Sri Damodar Dass Attra v. State of U. P. — 1956 DIGILAW 443 (ALL)

JUDGMENT Gopalji Mehrotra, J. - This is an application u/Art. 226 of the Constitution praying that a writ of certiorari be issued quashing the order of suspension dated 9-8-1956 passed against the Petitioner and proceedings u/s 40(3) of the Municipalities Act taken against the Petitioners with all costs. It is further prayed that a writ of mandamus be issued directing the State of UP not to interfere in any manner with the functioning of the applicant as a member of the Municipal Board, Etah. The Petitioner was elected as a member of the Municipal Board of Etah in October, 1953. The Board consists of a President and sixteen members. On 8-9-1955 proceedings u/s 48 of the UP Municipalities Act were started against Sri Parshottam Dass Sarraf who was elected as the President of the Board. A petition u/Art. 226 of the Constitution was filed by him challenging the validity of the proceedings taken against him by the State Government, which was rejected on 17-1-1956 by this Court and a special appeal against the decision of a single Judge is pending before a Bench. In the year 1955, Piarey Lal Sharma, was elected as Senior Vice President of the Board. His election was also challenged by means of Writ Petition No. 1155 of 1955 in this Court. This petition, however, was rejected subsequently on a certain statement made by counsel of the Petitioner on 18-1-1956. On 10-8-1956 an order of suspension was served upon the applicant u/s 40 of the Municipalities Act, and it is this order which is being challenged by means of this writ petition. Notices were issued to the opposite parties, the State of UP and the Joint Secretary to Government, UP, Municipal (A) Department, and a counter affidavit has been filed on behalf of the State. Notices were issued to the opposite parties, the State of UP and the Joint Secretary to Government, UP, Municipal (A) Department, and a counter affidavit has been filed on behalf of the State. Subsequent to this, a meeting was held for the election of the Senior Vice Chairman and that was also challenged by means of a writ petition in this Court which was allowed: By a letter dated 9-8-1956 from the joint Secretary to the Government of UP to the District Magistrate of Etah, the Petitioner was asked to show cause within fifteen days of the receipt of the order as to why he should not be removed from the membership of the Board under Sub-section (3) of S. 40 of the UP Municipalities Act on account of the charges set forth in the list furnished with that letter. The charges are as follows:- That he has so flagrantly abused his position as a member of the Board as to render his continuance as a member detrimental to public interest. The following are the instances: (1) he has deliberately and with a view to shield Sri G.S. Mathur, Executive Officer, under suspension, withheld certain records including cash payment vouchers entrusted to him under the Board's Resolution No. 18 dated 8-2-56 in connection with an inquiry into the allegations of embezzlement levelled against Sri G.S. Mathur, and certain other payment vouchers and records requisitioned by him (Sri Attra) and passed to him for report. He has not cared to return the same to the Board inspite of repeated reminders ; (2) he has deliberately avoided submission of accounts of the Board of a total sum of Rs. 950 drawn from the Municipal fund in the name of the Executive Officer and handed over to him (Sri Attra) with the approval of the Board for pairvi in S. A. No. 19 Sri Purshottam Das v. State and others and Misc. Writ No. 1150/1955 Dr. Sohan Lal v. Municipal Board, Etah, etc. 2. Along with this, an order of suspension was passed with the following terms: that in exercise of the powers conferred by sub S. (5) of S. 40 of the Municipalities Act, 1916 (II of 1916), the Governor has been pleased to order immediate suspension of Sri Damodar Das Attra from the membership of Municipal Board, Etah, pending completion of the proceedings started against him referred to above. In the counter affidavit filed on behalf of the opposite parties it is stated that the proceedings against the Petitioner were bona-fide and that he deliberately withheld the papers. S. 40 of the Municipalities Act provides that State Government in the case of city, or the Prescribed Authority in any other case, may remove a member of the board on any of the grounds enumerated in Cls. (a) to (f) of sub S. (1). Sub S. (3) of S. 40 further provides that the State Government may remove from the board a member who in its opinion has so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member, detrimental to the public interest. Sub S. (4) of S. 40 reads as follows:- Provided that when either the State Government or the Prescribed Authority, as the case may be, proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned and when such action is taken the reasons therefore shall be placed on record. Sub S. (5) of S. 40 further empowers the Commissioner to suspend a member against whom proceedings u/s 40 (3) have been started. S. 40 (3) empowers the State Government to remove a member if he, in its opinion, has so flagrantly abused his position as a member that his continuance will be detrimental to the public interest. After the State Government has formed an opinion and before the actual order of removal is passed, an opportunity has to be given to the member to explain his conduct and the further requirement of an order of removal is that it should contain reasons. No final order so far has been passed by the State Government, and the question which arises for consideration is whether the State Government can be prohibited at this stage from proceeding further with the inquiry into the matter. Before the State is to give an opportunity to the member to explain his conduct, it has got to form its own opinion on the materials placed before it if he has so flagrantly abused his position as a member so as to make his further continuance detrimental in the public interest or not. Before the State is to give an opportunity to the member to explain his conduct, it has got to form its own opinion on the materials placed before it if he has so flagrantly abused his position as a member so as to make his further continuance detrimental in the public interest or not. In the letter which is sent along with the charges it does not expressly even specify that the State Government has formed any opinion that the Petitioner should be removed as he has flagrantly abused his position as a member so as to render his continuance detrimental to the public interest. The section requires that the State Government should not only come to a conclusion that a member has flagrantly abused his position as a member, but that the abuse should be of such a nature as to render his further continuance detrimental to the public interest. There may be cases where even assuming that an act by a member amounts to a flagrant abuse of his position it may still not be such a one as to render his continuance detri mental to the public interest. It may equally be contended that every failure to carry out one's duties may not be a flagrant abuse of his position. If it is established that there was no material before the Government to form any opinion on these as to requisite conditions for the exercise of the powers u/s 40 (3) or if it is established that the charges have no relation to the conditions necessary for the exercise of power u/s 40, the very foundation for the exercise of the powers u/s 43 vanishes and this Court can issue a writ prohibiting the State Government from further proceeding with the matter. If further proceedings are quashed the order of suspension automatically should come to an end. The main contention raised by the Petitioner is that from the order it does not appear that the State Government at any stage formed an opinion that the Petitioner had flagrantly abused his position in such a manner as to render his further continuance detrimental to the public interest. The main contention raised by the Petitioner is that from the order it does not appear that the State Government at any stage formed an opinion that the Petitioner had flagrantly abused his position in such a manner as to render his further continuance detrimental to the public interest. The letter which was sent to the Petitioner only stated that he should show cause as to why he should not be removed from the Board and in the absence of anything else on the record it cannot be held on a perusal of the order that at any stage the State Government formed an opinion that the Petitioner had flagrantly abused his position. As I have pointed out, S. 40 (3) does not contemplate that if certain complaints are brought to the notice of the State Government, the State Government should straight away give opportunity to the member to explain the allegations and suspend him pending the inquiry. The notice itself depends upon the formation of an opinion by the State Government, and the reason for that is that as soon as the opinion is formed, the State Government has been authorised to suspend a member during the pendency of the inquiry. It is also necessary that before an opportunity is afforded to a member to explain his conduct, the State Government must have the materials before it, on which it can form an opinion. 3. Regarding the next question whether the charges have any relation to the subject matter of S. 40 (3), it is necessary to refer to some of the facts of the case as disclosed in the affidavit filed by the parties. The Petitioner was appointed a member of a certain committee which was entrusted with the work of investigating into the conduct of the Executive Officer. In that connection, certain documents and certain files were entrusted to the Petitioner and a dispute arose between the Board and the Petitioner as regards the return of these documents. The Chairman, it appears, was insisting upon the return of these documents by the Petitioner. In that connection, certain documents and certain files were entrusted to the Petitioner and a dispute arose between the Board and the Petitioner as regards the return of these documents. The Chairman, it appears, was insisting upon the return of these documents by the Petitioner. The Petitioner, on the other hand, was insisting upon a date being fixed for the consideration of the report and he was further insisting that he was willing to place the report and connected documents only before the Board on the date fixed for the meeting to be convened for the consideration of the report. He was not prepared to send the report for being looked into by the members of the Board before the meeting actually convened. 4. The second dispute between the Chairman and the Petitioner was as to how the documents were to be returned. The Petitioner was insisting upon a receipt signed by a proper authority to be given to the Petitioner before he handed over the documents. At one stage, it appears that, the Chairman had agreed to send some clerk to bring the record. Whether that man reached him or not is a matter of controversy between the parties. It appears that ultimately that matter was brought to the notice of the District Magistrate, who by his letter had fixed the 13th of August for the return of the document by the Petitioner. But before that could be done, the order of suspension had been passed. Under these circumstances, it cannot be said that the insistence on the part of the Petitioner not to return the documents could be regarded as a flagrant abuse of his position as a member so as to render his continuance detrimental to the public interest. It has been asserted in the charge that this was deliberately done with a view to help Mr. Mathur, the Executive Officer. It is not suggested in the charge in what manner the withholding of the documents would have resulted in the benefit to Mr. Mathur nor is it suggested in this charge as to how the Petitioner was interested in going out of his way to help Mr. Mathur. 5. The next charge against the Petitioner is that he did not submit the account of certain money which was advanced to him in connection with the conduct of a case in this Court. Mathur nor is it suggested in this charge as to how the Petitioner was interested in going out of his way to help Mr. Mathur. 5. The next charge against the Petitioner is that he did not submit the account of certain money which was advanced to him in connection with the conduct of a case in this Court. As I have already pointed out, at an earlier stage, a petition had been filed by Parshottam Dass Sarraf challenging the proceedings u/s 48 against him and in that connection the Petitioner was interested to come to this Court and give necessary instructions to the counsel here on behalf of the Board. It is not denied that a sum of Rs. 900 and odd was advanced to the Petitioner for meeting the expenses of the case, and it is also not denied that the Petitioner came to Allahabad to give the necessary instruction along with an employee of the Municipal Board. The charge, however, is that inspite of repeated reminders the Petitioner failed to submit any account. There is no suggestion that the Petitioner misappropriated the sum. The only allegation, as I have already said, is that he failed to render an account of that sum. That, to my mind, cannot by itself be a flagrant abuse of his power so as to render his continuance detrimental(sic) to public interest. Apart from that, the Petitioner had written a letter to the District Magistrate in which he clearly stated that out of the sum of Rs. 900 and odd advanced to the Petitioner, he had to spend about Rs. 141-6-0 towards travelling expenses and a sum of Rs. 732 was paid to the counsel of the Board. The counsel had sent a detailed memo of the expenses and his receipt was also sent along with the account. As regards the balance, the Petitioner had stated that Piarey Lal Sharma owed Rs. 55 to him and he had asked him to pay the balance out of that amount. In case he had not done so, the Petitioner was willing to return the balance. The Petitioner had, therefore, given a detailed account of the amount sanctioned for meeting the expenses of the case. 55 to him and he had asked him to pay the balance out of that amount. In case he had not done so, the Petitioner was willing to return the balance. The Petitioner had, therefore, given a detailed account of the amount sanctioned for meeting the expenses of the case. The state had filed an affidavit by an employee of the Board to the effect that all the money which was spent and which was paid to the counsel was done through the Petitioner and the memo of expenses which had been handed over by the counsel was signed by Rahmat Masih at the instance of the Petitioner. In the first place, there is no assertion in the charge that the account which was given by the counsel was a false account and it was deliberately done at the instance of the Petitioner and, secondly, this Court will not go into that question in this case. The fact of the matter, however, is that the Petitioner had given an account of the money which he had received and if the Board had any doubt about the correctness of that account, it could have investigated into the matter. But it cannot be said that this charge by itself is such as to amount to a flagrant abuse of his position as a member. The State Government further emphasises the fact that the assertion of the Petitioner that the balance would be paid by Piarey Lal Sharma was an attempt on his part to misappropriate the balance and to avoid payment on a pretext. It was open to the Board to have inquired from Piarey Lal Sharma if he owed any money to the Petitioner and if the State Government had come to the conclusion that the statement of the Petitioner was incorrect and it was done deliberately with a view to find out a pretext for non-payment, that should have been definitely made the subject-matter of the charge. In the absence of any specified detail in the charge, it cannot be said that sufficient opportunity was given to the Petitioner to meet the charges. 6. It was contended by the State Government that all this matter is in the nature of evidence to support the charge and whether the evidence is sufficient or not is a matter which is within the exclusive jurisdiction of the State Government. 6. It was contended by the State Government that all this matter is in the nature of evidence to support the charge and whether the evidence is sufficient or not is a matter which is within the exclusive jurisdiction of the State Government. this Court, at any rate, will not interfere on the ground that the material was not sufficient for the State Government to come to the conclusion that inquiry should be started against the Petitioner. As I have said, the question can be considered from two aspects. Firstly, before proceeding against the Petitioner, the State Government had to form its opinion that the Petitioner had so flagrantly abused his position as to render his continuance detrimental to the public interest and in the present case there is nothing in the order to indicate that such an opinion had been formed. Nor can it be said that there was material before the State Government to come to a conclusion on that point. If the charges can be regarded as an indication of the material, the charges by themselves have no relation to the conditions under which power could he exercised u/s 40 (3) of the Municipalities Act. If it is considered that the charges coupled with other facts which are now sought to be brought on the record by the counter-affidavit were sufficient to come to a prima facie conclusion that the Petitioner had abused his position as they were the materials which were before the State Government, they should have been mentioned in the charge in sufficient detail and then it could have been argued by the State Government that the material was before the State Government to form an opinion and it would have also afforded sufficient opportunity to the Petitioner to meet the charges. The absence of the sufficient details in the charges makes the charge itself vague and it cannot be said that opportunity had been given to the Petitioner as required u/s 40 (4) to explain the charges. 7. In the result, therefore, I would allow this petition, quash the order of suspension passed by the State Government, and further, issue a writ of prohibition directing the State Government not to proceed further with the matter. The petition is allowed with costs.