Shikharchand Jain vs State of M.P.

K.K. Trivedi, J.—The petitioner is aggrieved by the order dated 29.05.2014 (Annexure P/1), by which in exercise of power under Section 35-A of the M.P. Municipalities Act, 1961 (hereinafter referred to as "Act") he has been debarred to take part in the election for a period of two years. It is contended that a show cause notice was issued to the petitioner on 25.02.2012 making allegations that because of the improper discharge of duties when the petitioner was working as elected President of the Municipal Council, Begumganj, District Raisen, the petitioner 1 became ineligible to take part in the forthcoming election. It is further contended that by filing a reply the petitioner pointed out that the irregularities as alleged against him were not committed by him and as such the order proposed to be issued against him was not required to be issued. It is contended by the petitioner that without conducting the proper enquiry in terms of the provisions of the Act aforesaid, only because of some complaint made by political persons, without extending any opportunity of hearing to the petitioner, the order impugned was passed, therefore, the same was liable to be quashed.

Upon service of notice of the writ petition, the return has been filed by the respondents No. 1 to 3 contending inter alia that full opportunity of hearing was extended to the petitioner, the comments were called from the Deputy Director Urban Administration and Development, and thereafter holding that the petitioner was guilty of misconduct, order was passed. Thus, it is contended that action has rightly been taken by the respondents against the petitioner and, therefore, the order impugned is not liable to be interfered with. The respondent No.5 has simply adopted the return filed by the respondents/State and has not said anything on his own. The respondent No.6 has remained absent in the proceeding before this Court.

It is vehemently contended by learned Senior counsel for the petitioner that a perusal of the note sheet placed on record as Annexure R/1 by the respondents along with the return would indicate 2 that the proceedings were not rightly done granting opportunity of hearing to the petitioner in appropriate manner. It is further contended that even when the note sheet proposes that an opportunity of hearing be given to the petitioner and a date for hearing was fixed on 04.04.2013 at 3.00 P.M., yet the matter was not heard nor the petitioner was granted opportunity to remain present before the Secretary of the department for personal hearing and, therefore, the order passed by the respondents was not sustainable. It is thus, contended that the order is liable to be quashed.

Learned counsel for the respondents would contend that in fact there was no need for further enquiry as facts were found proved on the basis of the note sheet and as such personal hearing of the petitioner was not necessary. It is thus, contended that interference in the order impugned is not required.

After hearing learned counsel for the parties at length and considering the rival submissions made by them, it is clear that there is non-compliance of the mandatory provisions of Sub-section (2) of Section 35-A of the Act inasmuch as the opportunity of hearing was not extended to the petitioner, though a note sheet was written to that effect. It is not necessary that only an opportunity of furnishing the explanation be given to such office-bearer. If any material is available in an enquiry conducted behind back of such person by the department or the concerned Deputy Director Urban Administration and Development, then it is more so important to grant an opportunity of personal 3 hearing to such an office bearer, to explain the findings recorded in such an enquiry. Here, in the case in hand, show cause notice was issued to the petitioner and reply was submitted pointing out that the action was taken in accordance to the law and payment was made only after receipt of the stock in the stock register of the Municipal Council concerned. The finding is recorded on the note sheet only on the basis of certain information supplied by the Deputy Director Urban Administration. Whether such a opinion was recorded after giving an opportunity of hearing to the petitioner or not is not stated and, therefore, it has to be held that such was ex parte proceeding conducted against the petitioner. If this was the situation, at least personal hearing was to be given to the petitioner before the Secretary of the Department before passing the order impugned to explain such facts.

Yet another aspect is that when there was a specific plea raised by the petitioner in his defense, no enquiry was conducted to verify such a fact and merely on the basis of opinion expressed by the Deputy Director Urban Administration, it was said that payment of bill was done prior to the receipt of the material in the Municipal Council. Such a finding also in absence of evidence cannot be sustained.

In view of aforesaid findings, it is apparent that the procedure adopted by the respondents for passing the order impugned against the petitioner was not in consonance to the provisions of Section 35-A(2)of the Act. 4

Considering the aforesaid, the order impugned cannot be countenance or approved. As a result, the writ petition is allowed. The order dated 29.05.2014 is hereby quashed. The matter is remitted back to the Secretary of the Department with a direction to afford an opportunity of hearing to the petitioner, and to reconsider the matter afresh for passing the order on the basis of findings so recorded after granting opportunity of personal hearing to the petitioner, in the matter of misconduct alleged against him. Such proceedings would be done from the stage of receiving reply of the show cause notice and petitioner would not be allowed to file another explanation to the show cause notice. It is also made clear that in case ultimately the petitioner is found guilty of committing misconduct, the order should be issued against him in appropriate manner imposing penalty whatsoever as prescribed under the law.

The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.

Certified copy as per rules.