SCA/10672/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10672 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= PRANJIVANBHAI BHUDARBHAI SARPANCH & 1 - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MRS NASRIN N SHAIKH for Petitioner(s) : 1 - 2. MR UMANG OZA, AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR HS MUNSHAW for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 20/10/2008 ORAL JUDGMENT 1. Rule. Mr.Umang Oza, learned AGP waives service of notice of Rule for respondent No.1 and SCA/10672/2008 2/12 JUDGMENT Mr.Munshaw, learned Counsel for respondent No.2. The matter is finally heard today. 2. The short facts of the case appear to be that one lady Champaben Kanjibhai Bokhani, belonging to Scheduled Caste had encroached over the land reserved for grazing for cattle (hereinafter referred to as 'the Gauchar land') and in the year 1997, the Panchayat had decided to remove the encroachment made by her and her family members. The notice was also given to her under the Gujarat Panchayat Act, 1993 (hereinafter referred to as 'the Act'). Ultimately, it appears that the action was taken by the petitioner in capacity as the Sarpanch and Upa- Sarpanch, as the case may be, for removal of the encroachment made by the aforesaid Champaben (hereinafter referred to as 'the affected person/encroacher/complainant'). It deserves to be recorded that the Panchayat was directed by the higher authority to take action for removal of the encroachment and the action was taken accordingly for such purpose. 3. It appears that the said Champaben filed SCA/10672/2008 3/12 JUDGMENT complaint before the District Social Welfare Officer for harassment to her as she is belonging to backward class (Dalit). The District Social Welfare Officer for backward class inquired into the matter and did find that the dispute arose because of the cultivation by Champaben over the land, which was encroached by her and her neighbour. However, there is harassment found of social boycott, etc., by certain residents of the village and, therefore, it was observed by the said Officer that it is the responsibility of the Sarpanch to ensure that there is no harassment to the family of Dalits and action is required to be taken. The aforesaid report by the District Social Welfare Officer of the backward class was made as the basis for the initiation of the action against the petitioners for removal as the Sarpanch and/or Upa-Sarpanch, as the case may be, and ultimately order came to be passed by the District Development Officer for removal. The matter was carried in appeal by the petitioners before the Additional Development Commissioner SCA/10672/2008 4/12 JUDGMENT and the appeals have been dismissed. It is under these circumstances, the petitioners have approached this Court by the present petition. 4. Heard Ms.Shaikh, learned Counsel for the petitioners, Mr.Oza, learned AGP for the State Government and Mr.Munshaw, learned Counsel for respondent No.2, DDO. 5. As such, if the Sarpanch or the Upa-Sarpanch, as the case may be, has enforced the law, it can hardly be said as any atrocity to any citizen. On the contrary, any action taken by Sarpanch or Upa-Sarpanch, as the case may be, in discharge of his duty can be said as for enforcement of law or lawful orders, which was in the present case was for removal of the encroachment. In any way, it cannot be said as any harassment to any citizens belonging to backward class and the reason being that irrespective of the class of the person concerned, law is applicable to all the citizens in the same manner. If the person concerned has encroached over the Government land, no right vests to him/her and if the action is taken for removal for such SCA/10672/2008 5/12 JUDGMENT encroachment, it can hardly be said as harassment to the citizen belonging to backward class. This Court, in case of A.K.Chaudhary and Ors. v. State of Gujarat and Ors.”, reported in 2005(3) GLH, 444 had an occasion to consider the question as to whether taking of lawful action or procedure against a member of Scheduled Caste or Scheduled Tribe can be said as an offence under Prevention of Atrocities (Scheduled Tribe and Scheduled Caste) Act, 1989 or not. It was observed at para 47, the relevant portion of which, reads as under:- “47. ...Therefore, though sentimentally on account of death of a member belonging to Scheduled Caste and his family one may receive sentiment to punish or to prosecute those who are named by the deceased in the suicidal note, but if such prosecutions are leniently viewed, it may result into creating the situation where no officer would be tempted to discharge his duty for taking action for maintenance of discipline even if such is provided as per the SCA/10672/2008 6/12 JUDGMENT regulations, on a fear or apprehension that the employee against whom the action is to be taken may put an end to his life by sentimentally reacting to such departmental action. It may equally leave room to the employee against whom the departmental action is to be taken by the higher officer, by giving threat of putting end to the life and thereby to create a fear in the mind of the higher officer and to create an atmosphere of no disciplinary action against such employee by such higher officer, though legally such higher officer is required to take action. As such, similar position may prevail even in any other situation where law is to be enforced by exercising the power. If such prosecutions are leniently viewed it may result into creating a situation of hampering the enforcement of law, rules and regulations, which has to prevail in all circumstances above all personal sentiments, otherwise it may seriously damage the maintenance of standard SCA/10672/2008 7/12 JUDGMENT of efficiency, the expected quality of the work, maintenance of discipline in all organizations, may be private, government or semi-government, and above all the general interest of the nation at large.” 6. Mr.Munshaw, learned Counsel appearing for the DDO, during the course of the hearing, on the basis of the report, submitted by the District Social Welfare Officer, has not been able to show any direct evidence for involvement of the petitioners as Sarpanch or Upa-Sarpanch, as the case may be, in the allegation of social boycott with the affected person. However, he submitted that it was moral responsibility of the Sarpanch to see that a cordial atmosphere prevails and as he failed to discharge the duty on the basis of his moral obligation, it can be said as misconduct and, therefore, the action can be sustained. 7. Section 57 of the Gujarat Panchayat Act provides for enabling power of removal; “if it is found that the Sarpanch or the Upa-Sarpanch, as the case may be, is guilty of misconduct in the SCA/10672/2008 8/12 JUDGMENT discharge of his duties or of any disgraceful conduct or abuses his power or makes persistent default in the performance of his duties and functions under this Act.” 8. The Full Bench of this Court, on the aspect of meaning of the words 'misconduct' and the 'disgraceful conduct' had occasion to consider, for the post of Counselor, President or the Vice President of the Municipality, in case of Mushtaq Ahmed Hasanbhai Mansuri v. V. C. Trivedi, reported in 2003(1) GLH, 572 and it was observed, inter alia, as under:- “4.3 Further, the word "misconduct" used in the phrase "has been guilty of misconduct in the discharge of his duties" means misconduct in office. As explained in Black's Law Dictionary, Sixth Edition by the Publisher's Editorial Staff, "misconduct" is any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour; whereas the word "disgrace" means ignominy; shame; dishonour. Disgraceful conduct need not be circumscribed to something done in the course of one's duty as holder of the office. The word "disgrace" is frequently used with an odious implication and as a term of general disparagement and equally discreditable as applied to all persons. In this sense the term may imply disfavour, shame, contumely or even dishonour and is defined as meaning a cause of shame or reproach. The term "disgraceful" is synonymous with infamous. Therefore, a President or Vice President or the Councillor of a Municipality may be guilty of any disgraceful conduct in the discharge of his duties or otherwise also and it cannot be interpreted to mean that the disgraceful conduct must be in the discharge of duties and not otherwise. At this stage we may refer to SCA/10672/2008 9/12 JUDGMENT well settled canon of interpretation that where it is necessary to give a provision a particular construction which is at variance with the way in which the section is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the Act. In Re Naranjan Singh (1962) 1 Q.B. 211 section 10 of the Fugitive Offenders Act, 1881 was considered. The said section conferred on a superior court power to discharge a fugitive where "by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise ... it would be unjust or oppressive or too severe a punishment to return" him. It was held that, apart from cases of a trivial nature, the court's discretion to discharge a fugitive could be exercised in any case in which the return of the man would be unjust or oppressive or too severe, and was not confined to cases in which the application appeared not to have been made in good faith. In other words, the section was given a wide construction, as though a comma had been inserted before "or otherwise". Applying the same principle to the provisions of section 37 of the Act, we find that the provision will have to be read as if comma had been inserted after the words "has been guilty of misconduct in the discharge of his duties". So read, it becomes evident at once that the subsequently following phrase "or of any disgraceful conduct" has no reference to the discharge of his duties and that disgraceful conduct can be committed otherwise also. 4.4 The scheme of section 37 of the Act is clear and unambiguous. As observed earlier, subsection (1) thereof empowers the State Government to remove any Councillor or President or the Vice President of a Municipality from the office (a) if he is guilty of misconduct in the discharge of his duties, (b) or if he has been guilty of any disgraceful conduct or (c) if he has become incapable of performing his duties under the Act. A disgraceful conduct is much more grave than a mere misconduct. A disgraceful conduct brings disrepute not only to the Councillor who is guilty of such conduct, but would also cast a stigma upon the institution, namely, the Municipality. Webster gives the word "disgraceful" meaning as synonymous of "infamous", "detestable", "odius", "scandalous", "base", "vile", "shamefull", ignominious". Acts sanctioned by law are not disgraceful. The natural consequence of disgraceful conduct is that it brings the person committing the same into contempt among honourable persons. If the legislative intention had been to confine the power of removal in case of disgraceful conduct committed in the discharge of the duties, an express provision could have been made or the words "in the discharge of his duties" would have followed the second contingency also. Such being not the language employed by the Legislature, we are of the opinion that the words "in the discharge of his duties" do not qualify the words "disgraceful conduct" also. Disgraceful conduct has a reference to his behaviour as a citizen and not necessarily as a Councillor. If a person behaves disgracefully in the SCA/10672/2008 10/12 JUDGMENT public or in the office of Municipal Council, he is liable to be removed from his office of Councillor notwithstanding the fact that the misconduct was not with reference to the discharge of his duties. Thus, the first question which is referred to the Larger Bench is answered by holding that the phrase "or of any disgraceful conduct" occurring in the section cannot be construed to mean that the disgraceful conduct must have been committed in the discharge of duties only and not otherwise. The President, Vice President or Councillor, as the case may be, can be removed from office if he is guilty of any disgraceful conduct which is committed in the discharge of duties or otherwise because the President, Vice President or Councillor of a Municipality, as the case may be, is a public figure holding public post and is supposed to conduct himself in such a manner whether in the discharge of his duties or otherwise, that his conduct does not bring shame or dishonour or ignominy to himself or the institution. The decisions taking contrary view on this point stand overruled.” 9. If all the tests are applied, it cannot be said that the misconduct is committed by the petitioners, more particularly when the action has been taken for removal of the encroachment against the affected person by the petitioners by way of implementation of law. Further the same is coupled with the circumstances that there is no direct evidence whatsoever for creation of the atmosphere of boycotting by the petitioners concerned. 10.The attempt to contend the moral duty upon the Sarpanch cannot be countenanced against the legal obligation caste to discharge of duty as Sarpanch and the Upa-Sarpanch for removal of the encroachment against the persons, including the SCA/10672/2008 11/12 JUDGMENT affected persons. It also appears that it is on account of the action taken by the petitioners in capacity as the Sarpanch or the Upa-Sarpanch, as the case may be, the complaint is filed by the affected persons before the Social Welfare Officer and by way of counter-blast, the platform is created for removing the petitioners from power though there is no direct evidence available against the petitioners. 11.The District Development Officer as well as the Development Commissioner, both have totally lost sight of the important aspects that if the encroachment is removed and the person belonging to backward class is affected, it can hardly be said as harassment to the person belonging to backward class and there is no express provision under the Act or any statutory rules casting obligation upon the petitioners to abolish boycott even if any. Therefore, in absence thereof, it cannot be said that any misconduct is committed by the petitioners, which would attract the power of the authority for removal under Section 57 of the Act. SCA/10672/2008 12/12 JUDGMENT 12.In view of the above, the impugned orders cannot be sustained in the eye of law. Hence, the orders of the District Development Officer as well as of the Additional Development Commissioner for removal of the petitioner as Sarpanch or the Upa-Sarpanch, as the case may be, are quashed and set aside with the direction to reinstate the petitioners to the post of Sarpanch and Upa-Sarpanch, as the case may be. 13.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. Direct service is permitted. 20.10.2008 (Jayant Patel, J.) vinod