SATTARBHAI ALIBHAI PATNI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By means of this petition, the petitioner has sought for quashing and setting aside the impugned order dated 13.1.1999 passed by the respondent no. 2 Director of Municipalities, Ahmedabad whereby the petitioner has been removed from the office of councillor of Dhoraji Municipality.

(2.) The petitioner was elected as a councillor of Dhoraji Municipality. This petition has been filed on the allegation that he was elected as a councillor of the municipality and is functioning as a councillor with effect from 3.1.1996. The petitioner was also elected as a Chairman of the Transport Committee of the Municipality. On account of consecutive five public holidays in April 1998, the municipality was closed consecutively for five days from 8.4.1998 onwards. The petitioner being the Chairman of the Transport Committee was informed that the vehicles attending emergency duty, like ambulance, water pumping department, vehicles looking after street lights etc. needed diesel and an amount of Rs.75000.00 was outstanding towards diesel bill and so diesel pump operators had stopped giving diesel to the municipality on credit. Therefore, the diesel in vehicles was required to be purchased by cash only. The petitioner had informed the President that the diesel in the vehicles attending emergency duties was required to be purchased and for that purpose, needful action be taken. Therefore, by an order dated 10.4.1998, permission was granted by the President that an amount of Rs.5000.00 be taken advance from Jetpur octroi naka and the bills of expenditures were directed to be prepared and submitted and the amount be credited towards advance account. One Jagdish Savalia was the driver and he went to the naka clerk Chhaganbhai Rathod with the order of the President and requested for an amount of Rs.5000.00. At that time, at the request of Jagdish Savalia, the petitioner had accompanied him as the matter related to his department. The petitioner also instructed the clerk to carry out orders passed by the President for payment of Rs.5000.00 towards purchase of diesel for vehicles and the advance of Rs.5000.00 for diesel for the vehicles of the municipality was handed over to Jagdish Savalia, driver by the octroi clerk in the night of 10.4.1998. Savalia submitted bills in that respect in the concerned office. However, under political pressure, after a period of seven months of the above incident, a show cause notice dated 26.11.1998 was issued by the respondent no. 2 Director of Municipalities, in exercise of the powers under section 37 of the Gujarat Municipalities Act (hereinafter referred to as the Act) alleging that on an inspection made on 1 2/04/1998 by the Mamlatdar, an amount of Rs.5000.00 was found deficit in cash of the octroi Naka and it was found that the President had taken the amount of Rs.5000.00 on 10.4.1998 for which accounts had not been submitted and the petitioner was called upon as to why he should not be removed for the misconduct as a councillor. The petitioner submitted his reply to the show cause notice before respondent no. 2 explaining that on account of five consecutive holidays, it was absolutely unavoidable to purchase diesel for the vehicles. The President had passed the order dated 10.4.1998. On the basis of that order, the amount of Rs.5000.00 was advanced to the concerned employee Mr. Jagdish Savalia-driver for taking diesel in the vehicles etc. NO amount was taken by the petitioner. The bills were submitted by the driver to the department concerned. No action can be taken against the petitioner as the petitioner has not committed any act amounting to misconduct as alleged in the show cause notice. The petitioner also submitted an affidavit of the octroi clerk who had given the amount of Rs.5000.00 to the driver stating that he had not paid any amount to the petitioner, but the same was paid to the driver as per the order of the President. The respondent no. 2 after considering the material on record, passed the impugned order for removing the petitioner from the office of the councillor of the municipality.

(3.) Heard the learned counsel for the parties and perused the relevant papers on record. No counter affidavit has been filed by any of the respondents.