Kailash Mittal Vs. State of M.P.& Ors.  INSC 38 (12 January 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 222 OF
2010 (Arising out of S.L.P. (C) No. 20219 of 2008) Sharda Kailash Mittal ....
Appellant(s) Versus State of M.P. & Ors. .... Respondent(s)
This appeal is directed against the judgment rendered by a
Division Bench of the High Court of Madhya Pradesh at Jabalpur dismissing W.A.
No. 253 of 2008 filed by the appellant herein against the order of the learned
single Judge dated 25.04.2008 in W.P. No. 4894 of 2007 whereby the learned
Judge dismissed the writ petition filed by the appellant challenging the order
dated 1 04.10.2007 passed by the Principal Secretary, Department of Local
Administration and Development, Government of Madhya Pradesh.
The facts giving rise to the filing of this appeal may be briefly
stated as follows:
appellant was elected as President of Nagar Palika, Jora, District Muraina in
the year 2004. On 15.09.2006, a show cause notice was issued to the appellant
under Section 41-A of the Madhya Pradesh Municipalities Act, 1961 (hereinafter
referred to as the "Act"). Charge No. 1 leveled by the respondent
against the appellant was that she has caused monetary loss to the Panchayat by
publishing advertisements for more than Rs.1500/-. In Charge No.2, it was
alleged that the appellant had struck off her signature from the minutes dated
27.12.2005 and the then Chief Municipal Officer signed the minutes, which has
been accepted by the respondent. Charge No.3 against the appellant was that she
had shown undue haste in appointing Shri Harishankar Sharma as the Chief 2
Municipal Officer and compelled him to make various payments to the tune of Rs.
On 27.04.2007, Smt. Sharda Kailash Mittal, the appellant filed a
detailed reply to the show cause notice refuting the charges leveled against
her. In relation to charge No.1 while denying the same she asserted that she
had not issued any direction for publishing the advertisements or messages in
the newspapers. The then Chief Municipal Officer, Shri A.K. Bansal, has given
the advertisement. The matter was placed before the Council and by resolution
No. 48 dated 23.07.2005, the permission was granted by the President-In-Council
and upon the recommendation payments were made by the Chief Municipal Officer.
She denied Charge No.2 stating that no alteration had been done in the
proceedings register. According to her, on 21.12.2005, at the instance of the
Chief Municipal Officer, Sh. A.K. Bansal, upon the disturbance being caused by
the Vice-Chairman Shri 3 Surya Narain Jain and some of the Councilors and upon
their mis-behaviour she postponed the meeting till 26.12.2005. In the postponed
meeting, after discussing proposal Nos. 103 to 112, the resolution was passed.
The same was entered in the proceedings register and duly signed by the
appellant and the Chief Municipal Officer.
27.12.2005, after discussing proposal Nos. 113 to 150 the resolutions were
passed. All those subjects were thoroughly discussed and resolutions were
passed and recorded as resolution Nos. 100 to 135 in the proceedings register.
In this way all the actions were approved by the Council. Regarding Charge No.
3, she asserted that she came to know that after the transfer of the In-charge
CMO Shri A.K. Bansal to Muraina Shri A.K. Vashisht, Revenue Inspector was
posted in the Municipality of Zora on interim basis. She heard that it would
take 5 to 7 days to get the new C.M.O. In order to settle down the salary for
the month of January to the employees of the Corporation and ensuing Moharam
and 4 Basant Panchami festival as well as the contractors were pressing for
settlement since they had completed their work, the Council authorized Shri
Hari Shankar Sharma, Revenue Inspector as the C.M.O.
By order dated 4.10.2007, the Chief Secretary, City Administration
and Development Department, found that Smt. Mittal has violated the provisions
of Section 51 of the Act. It is also stated that being the Chairman, it was her
duty that she should supervise the financial and executive administration of
the council and does not deserve to remain on the post of the Chairman. Basing
such conclusion, the said authority under Section 41-A of the Act removed the
appellant from the post of the Chairman of the Nagar Palika, Zora.
The said order of removal was challenged by the appellant before
the High Court of M.P. Gwalior in W.P. No. 4894 of 2007. By order dated
25.4.2008, the learned single Judge, after finding no ground for interference
with 5 the order passed by the State Government dismissed her writ petition.
Aggrieved by the dismissal of the writ petition, the appellant
filed W.A. No. 253 of 2008 before the Division Bench of the High Court of M.P.
at Jabalpur. By the impugned order dated 20.6.2008, the Division Bench
confirmed the order of the learned single Judge and dismissed the writ
petition. Hence the present appeal before this Court by way of special leave
We have heard Mr. Ravindra Kr. Srivastava, learned senior counsel,
appearing for the appellant and Mr. Sushil Kr. Jain, learned counsel, for
respondent No.3 and Mr. B.S. Banthia, learned counsel for respondents 1 &
It is not in dispute that election for Nagar Palika, Zora was held
and the appellant was elected as President of the Nagar Palika which is a
reserved seat for woman under Section 29-B of the Act. Before considering the
specific charges leveled against the appellant, it is useful to refer Section
41-A of the Act which refers the removal of 6 President or Vice-President or Chairman
of a Committee:- "41-A. Removal of President or Vice-President or Chairman
of a Committee - (1) The State Government may, at any time, remove a President
or Vice-President or a Chairman of any Committee, if his continuance as such is
not in the opinion of the State Government desirable in public interest or in
the interest of the Council or if it is found that he is incapable of
performing his duties or is working against the provisions of the Act or any
rules made thereunder or if it is found that he does not belong to the reserved
category for which the seat was reserved.
(2) As a
result of the order of removal of Vice- President or Chairman of any Committee,
as the case may be, under sub-section (1) it shall be deemed that such Vice-
President or a Chairman of any Committee, as the case may be, has been removed
from the office of the Councilor also.
time of passing order under sub-section (1), the State Government may also pass
such order that the President or Vice-President or Chairman of any Committee,
as the case may be, shall be disqualified to hold the office of President or
Vice-President or Chairman, as the case may be, for the next term:
that no such order under this section shall be passed unless a reasonable
opportunity of being heard is given."
Section 41-A vests the State Government with power to remove the President,
Vice-President or a Chairman of any Committee, if his continuance in the office
is not found desirable in public interest or in the interest of the Council. A
conjoint reading of other 7 provisions such as Sections 20, 22 and 41-A as also
the Article 243-ZG of the Constitution of India would make it amply clear that
resort to Section 41-A can be had to remove a person from the office only after
he/she is duly elected and his/her conduct in office is otherwise found
prejudicial to public interest or in the interest of the Council.
Let us consider the charges leveled against the appellant,
procedure followed in her case and the ultimate decision by the State
Government under Section 41-A of the Act. Though four charges have been pressed
into service in the show cause notice dated 15.09.2006, admittedly Charge No.4
has not been established, hence we are concerned with Charge Nos. 1-3 only. They
are as follows:
No.1 That by getting published advertisements/best wishes messages in various
newspapers of more than Rs.1500/- each she has caused financial loss to the
Municipality of Zora.
No.2 On 27.12.2005, after the meeting of the council in the end of the details
of the proceedings Smt. Sharda Kailash Mittal had put her signatures which have
been cut and after the signatures so cut, Smt. Mittal has herself signed it
again alongwith this on the sea of the Chief of the Chief Municipal Officer are
the signatures of Sh. Hari Shankar Sharma who is not authorized to carry on any
duty by the administration or senior officer of the Chief Municipal Officer.
No.3 In sequence to the order dated 06.02.2006 for the transfer of Sh. A.K.
Bansal, the then Chief Municipal Officer, on the same day he was discharged and
automatically on the same day irregularly Sh. Hari shankar Sharma was given the
charge of the Chief Municipal Officer and an irregular payment of Rs.3,12,783/-
was made by him."
The substance of the Charge No.1 was that the appellant has caused
monetary loss to the Municipality by publishing advertisements for more than
Rs.1500/-. We have already pointed out and it was also not in dispute that the
appellant-the President had submitted her detailed explanation with reference
to the same. According to her, the payment for such publications had been
approved by the President-in-Council, and the request for making the payment
was expressed by the Chief Municipal Officer. However, the State pointed out
that the appellant being the President of the Nagar Palika, ought to have
proceeded on the basis of the 9 prevalent Rules. It was further pointed out
that by spending more than Rs.1500/- the appellant has not followed the Rules
laid down in that regard and as such she is guilty of the said charge. In the
explanation to the said charge, the appellant has pointed out that though the
charge leveled against her relates to causing financial loss to the Nagar
Palika, on the contrary, according to her, the order states that the appellant
was guilty of not following the Rules while making the payment, which was never
framed against her. It is also relevant to mention that the Rules filed by the
respondent and heavily relied on by the State Government provides that the
expenditure on "welcome" shall not be more than Rs.1500/-.
present case, it was pointed out more than one place that the expenditure was with
regard to the advertisement and not with regard to the "welcome"
expenses alone. Though this was highlighted in the explanation to the charge,
it was not properly considered by the Government. The materials placed,
particularly, Annexures 1 & 2, show that the office of Nagar Palika, Zora,
invited tenders for purchase of goods relating to water supply for various
wards and asserted that those 1 tenders were to be out only after due
deliberation by the Nagar Palika Committee. In the light of the above factual
details, the actual contents of charge and the relevant rules, we are satisfied
that the conclusion arrived at by the State Government cannot be accepted.
Charge No.2 relates to the allegation that the appellant had
struck off her signature from the minutes dated 27.12.2005 and the then Chief
Municipal Officer had signed the minutes, which has been accepted by the
respondent. It was pointed out by the appellant that absolutely there was
nothing on record to show that either the appellant herself struck off her
signature or that the appellant had permitted or compelled the then Chief
Municipal Officer to affix his signatures on the said minutes. It was pointed
out by her that even if assuming to be so, it was not so grave in nature so as
to attract Section 41-A of the Act. On going through her specific explanation
and assertion and the relevant records, there is no reason to reject her claim
and the State Government took it seriously without any acceptable material 1 in
order to take action under Section 41-A of the Act more particularly, she being
the President of the opposite party.
Charge No.3 relates to the allegation that the appellant had shown
undue haste in appointing one Harishankar Sharma as the Chief Municipal Officer
and compelled him to make various payments to the tune of Rs.8,12,783/-. In the
explanation, it was pointed out that out of the total amount of Rs.8,12,783/-,
Rs.5,08,890/- was spent towards the disbursement of the salary of the workers
and other officers of the Corporation and the remaining of Rs.3,03,890/- was
disbursed to various contractors for payment and wages to their daily wage
workers. It was highlighted that the said payment to the contractor was made in
part keeping in view the ensuing two festivals of Muharram and Basant Panchami.
further highlighted that the vouchers of all the said payment were prepared and
approved by the then Chief Municipal Officer - Shri A.K. Bansal and the
appellant and were duly and properly audited, as such, there was no illegality
in such disbursement. Copy of the report of the Chief Municipal Officer, Zora
dated 09.03.2006 has been placed as 1 Annexure P-8. The appellant has also
pointed out that her political opponents sent a complaint to the Chief Minister
making bald allegations of corruption against her. A copy of the letter dated
12.05.2006 has been included as Annexure P-9.
Apart from the above complaint, the appellant has also highlighted
certain communications between the local leaders and the State Government
seeking the Government's intervention in taking action against her for one
reason or the other.
The analysis of these materials, particularly, the background
shows that the State Government failed to appreciate that the decisions for
publication of advertisements, calling for tenders and payment of salaries were
made by the entire council and the President-appellant could not be singled out
for those decisions taken by the Council. The High Court failed to appreciate
that removal under Section 41-A of the Act could be resorted to only under
grave and exceptional circumstances which were not present in the appellant's
case. No charge of causing financial loss to 1 the Nagar Palika could be
established by the State Government.
As directed earlier, Section 41-A of the Act gives power to the
State Government to remove the President, Vice - President or Chairman of a
Committee on four broad grounds, namely, (a) Public interest; (b) Interest of
the Council; (c) Incapability of performing his duties; and (d) Working against
the provisions of the Act or rules made thereunder. In addition, under Section
41 - A (2), the State Government at the time of removal from office may also
pass an order disqualifying the person from holding the office of President,
Vice - President or Chairman for the next term. The question to be determined
is what is the scope of the application of Section 41-A and what is the nature
of power of the Government?
In Tarlochan Dev Sharma v. State of Punjab and Ors.
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:
a democracy governed by rule of law, once elected to an office in a democratic
institution, the incumbent is entitled 1 to hold the office for the term for
which he has been elected unless his elections set aside by a prescribed
procedure known to law... Removal from such an office is a serious matter. It
curtails the statutory term of the holder of the office a stigma is cast on the
holder of the office in view of certain allegations having been held proved
rendering him unworthy of holding the office which he held."
Paragraph 11 this Court observed as under:
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."
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
For taking action under Section 41-A for removal of President,
Vice-President or Chairman of any Committee, power is conferred on the State
Government with no provision of any appeal. The action of removal casts a
serious stigma on the personal and public life of the concerned office bearer
and may result in his/her disqualification to hold such office for 1 the next
term. The exercise of power, therefore, has serious civil consequences on the
status of an office bearer. There are no sufficient guidelines in the
provisions of Section 41-A as to the manner in which the power has to be
exercised, except that it requires that reasonable opportunity of hearing has
to be afforded to the office bearer proceeded against. Keeping in view the
nature of the power and the consequences that flows on its exercise it has to
be held that such power can be invoked by the State Government only for very
strong and weighty reason. Such a power is not to be exercised for minor
irregularities in discharge of duties by the holder of the elected post. The
provision has to be construed in strict manner because the holder of office
occupies it by election and he/she is deprived of the office by an executive
order in which the electorate has no chance of participation.
In the present case, the actions of the appellant, even if proved,
only amount to irregularities, and not grave forms of illegalities, which may
allow the State Government to invoke its extreme power under Section 41 - A.
From the materials placed before us, we are satisfied that the
advertisements, tenders calling for attending day-to-day work of the
Municipality such as provision for drinking water, sanitation etc. were duly
put out only after due deliberation by the Council of Nagar Palika and no
decision was taken by the appellant herself. The appellant has also established
that due to transfer of Chief Municipal Officer, the salaries of workers of the
Nagar Palika remained upaid for the month of January, 2006 leading to
possibility of unrest in the area, therefore, it was requested to the appellant
by the Councilors that necessary arrangements be made for immediate payment of
salaries in view of the ensuing festivals of Muharram and Basant Panchami. The
materials placed by the appellant before the State Government as well as before
the High Court show that the tender had been put out after due deliberation by
the Council and all works had been completed after satisfying the conditions
prescribed therein. The appellant had pointed out that out of the amount of
Rs.8,12,783/-, an amount of Rs.5,08,890/- was disbursed towards salaries of the
workers and other officers of the Nagar Palika and the 1 remaining Rs.
3,03,890/- was paid to various contractors for payment of salaries to their
daily wage workers. The vouchers of all the said payments were prepared and
approved by the then Chief Municipal Officer-Shri A.K. Bansal and the appellant
and those accounts were duly audited and as such there is no valid reason to
reject the stand taken by the appellant. It is also relevant to point out that
though the State Government erroneously mentioned the expenses on advertisement
as Rs.2.46 lacs subsequently they themselves filed an application for amendment
to correct the amount of Rs.2.46 lacs to be read as Rs.24,600/-. The learned
single Judge as well as the Division Bench not only failed to consider all the
above circumstances and the exigencies under which the appellant was compelled
to make the appointment of one Shri Harishankar Sharma as Chief Municipal
Officer and also ignored the fact that the appointment was actually made for
payment of salaries and to make the payments to the contractors who pressed for
disbursement of the same to their workers. In the light of the above conclusion
and in the 1 absence of a finding that any loss was caused, the decision of the
State Government can not be sustained.
In the light of the above discussion, we set aside the order of
the State Government removing the appellant as President of the Nagar Palika,
Zora, District Muraina under Section 41-A of the Act and consequential orders
dated 25.04.2008 passed by the learned single Judge in W.P. No. 4894 of 2007
and of the Division Bench dated 20.06.2008 in W.A. No. 253 of 2008. In view of
the fact that her tenure has come to an end and fresh election was also
conducted, we are not disturbing the subsequent events. However, we make it
clear that in view of the present order, the disqualification of the appellant
is expunged and the appellant would be free to contest the elections in future.
With the above conclusion and observation, the appeal is allowed.
There shall be no order as to costs.
....................................CJI. (K.G. BALAKRISHNAN)
..........................................J. (P. SATHASIVAM)
JANUARY 12, 2010.