Bjharilal Tikaram v. Government of Madhya Pradesh — 1982 DIGILAW 232 (MP)

ORDER A.R. Navkar, J. This is a petition under Article 226/227 of the. Conslitu-of India for issuance of the writ of certiorari or any other writ, direction or order which may be suitable in the circumstances of the case for quashing the order passed against the petitioner by Director, Mandi, Madhya Pradesh, on 13-10-1981 (Annexure-III). The facts of the case are that the petitioner was duly elected as a Member of the Krishi Upaj Mandi Samiti, Joura, District Morena (hereinafter referred to as the Samiti) and he was also elected as President of the Samiti as per provisions of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as the Adhiniyam). The petitioner took over the charge of the post in September 1979. While he was working so, he was given a show-cause notice on 18-9-1981 under section 55(1) of the Adhiniyam and certain charges were levelled against him. The petitioner has alleged that charges framed against him were baseless, but he filed a detailed parawise reply to the same. The non-petitioner without giving the opportunity of hearing dismissed the petitioner from the post of Chairman and also from the membership of the Samiti and asked him to hand over the charge. Further, the order which is Annexure III proposes a penalty of debarring him for six years from the. date of the order from getting re-elected or renominated as a member of the market Committee. The Annexure III mentions that action is taken under section 55(1) of the Adhiniyam, but in fact, it is taken under section 55(2). Much was made of the wrong mention of the section by Shri S. K. Dubey, learned counsel for the petitioner, but, we are -of the opinion that mere wrong mention of the section will not vitiate the inquiry. Other point submitted by the learned counsel for the petitioner was that no inquiry was made and no opportunity to cross-examine was given and no opportunity to lead evidence in defence was given so also no personal hearing was given, but in our opinion, these submissions have no force and they arc to be rejected. The learned counsel for the petitioner referred us to the following rulings in support of his submission. H-e referred to Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851 and relied on the following passage. The learned counsel for the petitioner referred us to the following rulings in support of his submission. H-e referred to Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851 and relied on the following passage. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. AIR 1952 SC 16 , Rel. on." The above passage has no application to the present case at all. The order under challenge is based on grounds and it mentions what facts are considered before passing the .order and in deciding the matter, we are not taking into consideration any fresh reasons or grounds in the shape of affidavit or otherwise to support the order. We are considering the validity of the order on its merits. Then, the learned counsel for the petitioner has referred to us to Maneka Gandhi v. Union of India AIR 1978 SC 597 and submitted that in the case of the petitioner, principles of natural justice and procedure established by law is not followed. He relied on the following passage in support of his submission: Per Bhagwati J. (jointly with Untwalia and Murtaza Fazal Ali JJ.); rest of the Judges concurring; There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S. A. de Smith in Judicial Review of Administrative Action, 2nd Edn. at pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any way militate against the principle which requires fair play in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to 'fair play in action', but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to 'fair play in action', but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absured' stultifying, self-defeating or plainly contrary to the common sense of the situation, since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental test, be excluded, if importing the right to be heard has the ' effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. -It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances." The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing may not an empty public relations exercise. The core of it must, however, remain namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing may not an empty public relations exercise. That is why Tuckler L. J. emphasised in Russel v. Duke of Norfolk (1949) 1 AlER 109 that "whatever standard of natural justice is adopted, one essential is that .the person concerned should have a reasonable opportunity of presenting his case." What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal; it may be a hearing prior to the decision or it may even be post decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in Wiseman v. Sorneman 1971 AC 297 when he said that he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham L.. C, also observed in Pearl Berg v. Varty (1971) 1 WLR 728 that the Courts "have taken an increasingly sophi-stibated view of what is required in individual cases." It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a pass-port might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport "Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are. required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plea for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967, by necessary implication as we hold it must be, the procedure prescribed by the Act for impounding a , passport would be right,, fair and must and it would not suffer from the ' vice of arbitrariness or unreasonableness. We must therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity 'with the requirement of Article 21 and does not fall foul of that article." But, in our opinion, the submission cannot be accepted as the provisions under section 55 of the Adhiniyam give specific procedure and that section is as under:- Removal of member, Chirman and Vice-Chairman of Market Committee. (I) The State Government may on its motion or on a resolution passed by a majority of two-third of the members constituting the market committee for the time being remove any member of the market committee for misconduct or neglect of or incapacity to perform his duty and on such removal he shall not be re-elected or renominated as a member of the market committee for a period of six years from the date of such removal; Provided that no order of such removal shall be passed unless such member has been given a reasonable opportunity of showing cause why such order should not be passed. (2) The Director may .remove any Chairman or Vice-Chairman of a market committee from his office, for miscouduct, or neglect of or incapacity to perform his duty or for being persistently remiss in the discharge of his duties and on such removal the Chairman or Vice-Chairman, as the case may be, shall not be eligible for re-election as Chairman or Vice-Chairman during the remainder of his term of office as member of market committee : Provided that no order of removal shall be passed unless the Chairman or Vice-Chairman, as the case may be, has been given a reasonable opportunity of showing cause why such order should not be passed." It does not speak of elaborate inquiry as contemplated under Article 311 of the Constitution of India. It says that reasonable opportunity is to be given to him to show cause why action should not betaken against delinquent officer. In this case, a show cause notice was given and a reply was taken and personal hearing, though not contemplated under the section was given to the petitioner. Therefore,- the submission of the learned counsel for the petitioner that as there is no proper inquiry, the order is bad in law, cannot be accepted and we reject the same. He relied on Siemens Engineering and Manufacturing Co. v. Union of India AIR 1976 SC 1785 , in which it is held as under :- It is now settled law that where an authority makes an order in exercise of quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic' principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. But, we have already observed that the order passed is speaking order and is supported by reasdns. Therefore, nothing additional has been submitted by the learned counsel by relying on the above ruling. Similar are the views expressed in Jagdish Prasad v. State of M. B AIR 7961 SC 1070. It is observed therein as under:- The departmental enquiry is not an empty formality. Therefore, nothing additional has been submitted by the learned counsel by relying on the above ruling. Similar are the views expressed in Jagdish Prasad v. State of M. B AIR 7961 SC 1070. It is observed therein as under:- The departmental enquiry is not an empty formality. It is a serious proceeding intended to give the officer concerned a chance to meet the charge and to prove his innocence. In the absence of any such enquiry it would not be fair to strain facts against the appellant and to hold that in view of the admissions made by him the enquiry would have served no useful purpose. That is a matter of speculation which is wholly out of place in dealing with cases of orders passed against public servants terminating their services. But, the case was under Article 311(2) of the Constitution of India and the inquiry contemplated under the provisions of section 55 of the Adhiniyam is not so wide as contemplated under Article 311(2) of the Constitution of India and we are of the opinion that observations made in the above ruling are not of much help to the petitioner. The inquiry held in the present case is sufficient and satisfies the provision mentioned in section 55 of the Adhiniyam. The learned counsel for the petitioner then wanted us to make a distinction between misconduct and neglect in doing his duties and he submitted that if there be any neglect on the part of the petitioner", it will not amount to misconduct. He has relied on M.V. Ittycheria v. State of Kerala AIR 1958 Ker 374 , in which it is observed as under: Ext. P-9 however speaks not a imputations of "misconduct" but of imputations of "irregularity" which as conceded by the learned Government Pleader is not the same thing. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edition p. 63) "Comprises positive acts and not mere neglect or failures. The definition of the word as given in Ballen-tine's Law Dictionary (1948 Edition) is: A transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand; it is a violation of definite law; a forbidden act. It differs from carelessness. The definition of the word as given in Ballen-tine's Law Dictionary (1948 Edition) is: A transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand; it is a violation of definite law; a forbidden act. It differs from carelessness. Unless misconduct is alleged and proved, no action can be taken against the petitioner and as Director, Mandi has failed to prove misconduct on the part of the petitioner, the order passed by him cannot be said to be legal and as such, it should be set aside. The learned counsel for the petitioner took us through the reply filed by the State and referred to us to paras 4 and 10(b) and 10(e) of the reply which are as under:- The contents of para 4 are denied. The charges framed against the petitioner were on the basis of several complaints and information received and as such cannot be said as baseless. It is admitted that the petitioner had filed the reply to the show cause notice. The contentions of the petitioner are denied on the basis of the following grounds:- *** *** *** (b) The reasons indicated above and the resolution passed thereby the petitioner was automatically authorised causes suspicions. ** ** ** (c) The question of excessive expenses has not been questioned but the action taken by the petitioner creates suspicion. and submitted that suspicion, however strong, cannot take place of proof and unless the charges are proved, no action should have been taken on mere suspicion. He referred to M/s. L. B. Ambica Ram v. J. T. Commr. AIR 1959 SC 1293, in which, it is observed as under :- The income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it the Supreme Court will not interfere. However, the finding of the Court of fact should not be vitiated by reason of its having relied upon conjectures, surmises and suspicions not supported by any evidence on record or partly upon evidence and partly upon inadmissible material. However, the finding of the Court of fact should not be vitiated by reason of its having relied upon conjectures, surmises and suspicions not supported by any evidence on record or partly upon evidence and partly upon inadmissible material. Where the fact finding authority acts without any evidence or upon a view of the facts which cannot reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law could have found, the Supreme Court is entitled to interfere, on no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures and surmises and if it does anything of the sort, its findings even though on questions of fact will be liable to be set aside by the Supreme Court: (1) (S) AIR 1955 SC 65 : AIR 1956 SC 554 : AIR 1957 SC 49 : AIR 1959 SC 1238 , Rel. on. Even if it is a case arising out of income-tax matter, the observations made in the said ruling do help the submission of the learned counsel for the petitioner. He also relied on the observations made in S.L. Kapoor v. Jagmohan AIR 198 TSC 136, which are as under :- The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. If ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. and submitted that it was necessary to observe the principles .of natural justice in the present case and as they are not observed, the order cannot be said to be legal and it should be set aside. The learned Government Advocate also relied on this ruling to submit that as the term of the petitioner as Chairman is over, no useful purpose will be served by holding that the order of removal of the petitioner as Chairman is void and illegal, but he further submitted that the order is valid and requires no interference by this Court. In support of his submission, the learned Government Advocate referred to A. K, Roy v. Union of India and submitted that the principles of natural justice must not be stretched top far and they are to be followed keeping in view the procedure prescribed under the Adhiniyam. It is observed in A. K. Roy's ease (supra) as under :- We do not suggest that the principles of natural justice vague and variable as they may be, are not worthy of preservation. As observed by Lord Reid in Ridge v. Baldwin (1964) AC 40, 64-65, the view that "natural justice is so vague as to fee practically meaningless" is tainted by "the perennial fallacy that because something cannot be cut and dried or rycely weighed or measured therefore it does not exist". But, the importance of the realisation that the rules of natural justice are not rigid norms of unchanging content, consists in the fact that the ambit of those rules must vary according to the context and they have to be tailored to suit the nature of the proceeding in relation to which the, particular right is claimed as a component of natural justice. Judged by this test, it seems, to us difficult to hold that a detenu can claim the right of cross-examination in the proceeding before the Advisory Board. . First and foremost, cross-examination of whom, the principle that witnesses must be confronted and offered for cross-examination applies generally to proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Crass-examination then becomes a powerful weapon for showing the untruthfulness of that evidence. . First and foremost, cross-examination of whom, the principle that witnesses must be confronted and offered for cross-examination applies generally to proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Crass-examination then becomes a powerful weapon for showing the untruthfulness of that evidence. In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts ffroved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on -the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of judicial or quasi-judicial tribunals, before which there, is.a lis to adjudicate upon. Apart from this consideration, it is a matter of common experience that in cases of preventive detention witnesses are either unwilling to come forward or the sources of information of the detaining authority cannot be disclosed without detriment to public interest. Indeed, the disclosure of the identity of the informant may abort the very process of preventive detention because, no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination. It is, therefore, difficult in-the very nature of things, to give to the detenu the full panoply of rights which an accused is entitled to have in order to disprove the charges against him. That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands. Just as there can be an effective hearing without legal representation even so, there can be an effective hearing without the right of cross-examination. The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether Jhesejights must be given as components of natural justice. In this connection, we would like to draw attention to certain decisions of our Court. In New Prakash. Transport Co. The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether Jhesejights must be given as components of natural justice. In this connection, we would like to draw attention to certain decisions of our Court. In New Prakash. Transport Co. Ltd. v. New Swarna Transport Co. Ltd. (1957) 1 98 106 AIR 1957 S C 232 at p. 236, it was observed that "the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the Legislature and in that sense the rules themselves must vary". In Nagendra Nath & ora v. Commr. of High Division (1958) SCR 1240 1261 : AIR 1958 SC 398 at p 409, the aforesaid statement was cited with approval by another Constitution Bench. In State of Jammu & Kashmir v. Bakshi Gulam Mohammad (1966) Supp SCR 401 at p 415 : AIR 1967 SC 122 at pp. 131, 132, it was argued that the right to hearing included the right to cross-examine witnesses. That argument was rejected by the Court by observing that the right of cross-examination depends upon the circumstances of each case and on the terms of the statute under which the matter is being inquired into. Citing with approval the passage in Nagendra Nath Bora, the Court held that the question as to whether the right to cross-examine was available had to be decided in the light of the fact that it was dealing with a statute under which a Commission of Inquiry was set up for fact-finding purposes and that the report of the Commission had no force proprio vigore. In support of his submission that the right of cross-examination is a necessary part of natural justice, Shri Jethmalani relies upon the decisions of this Court which are reported in Union of India v. T.R. Varma 1958 SCR 499 at p. 507 : AIR 1957 SC 882 and Khemchand v. Union of India 1958 SCR 1050 at p. 1096 : AIR 1958 SC 300 at pp 306, 307. It was observed in the first of these two cases that the rules of natural justice require that the party concerned should have the opportunity of adducing the relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, that "he should be given the opportunity of cross-examining the witnesses examined by" the other side and that no materials should be relied on against him without his being given an opportunity of explaining them. In Khem Chand it was held, that if the purpose of Article 311(2) was to give the Government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one, he should be allowed to show that the evidence against him is not worthy of credence or consideration and, "that he can only do if he is given a chance to cross-examine the witnesses called against him" and to examine himself or any other witnesses in support of his defence. These observations must be understood in the context of the proceeding in which they are made and cannot be taken as laying down a general rule that the right of cross-examination is available as a part of natural justice in each and every proceeding. In both of these cases, the question which arose for consideration of the Court was whether a Government servant, who was dismissed from service, was given "a reasonable opportunity" of showing cause against the action proposed to be taken against him, within the meaning of Article 311(2) of the Constitution. It shall have been noticed that the emphasis in these cases is on the right to cross-examine the witnesses who are examined by the opposite party. In T. R. Varma the right of cross-examination is described as the right in regard to the witnesses examined by the other party, while in Khem Chand the right is described as an opportunity to defend oneself by cross-examining the witnesses produced by the other side. No witnesses are examined in the proceedings before the Advisory Board on behalf of the detaining authority and,, therefore, the rule laid down in the two decisions on which Shri Jethmalani relies can have no application to those proceedings. If the debates of the Constituent Assembly are any indication, it would appear that Dr. No witnesses are examined in the proceedings before the Advisory Board on behalf of the detaining authority and,, therefore, the rule laid down in the two decisions on which Shri Jethmalani relies can have no application to those proceedings. If the debates of the Constituent Assembly are any indication, it would appear that Dr. B. R. Ambedkar, at any rate was of the opinion that the detenu shoujd be given the right to cross-examine witnesses before the Advisory Board. In his reply to the debate on the procedure of the Advisory Board, he said on September 16, 1949 that a pointed question has been asked whether the accused person would be entitled to appear before the Board, cross-examine the witnesses, and make his own statements. Dr. Ambedkar's answer was that the Parliament should be given the power to prescribe the procedure to be followed by the Advisory Board. That is how clause 7 (c) came to be incorporated in Article 22 of the Constitution giving that power to the Parliament. Pandit Thakur Dass Bhargava thereafter asked as to what was the position regarding the safeguard of cross-examination. The reply of Dr Ambedkar, significantly was: "The right of cross-examination is already there in the Criminal Procedure Code and in the Evidence Act. Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort. Defending includes cross-examination. *** *** *** If you can give a single instance in India where the right of cross-examination has been taken away, I can understand it. I have not seen-any such case." (See Constituent Assembly Debates, Vol.9, pp.1561, 1562, 1563). Dr. Ambedkar, unfortunately, was not prophetic and the authors of the various Preventive Detention Acts did not evidently share his view. In fact, the right of cross-examination under the Criminal Procedure Code and the Evidence Act, by which Dr. Ambedkar laid great store, has nothing to do with the detenu's right of cross-examination before the Advisory Board. With great respect, Dr. Ambedkar seems to have nodded slightly in referring to the provision for cross-examination under those Acts. Whatever it is, Parliament has not made any provision in the National Security Act,, under which the detenu could claim the right of cross-examination and the matter must rest there. With great respect, Dr. Ambedkar seems to have nodded slightly in referring to the provision for cross-examination under those Acts. Whatever it is, Parliament has not made any provision in the National Security Act,, under which the detenu could claim the right of cross-examination and the matter must rest there. All the objections submitted by the learned counsel for the petitioner are considered in the above judgment and we may say again that in case of the petitioner, principles of natural justice were" followed keeping in view the provisions of the Adhiniyam. In reply to the above submission and to show that the order is valid, the learned Government Advocate took us again through the documents produced and he first submitted that the petitioner has an alternative remedy under section 59 of the Adhiniyam and as the petitioner has alternative remedy, we should not interfere in the order passed under our special jurisdiction under Article 226/227 of the Constitution of India. The section to which the learned Government Advocate referred to is as under:- Power of State Government to call for proceedings of market committee. The State Government may, at any time, call for and examine the proceedings of any market committee for the purpose of satisfying itself as to the legality or propriety of any decision taken or order passed by the market committee. If in any case it appears to the State Government that any decision or order, or proceeding so called should be modified, annulled or reversed, the .State Government may pass such orders thereon as it thinks fit: Provided that no such order shall be passed by the State Government without giving a reasonable opportunity of being heard to the market committee or to the parties affected thereby." We feel that the said section does not give an alternative and efficacious remedy to the petitioner so as to debar the petitioner from invoking the powers of the Court under Article 226/227 of the Constitution of India much less when we are taking a view as indicated by us in latter portion of our order. - As to giving a reasonable opportunity to the petitioner to meet the charges levelled against him, the learned Government Advocate submitted that if the show-cause notice and reply given are considered together, the silence on the part of the petitioner when he was given personal hearing makes it clear that the charges are proved and that the petitioner never wanted anything more in the matter and the petitioner, after taking a chance and after seeing that the findings have gone against him, the petitioner has filed this petition on flimsy grounds. The petitioner should not be allowed to reagitate the matter again here. He further submitted that the period to occupy the post of Chairman is over and to that extent the petition has become infructuous. The petitioner assumed office in September, 1979 and the period under the Adhiniyam is 2 years 6 months and that period is now over. Therefore, by efflux of time, the post of Chairman of the Samiti has fallen vacant. He referred to a judgment of the Supreme Court in S. L. Kapoor's case (supra) where, under somewhat similar circumstances, the Supreme Court declined to give relief in the matter to avoid further complications. It was held therein as under :- In the light of the discussion we have no option but to hold that the order dated February 27, 1980, of the Lt. Governor superseding the New Delhi Municipal Committee is vitiated by the failure to observe' the principle audi alteram partem. The question is what relief should be given to the appellant? The term of the Committee is due to expire on October 3, 1980 which means that just a few days more are left for the term to run out. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law, this should be our order ordinarily; it may lead to confusion and even chaos in the affairs of the Municipality. If now the order is quashed and the Committee is directed to be reinstated with liberty to the Lt. Governor to proceed according to law, this should be our order ordinarily; it may lead to confusion and even chaos in the affairs of the Municipality. Shri Sorabji, learned counsel for the appellant, had relieved us of our anxiety by stating "In view of the fact that the term expires on October 3, 1980, and as the appellant is anxious to have the stigma cast on him by the notification removed, the appellant does not press either for reinstatement in office or for striking down the notification so long as there is a just determination of the invalidity of the notification." We have held that the notification is vitiated by the failure to observe the principles of natural justice and we let the matter rest there. We neither quash the notification nor reinstate the Committee. Nor are we to be understood as having expressed any opinion on the merits of the super session. We allow the appeal in the manner indicated. The appellant is entitled to his costs. The learned Government-Advocate then referred us to Annexure III and submitted that in all, five charges were levelled against the petitioner and reasons for holding the petitioner guilty are mentioned in it and these charges are proved by the admission of the petitioner and no other inference can be drawn against the petitioner except that of the negligence on the part of the petitioner and as such, relying on S. L. Kapoor's case (supra), he submitted that there was no propriety in following the rules of natural justice as alleged- by the petitioner, but even otherwise, they were followed in the case of the petitioner. He also referred to the Madhya Pradesh Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ki Gothan Ki Riti Tatha Anya Vishaya) Niyam, 1980 and to rule 14 thereof which is as -under :- Expenditure.-(1) Chairman of the mandi committee shall be the controlling authority in respect of the market committee fund. The committee may, however, authorise the Secretary to sanction expenditure from cash balance (permanent advance), upto such limits as may be determined by the market committee. The committee may, however, authorise the Secretary to sanction expenditure from cash balance (permanent advance), upto such limits as may be determined by the market committee. (2) All payments except from permanent advance or on account of salary and allowances of members of the service and of the employees of the market committee and the allowances of members of the committee shall be made through cheque drawn on behalf of the market committee. (3) No cheque on behalf of the market committee shall be drawn except on a bill which has been examined and passed by the Chairman or on the issue or recoupment of permanent advance, if any, and the Chairman shall not pass any bill for payment without the previous sanction of the market committee, except,- (i) bill for payment of salary and allowances of members of the service and of officers and servants of the market committee; (ii) bill for payment of works and repairs which have been duly sanctioned by the market committee; (iii) bill for meeting urgent expenditure for which there is budget provision or which does not exceed Rupees Five Hundred : Provided that in the absence of the Chairman, the bills for payment may be passed and signed by the Vice-Chairman : Provided further that the Secretary of the market committee may pass and sign bills for payment upto the extent authorised by the Committee under sub-rule (1). (4) Every payment charged to the market committee fund shall be supported by bill and an order to pay the amount which shall be expressed both in figures and words and every such order to pay shall be signed by the Secretary only after it has been approved by the market committee,, except- (i) for payment of salary and allowances of members of the service and of officers and servants of the market committee; (ii) for payment of works and repairs which have been duly sanctioned by the Director; (iii) for meeting urgent expenditure not exceeding two hundred rupees for which there is a budget provision. (5) No expenditure shall be incurred for which there is no budget provision, unless it can be met by reappropriation from savings under other heads or by a supplementary grant from the available reserve which has been duly sanctioned by the market committee and for which the previous approval of the Director has been obtained. (5) No expenditure shall be incurred for which there is no budget provision, unless it can be met by reappropriation from savings under other heads or by a supplementary grant from the available reserve which has been duly sanctioned by the market committee and for which the previous approval of the Director has been obtained. (6) Every expenditure shall be supported by a voucher duly signed by the payee. (7) The general cash book shall be maintained under the supervision of the Secretary of the market committee. Under these rules, it was the duty of the Chairman to see that expenditure is made properly and the accounts are also kept properly. Chairman (i.e. the petitioner) cannot escape his responsibility by saying that the Secretary is responsible for these lapses and he should have brought these facts to the notice of the Chairman (that is the petitioner). The other lapse which is proved if the reply filed by the petitioner is considered is that the petitioner has appointed Mahendra Singh Yadav as an Accountant even though he was not eligible for the said appointment. The eligibility for appointment is challenged on the ground that the person (Mahendra Singh Yadav) had no valid and subsisting registration from Sanchalanalaya Rozgar Pahchan Patra (Identity Card) shows that the registration was valid upto January, 1980 and the'charge of appointing Mahendra Singh Yadav as Accountant without seeing whether he was eligible or not and whether he had Valid and subsisting registration with the sanchalanalaya rozgar is made out from the documents filed by the petitioner. Even if one charge is made out, the order will be perfectly legal. We are of the opinion that this submission has force and the action of the petitioner in appointing Mahendra Singh Yadav as LEKHAPAL (Accountant) is negligent which is fully covered under the category of negligence and it cannot be termed as an irregularity. Further, the term of the petitioner has come to an end. So, the order of the Director, Mandi, in taking action under section 55 of the Adhiniyam needs no interference. We now take up the other aspect of the case and that is that the petitioner is debarred from getting himself elected or renominated as a member of the Committee for six years from the date of the order. So, the order of the Director, Mandi, in taking action under section 55 of the Adhiniyam needs no interference. We now take up the other aspect of the case and that is that the petitioner is debarred from getting himself elected or renominated as a member of the Committee for six years from the date of the order. The learned counsel for the" petitioner submitted that as a member of the Committee, the petitioner cannot be held responsible for the alleged acts mentioned in Annexure III. He as a member could not be held responsible for those acts under" section 55 of the Adhiniyam. Section 55 of the Adhiniyam mentions different procedures for removing a member and removing a Chairman. For removing a member, under section 55 of the Adhiniyam it should be proved that as a member he is guilty of misconduct or neglect or incapable to perform his duty. If this is proved, then an action under section 55 of the Act can be said to be valid. Looked from this angle, it should be' first proved that the petitioner was under the provisions of the Adhiniyam or rules framed thereunder under an obligation to do an act and that he has failed to do, or has done it negligently. Unless it is proved, the petitioner cannot be held responsible for any misconduct, or neglect or incapable to perform his duty as a member. The learned Government Advocate could not point out any such obligation and violation of it. .Therefore the punishment of the petitioner under section 55 of the Adhiniyam under which he has been debarred for six years from renominating or re-electing himself as a member cannot be allowed to stand. The petitioner was working in dual capacity-one as a member of the Committee and one as the Chairman of the Committee. The result, therefore, is that the petitioner cannot continue as a Chairman, but the restriction Imposed on him that he will not be re-elected or renominated as a member of the market committee cannot be maintained and as such, that condition is set aside. The petition is disposed of as indicated above. Looking to the nature of the case, the parties are directed to bear their own costs. The outstanding amount of security be refunded to the petitioner.