TMI Blog1968 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... about December 1963. It appears that there was an audit objection in regard to the uniforms which had been given to the Panchayat sweepers as no relevant rules had been framed in that connection. The said expenditure on uniforms incurred during the period from 1st April 1956 to 31st March 1962 was under audit objection. It is the case of the petitioner that he was directed by the Assistant Examiner of Local Authorities to recover the amount of ₹ 16/- for the uniform supplied to each sweeper, failing which the said amount was ordered to be recovered from the petitioner Sarpanch personally. The sweepers having refused to accept the orders regarding the recovery of the said amount and as they disregarded the other orders and instructions of the Panchayat from time to time the petitioner issued show cause notices on 2nd March 1964 to these 11 sweepers to show cause why they should not be dismissed from service for wilful negligence and disobedience of the orders of the Panchayat. These notices were served individually on 3rd March 1964 and the inquiry was fixed on 8th March 1964 which was a Sunday and holiday for the Panchayat. It is the case of the petitioner that on 8th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring health of the citizens. On 25th July 1964 a third letter also was written to the petitioner to implement the said decision. Meanwhile, a telegram was sent by respondent No. 2 the District Panchayat on 23rd July 1964 threatening the petitioner with drastic action if the decision was not implemented. Thereafter some correspondence ensued between the petitioner and respondent No. 1. On 21st July 1964 the petitioner applied for uncertified copies. There is no dispute that the petitioner's secretary was permitted to take out a copy of the entire decision with reasons on 21st July, 1964 and was given a copy of one resolution. It is the case of the petitioner that he was not given all the copies that were necessary to enable him to file a writ petition before this Court. On 22nd July, 1964 the petitioner had filed an application for four certified copies and he sent repeated reminders in that connection. It is the case of the petitioner that for the first time on 6th August 1964 the petitioner received an intimation, dated 4th August 1964 that copies were ready for delivery. Thereafter, it is the case of the petitioner that these copies were not delivered to him on lame excuses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49(2) of the Act. The petitioner has, therefore, challenged both these orders along with the resolution delegating the powers under Section 49 to the respondent No. 1 in the present petition which was filed on 21st September 1964. It appears that the Panchayat had filed the other petition challenging the appellate order on or about 11th September 1964. As the petitioner had filed C.A. No. 389 of 1968 for expediting the hearing of the present petition on the ground that the order came in his way in the fresh elections for which nominations were to be immediately filed, this petition alone has been put up for hearing before us at the petitioner's special request. On behalf of the respondents, the District Development Officer himself filed an affidavit denying the allegations of the petitioners. The District Development Officer in charge Shri Shantilal has also filed an affidavit-in-reply. 3. The petitioner has challenged the aforesaid orders on various grounds but the entire challenge at the hearing is confined to the following grounds: (1) That the order for disqualification or the petitioner under Section 49(2) has been passed without following any procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, Sarpanch or otherwise ceased to hold any such office and has been guilty of misconduct specified in Sub-section (I) or has been incapable of performing his duties. Provided that an action shall be taken within six months from the date on which the person resigns or ceases to hold, any such office. (3) Any person aggrieved by an order of the competent authority under Sub-section (1) or (2) may, within a period of thirty days from the date of the communication of such order, appeal to the State Government. From the scheme of Section 49(1) and (2) it is clear that both these clauses deal with different situations and different consequences are provided in the two sub-clauses even though an identical procedure has to be followed, namely, (1) of giving an opportunity of hearing to the delinquent concerned, (2) giving due notice in that behalf to the Panchayat, and (3) holding such inquiry as the competent authority deems necessary. Under Sub-section (1) of Section 49 the officer or the member concerned can be removed on the various grounds stated therein; while under Sub-section (2) the competent authority can disqualify only a person who has resigned his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he should not be removed from his membership and from his office as Sarpanch of the Panchayat and no notice whatever had been given for disqualifying the petitioner. Therefore, the second order at Annexure 'R' must be quashed and the petition to that extent must be allowed. 5. As regards the second ground raised by Mr. Vyas, there is no dispute that respondent No. 2 the District Panchayat is the competent authority constituted under Section 2(5) of the Act. There is no dispute that by a resolution of the District Panchayat powers under Section 290 and under Section 49 have been delegated to respondent No. 1 by the District Panchayat. The contention of Mr. Vyas is that the powers which vest in the competent authority to exercise such judicial or quasi-judicial functions must be exercised by the competent authority itself and such powers or functions could not be a proper subject of delegation under Section 321(4)(iii). Section 321 Clause (4) provides that subject to the general or special orders which the State Government may issue from time to time (i) a District Panchayat may delegate to a District Development Officer and (iii) a competent authority may delegate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent authority itself. Mr. Vyas also argued that Section 321(4) in terms provides that such delegation was subject to the general or special orders which the State Government may issue from time to time and in the absence of any such orders no delegation could be effectively made. The respondent No. 4 has categorically stated that no order has been issued by the State Government. The power to issue such general or special order would be only limiting the exercise of jurisdiction by the delegate but in the absence of any such general or special orders, there would be no restriction or limitation whatever. There is, therefore, no substance in the contention of Mr. Vyas that if no orders limiting such power would be issued, the delegation itself would not become effective. Therefore, the second contention raised by Mr. Vyas must fail. 6. Our decision on this second ground of Mr. Vyas also answers some part of ground No. 3 raised by Mr. Vyas because the powers of the appellate authority under Section 290 having been delegated to respondent No. 1, his jurisdiction to entertain such appeal could not be challenged on that ground. Section 290 Clause (1) provides that save ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant. On no canon of construction such a modification can be done when there is no ambiguity or absurdity or redundancy Even no two constructions are suggested by Mr. Vyas and he straightway wants us to modify the language of the statute in a manner which would really frustrate the object of this provision of providing an appeal in terms which are of the widest amplitude so that every individual or institution affected by any order of the Gram Panchayat can file an appeal against, such order or decision. Therefore, there is no substance in the third ground raised by Mr. Vyas that respondent No. 1 had no jurisdiction to entertain an appeal in respect of the order terminating the services of the 11 sweepers of the Panchayat. 7. As regards the fourth ground the relevant allegations are to be found in para 35 of the petition where it is alleged that respondent No. 1 was in the position of a complainant and as such he could not have conducted proceedings under Section 49 where he was in the position of a Judge, inasmuch as a person could not be a Judge in his own complaint or it would violate the principles of natural justice. Respondent No. 1 while meeting this allegation has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent authority may not have any personal interest as such. The proceedings held against the delinquent concerned were on the ground of misconduct and when such a deliquent was facing such serious charge against him, there would be a reasonable apprehension in his mind that the competent authority whose orders he was challenging as illegal and ultra vires could not sit as a tribunal to decide this very dispute where he would be one of the interested parties himself. On that ground Mr. Vyas argued that there would be reasonable likelihood of a bias and the competent authority could not hold scales even when the whole ground of misconduct was that the concerned delinquent had not complied with the order issued by the competent authority and the allegation was sought to be repelled by arguing before the same competent authority that his order was illegal and ultra vires. In such cases it is not sufficient that justice is done but justice must also appear to have been done. Mr. Vyas in this connection vehemently relied upon the decision in Rizvi v. Divisional Engineer Telephones, Ahmedabad, V G.L.R. 175 by the Division Bench consisting of Miabhoy J. (as he then was) and myself. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party. Mr. Vyas, therefore, argued that in the present case respondent No. 1 was so situated that he was bound to uphold his own order and he would naturally have a bias for his own order which he had passed and he could never entertain such objection by remaining complete indifferent in the matter when he was really enforcing his own order against the delinquent. Mr. Vyas also argued that in such cases the matter must be viewed objectively by considering the effect of such a tribunal on the mind of the delinquent and himself as to whether he could get justice at the hands of the tribunal who was so Situated that Be could never remain indifferent. Therefore, even if the bias was something like official bias on the facts and circumstances of the present case, Mr. Vyas argued that respondent No. 1 was disqualified from deciding the present lis and his objection went to the entire root of the proceeding and the proceeding before him must be quashed for inherent lack of jurisdiction. No doubt, this is subsequent development of the case from what it was averred in the petition itself. But the development is sought to be argued on the facts and the record itself. The learned Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that the petitioner's advocate Shri Shah was heard on merits on 24th August 1964. The petitioner has thereafter filed affidavit of the advocate Shri Shah. Mr. Shah has stated in his affidavit that in the beginning he stated before the competent authority that he was arguing on preliminary objection on the point of jurisdiction. Before starting the hearing of objection he requested the competent authority that as the copies asked for were not available, the matter should be adjourned and he had presented an adjournment application. Finally, he states that the competent authority in the oral discussion stated that if the writ petition was allowed by the High Court the proceeding under Section 49 would come to an end; otherwise toe proceeding would be heard after the decision from the Court. This version appears to be highly improbable. If it had so happened the petitioner or his advocate would never have remained silent so long till the present petition was filed. Besides, it is the settled principle as pointed out by Their Lordships of the Supreme Court in Union of India v. C.R. Varma held that where there is a dispute as to what happened before the Court or the tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the decision in Natverlal v. Dakar Co-op. S.G.P. Society 2 G.L.R. 299 by the Division Bench consisting of S.T. Desai C.J. and Bakshi J. where it was held that at the antecedent to the party aggrieved the remedy at writ would be ex debito justitiae and would be almost as a matter of course. That decision does not propound any different principle because there the question about a party being precluded by her conduct from getting a relief by a writ of certiorari even when the remedy is ex-debito justitiae is not considered. The aforesaid decision of Channel J. is approved by their Lordships of the Supreme Court in Manek Lai v. Dr. Prem Chand . In that case the Bar Council Tribunal was appointed to make an inquiry into alleged misconduct of an advocate of the Rajasthan High Court. One of the members of that Tribunal was the person who had filed his Vakalatnama on behalf of the opposite party, in these circumstances Their Lordships held the constitution of the Tribunal suffered from a serious infirmity. At page 429 it was observed that it was well settled that every member of a Tribunal that is called upon to try issues in judicial or quasi judicial proceedings must be able to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knew about the circumstances giving rise to the allegations about alleged bias and was aware of his right to challenge the presence of the member in the tribunal. Of course Their Lordships added that it was true that the waiver could not always and in every case be inferred merely from the failure of the party to take the objections and it could be inferred only if and after it was shown that the party knew about the relevant facts and was aware of his right to take the objection in question. Therefore, in that case even though the constitution of the tribunal was found to be suffering from a serious infirmity on the ground of bias attributed to the tribunal as the objection about the defective constitution had been waived by the party who had full knowledge of the relevant facts and who was aware of his right to take the objection, the conclusion reached was that the party had waived his objection deliberately and he could not be allowed to raise it before the High Court. This decision provides a complete answer to this fourth ground raised by Mr. Vyas. Even if there was any defect in the constitution by reason of the bias of the tribunal as alleged, as the petitioner had waived t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground of want of power to dismiss these 11 sweepers as the act had been done under undue haste and even when the person was conscious of his absence of power in that connection. Section 49(1) provides for removal of the Sarpanch on the ground that he has been guilty of misconduct in the discharge of his duty or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under the Act. Mr. Vyas, therefore, argued that the expression 'misconduct' in Section 49(1) must be construed in a limited way and it would be a necessary ingredient that there must be something like dishonesty or fraudulent conduct or some element of mens rea which would make such misconduct wilful misconduct which alone would justify the action under Section 49(1). Mr. Vyas argued that if misconduct was interpreted in the widest sense, the other grounds mentioned in Section 49(1) would be redundant. It may be kept in mind that the Legislature has advisedly put a limitation on the expression 'misconduct' by providing that it must be misconduct in the discharge of his duties. As to what should be the true interpretation of the term & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Supdt. C. Ry. 61 Bom. L.R. 1596, the Division Bench consisting of Tambe and Raju JJ. had considered the aforesaid test laid down in Laws v. London Chronicle Ltd. as the correct rest. The Division Bench also pointed out at p. 1598 ten acts of misconduct as has been held in Pearce v. Foster (1886) 17 C.B.D. 536, which illustrated what were the implied conditions of service. At page 1599 it was observed that the implied conditions of service would include conditions that the servant Would be trustworthy, that his acts would justify the confidence of the employer, that the employee would not act or conduct or behave himself in a way inconsistent or incompatible with the faithful discharge of his duties to the employer, that he would not behave in an insulting of insubordinate manner, that he would not habitually be negligent etc. These illustrative types of misconduct enumerated were an application of the fundamental principle that to justify dismissal the servant must contravene the express or implied conditions of his service. This decision had approved the earlier decision in the same volume by the same Division Bench in Modhosing v. The State of Bombay 61 Bom. L.R. 1537, where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the Panchayat by or under the Act and he cannot in the discharge of his duties commit an ultra vires act, as such an act would be wholly incompatible with his duty to carry out the provisions of the Act. 9. Mr. Vyas, however, vehemently argued that in so far as the second head of misconduct is concerned, there could not be any wilful defiance or insubordination because the Sarpanch honestly believed that the order of reinstatement was an illegal, an ultra vires order and he had spared no effort to get the order challenged before the proper forum. Mr. Vyas pointed out that immediately when direction or instruction was given to him after serving the operative part of the order dated 13th July 1964 the petitioner sought clarification and even as early as on 18th July 1964 he had in terms intimated to the respondent No. 1 that he was intending to file a writ petition against the same order. Thereafter for the period between 18th to 24th July 1964 various intimations were issued to him by the Taluka Development Officer and by a telegram of the District Panchayat, asking the petitioner to carry out that order of reinstatement. There is also no dispute that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hayat if not of the higher authorities for he was bound to comply with the orders only of the Gram Panchayat. There is do order of the Gram Panchayat produced. Even if there was any such order the scheme of the Act makes it clear that the petitioner is responsible for the due fulfilment of the directions issued by the superior authorities to which the Gram Panchayat is completely subordinate and especially as the original order of the Gram Panchayat itself was set aside in appeal by the competent authority under Section 290 and the new order of reinstatement was substituted in its place. Therefore, in so far as the second head of misconduct is concerned there can be no answer at all that the petitioner was not guilty of wilful defiance. If in such circumstances a servant or a subordinate officer flouts the order of the superior authority saying that the order is a nullity and not binding on him which he could certainly ignore, he must do so at his own risk. If ultimately it is found that the order of the competent authority was lawful, which the servant was bound to carry out, he must face the consequences for his wilful defiance. 10. As regards the first head of misconduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act that it is the Gram Panchayat which alone could dismiss a servant appointed by it. In view of this express provision, Section 47(1) would be subject to this express power of the Panchayat to dismiss an employee. Therefore, we cannot accept the petitioner's contention that the Sarpanch bad the power to dismiss the Panchayat sweepers for such power vested only in the Panchayat. Unless rules were made which delegated this power of the Panchayat to smaller body like a committee or its officers, the entire Panchayat was bound to perform its function or to exercise its power. The question in the present case is whether one officer of the Panchayat could terminate services of the other servants and as we have already considered this question, the question could be answered only by reference to the provisions of the Act and the rules if any in that connection. Therefore, the conclusion of the competent authority that the Sarpanch had In this case no power whatever to dismiss the servants is the right conclusion and it could not be attacked as patently erroneous. Mr. Vyas tried to argue that the other chairman of the three committees and some members present had authorised the Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was any substance in the contention of Mr. Vyas that the first head of misconduct did not amount to misconduct, the competent authority's order could be equally supported on the ground that in its, view the later misconduct of insubordination was of the grossest type. The learned Government Pleader rightly relied upon the decision of the Supreme Court in State of Maharashtra v. B.K. Takkamore . Their Lordships relied upon the earlier decision of His Lordship Shah J. in State of Orissa v. Bidyabhushan Nahapatra where it was held that if the High Court was satisfied that if some but not all of the findings of the Tribunal were 'unassailable' the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment were placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty because the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, was not justiciable. His Lordship in terms pointed out that if the order might be supported on any finding as to substantial misdemeanour for which the puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 1 was on leave from 14th July to 12th August 1964 and on the relevant date 1-8-64 the charge of the office of the District Development Officer was with Shantilal Shah who was District Village Panchayat Officer working as personal assistant to respondent No. 1. The petitioner, therefore, contended that as the relevant resolution delegated powers of the competent authority by the District Panchayat in this behalf only to the District Development Officer viz. respondent No. 1 such delegatee could not have further delegated his power to Shantilal Shah and, therefore, in any event Shantilal Shah would have no authority to issue such notice under Section 49. In the affidavit-in-reply, in para 32 respondent No. 1 has denied that Shantilal had no authority or jurisdiction to issue such notice. He had in terms stated that Shantilal was holding office of the District Development Officer and as such he had authority to issue such notice. Shantilal Shah's affidavit has also been filed and he had stated that on the date when the notice at Annexure 'N' was issued on 1-8-64 he was holding office of the District Development Officer and as such he was entitled to issue a not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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