Madhya Pradesh High Court
Smt. Kanta Yogesh Sadarang vs The State Of Madhya Pradesh on 14 February, 2019
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.2492/2019
Jabalpur, dated : 14.2.2019
Mr. Purushaindra Kaurav, learned Senior Advocate with Mr.Aditya
Khandekar and Mr. Siddharth Sharma, learned counsel for the
petitioner.
Mr.Rajendra Tiwari, learned Advocate General with Mr.Ravi Ranjan
Pandey, learned Government Advocate for the respondent nos.1 and 2.
Mr.G.P.Singh, learned counsel for respondent no.3.
The present petition has been filed by the petitioner herein who is the Mayor of the Municipal Corporation of Chhindwara. The challenge has been given to the notice dated 31.1.2019 served upon the Petitioner, issued by the respondent State through the Deputy Secretary to the State Government of Urban Administration and Development, Bhopal which is annexed to the petition as Annexure P/1, asking the Petitioner to show cause as to why she ought not be removed from the post of the Mayor of the Municipal Corporation of Chhindwara on account of the irregularities/illegalities allegedly committed by her, as reflected in the notice. The notice has been issued to the petitioner under section 19-B of the Madhya Pradesh Municipal Corporation Act, 1956.
2. The learned counsel for the petitioner has argued that the petitioner was elected to the post of Mayor and assumed charge on 18/02/15. Thereafter, she has been working continuously on the post of Mayor. It is further submitted that all through this time, there has never been any allegation against the Petitioner of any kind of impropriety/illegality, till the notice in question was issued to her. 2 He has further argued that there was a change of guard in governance of the State on 17/12/18 and on 21/12.2018, an order was passed by the Respondent State for the constitution of a three member committee to enquire into the functioning of three corporations namely, Rewa, Gwalior and Chhindwara.
3. The inquiry into the functioning of the Municipal Corporation Chhindwara was conducted between 27/12/18 and 29/12/18 and thereafter, on 31/01/19 the impugned show cause notice was issued. The sole question that arises for determination in this case is whether the impugned notice is vitiated by bias apparent on the face of the notice? The learned counsel for the petitioner has read out the notice in question and drawn the attention of this Court specifically to the first paragraph where, in the last three line it is given "ननिररिक्षण दल दद्वारिद्वा प्रस्ततुत प्रनतववेदनि अनितुसद्वारि ननिम्निद्वानितुसद्वारि अननियनमिततद्वाओओ कवे नलए आप उतद्वारिदद्वायय पद्वायय गयय हह ." If translated, the same reads "according to the report submitted by the inspection team you are answerable for the following irregularities". Thereafter, there are three charges levelled against the petitioner. This Court does not find it relevant to go through the specifics of each charge levelled against the petitioner for the purpose of deciding this petition. Thereafter, the learned counsel for the petitioner once again drew the attention of this Court to the penultimate paragraph of the notice which reads as hereunder:
"इस पकार आपके दारा महापौर के रप मे मधय पदेश नगर पाललका लनगम अलधलनयम १९५६ की धारा २५ के अतं गरत महापौर को पदत 3 शलकयो तथा लनलहत कतरवयो का पालन लकया जाना नही पाया गया है| उपरोक अलनयलमतताओ ं के कारण राजय सकारर के राय मे आपका महापौर पद पर बने रहना लोकलहत अवं लनगम के लहत मे वांछनीय नही है|"
4. Broadly, the same would read as that in this manner on account of the irregularities committed by you in the exercise of your powers and your duties under section 25 of the Madhya Pradesh Nagar Palika Act, 1956, the State Government is of the opinion that your continuation on the post of Mayor of the Corporation is against public interest. Thereafter, the petitioner has been given fifteen days' time to give her reply to the said notice.
5. The undisputed fact is that no reply has been given by the petitioner to the said notice. However, the learned counsel for the petitioner has submitted that in the normal course this Court would not exercise its plenary powers under Article 226 of the Constitution and enquire into the legality of the notice to show cause. However, the exception to the general rule being that a notice to show cause, if vitiated by bias and premeditation disclosing the mind of the authority issuing the notice, expressly or by necessary implication, thereby giving an impression that whatever is to follow thereafter is nothing but a hollow formality, is a notice that can be interfered with and set aside by the Court under article 226 of the constitution, at the incipient stage itself.
6. In order to buttress his submission, the learned counsel for the petitioner has referred to the judgment of the Supreme Court passed in Siemens Ltd Vs. State of Maharashtra and others (2006) 12 4 SCC 33. In that case, a demand was raised on the petitioner by the Bombay Municipal Corporation, terming the same as a show cause notice. According to the respondent of that case, routine investigation revealed that some vendors made complaints with regard to transportation of goods from the petitioner's factory at Kalwe. The petitioner in that case, on the receipt of the demand notice, made its representation stating therein that it had neither been receiving any goods within the local limits of the respondent no.2 (of that case) nor was it a importer in respect of goods directly sold from its Aurangabad Factory and so it was not liable to pay any cess thereupon. The said notice was challenged before the High Court of Bombay, which dismissed the writ petition. Thereafter on appeal to the Supreme Court, the Supreme Court referred to the averments made by the respondents in their counter affidavit and arrived at the conclusion that the respondent in that case, had clearly made up its mind which is explicitly stated both in the counter affidavit as also in the purported show cause notice. In paragraph 9 of the said judgment, the Supreme Court held that ordinarily a writ court would not exercise its discretionary jurisdiction to entertain a notice to show cause, unless the same inter alia appears to have been without jurisdiction. Thereafter, the Supreme Court further goes on to observe that when a notice is issued with pre-meditation, a writ petition would maintainable. It would be relevant to mention here that in that case, the Supreme Court did not just go on the basis of the show cause notice alone but also on account of the averment 5 made by the respondents in the counter affidavit, to arrive at a finding that the said notice was vitiated by pre-meditation.
7. The second judgment relied upon by the Ld. Counsel for the petitioner is Oryx Fisheries Private Limited Vs. Union of India and others (2010) 13 SCC 427. In that case the appellant before the Supreme Court was a private company engaged in the production, procurement, processing and export of sea food. The case arose from a particular contract that was entered into by the petitioner for the export of frozen shrimps to Sharjah. In paragraph 14 of the judgment, it appears that the third respondent before the Supreme Court issued a show cause notice to the petitioner calling upon it to show cause why their certificate of registration should not be cancelled. After the reply was given by the petitioner the third respondent is stated to have cancelled the registration certificate of the petitioner without giving any reason or an opportunity of personal hearing to the petitioner. Ultimately, the case reached the Supreme Court, where the Court while examining the legality of the show cause notice held in paragraph 27 that at the stage of issuance of show cause to the person, he must be informed about the charges against him in order to facilitate his defence. The Supreme Court observed that at the stage of notice/charge sheet the authority cannot go beyond an elucidation of the charges against the person to whom such charge sheet is issued and must not confront him with a definite conclusion of his alleged guilt. Thereafter, it went on to lay down that if such was done, the notice gets vitiated by unfairness and bias and the subsequent proceedings become and idle ceremony. In 6 paragraph 31, the Supreme Court held that a show cause notice should not be read hyper technically but at the same time the person to whom the show cause notice was issued, must be given an impression that he would get an effective opportunity to rebut the allegations contained in the show cause notice and establish his innocence. It further held that if the show cause notice instils in a person of ordinary prudence a feeling that his reply to the show cause notice will be an empty formality, as there exists a prejudged opinion on the part of the persons/authority issuing the show cause notice, then the same would be legally untenable. In paragraph 32, the Supreme Court lays down that while issuing a show cause notice, the authorities must take care to ensure that the said notice reflects and open mind on their part and that they would act fairly in adjudging the guilt or otherwise of the person proceeded against, more so when the person issuing the notice has the authority to take a punitive step against a person after giving him a show cause notice. Thereafter in paragraph 35, the Supreme Court lays down that the notice must be such that no man, of ordinary prudence would arrive at a conclusion that his alleged guilt has been prejudged at the stage of the show cause notice itself.
8. The third judgment referred to by the learned counsel for the petitioner is Ravi Yashwant Bhoir Vs. District Collector, Raigad and others (2012)4 SCC 407. Having gone through the said judgment this Court is of the opinion that the same, though relevant to the case of the petitioner, would not have any applicability at the present stage. Taking support of the said judgment, the learned 7 counsel for the petitioner has reverted to the penultimate paragraph of the said notice and impressed upon the court that the four lines used by the authority while issuing the notice clearly reveals a strong element of pre-judging the issue thereby giving a reasonable apprehension to the petitioner the whatever shall thereafter follow would be nothing more than a hollow formality.
9. The learned counsel for the petitioner has also argued that the notice in question is bad in law and deserves to be set aside as the inquiry/investigation done by the three member committee with regard to the functioning of the Municipal Corporation, Chhindwara, was done behind her back without her participation and, therefore, must be rejected as unlawful and violative of the principles of natural justice.
10. Opposing the petitioner, the learned Advocate General appearing for the State of Madhya Pradesh has argued that the petition is grossly pre-mature and deserves to be dismissed at the outset as the petitioner has not suffered any legal injury till date and therefore, has no cause to agitate at this juncture where this court could interfere under its plenary powers under Article 226 of the Constitution of India. The learned Advocate General has also drawn the attention of this court to the averments made in paragraphs 2, 3 and 5 of the petition in order to impress upon this court that the State is empowered under section 19-B of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as the "Act") to remove the Mayor or the Speaker, as the case may be, of any 8 Municipal Corporation, who has acted in derogation of the office. He has further submitted that all aspects of natural justice are being followed in this case and the notice issued to the petitioner only raises a prima facie view with regard to the irregularities/ illegalities committed by her as laid down in the three charges levelled against her in the said notice. He has further submitted that by no stretch of imagination can it be said that there has been a pre-disposition/pre- meditation on the part of the issuing authority.
11. The learned Advocate General has referred to the judgment of the Supreme Court reported in Special Director and another v. Mohd. Ghulam Ghouse and another (2004) 3 SCC 440 and has specifically drawn the attention of this court to paragraph 5 of the judgment where the Supreme Court has strongly deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices and stalling enquiries and retarding investigative process to find actual facts with the participation and in the presence of the parties. The Supreme Court further holds that unless the High Court is satisfied that the show- cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking.
12. Learned Advocate General has also drawn the attention of this court to the relief clause of the petition where Clause (ii) is a prayer to out-rightly quash the notice dated 31/01/19 and Clause (iii) is a prayer to direct the respondents to provide all relevant documents, 9 including but not limited to the report of the three-member committee on which the notice is based.
13. Learned Advocate General submits that the two prayers are conflicting with each other. If Clause (ii) of the prayer is allowed, it would result in the termination of the notice itself, whereas Clause
(iii) reveals that the petitioner would be satisfied if an order is passed by this court to provide all relevant documents which are to be used in the course of the enquiry against the petitioner. He has also submitted that all the documents so required by the petitioner have been handed over to the petitioner. This fact has not been disputed by the learned counsel for the petitioner but to the extent that the same were handed over to the petitioner after this petition was filed before this court and during its pendency. Lastly, the Ld. Advocate General has submitted that there is no averment in the petition to support the flagship argument advanced on behalf of the Petitioner that the notice is bad in law as it revealed bias and premeditation. Under the circumstances, the Ld. Advocate General argued that the said ground, having been taken for the first time in arguments before this Court, cannot be considered.
14. Heard the learned counsels for the parties. The only point which is before this court for decision, as stated herein above earlier, is whether the said notice is vitiated on account of bias. this Court considered is appropriate to decide the second argument put forth by the Ld. Counsel for the Petitioner at the outset. The Ld. Counsel for the petitioner has argued that the notice in question is untenable in 10 the eyes fo law on account of an the exclusion of the Petitioner from the enquiry carried out by the three-member committee, the same being violative of principles of natural justice. This court politely begs to disagree. The enquiry proceedings by the three-member committee was inquisitorial in nature and was only finding out whether there was enough material to issue the show-cause notice itself in the first place. The enquiry/investigation by the three member committe by itself does not prejudice the petitioner in any manner. The material collected in the course of the inquisitorial process on which the three charges against the Petitioner were levelled in the notice, is the relevant material on which the petitioner has to be given an opportunity to rebut. It would be on the material collected by the three-member committee that would constitute the evidential substratum of the case against the Petitioner on the basis of which, the enquiry to remove her u/s. 19B of the Act would proceed. Thus, the contention put forth on behalf of the Petitioner that the issuance of notice is hit by violation of the principles of natural justice on account of the exclusion of the Petitioner from the inquiry/investigation by the three member committee is untenable and so rejected by this Court. This brings us to the primary argument put forth by the learned counsel for the petitioner whether the notice can be sustained on account of the manner in which it has been worded in the penultimate paragraph.
15. I am of the opinion that this petition deserves to succeed as the words used in the penultimate paragraph of the notice issued to the petitioner clearly, unambiguously and unequivocally discloses the 11 mind of the issuing authority and would reveal to any reasonable person that the issuing authority has arrived at this conclusion that the petitioner has been found unfit in public interest to continue to remain on the post of Mayor of the Municipal Corporation of Chhindwara and therefore the same is vitiated by bias.
16. The contention of the learned Advocate General that this is only a prima facie view taken by the authority issuing the notice, I am afraid cannot be acceded to as correct. The last two lines which are "उपरिरोक अननियनमिततद्वाओओ कवे कद्वारिण रिद्वाज्य सरिकद्वारि कक रिद्वाय मिम आपकद्वा मिहद्वापपौरि पद परि बनिवे रिहनिद्वा लरोकहहत एवओ ननिगमि कवे हहत मिम वद्वाओछनियय निहह हह |" clearly reveals that the State Government has already formed an opinion that the continuation of the petitioner on the post of Mayor would be against public interest. There is nothing to reflect in the notice that the said finding is only a prima facie view.
17. Under the circumstances, this Court finds that the notice in question reasonably discloses pre-meditation on the part of the issuing authority. Thus, the contention of the petitioner that whatever follows hereinafter would be a hallow formality, assumes significance as pre-meditation on the part of the issuing authority would vitiate the notice on the grounds of bias in view of the judgments referred to hereinabove by the learned counsel for the petitioner. In particular, the observations of the Supreme Court in the case of Siemens Limited (supra) where it has held that a notice 12 issued with pre-meditation can be interfered with in a writ petition. Also, in Oryx Fisheries (P) Ltd., the observations of the Supreme Court in paragraph 32 that while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudicating the guilt or otherwise of the person proceeded against and specially when such authority has the power to take a punitive step against the person after giving him a show- cause notice, assumes great significance in the facts and circumstances of the present case. Here also, the notice has revealed the mind of the issuing authority which is the State Government and it has so been worded that it does not give a reasonable person the impression that he would be proceeded against fairly in the enquiry that would follow. The judgments cited by the learned Advocate General is undoubtedly what the rule must be in all those cases where a party approaches the court against a show-cause notice and the courts must normally decline to interfere where an adequate opportunity is given to the person to whom such notice is issued to give a reply to the same. The judgments stated hereinabove by the learned counsel for the petitioner carves out an exception to this rule where the notice itself is vitiated by bias, which is apparent in the notice itself and straightaway gives the impression that a fair enquiry/trial into the charges levelled against such a person is not possible on account of bias.
18. The contention of the Ld. Advocate General with regard to the two apparently conflicting prayer clauses on the basis of which the State has contended that the documents having been given to the 13 Petitioner as prayed for in the prayer clause III, there is no cause to quash the notice as prayed for in clause II of the prayer, cannot be sustained. The main relief prayed for by the Petitioner in the course of arguments was for the quash of the notice itself. The prayer for supply of documents is a supplemental prayer if the Court is not inclined to quash the notice. Therefore, this Court is of the view that the prayer clause (II) and (III) are not in conflict with each other.
19. The last contention put forward by the Ld. Advocate General that the main argument of the Petitioner that the notice in question deserved to be quashed on account of pre-meditation and bias, could not be considered as the same did not find a place in the pleadings, has to be rejected. The argument relating to the tenability of the notice is one based upon Malice in Law and not Malice in Fact. Malice in law is a situation which arises when the State or its instrumentalities act in contravention of the law, be it statutory or common law. As opposed to Malice in Law, Malice in Fact is effected when a particular person is ill disposed or acts with evil intent in order to specifically cause harm or a disadvantage to anyone in particular on account of a personal malevolent inclination towards that person. Malice in Fact necessarily needs to be pleaded in the petition and the person against whom such Malice in Fact is alleged has to be made a party to the petition. Thus, an argument based on Malice in Law need not specifically be averred in the pleadings and is to be decided as a question of law which can be raised in the course of arguments. In this case, the notice in question has been challenged and its quash is sought on the ground that the notice discloses premeditation or 14 bias and therefore is violative of Article 14 of the Constitution. There is no personal ill will attributed by the Petitioner to the specific person who has issued the notice and therefore, the petitioner has sought the quash of the notice in question on the grounds of Malice in Law and its absence in the pleadings in not fatal to the case of the Petitioner.
20. Under the circumstances, the petition succeeds and the impugned notice dated 31.1.2019 is quashed. However, the same does not preclude the State from proceeding afresh in accordance with law by issuing a fresh notice to the petitioner, if the need so arises.
21. In the light of the above order, I.A.No.1724/2019, which is an application for amendment on behalf of the petitioner is rendered infructuous.
(Atul Sreedharan) Judge ss Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2019.02.15 18:15:27 +05'30'