Madhya Pradesh High Court
Preeti Swapnil Agarwal vs The State Of Madhya Pradesh on 10 January, 2020
Equivalent citations: AIR 2020 MADHYA PRADESH 44, AIRONLINE 2020 MP 11
Author: Nandita Dubey
Bench: Nandita Dubey
1 W.P. No.24942/2019
HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
Writ Petition No.24942/2019
Preeti Swapnil Agarwal
Vs.
State of M.P. & others
____________________________________________________
Shri Naman Nagrath, learned Sr. Advocate with Shri
Jubin Prasad, counsel for the petitioner.
Shri Praveen Dubey, learned Deputy Advocate
General for the respondent/State.
Shri Parag Chaturvedi, learned counsel for the
intervenor.
Whether approved for reporting : Yes
Law laid down :
Significant paragraph numbers : 18,19,20,31,32
ORDER
(10.01.2020) This petition filed under Article 226 of the Constitution of India takes exception to the order dated 15.11.2019 (Annexure P-13), whereby invoking Section 41- A of M.P. Municipalities Act, 1961 (hereinafter referred to the Act), the petitioner was removed from the post of President, Municipal Council, Katangi, district Jabalpur and 2 W.P. No.24942/2019 further declared as disqualified to hold the post of President for the subsequent term.
2. The petitioner was elected on the post of President in the Municipal Council in the year 2015 and assumed the charge of the said office on 15.01.2015. On 30.05.2016, a complaint was filed against her alleging that certain irregularities were committed during illegal appointment of the daily rated employees and in the purchase of GI pipes by the council. The said complaint was investigated by respondent No.2, who submitted a detailed report on 13.06.2017 holding the complaint to be incorrect and without basis. Later on, on the basis of the same complaint, another enquiry was conducted and in the second report dated 01.09.2017 (Annexure P-2), the President alongwith Chief Municipal Officer and the Accounts Officer were held responsible for the charges of irregular appointment of daily wagers and procurement of GI pipes.
3. A show cause notice dated 14.08.2019 was issued, calling explanation,in which two more charges 3 W.P. No.24942/2019 relating to procurement of solar lights and fiber speed breakers were also included.
4. On 13.09.2019, a detailed reply to notice dated 14.08.2019 was filed by petitioner, denying and refuting all the charges levelled against her. In relation to charge No.1, she asserted that no daily wage employee was appointed. Rather services of skilled labour were taken as per Rule 152 of Madhya Pradesh Municipal Accounts Rules, 1971 to serve the basic needs of Municipal Council including water supply, fire vehicle driver, door to door MSW collectors etc. and remuneration was paid on muster roll.
5. As regards the second allegation, it was stated that e-tender committee consisting of Chief Municipal Officer, Sub-engineer and Accountant was responsible for taking action and obtaining permission for purchase of materials. It was stated that rates of M.P. Laghu Udhyog Nigam cannot be considered for determining the market price in absence of any such provisions and as the M.P. Laghu Udhyog Nigam did not participate in tender process.
6. In response to charges No.3 and 4 regarding purchase of solar lights and fiber speed breakers, it was 4 W.P. No.24942/2019 submitted that purchase orders were issued only after allocation of budget. On the recommendation of tender committee, administrative approval was granted by the Municipal Council by resolution No.28 and 10 respectively in general body meeting dated 01.08.2015 and 29.01.2015 respectively.
7. Thereafter, a show cause notice dated 24.09.2019, under Section 41-A of the M.P. Municipal Council Act, 1961 was served to the petitioner. Charge No.1 levelled by the respondent against the petitioner was that during her tenure, 17 persons were appointed as daily rated employees (muster roll) and paid from the municipal fund, in violation of government rules and regulations and in view of the provisions of Section 51-A of the Act, she has faulted in performing her duties and misutilized the municipal funds.
8. In Charge No.2, it was alleged that during the financial year 2015, 2016 and 2017, in purchase of GI pipes, recommendation of tender committee was not sought, nor technical approval was taken which was against the M.P. Municipal Accounts Rules, 1971. The GI pipes were 5 W.P. No.24942/2019 purchased at a higher rate than market rate. On comparing with the rate of M.P. Laghu Udhyog Nigam, it was found that monetary loss of Rs.8,54,678/- was caused to the Council.
9. Charge No.3 levelled against the petitioner was that by the Resolution No.28 dated 01.08.2015, to purchase solar lights was passed by the Council. However, the estimate and technical approval was not sought and which is violation of Rule 6 of the Madhya Pradesh Municipalities (the Conduct of Business of the Mayor-in-Council/President- in-Council and the powers and function of the Authorities) Rules, 1998 (in short the 1998 Rules) of the Council.
10. Charge No.4, levelled against the petitioner was that in purchase of fiber speed breakers, financial and technical sanction was granted without prior obtaining recommendations of tender committee, in violation of Rule 6 of 1998 Rules.
11. In response to the show cause notice dated 24.09.2019, the petitioner vide reply dated 29.09.2019 brought to the notice of respondents that she had already submitted a detailed representation vide reply dated 6 W.P. No.24942/2019 13.09.2019. It was stated that petitioner has been singled out and no action has been taken against Chief Municipal Officer or Accounts Officer. On 10.10.2019, the petitioner requested the respondents to secure the presence of concerned Chief Municipal Officer or Accounts Officer, technical member of Council, who had conducted the enquiry.
12. It is contention of the petitioner that without affording a reasonable opportunity of being heard, the petitioner was found prima facie guilty on the four points of investigation and the impugned order dated 15.11.2019 was passed.
13. Learned counsel for the petitioner contends that the impugned order is politically motivated. It is stated that the entire action is initiated on the basis of complaint of one Mr. Mahendra Kumar Nema, who belongs to a different political party. It is stated that as far as charges No.1 and 2 are concerned, i.e., appointment of 17 persons on daily rate basis and procurement of GI pipes, no allegation of financial misappropriation or corruption has been levelled against the petitioner in personal capacity. 7 W.P. No.24942/2019
14. It is further submitted that in respect of these charges, petitioner cannot be singled out, as the decision was taken by the Council on collective basis. It is stated that the President of the Council is not accountable and responsible for the action of the Council, if the same is found to be in contravention of any rules and circular of the Government, as the President is only the administrative head of the Council and has supervisory role. Reliance is placed on (2010) 2 SCC 319 Sharda Kailash Mittal Vs. State of M.P. It is contended that as far as charges No.3 and 4 are concerned, they are only been partially proved and cannot form the basis for removal and further debarring of petitioner from subsequent election. It is contended that the removal of petitioner is arbitrary and uncalled for as the alleged irregularities were trivial and not so serious in nature, which can result into removal of an elected president. Reliance is placed on (2019) 1 MPLJ 426, Ajay Kumar Vs. State of M.P., 2009(4) MPLJ 186 Baleshwar Dayal Jaiswal Vs. State of M.P and others.
15. Per contra, Shri Praveen Dubey, learned Dy. Advocate General supported the impugned order. It is submitted that proper opportunity of hearing was given to 8 W.P. No.24942/2019 the petitioner. Referring to Annexure P-11, dated 29.09.2019, it is pointed out that the petitioner adopted her earlier reply dated 13.09.2019, in reply to the show cause notice and virtually admitted the irregularities committed in appointment of daily rated employees and purchase of GI pipes. Hence, the question of further hearing does not arise. Moreover, there is no provision of examining or cross-examining the concerned officials, hence there is no fault in the decision making process. It is pointed out that as per the enquiry report dated 01.09.2017, payment of Rs. 78,530.50 was made to the daily rated employees jointly by the Chief Municipal Officer and President on basis of fake and forged muster roll, causing loss to the Municipal Council. Hence she has committed financial irregularities and in violation of Rules 152, 153 and 154 of the M.P. Municipal Accounts Rules, 1971. Relying on Section 51(b) and (c), 87 and 92 of the Act, it is contended that duty of the President is to watch over and supervise and control over the financial and executive administration of the Council and the acts of all the officers of council in the matters concerning accounts and records of the council i.e., the primary control is with the President. However, she was incapable and incompetent and did not fulfill her duties 9 W.P. No.24942/2019 properly, resulting in misutilization of the funds in violation of Section 83 of the Act. It is further contended that in purchase of solar lights (charge No.3) and fiber speed breakers (charge No.4), the purchase was made in violation of Rule 6 of the Rules, 1998, as it was done without the recommendation of the tender committee and PIC. It is further submitted that before purchase of GI pipes, no recommendation of the tender committee nor financial approval was taken. Payment was done at a higher rate in comparison to the rates as sanctioned by M.P. Laghu Udhyog Nigam, thereby causing a loss of Rs. 8,54,678/- to the Municipal Council.
16. I have heard the learned counsel for the parties at length and perused the record.
17. The petitioner has been removed invoking Section 41-A of the Municipal Council Act for alleged violation of Section 51 (b) and (c) and in violation of the 1998 Rules.
18. In the case of Sharda (Supra) the Supreme Court while considering the scope of Section 41-A of the Act and the nature of power of Government has observed:- 10 W.P. No.24942/2019
"24. 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 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.
25. 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 11 W.P. No.24942/2019 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.
26. 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 case of Ajay Kumar (Supra), the Court has observed:-
"21. In Rajeev Sharma (supra), this court again emphasized that removal of President can be only in public interest and irregularities alleged should be of such serious nature that continuance of such person as President is undesirable. It was held that 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 12 W.P. No.24942/2019 continuation of such a person is undesirable. Court cannot sit over the decision of the State Government as an appellate forum and scrutinies 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. In view of 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 13 W.P. No.24942/2019 under Section 41-A of the Act of 1961. Prakash Shrivastav J. followed the said ratio in Baleshwar (supra) and held that it is the settled position in law that the action of the Government has to be reasonable and it cannot be held that Section 41-A gives arbitrary unbridled and discretionary power to the State to remove the elected president on trumpery charges not adequately proved or unreasonably accepted. The State is required to form an opinion in respect of the misconduct or incapacity objectively. Since the exercise of power under Section 41-A has serious consequence, therefore, it can be invoked only for very strong and weighty reasons and the material on the basis of which such action taken must justify such a serious action. It cannot be ignored that by exercising this power, the State removes a democratically elected President, therefore, such a power cannot be exercised for trivial reasons or the material which is inadequate for taking the action. Reliance was also placed on1991 (1) MPLJ 368 and 1958 MPLJ
531.
22. In view of the principles laid down in these cases, the respondents have not rightly invoked section 41-A of the Municipalities Act. Apart from this, the Supreme Court in Sharda (supra) held that if decision regarding tender and payment of salary etc. is made by entire President-in- Council by taking collective responsibility, the appellant alone cannot be singled-
out. For this reason also, the impugned order by which only one elected representative is removed, cannot be countenanced."
20. In 1999(1) MPLJ 368 Kaushalyabai Vs. State of M.P, this Court has held :-
"Removal of President of Nagar Panchayat can be done when the charges of such serious nature as to warrant the grave action of removal. The power under Section 41-A is an extraordinary power which can be invoked sparingly. This 14 W.P. No.24942/2019 power cannot be invoked on a trivial irregularity. The relevant para reads as under:
"Section 41-A of the M.P. Municipalities Act, 1961 as introduced by amendment act No.18 of 1997 w.e.f. 21-04- 1997 confers an extraordinary and overriding 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 the counsel" or that "he is incapable of performing his duties or is working against the provisions of the Act or any Rules" made thereunder. For taking action under Section 41-A of 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 counsel" 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 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 flow on its exercise 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 15 W.P. No.24942/2019 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 the strict manner because the holder of office occupies it by election and he is deprived of the office by an executive order in which the electorate has no chance of participation."
21. In view of the aforestated legal position, it is to be seen whether the action against the petitioner under Section 41-A of the Act is justified.
22. Before dealing with the rival contentions, it is apposite to refer to the relevant provisions :-
"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 working against the provisions of the Act or any rules made there under 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 Councillor also. At the time of passing order under sub-section (1), the State Government may also pass such order that the President or 16 W.P. No.24942/2019 Vice-President or Chairman of any Committee, as the case may be, shall disqualified to hold the office of 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.
23. A perusal of Section 41-A of the Act shows that power to remove President, Vice-President or Chairman of a Committee vests with State Government, if his continuance in the office is found prejudicial to public interest or interest of Council of if he is incapable of performing his duties or working against the provisions of the Act or Rules made thereunder. Section 41-A(2) further provides that State Government at the time of removal may pass an order disqualifying the person for holding the office for the subsequent term.
24. Section 51 provides for the power of duties of the President of Municipal Council.
51. Powers and duties of President.- (1) It shall be the duty of the President of the Council-
(a) .......................................
(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;17 W.P. No.24942/2019
(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;"
25. A perusal of the show cause notice shows that allegations against the petitioner are confined to incompetency in fulfilling her duties with regard to appointment and payment of 17 muster roll daily rated employees, which allegedly was done violating the government orders and the alleged irregularities in the matter of purchased of GI pipes, which was purchased at a higher rate without comparing with the rates of MP Laghu Udhyog Nigam. In the purchase of solar lights and fiber speed breakers, without obtaining financial and technical approval and without the recommendations of the tender committee.
26. Vide impugned order, the State Government after considering the reply of petitioner reached to the following conclusions :-
^^vkjksi dzekad 01] 17 nSfud osru deZpkfj;ksa dh vfu;fer fu;qfDr fd;s tkus ls lacaf/kr gSA mYYks[kuh; gS fd 'kklu }kjk nSfud osru fuq;fDr;ksa ij izfrca/k yxk;k x;k gSA e/;izns'k 'kklu] uxjh; fodkl ,oa vkokl foHkkx] 18 W.P. No.24942/2019 ea=ky;] Hkksiky ds vkns'k dzekad 6987@99@18&1 Hkksiky fnukad 31-12-1999 o e/;izns'k 'kklu lkekU; iz'kklu foHkkx] ¼osru vk;ksx izdks"B½ ea=ky;] Hkksiky ds Kki dzekad ,Q 5&14@osvkiz-@99 Hkksiky fnukad 14-02-2000 ds vuqlkj 'kklu }kjk funsZ'k tkjh fd;s x;s gSa fd dksbZ Hkh foHkkx vf/kUkLFk vf/kdkjh fcuk jkT; 'kklu dh iwoZ Lohd`fr ds fdlh Hkh in ij nSfud osru ij fu;qfDr vkfn ugha djsxkA jkT; 'kklu us ;g Hkh Li"V fd;k gS fd mDr izfrca/k 90 fnu dh vof/k ds fy;s Hkh dh tkus okyh fu;qfDr;ksa ij Hkh ykxw gksxkA foHkkx }kjk 28-02-2014 dks uxj ikfydk ,oa uxj ifj"knksa dh vknZ'k dkfeZd lajpuk dh Lohd`fr nh xbZ gSa] ftlesa nSfud osru ij fu;qfDr;ksa dk dksbZ izko/kku ugha gSA e/;izns'k 'kklu foRr foHkkx ds i= dzekad 656@527@2000@lh@4@fnukad 28-03-2002 ds }kjk nSfud Jfedksa dh fu;qfDr ij izfrca/k yxk;k gSA Jherh vxzoky }kjk ys[kk fu;e 1971 dh dafMdk 152 ds vuqlkj Jfed j[kk tkuk mYysf[kr fd;k x;k gSA tcfd mDr dafMdk foHkkxh; fuekZ.k dk;ksZa esa yxk;s tkus okys Jfedksa ls lacaf/kr gSA tcfd uxj ifj"kn dVaxh }kjk fuekZ.k dk;ksZa ds vfrfjDr vU; dk;ksZa esa Jfedksa dks fu;ksftr fd;k x;k gSA vr% v/;{k }kjk izLrqr ;g rdZ ekU; fd;s tkus ;ksX; ugha gSA ;gkWa ;g Hkh mYYks[kuh; gS fd bu Jfedksa dks j[kus ls iwoZ 'kklu ls dksbZ Lohd`fr izkIr ugha dh xbZ FkhA uxjh; fudk; esa vko';drk IkM+us ij fu;ekuqlkj lafonk fu;qfDr fd;s tkus dk izko/kku gSA e/;izns'k uxjikfydk vf/kfu;e 1961 dh /kkjk 51 v/;{k dh 'kfDr;ksa rFkk dRrZO;ksa ls lacaf/kr gSA tks fu;ekuqlkj gS%& /kkjk 51- v/;{k dh 'kfDr;ka rFkk dRrZO; & ¼1½ ifj"kn ds v/;{k dk ;g drZO; gksxk fd og %& 19 W.P. No.24942/2019 ¼d½ tc rd fdlh ;qfDr;qDr dkj.k }kjk fuokfjr u gks tk,] ifj"kn ds leLr lfEeyuksa esa v/;{krk djs vkSj rRle; izo`Rr fu;eksa ds micU/kksa ds v/;/khu jgrs gq,] ,sls lfEeyuksa esa dkedkt ds lapkyu dk fofu;eu djsA ¼[k½ ifj"kn ds foRrh; vkSj dk;Zikyd iz'kklu ij fuxjkuh j[ks vkSj ,sls dk;Zikyu d`R;ksa dk ]tks bl vf/kfu;e }kjk ;k mlds v/khu mls vkoafVr fd, tk,a] ikyu djsaA ¼x½ dk;Zikyd iz'kklu ds ekeyksa esa vkSj ifj"kn ds ys[kkvksa rFkk vfHkys[kksa ls lacaf/kr ekeyksa esa ifj"kn ds leLr vf/kdkfj;ksa rFkk lsodksa ds dk;ksZa rFkk dk;Zokfg;ksa dk Ik;ZZos{k.k djsa rFkk mu ij fu;a=.k j[ksaA mijksDrkuqlkj v/;{k }kjk /kkjk 51 ¼[k½ o ¼x½ esa izkIr dRrZO; ds fuokZgu esa pwd dh xbZ gSA vkjksi dzekad 01 izekf.kr gksrk gSA vkjksi dzekad 02] th-vkbZ- ikbZi dz; djus esa rduhdh Lohd`fr o fufonk lfefr dh vuq'kalk izkIr u fd;s tkus o vf/kd njksa ij lkexzh dz; fd;s tkus ls lacaf/kr gSA uxjh; fudk; esa rduhdh C;kSjksa ;k izkDdyu cukus dk mRrjnkf;R; uxj ikfydk ;a=h dk gksrk gSA tgkWa rd fufonk lfefr dh vuq'kalk izkIr u fd;s tkus dk iz'u gS] ;|fi v/;{k fufonk lfefr dk lnL;
ugha gksrk gS] rFkkfi e/;izns'k uxjikfydk ¼es;j&bu&dkmafly@izslhMsUV&bu&dkmafly ds dkedkt dk lapkyu rFkk izkf/kdkfj;ksa dh 'kfDr;ka ,oa dRrZO;½ fu;e] 1998 ds fu;e 5¼5½ esa Li"V :i ls mYysf[kr fd;k x;k gS fd foRrh; vf/kdkjksa dk iz;ksx fdu 'krksZa ds v/;/khu fd;k tk ldrk gS ftlds mifu;e ¼nks½ ds vuqlkj rduhdh Lohd`fr izkIr fd;k tkuk vfuok;Z gS rFkk mifu;e ¼N%½ ds vuqlkj fufonk lfefr dh flQkfj'k vfHkizkIr fd;k tkuk vko';d gSA izdj.k ds ijh{k.k ls th-vkbZ- ikbZi dz; djus ds fy;s njksa dh Lohd`fr ls iwoZ ,slh dksbZ dk;Zokgh 20 W.P. No.24942/2019 fd;k tkuk Kkr ugha gksrk gSA mYys[kuh; gS fd dz; dh xbZ lkexzh dh njksa dh rqyuk y?kqm|ksx fuxe dh njksa ls dh xbZ gS RkFkk rhu o"kksZa esa dz; dh xbZ lkexzh esa dqy :- 8]54]678@& dk vf/kd Hkqxrku fd;k x;k gSA blds fy;s vU; vf/kdkjh@deZpkfj;ksa ds lkFk&lkFk v/;{k Hkh leku :i ls nks"kh ik;h tkrh gSA vkjksi dzekad 03] dz; dh tkus okyh lkexzh dk vuqeku i=d rS;kj ugha fd;s tkus] rduhdh Lohd`fr izkIr u fd;s tkus fufonk lfefr dh vuq'kalk izkIr u fd;s tkus o ctV dh jkf'k miyC/k u gksus ij Hkh lkexzh dz; fd;s tkus ls lacaf/kr gSA uxjh; fudk; esa rduhdh C;kSjksa ;k izkDdyu cukus dk mRrjnkf;Ro uxj ikfydk ;a=h dk gksrk gSA tgkWa rd fufonk lfefr dh vuq'kalk izkIr u fd;s tkus dk iz'u gSA ;|fi v/;{k fufonk lfefr dk lnL; ugha gksrk gS] rFkkfi e/;izns'k uxjikfydk ¼es;j&bu&dkmafly@izslhMsUV&bu&dkmafly ds dkedkt dk lapkyu rFkk izkf/kdkfj;ksa dh 'kfDr;ka ,oa dRrZO;½ fu;e] 1998 ds fu;e 5¼5½ esa Li"V :i ls mYysf[kr fd;k x;k gS fd foRrh; vf/kdkjksa dk iz;ksx fdu 'krksZa ds v/;/khu fd;k tk ldrk gS ftlds mifu;e ¼1 ½ ds vuqlkj lacaf/kr dk;Z ds fy;s Lohd`r ctV esa izko/kku gksuk vkSj ctV en esa jkf'k miyC/k gksuk vko';d gSA mifu;e ¼nks½ ds vuqlkj rduhdh Lohd`fr izkIr fd;k tkuk vfuok;Z gS rFkk mifu;e ¼N%½ ds vuqlkj fufonk lfefr dh flQkfj'k vfHkizkIr fd;k tkuk vko';d gSA izdj.k ds ijh{k.k ls lksyj ykbZV dz; djus ds fy;s njksa dh Lohd`fr ls iwoZ ,slh dksbZ dk;Zokgh fd;k tkuk Kkr ugha gksrk gSA tkap izfrosnu esa lksyj ykbZV dz; djus esa dksbZ vkfFkZd {kfr izfrosfnr ugha dh xbZ gSA vr% izfdz;kRed =qfV ds fy;s v/;{k Hkh vkaf'kd :i ls mRrjnk;h ik;h tkrh gSA vkjksi dzekad 04] lkexzh dz; djus ds fy;s rduhdh Lohd`fr izkIr u fd;s tkus] fufonk lfefr dh vuq'kalk izkIr u fd;s tkus] ctV dh jkf'k 21 W.P. No.24942/2019 miyC/k u fd;s tkus ls lacaf/kr gSA mijksDr vkjksi dh foospuk vkjksi dzekad 03 ds leku gSA tkap izfrosnu esa QkbZcj LihM czsdj dz; djus esa dksbZ vkfFkZd {kfr izfrosfnr ugha dh xbZ gSA vr% izfdz;kRed =qfV ds fy;s v/;{k Hkh vkaf'kd :i ls mRRjnk;h ikbZ tkrh gSA**
27. Though four charges have been pressed into service in show cause notice dated 24.09.2019, the charges No.3 and 4 were found partially proved involving to be procedural irregularity. The first two charges were enquired into by Joint Director, Urban Administration and Development, Jabalpur Division. As per the enquiry report dated 01.09.2017 (Annexure P-2), appointment of 17 daily rated employees and payment on muster roll was found irregular and against the government direction due to which loss of Rs. 78,530.50 was allegedly caused to the municipal council. Rule 152 of the M.P. Municipal Accounts Rules, 1971 provides that responsibility of payment on muster roll is of Municipal Engineer or Chief Municipal Officer, who shall numbered, registered and initialed it. Hence for the act/decision of Municipal Engineer or Chief Municipal Officer, petitioner as President cannot be held responsible.22 W.P. No.24942/2019
28. As regard the second charge, purchasing GI pipes at a higher rate, the enquiry report dated 01.09.2017, very categorically mentions that "there is no provision for comparing or making the rates of Laghu Udhyog Nigam as basis".
29. Relevant portion of the enquiry report dated 01.09.2017 is extracted hereinunder:-
^^fu;eksa esa y?kq m|ksx fuxe dh njksa dks vk/kkj ;k rqyuk dk vk/kkj fu;e esa izko/kku ugha gS ijUrq 'kkldh; Lrj ij lcls vPNk fo'oluh; ,oa 'kkldh; ekinaM y?kq m|ksx fuxe dh njs gh gSaA blfy, y?kq m|ksx fuxe }kjk vuqeksfnr njksa dh rqyuk dk vk/kkj djuk loZ ;qfDr;qDr gSA o"kZ 2015&16 esa izi= ^^v** vuqlkj fudk; }kjk dz; dh xbZ lkexzh dk fooj.k lkFk&lkFk rF;kRed fooj.k jgsxkA fudk; }kjk fnuakd 24-04-2015 fufonk vkea=.k dj 21 fnol dh le;kof/k nh xbZA izkIr U;wure nj vuqlkj lacaf/kr ,tsafl;ksa dh jgh] tks dkWye dzekad 6 ij of.kZr gSaA mDr nj fufonk lfefr dh jk; vuqlkj nj vuqeksnu gsrq ifj"kn~ dks izsf"kr dh xbZA ifj"kn~ ds izLrko dzekad 02 fnukad 01-08-2015 }kjk Lohd`r dh xbZA Lohd`fr mijkar vuqca/k laikfnr dj dk;kZns'k tkjh fd;k x;kA o"kZ 2016&17 esa izi= ^^v** vuqlkj fudk; }kjk dz; dh xbZ lkexzh dk fooj.k lkFk&lkFk rF;kRed fooj.k jgsxkA fudk; }kjk bZ&Vs.Mj dzekad 31624 fnuakd 4-02-2017 fufonk vkea=.k dj 15 fnol dh le;kof/k nh xbZA izkIr U;wure nj fla?kbZ ,atslh tcyiqj dh jghA mDr nj fufonk lfefr dh jk; vuqlkj nj vuqeksnu gsrq ifj"kn~ dks izsf"kr dh xbZA ifj"kn~ ds izLrko 23 W.P. No.24942/2019 dzekad 16 fnuakd 24-03-2016 }kjk Lohd`r dh xbZA Lohd`fr mijkar vuqca/k laikfnr dj dk;kZns'k tkjh fd;k x;kA o"kZ 2017&18 esa izi= ^^v** vuqlkj fudk; }kjk dz; dh xbZ lkexzh dk fooj.k lkFk&lkFk rF;kRed fooj.k jgsxkA fudk; }kjk bZ&Vs.Mj dzekad 35609 fnukad 04-04-2017 fufonk vkea=.k dj 21 fnol dh le;kof/k nh xbZA izkIr U;wure nj vuqlkj lacaf/kr ,tsafl;ksa dh jgh] tks dkWye dzekad 6 ij of.kZr gSA mDr nj fufonk lfefr dh jk; vuqlkj nj vuqeksnu gsrq ifj"kn~ dks izsf"kr dh xbZA ifj"kn~ ds izLrko dzekad 01 fnuakd 22-05-2017 }kjk Lohd`r dh xbZA Lohd`fr mijkar vuqca/k laikfnr dj dk;kZns'k tkjh fd;k x;kA**
30. Aforestated makes it clear that the entire process was done though e-tendering and on recommendation of tender committee, the council by resolution has approved the same. Despite that an imaginary loss of Rs.8,54,678/- has been alleged. The argument of respondent's counsel that President being administrative head of the Municipal Council exercises supervision and control over the acts and proceedings of the Council and all officers, therefore, any violations of Act, Rules or procedure by them would amount to dereliction of duties by the President, has no substance.
31. A careful reading of the enquiry report and the impugned order aforestated, shows that the petitioner was 24 W.P. No.24942/2019 held guilty of dereliction of duties for the reason that the alleged irregularities were committed during her tenure. On the basis of material available on record, it is clear that the aforestated irregularities are mainly procedural in nature.
Moreover, the procedural lapse or irregularities committed during the tenure of petitioner were not so grave or exceptional so as to infer that petitioner was not competent or incapable to perform her duties. Every wrong decision/procedural lapse by a Municipal Officer/ Council/tender committee need not necessarily lead to the inference of incompetence on the part of President or amounts to an abuse of power by the President warranting the drastic action under 41-A (2) of the Act.
32. A careful analysis of the enquiry report and show cause notice dated 24.09.2019 shows that the decision was taken by the Council/tender committee for which petitioner cannot be held liable or responsible individually. It is pertinent to note that there is no finding against the petitioner that she has misappropriated, bungled or misutilized the amount or acted with an oblique motive or has caused damage to the public interest or interest of the Council. Moreover, the allegations are not of 25 W.P. No.24942/2019 such serious nature which makes her continuance undesirable and in the interest of Council or in public interest. In absence of any such finding or reasons, the President alone could not be singled out for the collective decision taken by the Council.
33. In the light of above discussion, the order impugned dated 15.11.2019 cannot be sustained and is accordingly set aside. Petition is allowed.
(Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2020.01.16 14:25:39 +05'30'