Dr. Satish Katakwar vs The State of M.P. and Others

Hon''ble Shri Justice R.S. Jha.

The petitioner has filed this petition being aggrieved by order dated 5.1.2008/15.2.2008 passed by the respondent No. 1 whereby the petitioner has been disqualified for contesting the elections for a period of 5 years in exercise of powers u/s 35A of the M.P. Municipalities Act, 1961. It is submitted by the Learned Counsel for the petitioner that the petitioner was elected as President of the Municipal Council, Pipariya, District Hoshangabad in the year 1995 for a term of 5 years which ended in the year 1999. It is submitted that during this period certain irregularities were committed by the lower staff in the disbursement of Social Security Pension and, therefore, an enquiry was conducted by the Tehsildar, Pipariya and an enquiry report was submitted by him on 12.10.1998 clearly recording a finding to the effect that the Chief Executive Officer, two clerks and one postman were guilty of the irregularities. It is stated that no action pursuant to the aforesaid enquiry report was initiated by the authorities either against the Chief Executive Officer, the clerks or the postman and on the contrary a show cause notice was issued to the petitioner on 1.8.2003 u/s 35A of the Act, in response to which the petitioner has filed a reply stating that no irregularities have been committed by him and he could not be held responsible for individual indiscretions committed by the subordinate staff.

After receiving the reply of the petitioner, the authorities by the impugned order dated 5.1.2008/15.2.2008 have disqualified the petitioner for a period of 5 years from contesting the election, being aggrieved by which the petitioner has filed the present petition.

It is submitted by the Learned Counsel for the petitioner that the applications claiming Social Security Pension were processed by the lower staff, i.e. the clerk and scrutinized by the Accounts Section and thereafter placed before the Chief Executive Officer who, after scrutiny, places the list before the Municipal Council and after the list was approved by the resolution of the Council, payments were made to the concerned beneficiaries. It is stated that in such circumstances as all payments were made on the basis of the aforesaid exercise conducted by the sub-ordinate staff and the Municipal Council as a whole and were not made by the petitioner in his individual capacity nor were any payments made pursuant to any individual order issued by the petitioner, therefore, he could not have been held responsible for the irregularities, if any.

It is further stated that the respondent authorities, inspite of a report submitted by the Tehsildar, Pipariya on 12.10.1998 have not taken any action against the Chief Executive Officer; the clerks concerned or the postman and the petitioner alone has been singled out for being disqualified under the provisions of the Act which is contrary to law. The Learned Counsel for the petitioner has further pointed out, on the basis of the reply filed by him, that the petitioner had infact constituted a committee of five councillors on receiving a complaint in respect of seven beneficiaries and the committee had given a report to the effect that there was no irregularities and the pension payments were rightly made, however as no other or further complaints were received by him nor was any irregularity pointed out to him, therefore, in such circumstances if any irregularities were committed by the Chief Executive Officer or the clerk, it was done by them in their personal capacity at their own level and for that the petitioner cannot be held responsible. It is further submitted that the allegations, perse, do not warrant an order of disqualification of the petitioner u/s 35A of the Act.

The learned Govt. Advocate appearing for the respondent/State, per contra, submits that in view of the provisions of Section 51 of the Act, the petitioner was responsible to exercising proper financial and administrative control in the Municipality and as he failed to do so, resulting in financial irregularities and misappropriation of the funds under the Social Security Pension Scheme, therefore, no fault can be found in the impugned order moreso in view of the fact that the financial irregularities have been established.

I have heard the Learned Counsel for the parties at length. From a perusal of the record it is clear that an enquiry into the irregularities was made by the Tehsildar, Pipariya who in his report has stated that the responsibility for the same was squarely that of the Chief Executive Officer; the two clerks and the postman and that the pension payments have been made by keeping the President in the dark. It is also undisputed that the list of beneficiaries was duly approved by the council in the meeting and only thereafter payments were made. That apart, it is also clear that no general complaint in respect of the irregularities was received by the petitioner and that the petitioner had constituted a committee of five councillors to make an enquiry into the complaint in respect of seven beneficiaries in which it was found that the persons concerned were genuine beneficiaries and payments have rightly been made to them. It is also undisputed that in view of Rule 81 of the M.P. Municipal Accounts Rules, 1971 it is the responsibility of the Accounts Officer to scrutinize the genuineness of all claims and thereafter to place them before the competent officer who is also required to scrutinize and thereafter place it before the council for approval.

In the instant case, the alleged irregularities had been committed by the clerks who apparently submitted favourable reports after scrutinizing the applications. It is further clear that the respondent authorities have not taken any action against the Chief Executive Officer or the two clerks responsible for committing the irregularities but have directly proceeded against the petitioner u/s 35A of the Act.

Quite apart from the aforesaid facts which have emerged from the record, it is also apparent from the impugned order that the authority has not applied its mind to any of these aspects, i.e the previous report submitted by the Tehsildar in the year 1998; the responsibility for scrutiny of the applications and processing the cases for Social Security Pension; the role of the petitioner in his individual capacity in the disbursement of the Social Security Pension; the fact that the list has been approved by the council in its meeting, etc., and the same has been passed without giving any reason, in a short and cryptic manner wherein only a conclusion has been recorded. As the impugned order has resulted in grave prejudice to the petitioner, the authority while deciding the matter was required to given reasons for recording the conclusion against the petitioner and his individual responsibility in the distribution of the Social Security Pension. From a perusal of the impugned order, it is apparent that the authorities have failed to do so.

In view of the facts and circumstances of the case, I do not find any reason to sustain the impugned order dated 5.1.2008/15.2.2008 depriving the petitioner from contesting the municipality elections for a period of 5 years. For the reasons stated hereinabove the petition, filed by the petitioner, stands allowed and the impugned order dated 5.1.2008/15.2.2008, disqualifying the petitioner from contesting elections for a period of five years, is hereby quashed. There shall be no order as to the costs.