Sunday, 8 January 2017

Whether Disgraceful conduct can be proved through CCTV footage?

That, so far as disgraceful conduct of the petitioner is
concerned, there is no room to draw any other inference that the
petitioner did threaten the Chief Officer by showing him a chappal
on 20.02.2014.   A reference is made to the CCTV footage in the
report of the Collector as well as in the impugned order.  The CCTV
footage was made available for perusal of the Court and we have
seen the CCTV footage in the presence of learned Counsel for both
the parties.  On viewing the CCTV footage, it is abundantly clear
that the petitioner did threaten the Chief Officer by showing a
footwear (chappal).  He was standing in a threatening posture.  The
conduct   of   the   petitioner   in   threatening   the   Chief   Officer,   by
showing him footwear and adapting a threatening posture, shall
have to be branded as disgraceful.  We are satisfied in respect of
occurrence   of   incident   upon   viewing   the   CCTV   footage.     It
has neither been contended in the petition  nor  has  been argued

that the CCTV footage is manipulated or morphed. 
So far as expression “disgraceful” is concerned, the
New Oxford American Dictionary explains it to mean shockingly
unacceptable.  In the New International Webster's Comprehensive
Dictionary, 'disgraceful' is set out as characterized by or causing
disgrace,   shameful.     In   P.   Ramanatha   Aiyar's   Law   Lexicon,
'disgraceful   conduct'   is   described   as   shameful   behaviour.     It
further sets out that it need not be circumscribed to something
done in the course of one's duty as member or office bearer.  The

term   “disgraceful   conduct”   would   mean   any   allegation   which,
because   it   is   done   by   an   elected   member   or   office   bearer,   is
sufficiently reprehensible to be classified as disgraceful.  
17 Considering   the   meaning   attached   to   the   term
'disgraceful',   we   are   of   the   considered   view   that   the   alleged
misconduct of the petitioner shall have to be branded as shameful
behaviour and is shockingly unacceptable.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1430 OF 2016
Nandkumar alias Laxman Sahadu V The State of Maharashtra,
     
        CORAM : R.M.BORDE &
                               K.L.WADANE, JJ.
        DATE    : 07th June, 2016



1 Heard.   Rule.   Rule made returnable forthwith and
heard finally by consent of learned Counsel for respective parties.
2 The   petitioner,   who   was   elected   as   a   Councillor   of
Municipal Council, Shrigonda, in the elections held in 2014, is
assailing   the   order   passed   by   the   State   government   on   25th
January 2016, holding him disqualified to continue to hold office of
an elected councillor and further disqualifying him from becoming
a councillor of the Municipal Council or any other local authority
for the period of five years from the date of issuance of order.
3 The petitioner contends that he is an elected councillor
of the Municipal Council and his term is to expire in the year 2019.
He is continuously representing the local ward as representative
since 1994 and was holding office of President for about seven and
half years in the past.   He is an elected leader of the  aghadi
consisting   of   9   councillors,   which   is   duly   registered   with   the
Collector.  It is contended that there were no allegations in respect
of misconduct levelled against him in the past.  
4 The petitioner contends that the then Chief Officer of
the Municipal Council Shri Sonawane had called a Special Meeting
of the Municipal Council on 21.02.2014, which was opposed by the
petitioner and other councillors.  On 20.02.2014, he had been to
the office of Chief Officer for demanding certain information.  The
Chief Officer, according to the petitioner, has lodged a false and
frivolous complaint against him, which is registered as Crime No.I­
25 of 2014 with Shrigonda Police Station for offences punishable

under Sections 343, 504 and 506 of the Indian Penal Code.  It is
alleged by the Chief Officer that the petitioner has abused him and
also threatened him by showing a  chappal  (footwear).   The Chief
Officer, according to the petitioner, maintained bad reputation and
indulged in corruption.  He was apprehended while accepting bribe
and First Information Report  has been registered against him by
the   Anti   Corruption   Bureau   on   25.03.2014.     The   petitioner
contends that in respect of the meeting conducted on 21.02.2014,
there was a complaint lodged to the Collector and the Collector,
taking   cognizance   of   the   complaint,   had   directed   stay   of   the
Resolutions adopted in the meeting.
5 The Chief Officer, Shri Sonawane tendered a complaint
in respect of misconduct of the petitioner to the State Government
through the Collector.  The Collector, on receipt of the complaint,
called for explanation from the petitioner by issuing a notice on
08.10.2014.     The   petitioner     tendered   his   explanation   to   the
Collector on 17.11.2014 denying all the allegations levelled against
him.  It does appear that the Collector has tendered his report to
the   State   Government   and   in   pursuance   thereof,   the   State
Government had issued a notice to the petitioner on 07.08.2015
calling   upon   him   to   explain   as   to   why   action   should   not   be
initiated   against   him   under   Section   42   of   the   Maharashtra
Municipal Councils, Nagar Panchayats & Industrial Townships Act,
1965 (for short, “the Municipalities Act”); and as to why he shall
not be unseated as a councillor and shall not be further debarred
from becoming a councillor for the period of five years.  
6 The   petitioner   tendered   explanation   to   the   notice

issued by the State Government on 10.09.2015.   The petitioner
contended that there after no steps were taken in respect of the
complaint.   However, it appears that one of the councillors Shri
Shaikh Akhtar Hazi Sikandar tendered a complaint to the State
Government, cognizance  of which  was  taken and a  notice  was
issued by the  State Government  calling  upon  the  petitioner to
remain present for hearing in the chamber of the Hon'ble State
Minister on 06.01.2016.   The petitioner was not in a position to
attend the hearing on the said date and he sent his nephew for
hearing.   An application was tendered to the State Government
requesting for issuance of copy of the complaint filed by Shaikh
Akhtar   Hazi   Sikandar   and   certain   other   documents.     It   is
contended that in spite of tendering an application demanding
copies of certain documents, those were not supplied and without
extending an opportunity of hearing, the order, impugned in this
petition, has been passed by the State Government on 25.01.2016. 
7 The petitioner submits that the order has been passed
without observing the procedure prescribed under law.  It is also
contended   that   action   has   been   vitiiated   on   account   of   non
observance of principles of natural justice.  The petitioner contends
that serious action of his removal and holding him disqualified for
becoming a representative of local authority for further period of
five years, is taken without complying with principles of natural
justice.  The petitioner contends that the State Government did not
take any action suo motu as contemplated under sub­section (1) of
Section  4, however, proceeded to  take action on the  complaint
tendered   by   Shaikh   Akhtar.       Since   there   was   no   resolution
adopted by the Council for removal of the petitioner, it was not

permissible for the State Government to act upon the complaint
tendered   by   Shaikh   Akhtar   and   pass   an   order   directing
disqualification of the petitioner.  
8 Section 42 of the Municipalities Act reads thus:
42 Liability of Councillors to removal from
office:
(1) The   State   Government   may   on   its   own
motion   or   on   the   recommendation   of   the
Council   remove   any   Councillor   from   office   if
such   Councillor   has   been   guilty   of   any
misconduct in the discharge of his duties, or of
any   disgraceful   conduct,   during   his   current
term of office or even during his immediately
preceding term of office as a Councillor.
(2) The   State   Government   may   likewise
remove   any   Councillor   from   office   of   such
Councillor   has   in   the   opinion   of   the   State
Government   become   incapable   of   performing
his duties as a Councillor.
(3) No resolution recommending the removal
of   any   Councillor   for   the   purposes   of   subsections
(1) or (2) shall be passed by a Council
and no order of removal shall be made by the
State   Government,   unless   the   Councillor   to
whom it relates has been given a reasonable
opportunity   of   showing   cause   why   such
recommendation or order, as the case may be,
should not be made.
(4) In   every   case   the   State   Government
makes an order under sub­sections (1) or (2),
the   Councillor   shall   be   disqualified   from
becoming   a   Councillor,   or   a   Councillor   or
member of any other local authority for a period
of five years from the date of such order. 

9 There are two modalities prescribed under Section 42
in respect of removal of   a councillor from the office.   The State
Government may, on its own motion, take action or may act upon
the recommendations of the council.  In the event, the Municipal
Council adopts a Resolution recommending removal of a councillor,
it is not permissible to adopt such resolution unless the councillor,
to whom it relates, has been given a reasonable opportunity of
showing cause as to why such recommendation should not be
made.  
10 It is the contention of the petitioner that since the
State Government has acted on the complaint lodged by one of the
councillors i.e. Shaikh Akhtar Hazi Skandar, passing of  resolution
was a necessary precondition under law to hold the petitioner
disqualified.     The   contention   raised   by  the   petitioner   does   not
appear to be sound for the reason that the Chief Officer, who was
aggrieved, had tendered a report to the State Government through
the Collector on 18.03.2014.  It is also a matter of record that the
petitioner was called upon to show cause as to why action shall not
be   taken   against   him   on   the   proposal   initiated   by   the   State
Government on receipt of the complaint made by Shri Sonawane,
the then Chief Officer.  The petitioner did tender his reply to the
show cause notice issued by the Collector on 08.10.2014.  It is also
a matter of record that the Collector tendered his report to the
State Government on 19.01.2015.  In his report, the Collector has
recorded that on the given date, in the chamber of Shri Sonawane,
the petitioner abused him and threatened the Chief Officer by
showing  chappal  (foot wear).   This fact is disclosed in the CCTV
footage, which was made available.  Before taking action, again the

State   Government   also   issued   a   show   cause   notice   dated
07.08.2015, which was received by him.  The petitioner did tender
his reply to the show cause notice on 10.09.2015.  It, thus, appears
that the petitioner has been extended an opportunity to answer
allegations and the charges.  
11 It  also appears that a complaint  was received from
Shaikh Akhtar Hazi Sikandar by the State Government and same
is referred to in the notice of personal hearing issued by the State
Government   on   02.01.2016.     The   petitioner   did   not   appear   for
personal hearing on the given date and time and preferred to send
his nephew to Mumbai to attend the hearing.  His nephew was not
authorised to argue the matter on his behalf.   Pointing out title
clause of the order issued by the State Government, which refers to
the name of complainant Shaikh Akhtar, it is contended that order
has been passed not on the basis of suo motu initiative taken by
the State Government, however, the case is covered by sub­section
(3) of Section 42 of the Municipalities Act, 1965.
12 The contention is erroneous for the reason that the
very first paragraph of the order refers to the complaint of the
Chief Officer to the State Government as well as report of the
Collector received by the State Government and reply tendered by
the petitioner.   The order also refers to the show cause notice
issued   by   the   State   Government   and   reply   tendered   by   the
petitioner on 10.09.2015.  On reading text of the order, contention
raised by the petitioner that the State Government has not acted in
accordance with Section 42(1) of the Act, however, provisions of
Section 42(3) are invoked, does not appear to be correct.   The

petitioner   was   extended   an   opportunity   of   hearing   on   two
occasions.  The Collector, before tendering his report to the State
Government,   has   considered   the   explanation   tendered   by
petitioner.     The   State   Government   also   issued   a   notice   to   the
petitioner calling upon him to explain as to why appropriate action
shall not be taken against him under Section 42 of the Act, to
which, petitioner did  tender his explanation.  
13 Considering above aspects, it will have to be inferred
that requirement of complying with principles of natural justice
has   been   fulfilled   and   the   petitioner   has   been   extended   fair
opportunity to answer allegations and the charges levelled against
him.
14 That, so far as disgraceful conduct of the petitioner is
concerned, there is no room to draw any other inference that the
petitioner did threaten the Chief Officer by showing him a chappal
on 20.02.2014.   A reference is made to the CCTV footage in the
report of the Collector as well as in the impugned order.  The CCTV
footage was made available for perusal of the Court and we have
seen the CCTV footage in the presence of learned Counsel for both
the parties.  On viewing the CCTV footage, it is abundantly clear
that the petitioner did threaten the Chief Officer by showing a
footwear (chappal).  He was standing in a threatening posture.  The
conduct   of   the   petitioner   in   threatening   the   Chief   Officer,   by
showing him footwear and adapting a threatening posture, shall
have to be branded as disgraceful.  We are satisfied in respect of
occurrence   of   incident   upon   viewing   the   CCTV   footage.     It
has neither been contended in the petition  nor  has  been argued

that the CCTV footage is manipulated or morphed.   The finding
recorded by the State Government in respect of disgraceful conduct
of the petitioner does not appear to be erroneous and need not be
interfered with. 
15 Section   42   of   the   Act   prescribes   that   the   State
Government may, on its own motion or on the recommendation of
the Council remove any councillor from office if such councillor
has been guilty of any misconduct in the discharge of his duties, or
of any disgraceful conduct.  Sub­section (1) of Section 42 stipulates
that   a   councillor   can   be   removed   not   only   on   account   of
misconduct in discharge of his official duties, however, he can be
removed on account of “any” 'disgraceful conduct', which need not
be referrable to his official duties.  The misconduct pertains to the
functions and duties of a member or an office bearer, whereas,
“disgraceful conduct”, contemplated under Section 42(1) is of an
individual who is a member and not necessarily only in discharge
of his duties, as such.   The term “disgraceful conduct” is prefixed
by   the   word   “any”   and   as   such,   need   not   necessarily   be   “in
discharge of the duties”.  
16 So far as expression “disgraceful” is concerned, the
New Oxford American Dictionary explains it to mean shockingly
unacceptable.  In the New International Webster's Comprehensive
Dictionary, 'disgraceful' is set out as characterized by or causing
disgrace,   shameful.     In   P.   Ramanatha   Aiyar's   Law   Lexicon,
'disgraceful   conduct'   is   described   as   shameful   behaviour.     It
further sets out that it need not be circumscribed to something
done in the course of one's duty as member or office bearer.  The

term   “disgraceful   conduct”   would   mean   any   allegation   which,
because   it   is   done   by   an   elected   member   or   office   bearer,   is
sufficiently reprehensible to be classified as disgraceful.  
17 Considering   the   meaning   attached   to   the   term
'disgraceful',   we   are   of   the   considered   view   that   the   alleged
misconduct of the petitioner shall have to be branded as shameful
behaviour and is shockingly unacceptable.   We have adopted a
democratic   form   of   governance   and   functions   of   the   local
authorities are administered by the representatives of the people
elected   in   a   democratic   manner.     The   form   of   democratic
governance is adopted by a civil society.   In the civil society, any
uncivilized   behaviour   is   unacceptable.     It   assumes   seriousness
when   the   representatives   of   the   people   behave   in   uncivilized
manner.     The   behaviour   of   the   petitioner   certainly   cannot   be
branded as civilized behaviour.  
18 It is contended on behalf of the petitioner that the
penalty imposed  of disqualification  for further term of five years
for becoming a councillor is harsh, is not acceptable for the reason
that uncivilized behaviour of an elected member is a serious threat
to the institutions governed in democratic manner.
19 Apart from this, sub­section (4) of Section 42 does not
make   available   any   option   to   the   State   Government   once   a
conclusion   is   reached   that   the   representative   is   guilty   of
misconduct or disgraceful conduct, he shall have to be disqualified
from becoming a councillor or member of any other local authority
for the period of five years from the date of such order.

20 For the reasons recorded above, the writ petition does
not   deserve   any   favourable   consideration   and   as   such   stands
dismissed. 
Rule discharged. No costs.   
    
         K.L.WADANE         R.M.BORDE
     JUDGE         JUDGE
adb/wp143016 
::: Uploaded on - 20/06/2016 ::: Downloaded on - 08/01/2017 12:56:42 :::
Print Page

No comments:

Post a Comment