:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1215 OF 2008 Shri Suresh Kalu Gavali ...Petitioners Versus The State of Maharashtra and Ors. ....Respondents ====== Ms.Leena Patil i/by. M.S.Karnik Adv. for the petitioners. Mr.S.K.Chinchalikar, AGP for respondent nos.1 to 3. CORAM: S.C.DHARMADHIKARI, J. DATED: 26TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The Minister of Rural Development, Government of Maharashtra has confirmed the order of the Commissioner passed under Section 39(1) of the Bombay Village Panchayat Act, 1958. The aggrieved Sarpanch of Village-Surgana is before me in this Writ petition under Article 226 and 227 of the Constitution of India. 2. The Commissioner has a discretionary power under Section 39(1)(i) or (ii). These provision read thus :- :2: :2: :2: "39. (1) The Commissioner may,- (i) remove from officer any member or any Sarpanch or Upa-Sarpanch who has been [guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of] or incapacity to perform his duty or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the [Standing Committee] also be removed from the Panchayat : (ii) remove from office the member, Sarpanch or, as the case may be, Upa-Sarpanch, if not less than twenty per cent, of the total number of voters in the village who have paid all dues of the Panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the Panchayat on the development activities are not placed before the Gram Sabha; and the information thereof is not displayed on the notice board as required by sub-section (1) or (1-A) of Section 8 : Provided that, no such person shall be removed from office, unless, in case of Clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the Panchayat and the person concerned’ and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned, through the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month : Provided further that, the Commissioner shall, after giving the person concerned a reasonable :3: :3: :3: opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer within a period of one month from the date of receipt thereof.]..... 3. A bare perusal of these provisions would indicate that the Commissioner may remove from office any member or any Sarpanch or Upa-Sarpanch who has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or of neglect or incapacity to perform his duties or is persistently remiss in the discharge thereof. The Sarpanch is also liable to be removed, if not less then 20% of the total number of voters in the Village who fulfils the stipulation in Sub-Clause (ii) make a complaint that the Annual accounts are not placed before the Gram Sabha and the information thereof is not displayed on the Notice Board. 4. Provisos to this sub-section contemplate an inquiry after giving notice to the Panchayat and the person concerned, so also reasonable opportunity is to be afforded at both stages. The consequences of such removal are serious and that is why an Appeal is :4: :4: :4: provided against the order of the Commissioner. 5. From a reading of the order passed by the Commissioner, it is apparent to me that the Commissioner has proceeded on the Report of the Chief Executive officer (CEO), Zilla Parishad, Nashik. Thus, he had to be satisfied that a case is made out in terms of sub-section (one) above. There are various allegations and charges. With regard thereto, there is an explanation provided. However, the ultimate finding is that with regard to some of them, the petitioner has been found to be guilty of neglecting his duties, incapacity to perform his duties and has been guilty of misconduct in discharge of his duties. These provisions contemplate a satisfaction of the Commissioner with regard to the alleged incapacity, neglect or misconduct. It is contended that mere irregularities are not enough to draw such conclusions. The order of the Commissioner was challenged in Appeal and the Appellate order after setting out the charges and rival contentions, in para-7 draws a conclusion which is of three lines. The Minister holds that after having heard both sides and scrutinising the relevant :5: :5: :5: documents, he is satisfied that the action against the petitioner is proper. 6. Time and again, this court has emphasized that Appeals provided by such Statute and in such cases and contingencies should not be decided in a mechanical and causal manner. The appellate order must disclose application of mind to the charge and the explanation thereto. It must disclose that the rival contentions have been duly considered and thereafter a conclusion has been reached. A perusal of the impugned order leaves me in no manner of doubt that this basic requirement of disposal of Appeal has not been satisfied in the facts and circumstances of this case. The order under challenge dated 24.1.2008, therefore cannot be sustained. 7. However, the larger interest of justice would be subserved, if after setting aside this order the Appeal preferred by the petitioner is restored to the file of the State Government for being decided afresh on merits and in accordance with law, uninfluenced by the observations in the earlier order. The Appeal shall be :6: :6: :6: heard and disposed off by the Secretary, Department of Rural Development, Government of Maharashtra. All contentions, insofar as, merits of the matter are concerned are kept open. Needless to state, that during the pendency of the Appeal, no steps should be taken in furtherance of the order of the Commissioner dated 10.12.2007. Parties to appear before the Secretary of the concerned Department on 5.3.2008 at 11 a.m. and the Secretary to endeavour and dispose off the Appeal within a period of 4 weeks from the date of appearance. Petition allowed accordingly. No costs. ********