GOPALBHAI KHEMCHANDDAS PATEL Vs. DISTRICT DEVELOPMENT OFFICER

JUDGEMENT

(1.) Rule. Learned Counsel for the Respondents waive service. The petition was taken up for final hearing in view of the urgency and importance of the issue involved and was heard in extenso. The Petitioner has invoked Article 226 of the Constitution to challenge order dated 29-1-2010 of the Additional Development Commissioner, whereby original order dated 22-6-2009 of the District Development Officer was set aside, thereby setting at naught suspension of Respondent No. 3 ordered in exercise of powers under Section 59 of the Gujarat Panchayats Act, 1993 (for short the Act). The Petitioner is the original complainant in the FIR registered as C.R. No. 125/2009. dated 7-6-2009 and wherein Respondent No. 3. Sarpanch of Village-Jagudan, is accused No. 1. The complaint is for the offences punishable under Sections 147, 148, 149, 337, 323 and 427 of the Indian Penal Code. There is no dispute about the facts that Respondent No. 3 was arrested and taken into custody on 8th June, 2009 and he remained under arrest till 10th July, 2009. During that period show cause notice dated 16-6-2009 was issued to Respondent No. 3 calling upon him to show cause why he should not he suspended from the office of Sarpanch in accordance with the provisions of Section 59 of the Act. After affording to that Respondent an opportunity of being heard, original order dated 22-6-2009 was made to temporarily suspend him on the basis that he appeared to he involved in the offences involving moral turpitude in respect of winch penal proceedings were instituted. Obviously, that order was made while the Respondent was in judicial custody. The District Development Officer considered the fact that Petitioner herein was alleged to have been called at the panchayat office and beaten with logs and hockey and had fractures on his body. There was no dispute about the fact that the Respondent was in jail for nearly 35 days, and hence, could not discharge his duties as a Sarpanch.

(2.) Upon that Respondent filing an appeal, it was argued on his behalf that DDO was required to apply his mind to the aspect of moral turpitude involved in the alleged acts of the Respondent. By acceding to that argument, the additional Development Commissioner held in the impugned order that the authority ought to have taken the facts and circumstances of the case into consideration and closely examined whether the element of moral turpitude was involved in the offences alleged against Respondent No. 3. Only on the ground that the original order did not take into consideration several judgments of this Court, it was held that it was difficult to consider the Respondent's offences to be in the category of offences involving moral turpitude. Being aggrieved by such order, the Petitioner is before this Court with the contention that the impugned order in appeal is obviously and obnoxiously perverse and illegal.

(3.) Arguing for the Respondent-Sarpanch, learned Senior Advocate, Mr. P. M. Thakkar submitted that the appellate authority was right in insisting upon proper application of mind by the DDC) as far as the aspect of moral turpitude in the alleged offences was concerned. He further submitted that this Court need not substitute its own judgment and reasoning for the original order insofar as it was the appropriate authority which has to properly apply its mind and such application of mind to the most important aspect must be explicit in the order itself. Learned Counsel , relied upon judgment of this Court in Thakorbhai Bhagabhai v. D.D.O., Surat and Anr., 1980 1 GLR 966, to submit that criminal proceedings must have been initiated against the concerned office bearer or the Panchayat for the offences involving moral turpitude and before such an office bearer can be removed, he must be charged with the offences arising out of an act which is dishonest immoral or unethical. It is further observed in the judgment that the words involving moral turpitude should not be given restrictive meaning, nonetheless, the officer concerned must be imputed with the act constituting offence which is dishonest or immoral or with conduct which is unethical as to render him unfit to hold the office. This Court therein quoted a paragraph from the judgment of the Supreme Court in the matter of Mr. P. an advocate,, AIR 1963 SC 1313, wherein Gajendragadkar, J. inter alia, observed in the context of a case against an advocate that any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. Thus, instead of prescribing a straight-jacket formula for examining the element of moral turpitude, the Supreme Court appears to Wave given wider meaning to the phrase involving moral turpitude. On the factual side, it was also submitted by learned Senior Advocate that the Respondent Sarpanch had also filed his complaint against the original complainant, the Petitioner herein, and a charge sheet was also filed against original complainant in relation to the same incident. Be that as it may, the fact remains that the Respondent Sarpanch was in jail at the relevant time and not only the offences involving moral turpitude were alleged against him in the FIR, subsequently even a charge sheet for the same offences is already filed in the criminal Court against him.