IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.330 OF 1999 Shri Agnelo Alexinho Lobo, Indian inhabitant, residing at House No.67/5, Vaddem, Socorro, P.O. Porvorim, Bardez, Goa. ...PETITIONER Versus 1. The Director of Panchayats, Panaji, Goa; 2. The Government of Goa, through the Chief Secretary, having his office at Secretariat, Panaji, Goa; 3. Shri Soter Francisco D’Souza, Member of Village Panchayat of Socorro. Socorro, Bardez, Goa ...RESPONDENTS Shri V.B. Nadkarni, Senior Advocate, with Shri H.D. Naik, Advocate for the Petitioner. Shri S.G. Dessai, Senior Advocate, with Shri A. Bras De Sa, Advocate,for the Respondents No.1 and 2. Shri V.P. Thali, Advocate for the Respondent No.3. CORAM : F.I. REBELLO & A.S. AGUIAR, JJ. DATED : JANUARY 9, 2002. ORAL JUDGMENT (PER F.I. REBELLO, J.) (PER F.I. REBELLO, J.) (PER F.I. REBELLO, J.) Petitioner was duly elected as a Member of the Socorro Village Panchayat in the elections held on 12-1-1997 and, thereafter, on 14-2-1997 was elected as Sarpanch. Earlier also, the Petitioner - 2 - had held the post of Sarpanch. On 7-9-1998, Respondent No.1 served on the Petitioner a Show Cause Notice under Section 50(4) and 50(5) of the Goa Panchayat Raj Act, 1994 (hereinafter referred to as ’the Panchayat Raj Act’). On 16-12-1998, the Petitioner filed his reply to the Show Cause Notice contesting the charges and allegations made therein. The matter proceeded before the 1st Respondent. On 16-2-1999, after hearing parties the 1st Respondent directed the Petitioner and the complainant/Respondent No.3 herein to file Written Arguments on 3-3-1999. On 3-3-1999, the complainant/Respondent No.3 filed Written Arguments. On that date, on behalf of the Petitioner an application was filed seeking time to file Written Arguments. Time was granted and the matter was adjourned to 7-4-1999 for judgment and order. After the matter was reserved for judgment, the Petitioner filed three applications. The first application was dated 15-3-1999. By the said application, the Petitioner sought an opportunity to cross-examine the Respondent No. 3 through his lawyer and also to permit the Petitioner to lead evidence through witnesses. The second application by the Petitioner contained a prayer that the - 3 - Respondent No.1 should recluse himself from the matter as the Petitioner apprehended reasonable likelihood or possibility of bias. The third application dated 17-3-1999 was that the matter should be adjourned till such time as the two afore mentioned applications were heard and disposed of. By Order dated 4th May 1999, the 1st Respondent disposed of all the applications and rejected the reliefs prayed for. While considering the case of the Petitioner for cross-examination of the Respondent, the 1st Respondent held that the Orders under Sub-sections (4) and (5) of Section 50 would be passed, based on the documentary evidence and after considering the reply and written submissions and in these circumstances there was no need for cross-examination of the Respondent No.3. Insofar as the application that the Respondent No.1 should recluse himself, the 1st Respondent held that the Petitioner had not disclosed any material which must necessitate the Respondent No.1 reclusing himself. The 1st Respondent noted the various steps in the proceedings and the fact that it was only after time was fixed for filing written arguments that the application was moved. In these circumstances, the said application was also rejected. - 4 - 2. The 1st Respondent thereafter proceeded with the proceedings and by Order dated 14th June, 1999 directed the removal of the Petitioner from the Office of Sarpanch as well as the Membership of the Village Panchayat of Socorro from the date of receipt of the Order with the directions that the Petitioner would not be eligible for re-election as Sarpanch or as a Member of the Panchayat for a period of five years from the date of issue of the Order. Aggrieved by the said Order, the Petitioner has preferred the present Petition. On 29th October, 1999, this Court was pleased to issue Rule. On January 14, 2000 the Court held that the Petitioner should be allowed to continue as a Member of the Village Panchayat till the final decision in the Petition. However, considering the various allegations against the Petitioner which are referred to in the impugned Order and the proceedings therein, his rights as a Member of the Panchayat were restricted to the extent that the Petitioner during the pendency of the Petition was not allowed to represent the Panchayat in any proceedings or to issue any letter or certificate on behalf of the Panchayat or to vote at any of - 5 - the meetings of the Panchayat till further orders. The impugned Order of Respondent No.1 to that extent was stayed. An appeal came to be preferred against the said Order. The same came to be dismissed by Order of this Court dated 13th June, 2000. 3. At the outset it may not be necessary to go into the contents of the Show Cause Notice, the reply thereto and the findings recorded by the 1st Respondent. This is because the challenge to the action of the 1st Respondent is mainly based on violation of the provisions of sub-section (4) and sub-section (5) of Section 50 of the Panchayat Raj Act and the principles of natural justice. The principal grounds of challenge as raised by the Petitioner are that the Show Cause Notice clearly disclosed that the Director of Panchayat had foreclosed his mind even before hearing the Petitioner. Thought opportunity to show cause has been given, the 1st Respondent has pre-decided the issue by holding in the show cause notice itself that the alleged acts of irregularities/illegalities had been proved and, as such, the purported opportunity given was sham and, consequently, the Order dated 14th June,1999 was illegal, null and - 6 - void. The next submission is that a perusal of the Show Cause Notice would indicate that the opportunity given to the Petitioner was only to show cause why he should not be removed from the Office of the Sarpanch as well as from the membership of the Village Panchayat. No opportunity at all, reasonable or otherwise, was given to the Petitioner to show the acts of irregularities/illegalities as alleged against him, should not be held as proved. The next submission is that the Show Cause Notice purported to give opportunity to the Petitioner to show cause why he should not be removed from the Office of Sarpanch as well as from membership of the Village Panchayat. It is submitted that no opportunity was given to the Petitioner particularly or at any stage as to why he is to be debarred and/or made ineligible for election as Sarpanch or as a Member of the Village Panchayat of Socorro for a period of five years. It is also submitted that the impugned Order proceeds on the basis that the charges against the Petitioner are based on the information furnished by the Petitioner during the inspection carried out by the Director of Village Panchayat at random of the records of the Village Panchayat. Neither the inspection report, if any, nor statements of the inspection have been disclosed - 7 - to the Petitioner at any stage nor referred to in the Show Cause Notice, although they appear to be relied upon in passing of the impugned Order in breach of the principles of natural justice and as such the impugned Order is illegal, null and void. 4. For the purpose of appreciating the contentions as raised on behalf of the Petitioner, it will be necessary to reproduce the provisions of sub-sections (4) and (5) of Section 50 of the Panchayat Raj Act. They are as under:- (4) Every Sarpanch or Deputy Sarpanch of a Panchayat shall after an opportunity is afforded for hearing him, be removable from his office as Sarpanch or Deputy Sarpanch by the Director for being persistently remiss in the discharge of his duties or misconducting himself or misuses or abuses the powers or exercising the powers not expressly vested in him by or under the Act or the rules framed thereunder and the Sarpanch or Deputy Sarpanch so removed who does not cease - 8 - to be a member under sub-section (2) shall not be eligible for re-election as Sarpanch or Deputy Sarpanch for such period not exceeding five years as the Director may specify in his order. (5) A Sarpanch or Deputy Sarpanch removed from his office under sub-section (4) may also be removed by the Director from the membership of the Panchayat for such period not exceeding five years as the Director may specify in his Order." 5. At the hearing of the Petition on behalf of the Petitioner though there was a challenge to the validity of the Section that has not been pressed and only the order is challenged. It is contended that the impugned Order is liable to be set aside for the following reasons: (A) In addition to removal as Sarpanch on the grounds stipulated in Section 50(4) of the Act, a person so removed is also liable to incur disqualification of being ineligible to be - 9 - re-elected as such for a period not exceeding five years as ordered by the Director of Panchayat at his discretion. Further, such person is also liable to be removed as a Member of the Panchayat also with a liability of being disqualified or being ineligible to be re-elected as a Member for a period not exceeding five years as ordered by the Director in his discretion. Section 50(4) does not either expressly or by necessary implication exclude the application of principles of natural justice which have to be read as an integral part of the said Section. (B) The expression "opportunity" before being removed and made ineligible for re-election is not restricted only to defend the allegation on merits, but also to show cause against the penalties proposed to be imposed; (C) Opportunity must mean reasonable opportunity and this opportunity must be meaningful and effective. The person likely to be adversely affected has to be informed not only of the ground on which the action is proposed to be taken together with the material relied upon, but also necessarily be informed precisely and specifically - 10 - of the nature of penalty to be imposed. This reasonable opportunity would include the opportunity to defend the allegation by cross- examining the complainant, if any, and witnesses, if any, whose statements are relied upon in support of the allegations as also to lead both documentary and oral evidence by examining himself on material and relevant witnesses to refute the allegations; (D) At the stage of issue of Show Cause Notice, the Authority has to form only a tentative or prima facie opinion based on the material that the person in respect of whom the show cause notice is issued has been persistently remiss in the discharge of his duties or misconducted himself or misused or abused the powers or exercised powers not expressly vested in him by Rules framed thereunder. The Authority cannot foreclose its mind at that stage before considering the reply filed by the petitioner. In the instant case, the Show Cause Notice would indicate that the Respondent No.1 had already come to the conclusion and, consequently the opportunity offered was sham; (E) The Director of Panchayats exercising powers under Section 50(4) and 50(5) and Section 210 of - 11 - the Panchayat Raj Act, acts as a quasi-judicial authority and that being the case, he ought not to be a Judge in his own cause. In the instant case, the Respondent No.1 has relied on material gathered at the inspection conducted by himself. This by itself indicates that Respondent No.1 was biased. Considering the definition of "Director" in Section 2 of the Act, the doctrine of necessity also is not attracted. Inasmuch as the Respondent NO.1 did not recluse himself the Order is liable to be quashed and set aside. (F) The Respondent No.1 when discharges functions under Section 50(4) and 50(5) and Section 210-A of the Act has to act as quasi-judicial authority and the order passed must disclose reasons, more so in the absence of any remedy of appeal or revision. Apart from disclosing the reasons in respect of the first part of sub-section (4) and (5) of Section 50 as to whether the petitioner is guilty, reasons have also to be given in support of the order disqualifying a party for a period upto five years; (G) The Show Cause Notice which has to be read into sub-section (4) and (5) of Section 50, apart from calling on the person to whom the notice is issued - 12 - to show cause in the matter of removal, must also call on the party to show cause as to why the maximum period of disqualification or ineligibility for election should not be imposed. In the instant case, this has not been done and, consequently, the order is liable to be quashed and set aside; On the other hand, on behalf of the Respondents it is contended that the Petitioner has been given sufficient opportunity. That it is not a requirement of this opportunity considering the Section that the Petitioner should be allowed to cross-examine the witnesses and/or to lead oral evidence. It is next contended that sub-section itself provided for an opportunity. The question therefore of reading the principles of natural justice need not be gone into. It is the case of the Respondent No.1 that sub-section (4) and (5) themselves contemplate the maximum period for which a person can be disqualified or made ineligible for election which period can even go beyond the period of the term for which he was elected and that being the case, such a person knows the period for which he can be removed and, in these circumstances, it is not a requirement that a party must also be given an opportunity of showing cause in the Show - 13 - Cause Notice itself as to why he should not be removed for a period of five years. It is further clear from the said Show Cause Notice itself that it is not a decision and further does not foreclose or renders redundant the opportunity given to the Petitioner. The Show Cause Notice is based on the materials on which the Respondent No.1 has come to prima facie conclusion and which have been dissolved to the petitioner. It is then contended that once reasons have been given for removal, no separate reasons are required to be given in so far as the period of disqualification or re-election as Sarpanch or a Member is concerned as it is purely consequential and at any rate reading of the order would disclose that there are reasons. The plea of bias as contended is merely an afterthought and raised belatedly and, at any rate, unsupported by material. It is further contended that the doctrine of necessity will apply as the power is conferred on the petitioner by Statute and it is the Director and the Director alone, who can exercise powers under sub-sections (4) and (5) of Section 50 of the Act. For the aforesaid reasons, it is contended that the order is not liable to be interfered with. - 14 - 6. From the above contentions of both parties, the following propositions may be carved out which will require to be determined for disposal of the present petition:- (a) What would be the meaning of the expression "opportunity", considering that the Section does not exclude the principles of audi alteram partem? (b) Does expression "opportunity" read with the principles of audi alteram partem include the right to cross examine and/or to examine defence witnesses? (c) Is it a requirement of sub-sections (4) and (5) of Section 50 that the person who is sought to be removed from the post of Sarpanch/Deputy Sarpanch/Member must be given a show cause notice not only against the removal from such post, but also a show cause notice indicating the period for which such persons will be held to be ineligible to contest the post of Sarpanch/Deputy Sarpanch/Member? (d) Must the order of removal from the post of Sarpanch/Deputy Sarpanch/Member, before passing - 15 - an order, disclose reasons both for removal and for making ineligible a person to contest or hold the said post referred to above. On the facts and circumstances in the present case does the order disclose the reasons? (e) Does the material disclose the respondent No.1 was biased against the petitioner and consequently the order suffers from violation of the principles of natural justice and fair play? 7. At the threshold, it may be mentioned that the Petitioner has not raised or argued that the order of the 1st Respondent is liable to be set aside on the ground that there was no material and/or that the findings given are perverse and/or based on materials which were not available to the Petitioner. The only limited submission made is that the Show Cause Notice itself will disclose that an inspection was carried out. Neither the inspection report nor the memo of inspection was made available to the petitioner. At the outset, it may be pointed out that the Show Cause Notice merely proceeded on the footing that the inspection was conducted and in the course of the inspection, serious irregularities/illegalities were observed. - 16 - Those have been made known and given to the Petitioner. Therefore, it is clear that the material on which the Respondent No.1 sought to rely upon was made available. There is no inspection report and neither has it been used and/or relied upon. In the light of that, the contention must be rejected. The contentions set out in paragraph six will now be dealt with not necessarily in the order they are set out but also clubbing them wherever they can be so clubbed. 8. With that, we come to the contention based on the plea of bias. Has there been an infraction of the principle Nemo debet esse Judex Nemo debet esse Judex Nemo debet esse Judex in in in propria Causa propria Causa propria Causa -’No man shall be Judge in his cause’-. Certain aspects must be borne in mind while considering the plea. On receipt of the Show Cause Notice, the Petitioner filed his reply. In the reply, no objection was raised that the Respondent No.1 was biased against the Petitioner and/or was otherwise disqualified on the ground of bias in proceeding with the Show Cause Notice. At least such an objection was not raised in the reply. Thereafter the matter proceeded before the 1st Respondent. For the first time, the objection - 17 - came to be filed after the application for adjournment for further time was rejected and the matter was adjourned for orders with a direction to the petitioner to file written arguments. Even from the application considering the averments set out therein, it is impossible to arrive at a conclusion that based on the said pleadings it is possible to accept the plea of bias. The plea of bias basically is based on the ground that materials gathered at the inspection were used to issue the show cause notice. The Section itself confers power on the Director of removal. This power can be exercised by the Director on complaint made or exercising his statutory duties by examining the records of the Panchayat that the Sarpanch or Deputy Sarpanch is not persistently remiss in the discharge of duties, etc. The Director is the watchdog on these matters. It is his duty to see that the Sarpanch/Deputy Sarpanch acts according to law. This would require inspection to be conducted. If such power is exercised it cannot lead to the conclusion of likelihood of bias. At any rate, that application was rejected after hearing the petitioner. The Petitioner chose not to challenge the said order nor, for that matter, did the Petitioner chose to - 18 - participate under protest. The contention sought to be advanced is that there was hardly any time and in these circumstances that should not be held against the Petitioner. It is now a settled proposition of law that bias can be waived. See Dr. Dr. Dr. A. Sarana Vs. Lucknow University, A. Sarana Vs. Lucknow University, A. Sarana Vs. Lucknow University, A.I.R. 1976 S.C.2428 In the instant case, the Petitioner did not initially plead bias. In other words, it was not a case of initial bias. The objection was raised later on. In other words, it could only be on account of acts committed during the course of the proceedings. There is no material to show that the conduct of the Respondent No.1 was biased. It often happens that a party dissatisfied with orders merely with a view to prolong the proceedings raise a plea of bias to prevent a quasi judicial or judicial authority from passing orders. The Authorities whether judicial, or quasi judicial, ordinarily should not succumb to such pressure tactics unless the the Authority was required to disclose some material which possibility could lead to a plea of likelihood of bias and for some reason or lapse could not disclose it or has a personal interest or proprietary interest or business interest or institutional interest in which event it is a normal rule that the Authority, judicial or - 19 - quasi-judicial, should recluse itself. In the instant case, there is no material which warranted the Respondent No.1 from reclusing himself. There is no difficulty in holding that the plea of bias could be raised against the Respondent No.1 even if he is discharging official duties and a writ of certiorari would be issued if a case is made out of real likelihood of bias. More importantly, the decision-making process has been conferred on Respondent No.1 as a statutory authority by the Panchayat Raj Act. The legislature has conferred the power on the Director of Panchayats and not on any other person. That power also cannot be delegated. In other words, the doctrine of necessity would apply and the matter has to be heard and Show Cause Notice can be issued by the Respondent No.1 and the Respondent No.1 alone. The mere fact that the Director under the Act has to be appointed by the Government can be no answer. It is impossible to hold that merely because a plea of bias is taken the Government should go on changing the Director under the Act. To my mind, considering all these facts, no case has been made out insofar as the plea of bias is concerned and consequently, that contention is - 20 - liable to be rejected. 9. We may now deal with the propositions to the next set of contentions, namely, as to the scope of the expression ‘opportunity’ contemplated by sub-sections (4) and (5) and whether that would include the right to cross examine complaint if any and produce oral evidence on defence. The expression therein used is "an opportunity". Insofar as sub-section (5) is concerned, it is merely consequential on the Respondent No.1 coming to the conclusion that the Sarpanch has been persistently remiss in the discharge of his duties or misconducted himself or has misused or abused the powers etc. Under sub-section (5) there is a discretion in Respondent No.1, if he holds that a person was unfit to hold the Office as Sarpanch to also remove him as a Member. Therefore, the opportunity contemplated must be given, irrespective of whether the Respondent No.1 acts in an administrative capacity or quasi judicial capacity. The opportunity must conform to the principles of natural justice. That an authority whose orders are liable to result in civil consequences, whether acting in an administrative capacity or quasi-judicial capacity, is bound to - 21 - comply with the principles of natural justice is no longer res integra, having been settled once and for all by the judgment of the Apex Court in the case of Smt. Maneka Gandhi v. Union of India & Smt. Maneka