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2011 (2) GCD 1337 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Raysangbhai Ranchhodbhai Thakor
Versus
State of Gujarat Through Secretary & Others
Letters Patent Appeal No. 2576 of 20101—Decided on 31/03/2011
Letters Patent Appeal — Clause No. 15 — Gujarat Panchayat Act, 1993 — Sections 57, 57(1) and (3) — Removal from the office of Sarpanch — Misconduct and abuse of power in discharge of duties — Order of competent authority and confirmed by Single Judge — Finding of — Held, not sustainable charges as levelled against appellant and proved are not of such a nature which can be termed as misconduct in the discharge of duties as Sarpanch — It is not a case of persistent default on the part of appellant and his case does not fall within the ambit of Section 57 of the Act — Court, therefore, set aside impugned orders of competent authority and Single Judge.
Held :
On close reading of the provisions of Section 57, it appears that a mere irregularity or even an illegality in the discharge of duties or causing loss to the Gram Panchayat does not by itself empower the State Government or its delegate to remove a Sarpanch from the elected office. There must be a finding supported by evidence to show that the concerned Sarpanch has been guilty of misconduct in discharge of his duties or of his disgraceful conduct or is incapable of performing his duties under the Act persistently. Court take notice of the fact, more particularly considering the nature of the charges levelled against the appellant that the authorities are equating misconduct or disgraceful conduct or persistent defaults to that with dereliction of duty. There is a vast difference between misconduct in the discharge of duties and dereliction of duty. Again, at the cost of repetition, Court say that the charges as levelled against the appellant and said to have been proved are not of such a nature which can be termed as misconduct in the discharge of duties or disgraceful conduct. Apparently, it is not a case of persistent default in the performance of duties.
[Para 11]
Section 57 does not speak about dereliction of duty. Misconduct is a violation of definite law. Dereliction of duty or carelessness is an abuse of discretion under a definite law. Misconduct is a forbidden act whereas dereliction of duty is forbidden quality of an act and is necessarily indefinite. However, lack of efficiency, failure to attain the highest standard of administrative ability while holding a public post or office like Sarpanch would not by themselves constitute misconduct. Person may be negligent in performance of duty and a lapse in performance of duty or error of judgment in evaluating a developing situation, may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to the negligence would be such as to the repairable or so heavy that the degree of culpability would be very high. [Para 12]
Law Laid Down :
Mere irregularity or even an illegality in discharge of duties or causing loss to Gram Panchayat does not by itself empower the State Government or it’s delegate to remove a Sarpanch from elected office under the provisions of the Act.
J.B. Pardiwala, J.—The appellant original petitioner by way of this appeal under Clause 15 of the Letters Patent calls in question the legality, validity and propriety of the order passed by the learned Single Judge dated 20th October 2010 in Special Civil Application No. 4778 of 2010 wherein the learned Single Judge has dismissed the petition confirming the order passed by the competent authority removing the petitioner from the office of Sarpanch.
2. The brief facts relevant for the purpose of deciding this appeal can be summarised as under:—
3. The appellant – original petitioner was elected as Sarpanch of Vatadra Gram Panchayat. While holding the office of Sarpanch, he came to be served with a show-cause notice issued by the District Development Officer, Anand under Section 57(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as ‘the Act’) calling upon the appellant to explain few charges of misconduct in discharge of his duties as a Sarpanch. It appears that detailed explanation at the end of the appellant – original petitioner was not found satisfactory and the District Development Officer, Anand vide his order dated 23rd July 2009, in exercise of his powers under Section 57(1) of the Act passed order of removal of the appellant from the office of Sarpanch, Vatadra Gram Panchayat. The appellant preferred an appeal to the State Government under the provisions of Section 57(3) of the Act. The appellate authority, namely, the Additional Development Commissioner, State of Gujarat vide order dated 9th March 2010 dismissed the appeal confirming the order of removal of the appellant from the post of Sarpanch passed by the District Development Officer, Anand.
4. The orders passed by the authorities under the Act were subject matter of challenge before the learned Single Judge in writ petition being Special Civil Application No. 4778 of 2010. The learned Single Jude came to the conclusion that as the both the authorities, namely, the District Development Officer, Anand and the appellant authority have concurrently held that the appellant is guilty of misconduct, no relief could be granted to the appellant-original petitioner and accordingly dismissed the petition. The order of the learned Single Judge is subject matter of the challenge in this present appeal.
5. We have heard learned advocate Mr Kaushal Pandya appearing for the appellant – petitioner, Mr H.S. Munsha, learned Counsel for Respondents Nos. 3 and 4 and Ms Manisha Shah, learned Assistant Government Pleader for Respondents Nos. 1 and 2 and perused the record.
6. The orders of removal under Section 57 of the Act came to be passed against the appellant on the grounds as indicated below:—
i. On 23rd October 2007 the Panchayat auctioned fruits which were reaped in gauchar land. In the auction proceedings one Mafatbhai Mangalbhai Thakor was the highest bidder. His bid for the entire lot of fruits was for the sum of Rs. 37,500/-. He deposited a sum of Rs. 22,000 on 23rd October 2007 with the Gram Panchayat. However, the balance amount of Rs. 15,500 is still to be recovered from said Mafatbhai Mangalbhai Thakor. It is alleged that said Mafatbhai Mangalbhai Thakor happens to be the relative of the present appellant and being a relative he could not have participated in the auction proceedings which were held by the Panchayat. Apart from this, the appellant, as a Sarpanch, has failed to take appropriate steps for the recovery of Rs. 15,000 balance amount and has thrown the entire burden on the shoulders of the Talati cum Mantri to recover the said amount and thereby has shirked himself from his responsibility. It is alleged that this amounts to abuse of power.
ii. On 18th January 2008 some bavad trees grown on the land of Vatadra Gram Panchayat were put to auction. Out of 235 trees, 110 trees were felled. It is alleged that appropriate amount equivalent to the value of 110 trees has not been deposited with the Gram Panchayat and in this manner the appellant has c
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