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Madhya Pradesh High Court · body

2010 DIGILAW 1054 (MP)

Rakesh Rai v. State of M. P.

2010-10-14

R.S.JHA

body2010
ORDER R.S. Jha, J. 1. The petitioner has filed this petition being aggrieved by the order dated 19-8-2008 passed under the provision of Section 41 of M.P. Municipal Council Act, 1961 (hereinafter referred to as the "Act"). Removing the petitioner form the post of President of Municipal Council, Sehore. The petitioner has also assailed the order dated 22-8-2008 by which charge of the post of President of Municipal Council had been given to respondent No. 4. 2. The brief facts leading to the filing of the present petition are that the petitioner was duly elected as president of Municipal council, Sehore and was performing his duties as president, At the relevant time, certain complaints were filed against the petitioner by some individuals on account of which an enquiry was conducted by the authorities of the State and on the basis of the enquiry report in that respect dated 12-2-2007 a charge sheet/ notice was issued to the petitioner under the provisions of Section 41A of the Act on 12-6-2007 levelling five charges against him. 3. Briefly stated, the first charge against the petitioner was to the effect that the petitioner had appointed on Shri Harish Chandra Joshi as incharge Chief Municipal officer on the transfer of the regular Chief Municipal officer, Shri D.S. Parihar without any authority or power. The second charge was that he had made certain payments along with him on 18-9-2006 and 19-9-2006 without any authority of law by issuing tender notice for purchase of 30 HP motor pump without giving seven days' notice as required by the provisions of law. The third charge was that the petitioner had issued severaltenders for drinking water transport and supply on various dates without giving seven days' notice as required by the provisions of law. The fourth charge was regarding making purchase worth several lacs of rupees from the M.P. Laghu Udyog Nigam By-passing the procedure prescribed by law or obtaining approval thereof from the President-in-council; and the fifth charge was regarding issuing tendrer notice worth several lacs of rupees without obtaining administrative sanction from the Directorate as required by the provisions of the Account Rules. 4. 4. It is stated that the petitioner made a demand for supply of the documents and the enquiry report on the basis of which the notice was issued to him on 5-7-2007 but it is alleged that the same were not supplied to the petitioner in spite of a direction issued by the Secretary of the Department of the State to the Chief Municipal Officer on 11-6-2007 to do so. It is alleged by the petitioner that in spite of non-supply of documents the petitioner had filed an interim reply considering which and taking into account the statements of the witnesses recorded during enquiry the impugned order dated 19-8-2007 has been passed by the authority removing the petitioner from the post of President and giving charge of the post of President to respondent No. 4 by the impugned order dated 22-8-2007. 5. The petitioner has assailed the impugned orders alleging that the procedure prescribed by the provisions of law of giving due opportunity of hearing and of supply of documents on the basis of which charges have been leveled against the petitioner have been violated by the respondents/ authorities and in such circumstances, the impugned orders deserve to be quashed. It is further submitted that on a perusal of the charges against the petitioner it is evident that they do not relate to the duties and functioning of the petitioner as President of the Municipal Council and the entire responsibility sought to be fixed upon the petitioner is in fact that of the Chief Municipal Officer and President-in-council. It is stated that in the aforesaid circumstances, the charges levelled against the petitioner are misconceived. Specifically, in view of the statement of the Chief Municipal Officer, Shri D.S. Parihar, copy of which has been annexed by the petitioner at page 97 of the petition wherein he has owned the entire responsibility for the irregularities, if any, which have been enumerated in the charges levelled against the petitioner. 6. Specifically, in view of the statement of the Chief Municipal Officer, Shri D.S. Parihar, copy of which has been annexed by the petitioner at page 97 of the petition wherein he has owned the entire responsibility for the irregularities, if any, which have been enumerated in the charges levelled against the petitioner. 6. The learned counsel for the petitioner hads relied upon the judgments rendered by the Supreme Court in the cases of Bhagat Ram Patanga v. State of Panjab, AIR 1972 SC 1571 and Sharda Kailash Mittal v. State of M.P. and others, 2010 (3) MPLJ 131 and also the judgments rendered by this Court in the cases of Bansmani v. State of M.P. and others, 1980 JLJ 60 and Kaushalya Bai v. State of M.P., 1999 (1) MPLJ 368 in support of the submissions that the impugned orders deserve to be quashed on account of not following the procedure prescribed by law and on account of the fact that the charges even if assumed to be treated to be proved do not warrant such a serious consequence as removal of a democratically elected person form the post of the President of the Municipal Council. 7. The respondents, per contra, submit that the petitioner on being elected as President had committed several irregularities and illegalities and also grossly violated the provisions of Section 51 of the Act which conferred responsibility upon the petitioner to supervise the administration and the financial work of the Municipality and in such circumstances it was not in the interest of Municipality to continue him as President of the Council as he was incapable of performing his duties and was working against the provisions of the Act and the Rules. 8. The respondents have specifically pointed out that all documents sought for by the petitioner were supplied to him and in support thereof they have filed Annexures R-3 and R-4. It is further sated that the charges leveled against the petitioner having been found to be proved the impugned orders have rightly been issued by the authority and do not warrant any interference of this Court in exerciser of powers under Articles 226 and 227 of the Constitution of India. 9. I have heard the learned counsel for the parties at length and gone thought the record. 10. 9. I have heard the learned counsel for the parties at length and gone thought the record. 10. AS far as the first contention of the learned senior counsel appearing for the petitioner regarding non-supply of copies of documents is concerned, from a conjoint reading of Annexure P-7 filed by the petitioner and documents Annexures R-3 and R-4 filed by the respondents it is clear that all the necessary documents in support of the charges were supplied to the petitioner including the preliminary enquiry report. It is also clear from the objections being raised by the petitioner that in fact he was demanding certified copies of the same to him and not the certified copies but from a perusal of the provisions of law including Section 41A of the Act it is evident that the respondents/authorities were only required to give due opportunity of defending and hearing to the concerned person which includes supply of documents does not by any stretch of interpretation include supply of certified copies of the documents relied upon by the respondent/authorities. In the instant case as is evident from a perusal of annexure P-7 and Annexures R-3 and R-4 filed by the respondents that copies of all the documents relied upon by the respondents were supplied to the petitioner and, therefore, the first submission of the petitioner regarding violation of the principles of natural justice or due opportunity of hearing as envisaged under Section 41A of the Act is not made out. The contention of the Petitioner to the contrary is accordingly rejected. 11. From a perusal of the charges sheet it is clear that the charges leveled against the petitioner do not relate to any misappropriation of funds. It is also clear that there is no charge in the charge sheet. Annexure P-1, filed along with the petition to the effect that the petitioner has in any manner failed to supervise the working of the Chief Municipal Officer or other authorities of the Municipal Council. The charge sheet in fact levels direct charges upon the petitioner of making payments with the connivance of the incharge-Chief Municipal Officer, issuing tender notices in violation of the statutory provision requiring seven days' notice while making purchase form the Laghu Udyag Nigam without any authority and calling for render notices without obtaining administrative sanction from the Directorate. 12. The charge sheet in fact levels direct charges upon the petitioner of making payments with the connivance of the incharge-Chief Municipal Officer, issuing tender notices in violation of the statutory provision requiring seven days' notice while making purchase form the Laghu Udyag Nigam without any authority and calling for render notices without obtaining administrative sanction from the Directorate. 12. From a perusal of the statement of the Chief Municipal Officer, Shri D.S. Parihar who was posted as Chief Municipal Officer, Sehore from 7-12-2004 to 15-9-2006 it is clear that he had issued the impugned tender notices and that it was he who had made purchase from the Laghu Udyog Nigam and had also issued the tender notices mentioned in the charge No. 5 The said Chief Municipal Officer has also stated that the payments alleged to have been made by the petitioner in connivance with the incharge Chief Municipal Officer had also in fact been sanctioned by him and had been approved by the resident auditor of the Municipal Council. 13. It is further apparent from a perusal of the impugned order dated 19-8-2008 that the authorities while recording a finding in respect of the charges, have not considered the statement made by Shri D.S. Parihar, the then Chief Municipal Officer who had owned responsibility for the charges leveled against the petitioner. It is also clear the authority has not taken into consideration the provisions of the proviso to Rule 7(2) of the Madhya Pradesh Nagar Palik (Mare-in-council/President-in-council conduct of Business) Rules, 1998 which were placed before the authorities in defence by the petitioner in support of the contention that the clause requiring seven days' clear notice while issuing tenders was not applicable to Municipalities. It is also apparent from a perusal of the impugned order that the authority has held the petitioner responsible of making payments issuing tender notices and making payments stating that the petitioner has throughout only stated in his defence that the aforesaid acts have not been done by him nor were part of this responsibility or duties but in fact were done by the authorities of the Council specifically the Chief Municipal Officer totally ignoring all other facts and documents on record and has further recorded a conclusion that the petitioner failed to prevent commission of irregularities in the functioning of the Council and in fact became a major beneficiary of the same. 14. 14. From a perusal of the charge sheet, Annexure P-1, it is in fact clear that there in is no charge to the effect that the petitioner had failed to prevent particular and specific irregularities committed by the Chief Municipal Officer or the authorities of the Council which are within the knowledge of the petitioner in spite of which he failed to regulate them or prevent them. It is also clear that there is no charge to the effect that the petitioner was in any way responsible for misappropriating municipal fund or was a beneficiary of the irregularities and, therefore, the conclusion recorded by the authorities in the impugned order to the effect that the petitioner was responsible for the aforesaid action is apparently contrary to the charges leveled against the petitioner. It is also clear that the authority has failed to apply his mind to the material and documents on record inasmuch it has failed to take into consideration the material evidence of the Chief Municipal Officer, Shri D.S. Parihar who has clearly owned responsibilities for the charges leveled against the petitioner. Furthermore, though it has taken note of the fact that separate departmental proceedings have already been initiated against the Chief Municipal Officer but it has not taken into consideration the impact and effect of the same on the proceedings initiated against the petitioner. 15. In the case of Sharda Kailash Mittal (supra) the Supreme Court, while considering the import and impact of provisions of Section 41A of the Act has held in paragraphs 15, 16, 17, 18 and 19 as under :- 15. The analysis of these materials, particularly, the background shows that the state Government failed to appreciate that the decisions for publication of advertisements, calling for tenders and payment of salaries were made by the entire council and the President-appellant could not be singled out for those decisions taken by the Council. The High Court failed to appreciate that removal under Section 41-A of the Act could be resorted to only under grave and exceptional circumstances which were not present in the appellant's case. No charge of causing financial loss to the Nager Palika could be established by the State Government. 16. The High Court failed to appreciate that removal under Section 41-A of the Act could be resorted to only under grave and exceptional circumstances which were not present in the appellant's case. No charge of causing financial loss to the Nager Palika could be established by the State Government. 16. As directed earlier, Section 41-A of the Act gives power to the State Government to remove the President, Vice - Presidents or Chairman of a Committee on four broad ground, namely, (a) Public interest; (b) Interest of the Council; (c) incapability of performing his duties; and (d) Working against the provisions of the Act or rules made thereunder. In addition, under Section 41-A (2), the State Government at the time of removal form office may also pass an order disqualifying the person from holding the office of President, Vice - President or Chairman for the next term. The question to be determined is what is the scope of the application of Section 41-A and what is the nature of power of the Government? 17. In Tarlochan Dev Sharma v. State of Punjab and Ors. (2001) 6 SCC 260 , this Court while dealing with the removal or a President of the Council under Panjab Municipal Act of 1911, held in Paragraph 6 as under: In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his elections set aside by a prescribed procedure known to law... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. In Paragraph 11 this Court observed as under: A singular or causal aberration or failure in exercise of power is not enough: a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is...The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision. The same consideration must be taken into account while interpreting Section 41-A of the Act. The same consideration must be taken into account while interpreting Section 41-A of the Act. The President under the M.P. Municipalities Act, 1961 is a democratically elected officer, and the removal of such an officer is an extreme step which must be resorted to only in grave and exceptional circumstances. 18. For taking action under Section 41-A for removal of president, Vice-President of Chairman of any committee, power is conferred on the State Government with no provision of any appeal. The action of removal casts a serious stigma on the personal and public life of the concerned office bearer and may result in his/her disqualification to hold such office for the next term. The exercise of power, therefore, has serious civil consequences on the status of an office bearer. There are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against. Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation. 19. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Governments to invoke its extreme power under Section 41-A. 16. 19. In the present case, the actions of the appellant, even if proved, only amount to irregularities, and not grave forms of illegalities, which may allow the State Governments to invoke its extreme power under Section 41-A. 16. From a perusal of the aforesaid it is clear that while interpreting the provisions of Section 41 A, the Supreme Court has held that the powers conferred under the aforementioned section can be invoked by the State Government only for very strong and weighty reasons and that such powers are not to be exercised for minor irregularities in discharge of the duties by the holder of the elected post and, therefore, the provisions have to be construed in a strict manner as the President of the Municipal Council occupies the post by way of election and is sought to be removed by an executive officer in which the electorate has no chance of participation. It is also clear that the Supreme Court in paragraph 19 while taking into consideration the charges levelled against the petitioner which are clearly mentioned in paragraph 10 of the aforesaid judgment, held that the charges event if proved only amount to irregularities and are not grave forms of illegalities warranting the State to invoke the extreme powers under Section 41A of the Act. Similar view has been expressed by this court in the cases of Bansmani (supra) and Kaushalya Bai (supra). 17. The Supreme Court has also made similar observations while interpreting the provisions of the Punjab Municipal Act in the case of Bhagat Ram Patanga (supra) and the law laid down by the Supreme Court is applicable to the facts of the present case. 18. It is clear that in the instant case the charges against the petitioner are only regarding irregularities in making payments and issuing tender notices. It is also clear that onus of the responsibility of the aforesaid irregularities has already been taken by the then Chief Municipal Officer upon his shoulders as per the Statement made by him during the enquiry against the petitioner in the present proceedings. In the circumstances, the law laid down by the Supreme Court in the aforementioned case clearly applies to the facts and circumstances in the present case. In the circumstances, the law laid down by the Supreme Court in the aforementioned case clearly applies to the facts and circumstances in the present case. It is also to be noted that the authority concerned has not applied its mind to the statement made by the Chief Municipal Officer, Shri D.S. Parihar whose Statement has material bearing on the issues and charges involved in the proceedings against the petitioner, which indicates total non-application of mind to relevant materials which are available on record and, therefore, the impugned order suffers from material irregularity and manifest illegality. 19. In the circumstances, the impugned order dated 19-8-2008 is hereby quashed. Consequentially, the other impugned order dated 22-8-2008 also stands quashed. The petition filed by the petitioner is accordingly allowed. In the facts and circumstances of the case there shall be no order as to costs.