Ravi Kumar Mehar vs Chhattisgarh State Election Commission

Pritinker Diwaker, J.—In the present petition, challenge is to the order dated 16-9-2011 (Annexure P/1) passed by respondent No. 1 i.e. Chhattisgarh State Election Commission rejecting the application filed by the petitioner u/s 32-D of the Chhattisgarh Municipalities Act, 1961 and affirming the order dated 18-3-2011 (Annexure-P/2) passed by the Chhattisgarh State Election Commission. Briefly stated facts are that the petitioner was elected as President of Nagar Panchayat, Sakari, Bilaspur in the election conducted on 23-12-2009 of which notification was issued on 27-12-2009. On 8-3-2010 a show cause notice (Annexure-P/6) was issued to the petitioner by respondent No. 1, Chhattisgarh State Election Commission asking the petitioner that u/s 32-A Municipalities Act, 1961 every candidate at an election of President was required to submit account of election within 30 days form the date of declaration of the result but in the case of the petitioner no such account has been submitted to the District Election Officer and therefore he was asked to show cause as to why the proceedings u/s 32-C may not be initiated against him and he be disqualified for five years for failure to lodge account of election expenses and as to why he should not be declared to be disqualified for being chosen as, and for being a Councilor or President. According to the petitioner this notice was received by him on 11-3-2010 and on 15-3-2010 vide Annexure-P/7 he informed respondent No. 1 that as he was not aware about the procedure and fought the election for the first time, he had submitted photocopies of the accounts. He further replied that after receiving notice dated 11-3-2010 he again submitted the accounts details in original to the District Election Officer, Bilaspur and the acknowledgement of the same was also enclosed alongwith his reply. On 2-12-2010 vide Annexure-P/8 respondent No. 1 had informed the petitioner that he has already been served show cause notice of which reply has been submitted by him and if the petitioner is interested for the personal hearing he can appear before the authority on 29.12.2010 in the office of respondent No. 1. According to the petitioner he did appear before the said authority on 29th December, 2010. Further case of the petitioner is that on 18-3-2011 impugned order (Annexure-P/2) was passed by respondent No. 1 disqualifying the petitioner for 4 years and 6 months u/s 32-C of the Municipalities Act, 1961. According to the petitioner he filed the application u/s 32-D of the Municipalities Act seeking pardon from respondent No. 1 on the ground that non-submission of details of accounts was bona fide as he was not aware about the correct legal procedure and therefore his disqualification be set aside. In this application it has been stated by the petitioner that by mistake instead of submitting the account details to District Election Officer the same was submitted before the Naib Tahsildar and therefore the said mistake be pardoned. After receiving the above application respondent No. 1 issued letter dated 12-5-2011 to the petitioner asking him to appear before the said authority on 6-7-2011 for personal hearing and according to the petitioner he apprised respondent No. 1 of the correct factual position. On 16-9-2011 impugned order (Annexure-P/1) has been passed by respondent No. 1 u/s 32-D of the Municipalities Act affirming the order dated 18-3-2011 (Annexure-P/2) and holding that as the petitioner has failed to furnish the details of account within the stipulated period the order of his disqualification is in accordance with law and the same can not be altered.

Counsel for petitioner submits that while passing both the orders the respondent No. 1 has taken a very harsh view by not only disqualifying the petitioner for four years and six months but also disqualifying him for the post of President Nagar Panchayat, Sakri, District Bilaspur. He submits that conduct of the petitioner was bona fide where he submitted the details of account with the Naib Tehsildar instead of prescribed authority i.e. District Election Officer and having submitted the record within time before Naib Tehsildar, bona fides of the petitioner should have been seen by respondent No. 1 and the authority should not have taken a hyper technical approach. He further submits that after receiving the show cause notice dated 8-3-2010 (Annexure (P-6) which was received by the petitioner on 11-3-2010, on 15-3-2010 (Annexure P-7) the petitioner submitted his reply alongwith the complete copies of account. He submits that in view of sub-clause 6 of clause 10 of Election Expenses (Maintenance and Lodging of Account) Madhya Pradesh Order 1997, on receiving the show cause notice within 15 days the petitioner had submitted a representation in writing to respondent No. 1 and copy to District Election Officer together with complete account and therefore respondent No. 1 could not have passed the impugned orders. He further submits that the moment the show cause notice is issued and reply is filed within the stipulated period alongwith complete details of account it would amount to waiver of earlier default committed if any by the petitioner. He submits that as per sub-clause 7, the District Election Officer was obliged to forward the copy of the account to the Election Commission with comment but in the present case neither copy of the account was forwarded nor any comment was given by the District Election Officer as per the requirement of sub-clause 7 of clause 10 of Order 1997. He submits that the orders impugned are in violation of Election Expenses (Maintenance and Lodging of Account) Madhya Pradesh Order 1997. He further submits that after receiving the comment of the District Election Officer as per the requirement of Section 32-C of the Municipalities Act, 1961 the authority concerned should have applied its mind and then passed the order. He submits that from the orders impugned it is clear that no such reason has been assigned by the authority as required under the law. He placed reliance on the decisions of Madhya Pradesh High Court in the matter of Jawahar Lal Gupta Vs. The Rajya Nirvachan Ayog and Another, , in the matter of Mahendra Palariya Vs. M.P. State Election Commission and Others, , in the matter of Hari Manohar v. State of M.P. 2011 (1) MPWN 60, decisions of Chhattisgarh High Court in the matter of Omprakash Dewangan v. Chhattisgarh State Election Commission and others WP (C) No. 2343/2009 and in the matter of Smt. Pushpa Sahu v. State Election Commission and others WP (C) No. 1078/2011.

Replying to the arguments of the counsel for the petitioner, counsel for the respondents 1 and 3 submits that after declaration of the result of the election on 27-12-2009 a report dated 2-2-2010 was submitted by the District Election Officer to the State Election Commission informing that the petitioner had failed to submit the details of account within the stipulated period. He submits that after receiving the said report the State Election Commission issued a show cause notice dated 8-3-2010 (Annexure P-6) to the petitioner and on 15-3-2010 vide Annexure P-7 the reply was submitted by the petitioner categorically admitting the fact that as he was contesting election for the first time, he was not aware of the procedure of the election and therefore he could not submit the details of account. He submits that in this letter the petitioner has not even mentioned that earlier the details of account were submitted by him before any authority. He submits that the petitioner had sought pardon for his mistake and requested for accepting the details of account submitted by him. He further submits that on 2-9-2010 the comments were submitted by the District Election Officer to the State Election Commission about the failure of the petitioner in submitting the details of account within a period of 30 days. He submits that while sending the comments the District Election Officer had also recommended for personal hearing to the petitioner before passing any order and taking action in accordance with law. He submits that pursuant to this recommendation on 2-12-2010 notice was issued to the petitioner for personal hearing and after hearing him the order impugned dated 18-3-2011 (Annexure P-2) was passed. He further submits that while passing the order dated 18-3-2011 all the relevant points were considered by the State Election Commission including the recommendation made by the State Election Officer. He submits that as the details of account were submitted on 15-3-2010 i.e. much after the period as provided under the law, the petitioner has rightly been disqualified and the authority has also considered the point that ignorance of law is no defence. According to counsel for respondents 1 and 3 clause 10(7) of the Election Expenses (Maintainance & Lodging of Account) Order, 1997 is not mandatory in nature and even if the comments are not submitted by the District Election Officer within 5 days of the receipt of representation, it will not make any difference because the petitioner has failed to prove as to what prejudice has been caused to him. In respect of this submission, he placed reliance on the decision of the Supreme Court in the matter of Shivjee Singh Vs. Nagendra Tiwary and Others, He submits that mere forwarding the comments by the District Election Officer to the State Election Commission would not mean that the Election Commission is bound to accept the same even the details of account have been submitted and ultimately it is the Election Commission which has to pass the order after considering the representation submitted by the petitioner. In support of this submission, counsel for respondents 1 and 3 placed his reliance on the decision of M.P. High Court in the matter of Mahendra s/o R.S. Palariya v. M.P. State Election Commission (supra). He also relied on the decision of this Court passed in WP (C) 3108/2009. He submits that while passing the order dated 18-3-2011 the Election Commission has come to the conclusion that ignorance of law cannot be treated as a defence. He submits that this observation of the State Election Commission being well founded is in accordance with law more particularly when the petitioner is a law graduate and practicing lawyer. He submits that contention of the petitioner that he was contesting election for the first time and therefore was not aware of the procedure thereof, is liable to be rejected. He placed reliance on the decision of Supreme Court in the matter of Board of Directors, H.P.T.C. and Another Vs. K.C. Rahi, Counsel for respondents 1 and 3 further submits that after passing the order dated 18-3-2011, an application dated 13-4-2011 (Annexure P-9) was submitted by the petitioner u/s 32-D of the C.G. Municipalities Act and after considering the said application again a very reasoned order was passed by the State Election Commission on 16-9-2011 affirming the previous order dated 18-3-2011. In respect of Clause 10(6) of the Election Expenses (Maintenance & Lodging of Account) Order, 1997, he placed his reliance on the decision of M.P. High Court referred to above. According to the counsel for respondents 1 and 3, even if the District Election Officer has not forwarded the copy of details of account submitted by the petitioner to the State Election Commission it will not make any difference in the present case because the fact remains that the petitioner himself had forwarded the said copy to the District Election Officer alongwith the letter dated 15-3-2011 (Annexure P-7) and the same was duly considered by the District Election Officer while passing the orders dated 18-3-2011 and 16-9-2011 Adopting the arguments of the counsel for respondents No. 1 and 3, it has been submitted by the State counsel that the action of the respondents is strictly in accordance with law.

Before adverting to the submissions made by the counsel for the parties, provisions of the Act, 1961 with respect to lodging of account of election expenses are required to the considered. Section 32-A of the said Act requires the account of election expenses to be maintained by the candidate or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both days inclusive. Section 32-A of the Act of 1961 reads as under:

32-A. Account of election expenses.--(1) Every candidate at an election of President shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated the date of declaration of the result thereof; both days inclusive.

(2) The total of the said expenditure shall not exceed, such amount as may be prescribed by the State Government in consultation with the State Election Commission.

(3) The amount of expenditure shall contain such particulars as may be prescribed by the State Election Commission.

Section 32-B of the Act, 1961 requires lodging of account of election expenses by only the contesting candidate within thirty days from the date of election of the returned candidate, which reads as under:

32-B. Lodging of account of election expenses.--Every contesting candidate at an election of President shall, within thirty days from the date of election of the returned candidate lodge with the officer notified by the State Election Commission an account of his election expenses which shall be a true copy of the account kept by him or by his election agent u/s 32-A.

Section 32-C of the Act, 1961 deals with disqualification for failure to lodge account of election expenses, which reads as under:

32-C. Disqualification for failure to lodge account of election expenses.--- If the State Election Commission is satisfied that a person--

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and

(b) has no good reason or justification for the failure, the State Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for being chosen as, and for being a member of the Municipal Council or Nagar Panchayat, as the case may be, for a period not exceeding five years from the date of the Order.

A reading of section 32-C of the Act of 1961 makes it clear that State Election Commission is enjoined to record a satisfaction that a person has failed to lodge the account of election expenses within the time and the manner required under this Act, and further mind has to be applied by the State Election Commission mandatorily as to the "reasons", and the finding has to be recorded that a person has "no good reason or justification" for the failure. The State Election Commission shall, by order published in the Official Gazette, declare such person to be disqualified and such a person shall be disqualified for being chosen as and for being a member of the Municipal Council or Nagar Panchayat, as the case may be, for a period not exceeding five years from the date of the order. Serious consequences are enumerated in Section 32-C of the Act.

In exercise of its power under Article 243ZA of the Constitution of India read with Section 32-A of the Act of 1961, State Election Commission has made an order known as Election Expenses (Maintenance and Lodging of Accounts) Order, 1997. Sub-para 5, 6 and 7 of para 10 of M.P. Order, 1997 being very relevant are quoted as under:

Report by District Election Officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon.--

(5) Where the Election Commission decides that a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act and this Order, it shall be noticed in writing call upon the candidate to show cause why he should not be disqualified u/s 14-C of the Madhya Pradesh Municipal Corporation Act, 1956 or as the case may be, Section 32-C of the Madhya Pradesh Municipalities Act, 1961 for the failure.

(6) Any contesting candidate who has been called upon to show under paragraph (5) may within fifteen days of the receipt of such notice submit in respect of the matter a representation in writing to the Election Commission, and shall at the same time send to the District Election Officer a copy of his representation together with a complete account of his election expenses if he had riot already furnished such an account.

(7) The District Election Officer shall, within five days of the receipt thereof, forward to the Election Commission the copy of the representation and the account, if any, with such comments as he wishes to make thereon, for further appropriate action.

From the aforesaid provision of M.P. Municipalities Act, 1961 and the Order 1997, it is clear that the order of disqualification has to be passed in the manner required by or under the Order 1997 and as per the provisions of Municipalities Act, 1961. Thus in order to disqualify a person for failure to lodge account of election expenses, the finding has to be recorded with the satisfaction of the State Election Commission and if the person has failed to lodge an account of election expenses within the time and in the manner required by or under this Act.

A bare perusal of sub paras 5, 6 and 7 of paragraph 10, makes it clear that where the State Election Commission decides that a contesting candidate has failed to lodge an account of election expenses within the time and in the manner required by the Act and the Order it shall by notice in writing call upon the candidate to show cause why he should not be disqualified u/s 32-C of the Act, 1961, for failure. Thus the returned candidate while replying the show cause notice is required to submit representation in writing to the State Election Commission and shall at the same time also require to sent to the District Election Officer a copy of his representation together with the complete account of election expenses if he has not already furnished such an account. Thereafter the District Election Officer shall, within five days of the receipt thereof, forward to the State Election Commission the copy of the representation and the account, if any, with his comments for further appropriate action.

In the matter of Jawahar Lal Gupta v. Rajya Nirvachan Ayog, Bhopal and another (supra), it has been held by the Apex Court as under:

It is necessary under "Order of 1997" to maintain the election expenses as per the particulars prescribed under para 3. As per para 4 maintenance of day to day account of election expenses is required. Para 5 provides for production of the record of day to day account of election expenses for inspection. Para 7 relates to lodging of the account of election expenses. Under para 7 register of day to day account of election expenses, vouchers relating to the entries made in the register of election expenses and abstract statement of election expenses are the relevant documents. Registers/vouchers can be maintained by an election agent if they have been maintained by election agent, these documents are required to be countersigned by the candidate. Sub-para (4) of para 7 provides that the account of election expenses shall not be regarded as complete without such an affidavit. Report has to be sent by the District Election Officer to the Election Commission about lodging of the account of election expenses of every contesting candidate on the points enumerated under para 10, Sub-para (2) of para 10 provides that whether the "District Election Officer" is of the "opinion" that the account of election expenses of any contesting candidate has not been lodged "in a manner required by the Act and this Order", he shall with every such report forward to the Election Commission the account of election expenses of that candidate. In the instant case, report of District Election Officer has been filed as Annexure R/1. Such a report as contained in Annexure R/1 has to be published in the notice board of District Office as required under sub-para (3) of para 10 for information to general public. Sub-para (4) of para 10 provides that after the receipt of the report, Election Commission has important role to consider the same and decide whether any contesting candidate has failed to lodge the account of election expenses within the time and in the manner required. Under sub-para (5) of para 10 a show cause notice is required to be issued as to the defect found in the election expenses accounts. A contesting candidate can rectify the default within fifteen days from the date of receipt of such notice, submit in respect of the matter a representation in writing to the Election Commission, and shall at the same time send to the District Election Officer a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account. It is apparent that even in the election expenses were not earlier filed can be filed subsequently on receipt of the notice as contemplated under sub-para (5) of para 10 of the Order of 1997.

The various documents in the instant case clearly indicate that what the petitioner was informed as per Annexure P/2 that his counter signatures of his election agent or his counter signatures were not there on "register". Similarly, petitioner was not intimated that the "affidavit" filed was not proper or defective in any manner and the State Election Commission in its order has considered the primarily defect that the affidavit was not in accordance with law. What was the defect in the "affidavit" was not adverted to by the State Election Commission nor was intimated to the petitioner at any time either by the District Election Officer or by the State Election Commission. Thus, it is clear that no proper opportunity was given with respect to the "affidavit" part to the petitioner to rectify the defect which was mandatory to be given under sub-para (5) of para 10 of the Order of 1997.

In the matter of Mahendra s/o R.S. Palariya v. M.P. State Election Commission and others (supra), it has been held by the High Court of M.P. as under:

Sub-para (6) provides a further opportunity to the candidate to submit his account with explanation on receiving notice by the Election Commission. This is an additional opportunity to the candidate who failed to lodge his account to submit his account alongwith his explanation. This order does not provide any procedure after receiving the account and explanation on the part of the candidate. Section 32-C of the Act provides satisfaction of the Election Commission has to consider the explanation submitted by the candidate in respect of his failure to lodge the account Election Commission has to decide the representation considering it and to pass a reasoned order, because non-acceptance of reason or justification or rejection of the representation shall follow the consequence of disqualification to the candidate. In fact, the aforesaid order is punitive in nature and has to be passed after considering facts and circumstances of each case.

It is not in dispute that for the first time this provision was made applicable in the elections held in the year 1999. Petitioner, who failed to lodge the account, on receiving notice submitted the account alongwith his explanation. Whether the explanation was good or justified was to be seen by the Election Commission and such order ought to have been communicated to the petitioner, in absence of which it cannot be said that the Election Commission considered the explanation of petitioner and passed the order. Though learned counsel appearing for Election Commission tried to support his contention that the Election Commission passed the order in the file which is a reasoned order but reason does not find place in the order which was published and sent to the petitioner by which he has been disqualified for a period of five years. In Shantilal''s case (supra), this Court considering similar circumstances in paras 9, 10 and 11 held:

Perusal of aforequoted section clearly indicate that Election Commission is under legal obligation to record its satisfaction whether a person has failed to make out any good reason or justification for his failure in not submitting the accounts within time prescribed. In other words, if the person is required to make out a good reason or justify as to why and for what reasons, he could not submit the accounts in time. It is equally obligatory upon the State Election Commission to examine as to whether grounds, and/or cause stated in reply constitutes good reason. It requires application of judicial mind to the facts of each case and then a reasoned order as to why the reasons stated in reply by a concerned person do not make out a case of good reasons or why it makes out a case of good reasons. In either case, the order passed by the Election Commissioner must indicate its reasoning. The use of the word "is satisfied" in section 32-C ibid is significant. It contemplates judicial application of mind to be applied by Election Commissioner to the facts of each case and secondly, it must appear from the order that the satisfaction reached has some factual and legal basis. It involves an element of exercise of discretion and when one speaks of exercise of discretion it always means judicial discretion as is well known in judicial parlance. Since, the consequences of adverse order are quite disastrous because it results in vacation of the officer secured by democratic way, the issue must be dealt with care and judiciously.

As observed supra the impugned order which is conveyed to the petitioner quoted supra, does not contain any reasons, nor it exhibits that it has recorded satisfaction on facts as to why and on what basis the reasons stated by the petitioner in his reply and/or alongwith the submission of accounts though late do not constitute good reasons. Such order cannot be said to be an order satisfying the requirement of Section 32-C ibid, nor it can be said to be an order passed in conformity with the requirement of Section 32-C ibid. It is in fact in contravention of section 32-C hence, is not legally sustainable.

Accordingly and in view of aforesaid discussion the petition succeeds and is allowed. Impugned order, dated 12-10-2001 published in O.G. dated 19-10-2001 (Annexure P-6) passed by respondent No. 1 is hereby quashed by writ of certiorari. The case is remanded to respondent No. 1 to again examine as to whether cause stated by the petitioner for late submission of accounts as per requirement of section 32-B satisfies the test of good reason or justifies for the failure. While examining the issue, the respondent No. 1 will take into account all relevant facts, letter correspondence, relied upon by the petitioner, and the causes stated in reply by the petitioner and then a reasoned order shall be passed recording satisfaction one way or other. Let this be done within three months from the date of order.

Similar view has been reiterated by this Court in Jawahar Lal Gupta''s case (supra) wherein this Court held:

Though it is not necessary to go into the question whether notice Annexure R/2 was, as a matter of fact, served on the petitioner as the service of the same has been seriously disputed. Notice Annexure R/2 was allegedly issued to the petitioner on 27th May, 2000 and served on 12-6-2000 in the note-sheet which culminated in order passed by the State Election Commission quoted above on which basis the Gazette Notification Annexure P/1 was issued. It has not been mentioned in the office note-sheet that any such notice was ever issued to the petitioner. Annexure R/2 notice has not been made the basis by the State Election Commission itself while disqualifying the petitioner. There is no reference that such a notice was issued to the petitioner in the month of May. The only notice referred to was Annexure P/2 dated 22-2-2000 which was issued by the District Election Officer. Thus, it appears that State Election Commission did not properly consider the actual factual situation on record and did not apply its mind to the fact that whether the petitioner was intimated specifically as to the defects in proper manner and whether there was service of notice Annexure R/2 on petitioner, and it was not the ground employed that petitioner had failed to file a reply in spite of having received notice Annexure R/2. No such finding is recorded by the State Election Commission in its order. Until and unless State Election Commission considers each and every fact, the consequences enumerated u/s 32-C of the Act of 1961 could not be made to fall upon the petitioner as the consequences are serious, carries dismembership and disqualification to contest the election for a maximum period of five years which was invoked to the maximum against petitioner. Petitioner has been required to vacate office without due compliance of the provisions quoted above. Though argument of learned senior counsel for State Election Commission based on protection of democracy is attractive, but in my considered opinion a person who has been elected, by a democratic process must be removed following procedure and not in an unreasonable manner in violation of basic safeguards provided in the Order of 1997 which recognizes the principles of natural justice.

The State Election Commission has not applied its mind whether there was substantial compliance. It is not the ground adopted in the order by the State Election Commission that on register signatures of petitioner were not there, no notice to that effect was issued, then there is entry or voucher in the register and the vouchers have been signed by the election agent; only defect appears to be that of "counter signature" of candidate. A copy of accounts can also be furnished within the time supported by an affidavit, register and vouchers. It has to be determined by Election Commission whether there was "substantial compliance" made before ordering the petitioner to be disqualified. All these questions have to be gone into and decided afresh by a reasoned and speaking order by the State Election Commission after duly giving opportunity to petitioner by a notice specifically pointing out defects.

It is open to the State Election Commission to hear the petitioner afresh pointing out specifically all the defects to him and afford an opportunity as contemplated under para 10 of the Order of 1997 and thereafter to take a just decision as it may deem fit. No order as to costs.

In the matter of Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, , it has been held by the Apex Court as under:

The municipalities have been conferred constitutional status by amending the Constitution vide the 74th Amendment Act, 1992 w.e.f. 1-6-1993. The municipalities have also been conferred various powers under Article 243-B of the Constitution.

In State of Punjab v. Baldev Singh, this Court considered the issue of removal of an elected office-bearer and held that where the statutory provision has very serious repercussions, it implicitly makes it imperative and obligatory on the party of the authority to have strict adherence to the statutory provisions. All the safeguards and protections provided under the statute have to be kept in mind while exercising such a power. The Court considering its earlier judgments in Mohinder Kumar v. State and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala held as under: (Baladev Singh case, SCC p. 199, para 28).

...It must be borne in mind that severer the punishment greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.

The Constitution Bench of this Court in G. Sadanandan v. State of Kerala held that if all the safeguards provided under the statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterized as having been passed mala fide, and thus, is liable to be quashed.

There can also be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide Indian National Congress (I) v. Institute of Social Welfare.]. This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab and Union of India v. H.C. Goel. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing of the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer.

Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full-fledged inquiry.

In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full-fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, for the removal of the elected officials, a more stringent procedure and standard of proof is required.

This Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma v. State of Punjab and observed that removal of an elected office-bearer is a serious matter. The elected office-bearer must not be removed unless as clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office-bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless as clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by an other extraneous consideration or should not come under any political pressure.

In a democratic institution, like ours, 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 or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.

The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (vide Jyoti Basu v. Debi Ghosal, Mohan Lal Tripathi v. District Magistrate, Rae Bareily and Ram Beti v. District Panchayat Raj Adhikari).

In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statuary right. Not only the elected office-bearer but his constituency/electoral college is also deprived of representation by the person of their choice.

A duly elected person is entitled to hold office for the term for which he has been elected and he can be removed only on a proved misconduct or any other procedure established under law like "no confidence motion", etc. The elected official is accountable to its electorate as he has been elected by a large number of voters and it would have serious repercussions when he is removed from the office and further declared disqualified to contest the election for a further stipulated period.

The State Election Commission having invited representation from the returned candidate to show cause for his failure to lodge an account of election expenses within the time and in the manner required by the Act, has also called the representation to the District Election Officer alongwith complete account of his election expenses and District Election Officer with his comments shall forward the same to the State Election Commission. Thus, the State Election Commission has provided a second opportunity to the returned candidate to file his election expenses, has not only to consider his representation against his alleged failure to lodge an account of election expenses but is also equally obliged to pass the order on his statement of accounts submitted by him adding whether the accounts submitted by the returned candidate is true and correct or not? The Rule provides the Election Commission to decide whether a contesting candidate has failed to lodge his account of election expenses within the time and in the manner required by the Act after adopting the procedure mentioned therein. If an account is held to be incorrect or untrue by the Election Commission after comments of District Election Officer, the State Election Commission is free to hold that the candidate has failed to lodge an account of election expenses within the meaning of Section 32-C of the Act, 1961 and order made thereunder and Election Commission may disqualify the said person.

In the present case, the Election Commission has completely omitted to pass an order ignoring the mandate of Rule and it is not held that the accounts of the election expenses submitted by the petitioner are incorrect untrue.

When in the M.P. Order 1997 a second opportunity to the candidate to submit his complete account of election expenses alongwith his representation has been provided, the representation of the candidate cannot be rejected summarily without referring to the accounts submitted by him otherwise in the Order 1997 it would simply have been mentioned that the candidate is required to submit his representation and if his representation is allowed, he would be further required to submit his complete account of election expenses. Moreover, present is not a case where the petitioner has not submitted the details of account but it is a case where according to the respondents themselves he submitted the details of account to an incompetent authority i.e. Naib Tehsildar instead of District Election Officer. Further, as per clause 7, District Election Officer was obliged to forward copy of the said account alongwith the representation with comments to the State Election Commission within five days but in the case in hand representation was forwarded after 5 months and 10 days and this fact is clear from Annexure P-2. From the legal position indicated above, it is apparent that Election Commission is under obligation to record its satisfaction whether a person has failed to make out any good reason or justification for his failure in not submitting the account within the time prescribed. In the case in hand, it is clear that the authorities have not acted as required under the law and passed the order in a mechanical manner. Petitioner who was a duly elected President of Nagar Panchayat by public at large ought not to have been removed in the manner as it has been done because a democratic set up the abrupt order disqualifying a duly elected member not only befalls him as an individual but also the entire constituency represented by him. It is also a settled legal position that looking to the penal consequent flowing from an elected office-bearer subjected to disqualification and its outcome on the effective functioning of the local body, the relevant provisions have to be construed strictly.

Consequently, the order dated 18-3-2011 and 16-9-2011 (Annexures P-2 and P-1 respectively) passed by Chhattisgarh State Election Commission, are hereby set aside. Petition is allowed.