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SCA/1134/2010 8/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1134 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
GOPALBHAI
KHEMCHANDDAS PATEL
Versus
DISTRICT
DEVELOPMENT OFFICER AND OTHERS
=========================================
Appearance
:
MR SHAKEEL A QURESHI for
Petitioner.
MR HS MUNSHAW for Respondent No.1.
MS MOXA THAKKAR,
AGP for Respondent No.2.
MR PM THAKKAR, Senior Advocate for M/S
THAKKAR ASSOC. for Respondent
No.3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 19/03/2010
ORAL
JUDGMENT
1. Rule.
Learned counsel for the respondents waive service. The petition was
taken up for final hearing in view of the urgency and importance of
the issue involved and was heard in extenso. The petitioner
has invoked Articles 226 of the Constitution to challenge order dated
29.1.2010 of the Additional Development Commissioner, whereby
original order dated 22.6.2009 of the District Development Officer
was set aside, thereby setting at naught suspension of respondent
no.3 ordered in exercise of powers under Section 59 of the Gujarat
Panchayats Act, 1993 (for short the Act ). The petitioner is
the original complainant in the FIR registered as C.R.No.125/2009
dated 7.6.2009 and wherein respondent no.3, Sarpanch of
Village-Jagudan, is accused no.1. The complaint is for the offences
punishable under Sections 147, 148, 149, 337, 323 and 427 of the
Indian Penal Code. There is no dispute about the facts that
respondent no.3. was arrested and taken into custody on 8th
June 2009 and he remained under arrest till 10th July
2009. During that period show cause notice dated 16.6.2009 was
issued to respondent no.3 calling upon him to show cause why he
should not be suspended from the office of Sarpanch in accordance
with the provisions of Section 59 of the Act. After affording to
that respondent an opportunity of being heard, original order dated
22.6.2009 was made to temporarily suspend him on the basis that he
appeared to be involved in the offences involving moral turpitude in
respect of which penal proceedings were instituted. Obviously, that
order was made while the respondent was in judicial custody. The
District Development Officer considered the fact that petitioner
herein was alleged to have been called at the panchayat office and
beaten with logs and hockey and had fractures on his body. There was
no dispute about the fact that the respondent was in jail for nearly
35 days, and hence, could not discharge his duties as a Sarpanch.
2. Upon
that respondent filing an appeal, it was argued on his behalf that
DDO was required to apply his mind to the aspect of moral turpitude
involved in the alleged acts of the respondent. By acceding to that
argument, the additional Development Commissioner held in the
impugned order that the authority ought to have taken the facts and
circumstances of the case into consideration and closely examined
whether the element of moral turpitude was involved in the offences
alleged against respondent no.3. Only on the ground that the
original order did not take into consideration several judgments of
this Court, it was held that it was difficult to consider the
respondent’s offences to be in the category of offences involving
moral turpitude. Being aggrieved by such order, the petitioner is
before this Court with the contention that the impugned order in
appeal is obviously and obnoxiously perverse and illegal.
3. Arguing
for the respondent-Sarpanch, learned Senior Advocate, Mr.P.M.Thakkar
submitted that the appellate authority was right in insisting upon
proper application of mind by the DDO as far as the aspect of moral
turpitude in the alleged offences was concerned. He further
submitted that this Court need not substitute its own judgment and
reasoning for the original order insofar as it was the appropriate
authority which has to properly apply its mind and such application
of mind to the most important aspect must be explicit in the order
itself. Learned counsel relied upon judgment of this Court in
Thakorbhai Bhagabhai v. D.D.O., Surat and Another
[1980 (1) GLR 966],
to submit that criminal proceedings must have been initiated against
the concerned office bearer of the Panchayat for the offences
involving moral turpitude and before such an office bearer can be
removed, he must be charged with the offences arising out of an act
which is dishonest, immoral or unethical. It is further observed in
the judgment that the words involving moral turpitude should
not be given restrictive meaning, nonetheless, the officer concerned
must be imputed with the act constituting offence which is dishonest
or immoral or with conduct which is unethical as to render him unfit
to hold the office. This Court therein quoted a paragraph from the
judgment of the Supreme Court in the
matter of Mr. P , an advocate [AIR
1963 SC 1313],
wherein Gajendragadkar J., inter
alia,
observed in the context of a case against an advocate that any
conduct which makes a person unworthy to belong to the noble
fraternity of lawyers or makes an advocate unfit to be entrusted with
the responsible task of looking after the interests of the litigant,
must be regarded as conduct involving moral turpitude. Thus, instead
of prescribing a straight-jacket formula for examining the element of
moral turpitude, the Supreme Court appears to have given wider
meaning to the phrase involving moral turpitude . On the
factual side, it was also submitted by learned Senior Advocate that
the respondent Sarpanch had also filed his complaint against the
original complainant, the petitioner herein, and a charge sheet was
also filed against original complainant in relation to the same
incident. Be that as it may, the fact remains that the respondent
Sarpanch was in jail at the relevant time and not only the offences
involving moral turpitude were alleged against him in the FIR,
subsequently even a charge sheet for the same offences is already
filed in the criminal Court against him.
4. In
examining merits of original order dated 22.6.2009, the authority was
required to examine the facts obtaining at that time and the most
relevant factors were that respondent no.3 was charged for the
offences involving moral turpitude and he was in jail, which made
him incapable of discharging his duties as a Sarpanch. On the
ethical aspect of the matter, it would be very hard to even contend
that offences of rioting in company of an unlawful assembly,
voluntarily causing grievous hurt and causing such hurt by acts
endangering life or personal safety of others would not involve
moral turpitude and a person charged with such offences can be
entrusted the duties and powers of the head of a Gram Panchayat. The
view taken by this Court (Coram:N.N.Mathur, J.) in Naranbhai
Veljibhai Chaudhary v. (Shri) R.S.Vaghela & Others
[1996
(2) GLH 251]
was followed in Bhikhumiya
Sarfumiya Malek v. D.D.O., Mehsana and Another
[1999 (2) GLH 963]
with the discussion as under:
8. Besides
this, in the facts and circumstances of this
case, I find that in the case of N.V. Chaudhary v. R.S. Vaghela
(Supra) it was considered as to what will constitute the offence
involving moral turpitude. No rule of 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. In a given case, even
an offence under S.302, may not be an offence involving moral
turpitude. For example a son witnesses that his mother or sister or
wife is being molested or raped and he is not able to control
himself and kills the culprit, it will not at all be a case
of offence involving moral turpitude. In N.V.Chaudhary v.
R.S.Vaghela (Supra) it has been considered and held as under:-
“Thus, a Sarpanch cannot be suspended just on institution of Criminal Case. Whether the act constitute an offence of moral turpitude, there cannot be a strait-jacket formula. It depends on various factors including the manner and circumstances in which the offence alleged to have been committed. The rule of suspension of a person holding public office is based on a public policy to maintain purity in public life. A person facing charge of offence of moral turpitude should be barred from holding public office. However this power in current aggressive competitive politics must be exercised with great circumspection. While criminalisation in public life is not unknown, the false implication has also become hazards of public life. This has put more pressure on the Judiciary to scrutinise such cases with more care and caution. It is true that it will not be for the Court to enter into the merits of the case, but still it is desirable to undertake brief scrutiny of the facts to rule out any chance of false implication.”
5. Recently,
this Court (Coram:Akil Kureshi, J.) in Somabhai
Bhagwanbhai Gohil v. State of Gujarat and Others
[2006 (1) GLH 167]
commented on the aspect of moral turpitude and noted that the
authorities
had mechanically come to the conclusion that the petitioner was
involved in offences involving moral turpitude. Mere involvement in
offences punishable under Sections 323, 324, 504 and 506 of Indian
Penal Code ipso
facto
would not constitute offence involving moral turpitude. Without
there being anything additional in the complaint, per
se
such offence cannot be categorized as one involving moral turpitude.
In the facts of that case, the allegation against the petitioner was
of having entered into some fight with other villagers without any
element of unethical behaviour or dishonest or immoral acts. The
Court came to the conclusion that the charges, even if proved, would
not amount to conduct which can be described as inherently base, vile
or depraved.
6. On
the other hand, judgment of this Court (Coram:R.K.Abichandani, J.) in
Jorabhai
Hirabhai Rabari v. District Development Officer, Mehsana District and
Another
[1995 (2) GLH 698]
observed as under:
4.
…………. Therefore, it would be a duty of a Sarpanch to
safeguard the welfare of the village. The offences of attempted
murder, rioting, causing injuries with sharp edged instrument if
committed by Sarpanch who is the Chief Executive of the village
panchayat would shock the general conscience of the society and
render him unfit to become Sarpanch. The question whether an offence
involves moral turpitude or not cannot always be judged in isolation
and merely with reference to the ingredients of an offence. The
person who commits the offence, the person against whom it is
committed, the manner and the circumstances in which it is alleged to
have been committed and the values of the society are some of the
important factors which are required to be kept in mind before
concluding whether the offence alleged to have been committed by the
person involves moral turpitude. An offence of simple injury under
Section 323 IPC on the face of it may not involve moral turpitude but
it might assume a different colour when for instance it is committed
against one’s own teacher or parent which might shock the conscience
of the right thinking persons. Therefore, the observations which have
been made by the Hon’ble Mr. Justice B.K.Mehta in Thakorbhai
Bhagabhai (supra) to the effect that it cannot be said that the
alleged offences under Sections 323, 324, 149, 147 of IPC and 135 of
the Bombay Police Act were offences involving moral turpitude in the
sense that the alleged acts can be said to be a conduct which is
contrary to honesty, good morals or unethical since at the most it
was on incident of some scuffle between the petitioner and other
persons alleged to be involved in the incident, are to be read in
context of the facts of that case and did not lay down a
strait-jacket formulae that irrespective of the manner in which these
offences are committed or against whom they are committed and the
circumstances under which they are committed, i.e. even without
reference to the facts of the case they should be treated as offences
not involving moral turpitude. ………………………… The
truth of the allegations is not required to be gone into in a
proceeding under Section 59(1) and the only question which is
required to be decided by the authority under that provision is
whether a criminal proceeding is instituted against the Sarpanch in
respect of offences involving moral turpitude. It is not necessary
that the offence should have been committed in connection with the
duties of a Sarpanch. It can be any offence involving moral turpitude
which would make him unfit to continue in the office of Sarpanch and
the suspension would be justified………….
7. The
above discussion would clearly show that the acts involving moral
turpitude have to be examined in the context of the facts and
circumstances of each case but the consideration certainly has
morality or lack of it as the central point of reference. As
discussed herein above, and without going into the truth of the
allegations, the case against the respondent was that of calling a
person to the office at night and beating him to the extent of
causing fractures. Even his application for regular bail was
rejected by learned Additional Sessions Judge on 12.6.2009, and
therefore, it could not be disputed that respondent no.3 was in jail
at the relevant time when the original order dated 22.6.2009 was
made.
8. According
to the plain reading of the provisions of Section 59, it is not only
in case of institution of criminal proceeding in respect of an
offence involving moral turpitude that the Sarpanch or Upsarpanch of
a village Panchayat could be suspended, but there are three other
contingencies, in which the power can be or must be exercised to
suspend such office bearer. Those other contingencies include the
contingency of the office bearer being detained in prison during
trial for ANY offence, the contingency of such office-bearer
undergoing sentence of imprisonment or being detained under any law
relating to preventive detention. Therefore, at the time the first
order dated 22.6.2009 was made, the DDO was perfectly justified and
within legal limit of his powers in ordering suspension of respondent
no.3. He could have completely ignored the aspect of the respondent
being involved in an offence involving or not involving moral
turpitude and the exercise of power would have been justified only on
the ground of the respondent having been detained in prison at the
relevant time. It would be a travesty of the ideals of Local Self
Government if a person can head the Village Panchayat in his capacity
as a Sarpanch while he remains in jail in connection with the
offences registered against him. In such circumstances, it would be
imperative for the authorities to exercise the powers conferred upon
them under Section 59 of the Act.
9. Reading
the impugned order of the appellate authority in the above context,
it is found and held to be completely perverse and oblivious of the
express provisions of Section 59 of the Act. It is indeed
unfortunate that higher officer of the rank of Additional Development
Commissioner should exercise his appellate powers to rescind an order
made in due exercise of the powers conferred upon the District
Development Officer, particularly, in the facts and circumstances of
the present case. Therefore, the impugned order is not only required
to be set aside but it has to be deprecated in no uncertain terms.
10. The
last argument of learned Senior Advocate, Mr.Thakkar based on the
original show cause notice dated 16.6.2009 and the contention that
DDO was indeed required to apply his mind to the aspect of moral
turpitude in view of the judgment of this Court cited before him,
particularly when the show cause notice mentioned that the offences
alleged against the respondent were involving moral turpitude, has to
be dealt with in the broad framework of the scheme and provisions of
the Act. Section 55 of the Act vests the executive powers of the
village Panchayant in the Sarpanch and makes him directly responsible
for due fulfillment of the duties imposed upon the panchayat by or
under the Act. The provisions of Section 57 render the Sarpanch
liable to be removed for misconduct in the discharge of his duties or
disgraceful conduct or abuse of power or persistent default in
performing his duties or becoming incapable of performing his duties.
An express provision is made in Section 57 to provide for notice,
opportunity of hearing and enquiry to give to the proceedings some
trappings of an adjudication. And the provisions of Section 59
provide for suspension of Sarpanch or Upa-Sarpanch in the
circumstances mentioned earlier. Section 59 expressly confers
discretionary powers upon the District Development Officer to suspend
Sarpanch or Upa-Sarpanch, predicated upon fulfillment of certain
conditions and does not provide for an opportunity of being heard or
even issuance of a show Cause Notice. If, even then, the DDO has
sought to observe the principles of natural justice, the suspended
Sarpanch cannot be allowed to bank upon some defect or omission in
the Show Cause Notice, if he were otherwise liable to be suspended.
In view of the conscious exclusion of any adjudication preceding the
suspension, and in view of the urgent and summary nature of requisite
verification about fulfillment of conditions precedent to exercise of
power, the order of suspension under Section 59 of the Act cannot be
assailed on the grounds of violation of principles of natural
justice. The impugned order of the appellate authority has
completely overlooked this legal aspect of the matter. This is not
to say that the appellate authority could not have considered the
plea about the offences in question having involved or not involved
moral turpitude or about any other legal defect in the order of
suspension. It must, however, always be remembered that Panchayati
Raj institutions are accorded a place of pride in our Constitution as
units of local-self-government and the fundamental duties of every
citizen, including competent and appellate authorities, include
following the noble ideals which inspired the freedom struggle and
abjuring violence. Moral turpitude involved in an act of violence
ought to be examined keeping in view not only the Constitutional
ideals but fundamental duties of a citizen and the standard has to be
higher and not lower for people in public life.
11. In
the facts and for the reasons discussed hereinabove, the petition is
allowed and impugned order dated 29.1.2010 of the Additional
Development Commissioner is set aside. Rule is made absolute with no
order as to costs.
12. Upon
this order being dictated in the open Court, request was made by
learned Senior Advocate, Mr.Thakkar that operation and effect of this
order may be stayed for four weeks. There being no justification for
granting such request, it is rejected.
(D.H.Waghela,
J.)
*malek
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