1 W.P.No. 8246 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.8246 OF 2009 Govind s/o Eknath Shirole, Age : 46 years, Occu. Trade/Social Worker R/o Manbhuvan Line, Parole, Taluka Parola, District Jalgaon ..PETITIONER VERSUS 1. The State of Maharashtra, Through Urban Development Department, Mantralaya, Mumbai 400 032 2. Chandrakant Bhikanrao Patil, Age : 30 years, Occu. Municipal Councillor, R/o Hatti Galli, Parola, Taluka Parola, Dist. Jalgaon 3. Arun Ramdas Chaudhari, Age : 45 years, Occu. Municipal Councillor, R/o Azad Chowk, Parola, Taluka Parola, Dist. Jalgaon 4. Adhar Chinda Chaudhari, AGe : 45 years, Occu. Municipal Councillor, R/o Bagwan Galli, Parola, Taluka Parola, Dist. Jalgaon 5. Ravindra Bhagwan Chaudhari, Age : 42 years, Occu. Municipal Councillor, R/o Azad Chowk, Parola, Taluka Parola, Dist. Jalgaon 2 W.P.No. 8246 of 2009 6. Jitendra Anandrao Pawar, Age : 43 years, Occu. Municipal Councillor, R/o Rane Laxmibai Nagar, Parola, Taluka Parola, Dist. Jalgaon 7. Sau. Mansi Mangesh Tambe, Age : 30 years, Occu. Municipal Councillor, R/o Tambe Wada, Parola, Taluka Parola, Dist. Jalgaon 8. The Municipal Council, Parola, Taluka Parola, District Jalgaon (Notice to be served on Chief Officer, Municipal Council, Parola, District Jalgaon) ..RESPONDENTS Mr V.D. Sapkal, Advocate holding for Mr A.M. Gholap for the petitioner; Mr S.N. Kendre, Asstt. Govt. Pleader for respondent no.1; Mr R.L. Kute, Advocate for respondent no.2; Mr G.C. Navandar, Advocate for respondents no.3 to 6; Mr P.R. Patil, Advocate for respondent no.8 CORAM : MRS MRIDULA BHATKAR, J. DATE : 27th September, 2011 ORAL JUDGMENT : By this writ petition the petitioner wants this Court to invoke the powers under Article 227 of the Constitution of India and seeks that the order passed by the State i.e. respondent no.1, dated 29th August, 2009 be quashed and set aside. The Honourable Supreme Court has requested this Court to expedite the matter, so heard finally. 3 W.P.No. 8246 of 2009 2. The petitioner is elected Municipal Councillor of Parola Municipal Council, Parola. He was holding a post of President from 19th December, 2006 to 26th June, 2009. Respondent no.1 - State served notice dated 22nd August, 2008 on the petitioner, exercising its powers under section 55-A and 55-B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Under the said notice respondent no.1 framed two charges and the petitioner was asked to reply the said notice within thirty days from the date of its receipt. The petitioner did not reply within stipulated time, but filed his reply after 11 months i.e. on 15th July, 2009. Pursuant to the said notice inquiry was conducted. The petitioner was given an opportunity to give explanation and to defend himself. The proceedings concluded in holding the petitioner guilty for misconduct, therefore, disqualified to continue as a Councillor for his remaining term and also for being elected as a Councillor till the period of six years is elapsed from the date of the order of the disqualification. The said order is under challenge in the present writ petition. 3. For the quick grasp of the matter, the charges mentioned in the notice dated 22nd August, 2008, are briefly stated herein :- (i) Parola Municipal Council wanted to construct public latrines under the pay and use scheme in Julumpura area of Parola town. The tender for construction of public latrines was allotted to one 4 W.P.No. 8246 of 2009 Jankalyan Foundation, Bangalore. The said firm could not complete the work and, therefore, without cancelling the tender allotted to Jankalyan Foundation, Bangalore, a contract was given to one Dnyaneshwar Dagadu Bari. A cheque for amount of Rs. 1,30,000/- was issued in the name of Jankalyan Foundation. However, the petitioner on the back side of the cheque endorsed that the amount of the said cheque is to be given to one Purushottam Ramdas Wani. Petitioner while taking the said amount has fabricated the documents. Thus, amount of Rs. 1,30,000/- was misappropriated by the petitioner illegally, which is a disgraceful act and amounts to misconduct. (ii) The petitioner deliberated to get the resolution passed on 26th February, 2007 in his favour by which the powers to issue public notice for tenders and to accept the tender were given to the petitioner. Thereafter the petitioner purchased the electrical material and instruments for the Municipal Council at higher rate, which caused financial loss to the Council, which lead to cheating and misappropriation of the money. 4. Learned Counsel for the petitioner argued that the order passed by the Honourable Chief Minister is illegal. The findings recorded by the authority are not consistent with the charges levelled against the petitioner. He submitted that the petitioner is an elected representative 5 W.P.No. 8246 of 2009 of people and the powers under section 55-A and 55-B of the said Act are required to be used very cautiously and carefully, which leads to serious consequences. He submitted that in a democratic set up once the candidate is elected in a democratic institution, then he is entitled to hold the office for the entire tenure to complete his term, unless election is set aside by following prescribed procedure known to the law. He argued that in the present case the petitioner is charged for misappropriation of money. However, in the order passed by the Honourable Chief Minister he has not given any finding about such misappropriation. The finding given in the said order is general and the authority has not stated anywhere specifically about holding the petitioner guilty for misappropriation of the funds. Learned Counsel submitted that the charge under section 55-A and 55-B of the said Act is not proved and, therefore, action under section 55-B of the Act was unwarranted. In support of his submissions, he relied on the judgment of this Court in Dattatraya s/o Adinath Bandgar vs. State of Maharashtra & ors., reported in 2009 (3) ALL MR 635, particularly on observations at para 11, which read thus :- "It is true that provisions of sections 55-A and 55-B of the Act are not controlled by sections 16 and 44 of the Act. If it can be demonstrated that requirements of section 55-A are satisfied, order in respect of disqualification of the office bearer can be issued. It has to be examined whether the allegations raised against the 6 W.P.No. 8246 of 2009 petitioner would amount to misconduct in discharge of his duties or amounts to neglect of or an act which amounts of disgraceful conduct." It was further argued that findings recorded by the authority should be very much confined to the charges in the show cause notice. If the findings is given by the authority beyond the scope of the charges, then it is a violation of the principles of natural justice. Considering the penal action under section 55-B of the Act, the charges are to be strictly proved. The order passed by respondent no.1 is illegal and required to be quashed and set aside. 5. Per contra, learned Counsel for respondent no.1 submits that the petitioner has filed this petition against eight respondents. Out of them, respondents no.3 to 7 are the Councillors of Municipal Council, Parola and are the original complainants. On the basis of their complaint the show cause notice was issued by the Government. However, learned Counsel for respondents no.3 to 6 submitted that these respondents have no grievance and they do not want to pursue their complaint and on the contrary they are supporting the petitioner. Respondent no.7 though served did not file any appearance. 6. Learned Counsel for respondent no.1, in reply argued that the order passed by the Chief Minister is legal and need not be set aside. 7 W.P.No. 8246 of 2009 Learned Counsel submitted that the scope of the writ petition filed under Article 227 of the Constitution is limited. While invoking powers under Article 227 of the Constitution of India High Court is not expected to act as a Court of Appeal and unless the order is found to be perverse and against the principles of natural justice, order passed by the executive not to be disturbed. Reliance is placed on Celina Coelho Pereira (Ms) & ors. vs. Ulhas Mahabaleshwar Kholkar, reported in (2020) 1 SCC 217. In this ruling, in paragraph 30, a paragraph from the case of Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, reported in (1975) 1 SCC 858 is reproduced, which reads thus :- "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 7. Learned Counsel for the respondents pointed out the relevant documents which are produced in the writ petition. i) A letter by Jankalyan Foundation of giving authority letter dated 24.10.2007, that the payment for construction of the latrines is to be made to the person who has completed the construction and the said payment be made in the name of Jankalyan Foundation. It was denied that any such authority letter was given to Mr Dnyaneshwar Dagadu Bari to receive the amount on behalf of Jankalyan Foundation, Bangalore. 8 W.P.No. 8246 of 2009 ii) A receipt dated 1.8.2007, where the name of a person who has received the money is shown as Jankalyan Foundation, Bangalore. iii) An account payee cheque was issued by the Chief Officer of Parola Municipal Council to Jankalyan Foundation. Photostat copy of cheque discloses that endorsement of a/c payee was cancelled and was made bearer. The endorsement made on the reverse side of the cheque that "there is no objection to make payment to Purushottam Ramdas Wani", where the signature and the stamp of the petitioner and Chief Officer are shown. iv) Registration certificate of Ruchi Suppliers showing the name of the owner as Purushottam Ramdas Wani is produced. 8. Learned Counsel for the respondents, on the basis of these documents, submitted that these documents along with other relevant documents were produced before the Chief Minister and after going through the same, the authority came to the conclusion that the petitioner has committed misconduct and has committed misappropriation of the amount as also fabricated the documents and hence he is guilty of misconduct and disgraceful behaviour. Learned Counsel further submitted that to prove the charges mentioned in the show cause notice, the yardstick of the criminal law is not to be applied. The proceedings 9 W.P.No. 8246 of 2009 under section 55-A of the Act are similar to the Departmental Enquiry and, therefore, Departmental Enquiry and criminal proceedings stand on different footings. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer and it does not require a strict standard of proof as required under the criminal law. Learned Counsel submitted that the order passed by the Chief Minister is reasonable and hence the same is to be maintained. 9. In support of their submissions, learned Counsel relied on the judgment of Supreme Court in Noida Enterpreneurs Association vs. Noida & ors., reported in (2007) 10 SCC 385. Learned Counsel for respondents argued that the acts of the petitioner of not calling the tenders for completion of the work of the public latrines and allowing Mr Purushottam Wani to accept the payment, though it was in the name of Janakalyan Foundation and allotting the tender to Ruchi Suppliers for supply of electrical equipments/material do prove the charges in the show cause notice and he has been rightly penalised under section 55-B of the Act. The Counsel relied on the judgment of the Division Bench of this Court in Ramesh Gangadhar Korde vs. State of Maharashtra & ors., reported in 2006 (2) Bom.C.R. 157. 10. This Court is exercising writ jurisdiction under Article 227 of the Constitution of India. It is necessary for the petitioner to show that the order passed by the authority is illegal, perverse or is violative of the 10 W.P.No. 8246 of 2009 principles of natural justice. This Court is not a court of facts. It is necessary to see whether sufficient documents or the material was placed or not before the authority which passed the order and whether the authority has considered the defence of the delinquent officer to arrive at the conclusion or not. 11. In the present case, the charge is framed against the petitioner of preparing fabricated and false documents, misappropriation of the amount, i.e. withdrawing the money on the basis of false documents. The other charge was allotting tender to unregistered firm i.e. Ruchi Suppliers, at higher rate, without verifying the market rates at the time of accepting the tender. In paragraph 5 of the impugned order the authority has mentioned all these facts and has also considered the documents and circumstances. The argument advanced on behalf of the petitioner, that the authority has given the findings only in last 2 to 3 paragraphs (appearing on page 33 of the paper-book) of the impugned order, is not convincing. In paragraphs 1 to 4 of the impugned order the background of initiation of proceedings, the charges mentioned in the notice and the explanation submitted by the petitioner is mentioned in detail. Paragraph 5 is the only paragraph in which the findings and the conclusions are given. These findings are not summed up in the last two or three paragraph but the findings are covered in throughout paragraph 5. There is no specific proforma prescribed under section 55-A of the Act as to how the authorities should write the order. The authority before 11 W.P.No. 8246 of 2009 whom the delinquent Councillor is tried is not a Court but it is an executive body and, therefore, it is not expected that the order is to be passed in a very compact and in a prescribed format. The order should disclose that the defence of the delinquent officer and the documents and evidence produced before the authority is considered and finding with reasons is given. Thus, in this context, I place reliance on the observations of the Supreme Court at para 11 of the judgment in Noida Enterpreneurs Association (supra), which read thus :- " The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. " Thus, the order passed by the authority should be reasonable. Under section 55-A of the Act, it is to be noted that the charges made in the show cause notice under two heads reveal number of different illegal acts of fabrication or making false documents including cheque, siphoning of the funds which amounts to misappropriation, and the authority applied it's mind and has considered all these charges. It is to be noted that it is a settled principle of criminal law that an error in the charge does not always cause to the accused. In enquiry proceedings the strict proof of the guilt or the facts like criminal trial not expected. The doctrine of reasonableness is applied to examine whether the 12 W.P.No. 8246 of 2009 charges mentioned in the show cause notice were sufficient to give the idea of the charge or the illegal acts committed by the delinquent or not. I am of the opinion that no prejudice is caused to the petitioner in the present case though the authority has gone beyond the charges while mentioning the other incidents which had taken place after the issuance of the show cause notice. The reasoning and finding of the guilt is based on the charges only. Thus, I hold that the petition is without merit and is dismissed. Rule stands discharged with no orders as to costs. ( MRS MRIDULA BHATKAR, J.) amj/wp8246.09