Writ Petition No.4699 of 2016

20th April, 2017

Petitioner Counsel: Shri M.V. SAMARTH
Respondent Counsel: Shri S.P. DESHPANDE, Shri S.K. BHOYAR, Shri A.M. GHARE

Cases Cited:
Kedar Shivkumar Kale Vs. Digamber Shridhar Mhapsekar & Ors., 2007(6) ALL MR 65=2007 (4) Mh.L.J. 77 [Para 4,5]
Chandrakant Khaire Vs. Dr. Shantaram Kale and others, (1988) 4 SCC 577 [Para 4]
Purtabpore Co. Ltd. Vs. Cane Commissioner of Bihar and others, 1969(1) SCC 308 [Para 4]
M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu and others, (1999) 6 SCC 464 [Para 4]
Ravi Yashwant Bhoir Vs. District Collector, Raigad and others, 2012(2) ALL MR 962 (S.C.)=(2012) 4 SCC 407 [Para 7]

JUDGMENT

JUDGMENT :- Heard Shri M.V. Samarth, Advocate for the petitioner, Shri S.P. Deshpande, Addl. G.P. for respondent Nos.1 and 2, Shri S.K. Bhoyar, Advocate for respondent No.3 and Shri A.M. Ghare, Advocate for respondent Nos.4 to 7.

2. Rule. Rule made returnable forthwith.

3. The petitioner an elected Director and Chairman of the Agricultural Produce Market Committee, Wardha has challenged the order passed by the District Deputy Registrar Co-operative Societies directing removal of the petitioner as Member of Board of Directors, under Section 17 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act, 1963 (for short "Act of 1963") on the ground that he is found guilty of negligence and misconduct in the discharge of his duties.

The petitioner has also challenged the order of respondent No.1 Director of Marketing, dismissing his appeal as not maintainable.

The learned Advocates for the petitioner and the respondents are ad idem on the point that the appeal under Section 52B of the Act of 1963 would not be maintainable as the order under Section 17 of the Act of 1963 is passed by the District Deputy Registrar Co-operative Societies, the powers having been delegated to him by the State Government by the notifications issued by the Agricultural and Cooperation Department on 2nd April, 1980 and on 21st March, 1984.

4. The order passed by the District Deputy Registrar directing removal of the petitioner is assailed on the following grounds:

(i) As per Section 17 of the Act of 1963 the State Government may remove any Member, however, for that there has to be a recommendation of the Marketing Committee supported by a resolution by at least 10 Members present and voting at the meeting, however, in the present case no legal and valid resolution is passed on the basis of which the decision to remove the petitioner could be taken.

(ii) According to the respondents, resolution is passed in the meeting of the Marketing Committee held on 29th March, 2016 for removal of the petitioner, however, in the notice issued for calling this meeting the subject of removal of the petitioner as per Section 17 of the Act of 1963 was not on the Agenda.

(iii) Though it is alleged by the respondents that the subject of removal of the petitioner was taken up in the meeting held on 29th March, 2016 with the permission of the Chairman of the meeting i.e. petitioner, there is nothing on record to substantiate that the Chairman of the meeting i.e. the petitioner had granted permission to consider the same as alleged

(iv) When the subject of removal of petitioner was discussed, the Chairman of the meeting i.e. petitioner had not granted permission to take up the subject pointing out that an enquiry against him was pending before the Chief Minister and, therefore, the subject cannot be taken up until the enquiry is complete.

(v) The resolution shows that the subject of removal of petitioner was taken up after the petitioner left the place, adjourning the meeting.

(vi) The resolution shows that the subject was taken up for consideration without there being any Chairman of the meeting.

(vii) That the charges on the basis of which the petitioner is sought to be removed were never communicated to the petitioner as is clear from the show cause notice dated 2nd May, 2016.

(viii) The petitioner cannot be removed individually on the basis of the charges levelled against him as the alleged charges are of misconduct by the Market Committee and not by the petitioner individually.

(ix) The impugned order is an outcome of malice in law and as per dictates of superior Authority and this is evident from the communication issued by the Director of Marketing on 11th April, 2016.

(x) The issue about removal of Member of Board of Directors who is also Chairman of the Marketing Committee is an important issue and if the subject about his removal is not on the Agenda that subject cannot be taken up in the meeting without permission of the Chair.

To support the above submissions, the learned Advocate for the petitioner has relied on the following judgments:

(i) The judgment given in the case of Kedar Shivkumar Kale V/s. Digamber Shridhar Mhapsekar & Ors. reported in 2007(4) Mh.L.J.77 : [2007(6) ALL MR 65],

(ii) The judgment given in the case of Chandrakant Khaire V/s. Dr. Shantaram Kale and others reported in (1988) 4 SCC 577,

(iii) The judgment given in the case of the Purtabpore Co., Ltd. V/s. Cane Commissioner of Bihar and others reported in 1969(1) SCC 308 and

(iv) The judgment given in the case of M.I. Builders Pvt. Ltd. V/s. Radhey Shyam Sahu and others reported in (1999) 6 SCC 464.

5. The learned advocate for the respondent Nos.4 to 7 has argued that the submissions made on behalf of the petitioner about the alleged illegalities in the conduct of meeting are misdirected. It is argued that Section 17 of the Act of 1963 does not require that at least 10 Members shall pass resolution for removal of any Member and the term "voting" used in Section 17 of the Act of 1963 does not contemplate voting in strict sense or as used in common parlance but the Legislature by using the expression "voting" only means that at least 10 Members should be present in the meeting and express their opinion regarding removal of the Member of the Committee. Relying on the minutes of meeting, it is argued that the petitioner who was Chairman at the meeting permitted the discussion on the subject of his removal and the stand which is subsequently taken that the subject was not permitted to be taken up and the resolution is illegally written is an afterthought. From the minutes of the meeting, it is pointed out that the Vice-Chairman of the market committee was present in the meeting and as per byelaw No.39(1), after the petitioner (who was Chairman at the meeting) left the meeting, the Vice-Chairman was the Chairman at the meeting. It is further submitted that the market committee consisted of 18 elected Members, out of which one Member is already removed before the meeting in question, and after the petitioner left the meeting all 16 Members were present and 15 Members supported the motion of removal of the petitioner as Member of the Board of Directors and Chairman of the Market Committee.

It is submitted that once the meeting started and the subjects were taken up for discussion, it was not open for the petitioner to abruptly abandon the meeting and leave the premises and as the petitioner acted in illegal manner, continuation of the meeting cannot be said to be illegal. It is argued that the contention of the petitioner that he had adjourned the meeting is not acceptable in law and an improper adjournment by the Chairman does not affect the existence of meeting and its continuance and the decision taken in the meeting is legal and valid. It is argued that the authority to adjourn the meeting vests in the Chairman, however, it can be used and meeting can be adjourned only if there is such disorder in the meeting that transaction of any business is impossible and the circumstances should not create a doubt and should not give an impression that the action of the Chairman in adjourning the meeting is tainted with ill-motive or bias. It is submitted that in the present case though the petitioner claims that in his capacity as Chairman of the meeting he had adjourned the meeting after transaction was complete, the petitioner has not even pleaded that there was such disorder in the meeting that it was not possible to transact any business. The submission is that the meeting was called, though the subject of removal of the petitioner as Member of the Board of Directors and Chairman of the Market Committee was not on the Agenda it was taken up with the permission of the Chair, the petitioner abruptly left the meeting, the meeting continued and a legal and valid decision was taken by 15 Members of the Market Committee regarding removal of the petitioner. To support the submission, reliance is placed on Chapter 7, Page Nos.86, 87 and 88, 4th Edition of the "The Law of Meetings, Their Conduct and Procedure", written by Sir Sebag Shaw and Judge Dennis Smith.

The judgment given by this Court in th case of Kedar Shivkumar Kale V/s. Digamber Shridhar Mhapsekar & Ors., [2007(6) ALL MR 65] (Supra) is distinguished urging that in that case it was held that subject regrading removal of the Chairman of the Council was an important subject and as it was not on Agenda it could not have been taken up in the meeting, because in that case the Court found that out of 30 Members only 24 Members were present in the meeting and out of them only 13 Members voted for removal of the Chairman of the Council. It is submitted that in the present case, 15/16 Members of the Market Committee voted for removal of the petitioner.

It is pointed out from the impugned order that the District Deputy Registrar has considered the explanation given by the petitioner in his reply and after considering the documents on record has found that the petitioner is guilty of misconduct in discharging his duties and his conduct as Chairman of the Market Committee has been disgraceful. It is submitted that the impugned order is passed on proper appreciation of the material on record and it need not be interfered in the extraordinary jurisdiction.

6. The learned Additional Government Pleader supported the impugned order.

7. In the judgment given in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others reported in (2012) 4 SCC 407 : [2012(2) ALL MR 962 (S.C.)] the Hon'ble Supreme Court has considered the issue of removal of elected Member on the ground of proved misconduct. Paragraph Nos.30 to 37 of the above referred judgment are relevant, which are reproduced below :

"30. There can also be no quarrel with the settled legal proposition that removal of a duly elected Member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide: Indian National Congress (I) v. Institute of Social Welfare]. This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab and Union of India v. H.C. Goel. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer.

31. Undoubtedly, any elected official in local selfgovernment has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a fullfledged inquiry, it is difficult to imagine how an elected officebearer can be removed without holding a fullfledged inquiry.

32. In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a fullfledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required.

33. This Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma v. State of Punjab and observed that removal of an elected officebearer is a serious matter. The elected officebearer must not be removed unless a clearcut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the officebearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come under any political pressure.

34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected officebearer sought to be removed.

35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu & Ors. v. Debi Ghosal Mohan Lal Tripathi v. District Magistrate, Rae Bareily & Ors. and Ram Beti v. District Panchayat Raj Adhikari.

36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected officebearer but his constituency/electoral college is also deprived of representation by the person of their choice.

37. A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like 'No Confidence Motion', etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period."

If the present case is considered in the light of the proposition laid down in the above judgment, I find that though there is a dispute about the legality and validity of the minutes of the meeting regarding removal of the petitioner, the respondents have not been able to point out that the alleged misconduct or disgraceful conduct for which the petitioner is removed, was proved earlier and procedure for removing the petitioner was followed strictly adhering to the principles of natural justice as laid down by the Hon'ble Supreme Court in the judgment given in the case of Ravi Yashwant Bhoyar, [2012(2) ALL MR 962 (S.C.)] (supra).

The notice given to the petitioner on 2nd May, 2016 does not make out any specific charges enabling the petitioner to defend. Though it is argued that the documents supplied alongwith the notice were sufficient to make out the charges and the petitioner was aware about the charges against him, as is clear from the reply given by the petitioner, fact remains that neither the District Deputy Registrar pointed out specific charges to the petitioner nor the impugned order shows that the petitioner alone is liable for any irregularity or illegality. The learned advocate for the petitioner has rightly submitted that the charges tried to be made out against the petitioner are of general nature and are regarding some irregularities and illegalities in functioning of the entire Market Committee.

8. I find that the extreme step of removing the petitioner from the elected office is taken without conducting proper inquiry adhering to the principles of natural justice and, therefore, the impugned order is unsustainable. As the impugned order is found to be unsustainable on this point, the other arguments made are not adverted to.

9. Hence, the following order:

The impugned order passed by the District Deputy Registrar removing the petitioner under Section 17 of the Agricultural Produce Marketing (Development and Regulation) Act, 1963 is set aside.

Rule made absolute accordingly.

In the circumstances, the parties to bear their own costs.

Ordered accordingly.