Madhya Pradesh High Court
Rajiv Sharma vs State Of M.P. And Ors. on 13 May, 2003
Equivalent citations: 2003(3)MPHT225
Author: Rajenra Menon
Bench: Rajendra Menon
ORDER Rajenra Menon, J.
1. Petitioner, an elected President of Municipal Council, Ambah District Morena, has called in question tenability of an order dated 12-12-2002, passed by the State Government vide Annexure P/4-A, removing him from the post of President, in exercise of the powers conferred under Section 41 (A) of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act of 1961).
2. According to the petitioner, he was elected to the Municipal Council (hereinafter referred to as the Council) in the election held on 26-12-1999, result thereof was declared on 28-12-1999, certificate, Annexure P-1 is the declaration under the relevant statutory rule declaring him to be elected as President of the Council.
3. It is the case of petitioner that even though he was discharging his duties effectively and in accordance with law, but certain persons were personally annoyed with him, therefore, complaints were made to respondent No. 1 who by letter dated 17-7-2001, Annexure P-2 raised certain quarries from respondent No. 3 in connection with the alleged irregularities. It is averred by the petitioner that in response to the aforesaid quarries, the Deputy Director, Urban Administration and Development, Gwalior, vide Annexure P-3, dated 10-8-2001, had clarified the position. Thereafter, a show-cause notice dated 24-12-2001, Annexure P-4 was issued under the provisions of Section 41-A of the Act of 1961, making various allegations against the petitioner. It is submitted that the petitioner submitted his explanation to the aforesaid supported by documents. Thereafter, the petitioner was called for personal hearing in the matter on 15-4-2002, however without considering his submissions and explanation, action has been taken for removing him from office. It is submitted by the petitioner that even though various allegations were levelled in the show-cause notice, Annexure P-4, but in the final order passed vide Annexure P/4-A, he is found guilty of five charges mentioned therein.
4. It is the case of the petitioner that action has been taken against him without considering the reply submitted by him without appreciating the fact that he has not committed any irregularity nor has he misconducted. It is the case of the petitioner that in an illegal and arbitrary manner, power under Section 41 -A of the Act of 1961 has been exercised for the purpose of removing him from office. It is argued by Shri Prashant Sharma, learned Counsel for the petitioner, taking me through various records that the order impugned has been passed ignoring the submissions made by petitioner. The petitioner, individually, as President of the Council has not misused his office or power and what has been done by him is on the basis of the resolution of the President-in-Council and with the concurrence of the Chief Muicipal Officer, who in his capacity has discharged his duties in accordance with the provisions of the statute. It is the case of the petitioner that there is no allegation against the petitioner that he is working against the public interest and he is incapable of performing his duties or that he is acting against the provisions of the statute.
5. Placing reliance on a decision of the Supreme Court in the case of Tarlochan Dev Sharma v. State of Punjab and Ors., (2001) 6 SCC 260, and decisions of this Court in the case of Kaushalya Bai (Smt.) v. State of M.P., 1999(1) JLJ277, and W.P. No. 1976 of 2002 (Daulat Ram Gupta v. The State of M.P. and Anr.), decided on 20-1-2003, it is argued by Shri Sharma that in the present case action has been taken only to unseat the petitioner from the Office of the President and it is a misuse of the statutory power. It is the case of the petitioner that there is nothing on record on the basis of which action can be taken under the provisions of Section 41-A of the Act of 1961.
6. Refuting the aforesaid, respondents have filed detailed reply separately and intervenors have also filed reply to indicate that in the discharge of his duty, the petitioner has acted in contravention of the statutory rules and regulations and action of the petitioner having adversely affected the interest of the Council, no case is made out for interference in the matter.
7. Shri R.D. Jain, learned Senior Counsel who had made the main submission contends that an administrative decision in accordance with the statutory provision has been taken and this Court while exercising jurisdiction of interference in a writ petition cannot sit over the decision of the authority as if it is an appellate authority and thereby review the entire material. It is the contention of Shri Jain that scope of judicial review in such matters is very limited. Referring to the following judgments :--
(1) Santosh KumarDubey v. State of M.P. and Ors., 1998 (2) JLJ44; and (2) Baldev Singh Gandhi v. State of Punjab and Ors., (2002) 3 SCC 667, it is argued by Shri Jain that as the material available on record, on due consideration, led the competent authority to take a decision in accordance with the powers vested in it under Section 41-A of the Act of 1961. It is not a case where the decision can be substituted by this Court by reconsidering the material. The scope of judicial review is limited and in support thereof, he places reliance on a judgment of the Supreme Court in the case of Apparel Export Promotion Council v. A.K. Chopra, (1991) 1 SCC 759, and a Full Bench decision of this Court in the case of Natwar Singh (Rana) v. State of M.P. and Ors., 1980 JLJ 69, it is argued by him that order of the State Government cannot be struck down merely because it is a non-speaking order. Referring to the majority view in the case of Natwar Singh (Rana) (supra). It is the contention of Shri Jain that as reasonable opportunity of hearing has been given, explanation submitted by petitioner has been considered, procedural requirements as contemplated under law has been complied with and as power in accordance with law is exercised by the State Government, no interference in the matter is called for.
8. That apart, referring to the provisions of review provided in the Act of 1961, it is argued by Shri Jain that the petitioner has an efficacious alternative remedy of filing a review before the State Government against the impugned order and a petition directly without exhausting the alternative remedy is not maintainable. Taking me through various documents available on record and in particular, documents pertaining to charge No. 1, charge No. 3 and charge No. 5, as contained in impugned order, Annexure P-4, it is emphasised by Shri Jain that the conduct of the petitioner clearly disentitle him to continue as President of the Council and if viewed in the backdrop of the aforesaid allegations, it is clear that he is not a fit person to hold office of the President. It is argued by him that power under Section 41-A has been properly exercised by the State Government. There are enough material available on record to show that the petitioner is guilty of the allegations levelled against him and no case is made out warranting interference by this Court in the present petition.
9. Shri K.N. Gupta, learned Counsel appearing for the Municipal Council, Kumari Sudha Shrivastava, learned Panel Lawyer for the State and Shri Jitendra Maheshwari, learned Counsel appearing for one of the inter-venors, also made their submissions in the same line as argued by Shri Jain, learned Senior Counsel and submitted that it is not a fit case where the judicial review by this Court, is called for.
10. I have heard learned Counsel for the parties at length and perused the record.
11. Recently, some what similar question with regard to removal of President of a Council was considered by this Court in the case of Daulat Ram Gupta (supra) and in Paragraphs 9 and 10, after recording facts of the case, it has been observed as under:--
"9. Section 41-A of the Municipalities Act, 1961 empowers the State Govt. at any time to remove the President, Vice President or Chairman of any Council if a opinion is formed by the State Govt. that continuance of such a person is not desirable in public interest or in the interest of the Council or it is found that he is incapable of performing his duties or he is working against the provisions of the Act or any rule made thereunder. From the aforesaid it is clear that the State Govt. has to form an opinion with regard to the desirability, interest of the public, interest of the Council and the capacity of the person to perform his duties and then take action for removal under the aforesaid provision. However, proviso to section contemplates giving reasonable opportunity of being heard to the person concerned before action is taken.
10. President of the Council is elected by direct voting in a democratic manner. That being so, while exercising power of removing such an elected Office bearer the State Govt. is duty bound to take extra care and caution and power under Section 41-A cannot be exercised until and unless strong and cogent reasons are available for taking such an action. The scope of exercising power by the State Govt. under the aforesaid provision was considered by a Bench of this Court in the case of Kaushalya Bai (supra) and in Para 4 of the said judgment this Court has held as under:--
"4. From the provision quoted above it is noteworthy that it confers and extra-ordinary and over riding power on the State Government to remove an elected office bearer of a local authority or committee under it on formation of an opinion that continuance of such office bearer is "not desirable in public interest" or "in the interest of Council" or that he "is incapable of performing his duties or is working against the provisions of the act or any Rules" made thereunder, similar power of removal of a Councillor is vested in the Collector under Section 41 of the Act against which there is an appeal provided. 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 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. The nature of power is such that it has to be exercised on an opinion objectively formed by the State Government. The misconduct or incapacity of the office bearer should be of such magnitude as to make his continuance undesirable in the "interest of Council" or "in public interest". 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 some trivial or minor irregularities in discharge of duties by the holder of the elected post. The material or grounds on which the action is taken should be such as to justify the exercise of drastic power of removal of the office bearer with consequence of his disqualification for another term. The provision has to be construed in strict manner because the holder of office occupies it by election ad he is deprived of the office by an executive order in which the electorate has no chance of participation. "
Similarly, while considering the powers conferred under the Punjab Municipal Act of 1911 for removing a President of the Council the Supreme Court in the case of Tarlochan Dev Sharma (supra) has observe as follows :--
Paras 7 and 8 :
"7. 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 election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. 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. Therefore, a case of availability of a ground square falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.
8. The proceedings for removal must also satisfy the requirements of natural justice. Second proviso to Section 22 requires that the reason for the proposed removal shall be communicated to the person proceeded against by means of a registered letter and he shall be allowed 21 days for putting up his explanation in writing. And thereafter alone, the State Government may proceed to notify his removal. In between, a duty to take decision by due application of mind to the allegations made and the explanation given is implicit and shall have to be read in the provision though not expressly stated therein. The appellant is not charged with habitual failure to perform the duties of President of the Municipal Council. He is charged with having abused his powers of President. The vires of the impugned order dated 1-10-1999 have to be tested on the touchstone of the availability of this ground."
12. The aforesaid being the legal position with regard to scope of judicial review, grievance made by the petitioner in this petition has to be adjudicated keeping in view the principles enumerated hereinabove by the Supreme Court and this Court.
13. That being so, it is not a case where the general principles governing review of the administrative decision will be applicable. Judicial review in the present case has to be undertaken keeping in view the fact that the power under Section 41-A of the Act of 1961, is to be exercised by the State Government for removing an elected office bearer from his office. Meaning thereby that the State Government is acting against the wishes and mandate of the people who have elected the incumbent into office. Accordingly, the opinion with regard to feasibility of keeping such a person in office or the desirability of removing him in public interest has to be viewed objectively and the irregularities or allegations alleged should be of such serious nature and of such magnitude that continuation of such a person is undesirable. As indicated by this Court in the case of Kaushalya Bai (Smt.) (supra), the consequence of exercise of power which is to be invoked by the State Government has serious civil consequence not only on the status of the person concerned but of his future prospects also and as no sufficient guidelines have been prescribed, State Government has to invoke the power only if strong and cogent reasons are available. It has been emphasised by this Court, in the aforesaid case of Kaushalya Bai Smt. (supra), power cannot be exercised on some trivial or minor irregularities in the discharge of duties by the holder of the office. As indicated in the aforesaid case, the materials or the grounds on which the allegations arc founded and the reasons for removal of the office bearer should justify the exercise of such a drastic power of removal. Keeping in view the aforesaid, the scope of judicial review in such matters is to be considered.
That being the legal position, the contention of Shri Jain that this Court cannot sit over the decision of the State Government as an appellate authority has to be scrutinised keeping the aforesaid in view. There is no dispute that this Court cannot sit over the decision of the State Government as an appellate forum and scrutinise the action as if it is deciding an appeal against the order of the State Government, but in the backdrop of the legal principle enumerated hereinabove, in matters concerning removal of democratically elected people, this Court can very well look into the matter to find out whether the removal is based on cogent and compelling reasons, whether interest of the public, interest of the Council have been properly considered, whether material on the basis of which action has been taken is of such a nature that the persons can be held to be responsible for having misused his office to such an extent that retaining him in the office will have serious and far reaching consequences in the interest of the Council and ultimately the public at large. This Court can always look into the matter to find out whether conditions and circumstances extraneous to the main purpose of the statute are being achieved by exercise of its power. The case after appreciating the material on record, this Court comes to a conclusion that the irregularities or misconduct alleged are nothing but some discrepancies or irregularities which cannot be contemplated to and directly attributable to the persons certainly power of judicial review can be exercised. It is in the aforesaid background that the allegations and the material to substantiate the same is to be examined by this Court, to consider the fact as to whether the allegations and the irregularities complained of are so serious in nature that the person has to be unseated from his office. This power of review is approved by this Court in the case of Kaushalya Bai (Smt.) (supra), and therefore, it cannot be said that merely because opportunity of hearing has been given and there is no violation of any statutory provision, the decision of the Government has to be upheld and this Court cannot interfere in the matter. The judgments referred to by learned Senior Counsel are with regard to scope of judicial review mainly in matters concerning disciplinary action against employee's and the Full Bench judgment in the case of Natwar Singh (Rana) (supra) is with regard to the requirement of passing speaking order in such matters and therefore, arc not much relevant for decision in the present case.
14. As far as the grounds for rejecting the petition only because alternative remedy is available, I am not inclined to dismiss the petition on this ground alone. The decision taken by the Government can be considered by this Court and the remedy available for review before the same authority will not be an efficacious alternate remedy. I find no ground for dismissing the petition on the aforesaid objection.
15. As far as the merits of the allegations made against the petitioner are concerned, a perusal of the order impugned goes to indicate that action has been taken against him on five charges.
16. Charge No. 1 pertains to certain travel undertaken by the petitioner in the month of February, 2000, for the purpose of the Council. According to this allegation, in the month of February - March, 2000, it is alleged that the petitioner travelled from Ambah to Mumbai and to Delhi, for which he submitted a T.A. Bill for Rs. 5,222/-. However, it is alleged that while undertaking the aforesaid journey, prior approval of the State Government was not taken.
17. Shri Prashant Sharma during the course of hearing referring to the aforesaid allegation and the note sheets that have been filed by the respondent/State Government along with its return as contained in Annexure R-5, points out that the journey was undertaken to Delhi and Mumbai for the purpose of arranging certain facilities in connection with a fair to be held in the Council. Referring to the note sheets, it is submitted by Shri Sharma that on an audit objection being raised to the effect that the journey has been undertaken without approval of the State Government, after sanction of the C.M.O., the petitioner on 14-3-2000 has made an endorsement to the effect that the matter be referred to the State Government for its approval and payment of released accordingly, even though, C.M.O., directed that the payment be made. It is in such circumstances submitted by Shri Sharma that the only allegation is that prior approval of the State Government was not taken, and therefore, it is not such a serious allegation, for which the petitioner can be removed from his office. Shri Jain, inviting my attention to the statutory rules known as Madhya Pradesh Municipality (Remuneration and Allowances to Council) Rules, 1995, points out that under Rule 4, prior permission of the State Government is necessary for journey outside the State. Even though, during the course of hearing, Shri Jain, by referring to Annexure R-5, T.A. Bill and Annexure R-6, a letter written to the Station Superintendent, tried to emphasise that the petitioner has not submitted proper bill but the fact remains that for this charge, it is not the allegation that the petitioner had submitted a false. T.A. Bill that without undertaking the journey, he has submitted the bill. There is no such allegation that the T.A./D.A., was claimed by petitioner without undertaking the journey. The allegation is only that without prior approval of the State Government, the journey was undertaken. From the note sheet, it is seen that the petitioner had undertaken the journey for the purpose of and work in connection with the affairs of the Municipality. The C.M.O., had processed his claim and sanctioned for clearance of the bill and when the fact with regard to approval not being taken from the State Government was pointed out, the petitioner himself made an endorsement that the matter be referred to the State Government and subject to the approval of the State Government, he was accepting the amount. In any view of the matter, this allegation is not so serious, an allegation that power under Section 41 of the Act of 1961, is to be exercised for the same. At best, the action may be a irregular one for which the amount of T.A. Bill can be recovered from the petitioner but it is not an allegation so serious in nature that it warrants exercise of such extra-ordinary power in the backdrop of law laid down in the case of Kaushalya Bai (Smt.) (supra). The allegation is trivial in nature or is only a minor irregularity in the discharge duty by the holder of an elected office. That being so, as far as the charge No. 1 is concerned, it cannot be said that it is so serious in nature that action under Section 41-A of the Act of 1961, is called for.
18. Similarly charge No. 2 pertains to installing two telephones at his residence instead of one and claiming higher telephone bills than permissible. As far as this charge is concerned, it is the case of the petitioner that when he was elected to the Council, the C.M.O., concerned wrote a letter dated 11-1-2000, Annexure P/10-B to the authorities of the Telephone Department and it was the CM.O., who had directed the telephone authorities to transfer both the telephones installed in the residence of the previous President, Shri Dinesh Jain to the residence of the petitioner. It is, therefore, submitted that the telephone was transferred at the instance of the C.M.O., and the petitioner has not taken any action in this regard. As far as the claiming of the telephone bills in excess of the sanctioned amount are concerned, from the records and the note sheet, Annexure R-7, it is seen that the telephone bills have been approved for payment by the C.M.O., and payment of the bills have been made after due sanction and approval of the C.M.O. As far as the excess payment is concerned, the note sheet, Annexure R-7 indicates that in respect of excess bill, the matter be referred to the State Government for its approval and further action. This recommendation of the C.M.O., was approved of by the petitioner and it has been ordered by the petitioner that as per rule only the bills be sanctioned and paid. From the aforesaid note sheet filed vide Annexure R-7, in connection with this allegation and in particular the note sheet dated 3-1-10-2000 and 20-12-2000 are concerned, these note sheets indicate that the matter was directed to be referred to the State Government for obtaining its approval and taking further action in the matter. In these note sheets, the petitioner himself has indicted that the matter be referred to the State Government for its approval and action be taken for payment of bills. From this, it is seen that the petitioner has not claimed the bill in excess of the sanctioned amount on his own. He had himself referred the matter as per the nothing of the C.M.O., to the State Government for sanction and approval in accordance with law. That being so, as in the case of charge No. 1, this charge is also, not so serious in nature that it can be said to be sufficient to invoke power under Section 41- A of the Act of 1961. This is also some procedural irregularity committed but the intention of the petitioner as is reflected in Annexure R-7 indicates that he had no intention of getting undue advantage to himself or resultant loss to the Council. He had only claimed the amount subject to approval and sanction of the State Government, meaning thereby that in case he was not entitled to the same, he was liable to refund the amount. It is, therefore, not correct to say that this action of the petitioner amounts to action which can be termed as detrimental to the interest of the public or the Council. In that view of the matter, like charge No. 1, in this case also, the charge cannot be said to be so serious warranting exercise of power under Section 41 -A of the Act of 1961.
19. As far as the charge No. 3 and charge No. 5 are concerned, according to Shri Jain, learned Senior Counsel, these charges are the most gravest and serious charges. Charge No. 3 pertains to auctioning of two shops adjacent to each other. It is alleged that one shop was auctioned for Rs. 23,500/-whereas the other shop was auctioned for Rs. 61,000/-. Similarly, in charge No. 5, it is alleged that for two shops, adjacent to each other situated in Ganj Bazar, an amount of Rs. 3,50,000/- was received for one shop and for the other, only a sum of Rs. 1,25,000/- was received. The allegation that the petitioner by misusing his power had auctioned these shops at lower price contrary to the rules. Violations arc alleged to be non-publication of the notice in news paper having vide circulation, irregularities in the auction and ignoring the amount received for identical shops situated near to each other, being Rs. 23,000/- and Rs. 61,000/- and for another shops situated at Ganj Bazar, Rs. 3,50,000/- and Rs. 1,25,000/-, though adjacent to each other. It is said that by auctioning the shops at lower rates, the petitioner has caused loss to the Council.
20. Referring to various statutory provisions, namely :-- Madhya Pradesh Municipalities (The Conduct of Business of Mayor-in-Council/Presi-dent-in-Council and the Powers and Functions of the Authorities) Rules, 1998, Madhya Pradesh Municipalities (Financial Powers of Authorities and Limit for Inviting Tenders), section 109 of the Madhya Pradesh Municipalities Act, 1961 and provisions of the Madhya Pradesh Municipalities (Transfer of immovable property) Rules, 1996, Shri Jain argues that for transfer of property in such cases, wide publicity has to be given and tenders and offers have to be called for and prior approval of the State Government has to be taken and without following these procedures under the statute action has been done and as a result of which, the Council had suffered loss. It is, therefore, pointed out that these charges are very serious in nature.
21. A perusal of the auction proceedings available on record goes to indicate that for two shops auction was held on 11-7-2000, on the basis of the bids received, a note sheet signed by the C.M.O., was put up before the petitioner. The petitioner directed for placing the matter before the President in Council, for its consideration as recommended by the C.M.O. Similarly, for the other two shops also, similar note sheets were prepared and the petitioner directed for placing the matter before the President-in-Council. It is after the approval of the President-in-Council that the shops in question were allotted. From the note sheets, it is seen that the petitioner has not taken any decision in his individual capacity as President of the Council. Due advertisements as contained in Annexure P/10-H were issued calling for offers. The auction notices are signed by the C.M.O. In-charge Revenue and Market and the petitioner. On the date in question, auctions were held and according to rules, auction is held by the C.M.O., and the bids received are put up by the C.M.O., along with his comments and the petitioner only directed for placing the same before the President-in-Council, for its consideration. The matters went to the President-in-Council and after due approval of the President-in-Council, the decision was taken.
22. During the course of hearing by taking me through various statutory provisions, an endeavour was made by learned Counsel for the respondents that the petitioner has tried to give advantage to some persons of his interest by auctioning the shops at lower rates when higher rates can be obtained for the same because of the difference in the rates for similar shops situated in identical locations. The charges that the petitioner in doing so has acted against the interest of the Council, therefore, petitioner be held responsible for this, it is seen that action is taken collectively as per the Madhya Pradesh Municipalities (The Conduct of Business of the Mayor-in-Council/ President-in-Council and the Powers and Functions of the Authorities) Rules, 1998, financial powers have been conferred under Rule 5 and various procedures have been formulated under these rules for transacting business of the Council. Similarly, Madhya Pradesh Municipalities (Transfer of Immovable Property) Rules, 1996 have been framed and under Rule 4, before the transfer is made, auction notice has to be published in the local news paper having wide circulation as laid down in the said rule. In the present case, the records indicate that notices were published in the daily news papers, Nav Bharat and Swadesh, which have wide circulation in the area. As per Rule 5, the auction took place under the supervision of the Chief Municipal Officer and his authorised representative. Thereafter, the proposals and bids were placed before the petitioner who had directed for placing the matter before the President-in-Council and it is only after the approval was obtained from the President-in-Council that the action was taken.
23. From the aforesaid, it is seen that there is nothing on record to indicate that the petitioner in the matter of auctioning of shops has done something by exercising his power independently. His personal involvement in the matter is not apparent from the record on the basis of which it can be said that he had misused his office. Not a single document has been brought on record on the basis of which it can be said that the petitioner has at his instance done something which can be held to have caused loss to the municipalities. On the contrary, the record indicate that the petitioner had only approved the proposal of the C.M.O. The matter was placed before the President-in-Council and it is the said Council which passed the resolution. A collective action was taken in the matter. Even if it is said to be detrimental to the interest of the municipality, it cannot be attributed solely to the petitioner.
It would have been a different thing altogether if the individual role of the petitioner in getting the shops auctioned was apparent from the face of the record on the basis of which some motive can be attributed to his conduct.
Present is not a case of such nature where independently the petitioner has done anything. What transpires from the record is that a resolution was passed which has been implemented. If the President-in-Council was of the opinion that there is deficiency in the procedure followed in auctioning the shops, the Council could have passed, a resolution rejecting the offers and reauctioning the shops again. This Court cannot appreciate the fact that for the collective responsibility of the President-in-Council, singling out the petitioner alone for action is warranted. This can be done only if there was enough material on record to indicate that the petitioner some how or the other was instrumental in getting the resolution passed from the Council by misrepresenting or misusing his office.
Nothing is there of the said nature nor does the record indicate anything of the sort. Even though by referring to Section 109 of the Act of 1961 and various statutory provisions, during the course of arguments, learned Counsel for the respondents tried to emphasise that the petitioner has acted in contravention of the rules, but from the records it is seen that the petitioner in his individual capacity has not done anything in the matter except for directing of placing the matter before the President-in-Council. As already indicated above, there is nothing on record to indicate that the petitioner tried to misuse his office for getting some undue benefit to any person. In that view of the matter, it cannot be said that for the purpose of auctioning the shops and in connection with the charge No. 3 and charge No. 5, the petitioner has committed any irregularity.
24. The question, therefore, is in recording such a finding, is this Court exceeding its jurisdiction and stepping into the jurisdiction of administrative decision by reappreciating the material on record and coming to a different conclusion. In my considered view, it is not so. In the opinion of this Court, the findings recorded in connection with these charges are totally perverse and have been arrived at without considering the relevant factors. It is perverse in the sense that there is nothing on record to hold the petitioner individually guilty for having caused loss to the municipality or gain to any other person, extraneous consideration, to the extent that for holding the petitioner guilty for these charges, there should be enough material to implicate the petitioner individual for the role played by him in connection with the allegation. As indicated hereinabove, there is nothing on record to substantiate the aforesaid position. On the contrary, the records only shows that auction was done after due publication in the news papers, the notice was published under the signature of three persons which included the C.M.O., In-charge of Revenue and Marketing and President. Auction is done under the rules by the C.M.O., or his representative. The petitioner has no role to play in his individual capacity as he has directed to place the matter before the President-in-Council for its approval. That being so, this Court is unable to accept the contention of the State Government that the petitioner is responsible for having committed any irregularity in the matter.
25. Similarly, for charge No. 4, which pertains to taking action for mutation of property. The note sheets indicate that the petitioner has only approved the recommendation for mutation made by various authorities and individually he has not committed any irregularity whereby it can be said that his action is detrimental to public interest or interest of the Council.
26. Assessment of the charges and material available on record has been done hereinabove only to asses as to whether a case is made out where it can be said that the charges are so serious in nature that criteria laid down for taking action as indicated in the case of Kaushalya Bai (Smt) (supra) is made out.
27. In view of the discussion made hereinabove and the material available on record, it is clear that even if the entire factors are admitted, they can at best be said to be irregularities mainly procedural in matter and there is nothing on record to individually single out the petitioner to be responsible for having misused his office. The material on record does not disclose that the petitioner is guilty of charges so serious in nature so as to warrant taking action against him under Section 41-A. Consequently, this Court finds that the material on record with regard to the allegations made against the petitioner are not of such a serious nature so as to warrant taking of drastic action in exercise of the extra-ordinary power for removing him from office under Section 41-A of the Act of 1961.
28. Accordingly, the petition is allowed, the impugned order dated 12-12-2002 (Annexure P/4-A) is hereby quashed. The petitioner shall be permitted to assume the office and function as President of the Council in question in accordance with law.