1994 Supreme(Guj) 21

Gujarat High Court
Judgename :J.N.Bhatt
ANISHBHAI ISHABHAI PATEL - Appellant
Versus
STATE - Respondent
S.C.A. 6590 of 1993
Decided On : 01/28/1994

Headnote:Constitution of India, 1950 - Art. 227 - Scope and extent of power under - Circumscribed and not that of court exercising appellate jurisdiction - Powers under are required to be exercised cautiously, sparingly and only in certain appropriate cases so as to keep subordinate courts, Tribunals & statutory authorities below within bounds of their authority - Court is not invested with powers to interfere in finding of facts unless order or decision is shown manifestly perverse, illegal or against provision of law actuated with ulterior & extraneous considerations. The scope and the extent of the powers of this court unlike Art. 227 is very much circumscribed. Again, this court is not sitting in an appeal against the verdict of the adjudicating statutory authority. The powers of this court under Art. 227 of the Constitution of India are required to be exercised cautiously as they are designed to be used sparingly and only in certain appropriate cases so as to keep the subordinate courts, tribunals and statutory authorities below within the bounds of their authority. In fact, they are also not intended to be used for correcting merely errors.[Para 4] When there are findings of facts, no interference is called for unless the impugned order or decision is shown to be mainfestly perverse, illegal or against the provision of law or if it is shown to be actuated with ulterior and extraneous considerations like mala fides. In short, the power of superintendence contemplated by the provision of Art. 227 has been limited in a narrow compass. Therefore, merits are required to be examined in this legal background.[Para 4]Gujarat Panchayat Act, 1961 - Secs. 49, 49(1) & 49(3) - Confirmation of order of removal by appellate authority in an appeal filed before State of Gujarat - Challenged on ground that order was actuated by malafide - Held, submission was unsustainable - Apart from the fact that no specific plea was ever raised before statutory authority it had no legal legs to stand - Nothing found on record to substantiate this plea - Rejected. It has been vehemently contended by learned counsel for the petitioner that the impugned order of removal against the petitioner is actuated by mala fides. This submission is unsustainable. Apart from the fact that no specific plea was ever raised before the statutory authority, it has no legal legs to stand in this petition. The learned counsel also has not been able to substantiate this contention from the record of the present case. Therefore, this submission is raised for being rejected straightaway.[Para 4]Gujarat Panchayat Act, 1961 - Sec. 49(1) - Expression Any disgraceful conduct - Meaning & scope of - Explained and also held that contention relating to disgraceful conduct should also be shown in discharge of ones duties is though subtle is not sound & sustainable. The axpression `misconduct and `disgraceful conduct are not statutorily defined in the Act. Therefore, they are required to be considered from the dictionary meaning. A person, knowing what he is doing, also being conversant with the consequences, if does something which is wrong, bad, illegal or causing loss or damages, his conduct obviously would tantamount to misconduct. Thus, misconduct must be misconduct in the discharge of the duties; whereas, `disgraceful conduct is prefixed by the expression `any and need not necessarily be in discharge of the duties. Though there is fine distinction but it is real, there being no statutory definitions, the expressions like `misconduct and `disgraceful conduct, import of such expressions will have to be examined from the context in which they are employed in sub- section (1) of section 49. Misconduct is such conduct as is in complete disregard of the duty and responsibility of a member or an office bearer of a panchayat under the Panchayat Act as such conduct would be wholly inconsistent or incompatible with the express or implied conditions of his office of such responsibility; whereas, `disgraceful conduct within the meaning of section 49(1) need not be circumscribed to something done in the course of ones duty as a member or office bearer. `Disgraceful conduct while reading in light of the provisions of section 49(1) would mean any allegation which, because it is done by an elected member or office bearer, is sufficiently reprehensible to be classified as disgraceful. Thus, misconduct is classified by the phrase `in the discharge of his duties; whereas, no such classification or fetter is available or seen for the expression `disgraceful conduct. On the contrary, it is prefixed by the expression `any. Therefore, the contention that disgraceful conduct should also be shown in discharge of ones duties is though subtle, is not sound and sustainable.[Para 7]Principles of Natural Justice - Violation of - Procedure for removal from office prescribed in Sec. 49 of the Gujarat Panchayat Act, 1961 is statutory, judicial & also there is appellate machinery provided for the purpose of correcting the error of competent authority - Respondents before passing impugned order strictly complied with the provision prescribed - Petition can not make grievance that principles of natural justice were not observed - No case made out to interfere in the impugned order under Art. 227 of Constitution. Doctrine of natural justice commands that there should be an opportunity of being heard. There are statutory provisions prescribed for holding inquiry and giving an opportunity of being heard to the guilty member or holder of office of panchayat before removal order is passed against him. The provisions of section 49 are strictly complied with by the respondents before passing the impugned order. Therefore, the petitioner has no case to make grievance that principles of natural justice are not observed, Again, this court is not sitting as appellate forum against the impugned decision but is examining its merits while exercising its extra-ordinary power of superintendence under Art. 227 and, therefore, it will not be permissible for this court to go into the factual merits of the impugned order. Both the statutory competent authorities, including the appellate one, have, after observing the due process of law and affording an opportunity of being heard to the petitioner, have reached consistently and concurrently a conclusion which otherwise cannot be interfered with by this court while hearing a petition under Art. 227 of the Constitution of India, except in the limited situation which is non-existent in the present case.[Para 9]