Sharda Kailash Mittal vs State Of M.P.& Ors

Sharda Kailash Mittal .... Appellant(s)

Versus

State of M.P. & Ors. .... Respondent(s)

JUDGMENT

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment

rendered by a Division Bench of the High Court of Madhya

Pradesh at Jabalpur dismissing W.A. No. 253 of 2008

filed by the appellant herein against the order of the

learned single Judge dated 25.04.2008 in W.P. No. 4894

of 2007 whereby the learned Judge dismissed the writ

petition filed by the appellant challenging the order dated

1 04.10.2007 passed by the Principal Secretary, Department

of Local Administration and Development, Government of

Madhya Pradesh.

3) The facts giving rise to the filing of this appeal may be

briefly stated as follows:

The appellant was elected as President of Nagar Palika,

Jora, District Muraina in the year 2004. On 15.09.2006,

a show cause notice was issued to the appellant under

Section 41-A of the Madhya Pradesh Municipalities Act,

1961 (hereinafter referred to as the "Act"). Charge No. 1

leveled by the respondent against the appellant was that

she has caused monetary loss to the Panchayat by

publishing advertisements for more than Rs.1500/-. In

Charge No.2, it was alleged that the appellant had struck

off her signature from the minutes dated 27.12.2005 and

the then Chief Municipal Officer signed the minutes,

which has been accepted by the respondent. Charge No.3

against the appellant was that she had shown undue

haste in appointing Shri Harishankar Sharma as the Chief

2 Municipal Officer and compelled him to make various

payments to the tune of Rs. 8,12,783/-.

4) On 27.04.2007, Smt. Sharda Kailash Mittal, the

appellant filed a detailed reply to the show cause notice

refuting the charges leveled against her. In relation to

charge No.1 while denying the same she asserted that she

had not issued any direction for publishing the

advertisements or messages in the newspapers. The then

Chief Municipal Officer, Shri A.K. Bansal, has given the

advertisement. The matter was placed before the Council

and by resolution No. 48 dated 23.07.2005, the

permission was granted by the President-In-Council and

upon the recommendation payments were made by the

Chief Municipal Officer. She denied Charge No.2 stating

that no alteration had been done in the proceedings

register. According to her, on 21.12.2005, at the instance

of the Chief Municipal Officer, Sh. A.K. Bansal, upon the

disturbance being caused by the Vice-Chairman Shri

3 Surya Narain Jain and some of the Councilors and upon

their mis-behaviour she postponed the meeting till

26.12.2005. In the postponed meeting, after discussing

proposal Nos. 103 to 112, the resolution was passed. The

same was entered in the proceedings register and duly

signed by the appellant and the Chief Municipal Officer.

Again on 27.12.2005, after discussing proposal Nos. 113

to 150 the resolutions were passed. All those subjects

were thoroughly discussed and resolutions were passed

and recorded as resolution Nos. 100 to 135 in the

proceedings register. In this way all the actions were

approved by the Council. Regarding Charge No. 3, she

asserted that she came to know that after the transfer of

the In-charge CMO Shri A.K. Bansal to Muraina Shri A.K.

Vashisht, Revenue Inspector was posted in the

Municipality of Zora on interim basis. She heard that it

would take 5 to 7 days to get the new C.M.O. In order to

settle down the salary for the month of January to the

employees of the Corporation and ensuing Moharam and

4 Basant Panchami festival as well as the contractors were

pressing for settlement since they had completed their

work, the Council authorized Shri Hari Shankar Sharma,

Revenue Inspector as the C.M.O.

5) By order dated 4.10.2007, the Chief Secretary, City

Administration and Development Department, found that

Smt. Mittal has violated the provisions of Section 51 of the

Act. It is also stated that being the Chairman, it was her

duty that she should supervise the financial and executive

administration of the council and does not deserve to

remain on the post of the Chairman. Basing such

conclusion, the said authority under Section 41-A of the

Act removed the appellant from the post of the Chairman

of the Nagar Palika, Zora.

6) The said order of removal was challenged by the

appellant before the High Court of M.P. Gwalior in W.P.

No. 4894 of 2007. By order dated 25.4.2008, the learned

single Judge, after finding no ground for interference with

5 the order passed by the State Government dismissed her

writ petition.

7) Aggrieved by the dismissal of the writ petition, the

appellant filed W.A. No. 253 of 2008 before the Division

Bench of the High Court of M.P. at Jabalpur. By the

impugned order dated 20.6.2008, the Division Bench

confirmed the order of the learned single Judge and

dismissed the writ petition. Hence the present appeal

before this Court by way of special leave petiton.

8) We have heard Mr. Ravindra Kr. Srivastava, learned

senior counsel, appearing for the appellant and Mr. Sushil

Kr. Jain, learned counsel, for respondent No.3 and Mr.

B.S. Banthia, learned counsel for respondents 1 & 2.

9) It is not in dispute that election for Nagar Palika, Zora

was held and the appellant was elected as President of the

Nagar Palika which is a reserved seat for woman under

Section 29-B of the Act. Before considering the specific

charges leveled against the appellant, it is useful to refer

Section 41-A of the Act which refers the removal of

6 President or Vice-President or Chairman of a

Committee:-

"41-A. Removal of President or Vice-President or Chairman of a Committee - (1) The State Government may, at any time, remove a President or Vice-President or a Chairman of any Committee, if his continuance as such is not in the opinion of the State Government desirable in public interest or in the interest of the Council or if it is found that he is incapable of performing his duties or is working against the provisions of the Act or any rules made thereunder or if it is found that he does not belong to the reserved category for which the seat was reserved.

(2) As a result of the order of removal of Vice-

President or Chairman of any Committee, as the case may be, under sub-section (1) it shall be deemed that such Vice- President or a Chairman of any Committee, as the case may be, has been removed from the office of the Councilor also. At the time of passing order under sub-section (1), the State Government may also pass such order that the President or Vice-President or Chairman of any Committee, as the case may be, shall be disqualified to hold the office of President or Vice-President or Chairman, as the case may be, for the next term:

Provided that no such order under this section shall be passed unless a reasonable opportunity of being heard is given."

The above Section 41-A vests the State Government with

power to remove the President, Vice-President or a

Chairman of any Committee, if his continuance in the

office is not found desirable in public interest or in the

interest of the Council. A conjoint reading of other

7 provisions such as Sections 20, 22 and 41-A as also the

Article 243-ZG of the Constitution of India would make it

amply clear that resort to Section 41-A can be had to

remove a person from the office only after he/she is duly

elected and his/her conduct in office is otherwise found

prejudicial to public interest or in the interest of the

Council.

10) Let us consider the charges leveled against the

appellant, procedure followed in her case and the ultimate

decision by the State Government under Section 41-A of

the Act. Though four charges have been pressed into

service in the show cause notice dated 15.09.2006,

admittedly Charge No.4 has not been established, hence

we are concerned with Charge Nos. 1-3 only. They are as

follows:

"Charge No.1

That by getting published advertisements/best wishes messages in various newspapers of more than Rs.1500/- each she has caused financial loss to the Municipality of Zora.

8 Charge No.2

On 27.12.2005, after the meeting of the council in the end of the details of the proceedings Smt. Sharda Kailash Mittal had put her signatures which have been cut and after the signatures so cut, Smt. Mittal has herself signed it again alongwith this on the sea of the Chief of the Chief Municipal Officer are the signatures of Sh. Hari Shankar Sharma who is not authorized to carry on any duty by the administration or senior officer of the Chief Municipal Officer.

Charge No.3

In sequence to the order dated 06.02.2006 for the transfer of Sh. A.K. Bansal, the then Chief Municipal Officer, on the same day he was discharged and automatically on the same day irregularly Sh. Hari shankar Sharma was given the charge of the Chief Municipal Officer and an irregular payment of Rs.3,12,783/- was made by him."

11) The substance of the Charge No.1 was that the

appellant has caused monetary loss to the Municipality by

publishing advertisements for more than Rs.1500/-. We have

already pointed out and it was also not in dispute that the

appellant-the President had submitted her detailed

explanation with reference to the same. According to her, the

payment for such publications had been approved by the

President-in-Council, and the request for making the payment

was expressed by the Chief Municipal Officer. However, the

State pointed out that the appellant being the President of the

Nagar Palika, ought to have proceeded on the basis of the

9 prevalent Rules. It was further pointed out that by spending

more than Rs.1500/- the appellant has not followed the Rules

laid down in that regard and as such she is guilty of the said

charge. In the explanation to the said charge, the appellant

has pointed out that though the charge leveled against her

relates to causing financial loss to the Nagar Palika, on the

contrary, according to her, the order states that the appellant

was guilty of not following the Rules while making the

payment, which was never framed against her. It is also

relevant to mention that the Rules filed by the respondent and

heavily relied on by the State Government provides that the

expenditure on "welcome" shall not be more than Rs.1500/-.

In the present case, it was pointed out more than one place

that the expenditure was with regard to the advertisement and

not with regard to the "welcome" expenses alone. Though this

was highlighted in the explanation to the charge, it was not

properly considered by the Government. The materials placed,

particularly, Annexures 1 & 2, show that the office of Nagar

Palika, Zora, invited tenders for purchase of goods relating to

water supply for various wards and asserted that those

1 tenders were to be out only after due deliberation by the Nagar

Palika Committee. In the light of the above factual details, the

actual contents of charge and the relevant rules, we are

satisfied that the conclusion arrived at by the State

Government cannot be accepted.

12) Charge No.2 relates to the allegation that the appellant

had struck off her signature from the minutes dated

27.12.2005 and the then Chief Municipal Officer had signed

the minutes, which has been accepted by the respondent. It

was pointed out by the appellant that absolutely there was

nothing on record to show that either the appellant herself

struck off her signature or that the appellant had permitted or

compelled the then Chief Municipal Officer to affix his

signatures on the said minutes. It was pointed out by her that

even if assuming to be so, it was not so grave in nature so as

to attract Section 41-A of the Act. On going through her

specific explanation and assertion and the relevant records,

there is no reason to reject her claim and the State

Government took it seriously without any acceptable material

1 in order to take action under Section 41-A of the Act more

particularly, she being the President of the opposite party.

13) Charge No.3 relates to the allegation that the appellant

had shown undue haste in appointing one Harishankar

Sharma as the Chief Municipal Officer and compelled him to

make various payments to the tune of Rs.8,12,783/-. In the

explanation, it was pointed out that out of the total amount of

Rs.8,12,783/-, Rs.5,08,890/- was spent towards the

disbursement of the salary of the workers and other officers of

the Corporation and the remaining of Rs.3,03,890/- was

disbursed to various contractors for payment and wages to

their daily wage workers. It was highlighted that the said

payment to the contractor was made in part keeping in view

the ensuing two festivals of Muharram and Basant Panchami.

It was further highlighted that the vouchers of all the said

payment were prepared and approved by the then Chief

Municipal Officer - Shri A.K. Bansal and the appellant and

were duly and properly audited, as such, there was no

illegality in such disbursement. Copy of the report of the Chief

Municipal Officer, Zora dated 09.03.2006 has been placed as

1 Annexure P-8. The appellant has also pointed out that her

political opponents sent a complaint to the Chief Minister

making bald allegations of corruption against her. A copy of

the letter dated 12.05.2006 has been included as Annexure

P-9.

14) Apart from the above complaint, the appellant has also

highlighted certain communications between the local leaders

and the State Government seeking the Government's

intervention in taking action against her for one reason or the

other.

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

1 the Nagar 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 -

President or Chairman of a Committee on four broad grounds,

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 from 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 of

a President of the Council under Punjab 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

1 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 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 or 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

1 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 Government to invoke

its extreme power under Section 41 - A.

1

20) From the materials placed before us, we are satisfied that

the advertisements, tenders calling for attending day-to-day

work of the Municipality such as provision for drinking water,

sanitation etc. were duly put out only after due deliberation by

the Council of Nagar Palika and no decision was taken by the

appellant herself. The appellant has also established that due

to transfer of Chief Municipal Officer, the salaries of workers of

the Nagar Palika remained upaid for the month of January,

2006 leading to possibility of unrest in the area, therefore, it

was requested to the appellant by the Councilors that

necessary arrangements be made for immediate payment of

salaries in view of the ensuing festivals of Muharram and

Basant Panchami. The materials placed by the appellant

before the State Government as well as before the High Court

show that the tender had been put out after due deliberation

by the Council and all works had been completed after

satisfying the conditions prescribed therein. The appellant

had pointed out that out of the amount of Rs.8,12,783/-, an

amount of Rs.5,08,890/- was disbursed towards salaries of

the workers and other officers of the Nagar Palika and the

1 remaining Rs. 3,03,890/- was paid to various contractors for

payment of salaries to their daily wage workers. The vouchers

of all the said payments were prepared and approved by the

then Chief Municipal Officer-Shri A.K. Bansal and the

appellant and those accounts were duly audited and as such

there is no valid reason to reject the stand taken by the

appellant. It is also relevant to point out that though the State

Government erroneously mentioned the expenses on

advertisement as Rs.2.46 lacs subsequently they themselves

filed an application for amendment to correct the amount of

Rs.2.46 lacs to be read as Rs.24,600/-. The learned single

Judge as well as the Division Bench not only failed to consider

all the above circumstances and the exigencies under which

the appellant was compelled to make the appointment of one

Shri Harishankar Sharma as Chief Municipal Officer and also

ignored the fact that the appointment was actually made for

payment of salaries and to make the payments to the

contractors who pressed for disbursement of the same to their

workers. In the light of the above conclusion and in the

1 absence of a finding that any loss was caused, the decision of

the State Government can not be sustained.

21) In the light of the above discussion, we set aside the

order of the State Government removing the appellant as

President of the Nagar Palika, Zora, District Muraina under

Section 41-A of the Act and consequential orders dated

25.04.2008 passed by the learned single Judge in W.P. No.

4894 of 2007 and of the Division Bench dated 20.06.2008 in

W.A. No. 253 of 2008. In view of the fact that her tenure has

come to an end and fresh election was also conducted, we are

not disturbing the subsequent events. However, we make it

clear that in view of the present order, the disqualification of

the appellant is expunged and the appellant would be free to

contest the elections in future.

22) With the above conclusion and observation, the appeal is

allowed. There shall be no order as to costs.

....................................CJI. (K.G. BALAKRISHNAN)

..........................................J. (P. SATHASIVAM) NEW DELHI;

JANUARY 12, 2010.

1