“It must be borne in mind that severe the punishment, greater has to be the care taken”: Bombay High Court
It must be borne in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed, this was emphasised in the recent case of  Rajendra Radhakisan Raut v. The State of Maharashtra And Others [WRIT PETITION NO.11717 OF 2021], listed in the Bombay High Court, Bench at Aurangabad. The judgement was pronounced on 10th  February, 2022, and the said proceedings were presided by Justice SMT. Bharati H. Dangre. The facts, as presented before the court of law, are as follows. A move was initiated for removal of its Sarpanch by alleging corruption, gross negligence and misconduct in discharge of his duties and his removal was sought by one of the villager/voter, who succeeded in his venture, but in an appeal proceedings, when the Sarpanch is restored to his office, he has approached this Court by filing the present Writ Petition. The election was to the post of the Sarpanch of Village Panchayat Nalwandi, Taluka and District Beed. During the proceedings, many landmark judgments of M.M. Malhotra vs. Union of India, [2005 (8) SCC 351], Bhanumati vs. State of U.P., [2010 (12) SCC 1 : AIR 2010 SC 3796], State of Punjab vs. Baldev Singh, [1999 (6) SCC 172] were quoted in order to put emphasize on the pertinent case. The ruling in the case of State of Punjab vs. Baldev Singh, [1999 (6) SCC 172] was emphasised. It was held that “It must be borne in mind that severe the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.” The Court, after hearing both the sides, analysing facts, and considering a perusal of all evidences, emphasised the ruling in the case of  Ravi Yashwant Bhoir vs. District Collector, Raigad and others [(2012) 4 SCC 407]. It was held that “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 court in light of the above, held that “The Writ Petition assailing the said order must necessarily fail and is dismissed.”  
 on 16 02 2022 on 17 02 1 wp11717o21IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.11717 OF 2021Rajendra s o Radhakisan Raut Age : 48 years Occupation : Advocate R o Nalwandi Tq. & Dist.Beed....PETITIONER VERSUS 1.The State of Maharashtra.Through it’s Secretary Rural Development Department Mantralaya Mumbai.2.Additional Divisional Commissioner Aurangabad Rregion Aurangabad.3.Chief Executive Officer Zilla Parishad Beed.4.Radhakisan Laxman Mhetre Age : 41 years Occupation : Agril R o Nalwandi Tq. & Dist.Beed....RESPONDENTS…Shri Ankush N. Nagargoje Advocate for the petitioner.Shri Kiran B. Jadhavar AGP for the respondent Nos.1 and 2.Shri P.D. Suryawanshi Advocate for respondent No.3.Shri S.T. Yaseen Advocate for respondent No.4.…CORAM : SMT. BHARATI H. DANGRE J. Reserved on : 02nd February 2022 Pronounced on : 10th February 2022 on 16 02 2022 on 17 02 2 wp11717o21JUDGMENT :1.Democracy can be described as “Power of People” a way ofgoverning which depends upon the will of the people. For the essence ofdemocracy is the decentralization of power and allowing governance toreach at the grass root level for welfare of people. The local governmentelected by people imbibes democratic functioning of the society involvingpeople in the area. The local bodies having administrative legislative andfinancial autonomy with dedicated bureaucracy at local level has helpedthis country realize its dream.In the words of the father of nation Mahatma Gandhi “In thisstructure composed of innumerable villages there will be ever widening never ascending circles. Life will not be a pyramid with the apex sustainedby the bottom. But it will be an oceanic circle whose centre will be theindividual always ready to perish for the village the latter ready to perishfor the circle of villages till at last the whole becomes one life composedof individuals never aggressive in their arrogance but ever humble sharing the majesty of the oceanic circle of which they are integral units.”2.The aforesaid may not be true for the village Nalwandilocated in Taluka and District Beed when a move was initiated forremoval of its Sarpanch by alleging corruption gross negligence andmisconduct in discharge of his duties and his removal was sought by oneof the villager voter who succeeded in his venture but in an appealproceedings when the Sarpanch is restored to his office he hasapproached this Court by filing the present Writ Petition.3.The election to the post of the Sarpanch of Village PanchayatNalwandi Taluka and District Beed was held in December 2017 andRespondent No.4came to be directly on 16 02 2022 on 17 02 3 wp11717o21elected as a Sarpanch of village Nalwandi which comprises of 13members and he assumed charge of the said post in January 2018. 4.In the year 2020 and to be precise on 05.02.2020 thepetitioner in this petition filed a complaint with the DivisionalCommissioner Aurangabad under Section 39(1) of the MaharashtraVillage Panchayats Actseeking an inquiry intothe alleged corruption committed by the Sarpanch and the then VillageDevelopment Officer and this relief was sought in the backdrop of theallegations made in paragraphs 1 to 8 of the complaint.Upon the complaint being preferred respondent No.4 Sarpanch filed his detailed reply denying the allegations levelled againsthim on 28.04.2021.5.The Additional Divisional Commissioner i.e. RespondentNo.2 addressed a communication to the Chief Executive Officer ZillaParishad Beed on 15.02.2020 to conduct an inquiry. Pursuant thereto the fact finding report was called from the office of the BlockDevelopment Officer Panchayat Samiti Dharur and on receipt of thereport dated 29.05.2020 the Chief Executive Officer issued a show causenotice to respondent No.4 on 04.11.2020 as to why action should not betaken against him in the wake of the report submitted by the BlockDevelopment Officer. Respondent No.4 Sarpanch submitted his reply on17.11.2020 and the Chief Executive Officer conducted an inquiry on on 16 02 2022 on 17 02 4 wp11717o2117.12.2020 and 30.12.2020.Upon following the principles of natural justice and recordingthe prima facie opinion that respondent No.4 Sarpanch is found to beguilty of the alleged charges levelled at Point Nos.1 to 5 which warrantedan action under Section 39(1) of the VP Act the Chief Executive Officer Zilla Parishad forwarded his inquiry report along with the reply filed bythe Sarpanch to respondent No.2 Divisional Commissioner.6.On 06.07.2021 by making reference to the report of the ChiefExecutive Officer and also to the reply submitted by respondent No.4 Sarpanch and upon hearing the parties the Divisional Commissionermade an attempt to discern the factual aspects and on perusal of thematerial placed before him arrived at the conclusion that respondentNo.4 Sarpanch has committed misconduct while discharging his duties asSarpanch and therefore by exercising the power vested in him underSection 39(1) of the VP Act the complaint filed by the petitioner wasgranted and the report of the Chief Executive Officer dated 09.03.2021was accepted and respondent No.4 Sarpanch came to be removed fromthe post of Sarpanch of village Nalwandi.7.Being aggrieved by the order of the Divisional Commissionerdated 06.07.2021 respondent No.4 Sarpanch preferred an appeal underSection 39(3) of the VP Act before the Honourable Minister RuralDevelopment Department being GP Appeal No.19 2021 which was on 16 02 2022 on 17 02 5 wp11717o21allowed on 06.10.2021 after hearing respondent No.4 as well as thepetitioner. On due deliberation upon the order passed by the AdditionalDivisional Commissioner on 06.07.2021 the Honourable Ministerreturned a finding that respondent No.4 Sarpanch is not engaged in anyact for his own benefit and since his personal interest is not involved intothe alleged acts of misconduct merely because there are someadministrative lapses the removal of a duly elected Sarpanch through thedemocratic process was found to be improper. By exercising the powerconferred by Section 39(3) of the VP Act the Honourable Minister setaside the impugned order passed by the Additional DivisionalCommissioner removing the Sarpanch.It is this order which is assailed in this Writ Petition.8.I have heard the learned counsel appearing for the respectiveparties and with their assistance perused the record. On 26.10.2021 while issuing the notice the followinginterim order was passed : “Till the next date so far as handing over of the charge isconcerned there shall be status quo as is operating today.”The parties are contesting the effect of the said status quoorder since according to the petitioner respondent No.4 Sarpanch isrelieved of his charge whereas according to the learned counsel forrespondent No.4 he is discharging his function as the Sarpanch and is on 16 02 2022 on 17 02 6 wp11717o21presiding over the meetings.In any case since both the contesting parties expressed theirconsensus to argue the writ petition finally and determine the rights of theparties I deem it expedient to grant RULE and I heard the learned counselby making the Rule returnable forthwith.9.Shri Nagargoje the learned counsel for the petitioner wouldsubmit that the petitioner had levelled eight serious allegations against theSarpanch and the Divisional Commissioner directed the Chief ExecutiveOfficer to make an inquiry and submit his report in respect of theallegations made in the complaint. Since the petitioner was apprehendingthat there is pressure of the local MLA and therefore the inquiry officersfrom other talukas were sought to be appointed to conduct the processand his request was acceded to by the Chief Executive Officer and ainquiry committee consisting of the Block Development Officer PanchayatSamiti Dharur and the Assistant Block Development Officer PanchayatSamiti Kaij was constituted.10.Shri Nagargoje would submit that the said committeephysically visited village Nalwandi and submitted it’s report to the ChiefExecutive Officer which clearly indicts the Sarpanch since the reportindicates that there is misappropriation in respect of making payment toone Narayan Raut and there is also misappropriation in respect ofinstallation of LED solar lamps. Misappropriation of village panchayat on 16 02 2022 on 17 02 7 wp11717o21funds received under the Swaccha Bharat Mission is also established. Thereport further indicates that without constructing toilet blocks the amounthas been disbursed and that too in the names of persons belonging to onefamily. Apart from this it is also revealed that the cash is not deposited inthe account of the Village Panchayat and the same has beenmisappropriated. Heavily relying on this report Shri Nagargoje submitsthat the report clearly held the respondent No.4 responsible forirregularity and misappropriation which led to irresistible conclusion thathe has committed misconduct which deserves his removal from the postof the Sarpanch.11.Shri Nagargoje would submit that the Chief Executive Officerfollowed the procedure of issuing notices to the parties includingrespondent No.4 and on verifying the record and by affording opportunityof hearing to the concerned parties conducted an inquiry as contemplatedunder Section 39 of the VP Act and submitted his report to the DivisionalCommissioner by making a positive recommendation to take an actionunder Section 39 for removal of the Sarpanch. Thereafter theCommissioner conducted hearing and on perusal of the report receivedfrom the Chief Executive Officer he was not convinced with the argumentadvanced that the report did not disclose any misconduct and therefore by recording that there is misappropriation of amounts in recovery oftaxes construction of toilet blocks installation of solar lamps in Dalit Vasti on 16 02 2022 on 17 02 8 wp11717o21and payment of honorarium to Gram Rojgar Sevak the DivisionalCommissioner deemed it fit to exercise the power conferred on him inremoving the Sarpanch who was found guilty of misconduct in dischargeof his duties.Shri Nagargoje would then submit that in the wake of thedetailed inquiry conducted by the Chief Executive Officer which formedthe basis of action of the Divisional Commissioner in an appeal beingpreferred to the Honourable Minister though the scope for interferencebeing very limited the impugned order of the Honourable Ministerallowing the appeal cannot be justified and by referring to the reasonsrecorded in the impugned order the submission is it cannot be permittedto be sustained.12.In assailing the impugned order the submission of learnedcounsel is that the hearing was conducted by the Hon’ble Ministerthrough video conferencing and though necessary arrangement for virtualhearing was made in the office of Collector at Beed the petitioner was notallowed to argue the matter and without affording an opportunity ofhearing to him it was reserved for orders. As per the petitioner’sknowledge even the concerned officers who conducted the inquiry andwho passed the order of disqualification were not heard and the mattercame to be decided only on the basis of documents and the say submittedby the respondent No.4 Sarpanch. The submission is the Honourable on 16 02 2022 on 17 02 9 wp11717o21Minister has decided the appeal in a very insouciant manner and on thiscount the impugned order deserves to be set aside. Another point pressed into service by the learned counsel ShriNagargoje is that as per the conduct of business rules it is only theCabinet Minster for Rural Development who is empowered to hear theappeal but the appeal is heard by the State Minister and therefore theorder is in non est the power being exercised by authority who did notpossess the same. 13.Per contra the learned counsel Shri Yaseen for RespondentNo.4 Sarpanch by inviting my attention to the impugned order wouldsubmit that the Hon’ble Minister has figured nub of the allegations and hehas rightly saved the Respondent No.4 from his removal by holding thatthe administrative lapse or an error of judgment on his part does notamount to misconduct and while dealing with the democratically electedSarpanch and when serious action of removal is contemplated againsthim the charges accusations must be held to be proved and merelybecause the allegation is made a duly elected representative does notdeserve a removal. According the learned counsel the HonourableMinister has rightly appreciated the merit of allegations and by referringto the reports relied upon by the Commissioner arrived at a contraryfinding since the charge of misconduct which was faced by him could notbe established. on 16 02 2022 on 17 02 10 wp11717o21In support the learned counsel would rely upon the decisionof the Honourable Supreme Court in the case of Ravi Yashwant Bhoir vs.District Collector Raigad and others 4 SCC 407 wherein theHonourable Supreme Court has held that an action which is detrimentalto the prestige of the institution may amount to misconduct but mereerror of judgment resulting in doing of negligent act does not amount tomisconduct though in exceptional circumstances not working diligentlymay be a misconduct and even in a particular case negligence orcarelessness may be also misconduct.By referring to the authoritative pronouncement of theHonourable Supreme Court and being made applicable to the facts of thepresent case the submission of the learned counsel for respondent No.4 is that since the findings rendered by the Divisional Commissioner werefalling short of holding the Sarpanch guilty of misconduct the HonourableMinister has rightly intervened and set aside the impugned order.As regards the jurisdiction of the Honourable Minister ofState the submission advanced is that the conduct of business rules aremerely directory in nature and there is no embargo imposed in the saidRules to conclusively declare that it is only the Cabinet Minister who canexercise the power. It is also submitted that no such objection was raisedby the petitioner when the appeal was heard leading to an irresistibleconclusion that he has surrendered to his jurisdiction and therefore now on 16 02 2022 on 17 02 11 wp11717o21he cannot question the same.14.In the wake of the rival claims being advanced by thecontesting parties to begin with I must refer to the allegations levelled bythe petitioner against respondent No.4 Sarpanch in his complaint whichform the genesis of the order passed by the Divisional Commissioner aswell as the Honourable Minister as under:when it wasimperative to get the work done only in Dalit Vasti. Since respondentNo.4 Sarpanch has offered the explanation that by mistake two streetlamps have been installed near the residences of Vijaymala and Bhimai itcan be clearly discerned that the amount received for the Dalit Vasti has on 16 02 2022 on 17 02 22 wp11717o21been expended somewhere else.21.Based on the aforesaid conclusions derived the Commissionerdeemed it fit to exercise the power conferred upon him under Section39(1) on arriving at a conclusion that respondent No.4 Sarpanch hascommitted misconduct while discharging his duties as Sarpanch andtherefore the complaint accused him of such misconduct came to beaccepted and respondent No.4 is declared to have been removed from thepost of the Sarpanch.22.It is against this order dated 06.07.2021 respondent No.4 Sarpanch preferred an appeal to the Honourable Minister who reversedthe findings of the Commissioner on all five points and resultantly setaside the order passed by the Divisional Commissioner by allowing theappeal vide the impugned order 06.10.2021.23.When the reasoning of the Honourable Minister is carefullyperused it is apparent that on perusal of the actual complaint the reportof the Chief Executive Officer Zilla Parishad Beed the impugned orderpassed by the Divisional Commissioner and on hearing the respectiveparties and on perusal of necessary documents placed before him theHonourable Minister found substance in the explanation offered by therespondent No.4 Sarpanch who was removed by the Commissioner.As regards the charge of recovery of taxes and expenditureincurred in the financial years 2018 2019 and 2019 2020 the explanation on 16 02 2022 on 17 02 23 wp11717o21offered by respondent No.4 Sarpanch to the effect that the account of theGram Panchayat is in the Bank located at a distance of 20 kilometers atBeed and on account of the lock down imposed in the pandemic it wasnot possible to deposit the said amount in the bank and therefore expending the amount by passing appropriate resolutions in the monthlymeeting of the Gramsabha and the Gram Panchayat was found to beacceptable explanation. Moreover the Honourable Minister recorded thatit is not the allegation levelled against respondent No.4 Sarpanch thatthere is any excess expenditure or the amount spent was not permissibleto be spent under the said head.24.As regards the charge about construction of toilet blocks theAppellate Authority was convinced with the submission of respondentNo.4 Sarpanch that during the financial years 2013 2014 and 2014 2015 one Mrs.Archana Ashok Jadhav was holding the post of theSarpanch and respondent No.4 assumed the charge of the Sarpanch on05.01.2018 and the explanation offered that when he accepted thecharge the baseline list was received which included names of threepersons for disbursement of grants for construction of toilet blocks and assuch no fault can be attributed to respondent No.4 Sarpanch came to beaccepted.As regards the allegation of the amount of Rs.26 000 beingdeposited in the bank towards honorarium payable to the Gram Rojgar on 16 02 2022 on 17 02 24 wp11717o21Sevak the conclusion is derived that the amount was to be disbursed toShri Narayan Raut towards his honorarium as per the resolution passed bythe Gram Panchayat and no illegality can be attributed to respondentNo.4 Sarpanch or the Gramsevak. A detailed reference is made by theHonourable Minister to the report submitted by the Police Station Pimpalner before the Court in the proceedings No.17 2021 which clearlyreflected that the Sarpanch has not committed any offence as alleged.About the charge that the amount of Rs.9000 was not beingrecorded in the cash book or not deposited in the bank the AppellateAuthority is satisfied that the respondent No.4 Sarpanch is notresponsible for the said act and in any case an inquiry has been initiatedagainst the Recovery Clerk of the Gram Panchayat from whom theamount is liable to be recovered.In respect of the allegation about installation of lamps otherthan Dalit Vasti the Honourable Minister recorded that the lamps wereinstalled near the residences of two persons Gokul Sonwane and Jadhav who belong to the Scheduled Castecategory and thisconclusion is drawn on the basis of the report given by one who has madeentry into the measurement book to the effect that two lamps have beeninstalled in Dalit Vasti and in terms of Section 57(3) of the VP Act theSarpanch cannot be held responsible for the alleged act since that Sectionfixes the responsibility of the village funds on the Secretary. on 16 02 2022 on 17 02 25 wp11717o2125.In the wake of the aforesaid findings being rendered theHonourable Minister has recorded that for the allegations levelled in thecomplaint respondent No.4 Sarpanch himself cannot be held responsiblesince whatever action is taken is with the approval of the Gramsabha andthe Gram Panchayat and moreover the Sarpanch has not availed anybenefit for himself and no document has been brought on record to thateffect and therefore the Sarpanch cannot be said to be person guilty. Ifassuming for a moment that there are some administrative lapses this isnot the manner in which a representative elected by the people at largecan be removed is the observation in the impugned order passed by theHonourable Minister. With this conclusion reached at the impugned orderof the Divisional Commissioner is set aside by the Honourable Minister.26.On perusal of the two impugned orders the first one passedby the Commissioner and the second order passed by the HonourableMinister setting aside the order of the Commissioner and holding thatrespondent No.4 Sarpanch cannot be held responsible for any financialirregularity since even if the charges are accepted as it is it would onlyamount to an irregularity and no charge has led to any misappropriation as what was alleged in the complaint and on perusal of the proceedingsconducted in the wake of Section 39 of the VP Act the reasoning of theAppellate Authority is convincing and borne from the record.27.It is apparent that Section 39 confers power on the on 16 02 2022 on 17 02 26 wp11717o21Commissioner to remove from office any Sarpanch on the groundsspecified therein being if he is found guilty of misconduct in discharge ofhis duties or of any disgraceful conduct or of neglect or incapacity toperform his duties or is persistently remiss in the discharge thereof. As faras respondent No.4 Sarpanch in this case who faced an action underSection 39 he is charged of misconduct in discharge of his duties.The word “misconduct” has to be understood as atransgression of some established and definite rule of action a forbiddenact a dereliction of duty unlawful behaviour wilful in character improperor wrong behaviour. The word “misconduct” in normal parlance isunderstood as unacceptable and improper behaviour or mismanagement especially culpable neglect of duties. The Webster’s dictionary defines the word “misconduct” asdeliberate violation of law or standard especially by the governmentofficial wilful in character. In terms of the Honourable Apex Court as held in RaviYashwant Bhoirthe word “misconduct” was focused upon indepth in the backdrop of the misconduct being alleged against an electedoffice bearer in the democratic process and who is sought to be removedin the wake of the statutory provision contemplating his removal on theground of the misconduct. Their Lordships have elaborated the term in thefollowing words : on 16 02 2022 on 17 02 27 wp11717o21“11.Misconduct has been defined in Black s Law Dictionary Sixth Edition as:"A transgression of some established and definiterule of action a forbidden act a dereliction from duty unlawful behavior wilful in character improper orwrong behavior its synonyms are misdemeanor misdeed misbehavior delinquency impropriety mismanagement offense but not negligence orcarelessness."Misconduct in office has been defined as: "Anyunlawful behavior by a public officer in relation to theduties of his office wilful in character. Term embracesacts which the office holder had no right to perform actsperformed improperly and failure to act in the face of anaffirmative duty to act."12.P. Ramanatha Aiyar s Law Lexicon Reprint Edition 1987at page 821 defines `misconduct thus:"The term misconduct implies a wrongfulintention and not a mere error of judgment. Misconductis not necessarily the same thing as conduct involvingmoral turpitude. The word misconduct is a relative term and has to be construed with reference to the subjectmatter and the context wherein the term occurs havingregard to the scope of the Act or statute which is beingconstrued. Misconduct literally means wrong conduct orimproper conduct. In usual parlance misconduct meansa transgression of some established and definite rule ofaction where no discretion is left except what necessitymay demand and carelessness negligence andunskilfulness are transgressions of some established butindefinite rule of action where some discretion isnecessarily left to the actor. Misconduct is a violation ofdefinite law carelessness or abuse of discretion under anindefinite law. Misconduct is a forbidden act carelessness a forbidden quality of an act and isnecessarily indefinite. Misconduct in office may bedefined as unlawful behaviour or neglect by a publicofficer by which the rights of a party have beenaffected."Thus it could be seen that the word`misconduct though not capable of precise definition on reflection receives its connotation from the context on 16 02 2022 on 17 02 28 wp11717o21the delinquency in its performance and its effect on thediscipline and the nature of the duty. It may involvemoral turpitude it must be improper or wrongbehaviour unlawful behaviour wilful in character forbidden act a transgression of established and definiterule of action or code of conduct but not mere error ofjudgment carelessness or negligence in performance ofthe duty the act complained of bears forbidden qualityor character. Its ambit has to be construed with referenceto the subject matter and the context wherein the termoccurs regard being had to the scope of the statute andthe public purpose it seeks to serve.....”28.An error of judgment would not amount to misconduct sinceit implies a wrongful intention and not a mere error of judgment. Mereerror of judgment resulting in negligent act does not amount tomisconduct but the exceptions have been carved out in Ravi YashwantBhoirand mere error of judgment resulting in doing of negligentact does not amount to misconduct.29.In M.M. Malhotra vs. Union of India 2005SCC 351 thefollowing observations of the Honourable Supreme Court are relevant : “17.….It has therefore to be noted that the word misconduct is not capable of precise definition. But atthe same time though incapable of precise definition theword misconduct on reflection receives its connotationfrom the context the delinquency in performance and itseffect on the discipline and the nature of the duty. Theact complained of must bear a forbidden quality orcharacter and its ambit has to be construed withreference to the subject matter and the context whereinthe terms occurs having regard to the scope of thestatute and the public purpose it seeks to serve.” on 16 02 2022 on 17 02 29 wp11717o2130.From the above discussion it is clear that the expression“misconduct” has to be construed and understood in reference to thesubject matter and context wherein the term occurs taking intoconsideration the scope and object of the statute which is beingconstrued. The misconduct is to be measured in terms of the nature of themisconduct and should be viewed with consequence of misconduct as towhether it is detrimental to public interest.The VP Act which is a Law enacted in furtherance of the 73rdamendment to the Constitution for incorporating the Village Panchayatsat the grass root level for every village or group of villages and investingthem with such powers and authority which would enable them tofunction as units of local self government and for development activities inthe rural areas. The Village Panchayat comprises of the Sarpanch who iselected in accordance with the procedure set out in the VP Act and whocould be removed in the like manner as per the procedure prescribed inthe VP Act one of the mode of removal is bringing out the motion of noconfidence by the prescribed number of members and on following theprocedure prescribed in the VP Act.The executive powers for the purposes of carrying out theprovisions of the VP Act vest in the Sarpanch who is directly responsiblefor due fulfillment of the duties imposed upon the Village Panchayat by orunder the VP Act. Such a Sarpanch who is elected under the provisions of on 16 02 2022 on 17 02 30 wp11717o21the VP Act may also be removed by the mode prescribed under Section 39of the VP Act by the Commissioner if he has been found guilty ofmisconduct in discharge of his duties or any disgraceful conduct or neglector incapacity to perform his duties or is persistently remiss in thedischarge his duties.31.Since on election of the Sarpanch to head the VillagePanchayat which is expected to work as a body of local self government with complete autonomy he is removable only on the grounds providedby the statute and since he heads the Village Panchayat he can only beremoved by following the procedure prescribed by law and therefore when the VP Act contemplates his removal on the ground of misconduct indischarge of his duties such misconduct will have to be specificallyproved.32.On perusal of the allegations levelled by the petitioner againstrespondent No.4 Sarpanch which are found to have been substantiallyproved by the Commissioner the Honourable Minister has rendered thefinding that the grounds alleged and material relied upon fell short ofestablishing “misconduct” on the part of the Sarpanch in discharge of hisofficial duties.On minute reading of the accusations faced by respondentNo.4 Sarpanch and material brought on record at the most it can besaid to be amounting to some illegality or irregularity but since the terms on 16 02 2022 on 17 02 31 wp11717o21“misconduct” contemplates something more than this the Commissionerexercising the power under Section 39(1) should have satisfied himselfabout the act alleged to be misconduct in reference to the subject matterand context in which the term is used in Section 39 since he can only beremoved on a proved misconduct.33.Looking into the charges accusations justifying the removalof the Sarpanch as far as the appointment of the Gram Rojgar Sevak ShriNarayan Raut is concerned the report by the Block Development Officer Panchayat Samiti Beed submitted to the Chief Executive officer on29.12.2020 expressly deals with the issue in question and declares thatShri Narayan Raut has been validly selected to hold the said post on26.10.2018 and on the contrary the person who lodged the complaintShri Omprakash Uttareshwar Mhetre is found to be not validly appointed.If this is so the grant which has been received for honorarium to be paidto the Gram Rojgar Sevak was disbursed in favour of the legal heirs ofUttareshwar who discharged his duties on the said post and the reportrecords a finding that the amount of Rs.47970 was due to him out ofwhich Rs.39500 has been disbursed. The report on perusal of therecord of the Village Panchayat records that on 26.10.2018 Shri NarayanRaut has been duly selected in the Gram Panchayat meeting and as per theresolution passed by the Gram Panchayat subject to further directionbeing issued the amount of Rs.40188 is lying in the account of the on 16 02 2022 on 17 02 32 wp11717o21Gram Panchayat. Therefore there is no scope for alleging anymisappropriation or irregularity. In the wake of this the Sarpanch isclearly absolved and the Honourable Minister has even referred to thereport submitted by the Police Station Pimpalner in the proceedings filedbefore the Magistrate by Shri Shri Omprakash Uttareshwar Mhetre by wayof private complaint under Section 156(3) of the Code of CriminalProcedure and the report has been forwarded to the learned Magistrate tothat effect.On a mere assumption that the summary is not yet accepted can be no ground to attribute the charge of misconduct to respondentNo.4 Sarpanch and leaving aside the criminal proceedings the reportdated 29.12.2020 by the Block Development Officer Panchayat Samiti Beed does not establish the said charge against respondent No.4 Sarpanch.34.As far as the charge about the amount being disbursed onmultiple occasions to the members of the same family under the SwachhaBharat Mission the Honourable Minister found the explanation submittedby the Sarpanch to be satisfactory as the stand of the Sarpanch is thatthere is no material to show that three beneficiaries were alreadydisbursed the said amount and therefore there is duplication in the namesof beneficiaries.35.About the allegation of misappropriation of the funds on 16 02 2022 on 17 02 33 wp11717o21available for carrying out the work in the Dalit Vasti there is reportsubmitted by the Assistant Block Development Officer Panchayat Samiti Kaij to the Chief Executive Officer on 01.03.2021 and perusal of the saidreport and measurement book it is manifest that the amount which wassanctioned to the tune of Rs.1 lac for Bhimnagar was intended forinstallation of two LED lamps and two lamps have been installedaccordingly in Dalit Vasti one near the house of Mr.Gokul Sonwane andanother near the house of Mr.Jadhav. As far as Bhima Mhetre isconcerned the inspection report reveals that there was no such lampinstalled but wrongly an entry is taken in the measurement book andtherefore the Engineer who recorded the entry is proceeded againstdepartmentally. As far as Vijaymala Mhetre is concerned though the lampis installed near her house it was not from the funds of Rs.1 lac receivedby the Gram Panchayat for the said purpose and therefore this lamp is notinstalled from the said funds. The concerned Engineer in his letter addressed to the ChiefExecutive Officer on 27.12.2020 clarified that as per the estimatesubmitted for installation of LED lamps the amount of Rs.1 lac wasreceived which was meant for installation of lamps near the houses ofGokul Sonwane and Jadhav. He has clarified that inadvertently the namesof Vijaymala and Bhima have been included in the measurement book andhe has also clarified that no amount has been disbursed for the lamps on 16 02 2022 on 17 02 34 wp11717o21installed at these places and the work of installation of two lamps hasbeen completed in the Dalit Vasti.This in any case does not involve the Sarpanch at all and nomisconduct can be attributed to him. 36.Similarly for the other charges about the amount beingreceived by issuing receipts without taking necessary entries in the cashbook or accounts book respondent No.4 Sarpanch is not responsiblesince at the end of the report it is revealed that it is the Recovery OfficerShri Mukesh Jadhav who has forged the receipt books and he isproceeded against departmentally.As far as irregularity of not depositing the amount in the Bankis concerned respondent No.4 Sarpanch cannot be held liable since it isthe duty of the Village Development Officer to submit the weeklystatement of accounts to the Village Panchayat and to the BlockDevelopment Officer Panchayat Samiti giving in particular the details ofreceipts and the payment of balance funds and accordingly the action hasbeen initiated against Shri B.N. Misal Block Development Officer Panchayat Samiti Beed by conducting an inquiry and penalty ofwithholding one increment has been imposed on him on 14.10.2021.There is also no substance in the allegation about expendingthe amount of taxes recovered without depositing it in the bank since onaccount of the lock down the amount was not deposited in the bank but it on 16 02 2022 on 17 02 35 wp11717o21was spent only after being approved by the Gram Panchayat in it’smonthly meetings for the valid and legal purposes. 37.When confronted with certain statements which are placedon record to the effect that the Sarpanch has accepted the amount ofRs.1000 with a promise that the receipt will be issued at a later point oftime Shri Nagargoje the learned counsel for the petitioner fairlyconcedes that these are cyclostyle statements and the context in whichthese statements are made by the persons who were already allotted thetoilet blocks in the year 2012 2013 the respondent No.4 Sarpanch wasnot holding the post of the Sarpanch and therefore these statements donot lead to the allegation of misconduct but as it can be seen that they areall recorded on the same date and verbatim make the same allegationswithout any basis.38.In the wake of the aforesaid the findings rendered againstrespondent No.4 Sarpanch by the Divisional Commissioner are not basedon valid material being brought on record and the Honourable Minister while reversing the findings of the Commissioner has rightly based hisconclusions on the principle that in democratic process when a dulyelected office bearer is to be removed the procedure must be strictlyadhered to and the charges levelled resulting in removal must be fullyestablished.39.Though it is true that in democratic institution the on 16 02 2022 on 17 02 36 wp11717o21confidence is the foundation on which the super structure of democracy isbuilt and the democratic accountability rests on the confidence of theelectorate and if the representative body does not have confidence in thehead whom they have elected the democracy demands that he ought tobe removed in a democratic manner. In Bhanumati vs. State of U.P. 2010(12) SCC 1 : AIR 2010 SC 3796 the Hon’ble Apex Court has observed thatany head of the democratic institution must be prepared to face the test ofconfidence. Democracy demands accountability and transparency in theactivity of the chairperson the head of the democratic institution.However on the other hand it is equally true that the exercise of anypower having effect of destroying the democratic institution besides beingoutrageous is also dangerous to the democratic set up of this country andthe elected representative cannot be permitted to be removedunceremoniously without following the procedure prescribed by law byadopting casual approach and by resorting to manipulations to achieveulterior purpose.40.In the State of Punjab vs. Baldev Singh 1999SCC 172 the Hon’ble Apex Court considered the issue of removal of an electedoffice bearer and held that where the statutory provision has very seriousrepercussions it implicitly makes it imperative and obligatory on the partof the authority to have strict adherence to the statutory provisions. Allsafeguards and protections provided under the statute have to be kept in on 16 02 2022 on 17 02 37 wp11717o21mind while exercising such power and it was held as under : “28. . It must be borne in mind that severe thepunishment greater has to be the care taken to see thatall the safeguards provided in a statute are scrupulouslyfollowed.”In the wake of the elected representatives who were to facean action of removal from their posts the following observations of theHonourable Supreme Court in Ravi Bhoirare relevant : “34. In a democratic institution like ours the incumbent isentitled to hold the office for the term for which he hasbeen elected unless his election is set aside by aprescribed procedure known to law or he is removed bythe procedure established under law. The proceedingsfor removal must satisfy the requirement of naturaljustice and the decision must show that the authority hasapplied its mind to the allegations made and theexplanation furnished by the elected office bearer soughtto be removed.35. The elected official is accountable to its electoratebecause he is being elected by a large number of voters.His removal has serious repercussions as he is removedfrom the post and declared disqualified to contest theelections for a further stipulated period but it also takesaway the right of the people of his constituency to berepresented by him. Undoubtedly the right to hold sucha post is statutory and no person can claim any absoluteor vested right to the post but he cannot be removedwithout strictly adhering to the provisions provided bythe legislature for his removalthe impugned order of theHonourable Minister does not warrant for any interference.42.The learned counsel for the petitioner has also argued thatthe order impugned is passed by the State Minister of Rural DevelopmentDepartment and he is not the Minister in charge competent to hear the on 16 02 2022 on 17 02 39 wp11717o21appeals in terms of the Maharashtra Government Rules of Business dated26.06.1975 and therefore the impugned order is without jurisdiction.The said argument is mentioned just to be rejected. Perusalof Section 39(3) of the VP provides that any person aggrieved by an orderof the Commissioner under sub sectionorof Section 39 maywithin a period of fifteen days from the date of the receipt of such order appeal to the State Government and the Government shall decide theappeal within a period of one month from the date of receipt thereof.The provision makes it imperative for the State Governmentto decide the appeal within one month. The conduct of business of theGovernment in its various departments is governed by the MaharashtraGovernment Rules of Business which came into force on 01st July 1975.The said Rules being formulated by the Governor of Maharashtra inexercise of the powers conferred by clausesandof Article 166 ofthe Constitution of India provide that the business of the Governmentshall be transacted in the departments specified in the First Schedule andshall be classified and distributed between those departments as laiddown therein. Rule 5 of the said Rules empowers the Governor on theadvice of the Chief Minister to allot among the Ministers the business ofthe Government by assigning one or more departments or part ofdepartments to the charge of a Minister. Rule 10 prescribes that theMinister in charge of the department shall be primarily responsible for the on 16 02 2022 on 17 02 40 wp11717o21disposal of the business appertaining to that department or a part of thedepartment. Rule 14 contemplates that the Secretary of the departmentconcerned is in each case responsible for the careful observance of theserules and when he considers that there has been any material departurefrom them he shall personally bring the matter to the notice of theMinister in charge and the Chief Secretary. 43.The Instructions regarding the business of the Governmentissued under Rule 15 of the Maharashtra Government Rules of Business defines the term “Minister in charge” as the Minister appointed by theGovernor to be in charge of the department of the Government to which acase belongs. The instructions permit the Minister in charge to dispose ofall the cases arising in the department which he controls. Neither theRules nor the Instructions provide that when the power to entertain theappeal as contemplated under Section 39(3) of the VP Act provides for anappeal to be decided by the State Government it shall necessarily bedecided by the Cabinet Minister.When the learned counsel for the petitioner was asked whether there is any material to show that the Cabinet Minister has beenassigned the power to decide the appeals pertaining to removal of theSarpanch he is unable to place on record any document to that effect. In any case the appeal has been decided by the State Ministerand the petitioner has not raised any objection about his jurisdiction and on 16 02 2022 on 17 02 41 wp11717o21therefore it is not now open for him to canvass the same. In any case theinstructions issued regarding the business of the Government are merelymeant for more convenient transaction of business of the Government ofMaharashtra and will not affect the jurisdiction of the State Minister todecide the appeal.The aforesaid objection is therefore without any merit andsubstance and does not warrant any consideration.44.In the wake of the above the impugned order passed by theHon’ble Minister deserves to be upheld and is accordingly upheld. TheWrit Petition assailing the said order must necessarily fail and is dismissed.Rule is discharged.kps 