated 19.07.2017. 16. A perusal of the impugned order dated 17.04.2018 passed by the respondent No. 1 shows that there has been broad agreement with the findings rendered by the respondent No. 2 and additionally the respondent No. 1 has held against the petitioners on the ground that due to the resolution passed by the petitioners, work pertaining to the Employment Guarantee Scheme was hampered. In the first place, there was never such an allegation against the petitioners when action under Section 39-A of the Act was contemplated. Even if there was some effect on the works under the Employment Guarantee Scheme in the present case, what was required to be examined was, as to whether by passing the aforesaid resolution dated 07.11.2015, the petitioners could be said to have indulged in misconduct or any disgraceful conduct or of neglect of duty or incapacity to perform duty or being persistently remiss in discharge of duties, which is missing in the impugned order, thereby rendering the same erroneous. 17. Reliance placed by the learned counsel for respondent No. 4 on certain reports to claim that the quality of construct] on of roads by the said construction company was proper, is misplaced because in the present case this Court is not concerned about the quality or otherwise of the construction of roads but as to whether there was some material for the petitioners to have passed the resolution dated 07.11.2015 for holding a high level inquiry into the matter. This Court is of the opinion that there was sufficient material for passing such a resolution by the Gram Panchayat by majority of 5:1 and that such a resolution certainly did not amount to misconduct or disgraceful conduct on the part of the petitioners and they could certainly not be held guilty of misconduct or of any disgraceful conduct or of neglect of duty or incapacity to perform the duty, or being persistently remiss in the discharge of duties. As none of the grounds under Section 39-A of the aforesaid Act were made out, the impugned order passed on 19.07.2017 passed by the respondent No. 2 was wholly unsustainable and the impugned order dated 17.04.2018 passed by the respondent No. 1 confirming the same also is rendered unsustainable. 18. In the light of the above, the impugned orders are quashed and set aside and the writ petition stands allowed. 19. Rule made absolute in the aforesaid terms with no order as to costs. 20. A request is made on behalf of respondent No. 4 for staying the effect of the judgment and order passed today. On the basis of the findings rendered in the judgment and order passed by this Court, no ground is made out for accepting the said request. Hence the same is rejected.