Sca1444/03 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1444 of 2003 For Approval and Signature: HON'BLE MR JUSTICE AKIL KURESHI =========================================================== 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 of any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================ VALLABHBHAI LAXMANBHAI ROY - Petitioner(s) Versus MONA KHANDHAR & 6 - Respondent(s) ============================================================ Appearance : MR BM MANGUKIYA for Petitioner MR HS MUNSHAW for Respondent No(s).: 1. RULE SERVED BY DS for Respondent No(s).: 2, 5 & 6. MR MR MENGDEY, AGP for Respondent No(s).: 3 & 4. ============================================================== CORAM :HON'BLE MR JUSTICE AKIL KURESHI Date : 23/06/2005 ORAL JUDGMENT In the present petition, the petitioner who was at the relevant time the President of Gariadhar Taluka Panchayat has challenged his removal from the said post Sca1444/03 2 by the order dated 19th August 2002 passed by the District Development Officer, respondent No.1 herein. 2.To appreciate the controversy involved and the submissions made by both the sides, it will be necessary to record in brief, a few facts leading to the present petition. 3.The petitioner, as noted above, was holding the position of President of Gariadhar Taluka Panchayat to which position he was elected in the year 2002. It is the case of the petitioner that he belongs to a political party which is in opposition in the State of Gujarat and the position enjoyed by the petitioner is, therefore, not liked by some of the members of the ruling party and have, therefore, all throughout his tenure, tried to create hindrance in the way of the petitioner and have tried to remove the petitioner from his position as President of Gariadhar Taluka Panchayat by fair means or foul. The petitioner has stated in the petition several factors to establish his theory of malafides on the part of some of the respondents and these aspects of the matter have been highlighted at considerable length by the learned advocate for the petitioner. I would be detailing these factors and dealing with the contentions thereon at a later stage in this order. Sca1444/03 3 4.So far as the present litigation is concerned, a show cause notice dated 15th June 2002 came to be issued against the petitioner by the District Development Officer, Bhavnagar, leveling several allegations against him which included those of financial irregularities and of procedural illegalities and irregularities committed by the petitioner. 4.1 Though there are several limbs of these allegations, primarily the allegations pertained to payment of amount of Rs.35,844/- by two separate vouchers bearing Nos.3059 and 3060 both dated 15.1.2002. As seen from the show cause notice, the case against the petitioner is that there was some old dilapidated godown situated in the compound of Gariadhar Taluka Panchayat Office. For dismantling and demolishing this godown, the aforesaid amount of Rs.35,844/- was shown as an expenditure towards labour and other charges. It is the case of the administration that the godowns in question were already demolished earlier between 3rd May 2000 and 31st May 2000 for which labour charges of Rs.11,508.10 was already paid. It is, therefore, the case against the petitioner that the payment made under vouchers Nos.3059 and 3060 was completely unauthorized and that no such work in fact was undertaken. To establish Sca1444/03 4 this prime charge, several further allegations were made against the petitioner in the said show cause notice which included allegations of irregularities in passing the bills and in making payments under the said vouchers. The fact, however, remains that the central controversy against the petitioner was that he was alleged to have authorised and permitted payment of Rs.35,844/- under voucher Nos.3059 and 3060 for demolition work which was never undertaken. 4.2 The petitioner denied these charges by his representation made in July 2002. Not satisfied with the explanation of the petitioner, an inquiry was conducted against him to inquire into the said charges and eventually, the District Development Officer, respondent No.1 herein, by her impugned order dated 19.8.2002 was pleased to hold that the charges against the petitioner are proved and eventually passed the order of removing the petitioner from his post of President of Gariadhar Taluka Panchayat in exercise of powers under section 7(1) of the Gujarat Panchayats Act, 1993. She also provided that the petitioner will be disqualified to continue as a member for a period of five years from the date of implementation of the said order. The petitioner preferred appeal against Sca1444/03 5 the said order dated 19th August, 2002 to the Development Commissioner. The Development Commissioner, however, by his order dated 4th February 2003 was pleased to reject the appeal of the petitioner. The order passed by the District Development Officer on 19.8.2002 was thus confirmed. The petitioner has, therefore, filed the present petition challenging his removal on several grounds. 5.Learned advocate for the petitioner sought to assail the order passed by the District Development Officer as upheld by the Development Commissioner on following grounds:- (a) It was urged by learned advocate Shri Mungukiya that the order of removal passed by the District Development Officer on 19.8.2002 suffers from violation of principles of natural justice. It is his case that important material documents which have been relied on by the District Development Officer were not supplied to the petitioner. He, therefore, contended that collecting the material behind the back of the petitioner and placing reliance upon the same by respondent No.1 amounts to gross violation of principles of natural justice. He, therefore, submitted that the impugned order is required to be set aside. Sca1444/03 6 (b) The order passed by the District Development Officer was sought to be challenged on the ground of malafides. It is contended on behalf of the petitioner that respondent No.1 District Development Officer passed the order under extreme pressure from political personalities belonging to the ruling party in the State. It is the case of the petitioner that several attempts were made by respondent Nos.2, 5 & 6 who hold higher public offices and who had considerable political influence to remove the petitioner. It is, therefore, the case of the petitioner that the order passed by respondent No.1 is tainted by factual malafides. (c) It is contended on behalf of the petitioner that the impugned orders travel beyond the scope of the show cause notice and charges not levelled against the petitioner in the show cause notice have been held to have been proved. (d) It is next contended that there was no material on record to permit respondent No.1 to conclude that the charges are proved. In this regard, it is contended that it was in fact the earlier Oversear one Shri M.L.Bhorania who had concocted the entire charge against the petitioner since said Shri Sca1444/03 7 Bhorania himself was facing serious charges of financial irregularities for the earlier transaction of payment of an amount of Rs.11,508.10 ps for alleged demolition of the godowns carried out for the period between 3rd May 2000 and 31st May, 2000. On this basis and relying on certain documents on record, it was canvassed by the learned advocate for the petitioner that respondent No.1 could not have held the charges as proved and these conclusions are perverse since they are based on no evidence. In this regard, it is also contended that in any view of the matter, the case against the petitioner is that he did not take sufficient care to ensure that unauthorized payment is not made. It is contended that the petitioner was holding the position of President of the Taluka Panchayat and if unauthorized payment is made by some other officer of the Panchayat, the petitioner cannot be made a scape-goat by jeopardizing his political career. 6.In support of the contentions, learned advocate Shri Mangukiya has relied on several decisions of this High Court and the Hon'ble Supreme Court. 6.1 Reliance was placed in the case of Lal Babu Hussein v. Electoral Registration Officer, (1995) 3 SCC 100 to contend that principles of natural justice Sca1444/03 8 require that adverse material must be made known to the person against whom the same is proposed to be used for the opportunity of being heard to be meaningful and purposive. 6.2 Reliance was placed in the case Tarlochan Dev Sharma v. State of Punjab (2001) 6 SCC 260 to submit that the principles of natural justice requires due application of mind. The said authority was relied upon to submit that the grounds in show cause notice must be the same which are relied upon by the competent authority to remove an incumbent from his position. This authority was also placed reliance on to support the allegations of malafides. 6.3 Reliance was placed on the observations of the Hon'ble Supreme Court in the said decision wherein the Hon'ble Supreme Court observed that in the Indian system of democratic governance, senior officers occupying key positions, such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. 6.4 Reliance was placed in the case of Express Newspapers Pvt. Ltd v. Union of India, AIR 1986 SC Sca1444/03 9 872 to submit that fraud on power voids the order if it is not exercised bonafide for the end design. Reliance was placed on the observations of Hon'ble Supreme Court to the effect that the power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an alien purpose other than the one for which the power is conferred is mala fide use of that power. 6.5 Reliance was placed on the decision of the Hon'ble Supreme Court in the case of DDA v. UEE Electricals Engg. (P) Ltd., (2004) 1 SCC 213 wherein it was observed that it is not that mala fides in the sense of improper motive, should be established only by direct evidence. 6.6 Placing reliance on the decision in the case of Medley Minerals India Ltd v. State of Orissa, (2004) 12 SCC 390, it was contended that when the petitioner has led some foundation for the allegations of malafides, the impugned order should be struck down. 6.7. Reliance was placed in the case of State of Orissa v. Binapani Dei AIR 1967 SC 1269 to contend that it is open for the High Court in a given case to examine the disputed questions of fact. Sca1444/03 10 6.8. Reliance was also placed in the case of Seimens Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785 to contend that quasi judicial order must be supported by reasons which is the basic principles of natural justice. For the same purpose, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Institute of Chartered Accountants of India v. L.K.Ratna, AIR 1987 SC 71. 6.9 Reliance was placed on the decision reported in AIR 1978 SC 851 (Mohinder Singh v. Chief Election Commissioner) to contend that validity of an order passed by the statutory authority has to be examined by reasons so mentioned in the order and the reasons cannot be supplemented in the shape of affidavit or otherwise. 6.10 Reliance was placed in the case of Vinaykumar v. Addl. Dev. Commissioner, 1984(2) GLR 1046. On the basis of the said decision, it was contended that mere irregularity in exercise of powers does not amount to abuse of power and removal of elected member of a public body in such a case would not be justified. 7. Appearing for respondent No.1, learned advocate Shri Munshaw supported the decision of the authorities. It was contended that there was sufficient evidence on Sca1444/03 11 record against the petitioner to establish that he had prepared false bills and was a party to withdrawal of more than Rs.35,000/- by way of false and fabricated accounts. He submitted that the godowns which were supposed to have been demolished for which the said expenditure was incurred in the year 2002 were already demolished in May 2000 and that therefore the entire attempt was to defraud the public exchequer. He contended that there were large number of irregularities and illegalities committed in passing of these bills which would further show that the petitioner had misused his powers. Learned advocate Shri Munshaw relied on the affidavit in reply filed by respondent NO.1 in which the allegations of malafides have been specifically denied. In the affidavit in reply filed in March 2003, respondent No.1 has stated that she denies the averments and allegations made against her to the effect that she is acting with prejudice and malafide intention against the petitioner. She also denied that she was taking decision under political pressure from different quarters. She stated that she is taking appropriate decisions in accordance with the provisions of law and after following due procedure required under the provisions of the Gujarat Panchayats Act. Sca1444/03 12 7.1 Learned counsel Shri Munshaw submitted that the inquiry conducted against the petitioner was in consonance with the principles of natural justice. All relevant documents were supplied to the petitioner. He was given sufficient opportunity to represent his case. Only upon conclusion of the inquiry that respondent No.1 on the available material on record found that the charges against the petitioner were proved and that therefore the removal order came to be passed. 8. Learned AGP Mr.Mengdey appearing for respondent Nos.3 & 4 supported the orders passed by the administration. He contended that the Development Commissioner has considered the appeal on merits and has taken into account all aspects of the matter raised by the petitioner. No infirmity, therefore, could be found in the disposal of the appeal. He, therefore, prays that the petition should be dismissed. 9. Before dealing with the contentions with respect to the question of infringement of principles of natural justice and allegations of malafides, it would be appropriate to deal with and decide other contentions outlined on behalf of the petitioner in para 6 above. Since number of contentions raised in this regard Sca1444/03 13 overlap, I find it convenient to deal with these contentions simultaneously. 10. Learned advocate Shri Mungukiya has painstakingly taken me through the voluminous material on record. As noted earlier, it is his contention that final order that came to be passed by respondent No.1 transgresses the show cause notice and travels beyond the allegations made therein. It is his contention that there is no material on record to establish the charges against the petitioner and the findings arrived at by respondent No.1 are therefore perverse in that sense. The second limb of this argument advanced by the petitioner is that the petitioner was discharging his duties as President of the Taluka Panchayat and, in any case, even if there has been some irregularity committed in payment of money, the petitioner cannot be blamed for the same since there is no direct evidence to link the petitioner with such monetary transactions. 11. Having perused the show cause notice issued to the petitioner, I find that the show cause notice outlined the charges sufficiently wide. In fact, in the show cause notice, it was clearly stated that by withdrawing a total amount of Rs.35,844/- under two different vouchers bearing No.3059 and 3060 dated 15.1.2002, the Sca1444/03 14 petitioner has misappropriated this amount. It was alleged that the said withdrawal was by fabrication of record. It is in terms alleged that the amount which is purported to have been paid by way of labour and other charges for demolition of old godowns could never have been paid since the said godowns were already demolished way back in May 2000. There are number of allegations made in the show cause notice levelling allegations of irregularities having been committed in passing of these bills by fabrication of record. Validity of these charges apart, it cannot be stated that the show cause notice did not put the petitioner to notice that allegations of financial irregularities are being inquired into against him. The charges contained in the show cause notice were specific and of serious nature. Comparing the contents of the show cause notice with the final order of removal passed by the District Development Officer, I do not find that the final order of removal travels beyond the charges levelled against the petitioner in the show cause notice. As noted earlier, the charges in the show cause were specific and serious. The petitioner was put to sufficient notice regarding the nature of allegations leveled against him and the nature of inquiry being conducted against him. I am, therefore, unable to agree Sca1444/03 15 with the contention raised on behalf of the petitioner that certain portion of the final order of removal travels beyond the scope of the show cause notice and in that sense, the final order was passed by taking the petitioner by surprise. 12. With respect to the question of availability of the material on record to establish these charges also, I am unable to come to a conclusion that this is a case of no evidence at all. It is not possible to hold that the conclusions arrived at by the District Development Officer were perverse since there was no material on record to establish these charges. While examining the validity of a domestic inquiry, it is not possible for this Court to inquire into the correctness of the findings arrived at by the competent authority. The scope of inquiry before this Court is to find out whether the conclusions are based on no evidence and therefore perverse. The District Development Officer in her order dated 19.8.2002 has discussed at length several aspects of the matter including the aspect that the godowns which were supposed to have been demolished in the year 2002 for which said amount was withdrawn as labour and other charges were supposed to have been already demolished in May 2000. Voluminous evidence in Sca1444/03 16 the form of contemporaneous evidence is sought to be relied upon by the District Development Officer to drive home the charges. Sufficiency of evidence is not to be examined by this Court in exercise of powers under Article 226 of the Constitution of India. The question is whether there was no evidence at all and in that sense whether the findings were perverse. However much the learned advocate for the petitioner tried to establish before me that there was no evidence at all to permit the District Development Officer to conclude that the charges against the petitioner are proved, I am unable to persuade myself to accept this contention. Whether there was reliable evidence on record or not and whether on the touchstone of preponderance of probabilities such evidence would lead to the establishment of guilt of the petitioner are in the realm of appreciation of evidence which can best be done by the competent authority and not this Court while entertaining a writ petition against an order passed by the competent authority. I would not like to discuss threadbare the evidence which convinced the disciplinary authority to conclude that the charges against the petitioner are proved. In view of my ultimate conclusion with respect to other two aspects of the matter, the question of violation of principles of Sca1444/03 17 natural justice and the question of malafides alleged by the petitioner, at this stage, at least I would like to conclude by recording that it is not possible to find that the findings of the District Development Officer were perverse. In that view of the matter, it is not possible to exonerate the petitioner of all the charges at least in this proceeding. It is also not possible to accept the contention raised on behalf of the petitioner that at any rate, he was only discharging his duties as the President of the Taluka Panchayat and that even if there was some irregularity in passing of the bills and there was some misappropriation of Panchayat's funds, the petitioner cannot be blamed for the same. Such a contention would be super-technical and would be ignoring the ground realities. The charges against the petitioner were that in the Panchayat building there was some old godown which was already pulled down in May 2000 for which expenditure was already sanctioned and incurred and for this very godown, once again in the year 2002, expenditure of Rs.35,844 was incurred by creating fabricated documents and records. When the godowns are situated in the compound of the Panchayat building itself, it is quite impossible to accept the contention of the petitioner that he would have no knowledge about the activities going on and he would Sca1444/03 18 not have any control about passing of the bills relating to the said activities. It is not even the case of the petitioner that he was, at no stage, involved in clearing the expenditure. In fact, resolution was passed by the Taluka Panchayat and the expenditure was authorized by the petitioner even before that in anticipation of passing of such a resolution. The petitioner, therefore, cannot divorce himself from the incidents which occurred under his very nose. 13. This brings me to the two important and vital aspects of the matter, viz. the allegations of violation of principles of natural justice and that of malafides in passing of the impugned order. 14. It was contended on behalf of the petitioner that the impugned order was based on material collected by respondent No.1 behind the back of the petitioner which was never disclosed to the petitioner till passing of the impugned order or even thereafter. In this regard, my attention was drawn to the discussion in the impugned order dated 19.8.2002 wherein respondent No.1 records as follows:- “As per the clarifications sought from the Sca1444/03 19 Executive Engineer dated 12.8.2002, it is stated that careful dismantling of brick construction in cement mortar of approximately 30 years old could retrieve 30-40% of bricks which comes to maximum of approximately 19,000 bricks. There is only one entry of bricks in dis reg. taking 14,000 bricks on the register dt. 25.6.2000. The so called 26,000 bricks retrieved from the second so-called demolition is neither entered in the records of the dis.reg. nor found physically with T.P. The physical verification report of the Executive Engineer dt. 19.6.2002 states that the maximum amount of broken and in tact bricks was 17.5 c.m.m i.e. approximately 9000 bricks, this is contrary to the submission of the respondent which stated that out of the so called second demolition 26,000 bricks were retrieved over and above 14,000 bricks of the earlier demolition, making a total of 40,000 bricks retrieved out of 30 yr. Old 49,000 brick construction in cement mortar which is more than 80% and corroborated neither from the records nor from the physical verification.” It is the specific case of the petitioner that the said clarification sought from the Executive Engineer on 12.8.2002 referred to herein-above was collected by respondent No.1 behind the back of the petitioner and the same was never supplied to the petitioner. It is the case of the petitioner that after the entire proceedings were over and when the petitioner Sca1444/03 20 demonstrated before the Authority that sufficient number of bricks were retrieved from the demolition, to meet with this contention of the petitioner, respondent No.1 sought a report from the Executive Engineer and relied upon the same to establish that the petitioner's stand in this regard is incorrect. 14.1 There is no dispute about the fact that the clarification in the form of report