High Court
Legal Reasoning
1 WP-1726,7-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.1726 OF 2024Salim Khan Mahemood Khan Pathan,Age 57 years, Occu. Agril.,R/o. At Post Ajintha, Tq. Sillod,Dist. Aurangabad..Petitioner(Original Applicant/Complainant)Versus1.The State of MaharashtraThrough its Hon’ble Minister,Rural Development Department,Mantralaya, Mumbai- 400 0322.The Divisional Commissioner, AurangabadTaluka and District Aurangabad3.The Additional Divisional Commissioner,Aurangabad, Taluka and District Aurangabad4.The Chief Executive Officer,Zilla Parishad, AurangabadTaluka and District Aurangabad5.The Block Development Officer,Panchayat Samiti, Sillod,Taluka and District Aurangabad6.The Extension Officer, Panchayat Samiti, Sillod,Taluka Sillod, District Aurangabad7.The Village Development Officer,Grampanchayat Office, Ajintha,Taluka Sillod, District Aurangabad8.Shaikh Nazir Ahmed Shaikh Mohamad Ali,Age 62 years, Occu. Sarpanch,R/o. At Post Ajintha, Taluka Sillod,District Aurangabad ..Respondents (Respondent No.8 is original respondent No.1)…
Legal Reasoning
2 WP-1726,7-24.odtWITH WRIT PETITION NO.1727 OF 2024Salim Khan Mahemood Khan Pathan,Age 57 years, Occu. Agril.,R/o. At Post Ajintha, Tq. Sillod,District Aurangabad.. Petitioner (Original Applicant/Complainant)Versus1.Shaikh Nazir Ahmed Shaikh Mahammad Ali,Age 62 years, Occu. Sarpanch,R/o. At Post Ajintha, Taluka Sillod,District Aurangabad2.The State of MaharashtraThrough its Hon’ble Minister,Rural Development Department,Mantralaya, Mumbai3.The Divisional Commissioner, AurangabadTaluka and District Aurangabad4.The Additional Divisional Commissioner,Aurangabad, Taluka and District Aurangabad5.The Chief Executive Officer,Zilla Parishad, AurangabadTaluka and District Aurangabad6.The Block Development Officer,Panchat Samiti, Sillod,Taluka Sillod, District Aurangabad7.The Extension Officer, Panchayat Samiti, Sillod,Taluka Sillod, District Aurangabad8.The Village Development Officer,Grampanchayat Office, Ajintha,Taluka Sillod, District Aurangabad ..Respondents (Original Respondents)Mr. Ravindra Vitthal Gore, Advocate for Petition in both Petitions;Mr. A. M. Inamdar, Advocate for Respondent No.8 in W.P.No.1726 of2024 and Respondent No.1 in W.P.No.1727 of 2024; 3 WP-1726,7-24.odtMr. S. C. Swami, Advocate holding for Mr. S. R. Erande, Advocate for Respondents No.4 to 6 in W.P.1726 of 2024 and Respondents No.5 to 7 in W.P.No. 1727 of 2024;Mr. S. N. Kendre, A.G.P. for Respondent/StateCORAM :S. G. MEHARE, J.Reserved On : 26.04.2024Pronounced On : 02.05.2024ORDER :-1.The petitioner, in both petitions, has impugned the order ofthe Hon’ble Minister passed in case No. VPM-2023/Pan.Kra.10/PanRa-6, dated 23.01.2024. 2.The brief facts of the cases are that the petitioner is a voterof the village panchayat, and respondent No.1 is the electedmember and Sarpanch of the Village Panchayat. He made acomplaint against respondent No.1 under section 39(1) (i) of theMaharashtra Village Panchayats Act, 1959 (“Act, 1959”, for short),alleging that respondent No.1, by misusing and exceeding hispowers issued the death and birth certificates and successioncertificates to the villagers. It is a misconduct in the discharge ofhis duties, his acts are disgraceful conduct and negligence.3.On the complaint of the petitioner, respondent No.3,Divisional Commissioner, directed the Deputy Chief ExecutiveOfficer to hold an inquiry as contemplated in proviso to section 39of the Act, 1959. He further directed to the Block DevelopmentOfficer to hold inquiry. The Block Development Officer directed the 4 WP-1726,7-24.odtExtension Officer (Panchayat) to hold inquiry. He served a noticeupon respondent No. 1, gave him hearing and recorded thestatements of the concerned. He submitted his report dated11.01.2022 and opined that respondent No. 1 is found guilty ofissuing death certificates without having powers and entries in thoriginal Birth and Death Register.4.Respondent No. 2 issued a notice to respondent No 8/originalrespondent No.1. He appeared and filed his written statementdenying the report and allegations. He had a case that thepetitioner did not approach before the Court with clean hands.The petitioner lodged a false complaint for his personal gain. Hewas blackmailing them. He had no right to file petition. Excepthim, nobody complained. There were no complaints against him.One villager had requested to issue the certificate having no entryof death of his parents. However, inadvertently, the Clerk of theVillage Panchayat instead of issuing a certificate of having no entryin the Birth and Death Register, issued him a death certificate. Heobtained his signature hastily. After realizing the mistake, hecancelled the said certificates and the Secretary under Section 15of the Registration of Births and Deaths Act, 1969 also cancelledthose certificates. The Deputy Superintendent of Land Records wasalso informed, accordingly. The Villager to whom the deathcertificate was issued also sworn in an affidavit. Since the mistakewas corrected, it could not be said that he has misused his powers 5 WP-1726,7-24.odtand it is a misconduct. The Chief Executive Officer did not give himan opportunity to explain during the inquiry and it was an ex partereport. 5. Thereafter, respondent No.2, by his order dated 07.05.2022again called report of respondent No. 4. He hold a fresh inquiry. Heheard the petitioner and respondent and submitted his report torespondent No.2 on 12.07.2022. He recorded the findings thatthere were no death entries of the villagers in death register. Asper Rule 8 of the Maharashtra Registration of Births and DeathsRules, 2000, Gramsevak is a Registrar for villages and he had thepowers to issue such certificates. He opined that it is clear that theSarpanch has misused his position by issuing the death certificatesto the villagers under his signature and stamp, therefore for theabove reasons the action should be taken against the Sarpanchunder Section 39(1)(i) of the Act, 1959. 6.Respondent No. 2 found it necessary to have the statementof the Clerk of the village panchayat. Hence, by order dated27.09.2022, respondent No.2 again directed respondent No.4 tohold a fresh inquiry. 7. Once again the Deputy Chief Executive Officer directed to theBlock Development Officer and he directed the Extension Officer tohold an inquiry. The Extension Officer made inquiry for the thirdtime. One more allegation of issuing the heirship certificate was 6 WP-1726,7-24.odtmade at this time. He recorded the statements of the concernedpersons and submitted his report dated 17.01.2023. On his report,the Block Development Officer opined that according to section 15of the Registration of Birth and Deaths Act, 1969, if the entry isrecorded in the register, then only such entry can be changed. TheSarpanch is found guilty of issuing the death certificates withouthaving entries in the register and without authority.8. Respondent No.4 again made a fresh inquiry on 24.04.2023and heard the respective parties through their counsels. At thistime, instead of recording the fact findings, he submitted a reportwith suggestions and a warning to the Sarpanch about thecertificates he had issued that; henceforth, he should take care notto repeat the same mistake again in future. He stated in his reportthat he gave a different opinion in the form of suggestions withoutrecording the findings. He submitted his report contending that thedeath certificates issued by the Sarpanch should be cancelledthrough the Village Panchayat. In addition to the warning to theSarpanch, he opined that considering the above things, he thinksthat no action under section 39(1) of the Act, 1959 is necessaryagainst the Sarpanch. On his report, respondent No.1 passed anorder on 05.01.2024, held respondent No.1 guilty of misconductand declared him disqualified to hold the post of Sarpanch.However, by the impugned order, the Hon’ble Minister set asidethe order of respondent No.2. 7 WP-1726,7-24.odt9. Respondent No.1, the Sarpanch, had come with a positivecase that he had issued the death certificates and heirshipcertificate dated 26.04.21. However, instead of in form 10-B, form6 was issued inadvertently due to the mistake of the Clerk of theVillage Panchayat. Realizing the mistake, the death certificatesdated 26.04. 21 were cancelled under section 15 of theRegistration of Births and Deaths Act. The concerned Clerk alsosubmitted supportive reply.10.The learned counsel for the petitioner vehemently arguedthat respondent No.1 is a second time Sarpanch of VillagePanchayat. He was well aware of his power and duties. He hadfaced the inquiry before the Chief Executive Officer. That time, herealized his mistake and rectified the same. However, thereafteralso, he continued issuing the death/birth certificates and heirshipcertificates to the villagers. The villagers were using thosecertificates for recording their name in revenue record and otherplaces. Therefore, it cannot be said that he acted inadvertently. Onthe contrary, after the inquiry was held against him, he and othermembers passed a resolution on 27.09.2022. The second report ofthe Chief Executive Officer was speaking. The specificobservations were recorded that even having no power he hadissued the death/birth certificates. Respondent No.4/ the ChiefExecutive Officer has to record the fact finding only. The law does 8 WP-1726,7-24.odtnot provide that the Chief Executive Officer has to propose theaction. Therefore, the findings of the Hon’ble Minister are perverse.He further argued that respondent No.1 is guilty of misconduct indischarge of duties and persistently remiss in discharge of hisduties. Considering his misconduct, he ought to have beenremoved from the office of Village Panchayat as a Member and theSarpanch. He also argued that Hon’ble Minister, on the identicalfacts, took a view that issuing such certificate is a misconduct. Heplaced the copy of the said order dated 29.03.2023. He relied onthe cases of (i) Salimbi Mubarak Tamboli Versus State ofMaharashtra through Secretary and Others, 2019(3) Bom.C.R. 572, (ii) State of Punjab Versus Ram Singh Ex-constable, 1992 AIR (SC) 2188, and prayed to allow bothpetitions. 11.Per contra, learned counsel for contesting respondent No.1vehemently argued that the certificates were inadvertently issueddue to the mistake of the Clerk. They were rectified and thenecessary authorities were informed. The complainant has nolocus to file the complaint. Though the resolution dated27.07.2022 conferring powers to respondent to issue thebirth/death certificates was passed, it was never implemented oreffected. Thereafter, many villagers have obtained the orders fromthe Court. The acts of respondent No.1 were not deliberate, hisobject was to make the life of the villagers convenient and 9 WP-1726,7-24.odtcomfort. He did not gain personally. His acts are not misconduct asrequired under Section 39(1) of the Act, 1959. 12.To bolster his arguments, he relied on the case of AnkushAchyutrao Raut Versus State of Maharashtra, AIR OnLine2021 Bombay 1963, (ii) Rajendra Radhakishan Raut VersusState of Maharashtra, AIR OnLine 2022 Bombay 1024 and(iii) Dnyaneshwar Sudhir Mathkar vs. State of Maharashtraand others, AIR Online 2023 Bombay 569. 13. The question is, whether the acts of respondent No.2 aremisconduct in discharge of his duties, therefore, he is liable to beremoved from the office as a Member and the Sarpanch of theVillage Panchayat. 14.In the case of Salimbi (supra), the action was initiated forfailing to hold the monthly meetings of the Village Panchayat. Thecase of State of Punjab (supra) was for the misconduct againstthe public servant. 15.In the case of Ankush (supra), the facts were that thepetitioner had granted development permission of the plots by aresolution. However, he and the members of the Panchayat hadrectified the mistakes committed by them. Under these premise,the Court has discussed the term ‘misconduct’ and held thatneither the Sarpanch nor the Village Panchayat was guilty ofmisconduct. 10 WP-1726,7-24.odt16.In the case of Rajendra (supra), the allegations werelevelled about the illegality in the appointment of Gram RozgarSevak. He did not supply the information to the villagers howmuch funds are received from the Grampanchayat under 14thFinance Commission and about the works undertaken from thesaid funds, the details of disbursement of general funds were notprepared and the Sarpanch and other Officials did not supply theinformation. He has committed a huge misappropriation withVillage Development Officer in implementing Ramai Gharkul AawasYojana and other similar allegations about the misappropriation ofthe funds. 17.In the case of Dnyaneshwar (supra), the allegations werethat he was issuing the succession certificate beyond authorityvested in him. In the said case, the same Hon’ble Minister took aview that it is a misconduct. However, the High Court set asidethat order holding that a notice to Panchayat as contemplatedunder Section 39 of the Act was not issued. However, liberty wasgranted to the respondents to initiate fresh proceedings underSection 39(1) of the Act. 18. In the case laws relied upon by both sides, the term‘misconduct’ has been elaborately discussed. In the case ofRajendra (supra), the Co-ordinate Bench of this Court, inparagraph No.27, has discussed the term ‘misconduct’. The word 11 WP-1726,7-24.odt“misconduct” has to be understood as transgression of someestablished and definite rule of action, a forbidden act, adereliction of duty, unlawful behavior, willful in character, improperor wrong behavior. The word “misconduct” in normal parlance isunderstood as unacceptable and improper behavior ormismanagement, especially culpable neglect of duties. 19.The Webster’s dictionary defines the word “misconduct” asdeliberate violation of law or standard, especially by thegovernment official, willful in character. Misconduct in office has been defined as: “Any unlawfulbehavior by a public officer in relation to the duties of his office,willful in character. Term embraces acts which the office holderhad no right to perform, acts performed improperly, and failure toact in the face of an affirmative duty to act.” 20.In the case of Ankush (supra), the Co-ordinate Bench of thisCourt reiterated the definition of term “misconduct” from Black’sLaw dictionary, 6th Edition and “misconduct in office”. However, inparagraph No.11, it has been observed that the definition of“misconduct” reproduced above, sounds and implies a wrongfulintention and it being, relative term, it is to be construed withreference to the subject matter. It literally means, wrong conductor improper conduct or transgression of some established anddefinite rule of action. Thus, expression “misconduct” being used 12 WP-1726,7-24.odtin Section 39(1)(i) of the Act is to be understood to mean an actwhich must be willful in character and not a negligence orcarelessness. In the facts of the case, it has been observed that atthe most the act of Panchayat would be an act, “forbidden by law”or “irregular exercise” of powers. 21.Section 39(1)(i) and Sub-section (2) of the Act should beinterpreted or constitute with reference to the subject matter andin the context of the facts. 22. The observations of above case were clear that there shouldbe a wrongful intention in discharging the duties. In the case athand, when the death certificates were issued to the villagers,those were rectified. Respondent No.2 must have felt that it is notappropriate to issue certificates without resolution, so it seemslikely that the panchayat may have passed such resolution.Respondent No.2 has the case that the Panchayat was acting inthe interest of the villagers and making their life convenient. Thereis no evidence on record to believe that the certificates wereissued for otherwise gain from the villagers. The heirshipcertificate allegedly issued by respondent No.2, in fact, is not aheirship certificate, it is just giving information who are the legalheirs of the villager whom it was issued. It had no binding force oflaw.
Decision
13 WP-1726,7-24.odt23.Reading the term “misconduct” in the context of the case, itcould be said that it was not an intentional act of respondent No.2.At the most, it could be an act “forbidden by law” or “irregularexercise of powers”. Respondent No.2 has made a statement thatthough the resolution has been passed conferring him the power,he never exercised it. The petitioner has no any contra evidence.Considering the facts, at the most, it is a case of overenthusiasmof respondent No.2.24.In view of the above discussion, the Court is of the view thatthe act of respondent No.1 considered with reference to thesubject matter, it was not done with wrongful intention and for anypersonal gain. Therefore, he cannot be held guilty of misconductprescribed under Section 39(1)(i) of the Act, 1959.25.The submissions of the learned counsel for the petitioner arecorrect that the Chief Executive Officer is not supposed to suggestthe penalty. He has to barely make inquiry and submit the factfinding report. The reasons for conclusion in the impugned orderare not legally correct. However, the decision in favour ofrespondent No.1 holding him not liable to be disqualified is to beaccepted. 26.The aforesaid discussion leads this Court to conclude thatthere is no substance in the writ petitions. Hence, the following 14 WP-1726,7-24.odtorder:-ORDERi)Both Writ Petitions stand dismissed.ii)No order as to costs. ( S. G. MEHARE ) JUDGErrd