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2023 DIGILAW 443 (GUJ)

Shanabhai Gandabhai Parmar v. State Of Gujarat

2023-03-13

A.S.SUPEHIA

body2023
JUDGMENT : 1. In the present writ petition, the petitioner has assailed the order passed by the respondent no.2 dated 02.01.2020, whereby the respondent no.2 has rejected the revision application preferred by the petitioner being Revision Application No.111 of 2019 by confirming the order dated 24.09.2019 passed by the Respondent no.3 in Appeal No.1 of 2019. 2. The brief facts of the case are as under:- 2.1. The petitioner was the member of the Agriculture Produce Market Committee, Kathlal (hereinafter referred to as “the Committee”), which is duly constituted under the provision of the Gujarat Agriculture Produce Market Act, 1963 (Gujarat Act No. 20 of 1964), (hereinafter referred to as “the Act”). He has been removed by the respondent-authorities as a member of the Committee on the ground of various irregularities. 2.2. From the prolix contents of the writ petition, it appears that there is a dispute between the petitioner and one Shri Hasmukhbhai Parmar with regard to the contesting of the election of Chairman of the Committee. The petitioner in this regard has filed the writ petition being Special Civil Application No.14833 of 209, which is pending before this Court. 3. Learned advocate Mr. Mangukiya has submitted that as a counterblast to the filing of the aforestated petition thereto, a show cause notice is issued to the petitioner dated 10.062019, calling upon the petitioner to show-cause as to why the petitioner should not be removed as member of the Committee, in exercise of the powers under section 13 of the Act. It is submitted that the petitioner submitted an application dated 26.08.2019, wherein the petitioner pointed out that no records have been forged by the petitioner, and the contrary the petitioner requested the Director to register a criminal offence. It is submitted that it may also be noted that all receipt books remain under the custody of the Secretary. Thus, it is submitted that to make an allegation that the petitioner got it prepared is nothing but just figment of imagination. 3.1 Learned advocate Mr.Mangukiya has submitted that had there been a fabricated day-book, the election petition would have been filed by the voters. It is submitted that no election petition has been filed. Thus, it is submitted that to make an allegation that the petitioner got it prepared is nothing but just figment of imagination. 3.1 Learned advocate Mr.Mangukiya has submitted that had there been a fabricated day-book, the election petition would have been filed by the voters. It is submitted that no election petition has been filed. It is submitted that since no date of hearing was fixed, the petitioner was constrained to prefer a writ petition before this Court being Special Civil Application No.19287 of 2019 and this Court vide order dated 24.10.2019 directed the respondent no.2 to decide the revision application preferred by the petitioner on merits and pass an order in accordance with law. 3.2 Learned advocate Mr.Mangukiya has contended that despite the order passed by this Court, the impugned order, which is a non-speaking order, has been passed. It is submitted that except recording the submissions and contentions raised by the petitioner, there is no adjudication on the dispute involved in the petition. It is submitted that the respondent no.2 is a quasi-judicial authority and it is his bounden duty to record reasons for arriving at the satisfaction for rejection of the revision application. In the present case, there is no reason worth the name that why the respondent no.2 has rejected the revision application of the petitioner. 3.3 Learned advocate Mr.Mangukiya has submitted that section 13 of the Act provides for removal of the members, which speaks that the Director can remove the members in three contingencies, namely if the member is guilty, neglected or misconceived in discharge of his duties or has conducted disgracefully or has become incapable of performing his duties. It is submitted that the Director was supposed to hold an inquiry as provided in section 13 of the Act. It is submitted that the Director has not conducted any inquiry, and the inquiry has been conducted by the Deputy Director under Section 13 of the Act which is para materia to section 57 of the Gujarat Panchayats Act, 1993. It is submitted that this Court in case of Kamlaben Rohitbhai Patel vs. Additional Development Commissioner and Ors., 2000 (2) G.L.R. 1174 has held that, the words "such inquiry as it deems necessary" would mean that short and summary inquiry, as is considered necessary by the competent authority for the purpose of passing such order. It is submitted that this Court in case of Kamlaben Rohitbhai Patel vs. Additional Development Commissioner and Ors., 2000 (2) G.L.R. 1174 has held that, the words "such inquiry as it deems necessary" would mean that short and summary inquiry, as is considered necessary by the competent authority for the purpose of passing such order. 3.4 Learned advocate Mr.Mangukiya has submitted that the removal from the elected office in a cursorily manner entails stigma. It is submitted that Section 13 of the Act provides that the members should be guilty or of neglect or misconduct in discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member. It is submitted that the Apex Court in the case of Tarlochan Dev Sharma vs. State of Punjab and Ors., 2001 (6) S.C.C. 260 has held that removal from an elected office is serious matter hence, the procedure, as prescribed in the statute, has to be adhered to. 4. Per contra, learned AGP Ms.Nidhi Vyas has submitted that upon a bare perusal of the impugned order dated 24.09.2019, it is evident that the powers are precisely exercised by the authority under Section 13 of the Act, after following the principles of natural justice and considering the material on record after holding a detailed inquiry 4.1 Learned AGP Ms.Vyas has submitted that it was found and further affirmed by way of inquiry report, that the vouchers, balance sheets, signature etc. are duplicate. It is submitted that after conducting the exercise of verifying record, with the original records, it was concluded that the duplicate vouchers and balance sheets are made merely to gain an ulterior motive. She has submitted that, even the Secretary of the Society has also deposed, admitting the same. Thus, it is submitted that the documents themselves prove that the petitioner has committed serious irregularities. She has submitted that, the Revisional Authority has reconsidered the entire issue and after recording satisfaction, confirmed the order. Thus, it is submitted that both the impugned orders are just and proper. 4.2 Learned AGP Ms.Vyas has submitted that with respect to the impugned order, the only contention raised by the petitioner is that the Director himself has not conducted inquiry before arriving at a decision. Thus, it is submitted that both the impugned orders are just and proper. 4.2 Learned AGP Ms.Vyas has submitted that with respect to the impugned order, the only contention raised by the petitioner is that the Director himself has not conducted inquiry before arriving at a decision. In response thereof, it is submitted that as per Section 13 of the Act, the Director is empowered to conduct inquiry "as he deems fit" and then pass an order. She has submitted that, the statute itself gives the Director ample power to conduct the inquiry and decide manner of inquiry as he thinks appropriate. It is submitted that the Deputy Director has only conducted a summary inquiry and after collecting the necessary documents, a report was prepared by him which was sent to the Director vide a communication dated 25.05.2019. It is further submitted that reliance is placed on para materia provision of section 57 of the Gujarat Panchayats Act, 1993 is also misplaced and cannot be relied upon since, Section 13 of the Act is not ambiguous or vague, which warrants help and interpretation from other Statute. Hence, it is submitted that the inquiry is conducted and the order has been passed in accordance with the provision of Section 13 of the Act by the Director himself hence, it is within jurisdiction. 4.3 Learned AGP Ms.Vyas has further submitted that the petitioner has raised contention in regard to statements of employees and Secretary, alleged signatures, payment of market fee and license fees, eligibility of traders in election etc. which are all pertaining to the facts of the case, which are dealt in detailed by both the authorities in accordance with law. The petitioner, under the writ jurisdiction, cannot delve this Court into fact finding inquiry, more particularly when the disputes pertaining to the facts and records are raised. It is submitted that, the writ jurisdiction of the Court cannot be invoked for deciding the disputed question of facts, more som when the impugned orders are just, intra vires and in complete accordance with the provisions of law. ANALYSIS AND CONCLUSION: 5. The petitioner is removed as a member of the Committee in view serious irregularities committed by him. It is alleged that the rojmel (day-book - journel containing day to day accounts) / balance sheets, vouchers, signature etc. were forged by him. ANALYSIS AND CONCLUSION: 5. The petitioner is removed as a member of the Committee in view serious irregularities committed by him. It is alleged that the rojmel (day-book - journel containing day to day accounts) / balance sheets, vouchers, signature etc. were forged by him. There are serious allegations proved against petitioner that in order to elect himself uncontested, the petitioner had prepared the duplicate documents and even the forged signatures of the employees. 6. The prime contention raised by the petitioner is that the impugned orders are unreasoned orders, hence deserve to be quashed. A bare perusal of the impugned orders reveals that that the petitioner has been given ample opportunities for defending his case. The order dated 24.09.2019 reveals that the petitioner was being represented by an advocate and all the relevant documents were also supplied to him. The Director, in the impugned order dated 24.09.2019 has recorded the dates on which the petitioner was called upon to present his case. It is recorded that on 04.07.2019, the petitioner requested for adjournment to engage an advocate. It is further recorded that on that day District Registrar was also present and the petitioner was handed over two rojmels along with the relevant receipts. All the documents demanded by him also supplied to him. The impugned order also records the statement of witnesses, more particulalry the Secretary Induben Jhala and Auditor K.B.Bhoi, who have supported the allegations levelled against the petitioner. The order also records that the petitioner did not supply any evidence and proof refuting the allegations despite giving an opportunities to him. Similarly, the order passed in Revision Application No.111 of 2019 by the State Government cannot be said to be an unreasoned order. The State Department has dealt with the contention raised by the petitioner. The main contention raised by the petitioner in the revision application is with regard to not obtaining the opinion of the hand writing expert. It is recorded that the statement of the Secretary and the auditor prove that such documents were forged by comparing with the original. It is also recorded that despite giving opportunities to the petitioner, he is unable to prove his innocence. It is recorded that the statement of the Secretary and the auditor prove that such documents were forged by comparing with the original. It is also recorded that despite giving opportunities to the petitioner, he is unable to prove his innocence. In the considered opinion of this Court, the revision order also deals with the contention raised by the petitioner, hence the same also cannot be termed as an unreasoned order in wake of the fact that he was conferred an opportunity to prove his innocence. The authority, while dealing with the revision application is not supposed to again re-appreciate the entire evidence, but is supposed to deal with the contention raised in the revision or appeal. Hence, the allegations with regard to the impugned orders being unreasoned does not merit acceptance. 7. The petitioner has been removed as a Chairman by exercising powers under the provision of section 13 of the Act. The same reads as under: “SECTION 13 : Liability of members of market committee to removal from office (i) The Director may, by an order remove one member of the market committee elected or nominated under this Act, if after holding such inquiry as he may deem fit, the Director is of the opinion that such member has been guilty of neglect or misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member: Provided that no resolution recommending the removal of any member shall be passed by the market committee unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made: Provided further that no order for removal of the member shall be passed by the Director unless the member has been given a reasonable opportunity of being heard. (ii) A member, if removed under clause (i), shall be disqualified to be eligible for becoming a member of the same market committee for a period of six years. (2) A member so removed may, within 30 days of the date of communication thereof to him, make an appeal to the State Government. (ii) A member, if removed under clause (i), shall be disqualified to be eligible for becoming a member of the same market committee for a period of six years. (2) A member so removed may, within 30 days of the date of communication thereof to him, make an appeal to the State Government. (3) The decision of the State Government on appeal made under sub-section (2) and, subject thereto, the decision of the Director under sub-section (1), shall be final.” Thus, the Director, after holding such inquiry as “he deems fit” can remove he member of the market committee. The entire enquiry depends on the documentary evidence, which includes the report of the District Registrar as well as the yearly accounts of the Committee, which were passed by the Market Committee at the relevant time. Prior to issuance of the show cause notice dated 10.06.2019, the Director has asked the Deputy Director to prepare a preliminary report, after verifying the necessary record / documents. Such report was sent by the Deputy Director to the Director on 25.04.2019, which records that the documents are forged. Thus, it is always open for the Director to follow the procedure as he “deems fit” for holding a departmental inquiry. The petitioner has contended that the Deputy Director could not have held an inquiry and the entire exercise is to be done by the Director himself, hence it is urged that the impugned order may be set aside. In my considered opinion, calling upon of the report by the Director from the Deputy Director is not barred under the provision of section 13 of the Act. The Director for his satisfaction can always call for the preliminary report from any officer, who is subordinate to him if the allegations are serious in nature. The contention of the petitioner could have been accepted, in case the Director without undertaking necessary inquiry, and by merely placing reliance on the preliminary report had removed the petitioner as a member from the Committee. In the present case, after the preliminary report is called for by the Director, the petitioner is afforded ample opportunity to defend his case, by supplying all the documentary evidence, which was collected and relied upon by the Director. Thus, this Court does not find any infirmity or illegality committed by the Director in adopting the procedure as he deemed fit for conducting the inquiry. 8. Thus, this Court does not find any infirmity or illegality committed by the Director in adopting the procedure as he deemed fit for conducting the inquiry. 8. The respondent authorities have found that the petitioner had committed various irregularities, which constrained the respondent authority to pass the order under Section 13 of the Act. In the order dated 24.09.2019, a statement of the Auditor as well as the Secretary was recorded, wherein they have clarified that the Rojmel from Page No.1 to 227 is authenticated and true, whereas the Rojmel from Page No.1 to 268 as duplicate Rojmel. The authorities have also verified the Rojmel from 2015-2016, 2016-2017 and it was found that the same only bears the signatures of the Secretary. It is further revealed that the duplicate Rojmel and the receipt books were prepared by incorporating the duplicate and forged signatures. The Secretary has specifically pointed out the allegations against the petitioner, who was the Chairman at the relevant time of the Market Committee, that such irregularities have been committed by him in order to facilitate himself in election of 2018. After such findings are recorded, the order dated 24.09.2019 has been passed removing the petitioner as a member from the Committee. It is also contended by the petitioner that no criminal prosecution is yet registered and hence, the impugned order could not have been passed. The impugned order cannot be set aside merely for the reason that the authorities have not yet registered any criminal prosecution. 9. The petitioner has also contended that since no opinion from handwriting expert has been obtained, it cannot held that the documents are forged. The said contention also does not merit acceptance since the law is well-settled that the strict rules of evidence are not applicable in a domestic enquiry. The Apex Court in case of State of Haryana vs. Rattan Singh, AIR 1977 S.C. 1512 has held thus- “4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of Judgement vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamenlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order in invalid on that ground.” The Apex Court has enunciated that the in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Therefore, we are unable to hold that the order in invalid on that ground.” The Apex Court has enunciated that the in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. It is also observed that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice and whether there is an evidence or not, the same is not required to be considered in the sense of the technical rules governing regular court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept. In the present case, as recorded in the preceding paragraph, the Auditor and the Registrar of the Society have examined the documents and they have opined that the same were forged. Hence, merely because such documents were not verified by the handwriting expert will not ipso facto render the findings void. 10. It is trite that this Court, while exercising its power of judicial review conferred under Articles 226 and 227 of the Constitution of India, cannot re-appreciate the facts as recorded by the authorities, but only has to examine that the decision making process is in rhyme with the statute. The petitioner has not alleged any violation of the statutory provisions of the Act, but has sought the order to be quashed and set aside on the facts mentioned therein by contending that such record was not illegally prepared by him or in any manner it was tinkered with such exercise cannot be undertaken by this Court in writ petition. 11. Thus, I do not find any illegality or infirmity committed by the respondent authorities in passing the impugned order since the same is in compliance of the statute as well as the principles of natural justice. The writ petition fails. Rule is discharged.