Mohd. Akhtar v. State of U. P. — 1971 DIGILAW 571 (ALL)

ORDER R.L. Gulati, J. - This is a petition Under Article 226 of the Constitution. 2. The Petitioner Mohd. Akhtar, is the President of the Municipal Board, Manglaur, district Saharanpur. It appears that certain members of the Municipal Board lodged a complaint against him to the State Govt. The State Govt. passed on the complaint to the DM Saharanpur for a report. An enquiry was made by the SDM, Roorkee and he submitted a report. In this report the SDM stated that during the enquiry the Petitioner had admitted that a sum of Rs. 1200/-, which was taken as advance from certain toll barriers, was deposited late. The report of the SDM was forwarded by the DM to the State Govt. along with a covering letter. The Petitioner was thereupon served with a charge-sheet u/s 48(2)(b)(vi) of the U.P. Municipalities Act, 1916. The charge was that the Petitioner had embezzled a sum of Rs. 1200/- collected from certain octroi barriers and had wrongfully utilised the amount for his own benefit for a period of three months. The Petitioner submitted a written explanation denying the charge of embezzlement. He explained that the money was withdrawn by the Secretary and remained in his custody all along until it was deposited in the Bank. The State Govt. was not satisfied with this explanation and passed an order dated March 31, 1970 u/s 48(2A) of the Act removing the Petitioner from his office. The present petition is directed against that order. 3. The impugned order has been attacked on various grounds. The first ground of attack is that the charge on the basis of which the impugned order has been passed is different from the charge as disclosed in the charge-sheet. According to the charge-sheet the Petitioner had himself embezzled the sum of Rs. 1200/- and had wrongfully used it for a period of three months. In the impugned order it has been stated that the Petitioner was instrumental in the amount being temporarily embezzled. The second ground is that the State Govt. had taken into consideration, while passing the impugned order, the report of the SDM, Roorkee and of the DM, Saharanpur but these documents were not disclosed in the charge-sheet nor was the Petitioner confronted with them and he was thus denied the opportunity of meeting the case against him. The second ground is that the State Govt. had taken into consideration, while passing the impugned order, the report of the SDM, Roorkee and of the DM, Saharanpur but these documents were not disclosed in the charge-sheet nor was the Petitioner confronted with them and he was thus denied the opportunity of meeting the case against him. The third ground is that no charge of misconduct as contemplated by Section 48(2)(b)(vi) could be said to have been established against the Petitioner. 4. It is not necessary to deal with the first two contentions even though there appears to be some force in them, because the Petitioner, in my opinion, is entitled to succeed on the third ground. 5. u/s 48(2)(b)(vi) of the Act the State Govt. is authorised to take action against a President of a Municipal Board if the State Govt. is satisfied that the President has been guilty of misconduct in the discharge of his duties. The facts of the case do not, in my opinion, disclose any misconduct. What appears to have happened is contained in the written explanation submitted by the Petitioner to the State Government during the enquiry. The explanation is contained in Annexure 'B' to the writ petition which has been sworn to be true. The correctness of this explanation has not been denied by the Respondent State. According to the explanation of the Petitioner a sum of Rs. 1200/- was withdrawn by the Secretary from six toll barriers on various dates between April 12, 67 and May 19, 67. From barrier No. 3, however, a sum of Rs. 44/- instead of Rs. 50/- was collected. Thus there was a shortage of Rs. 6/-. This shortage was due to the fact that the peon in-charge of the Barrier No. 3 had by mistake allowed an excess refund of Rs. 6/- to a Truck driver. One Mohd. Illiyas, a Clerk in the Municipal Board prepared a report for the President on 16-5-67 pointing out the shortage of Rs. 6/-. It was also mentioned in the report that the shortage was proposed to be recovered from the peon concerned. President's instructions were sought as to whether the sum of Rs. 1194/- should be deposited in the Bank or should be kept in the custody of the Secretary until the shortage was made up. 6/-. It was also mentioned in the report that the shortage was proposed to be recovered from the peon concerned. President's instructions were sought as to whether the sum of Rs. 1194/- should be deposited in the Bank or should be kept in the custody of the Secretary until the shortage was made up. On this report the Secretary made the following endorsement: Report anusar : Rakam Secretary Mahodey Ki Tahvil men rakhi Jave. The President approved this proposal and put his signature below the endorsement of the Secretary. Accordingly the money remained in the custody of the Secretary until a second report was submitted by Mohd. Illiyas on July 17, 1967 saying that the deficiency had since been made good and the amount should be deposited in the Bank. The President approved and the money was deposited in the Bank. 6. It may be true that the procedure adopted for the disposal of the municipal funds was not a proper procedure. Perhaps it would have been better if the sum of Rs. 1194/- had been deposited in the bank straightaway leaving the deficiency of Rs. 6/- to be made good later but the Petitioner acted in accordance with the advice tendered to him by the Secretary and allowed the amount to remain in the letters custody. The amount of Rs. 1200/- was deposited in the bank as soon as the deficiency had been made good. From these facts it is impossible to hold that the President was guilty of any embezzlement nor can it be said that he was instrumental in the embezzlement of the municipal funds. At worst it was an instance of carelessness on the part of the Petitioner. However, every lapse or carelessness does not amount to misconduct. Misconduct is a very strong word and means a positive and deliberate wrongful act. To me it appears that it was a case of bona-fide mistake. There being no misconduct Section 48(2A) did not come into play at all and the State Government had no jurisdiction to pass the impugned order. 7. For the reasons stated above, this petition succeeds and is allowed with costs. The order of the State Government dated March 31, 1970 is quashed.