wp10091-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10091 OF 2009 Rajendra V. Konde .. Petitioner versus The Circle Officer, Panchayat Samiti & Ors .. Respondents Mr.Sandeep S. Salunkhe for the petitioner. Mr.S.N.Bhosle, A.G.P for respondent Nos.2 and 3. Ms.Ashvini Takalkar i/by Nitin P. Deshpande for respondent No.4. CORAM : S.C.DHARMADHIKARI, J. DATE : 4th July 2011. P.C.: 1] Rule. Respondents waives service. A short point is involved and, therefore, the petition is disposed of by consent at this stage itself. 2] This petition filed under Article 226 and 227 of the Constitution of India is directed against the order passed on wp10091-09.doc 2 22nd July 2009 by the Divisional Commissioner, Pune. 3] By the impugned order, the Divisional Commissioner holds that the petitioner is disqualified as a Member of Panchayat Samiti, Daund, Dist. Pune and the office of the Member is declared vacant. 4] Proceedings are under the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (for short ZP Act). The petitioner was served with a notice dated 26th February 2009 pointing out that as a Vice Chairman of the panchayat samiti, he was present on 5th July 2008 only but thereafter he has been absent for monthly meetings which are held in August, October, November, December 2008 and January 2009 on the dates mentioned therein. The notice refers to section 62 of ZP Act and alleges that the petitioner has remained absent for six months and that is how he stands disqualified. wp10091-09.doc 3 5] A copy of show cause notice is annexed to this petition at page 17 Annexure D. While it refers to section 62 it also makes a reference to section 74. The petitioner is stated to have remained absent for a continuous period of 30 days or more and that is why his office as Vice Chairman will also be declared as vacant. 6] On such a notice, the petitioner appears and showed cause. However, an order was passed in his absence on 9th March 2009 by the Divisional Commissioner. Therefore, the petition was filed in this Court being W.P.4900 of 2009. That petition was decided on 6th July 2009 directing Divisional Commissioner to hear the matter and pass orders afresh. 7] Accordingly, a fresh order has been passed. In the fresh order delivered on 22nd July 2009, the Divisional Commissioner has held that a perusal of the record would show that being a member who is absent from meetings, he is liable to be disqualified. In the present case, petitioner sought wp10091-09.doc 4 leave to remain absent on 29th September 2008, but his period of absence is reckoned from 30th September 2008. He was arrested on 23rd January 2009. However, his absence for the period prior to the date of arrest is more than three consecutive months and, therefore, is liable to be disqualified as a member of Panchayat Samiti under section 62 and even under section 74 of the Zilla Parishad Act because he was holding a post of Vice-chairman. Section 62 reads thus:- “62. Disqualification of member of Panchayat Samiti:-(1) If any member of a Panchayat Samiti during the term of his office- (a) becomes disqualified under section 58; or (b) is for a period of three consecutive months (excluding in the case of its Chairman and Deputy Chairman any period of leave duly sanctioned), without the permission of the Panchayat Samiti absent from meetings thereof [or is absent from such meetings for a period of six consecutive months.] the office of such member shall become vacant. [(3) If any question whether a vacancy has occurred in the office of member under this section is raised either by the Commissioner suo motu or on an application made to him by any person the Commissioner shall decide the question [as far as possible] within ninety days from the date of receipt of such application and his decision thereon shall be final. wp10091-09.doc 5 Until the Commissioner decides the question the member shall not be disabled from continuing to be a member of the Panchayat Samiti: Provided that no order shall be passed under this sub-section by the Commissioner against any member without giving him a reasonable opportunity of being heard.]” 8] A bare perusal of the same would indicate that if any member of Panchayat Samiti, during the term of his office becomes disqualified under section 58 or is absent for a period of three consecutive months, excluding the case of its Chairman and Vice-chairman, any period of leave duly sanctioned, without permission of Panchayat Samiti from meetings or is absent from meetings for a period of six consecutive months, the office of such a member shall become vacant. It deals with disqualification of member of Panchayat Samiti. Therefore, three consecutive months period absence from meeting without permission of the panchayat samiti or absence from meeting for a period of six consecutive months invites disqualification. Under section 74 the Chairman or Vice- wp10091-09.doc 6 Chairman, absenting themselves for a period of consecutive 30 days in a year without permission shall invite the consequences set out therein. 9] In the instant case, the report, a copy of which is at page 11, specifically states that the petitioner had remained absent from 30th September 2008 till 17th January 2009. Since, this period is more than three months he incurs disqualification. That is the report submitted by the SDO to the Collector. The notice is dated 26th February 2009, a copy of which is at page 17 and it alleges that the petitioner has remained absent from 5th July 2008 for six months and, therefore, incurs disqualification. A perusal of the report, copy of which is at page 11, based on which this notice is issued, indicates that the petitioner was absent on 2nd August, 2008, 30th August 2008 but on 29th September 2008 he had sought leave which was sanctioned by the Panchayat Samiti. Thereafter, the petitioner was absent from 30th September 2009 to 17th January 2009. A mere arithmetic calculation of this period would wp10091-09.doc 7 indicate that from 30th September 2009 to 17th January 2009 means absence only for the months of October, November, December and for a fortnight of January 2009. This does not make it six consecutive months as is stipulated in the notice which was issued to the petitioner. Therefore, if the petitioner was disqualified not for absence from meetings for a period of three consecutive months, then, he cannot be said to be disqualified in the light of the contents of notice itself. It is not the case of the authorities that the first part of section 62 (1)(b) is attracted in the instant case. That postulates absence for three consecutive months without permission of Panchayat Samiti. That is not the allegation but the ultimate order refers to both parts of sub-clause (b) and goes ahead to even conclude that the case is covered by section 74 of the ZP Act. It is not the case of Authorities that they have proceeded against the petitioner because of section 74 of the ZP Act. In the affidavit that has been filed, pursuant to the notice on this petition, by one Ijaz Ahmed, Block Development Officer, (Administration), office of Divisional Commissioner, Pune, it is wp10091-09.doc 8 indicated that the petitioner remained absent for all subsequent meetings which have been held after 30th September 2008. In these circumstances and when the affidavit clearly points out to section 62 of the Act itself, (see para 7 of the affidavit running page 24), then, the impugned order cannot be sustained. It is contrary to the statutory provision itself. The Commissioner was in clear error in ignoring the contents of the show cause notice and section 62 of the ZP Act. His order suffers from complete non application of mind to the material aspects of this case. He ought to be aware that the relevant statutory provision is second part of section 62(1) sub-clause (b). If that is how the allegations proceed, then, the case must be decided on the touch stone thereof. He cannot introduce any other aspect and matter particularly which are not germane and relevant to the controversy. He is trying to justify the conclusions by placing reliance on first part of section 62(1)(b) and at the same time section 74 itself. The allegation in the show cause notice do not point out that as a Vice Chairman, the petitioner had not attended his duties and absented himself wp10091-09.doc 9 for a period of consecutive 30 days in a year with leave being sanctioned. If that was the allegation in the show cause notice, then, the matter would have taken a different turn. However, in the light of the allegations in the show cause notice, the impugned order cannot be sustained. The same is, therefore, quashed and set aside. Rule is accordingly made absolute. No costs. (S.C.DHARMADHIKARI, J)