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2025 DIGILAW 189 (GUJ)

Rekhaben Abhalbhai Bambhaniya v. State of Gujarat

2025-03-03

PRANAV TRIVEDI, SUNITA AGARWAL

body2025
ORDER : SUNITA AGARWAL, C.J. 1. Having heard learned counsel for the parties and perused the record, pertinent is to note that the petitioner, who was elected as a Sarpanch of Dhokadava Gram Panchayat and assumed charge on the said post on 17.01.2022, was issued a showcause notice dated07.06.2024 under Section 57 (1) of the Gujarat Panchayat Act’ 1993 on the ground that the petitioner was guilty of misconduct in discharge of her duties and was called upon to show cause as to why the petitioner should not be removed from the post from being guilty of misconduct in discharge of her duties. 2. It is an admitted fact of the matter that pursuant to the showcause notice, the petitioner appeared before the District Development Officer, Gir Somnath, the competent authority and also filed her reply along with necessary documents. After the hearing was concluded on 03.09.2024, the order impugned dated 21.09.2024, subject matter of challenge in the writ petition, was passed by respondent No.3 removing the petitioner from the post of Sarpanch. 3. The only argument pressed into service by Mr. Shalin Mehta, the learned Senior Counsel appearing for the original petitioner / appellant herein is that the order impugned dated 21.09.2024 is based on the subsequent report dated 05.09.2024 submitted by the Taluka Development Officer (TDO), after conclusion of the personal hearing granted to the petitioner on 03.09.2024. 4. The submission, thus, is that this amounts to not affording due hearing to the petitioner, in asmuchas, the petitioner was not given opportunity to rebut the allegation made in the report dated 05.09.2024 submitted by the TDO. The contention is that the order impugned dated 21.09.2024 transcribed the report dated 05.09.2024 in verbatim while drawing conclusion for removal of the petitioner from the post of Sarpanch. 5. The submission is that once the report dated 05.09.2024 submitted subsequently by the Taluka Development Officer was made basis of passing of the order impugned or removal dated21.09.2024, it was incumbent upon the respondent No.3 to supply a copy of the said report so as to grant a fresh opportunity to the petitioner to counter the allegations therein. 6. 5. The submission is that once the report dated 05.09.2024 submitted subsequently by the Taluka Development Officer was made basis of passing of the order impugned or removal dated21.09.2024, it was incumbent upon the respondent No.3 to supply a copy of the said report so as to grant a fresh opportunity to the petitioner to counter the allegations therein. 6. It was argued by the learned Senior Counsel that in the proceedings under Section 57 of the Panchayat Act for removal of an elected Sarpanch from the office, no irrebuttable presumptions can be drawn about any of the circumstances stated in the said report. 7. The further submission was made on the merits of the allegations made against the original petitioner to argue that there were no allegations of financial embezzlement or causing loss to the Government Exchequer. The allegations of alleged irregularities committed in construction of toilet or the quality of construction were duly rebutted by the petitioner and the subsequent report dated 05.09.2024 was illegally relied upon ignoring the explanation afforded by the petitioner during the course of personal hearing concluded on 03.09.2024. 8. With these submissions, it was vehemently argued that there was no allegation of commission of any misconduct by the petitioner in discharge of her duties and the fact that a report was obtained behind the back of the petitioner after hearing was concluded on 03.09.2024, is sufficient to set aside the impugned order dated21.09.2024. 9. Reliance is placed on the decisions of the Apex Court and of this Court in the case of Bichchhubhai Bhabhlubhai Khuman Vs. State of Gujarat (Special Civil Application No. 9345 of 2014) to submit that the report of the TDO dated 05.09.2024, which has been relied on by the authorities since not supplied to the petitioner, the order of removal has to go. 10. Mr. Radhesh Y. Vyas, learned advocate appearing for the respondent No.3, the District Development Officer, however, supports the decision of the learned Single Judge for the reasoning given therein. 11. Noticing the above, we may record that the showcause notice dated 07.06.2024 was issued to the petitioner based on two reports of the TDO dated 16.02.2024 and 27.05.2024, which were duly supplied to the petitioner and there is no dispute about the said fact. It is also undisputed that the personal hearing was afforded to the petitioner. 11. Noticing the above, we may record that the showcause notice dated 07.06.2024 was issued to the petitioner based on two reports of the TDO dated 16.02.2024 and 27.05.2024, which were duly supplied to the petitioner and there is no dispute about the said fact. It is also undisputed that the personal hearing was afforded to the petitioner. Apart from other allegations of commission of irregularities in the construction work of toilets (development work) carried out by the petitioner, the main allegation against the petitioner was that the contract for construction was awarded to a firm, wherein the husband of the petitioner was a partner. The said fact was duly reflected in the reports dated 16.02.2024 and 27.05.2024 supplied to the petitioner along with the showcause notice dated 07.06.2024, to which no plausible reply was submitted by the petitioner. 12. It is categorically recorded by the learned Single Judge that during the course of hearing, the petitioner could not dispute the allegations against her. The irregularities / discrepancies committed by her could not be dispelled by the petitioner. The petitioner had failed to produce any contrary evidence and was provided due opportunity of hearing prior to passing of the order impugned. The assertion made by the learned counsel for the petitioner before the learned Single Judge that the order of removal of the petitioner was in breach of the provisions of Section 57 of the Gujarat Panchayat Act or being violative of principles of Natural Justice or fair play has, thus, been turned down. 13. Noticing the above, suffice it to record that on a query made by us, learned Senior Counsel appearing for the petitioner could not dispute the correctness of the allegation that the contract for construction work was awarded to a firm, wherein the petitioner’s husband was a partner. This fact itself is sufficient to refuse interference in the order of removal of the petitioner as a Sarpanch, which categorically records that the petitioner has taken undue advantage of her position as Sarpanch. 14. We may note that one of the grounds to initiate action for removal of a Sarpanch from the office is abuse of his powers. The fact that the tender was awarded to a firm, which was a partnership firm, wherein petitioner’s husband is a partner itself is sufficient to conclude that the petitioner had abused her powers as Sarpanch. 14. We may note that one of the grounds to initiate action for removal of a Sarpanch from the office is abuse of his powers. The fact that the tender was awarded to a firm, which was a partnership firm, wherein petitioner’s husband is a partner itself is sufficient to conclude that the petitioner had abused her powers as Sarpanch. The explanation offered by the learned Senior Counsel during the course of argument to the said allegation that there was no allegations of any financial misappropriation by awarding tender to the firm having petitioner’s husband as a partner, is not acceptable. 15. The further submission made by the learned Senior Counsel for the petitioner that the aforesaid firm had submitted lowest tender and was duly selected by the Gram Panchayat and it was not the sole decision of the petitioner as a Sarpanch, is neither here nor there. 16. The other contentions that the contract was awarded in the year 2023 and the work was completed much prior to the proceedings initiated against the petitioner are of no benefit of the petitioner. In the totality of facts and circumstances of the present case, it is more than evident that the main allegation against the petitioner was of engaging a firm as a contractor wherein the petitioner’s husband was a partner for the purpose of construction of development work carried out in the Gram Panchayat after her election as a Sarpanch on 17.01.2022. The action of the petitioner, being a Sarpanch of the Gram Panchayat in awarding contract to such a firm itself demonstrates the act of the petitioner being in sheer abuse of her power as an elected Sarpanch. 17. In view of the above, we do not find it a fit case to interfere in the opinion drawn by the learned Single Judge for the mere reason that the report dated 05.09.2024 submitted by the Taluka Development Officer was not supplied to the petitioner prior to passing of the order of removal dated 21.09.2024. 18. It may not be out of place to mention here that the learned Single Judge has categorically recorded that the report dated 05.09.2024 was nothing but compilation of two reports dated 16.02.2024 and 27.05.2024, which were duly served upon the petitioner along with the showcause notice dated 07.06.2024. 19. 18. It may not be out of place to mention here that the learned Single Judge has categorically recorded that the report dated 05.09.2024 was nothing but compilation of two reports dated 16.02.2024 and 27.05.2024, which were duly served upon the petitioner along with the showcause notice dated 07.06.2024. 19. We may also record, at this juncture, that the appellate authority while rejecting the appeal vide order dated 29.11.2024 has categorically recorded that the petitioner had failed to submit any explanation to the above noted allegations in the report dated 05.09.2024 even before the Appellate authority, where sufficient opportunity was granted to the petitioner. No contrary evidence could be produced by her and, moreover, there is an admission on the part of the petitioner in the matter of award of contract to a partnership firm wherein the petitioner’s husband was a partner for carrying out the construction of the development work during her tenure. 20. It is settled law that the principles of natural justice cannot be kept in a straight jacket formula and cannot be applied as an empty formality. Reference can be made to the decision of the Apex Court in the case of Keshav Mills Co. Ltd. v. Union of India , [(1973) 1 SCC 380] in Paragraph No. ‘8’, which reads as under:- “8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We no not think it either feasible or even desirable to lay down any fixed or rigorous yard- stick in this manner. The concept of natural justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re H.K. (an infant). Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re H.K. (an infant). [(1967) 2 QB 617] It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case a “insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances”. However, even the application of the concept of fair-play requires real flexibility. Every thing will depend on the actual facts and circumstances of a case. As Tucker, L.J., observed in Russell v. Duke of Norfolk [(1949) 1 All ER 109] : “The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with and so forth.” 21. Reference can also be made to the decision of the Apex Court in the case of Dharampal Satyapal Ltd. v. CCE , [(2015) 8 SCC 519] in Paragraph Nos. ‘38’, ‘39’ and ‘40’, which reads as under:- “38 . But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on. 39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason— perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”—meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that : (WLR p. 1595 : All ER p.1294) “… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.” Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [ (1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that : (WLR p. 593 : All ER p. 377) “… no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing.” In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual. 40 . 40 . In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice.” The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.” 22 Accordingly, the present appeal is dismissed. In view of the dismissal of the present appeal, the pending connected civil applications also stand disposed of.