1999 Supreme(Guj) 357

Gujarat High Court
Judgename :M.R.CALLA
BIKHUMIYA SARFUMIYA MALEK - Appellant
Versus
DISTRICT DEVELOPMENT OFFICER,mehsana - Respondent
S.C.A. 6307 of 1998
Decided On : 07/26/1999

Headnote:Constitution of India, 1950 — Arts. 226 & 227 — Order of Additional Development Commissioner dated 24.7.1998 passed after reopening the matter on direction of Court and against confirming order of removal of petitioner from office of Sarpanch for the offence of moral turpitude under Sec. 59(1) of Gujarat Panchayat Act (As Act hereafter) — Propriety of the impugned order — Order alleged to have been passed under Sec. 59(1) of the Act which is concerned with suspension of Sarpanch & Up-sarpanch — So far as question of removal is concerned their is provision under Sec. 57 of the Act — Considering the provision has wrongly been mentioned — Court looked in the merit of the case & found that Additional Development Commissioner without addressing itself to the grounds which are germane to the passing of the orders of removal passed the order averting to the fact that petitioner was involved in an offence involving moral turpitude — It appears, the authority has not cared to go through the order passed by this Court on 23.6.1998, directing the authority to reopen & reconsider the matter & decide — All criminal cases are not the cases involving moral turpitude — Same has to be decided in the back drop of circumstances & facts of each case — In the present merely challen has been presented against the petitioner — Even the charge has not been framed — At this stage it is very difficult to decide whether petitioner was involved in an offence of moral turpitude — The rule of suspension & removal of Sarpanch holding public office is based on a public policy to maintain purity in public life — He can not be suspended or removed just on institution of criminal case — As a result order of Additional Commissioner Development dated 24.7.1998 read with the order dated 12.1.1998 passed by District Development Officer against the petitioner are hereby quashed & set aside.

       Even if it is taken that the said Section has been wrongly mentioned and the provision, under which the order is required to be passed for the purpose of removal, is Sec. 57, it is clear that scope of the two Sections for the purpose of removal and suspension are entirely different. For the purpose of removal, the presence of guilty or misconduct in the discharge of duties or of any disgraceful conduct or abuse of powers of making persistent default in the performance of duties and functions or that the Sarpanch has become incapable of performing his duties and functions under the Act are the necessary pre-conditions. So far as pendency of any criminal case is concerned for suspension, that is provided in Sec. 59 and that too when criminal proceedings in respect of offence involving moral turpitude are instituted. It appears that the impugned order, even for the second time, has been passed by the concerned authority without addressing itself to the grounds, which are germane to the passing of the orders of removal, and the order proceeds on the basis that the petitioner was involved in an offence involving moral turpitude.

       It appears that the Addl. Development Commissioner has not even cared to go through the order passed by this Court on 23.6.1998 while deciding Special Civil Application No. 3967/98 and he has again confirmed the order passed by the District Development Officer, which has been passed under Sec. 59 removing the petitioner from the office of the Sarpanch whereas Sec. 59 deals with the case of suspension and the Addl. Development Commissioner has not discussed any of the ingredients of Sec. 57 while passing the impugned order dt. 24.7.1998. It appears that the author of the impugned order has not even considered that Sec. 57 deals with the cases of removal and Sec. 59 deals with the cases of suspension.

       [Para 7]

       Court finds that in the case of N.V. Chaudhary vs. R.S. Vaghela it was considered as to what will constitute the offence involving moral turpitude. No rule or universal application can be laid down that every criminal case will essentially be a case of an offence involving moral turpitude. It would depend upon the facts and circumstances of each and every case and the background in which the offence is committed.

       [Para 8]

       It is quite shocking that even such weighty observations made by this Court have been ignored by the Addl. Development Commissioner and he has still passed the order on the same reasoning without taking note of the order passed by this Court on 23.6.1998. Even otherwise in such matters, when the tenure of the elected office bearer is sought to be interfered with, the authority, who is charged under the Act to exercise the power, has to take care and scrutinise the allegation with great care and caution. In such cases, the parties may, in a given case, level allegations so as to involve the elected person in a criminal case with the allegations involving criminal liability and may go to the extent of levelling the allegations involving moral turpitude so as to settle their score and, therefore, such orders could not be passed in a casual manner, i.e., the manner in which the orders have been passed in the present case without making proper scrutiny either with regard to the facts or with regard to the relevant provisions of law.

       [Para 9]

       The orders of petitioners removal cannot be said to have been passed in conformity with the provisions of Sec. 57 of the Gujarat Panchayats Act and it is clear on the basis of the contents of the impugned order dt. 24.7.1998 and the earlier order, which had been passed on 12.1.1998, by the District Development Officer that both these orders have been passed without active application of mind and the authorities have not even addressed themselves to the relevant considerations under the relevant provisions of law and the said orders can not be sustained in the eye of law, more particularly when the Addl. Development Commissioner while passing the order dt. 24.7.1998, subsequent to this Courts order dt. 23.6.1998, has not shown due regard even for the orders passed by this Court. The order dated 24.7.1998 passed by the Addl. Development Commissioner read with the order dt. 12.1.998 passed by the District Development Officer against the present petitioner are hereby quashed and set aside.

       [Para 10]