Bhavesh Kamleshbhai Patel v. Commissioner, Municipality Administration
2023-03-02
NIRZAR S.DESAI
body2023
DigiLaw.ai
JUDGMENT : 1. The matter was extensively heard on 20.2.2023 and it was agreed among learned advocates for the parties that the matter was being heard finally, and therefore, on 20.2.2023, the following order was passed: “Heard learned advocate Mr.Nirav Thakkar for the petitioner, learned Government Pleader Ms.Manisha Lavkumar Shah assisted by learned Assistant Government Pleader Ms.Shruti Pathak and learned advocate Mr.Deepak Sanchela for the Respondent No.2 – Nagar Palika. Arguments are concluded. List for orders on 27.02.2023.” 2. In view of the aforesaid order, issue Rule. Ms.Shruti Pathak, learned Assistant Government Pleader waives service of rule for respondent No.2 and learned advocate Mr.Deepak Sanchela waives service of rule for respondent No.2. 3. By way of the petition, the petitioner has prayed for quashing and setting aside the order dated 28.12.2021 passed by the Commissioner of Municipality (Administration) whereby the petitioner was removed as Member of the Unjha Municipality by Commissioner, Municipal Administration in exercise of powers under Section 37(1) of the Gujarat Municipalities Act, 1963 (for short, `the Act, 1963’). 4. The facts of the case in nutshell are that the petitioner is an elected councillor of Unjha Nagarpalika for which elections took place in February, 2021 and results were declared on 1.3.2021. In Unjha Nagarpalika, 36 candidates were elected and the petitioner is one of them. 4.1 On 26.4.2021, as per the case of the petitioner, despite there being no official directions of the State Government or the Central Government, one Mr.Jasminbhai Patel, Chief Sanitary Inspector of Unjha Nagarpalika, was moving in local market and forcing shopkeepers to shut down their shops. As per the petitioner he was asking the shop owners to hand over keys to him and he was also collecting fine of Rs.1,000/- from them. According to the petitioner, the aforesaid action was not backed by any order in writing by the Chief Officer or any other competent authority nor was it supported by any of the instructions from the State Government or Central Government. Hence, the petitioner resisted the aforesaid action upon complaints received by him and initially he asked Mr.Patel, Chief Sanitary Inspector to stop acting in such an illegal manner politely, but as the said request according to the petitioner fell on the deaf ears of the Chief Sanitary Inspector, the petitioner raised his voice and at that time some one captured those moments as video clip and the same was circulated.
According to the petitioner, the video clip does not depict the entire incident and does not give the correct picture of what had happened on that day. When the aforesaid video went viral, it created a one sided impression due to the fact that it was not a video clip depicting the entire incident. 4.2 As the petitioner is a councillor he made a complaint about the highhanded action of Mr.Patel, Chief Sanitary Inspector on the same day and filed a complaint against Mr.Patel. 4.3 It was the case of the petitioner that on the basis of the aforesaid video clip, respondent No.2 recommended actions under the provisions of Section 37(1) of the Act, 1963 to respondent No.1 vide communication dated 3.5.2021. Thereafter vide show cause notice dated 20.9.2021 the petitioner was asked as to why steps under Section 37(1) of the Act, 1963 may not be initiated against him. Upon the receipt of show cause notice, the petitioner vide communication dated 23.9.2021 and 27.9.2021 asked for certain information to enable him to submit his reply to the notice. It is the case of the petitioner that though the hearing was scheduled on 7.10.2021, the documents asked for by the petitioner were partially supplied to him after 5 p.m. on 6.10.2021. On 7.10.2021 the petitioner was not given any further time to reply to the notice. However, the matter could not be heard on 7.10.2021. Ultimately, the petitioner was heard subsequently and vide order dated 28.12.2021 by exercising powers under Section 37(1) of the Act, 1963 the Commissioner, Municipality Administration passed order dated 28.12.2021 removing the petitioner as a Member of the Municipality. The aforesaid action is under challenge by way of the present petition. 5. A coordinate Bench of this Court vide order dated 16.2.2022 while issuing notice, granted interim relief in favour of the petitioner. Thereafter, the respondent No.2 filed reply wherein a stand was taken that behaviour of the petitioner directly attracts feature of Section 37 of the Act, 1963 as the act of the petitioner is absolutely disgraceful as well as amounts to misconduct in respect of his duties as well.
Thereafter, the respondent No.2 filed reply wherein a stand was taken that behaviour of the petitioner directly attracts feature of Section 37 of the Act, 1963 as the act of the petitioner is absolutely disgraceful as well as amounts to misconduct in respect of his duties as well. In the affidavit, it was stated that Mr.Patel, Sanitary Inspector was performing his duty on 26.4.2021 and the petitioner insulted him by administering threats and using improper language in the open market and the same was captured in mobile phone and the same was put on his Facebook account by himself and tried to show himself as a headstrong person, and therefore, the conduct of the petitioner completely attracts disgraceful conduct as well as misconduct in respect of his duties or both, and therefore, the aforesaid action would attract the provisions of Section 37 of the Act, 1963 and therefore, the impugned action is justified. In the affidavit, the respondent No.2 has taken a stand that if the actions of the Chief Sanitary Inspector were beyond his powers, in that case, the petitioner, who is the municipal councillor, could have brought it to the notice of the municipality by a written complaint and action could have been taken as per the provisions of Section 49 of the Act, 1963 by the Chief Officer. In any case, the petitioner could not have misbehaved with the officer of the municipality. The reply has also emphasized about the situation prevailing at that point of time relating to COVID-19 and it is stated that in a joint meeting the President of the Municipality, Mamlatdar and Police Sub-Inspector decided to close down all the markets till 5.5.2021. Therefore, the aforesaid behaviour on the part of the petitioner was absolutely uncalled for. Mr.Patel, Chief Sanitary Inspector was acting in a good faith and under the instructions of the Municipality, and therefore, he ought not have threatened. The reply also refers to a detailed reply filed by Mr.Jasminbhai Patel, Chief Sanitary Inspector. 5.1 In sum and substance, by way of the affidavit in reply, the Municipality tried to defend the action of the respondent No.1 on the basis of proposal of respondent No.2. 6.
The reply also refers to a detailed reply filed by Mr.Jasminbhai Patel, Chief Sanitary Inspector. 5.1 In sum and substance, by way of the affidavit in reply, the Municipality tried to defend the action of the respondent No.1 on the basis of proposal of respondent No.2. 6. The petitioner had filed further affidavit wherein it is placed on record by way of affidavit that pursuant to the alleged similar incident, which happened on 2.6.2021, an FIR was registered against the petitioner and other two councillors. However, during the course of hearing before the respondent No.1, one of the complainants admitted before the authority that he had filed a false complaint against the petitioner. By way of the further affidavit, the petitioner has alleged the conduct of the Chief Officer and others and submitted that it is the Chief Sanitary Officer and other officials of the municipality, who are interested in removal of the petitioner from the post of councillor on one or the other pretext, and therefore, this action was initiated. 7. Mr.Nirav Thakkar, learned advocate for the petitioner, submitted that the act of the petitioner cannot be said to be misconduct or disgraceful conduct as the petitioner was not fighting for himself, but was performing his duty as an elected councillor of the Municipality as despite there being no instructions either by the State or the Central Governments or by the Chief Officer, the Sanitary Inspector was forcing the shop owners to shut down their shops, who was snatching the keys and collecting fine of Rs.1,000/-. Learned advocate for the petitioner further submitted that in the show cause notice there is no reference about any usage of filthy or abuse language by the petitioner. However, in the impugned order while ordering the removal of the petitioner as a councillor of the municipality one of the grounds weighed with the authority is about usage of filthy and abusive language as well for which the allegations are not made even in the show cause notice. Therefore, while passing the final order, the authority has considered the material which was not part of show cause notice or the allegations which were not levelled against the petitioner.
Therefore, while passing the final order, the authority has considered the material which was not part of show cause notice or the allegations which were not levelled against the petitioner. 7.1 Mr.Thakkar, learned advocate for the petitioner, submitted that pursuant to the complaints received by the petitioner from some of the people stating that the Sanitary Inspector was acting in a very highhanded manner, the petitioner went to stop and resist the action of the Sanitary Inspector. He further submitted that the action of the petitioner was in good faith and cannot be termed as misconduct. Further, the petitioner made a complaint on 26.4.2021 to the respondent No.2 informing the entire incident and requested him to take action in this regard. 7.2 Mr.Thakkar, learned advocate for the petitioner, submitted that the petitioner has been removed as a councillor of the Municipality only on the basis of one video clip having length of less than a minute, which would not depict the correct picture. Whether the act of the petitioner can be said to be a misconduct or not or can be said to be misbehaviour or not, cannot be determined by a video clip having less than one minute duration and the entire incident is required to be seen as a whole and not on the basis of selective version of the same. Therefore, the impugned order passed by the respondent No.1 is bad and illegal and required to be quashed and set aside. 7.3 Mr.Nirav Thakkar, learned advocate for the petitioner, relied upon the decision dated 18.12.2020 rendered by Division Bench of this Court in the case of Yashinbhai Ismail Mandli vs. State of Gujarat in Letters Patent Appeal No.1272 of 2018. By relying upon para 10 of the above judgment, learned advocate for the petitioner, submitted that in a similar set of facts, Division Bench of the Court observed that, the appellant could not have been removed on the ground of having threatened the Chief Officer since except for a written complaint and copy of the statement given to the Police Sub-Inspector, Viramgam Town Police Station, there is no material to substantiate the allegation of administering threat.
Learned advocate for the petitioner further submitted that in the instant case also, except for video clip, there is no other material to substantiate the case against the petitioner, and therefore, the petitioner could not have been removed from the post of Member of the Municipality by the respondent No.1. 7.4 Mr.Nirav Thakkar, learned advocate for the petitioner, next relied upon the judgment of the Hon’ble Supreme Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors, (2012)4 SCC 407 , more particularly, by relying upon the head note [E], submitted that removal of an elected member of the municipality for misconduct has serious restrictions as it casts stigma and take away their valuable right as well as rights of people of their respective constituencies to be represented by them, and therefore, they can be removed only under exceptional circumstances. 7.5 Learned advocate for the petitioner submitted that even the authenticity of the video clip has not been verified and in absence of authenticity of the aforesaid video clip on the basis of which actions were taken, the impugned order could not have been passed. 7.6 By making the aforesaid submissions, Mr.Thakkar, learned advocate for the petitioner, prayed for allowing the petition by quashing and setting aside the impugned order. 8. Ms.Manisha Lavkumar, learned Government Pleader assisted by Ms.Shruti Pathak, learned Assistant Government Pleader, vehemently opposed the petition. It is submitted that the action on the part of the petitioner of misbehaving with the Chief Sanitary Inspector of the municipality has rightly been considered as misbehaviour and on the basis of which the Administrator of the Municipality has removed the petitioner. It is further submitted that on 25.4.2021 a meeting of all the business associations of Unjha took place under the Chairmanship of the President of the Municipality, wherein the Chief Officer, Police Sub-Inspector and Mamlatdar had remained present and in that meeting all the associations unanimously decided to close down the market till 2.5.2021 completely on its own volition with an exception of permitting milk, medical, fruit and vegetable shops to keep their business open from 7 to 10 a.m. and the Chief Sanitary Officer was taking action pursuant to the decision taken in the said meeting.
Mr.Manisha Lavkumar, learned Government Pleader, submitted that this decision and its implementation was necessitated as second wave of COVID-19 pandemic was in its full swing and the death ratio was on the higher side. In almost all the hospitals beds were occupied and there was a huge scarcity of beds and oxygen and even ambulances were not easily available, and therefore, the only way to come out of that situation was to curb the spread of COVID-19 by maintaining social distance as COVID-19 is an air borne decease which spreads from person to person through air. In that exceptional circumstances, keeping the markets closed was one of such decisions. At that point of time, human lives were more precious than carrying out business. Even the doctors also were the victims of the spread of COVID-19, and therefore, considering this emergency like situation, those measure were discussed with various associations and thereafter as it was unanimously supported and accepted by them, it was decided to keep the markets closed. Learned Government Pleader submitted that the petitioner being the councillor was expected to cooperate with the said decision and to make people understand about the deadly impact of COVID-19. It is also expected of the petitioner to convince the people to implement the aforesaid decision. However, instead of cooperating in such a critical situation, the petitioner started provoking the people and misbehaved with the Chief Sanitary Inspector by restraining him from performing his duties. Therefore, considering the situation at the relevant point of time, the aforesaid action has rightly been considered as a misconduct by the respondent No.1, and therefore, this Court may not interfere with the aforesaid decision. 8.1 Ms.Manisha Lavkumar, learned Government Pleader, submitted that the respondent No.1 has after overall appreciation of material available before him and after arriving at the subjective satisfaction passed the order of removal of the petitioner as councillor of the Municipality.
8.1 Ms.Manisha Lavkumar, learned Government Pleader, submitted that the respondent No.1 has after overall appreciation of material available before him and after arriving at the subjective satisfaction passed the order of removal of the petitioner as councillor of the Municipality. 8.2 Ms.Manisha Lavkumar, learned Government Pleader, by relying upon the decision dated 1.9.2009 of this Court in Special Civil Application No.9059 of 2009 the case of Mohammedbhai Sulemanbhai Maththa vs. Director of Municipalities & 2, more particularly para 5, submitted that there cannot be any dispute with the proposition that an elected member of the Municipality could not be removed casually, but at the same time if the facts and circumstances establish fulfillment of requirement of invocation of Section 37 of the Act, 1963 merely because the delinquent is an elected member, he cannot be absolved. By relying upon the aforesaid judgment, learned Government Pleader submitted that whether the act of a councillor would attract the provisions of Section 37 of the Act, 1963 would depend upon the facts of each case and there may not be any straight jacket formula for the same. Learned Government Pleader further submitted that under the facts and circumstances of the present case, the petitioner has stopped the Chief Sanitary Inspector from performing his duty and misbehaved with him and hence the respondent No.1 has rightly passed the impugned order removing the petitioner as councillor of the municipality. 8.3 Mr.Manisha Lavkumar, learned Government Pleader, by pointing out from the judgment cited by Mr.Nirav Thakkar, learned advocate for the petitioner in the case of Ravi Yashwant Bhoir (supra), more particularly, paragraphs Nos.13, 14, 17, 18 and 19, submitted that the word misconduct is having wider meaning and while examining the aspect of misconduct, the Court is required to examine as to whether the misconduct has been detrimental to the public or not as the expression `misconduct' has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, willful in character. Learned Government Pleader further submitted that the expression `misconduct’ is to be construed and considered in reference and context wherein the term occurs taking into consideration the scope and object of the statute.
Learned Government Pleader further submitted that the expression `misconduct’ is to be construed and considered in reference and context wherein the term occurs taking into consideration the scope and object of the statute. Misconduct is to be measured in terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public at large or not. 8.4 By referring to paragraphs 13, 14, 17, 18 and 19 of the judgment in the case of Ravi Yashwant Bhoir (supra), learned Government Pleader submitted that the Court is required to consider the fact that whether the action of the Chief Sanitary Inspector was in larger public interest and pursuant to a decision taken by the business associations, police, Mamlatdar and office bearers of the municipality or not. If a decision was taken in the larger public interest, and while the same being implemented if the petitioner obstructed the implementation of the said decision, the same can be said to be misconduct. In the instance case, the petitioner has not only obstructed the officer from performing duty in larger public interest, but also misbehaved with him and used filthy language, and therefore, considering the fact that the misconduct is required to be construed by keeping in mind the larger public interest, the instant case can be said to be a case of misconduct, and therefore, the petitioner has rightly been removed as councillor. 8.5 Ms.Manisha Lavkumar, learned Government Pleader, submitted that usage of abusive or filthy language is a part of misbehaviour, and therefore, when misbehaviour is alleged against the municipal councillor, use of abusive language even if not allowed separately, the same is rightly considered by the respondent No.1, and therefore, the same cannot be said to be a consideration by the authority beyond scope of show cause notice. 8.6 Learned Government Pleader submitted that the petitioner himself had posted the aforesaid viral video clip on his Facebook page, which would amount to an admission on his part, more particularly, when the aforesaid video clip has not been questioned by the petitioner, the question of its authenticity should not be doubted. Learned Government Pleader further submitted that the petitioner is not disputing the video clip, but insisting that the entice incident is not depicted in video clip.
Learned Government Pleader further submitted that the petitioner is not disputing the video clip, but insisting that the entice incident is not depicted in video clip. Learned Government Pleader further submitted that even if at a particular stage a person has misbehaved and if that would fall within the purview of Section 37 of the Act, 1963, the act of misbehaviour which can be termed as misconduct is important and it may last for few minutes or seconds, the same is captured in the video clip, and therefore, the entire incident is not required to be considered. By making the aforesaid submissions, Ms.Manisha Lavkumar, learned Government Pleader prayed for dismissal of the petition with exemplary costs. 9. Mr.Deepak Sanchela, learned advocate for the respondent municipality, supported the case of respondent No.1 and adopted the arguments advanced by learned Government Pleader. 10. Heard learned advocates for the parties and perused the record of the case, including the judgments cited by learned advocates for the parties. The entire case revolves around the following issues, which are required to be determined by the Court: [1] Whether the action of the petitioner of stopping the Chief Sanitary Inspector from performing his duty, which according to the petitioner was beyond the powers of the Chief Sanitary Inspector or he was not authorized to take such actions as there was no instruction, order or guidelines in writing would amount to misconduct or not. [2] That in absence the entire incident having been video-graphed and only a small clip of the incident is available, in that case, whether the act of petitioner can be said to be a misconduct or not, if the first issue held against the petitioner. [3] If the first and second issues are held against the petitioner, in that case, whether the respondent No.1 was justified in passing the impugned order or not. 10.1 First of all, the Court is required to determine as to whether the act of the petitioner can be said to be a misconduct or not. In this regard, in the judgment of Ravi Yashwant Bhoir (supra) the Hon’ble Supreme Court while dealing with the aspect of what can be said to be misconduct, has observed in paras 11 to 19, as under: “MISCONDUCT: 11.
In this regard, in the judgment of Ravi Yashwant Bhoir (supra) the Hon’ble Supreme Court while dealing with the aspect of what can be said to be misconduct, has observed in paras 11 to 19, as under: “MISCONDUCT: 11. “Misconduct” has been defined in Black's Law Dictionary, Sixth Edition as: "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offense, but not negligence or carelessness." “Misconduct in office” has been defined as: "Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act." 12. P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines `misconduct' thus: “The term `misconduct’ implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected." Thus it could be seen that the word `misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty.
It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve....". [emphasis supplied] (See also: State of Punjab & Ors. v. Ram Singh Ex. Constable, AIR 1992 SC 2188 ). 13. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional circumstances, not working diligently may be a misconduct. An action which is detrimental to the prestige of the institution may also amount to misconduct. Acting beyond authority may be a misconduct. When the office bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds etc. constitutes a serious misconduct, inviting severe punishment. (Vide: Disciplinary Authority-cum-Regional Manager & Ors. v. Nikunja Bihari Patnaik, (1996) 9 SCC 69 ; Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571 ; Inspector Prem Chand v. Govt. of NCT of Delhi & Ors., (2007) 4 SCC 566 ; and State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594 ). 14. In Government of A.P. v. P. Posetty, (2000) 2 SCC 220 , this Court held that since acting in derogation to the prestige of the institution/body and placing his present position in any kind of embarrassment may amount to misconduct, for the reason, that such conduct may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an incumbent of the post. 15 In M.M. Malhotra v. Union of India & Ors., AIR 2006 SC 80 , this Court explained as under: "17.......It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty.
But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, having regard to the scope of the statute and the public purpose it seeks to serve." A similar view has been reiterated in Baldev Singh Gandhi v. State of Punjab & Ors., AIR 2002 SC 1124 . 16. Conclusions about the absence or lack of personal qualities in the incumbent do not amount to misconduct holding the person concerned liable for punishment. (See: Union of India & Ors. v. J. Ahmed, AIR 1979 SC 1022 ). 17. It is also a settled legal proposition that misconduct must necessarily be measured in terms of the nature of the misconduct and the court must examine as to whether misconduct has been detrimental to the public interest. (Vide: Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290 ). 18. The expression `misconduct' has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, willful in character. It may be synonymous as mis-demeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces. 19. Further, the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed.
It may be more serious in case of disciplinary forces. 19. Further, the expression `misconduct' has to be construed and understood in reference to the subject matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest.” 10.2 The aforesaid observations of the Hon’ble Supreme Court based upon how the misconduct is defined in various judgments of the Hon’ble Supreme Court as well as various dictionaries would indicate that misconduct is having a wider meaning and the same is required to be construed by keeping in mind the nature of misconduct, the circumstances for which the misconduct is alleged as well as whether it affects the larger public interest or not. Therefore, the Court is required to take into consideration the circumstances leading to the allegations of the misconduct. 10.3 It is an undisputed fact that during the period of 26.4.2021, second of COVID-19 was in full swing and all the hospitals were flooded with the patients. During that crucial period, the entire country was running shortage of oxygen, beds, medicines, ambulances, etc. Though the aforesaid facts are not stated in the petition by the petitioner as we have all passed through that phase which had traumatized the lives of every citizen, and therefore, those were the exceptional circumstances. At that time what was known to the people was the fact that COVID-19 is an air borne disease and one of most important way to save the people from the pandemic was to maintain social distancing. During that period though vaccination drive was also going, the herd immunity from the COVID-19 was not fully developed and a large number of people succumbed to corona virus and the entire nation had witnessed the undeclared medical emergency like situation and the entire world was fighting with the pandemic. 10.4 With a bonafide intention to reduce or curb the spread of corona virus, a voluntary decision was taken by the municipality in consultation with the police authorities and business associations to keep the shops closed for a week from 25.4.2021 to 2.5.2021 with some relaxation to the vendors essential commodities like milk, fruits, vegetable and medical stores.
10.4 With a bonafide intention to reduce or curb the spread of corona virus, a voluntary decision was taken by the municipality in consultation with the police authorities and business associations to keep the shops closed for a week from 25.4.2021 to 2.5.2021 with some relaxation to the vendors essential commodities like milk, fruits, vegetable and medical stores. At that relevant point of time, it was not expected from the authorities to issue all the orders or instructions in writing, as exceptional circumstances always lead to exceptional and unexpected way of fighting with the situation. 10.5 When the above decision to close down the shops for a week from 25.4.2021 to 2.5.2021 was taken and when the Chief Sanitary Inspector without there being any selfish motive was acting in a direction to implement that decision, any action of confronting with such decision would amount to misconduct by the petitioner, who is an elected councillor of the municipality. He is a leader and public always follow the footsteps of a leader. When the petitioner was knowing that human lives are precious than business, being a leader and an elected representative, he was expected to cooperate with the local administration and to help the authorities in convincing the public to voluntarily to close down the shops. The petitioner not only miserably failed in his duty, but by obstructing the Chief Sanitary Inspector from performing his duty, which he was performing in larger public interest to see that spread of corona virus is reduced or stopped, the petitioner not only confronted with him but also misbehaved with him. The matter does not end here. Thereafter, the petitioner when came to know that the video clip of some moments of confrontation where the petitioner was misbehaving with the Chief Sanitary Inspector had gone viral, the same was posted on the Facebook page of the petitioner. According to the petitioner, the petitioner was tagged with the aforesaid video clip on the Facebook and it was not posted by the petitioner. Be that as it may, when the petitioner uses social media, it is expected that the petitioner knows how to handle the social media or that particular application or platform, if something is not posted by him.
Be that as it may, when the petitioner uses social media, it is expected that the petitioner knows how to handle the social media or that particular application or platform, if something is not posted by him. If the petitioner had posted that video clip on Facebook page that action perpetuates the misconduct and if the petitioner has not posted the video clip he could have de-tagged himself from the said video clip. The fact remains that when such video clip is posted on petitioner’s Facebook page, it was capable of instigating other people to defy the unanimous decision. However, I leave the aforesaid aspect of posting the clip on Facebook page here itself for the reason that subject matter of the petition is about alleged misconduct whereby the petitioner has misbehaved with the Chief Sanitary Inspector and whether such action can be said to be misconduct or not. 10.6 This Court is firmly of the view that the action of the petitioner of confronting with the Chief Sanitary Inspector and interrupting him in performing his duty and misbehaving with him, can certainly be said to be misconduct as the officer was performing his duty in the larger public interest and the petitioner being an elected councillor could not have stopped the petitioner and misbehaved with him. Considering the aforesaid aspect, the misbehaviour by the petitioner can be said to be a misconduct. 10.7 As far as the submission of learned advocate Mr.Thakkar that though use of abusive or filthy language by the petitioner has not been a ground in the show cause notice and the same was considered by the respondent No.1 while passing the final order is concerned, this Court is of the view that the use of abusive language is also one of the ingredients or elements of misbehaviour as the misbehaviour has a wider meaning and usage of abusive or filthy language is just one of the ingredients, elements or components of misbehaviour. 10.8 Hence, once this Court is of the view that the petitioner's act would fall within the expression `misbehaviour’, which according to this Court can be termed as misconduct, the proceedings under Section 37 of the Act, 1963 were rightly initiated against the petitioner.
10.8 Hence, once this Court is of the view that the petitioner's act would fall within the expression `misbehaviour’, which according to this Court can be termed as misconduct, the proceedings under Section 37 of the Act, 1963 were rightly initiated against the petitioner. Therefore, once prima facie, the act of the petitioner is held to be misconduct, the next question that arises for consideration of the Court is that whether a video clip of less than one minute would be sufficient to hold the act of the petitioner as a sufficient piece of evidence to arrive at a conclusion that it was an act of misconduct. 10.9 To consider the aforesaid aspect, this Court perused the material available on record of this petition. It was not the defence of the petitioner before the authority that the aforesaid video clip of less than one minute is engineered or fabricated or not authentic. The petitioner has never made an application to send the video clip to Forensic Science Laboratory or any other laboratory questioning its authenticity. In absence of petitioner having questioned the aforesaid video clip, this Court is of the view that once the genuineness of the video clip is not questioned, it comes to that whatever shown in the video clip had actually happened. Further, misconduct would not require a minute to minute or second to second videography. Misconduct can take place even for a very short period, but still it can be said to be a misconduct. Misconduct does not have any requirement that it must be continued for a particular duration. If a person slaps another person, that hardly takes a few seconds, but heated arguments between two persons may have lasted for hours. Still the act of slapping of duration of few seconds can be said to be misconduct. For that the entire heated arguments are not required to be captured on electronic device. If misconduct has taken place at a particular moment, depiction of the same is sufficient evidence to determine as to whether the misconduct has taken place or not. In the instant case, a video clip of less than one minute duration was available for respondent No.1 to determine as to whether the behaviour of the petitioner captured in the aforesaid video clip amounts to misconduct or not.
In the instant case, a video clip of less than one minute duration was available for respondent No.1 to determine as to whether the behaviour of the petitioner captured in the aforesaid video clip amounts to misconduct or not. The word `misconduct’, as per the submission of Mr.Thakkar, learned advocate for the petitioner that since the video clip was of very short duration, it does not give a clear picture about the misconduct and hence cannot be said to be a sufficient evidence, cannot be accepted. Now, as both the issues are held against the petitioner, the third issue that the Court is required to determine is whether the authority was justified in passing the impugned order removing the petitioner as councillor. 10.10 A perusal of the impugned order passed by the respondent No.1 shows that the respondent No.1 had taken into consideration the written submissions of the petitioner. Whether misconduct has taken place or not and if the misconduct is believed by the authority, that conclusion is a matter of subjective satisfaction. When the authority is prima facie satisfied that the action of the petitioner amounts to misconduct in that case, the authority was justified in passing the order of removal of the petitioner from the post of councillor of the municipality. Therefore, on perusal of the order passed by respondent No.1, I do not see any illegality or error committed by the authority while passing the impugned order. 10.11 As far as reliance placed by Mr.Thakkar, learned advocate for the petitioner, on the decision of Division Bench in the case of Yashinbhai Ismail Mandli (supra), is concerned, this Court finds that in the above case the observations made in para 10 by Division Bench were on the basis of a complaint and a copy of statement given to the police Inspector and as there was no other materiel to substantiate the allegation, the Court took a view that the material was insufficient to remove the petitioner on the ground of giving a threat to the Chief Officer. However, in the instant case, there is a video clip showing the petitioner misbehaving with the Chief Sanitary Inspector, and therefore, the said act can certainly be said to be credible material as the genuineness of the clip has not been questioned by the petitioner. Hence, the aforesaid judgment will not help the petitioner.
However, in the instant case, there is a video clip showing the petitioner misbehaving with the Chief Sanitary Inspector, and therefore, the said act can certainly be said to be credible material as the genuineness of the clip has not been questioned by the petitioner. Hence, the aforesaid judgment will not help the petitioner. 10.12 As far as the decision relied by Ms.Manisha Lavkumar, learned Government Pleader in the case of Mohammedbhai Sulemanbhai Maththa (supra) is concerned, in para 5 of the decision, it is categorically observed by the Court that if the facts and circumstances establishes fulfillment of any of the conditions specified by provisions of Section 37 of the Act, 1963 merely because the delinquent is an elected councillor he cannot be absolved. Therefore, in the present case also, when there is a strong evidence in the form of video clip while misbehaving with the Chief Sanitary Inspector and when the same is proved on the basis of the subjective satisfaction of respondent No.1, the decision taken by respondent No.1 cannot be said to be erroneous or illegal and no interference is called for by this Court in the present petition. 10.13 As far as the submission of Mr.Thakkar, learned advocate for the petitioner, relying upon the decision in the case of Ravi Yashwant Bhoir (supra) that removal of an elected member of the municipality for misconduct has serious restrictions as it casts stigma and take away their valuable right as well as rights of people of their respective constituencies to be represented by them is concerned, as the removal is based on proved misconduct, the aforesaid contention would not help and the petitioner being an elected member of the municipality it is expected that the elected member would act in a manner which may aid the action which is proposed or taken in the public interest. Therefore, the aforesaid contention also is required to be rejected. 11. In view of the above discussion, this petition is required to be dismissed and the same is dismissed. Rule discharged. Interim relief granted earlier stands vacated forthwith. However, there shall be no order as to costs. At this stage, learned advocate Mr. Nirav Thakkar, prayed to stay the aforesaid order for a period of four weeks. However, the afore said prayer is rejected.