TaxTMI 
TaxTMI 
2012 (3) TMI 525
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....equently, elected as a President of the Municipal Council. The appellant was served with a show cause notice dated 3.12.2008 by the State of Maharashtra calling upon him to explain why action under Section 55B of the Act 1965 be not taken against him. The chargesheet contained the following six charges: Charge No.1 Uran Charitable Medical Trust has built up unauthorized construction on Survey Nos. 8 + 9 + 10 + 11 situated at Mouje Mhatawali to the extent of 1140 square meters for their hospital and you are the Trustee of the said Trust. Municipal Council had issued notice dated 17.10.2006 for demolishing the said unauthorized construction on its own. Shri Dosu Ardesar Bhiwandiwala had filed Regular Civil Suit No.95/07 against the said notice in the court of Civil Judge, Junior Division, Uran and the same was decided on 19.12.2007 in which plaintiff's application was rejected. Junior Engineer of Uran Municipal Council lodged a complaint with Uran police Station under Sections 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 against the said unauthorized construction on 24.7.2007. Shri Jayant Gosal and three others filed Public Interest Litigation No. 57 of ....
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....i Chintaman Gharat and Shri Shekhar Mhatre to Agenda No.23 that the Standing Committee be authorized to open the tender/approvals and give sanctions for diverse works of the Municipal Council. The said suggestion was rejected. Similarly, suggestion was made by Shri Chintaman Gharat and Shri Shekhar Mhatre to Agenda No. 27 of the same meeting regarding allotment of contract for spraying insecticides in Ward Nos. 1 to 17 of the Municipal Council. It appears from the minutes of the meeting dated 9.1.2007 that even said suggestion was rejected. You have, therefore, violated rules 30, 32(1) and (2) of the Maharashtra Municipal Councils (Conduct of Business) Rules, 1966 by frequently rejecting the suggestions of the Members of the Municipal Council. Charge No.5 Tenders were invited on 5.10.2006 for installing CI Pipeline of 300 mm. diameter for outlet and inlet of GSR Tank at Sarvodayawadi within Uran Municipal Council by the construction department of Maharashtra Jeevan Pradhikaran, Panvel by its Outward No.MJPBV /MC/MS/Uran /311/3/06 dated 7.12.2006 at the Town Hall of the Uran Municipal Council. Pursuant to the same three tenders were invited, details whereof are as follows :....
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.... than 10% in the tender amount. Therefore, by citing Item No.44 of the Standing Order No.36 of the Commissioner and Director, Directorate of Municipal Administration, the Municipal Council called for the current market rates from the concerned commercial dealers. M/s Nazmi Electrical & Hardware Limited, Kalyan and M/s Sanjay Steel Tube Corporation Limited on 5.1.2007 to compare the difference in the rates of the tenderers / contractors and the market rates and decided that the rates of the tenderers were less than the market rates on the basis of the comparison and sanctioned the tenders and the bills of the tenderers were paid thereby you have violated paragraphs Nos. 44 to 47 of Standing Order No.36 regarding inviting tenders and approvals dated 29.12.2005 bearing No. NPS/lnviting Tenders/2005/Case No.151/05 and Rule No.171 of the Maharashtra Accounts Code, 1971. B. The appellant submitted his explanation dated 18.12.2008 in writing. After considering the same, the appellant was issued a notice for hearing on 23.1.2009. The appellant remained present alongwith his advocate before the competent authority i.e. Hon'ble Chief Minister holding the portfolio of Department. However, ....
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....ore, the appellant raised the objection. The Hon'ble Chief Minister directed the Secretary to fix up a date of hearing, however, no date of hearing was fixed and impugned order dated 21.3.2009 had been passed without affording any opportunity of hearing to the appellant. Therefore, the said order was passed in utter disregard of the principles of natural justice and cannot be sustained in the eyes of law. The Competent/Statutory authority has not recorded reasons for conclusions arrived, by which, at least the three charges stood proved against the appellant. The expression 'misconduct' has not been understood in correct perspective. Even if the three charges stood proved, the punishment imposed is totally disproportionate, more so, was not warranted in the facts and circumstances of the case. The High Court erred in not appreciating the facts in correct perspective, therefore, the impugned judgment and order is liable to be set aside. 6. Shri Mike Prakash Desai and Shri Sudhansu Choudhary, learned counsel appearing on behalf of the respondents, have vehemently opposed the appeal contending that charges proved against the appellant constituted grave misconduct on his part and....
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.... 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....". (See also: State of Punjab & Ors. v. Ram Singh Ex. Constable, AIR 1992 SC 2188). 9. Mere error of judgment resulting in doing of negligent act does not amount to misconduct. However, in exceptional ci....
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....e Authority, Bank of India & Anr. v. Mohd. Nizamuddin AIR 2006 SC 3290). 14. The expression 'misconduct' has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful 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. 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. DISGRACEFUL CONDUCT : 15. The expression 'disgraceful conduct' is not defined in the statute. Therefore, the same has to be unders....
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.... form of amendment, and therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State. Public administration is responsible for the effective implication of the rule of law and constitutional commands which effectuate fairly the objective standard set for adjudicating good administrative decisions. However, wherever the executive fails, the Courts come forward to strike down an order passed by them passionately and to remove arbitrariness and unreasonableness, for the reason, that the State by its illegal action becomes liable for forfeiting the full faith and credit trusted with it. (Vide: Scheduled Castes and Scheduled Tribes officers Welfare Council v. State of U.P. & Ors., AIR 1997 SC 1451; and State of Punjab & Ors. v. G.S. Gill & Anr., AIR 1997 SC 2324). 19. Basic means the basis of a thing on which it stands, and on the failure of which it falls. In democracy all citizens have equal poli....
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....ind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." 22. The Constitution Bench of this Court in G. Sadanandan v. State of Kerala & Anr., AIR 1966 SC 1925, held that if all the safeguards provided under the Statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed. 23. There can also be no quarrel with the settled legal proposition that removal of a duly elected Member on the basis of proved misconduct is a quasi-judicial proceeding in nature. (Vide: Indian National Congress (I) v. Institute of Social Welfare & Ors., AIR 2002 SC 2158). This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab & Anr., AIR 1963 SC 395 and Union of India v. H.C. Goel, AIR 1964 SC 364. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for t....
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.... the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed. 27. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983; Mohan Lal Tripathi v. District Magistrate, Rai Barelly & Ors., AIR 1993 SC 2042; and Ram Beti etc. etc. v. District Panchayat Rajadhikari & Ors., AIR 1998 SC 1222). 28. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, me....
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.... of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review." 32. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision. 33. In Krishna Swami v. Union of India & Ors., AIR 1993 SC 1407, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed: "Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthe....
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....ilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under S. 22 A of the Act. The exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a "finding". Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding". 36. The emphasis on recording reason is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indic....
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....for re-election or re-appointment as President or Vice-President as the case may be, during the remainder of the term of office of the Councillors: Provided that, no such President or Vice-President shall be removed from office, unless he has been given a reasonable opportunity to furnish an explanation. 55B.- Disqualification for continuing as Councillor or becoming Councillor on removal as President or Vice-President : Notwithstanding anything contained in Section 55A, if a Councillor or a person is found to be guilty of misconduct in the discharge of his official duties or being guilty of any disgraceful conduct while holding or while he was holding the office of the President or Vice-President, as the case may be, the State Government may,- (a) disqualify such Councillor to continue as a Councillor for the remainder of his term of office as a Councillor and also for being elected as a Councillor, till the period of six years has elapsed from the order of such disqualification; (b) Disqualify such person for being elected as a Councillor till the period of six years has elapsed from the order of such disqualification. 39. It is also pertinent to refer to the pr....
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....r the Officer designated, but he shall have no right to vote." 40. The instant case requires to be examined in the light of aforesaid settled legal propositions and the statutory provisions. 41. The case has initially originated because of the complaint filed by Shri Chintaman Raghunath Gharat, Ex-President and the then sitting Municipal Councillor, Uran Municipal Council (Respondent No.5) dated 3.5.2007 regarding the misconduct of the appellant. The preliminary inquiry was conducted through Collector, Raigad. The Collector, Raigad made an inquiry through Deputy Collector and submitted the inquiry report dated 25.8.2008 and as no action was taken by the Statutory Authority against the appellant, Shri Gharat filed a Writ Petition No. 2309 of 2008 before the High Court which was disposed of vide order dated 3.4.2008 directing the respondent no. 2 (Hon'ble Minister of State, Urban Development, the then Hon'ble Chief Minister) to take a decision on the application/complaint submitted by Shri Gharat within a period of 8 weeks. As the decision could not be taken within that stipulated time, Shri Gharat filed Contempt Petition No. 379 of 2008 which was disposed of by the High Court ....
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....lding the meeting and acceptance of tender by the council itself and not by the appellant, has not been considered at all. No reasoning has been given by the Statutory Authority for reaching the conclusions. We fail to understand as on what basis such a cryptic order imposing such a severe punishment can be sustained in the eyes of law. 43. The High Court has also erred in not dealing with any of the issues raised by the appellant while furnishing his explanation rather relied upon the findings recorded by the Hon'ble Minister. There is nothing in the judgment of the High Court wherein the grievance of the appellant has been considered or any reasoning has been given to uphold the findings recorded by the Statutory Authority imposing such a severe punishment. 44. Shri Chintaman Raghunath Gharat, Ex-President was the complainant, thus, at the most, he could lead the evidence as a witness. He could not claim the status of an adversial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only ch....
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....ng of the General Body of the House may be merely a technical misconduct committed inadvertently in ignorance of statutory requirements. It is nobody's case that the appellant had done it intentionally/purposely in order to avoid some unpleasant resolution/demand of the council. No finding of fact has been recorded either by the competent authority or by the High Court that some urgent/important work could not be carried out for want of General Body meeting of the council. Merely not to conduct oneself according to the procedure prescribed or omission to conduct a meeting without any corresponding loss to the corporate body, would not be an automatic misconduct by inference, unless some positive intentional misconduct is shown. It was an admitted fact that the meeting had not been called. However, in the absence of any imputation of motive, not calling the meeting by the appellant could not in itself, be enough to prove the charge. Section 81 of the Act 1965 requires that for the disposal of the general business, the President should call the meeting of the Council within a period of two months from the date on which the last preceding ordinary meeting was held. The statutory pr....
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....e counter affidavit filed by the State does not reveal anything in relation to the issues involved herein and it appears that the deponent/officer has merely completed the formalities without any purpose. 48. To conclude, we are of the considered opinion and that too after appreciation of the entire evidence on record that the first charge proved against the appellant for not calling the meeting of Council, did not warrant the order of removal and the explanation furnished by appellant could have been accepted. Other charges could not be proved against the appellant, in view of the fact, that the tenders at a higher rate were accepted by the Council itself and the appellant could not be held exclusively responsible for it. The Respondent no. 5, being a political rival, could not have been entertained as a party to the lis. The charge of not calling the meeting of the Council had been admitted by the appellant himself, thus, no further evidence was required, for the reason, that the admission is the best evidence. The competent authority could have considered his explanation alone and proceeded to take a final decision. So far as the other charges are concerned, as has been obser....