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2018 DIGILAW 732 (MP)

Satyaprakashi Parsedia v. State of M. P.

2018-08-27

ASHOK KUMAR JOSHI, SANJAY YADAV

body2018
ORDER : Sanjay Yadav, J. This appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 06.07.2018 passed in WP.2943/2017 whereby order dated 01.05.2017 passed by the State in exercise of powers under Section 41A of the M.P. Municipalities Act, 1961 (for brevity “1961 Act”) of removing the appellant as President, Municipal Council, Dabra and holding her ineligible for next term as President has been upheld. 2. Relevant facts briefly are that while elected as President, Municipal Council Dabra for the term of five years from 2014 to 2019 that a Resolution No.747 came to be passed by the Municipal Council on 25/06/2012 whereby besides extension of term of 59 contractual pump operators from 25/06/2012 to 31/03/2013 on higher remuneration of Rs.3,500/- (from Rs.2,000/-) per month, 26 additional pump operators were engaged. On receiving complaint, State Government caused a fact finding enquiry and thereafter caused show cause notice to the appellant on 21/03/2017. 3. Though there is cavil as to service of notice on the appellant. It is her case that notice was never served on her, however, the communication entered into by the petitioner, both the Principal Secretary, Urban Development and Housing Development said to be written by the appellant on 25.03.2017 it appears that the appellant avoided the notice. This will be evident from the following contentions, extracted from the said communication: ^^1- ;gfd izkfFkZuh dks tfjZ;s ifj"kn Mcjk Kkr gqvk fd orZeku çkFkZuk i= esa of.kZr lanfHkZr i= Jheku vij lfpo egksn; e-iz- 'kklu }kjk tkjh fd;k x;k gSA ftlesa fo";kUrxZr mYYksf[kr izdj.k ds lEca/k esa dkj.k crkvks lwpuk i= tkjh fd;k tkuk of.kZr jgk gSA 5-----------blh Hk; ds pyrs gq;s Hkh izkfFkZuh }kjk vius ifjtuks ds ek/;e ls Jheku ds dk;kZy; ls tkjh lanfHkZr i= vFkkZr lwpuk i= dks izkIr ugha fd;k tk ldk A mDr rF; dks êf"Vxr j[krs gq;s izkfFkZuh dks mfpr ekxZn'kZu çnku djsA lkFk gh ekŒ U;k;ky; esa izdj.k yfEcr gksus ls lwpuk i= izkIr djuk vlEHko gSA----------^^ 4. Be that as it may, the allegations against the appellant were that de hors the duty cast on her under clauses (b) and (c) of sub-section(1) of Section 51 of 1961 Act, against the requirement of 59 contractual pump operators she was instrumental and never objected to adding/engaging 26 more contractual pump operators without following any procedure and continued them beyond 31/3/2013 i.e. from April, 2013 till June, 2013 as a result whereof the Municipal Council was required to pay excess Rs.72,800/-per month; for a period of 15 months had to bear Rs.10,92,000/-. The appellant entered into the correspondence dated 25.03.2017. That notice was issued for hearing on 13/04/2017 vide letter No.F-4-13/2016/18-3 dated 07/04/2017. As the appellant was not found at her residence on 08/4/2017, again on 10.04.2017 efforts were made to serve notice of hearing. As she was not available at home, the notice of hearing was pasted at her residence. Since appellant did not appear on 13/04/2017 i.e. date fixed for personal hearing, the reply and other material documents on record were taken into consideration and the order was passed on 01/05/2017. On the findings that the appellant’s continuance is not desirable in public interest and in the interest of the council, the impugned order, dispensing her from the post of President and debarring for next term, came to be passed. 5. The order was challenged in WP.2943/2017 wherein it is affirmed by the learned Single Judge. By the impugned judgment, learned Single Judge observed: “50. In the instant case, this Court cannot sit as Appellate Authority to re-appreciate evidence. The scope of judicial review is limited in such cases. However, from the perusal of controversy, it appears that the authority, vested with the power, passed the order after giving reasonable opportunity of hearing to the petitioner invoking the essence of provisions contained under Section 41-A of the Act of 1961. Therefore, no case for interference is made out on the basis of preceding analysis.” 6. However, from the perusal of controversy, it appears that the authority, vested with the power, passed the order after giving reasonable opportunity of hearing to the petitioner invoking the essence of provisions contained under Section 41-A of the Act of 1961. Therefore, no case for interference is made out on the basis of preceding analysis.” 6. The said order is challenged mainly on the ground that learned Single Judge glossed over the aspect that the show-cause notice was not in consonance with the stipulations contained under Section 41A of 1961 Act which mandates for formulation of an opinion by the State Government as to desirability in public interest, or in the interest of Council or if it is found that she/he is incapable of performing the duties, to continue as President. It is further contended that the learned Single Judge has erred in not dwelling upon the aspect that the appellant was not afforded reasonable opportunity of hearing which vitiated the entire proceedings. And that the impugned order contained the facts which were not the subject matter of show-cause notice. 7. As regard to the allegation as to not giving an opportunity of hearing, it is belied by the impugned order wherein there is categorical finding as to the efforts made by the authorities to serve the letter informing the date of hearing. Evidently, the petitioner chose not to appear. It is held in “Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education and others [ (2003) 8 SCC 311 ]”: “20. As regards the submission of the learned counsel to the effect that the first respondent should be directed to give an opportunity of hearing to Respondent No. 3 at this stage cannot be acceded to. As noticed hereinbefore, it is the positive case of the first respondent that an opportunity of hearing had been given to him by the first respondent. Secondly, in a case of mass copying the principles of natural justice need not be strictly complied with.” (Emphasis Supplied) 8. This takes care of the submission that the appellant was not afforded any opportunity of hearing. On the contrary, it is the appellant who evaded the service of notice. 9. Secondly, in a case of mass copying the principles of natural justice need not be strictly complied with.” (Emphasis Supplied) 8. This takes care of the submission that the appellant was not afforded any opportunity of hearing. On the contrary, it is the appellant who evaded the service of notice. 9. As regard to contention that the notice under Section 41A of 1961 Act was not in consonance with the statutory provision is belied from the contents of the notice which reflects the act of the appellant which being contrary to / or has further financially burdened the Council beyond the earmarked establishment costs. The notice clearly stipulates two instances; firstly, inclusion of 26 persons in the list of contractual pump operators over and above required number of 59 and thereafter allowing these 26 persons to continue from April, 2013 to June, 2013. 10. That, Clause (b) and (c) of sub-section (1) of Section 51 of 1961 Act clearly earmark the powers and duties of the President of Municipal Council. It stipulates that it shall be the duty of the President to: “51. Powers and duties of President.- (1) It shall be duty of the President of the Council- (a)XX XX XX (b) to watch over the financial and executive administration of the Council and perform such executive functions as may be allotted to him by or under this Act; (c) to exercise supervision and control over the acts and proceedings of all officers and servants of the Council in matters of executive administration and in matters concerning the accounts and records of the Council;.....” 11. Evidently, by resolving with counselors in employing 26 extra pump operators on contractual basis without adhering to the procedure required to be followed in engaging them and allowing them to continue after 31.03.2013 till June, 2013 the appellant overreached her duties resulting in financial burden over the Council beyond statutory limit of 65% establishment costs. The appellant though has placed reliance on the decisions in “Tarlochan Dev Sharma Vs. State of Punjab and others [ AIR 2001 SC 2524 ]” and “Ravi Yashwant Bhoir Vs. District Collector, Raigad and others [ (2012) 4 SCC 407 ]” wherein it is held that the term of an elected office bearer should not be lightly interfered with unless there is gross negligence which is detrimental to the institution. State of Punjab and others [ AIR 2001 SC 2524 ]” and “Ravi Yashwant Bhoir Vs. District Collector, Raigad and others [ (2012) 4 SCC 407 ]” wherein it is held that the term of an elected office bearer should not be lightly interfered with unless there is gross negligence which is detrimental to the institution. However, it is further observed by their Lordships that “When the office bearer is expected to act with absolute integrity and honesty in handling the work, any misappropriation, even temporary, of the funds, etc. constitutes a serious misconduct.” [Ravi Yashwant Bhoir (Supra) paragraph 13]. 12. The present case though is not the case regarding misappropriation but employing persons over and above required number and without adhering to basic norms for recruitment, has given rise to an employment through back-door and continuing these persons beyond the cut off date, without any authority, in our considered opinion, is no less a misconduct. 13. In view whereof, the Competent Authority was justified in invoking the provisions of Section 41A of 1961 Act which, in our considered opinion, is rightly upheld by the learned Single Judge. 14. Consequently, appeal fails and is dismissed. No cost.