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2021 DIGILAW 585 (GUJ)

RAMANBHAI SANTUBHAI RAUT v. STATE OF GUJARAT

2021-07-13

SANGEETA K.VISHEN

body2021
JUDGMENT : 1. With the consent of the learned advocates, appearing for the respective parties, the matter is taken up for final disposal. 2. Rule. Mr. Akash Chhaya, learned Assistant Government Pleader waives service of Rule on behalf of the respondent – State and Mr. H.S. Munshaw, learned advocate waives service of Rule on behalf of the respondent no.3. 3. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 4.7.2019 passed by the District Development Officer, District Panchayat, Navsari, i.e., respondent no.3 and the order dated 9.12.2019 passed by the Additional Development Commissioner, Gujarat State, Gandhinagar whereby, the petitioner has been suspended from the post of Sarpanch. 4. The facts as culled out from the record of the captioned writ petition are to the effect that the petitioner has been elected as Sarpanch of Choravani Gram Panchayat, Taluka Vansda, District Navsari in January 2017. According to the petitioner, he has served as Sarpanch for previous term and during his tenure, there was not a single complaint filed against him. On 29.5.2019, an FIR being C.R. No.1 of 2019 (hereinafter referred to as “the FIR”) has been filed with the ACB Police Station, Navsari under the provisions of Sections 7(A) and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act of 1988’) by Shri Ishwarbhai Dhirubhai Talaviya (hereinafter referred to as “the Complainant”) against the petitioner and Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat. 4.1 Under the scheme of Swachh Bharat Mission, the Complainant, resident of Village Raheja, Taluka Gandevi, was awarded contracts for construction of 55 toilets in Village Khanpur as well as Village Choravani of Taluka Vansda. Apropos the FIR, a trap was laid by Anti-Corruption Bureau, Surat and during the said trap, Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat was caught red-handed, accepting bribe. As a result of the said trap, the petitioner and Shri Mahendrabhai Chotubhai Garasiya were arrested on 31.5.2019 and 30.5.2019 respectively and had remained in police custody for one day and two days respectively and thereafter, in judicial custody for another few days. The petitioner, on 12.6.2019 applied for bail and the Court of competent jurisdiction has released him on bail. The petitioner, on 12.6.2019 applied for bail and the Court of competent jurisdiction has released him on bail. 4.2 The petitioner remained behind the bars for 12 days, which led to initiation of the proceedings by the District Development Officer, District Panchayat, Navsari who, in exercise of the power conferred under sub-section (1) of Section 59 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the ‘Act of 1993’), suspended the petitioner as Sarpanch. The petitioner, being aggrieved, preferred an Appeal No.42 of 2019 before the Additional Development commissioner who, while exercising the power under Section 59 (3) of the Act of 1993, dismissed the appeal and thereby, the order passed by the District Development Officer, stood confirmed. The petitioner, in the present petition is aggrieved by the order dated 4.7.2019 and order dated 9.12.2019. 5. The respondent no.3 has filed reply, vehemently opposing the entertainment of the writ petition. It has been stated that considered the nature of the complaint; the action of the Anti- Corruption Bureau and the fact that the petitioner remained in police and judicial custody in the case of acceptance of bribe, the conduct of the petitioner constituted an offence of moral turpitude and therefore, the proceeding was initiated under the provisions of Section 59 (1) of the Act of 1993. Accordingly, the petitioner was heard on 20.6.2019 and after considering the facts of the case, material on record, he came to be suspended from the post of Sarpanch of Choravani Gram Panchayat. Referring to the order passed by the Additional Development Commissioner in appeal, it is stated that the petitioner was heard at length, and it is only after considering the factual as well as legal aspect that the order dated 9.12.2019 was passed, confirming the order dated 4.7.2019 of the District Development Officer. While refuting the allegations made by petitioner about not providing the relevant documents, it is stated that the entire case is based on the FIR and involvement of the petitioner in criminal proceedings, the petitioner is in possession of all the documents and therefore, there arises no question of supplying the documents. While adverting to the fact of non-filing of the charge sheet, it is stated that it is no ground to stay or to quash the order which has been passed by the authorities. 6. While adverting to the fact of non-filing of the charge sheet, it is stated that it is no ground to stay or to quash the order which has been passed by the authorities. 6. In the rejoinder, while refuting the contents of the reply, the petitioner has vehemently denied that orders are passed after careful consideration. It is stated that the registration of the FIR against the petitioner is with an oblique motive and with a view to seeing that the Complainant does not have to repay the money to the Panchayat which Panchayat owed to him. It has been pointed out that the Complainant and his partner have filed various similar complaints against Sarpanches of different Gram Panchayats. In fact, filing of various criminal complaints against the Sarpanches of different Gram Panchayats substantiates the aspect that the Complainant and his partner are in the habit of filing complaints. 6.1 It is vehemently denied that the petitioner has been supplied with the documents relied upon by the District Development Officer at the time of passing of the impugned order. It is stated that though the FIR has been registered way back, charge sheet has not been filed and therefore, it cannot be said that the criminal proceedings have been initiated against the petitioner and therefore also, the proceedings under Section 59 (1) could not have been initiated. Moreover, the petitioner was not caught red-handed in the trap and could not have been since the petitioner was not present at the spot. Therefore, the orders passed by the authorities concerned are unjust and illegal. It is urged that the petition deserves to be allowed and the orders dated 4.7.2019 so also dated 9.12.2019, deserve to be quashed and set aside. 7. Mr Nishit P. Gandhi, learned advocate appearing for the petitioner submitted that the petitioner was elected as a Sarpanch for the period from 2012-2013 of the Choravani Gram Panchayat, and again in the year 2017; however, it was only with an oblique motive in mind, the proceedings were initiated by the Complainant by registering the FIR with ACB Police Station, Navsari on 29.5.2019 for the offences punishable under Sections 7(A) and 12 of the Act of 1988. It is submitted that FIR was registered against Mahendrabhai Chotubhai Garasiya and the petitioner; however, the petitioner was only named in the FIR, and he was not present at the place where the trap was laid. It is submitted that since the petitioner was not present, there arises no question of initiation of any action against the petitioner only on the ground that he was named in the FIR. 7.1 It is submitted that it is alleged in the FIR that the demand was in two parts, i.e., 10% was alleged to be demanded by the Sarpanch of Khanpur Gram Panchayat, whereas 8% was alleged to have been demanded by the petitioner, Sarpanch of Choravani Gram Panchayat. Considering the reputation of the petitioner, he has been elected for the second term, it is unbelievable that he would be demanding 8%, which would hardly be Rs.8,400/-. It is submitted that the aspects, namely, the petitioner not having been found at the time when the trap was laid, and no evidence substantiating that the petitioner has ever demanded any amount from the complainant, do not satisfy the element for initiation of criminal proceedings. It is submitted that except the present complaint registered against the petitioner, he has a blotless career with no criminal antecedents. Therefore, merely his name appearing in the FIR, cannot be the ground to suspend the petitioner more particularly, when he is a democratically elected figure. It is submitted that this Court, in catena of decisions has held that authorities concerned should be careful while initiating proceedings under Section 59 (1) against an elected representative because, there are all likelihood of allegations being hurled against the representatives since they are holding the post. 7.2 It is submitted that the petitioner has not been provided sufficient opportunity of hearing and that is how the order dated 4.7.2019 is passed in breach of principles of natural justice. While Inviting the attention of this Court to the order dated 4.7.2019, it is submitted that the documents which were considered are, (i) letter dated 30.5.2019 of the Taluka Development Officer; (ii) letter dated 30.5.2019 of the Police Inspector, Navsari ACB Police Station; (iii) letter dated 30.5.2019 of the Assistant director, ACB, Gujarat State; (iv) letter dated 12.6.2019 of the office of the District Development Officer; and (v) letter dated 2.7.2019 of the Police Inspector, ACB Police Station, Rajpipla. Except the show cause notice, none of the documents referred to in the order dated 4.7.2019, have been provided to the petitioner and therefore, the order is passed in violation of the principles of natural justice, gravely affecting the rights of the petitioner. It is next submitted that the copy of the complaint was provided to the petitioner as the petitioner had to apply for bail since he was arrested. It is submitted that the show cause notice was issued on 12.6.2019 and immediately, within a short span of 20 days, the order dated 4.7.2019 has been passed by the District Development Officer. 7.3 It is next submitted that exercise of the power by the District Development Officer under Section 59, is against the provisions because, it has envisaged certain eventualities and one of which, is institution of criminal proceedings in respect of an offence involving moral turpitude. It is submitted that institution of criminal proceedings, would come only upon filing of the charge sheet and in the present case, though FIR has been registered in the month of May 2019, till date, charge sheet has not been filed. It is also submitted that the present complaint is filed with a mala fide motive and the reason behind is the payment of Rs.1,00,000/- to the Panchayat and with a view to seeing that he is not to make the payment, the Complainant has named the petitioner in the FIR and therefore, filing of the complaint is nothing but with a view to exerting pressure tactics. Even otherwise, as can be seen from the record, the Complainant and his partner are in the habit of filing complaints against various Sarpanches of various villages and have filed seven civil complaints against different Sarpanches. This clearly goes to suggest that the complaint in the present case, is also filed with an oblique motive. It is submitted that there is no denial to the fact that the petitioner was neither present nor was caught red-handed during the trap and therefore, he has been wrongly named in the FIR so that the Complainant does not have to repay the money to the Panchayat. It is therefore, submitted that the petitioner is dragged only because of Rs.1,00,000/- to be paid by the Complainant. It is therefore, submitted that the petitioner is dragged only because of Rs.1,00,000/- to be paid by the Complainant. 7.4 Reliance is placed on the judgment of this Court in the case of Narabhai Veljibhai Chaudhary vs. (Shri) R.S. Vaghela reported in 1996 (2) GLH 251 . Reliance is also placed on the judgment of this Court in the case of Bhikhumiya Sarfumiya Malek vs. District Development Officer, Mehsana, reported in 1999 (2) GLH 963 . While placing reliance, it is submitted that the stay of the petitioner in the custody will not automatically prove that the petitioner is guilty. It is submitted that even otherwise, there was no occasion for the petitioner to demand any money since the amount is given to the beneficiary and the beneficiary in turn passed it to the contractor and therefore, Sarpanch has no role to play. Reliance is also placed on the judgment of this Court in the case of Aatulbhai Tapubhai Nakum vs. State of Gujarat reported in 2016 (2) GLR 1007 . It is submitted that the FIRs are lodged prior in point of time and traps are laid subsequently and even if the trap fails, FIR will still remain. It is therefore urged that there was no cause and reason available to the authorities to have initiated the proceedings the against the petitioner. 8. Mr. H.S. Munshaw, learned advocate appearing for the respondent nos.2 and 3 has submitted that the complainant, who was the contractor, has filed the FIR against the petitioner and one another Sarpanch Mahendrabhai Chotubhai Garasiya for the offences punishable under Sections 7(A) and 12 of the Act of 1988. The petitioner and one another Sarpanch have demanded certain percentage of commission of 10% and 8% of the payments to be made for constructing the toilets. As per the commission, Rs.46,000/- was to be given to the Sarpanch of Khanpur Gram Panchayat and Rs.8,400/- to the petitioner being Sarpanch of Choravani Gram Panchayat. 8.1 It is submitted that for the purpose of constructing toilets, contract is awarded by Panchayat, bills are cleared by Panchayats and payments are also released by the Panchayats and therefore, the petitioner was in-charge of clearing the bills for constructing the toilets. It is further submitted that the petitioner need not be present at the time of trap, but in view of the registration of the FIR, his involvement is very much there. It is further submitted that the petitioner need not be present at the time of trap, but in view of the registration of the FIR, his involvement is very much there. Further, the petitioner has remained in custody for 12 days. Therefore, to say that the petitioner was not involved, is not to be believed. While inviting the attention to the contents of the FIR, it is submitted that the name of the petitioner is very much there. The Complainant has also declared before the police officer that the complaint is not filed because of any vengeance of financial transaction. FIR further records that on 29.5.2019, the Complainant, when was accompanied by his partner, the Sarpanch Shri Mahendrabhai Garasiya of Village Khanpur has from his mobile number demanded the bribe and the recording of which, is available in the mobile phone of the Complainant. It is therefore submitted that in the FIR, clearly, the role has been attributed to the petitioner and the other Sarpanch. 8.2 It is submitted that the petitioner, apropos the filing of the FIR, was arrested and put in jail based on prima facie involvement. It is submitted that once the FIR is registered, the District Development Officer was not under any obligation to issue notice, however, the Deputy District Development Officer has issued a notice dated 12.6.2019 for exercising the powers under sub-section (1) of Section 59 of the Act of 1993. It is submitted that after issuance of the notice, the petitioner was given an opportunity of hearing on 20.6.2019 and after taking into consideration all the aspects, material on record, the petitioner was suspended from the post of Sarpanch of Gram Panchayat under the provisions of Section 59 of the Act of 1993. Whatever was submitted by the petitioner, has been considered by the District Development Officer and it is only thereafter, that a reasoned order dated 4.7.2019 came to be passed by the respondent no.2. It is submitted that there is no error committed by the District Development Officer so also the Additional Development Commissioner in passing the orders, suspending the petitioner as a Sarpanch. 8.3 Reliance is placed on the judgment in the case of Mehta Kaushikbhai Ishwarbhai vs. Additional Development Commissioner rendered in Special Civil Application No.8001 of 2010. It is submitted that the petitioner therein, was suspended as Sarpanch on the ground of his involvement into gambling activities. 8.3 Reliance is placed on the judgment in the case of Mehta Kaushikbhai Ishwarbhai vs. Additional Development Commissioner rendered in Special Civil Application No.8001 of 2010. It is submitted that the petitioner therein, was suspended as Sarpanch on the ground of his involvement into gambling activities. The first information report was registered, and the petitioner was arrested and subsequently released on bail. This Court, while dismissing the petition, held that when the petitioner – Sarpanch, who is involved in an offence under the Prevention of Gambling Act and was caught red-handed followed by suspension on the ground of his involvement in the offence involving moral turpitude, it cannot be said that authorities have committed any error in exercising the powers under Section 59, suspending the Sarpanch. It is submitted that present is a case of offence under the Prevention of Corruption Act, which is more serious than the offence under the Prevention of Gambling Act and therefore, no indulgence may be shown by this Court. 8.4 While adverting to the contention raised on behalf of the petitioner that mere filing of the FIR, cannot be construed to be initiation of the criminal proceedings, it is submitted that the said contention is fallacious. In support of such contention reliance is placed on the judgement in the case of Ramjibhai Morarbhai Patel vs. Additional Development Commissioner reported in 1992 (1) GLH 197 . It is submitted that this Court has held that principle of criminal jurisprudence that the criminal law may be set in motion by giving information to the police of a cognizable offence. However, proceedings can be said to have been instituted within the language of criminal law when actually criminal proceedings are instituted in the Court of law and not otherwise. This very meaning should not be given to the words "criminal proceedings" when they are used in statutes like Gujarat Panchayats Act, 1961, Gujarat Municipalities Act, 1963 or other statutes dealing with local self- government. The legislature has advisedly not circumscribed the words "criminal proceedings" by use of the words "in the Court". This omission is deliberate and purposive. This very meaning should not be given to the words "criminal proceedings" when they are used in statutes like Gujarat Panchayats Act, 1961, Gujarat Municipalities Act, 1963 or other statutes dealing with local self- government. The legislature has advisedly not circumscribed the words "criminal proceedings" by use of the words "in the Court". This omission is deliberate and purposive. So far as the aspect of opportunity of hearing is concerned, it is submitted that this Court, in the case of Ashwinbhai Somabhai Kachhia Patel vs. State of Gujarat rendered in Special Civil Application No.10271 of 2007, has held that in the circumstances, even in a case where opportunity of hearing has to be read in a provision where none is provided, yet as held by the Apex Court, in the case of State Govt. Houseless Harijan Employees’ Association vs. State of Karnataka reported in (2001) 1 SCC 610 “requirements of natural justice will be read into statutory provisions unless excluded expressly or by necessary implication”. It has been further held that Section 57 of the Act provides for such hearing in a case of removal from office. By necessary implication, where the statute is silent in a case of suspension under Section 59 of the Act, one must accept that legislature consciously did not wish to provide such hearing where there can be no dispute on facts as to period of detention. It is submitted that this Court, has held that while exercising the powers under sub-section (1) of Section 59 of the Act of 1993, opportunity of hearing is not necessary and therefore, there is no lacuna on the part of the authorities concerned in exercising the powers. 8.5 It is further submitted that the contention raised on behalf of the petitioner that the petitioner was not provided with the documents as indicated in the order dated 4.7.2019, is of no help. The only question is, is there any element of moral turpitude involved. In the present case, undeniably the petitioner has been named in the FIR for the offences punishable under Sections 7(A) and 12 of the Act of 1988, directly attracting the offence of moral turpitude. The only question is, is there any element of moral turpitude involved. In the present case, undeniably the petitioner has been named in the FIR for the offences punishable under Sections 7(A) and 12 of the Act of 1988, directly attracting the offence of moral turpitude. It is further submitted that the contention that the petitioner has not been served with the relevant documents, is also baseless since the entire case is based on the registration of the FIR and involvement of the petitioner in the criminal proceedings. Even otherwise, the petitioner was very much in possession of said record and therefore, the order dated 4.7.2019, passed by the District Development Officer, is in right earnest, just and legal, the same being passed after careful consideration and in conformity with the provisions of Section 59 of the Act of 1993. 8.6 Adverting to the contention of the petitioner that the Complainant is in the habit of filing complaint, it is submitted that assuming that the Complainant is, but the same will not absolve the petitioner from the offence involving moral turpitude, especially when the petitioner is named in the FIR, demanding bribe from the Complainant. It is therefore submitted that the petition is bereft of any merits and deserves to be dismissed. 9. Heard Mr. Nishit Gandhi learned advocate for the petitioner and Mr. H.S. Munshaw for the respondents nos. 2 and 3 and considered the documents available on record. 10. Tersely stated are the facts. The petitioner is a Sarpanch of Choravani Gram Panchayat, Taluka Vansda. The present is the second term when the petitioner came to be elected as the Sarpanch. On 29.5.2019 the FIR has been registered against the petitioner and one another for the commission of offences under sections 7(A) and 12 of the Act of 1988 by the Complainant. The genesis of the allegations in the FIR is that the petitioner and one another have demanded their respective shares of commissions from the bills which have been/was sanctioned pursuant to the construction of toilets in Villages Choravani and Khanpur of which the petitioner and Mahendrabhai Chotubhai Garasiya respectively are Sarpanches. Apropos the registration of the FIR, proceedings have been instituted against both, the petitioner and Mahendrabhai Chotubhai Garasiya. Apropos the registration of the FIR, proceedings have been instituted against both, the petitioner and Mahendrabhai Chotubhai Garasiya. The District Development Officer, in exercise of the powers conferred under Section 59 (1) of the Act of 1993, issued a show cause notice dated 12.6.2019, requiring the petitioner to show cause as to why the action as provided under Section 59 (1) of the Act of 1993, should not be initiated. 11. The petitioner submitted his reply and after considering the response of the petitioner, the District Development Officer passed an order dated 4.7.2019 under the provisions of subsection (1) of Section 59 of the Act of 1993, suspending the petitioner from the post of Sarpanch on the ground that he has committed an offence constituting moral turpitude. It has been observed in the order dated 4.7.2019 that the petitioner, Sarpanch of Choravani Gram Panchayat, and one another have been arrested while accepting Rs.54,400/- and offence under the provisions of the Act of 1988 has been registered. It has also been observed that the petitioner has been arrested on 31.5.2019 and he has spent one day in police custody and 12 days in judicial custody. While not accepting the say of the petitioner, the District Development Officer, has concluded that since the petitioner has been in judicial custody, there is commission of an offence of moral turpitude and therefore, the petitioner deserves to be suspended considering the provisions of sub-section (1) of Section 59 of the Act of 1993. 12. In the appeal before the Additional Development Commissioner, Gujarat State, order dated 9.12.2019 has been passed, whereby, it has been observed that the trap against the petitioner, has been successful. An audio recording has been taken wherein, it has been found that one Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat has accepted the fact of accepting the bribe for himself and for the petitioner. It has been observed that such a conduct on the part of the petitioner is not befitting the post. It has also been observed that whether the petitioner is held guilty or not that would be decided by the Court of competent jurisdiction. With such observation, the Additional Development Commissioner, has rejected the appeal of the petitioner and thereby, the order of the District Development Officer, stood confirmed. 13. It has also been observed that whether the petitioner is held guilty or not that would be decided by the Court of competent jurisdiction. With such observation, the Additional Development Commissioner, has rejected the appeal of the petitioner and thereby, the order of the District Development Officer, stood confirmed. 13. For deciding the issue involved, it would be profitable to refer to the judgment in the case of Narabhai Veljibhai Chaudhary (supra). It has held that a Sarpanch cannot be suspended just on institution of Criminal case. Whether the act constitute an offence of moral turpitude, there cannot be straitjacket formula and it depends on various factors including the manner and circumstances in which the offence alleged to have been committed. It has been held that the rule of suspension of a person holding public office is based on a public policy to maintain purity in public life. A person facing charge of offence of moral turpitude should be barred from holding public office. However, this power in current aggressive competitive politics must be exercised with great circumspection. While criminalisation in public life is not unknown, the false implication has also become hazards of public life. This Court has laid emphasis on the aspect of scrutiny by the Court in such cases. It is also observed that the Court will not enter into the merits of the case, but still, it would be desirable to undertake a brief scrutiny of facts to rule out any chance of false implication. 14. The judgment relied upon by the learned counsel for the petitioner in the case of Bhikhumiya Sarfumiya Malek (supra) is also worth referring to. This Court has referred to the judgment in the case of Narabhai Veljibhai Chaudhary (supra), wherein it has been held that the Sarpanch cannot be suspended just on institution of criminal case. Whether the act constitute an offence of moral turpitude, there cannot be a straitjacket formula. It depends on various factors including the manner and circumstances in which the offence is alleged to have been committed. This Court in paragraph 8, has observed thus: – “8. Besides this, in the facts and circumstances of this case, I find that in the case of N.V. Chaudhary v. R.S. Vaghela (supra) it was considered as to what will constitute the offence involving moral turpitude. This Court in paragraph 8, has observed thus: – “8. Besides this, in the facts and circumstances of this case, I find that in the case of N.V. Chaudhary v. R.S. Vaghela (supra) it was considered as to what will constitute the offence involving moral turpitude. No rule of universal application can be laid down that every criminal case will essentially be a case of an offence involving moral turpitude. It would depend upon the facts and circumstances of each and every case and the background in which the offence is committed. In a given case, even an offence under Section 302, may not be an offence involving moral turpitude. For example a son witnesses that his mother or sister or wife is being molested or raped and he is not able to control himself and kills the culprit, it will not at all be a case of offence involving moral turpitude. In N.V.Chaudhary v. R.S.Vaghela (supra) it has been considered and held as under:- "Thus, a Sarpanch cannot be suspended just on institution of Criminal Case. Whether the act constitute an offence of moral turpitude, there cannot be a strait-jacket formula. It depends on various factors including the manner and circumstances in which the offence alleged to have been committed. The rule of suspension of a person holding public office is based on a public policy to maintain purity in public life. A person facing charge of offence of moral turpitude should be barred from holding public office. However this power in current aggressive competitive politics must be exercised with great circumspection. While criminalisation in public life is not unknown, the false implication has also become hazards of public life. This has put more pressure on the Judiciary to scrutinise such cases with more care and caution. It is true that it will not be for the Court to enter into the merits of the case, but still it is desirable to undertake brief scrutiny of the facts to rule out any chance of false implication." 15. The judgment in the case of Aatulbhai Tapubhai Nakum (supra) also requires a mention. It is true that it will not be for the Court to enter into the merits of the case, but still it is desirable to undertake brief scrutiny of the facts to rule out any chance of false implication." 15. The judgment in the case of Aatulbhai Tapubhai Nakum (supra) also requires a mention. This Court, while dealing with the suspension of the Sarpanch therein under Section 59, has held that when there are other circumstances, notice of which if could be taken from the material available, which may require consideration to decide whether the action of suspension under Section 59 of the Act is warranted, the competent authority may be obliged to consider such other circumstances before acting under Section 59 of the Act. This Court in paragraph 7 has observed thus: “7. Having heard learned advocates for the parties, it appears that based on the FIR registered as C.R. No. I-47 of 2014 lodged with Rajula Police Station for the offences 323, 324, 394, 504, 506 (2) and 114 of the Indian Penal Code, 1860 Sections 3,5,10,3 (2), 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act and Section 135 of the Gujarat Police Act on 26.5.2014, action under Section 59 of the Act was initiated against the petitioner. In ordinary circumstances, only the nature of offences alleged would be relevant to decide whether alleged acts would amount to moral turpitude so as to call for action of suspension under Section 59 of the Act. However, when there are other circumstances, notice of which if could be taken from the materials available, which may require consideration to decide whether the action of suspension under Section 59 of the Act is warranted, the competent authority may be obliged to consider such other circumstances before taking action under Section 59 of the Act. The alleged offences under the Atrocity Act may amount to moral turpitude but even then, without going into the veracity or otherwise of the allegations in the complaint, the competent authority is under obligation to consider other relevant factors presented by the person facing action of suspension. The petitioner in his reply to the show cause notice has well presented such relevant aspects for consideration by the competent authority. The petitioner in his reply to the show cause notice has well presented such relevant aspects for consideration by the competent authority. The petitioner has pointed out that he had moved Gujarat Pollution Control Board, as a result of which the Unit of the informant was closed on finding that the Unit was causing pollution and the electric connection of the Unit was also disconnected. The petitioner has also stated that he was threatened of dire consequences by the informant, for which he represented before various authorities to take necessary action and filed complaint only thereafter, the petitioner was issued legal notice by informant for filing criminal complaint under the Atrocity Act. The Court finds that such facts stated in the reply are supported by the documents presented by the petitioner. However, on perusal of the impugned order dated 24.9.2014 passed by the respondent No.3, it appears that though action taken by the petitioner as a Sarpanch for closure of the Unit run by the informant and the complaint filed by the petitioner has been taken note of, however such facts are not given much importance on the ground that the petitioner remained in custody between 29.5.2015 and 4.6.2014 and the offences alleged are of moral turpitude. It appears that further fact which has weighed with respondent No.3 is of filing the charge-sheet in connection with the FIR lodged by the informant.” 16. Keeping the aforesaid principle in mind, the issue needs to be examined and the orders as well. The core issue is whether the order dated 4.7.2019 passed by the District Development Officer, Navsari and confirmed by the Additional Development Commissioner, Gujarat State are in conformity with the aforesaid principle and in accordance with the provisions of Section 59 (1) of the Act of 1993. 17. Perceptibly, the FIR was registered on 29.5.2019 (30.5.2019) with the ACB Police Station, for the offence committed on 29.5.2019. FIR narrates about awarding of the work of construction of toilets and demand by Mahendrabhai Chotubhai Garasiya and the petitioner. 17. Perceptibly, the FIR was registered on 29.5.2019 (30.5.2019) with the ACB Police Station, for the offence committed on 29.5.2019. FIR narrates about awarding of the work of construction of toilets and demand by Mahendrabhai Chotubhai Garasiya and the petitioner. The gist appears to be in the penultimate paragraph of the FIR wherein, it has been stated in vernacular, and english translation whereof, is to the effect that when the Complainant and his partner were together, he had a telephonic conversation with Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat on his mobile number 99741-93314 when, Mahendrabhai Chotubhai Garasiya demanded money for clearing the bills for constructing toilets at Khanpur and Choravani villages. It also states that the said conversation has been recorded in his phone, of which CD has been prepared. Therefore, if one goes by the contents of the FIR, and more particularly, the penultimate paragraph, it is not even the case of the Complainant that the petitioner has demanded money. Moreover, apropos the registration of the FIR, trap was laid, but as discussed herein above, it failed qua the petitioner. In fact, it cannot be said that the trap failed for, the petitioner was not even found at the place. It is also not disputed that the offence was committed and after commission of the offence that the FIR has been lodged. Therefore, the authority, while exercising the powers, ought to have undertaken a brief inquiry; however, such an inquiry by both the authorities is missing and on the contrary, there is a sheer non-application of mind on the part of the District Development Officer and so also the Additional Development Commissioner. 18. In the order dated 4.7.2019, the District Development Officer, has himself recorded the facts, emerging from the documents, namely, (i) letter dated 30.5.2019, (ii) letter dated 30.5.2019 of the Assistant Director, Anti-Corruption Bureau, (iii) letter dated 25.6.2019 of Assistant Director, so also the report dated 2.7.2019 of the Police Inspector. In paragraph 2, vide bullet point 3, it is specifically recorded that the trap was laid on 29.5.2019, when, the Sarpanch, Khanpur Gram Panchayat - Mahendrabhai Chotubhai Garasiya and Sarpanch, Choravani Gram Panchayat – Ramanbhai Santubhai Raut, i.e., the petitioner, have been arrested while accepting money. Here lies the fallacy for, the petitioner could not have been arrested on 29.5.2019 inasmuch, the petitioner was not even present. Here lies the fallacy for, the petitioner could not have been arrested on 29.5.2019 inasmuch, the petitioner was not even present. The learned advocate for the respondent nos.2 and 3 has not be able to point out anything to dislodge the said aspect and could not have been because, in the same paragraph, vide bullet point 5 it has been recorded that Shri Ramanbhai Santubhai Raut, i.e., the petitioner, has been arrested on 31.5.2019. Further, in paragraph 4, the District Development Officer, without making any inquiry has arrived at the findings that the petitioner came to be arrested while accepting the money and offence has been registered against him. Such findings are against the evidence available on record and ill-founded. Therefore, the edifice on which the District Development Officer proceeded to pass the order was erroneous and against the evidence, rather it was a case of no evidence and therefore, perverse. 19. At this stage reference to the order passed by the District Development Officer in the case of Mahendrabhai Chotubhai Garasiya, which is under challenge in Special Civil Application No.23031 of 2019 is also required to be taken note of. The order passed in the case of Mahendrabhai Chotubhai Garasiya, if considered in juxtaposition with the order in the present case, is verbatim same. So far as Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat is concerned, ACB trap was laid wherein, he was caught red-handed accepting the amount of Rs.54,400/-. Therefore, while giving the findings, the District Development Officer had carried an impression that Mahendrabhai Chotubhai Garasiya as well as the petitioner, were caught red-handed in the trap laid by ACB. Such finding is not in tune with the documents available on record inasmuch as, the petitioner was not even present at the time of the raid and therefore, the observations about petitioner being arrested while accepting Rs.54,400/-, is without any basis. It is required to be noted that the District Development Officer, was exercising the quasi-judicial powers and it is obligation of an authority while passing the order, to record its reasons supported by evidence on record. However, considering the reasoning given by the District Development Officer, it is not discernible that the authority concerned has considered the documents. It is required to be noted that the District Development Officer, was exercising the quasi-judicial powers and it is obligation of an authority while passing the order, to record its reasons supported by evidence on record. However, considering the reasoning given by the District Development Officer, it is not discernible that the authority concerned has considered the documents. It is also well settled proposition of law that an authority making an order in exercise of its quasijudicial findings, must record reasons in support of order it makes and that every quasi-judicial order, must be supported by reasons. It being a basic as following the principles of natural justice. It is also well settled that the rule must be observed in its proper spirit and a mere pretence of compliance, would not satisfy the requirement of law. It is true that the FIR was registered against the petitioner and one another and as a result whereof a trap was laid and it was successful qua Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat; however, so far as the petitioner is concerned, he was not present, and it could not be said that the trap was successful in the case of petitioner. 20. In the appeal, the Additional Development Commissioner has considered the trap laid by the Anti-Corruption Bureau and the audio recording, wherein it has been allegedly found that Mahendrabhai Chotubhai Garasiya, Sarpanch of Khanpur Gram Panchayat has accepted of receiving the money for himself and for the petitioner. The Additional Development Commissioner, has concluded that such a conduct on the part of the Sarpanch, is not befitting. The registration of the FIR with the ACB Police Station and the petitioner being in police custody for one day and in judicial custody for 12 days, warrants the exercise of powers under Section 59 (1) of the Act of 1993. The Additional Development Commissioner, has concluded that such a conduct on the part of the Sarpanch, is not befitting. The registration of the FIR with the ACB Police Station and the petitioner being in police custody for one day and in judicial custody for 12 days, warrants the exercise of powers under Section 59 (1) of the Act of 1993. The position of law, was also brought to the notice of the Additional Development Commissioner, i.e. the judgments in the case of - (1) Thakorbhai Bhagabhai vs. D.D.O., Surat reported in 1980 GLR 966 ; (2) Narabhai Veljibhai Chaudhary (supra); (3) Bhikhumiya Sarfumiya Malek (supra); (4) Somabhai Bhagwanbhai Gohil vs. State of Gujarat reported in 2006 (1) GLH 67 ; however, the Additional Development Commissioner, without considering the manner and circumstances in which the alleged offence has been committed and without holding any inquiry, straightaway only on the basis of the registration of the FIR against the petitioner, has passed the order. 21. One more factor which weighed with the Additional Development Commissioner, was the audio recording of the conversation. However, the audio recording was considered by the Additional Development Commissioner for the first time and that too while passing the order, which was never forming part of the order of the District Development Officer. Except making a reference of audio tape, it is not coming out as to whether the contents of the recorded conversation were examined by him. Pertinently, the aspect of audio tape was not even referred to by the District Development Officer, and the Additional Development Commissioner for the first time in his order, has referred to such an audio tape, which tape, was never provided to the petitioner for his rebuttal and therefore, it suffers from the vice of principles of natural justice. On this count also, the order of the Additional Development Commissioner, warrants interference. 22. Pertinently, this Court has time and again held that Sarpanch cannot be suspended just on institution of criminal case and whether the act constitute an offence of moral turpitude, there cannot be a straitjacket formula. A brief inquiry is necessitated to scrutinise as to whether the registration of the FIR constitutes an offence involving moral turpitude. 22. Pertinently, this Court has time and again held that Sarpanch cannot be suspended just on institution of criminal case and whether the act constitute an offence of moral turpitude, there cannot be a straitjacket formula. A brief inquiry is necessitated to scrutinise as to whether the registration of the FIR constitutes an offence involving moral turpitude. Had the petitioner been found at the place where the trap was laid, the orders passed by the District Development Officer as well as the Additional Development Commissioner, would have been in the right earnest; however, when the petitioner was not found, which factum is not disputed by the respondent authorities, the action by the authorities concerned is erroneous. 23. Perceptibly, the FIR, has been registered on 29.5.2019. The petitioner was arrested on 31.5.2019 and was released on bail after 12 Days. However, during the course of hearing, the Court inquired from the learned advocates appearing for the respective parties about the filing of the charge sheet, and it has been reported that, so far, the charge sheet has not been filed. Even after the span of almost more than two years, the charge sheet in the matter of commission of the offence under the provisions of the Act of 1988 has not been filed. Be that as it may. 24. In view of the aforesaid discussion the orders dated 4.7.2019 passed by the District Development Officer, District Panchayat, Navsari and dated 9.12.2019 passed by the Additional Development Commissioner, Gujarat State, deserve to be quashed and set aside and are accordingly quashed and set aside, being, not in conformity with the provisions of Section 59 of the Act of 1993 so also the principle laid down by this Court in the judgments mentioned herein above. 25. While concluding, let me deal with the judgments cited by the learned advocate for the respondent nos.2 and 3. Reliance is placed on the judgment in the case of Mehta Kaushikbhai Ishwar Bhai vs. Additional Development Commissioner. In the case before this court, the petitioner was elected as Sarpanch on 12.8.2009. Vigilance Squad of Gandhinagar raided Akhand Anand Ashram at Ambaji when, the petitioner and other 35 persons were found playing card and involved in gambling activities. It is thereafter that the First Information Report was registered against the petitioner for the offences under the Prevention of Gambling Act and was arrested and subsequently released on bail. Vigilance Squad of Gandhinagar raided Akhand Anand Ashram at Ambaji when, the petitioner and other 35 persons were found playing card and involved in gambling activities. It is thereafter that the First Information Report was registered against the petitioner for the offences under the Prevention of Gambling Act and was arrested and subsequently released on bail. In the said case, the petitioner was caught red handed and was directly involved in an offence under the Act, involving moral turpitude. So is not the position in the present case. In the present case, as discussed herein above, the petitioner was not present at the place when the trap was laid. Therefore, on facts, the judgment will not help the respondent nos. 2 and 3 for supporting their action which is based on erroneous premise. This Court, since has found on merits that the exercise of the powers by the District Development Officer in the first instance and Additional Development Commissioner in the second, were not in conformity with the provisions of the Act and the applicable principle, other issue, namely, filing of FIR, cannot be construed to be initiation of criminal proceedings, is not gone into. 26. In view of the aforementioned discussion, the petition succeeds and is hereby allowed. Rule is made absolute. No order as to costs. Direct service, is permitted. Needless to mention that the trial court shall decide the criminal case, if any, independently and without being influenced by the observations made in the present judgment.