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Sangita v/s The Minister, State of Maharashtra, Urban Development Department, Mantralaya & Others


    Writ Petition No. 638 of 2021

    Decided On, 17 August 2021

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE N.B. SURYAWANSHI

    For the Petitioner: Amit Choube, Advocate. For the Respondents: R1 & R2, K.L. Dharmadhikari, AGP, R13 & R16, A.V. Band, Advocate.



Judgment Text

1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Advocates for the parties.

2. This petition takes exception to the order dated 27/01/2021, passed by the respondent No.1 thereby declaring the petitioner to be disqualified under Section 55A and 55B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 [for short ‘the Act of 1965'] from continuing as President of Nagar Parishad, Sindhi (Railway), Tah. Seloo, Distt. Wardha and also disqualifying her as Member of the Nagar Parishad for a period of six years from the date of the order.

3. Petitioner is the elected member and President of Nagar Parishad, Sindi (Railway), Distt. Wardha and respondent Nos.4 to 18 are the elected members of the said Nagar Parishad. The respondent Nos. 4 to 18 filed a complaint against the petitioner before the Collector under Sections 55(1), 55A and 55B of the Act of 1965, levelling following allegations/charges:

(i) Failure on the part of the petitioner to hold general meetings every month amounts to violation of provisions of Section 81(1) of the Act of 1965.

(ii) The petitioner failed to sign the proceedings of the meeting within seven days and failed to publish it on the website of the Nagar Parishad and Director of Municipal Administration. Thus, the petitioner has violated provisions of Section 81(12) of the Act of 1965.

(iii) By not holding one standing committee meeting every month, the petitioner has violated Section 82(1) of the Act of 1965.

(iv) In general meetings, discussion on the subjects and the written opinion given by the members is not recorded in the proceedings. Therefore, the President is misusing the post.

(v) Nagar Parishad had called a general meeting on 02/02/2018. On that day out of seventeen elected members and two co-opted members, only four members and the President were present for the meeting. The meeting could not have commenced due to insufficient coram. The petitioner illegally adjourned the meeting and held it after one hour though the Chief Officer pointed out to the petitioner that due to insufficient coram, the meeting cannot commence. Inspite of that, the petitioner held the meeting and passed resolutions. Thus the petitioner has misused her post.

(vi) The tenure of Rajesh Zade, the then contractual engineer ended on 03/12/2016. In spite of knowing this, the President without giving any extension, illegally got work done from him and paid him salary.

(vii) In absence of the budgets of 2016-17, 2017-18 having been sanctioned by Collector, the petitioner, in the capacity of President, incurred expenditure and signed the note sheets and form no.64 of the Accounts Code.

4. The Collector, on receipt of the complaint, as per procedure, constituted an enquiry committee headed by District Administration Officer to enquire into the allegations levelled in the complaint. The enquiry committee submitted its report to the Collector to the effect that the petitioner failed to hold general meetings and standing committee meetings within stipulated time. The petitioner did not finalize the proceedings within stipulated time and the petitioner failed to record the proceedings in the meeting. The petitioner conducted meetings in absence of coram and passed resolutions. The enquiry committee therefore, recorded finding that as a President, the petitioner has committed misconduct and illegalities and there is dereliction of duty on the part of the petitioner. The Collector accepted the enquiry report and recommended to the State Government to take action against the petitioner and accordingly forwarded proposal to that effect on 10/01/2020 to respondent No.1.

5. On receipt of the proposal of the Collector, the respondent No.1 called upon the petitioner to submit her reply to the complaint, Collector's recommendation and the enquiry report. The petitioner submitted her reply. The petitioner was thereafter asked to appear for hearing through video conferencing.

According to the petitioner during the pendancy of the proceeding before respondent No.1, respondent Nos. 7, 12 and 14 filed an application on affidavit that they do not want to contest the enquiry and they want to withdraw the complaint. However, the respondent No.1 has not considered that application. The prayer of the petitioner for physical hearing of the matter was not accepted by the respondent No.1 and online hearing was given to the petitioner. The respondent No. 1 thereafter passed impugned order under Sections 55A and 55B of the Act of 1965, thereby disqualifying the petitioner. This order is impugned by the petitioner.

6. Heard the learned Advocate for the petitioner, the learned Assistant Government Pleader and the learned Advocate for the respondents.

7. The learned Advocate for the petitioner strenuously assailed the impugned order submitting that non holding of the meetings by the petitioner can be said to be a technical misconduct. There is no material on record to show that the petitioner intentionally failed to hold the meetings within stipulated time. In support of this submission, he relied on the decision in Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, (2012) 4 SCC 407. He further submitted that the disqualification order is a sort of punishment imposed on the petitioner which is shockingly disproportionate for a misconduct of technical nature. He therefore, submitted that the impugned order is liable to be quashed and set aside by allowing the petition.

8. Per contra the learned Advocate for respondent nos. 13 and 16 submitted that considering the enquiry report and the recommendation of the Collector, the respondent No.1 was perfectly justified in passing the impugned order. The order is passed after giving due opportunity of hearing to the petitioner. Considering the pandemic situation, it was not possible to give physical hearing to the petitioner. He supported the order stating that the misconduct of the petitioner is proved during enquiry. Therefore, the respondent No.1 was right in disqualifying the petitioner. He urged that the misconduct on the part of the petitioner is not of a technical nature. He further submitted the petitioner is also removed under Section 16 of the Act of 1965 and Writ Petition No.531/2021 is filed by the petitioner challenging the same. On 15/02/2021, a new President is elected and has taken the charge. Hence the petition may be dismissed.

9. The learned Additional Government Pleader adopted the arguments of respondents. He further submitted that a reasoned order is passed by the respondent No.1 on the basis of enquiry report and after giving opportunity of hearing and the petitioner has not made out any case to interfere in the findings of facts recorded by the respondent No.1. He therefore, submitted that the petition is devoid of any merit and the same may be dismissed.

10. In reply, the learned Advocate for the petitioner submitted that the resolutions passed in the meeting dated 02/02/2018 were challenged by the respondents under Section 308 of the Act of 1965 before Collector and the Collector has rejected the said challenge.

11. Heard the learned Advocates and the learned Assistant Government Pleader at length. I have perused the documents placed on record.

12. It is a matter of record that while working on the post of President, the petitioner has failed to conduct stipulated general meetings and standing committee meetings. In the general meeting dated 02/02/2018, there was no coram. Only four members were present. The petitioner adjourned the said meeting. Though the chief officer brought to the notice of petitioner that in absence of sufficient coram the meeting cannot be commenced and hence the meeting cannot be held still, the petitioner held the meeting at 12.30 without sufficient coram and passed resolutions thereby violating the provisions of Section 81(9) of the Act of 1965, which stipulates that if the coram is not there, the meeting has to be cancelled. During the course of enquiry, the petitioner was given opportunity of hearing and the enquiry committee has recorded its finding against the petitioner on the basis of record.

13. Perusal of the impugned order reveals that the respondent No.1 has come to the conclusion that as per Section 81(1), the petitioner was expected to conduct twenty general meetings between February, 2018 to September, 2019. However only twelve meetings were held. As per Section 81(12) the president is expected to sign the proceedings within seven days and upload the same on the official website of the Nagar Parishad and the Directorate. On demand by Ramesh Uikey, Member of the Nagar Parishad, the copies of the proceedings were not given to him as the same were not written and signed by the petitioner even after seven days. In terms of Section 82(1), the Standing Committee meetings have to be held every month. The petitioner took only nine meetings between April, 2017 to September, 2019 when sixteen meetings were required to be held. On 02/02/2018 general meeting was held by the petitioner which was attended by only four members. Coram of 1/3rd members is necessary for holding general meeting. The Chief Officer brought this to the notice of the petitioner that since there was no coram the meeting could not commence. However, inspite of that the petitioner caused the meeting to be held at 12.30 and in the presence of four members passed resolution, in contravention of Section 81(9). Considering the misconduct of the petitioner, the respondent No.1 disqualified the petitioner.

14. Findings of the fact recorded by the respondent No.1 are based on the enquiry report as well as the relevant provisions of the Act of 1965. There is no substance in the contention of the petitioner that violation of the provisions of the Act of 1965 was not intentional. The petitioner has failed to substantiate her contention that the said violation was not intentional.

15. The next submission of the petitioner that the misconduct of the petitioner, at the most, can be said to be of technical nature, is also unacceptable. Failure on the part of the petitioner to hold eight general meetings and nine standing committee meetings, by no strech of imagination, can be said to be a misconduct of technical nature. In Ravi Yashwant Bhoir (supra), there was failure on the petitioner to conduct one meeting within stipulated time, that was held to be a technical misconduct by the Apex Court. In the instant case, as noted above the petitioner failed to hold eight general meetings and nine standing committee meetings hence the ratio in this rulling does not apply to the case of the petitioner.

16. The contention of the petitioner that the disqualification of the petitioner amounts to a punishment which is shockingly disproportionate to her misconduct is also devoid of any substance. One of the grounds for disqualification of the petitioner is not writing and signing the proceedings within seven days and thereby violating Section 81(12) of the Act of 1965. The more serious misconduct on the part of the petitioner was of holding meeting on 02/02/2018 without coram and passing resolution in the same despite the Chief Officer pointing out to the petitioner that the meeting cannot commence in absence of coram. There are seventeen elected members and out of them only four were present for the meeting. The said action of the petitioner was in utter violation of Section 81(9).

17. Even if the contention of the petitioner that respondent Nos. 7, 12 and 14 submitted an application before respondent No.1 claiming that they want to withdraw the complaint against the petitioner is accepted still the complaint of 14 members against the petitioner survives. It is thus clear that the petitioner has lost the

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confidence of the majority of members of the Nagar Parishad. 18. Though the petitioner tried to contend that the resolutions passed in the meeting dated 02/02/2018 were challenged under Section 308 of the Act of 1965, before the Collector and the Collector rejected the said challenge. However perusal of the order (Annexure-ix) passed by the Collector shows that the said challenge was rejected on the ground of limitation and not on merits. Therefore, there is no merit in the said argument. 19. Before disqualifying the petitioner prescribed procedure was followed. The petitioner was heard during enquiry. While passing the impugned order principles of natural justice were followed by respondent No.1. The charges of misconduct are duly proved against the petitioner. While disqualifying the petitioner, relevant provisions and material on record was considered by respondent No.1 and a reasoned order is passed. The petitioner appears to have lost confidence of the majority of members of the Nagar Parishad. The petitioner is already removed and new President is elected in her place. There is no merit in the petition and this is not a fit case to exercise extraordinary writ jurisdiction. 20. For the aforestated reasons, the writ petition is dismissed with no order as to costs. Rule is discharged.
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