Government Pleader For Res. No. 1

Order - Status 5: FARAD CONTINUATION SHEET NO . IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.4652 OF 2011 Office Notes, Office Memoranda of Coram, am, Court's or Judgo's orders appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.C.G.Gavnekar for the petitioner. Ms M.P.Thakur, A.G.P. for resp. nos.1 & 2. CORAM : D.D. SINHA & A.R.JOSHI,JJ. DATE : JUNE 27, 2011. P.C.: Heard the learned counsel for the petitioner. Notice, returnable on 11.7.2011. The learned Asstt. Govt. Pleader waives notice on behalf of the respondent nos.1 & 2. (D.D. SINHA, J.) (A.R. JOSHI, J.)

Order - Status 9: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4652 OF 2011 Subhash Prabhakar Patil ..Petitioner versus State of Maharashtra & Anr. ..Respondents Mr. C. G. Gavnekar for Petitioner. Mr. P. M. Palshikar - 'A' Panel Counsel and Mrs. M. P. Thakur - Assistant Government Pleader for Respondents. CORAM : D. D. SINHA & A. R. JOSHI, JJ. 27 July 2011. P.C. : Learned counsel for the petitioner seeks leave to amend the year of The Maharashtra Zilla Parishads and Panchayat Samitis (Presiding Authorities) (Removal From Office Due to Misconduct) Rules. It is submitted that inadvertently it is mentioned in the petition that those Rules are of 1994 whereas they are of the year 1995. Leave granted. Appropriate amendment be carried out forthwith. Heard the learned counsel for the petitioner and the respondents. Rule. Learned counsel for the respondents waives service on behalf of the Respondents. Learned counsel for the petitioner has submitted that in the present petition the petitioner has raised challenge to the validity of sub rule 6 of rule 3 of The Maharashtra Zilla Parishads and Panchayat Samitis (Presiding Authorities) (Removal from Office Due to Misconduct) Rules 1995. Sub rule 6 reads thus : "On the date fixed for the inquiry, the oral and documentary evidence shall be produced by or on behalf of the complainant. The witnesses shall be examined by or on behalf of the complainant and may be crossexamined by the Presiding authority against whom there are charges of misconduct. However no legal practitioner shall be allowed to appear on behalf of the complainant or the Presiding authority." The learned counsel for the petitioner has submitted that Section 50 of The Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 deals with removal of President or a Vice-President. The petitioner is a President of Raigad Zilla Parishad and the proceedings are initiated against him on the ground of misconduct in discharge of his duties and therefore the procedure which the respondents need to follow is stipulated in Section 50 of the Act. It is contended that proviso to Section 50 contemplates that no President or Vice-President shall be removed from office unless he has been given a reasonable opportunity to furnish an explanation. It is further contended that Section 274 of the Act gives powers to the State Government to make rules, not inconsistent with the provisions of the Act, for the purpose of carrying in to effect the provisions of the Act. It is contended that sub section (2) also empowers the State Government to make rules for all or any of the following matters which are mentioned in sub section (2). It is submitted that Section 274(2) does not clothe State Government to make rule regarding removal of President or Vice President as stipulated in section 50 of the Act nor the State Government is competent to make rule inconsistent with the provisions of section 50 as per sub rule 1 and section 274 of the Act. The counsel for the petitioner therefore contended that to comply with the doctrine of natural justice as contemplated by provisions of section 50 before a President or Vice-President is removed from the office, the request made by the petitioner to permit him to be represented by lawyer at the time of inquiry is just, proper and is consistent with the provisions of Section 50. The learned counsel for the respondents on the other hand has submitted that the State Government has a power to make rules in view of provisions of section 274 sub sections (1) and (2). It is contended that sub clause (li) gives power to make rules in respect of any other matter under the Act and therefore the State Government is clothe with power to make rules even in respect of contingencies mentioned in section 50 of the Act. Sub rule 6 of rule 3 only prohibits legal practitioner to appear on behalf of the complainant or the presiding authority in the inquiry proceedings undertaken for removal of President or a Vice President as per procedure stipulated under section 50 of the Act, however petitioner will be given full opportunity to participate in the inquiry. It is therefore contended that the challenge raised by the petitioner to sub rule 6 of rule 3 is misconceived and bad in law. We have considered the rival contentions and also considered the relevant rules relied on and cited by the learned respective counsel for the parties. The questions which fall for our consideration are as follows: i. Whether the State Government is clothed with the power to make rules under Section 274(2) pertaining to contingencies stipulated in section 50 of the Act which deals with removal of a President or a Vice President? ii. Proviso 1 to section 50 contemplates that no President or a Vice President shall be removed from the office unless he has been given reasonable opportunity to furnish an explanation and therefore whether the concept of reasonable opportunity to furnish explanation includes such person can be represented by lawyer at the time of such inquiry or proceedings. iii. Even if it is presumed for the sake of argument that the State Government may have a power in respect of the contingency as mentioned in section 50 of the Act, even then whether the State Government can make a rule inconsistent with the provisions of section 50 of the Act such as sub rule 6 of rule 3 of the Rules, which prohibits President or Vice President being represented by lawyer in such inquiry proceedings, whereas section 50 of the Act does not stipulate such prohibition. The learned counsel for the petitioner has submitted that in the circumstances the interim relief in terms of prayer clause (f) may kindly be granted during the pendency of the petition. The learned counsel for the respondents opposed the prayer made by the counsel for the petitioner. Considered the rival contentions for grant of interim relief and perused the relevant provisions of the Act and the Rules. Taking the over all view of the matter, though it is not possible to give findings on the issues involved in the present case at this stage, however, we are prima facie of the view that the case is made out for grant of interim relief. If the interim relief is not granted and if the inquiry commenced against the petitioner is permitted to go on the petition will become infructuous. Therefore we grant interim relief in terms of prayer clause (f) of the petition during the pendency of the petition. Considering the issue involved, respective counsel prayed that the hearing of the petition may be expedited. In the circumstances, hearing of the petition is expedited. (D. D. SINHA, J.) (A. R. JOSHI, J.)