Urmila Sorout vs State of Haryana and Others

Rakesh Kumar Jain, J.—The petitioner has filed this writ petition challenging inquiry report dated 08.11.2011 submitted by Sub Divisional Officer, Hodal, holding the petitioner guilty on the ground that it is contrary to law; for quashing letter dated 04.02.2012 issued by the Director, Department of Urban Local Bodies, Haryana, to the Financial Commissioner to take action against the petitioner on the aforesaid inquiry report; for quashing order dated 20.03.2012 by which City Magistrate, Palwal, has been appointed to hold regular inquiry though the City Magistrate has no jurisdiction to do it; for quashing show cause notice dated 02.04.2012; and for issuance of Magistrate 1st Class, Palwal, which was sent by him to the Police Station u/s 156(3) Cr.P.C. on 18.02.2011 for registration of the FIR and on the same day, FIR No. 54 dated 18.02.2011, under Sections 409, 420, 467, 468, 471, 474 IPC was registered at Police Station, Hodal, against the petitioner and others. The investigation was conducted by the Deputy Superintendent of Police, Hodal, who submitted a cancellation report on 02.03.2011 holding that the dispute is regarding the value of the furniture but there is no embezzlement. It is also alleged in the petition that after submission of the cancellation report in the Court, notice thereof was issued to the complainant. Respondent No. 7, who had earlier filed the complaint, filed another complaint dated 18.04.2011 in the Court of Additional Sessions Judge (Special Judge), Palwal, under Sections 409, 420, 467, 468, 471, 474, 120B IPC and 13(2) of the Prevention of Corruption Act, 1988, in which cognizance was taken and the petitioner was summoned vide order dated 11.07.2011 under Sections 120B, 409, 468, 471 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. It is also alleged that the order dated 11.07.2011 has been challenged by way of CRM-M-22992-2011 before this Court which is pending after issuance of notice.

It is also alleged that respondent No. 7 filed another complaint on 21.12.2010, alleging embezzlement in the municipal funds, to the Sub Divisional Officer, Hodal, which was marked by him to the Junior Engineer, PWD (B&R), Hodal, for conducting inquiry. This move was objected to by the petitioner by making application dated 24.10.2011 to the Director. Department of Urban Local Bodies, Haryana, doubting credibility of Sub Divisional Officer and Junior Engineer on the ground that they are under the pressure of Udhai Bhan Singh, Ex. MLA, who is supporting respondent No. 7. However, the enquiry was conducted by the Junior Engineer, PWD (B&R), Hodal, and vide his report dated 25.10.2011 hold the negligence of the petitioner in paying of Rs. 3,00,070/- extra while doing the earth filling work in the streets of Hodal. The petitioner has also made reference of "No Confidence Motion" at the instance of respondent No. 7 in connivance with Udhai Bhan Singh, Ex. MLA, but despite levelling all sort of allegations against Udhai Bhan Singh, she has not arrayed him as a party enabling him to file reply to the allegations made against him. Be that as it may, the following 5 allegations have been found by the Sub Divisional Officer, Hodal, against the petitioner in his report dated 08.11.2011 submitted to the Deputy Commissioner:

Regarding embezzlement of Rs. 11,36,201/- by the President of Municipal Committee, Hodal and officers of the Committee in the name of filling earth in Ward No. 3, 7, 8 and 10.

Cheques of Rs. 3,55,509/- and Rs. 1,54,875/- have been misused on 15.07.2010 in the name of lights, the bills of which are of April, 2010, whereas the Board was lying dissolved in April, 2010.

Regarding spending amount announced by Hon''ble Chief Minister in a wrong manner.

Regarding complaint of embezzlement/irregularities in the purchase of furniture.

Regarding misuse of powers u/s 35 of the Haryana Municipal Account Code, 1936, by the President.

Department of Urban Local Bodies, Haryana, doubting credibility of Sub Divisional Officer and Junior Engineer on the ground that they are under the pressure of Udhai Bhan Singh, Ex. MLA, who is supporting respondent No. 7. However, the enquiry was conducted by the Junior Engineer, PWD (B&R), Hodal, and vide his report dated 25.10.2011 hold the negligence of the petitioner in paying of Rs. 3,00,070/- extra while doing the earth filling work in the streets of Hodal. The petitioner has also made reference of "No Confidence Motion" at the instance of respondent No. 7 in connivance with Udhai Bhan Singh, Ex. MLA, but despite levelling all sort of allegations against Udhai Bhan Singh, she has not arrayed him as a party enabling him to file reply to the allegations made against him. Be that as it may, the following 5 allegations have been found by the Sub Divisional Officer, Hodal, against the petitioner in his report dated 08.11.2011 submitted to the Deputy Commissioner:

Regarding embezzlement of Rs. 11,36,201/- by the President of Municipal Committee, Hodal and officers of the Committee in the name of filling earth in Ward No. 3, 7, 8 and 10.

Cheques of Rs. 3,55,509/- and Rs. 1,54,875/- have been misused on 15.07.2010 in the name of lights, the bills of which are of April, 2010, whereas the Board was lying dissolved in April, 2010.

Regarding spending amount announced by Hon''ble Chief Minister in a wrong manner.

Regarding complaint of embezzlement/irregularities in the purchase of furniture.

Regarding misuse of powers u/s 35 of the Haryana Municipal Account Code, 1930, by the President.

After receiving it, the Deputy Commissioner referred it to respondent No. 2 for necessary action who, in turn, referred to respondent No. 1. Respondent No. 1 appointed Additional Deputy Commissioner, Palwal, as inquiry officer on 26.08.2011, who has submitted his report dated 08.11.2011 holding the petitioner not guilty of the charges only in respect of the purchase.

The case of the petitioner is that despite the report of the Additional Deputy Commissioner, Palwal, the Director, Department of Urban Local Bodies, vide his letter dated 04.02.2012, requested the Financial Commissioner to take action against the petitioner u/s 22 of the Act. After receiving the aforesaid letter, respondent No. 1 deputed City Magistrate, Palwal, to hold regular inquiry against the petitioner, whereas respondent No. 2 served a show cause notice for taking action against the petitioner under Sections 14-A and 22-A of the Act and assured her to submit his representation within 7 days.

Aggrieved against these proceedings, the present writ petition has been filed in which, at the time of issuance of notice of motion, operation of the order dated 20.03.2012 (Annexure P-17) and the show cause notice dated 02.04.2012 (Annexure P-18) has been stayed.

It is submitted by counsel for the petitioner that in law, the Sub Divisional Officer has no jurisdiction to hold the inquiry which can only be assigned to the Extra Assistant Commissioner and after the report submitted by the Additional Deputy Commissioner on 08.11.2011 in which the petitioner has not been found guilty, there was no occasion for holding of a regular inquiry.

In reply, counsel for respondent No. 1 and 2 has submitted that the President of the Municipal Committee is vested with extraordinary powers u/s 35 of the Act in emergent cases, but purchase of furniture was not an emergent circumstance. Moreover, it is averred that in the inquiry report dated 30.11.2011. charge Nos. 1, 3 and 5 were proved against the petitioner as per which, the petitioner misappropriated an amount of Rs. 11,36,201/- on account of tilling the sand in the streets of ward No. 3, 7, 8 and 10; she also misappropriated the funds allotted by the Chief Minister, Haryana and also violated the provisions of Section 33 of the Act. It is further submitted that vide order dated 19.03.2012. City Magistrate, Palwal, was appointed as Inquiry Officer to conduct the regular inquiry into the charges and show cause notice was given to her on 02.04.2012 on the basis of the inquiry report sent by the Deputy Commissioner. Palwal, vide his letter dated 30.11.2011, and in response thereto, the petitioner has already filed a reply on 16.04.2012 denying the complaint being false, baseless and malicious.

Thus, counsel for respondent Nos. 1 and 2 has submitted that once the reply to the show cause notice is tiled on 16.04.2012, the petitioner could not have prayed for stay of operation of the show cause notice which has been granted on 17.04.2012, as the order based upon the show cause notice and the reply thereto is vet to come which could be in favour of the petitioner as well. It is also argued that the petitioner has made sweeping allegations against one Udhai Bhan Singh, Ex. MMLA, alleging that all actions have been taken against her on his behest as he is interested in the election of respondent No. 7 to the post of President of the Municipal Committee, whereas that person is not a party to the writ petition to reply to the allegations levelled against him.

It is also submitted that the City Magistrate, Palwal, has the powers of Extra Assistant Commissioner, who has been delegated the powers of Collector vide Haryana Government Notification dated 17.06.1994.

Counsel for respondent Nos. 1 and 2 has also submitted that the writ petition is premature at this stage because it has been filed only against the show cause notice and in this regard relied upon a judgment of this Court in the case of Kiran House and Others Vs. Union of India (UOI) and Others, , in which it has been held that a writ petition against a mere show cause notice is not maintainable until and unless the jurisdiction of the authority to issue such notice is questioned.

He has also relied upon judgment of the Supreme Court in the case of State of Orissa and Others Vs. Mesco Steels Ltd. and Another,

On the other hand, counsel for the petitioner has relied upon a judgment of the Supreme Court in the case of Union of India (UOI) and Another Vs. Kunisetty Satyanarayana,

After hearing counsel for the parties and perusing the entire record, I am of the considered view that the present writ petition at this stage is premature because the petitioner has ultimately challenged the show cause notice even without disclosing the fact that she has also filed a reply thereto on 16.04.2012, which fact is mentioned in para No. 3 of the reply filed by respondent Nos. 1 and 2, and before the show cause notice and the reply filed could have been taken into consideration for the purpose of some decision, either in favour or against the petitioner the stay of operation of that show cause notice has been obtained on 17.04.2012. Thus, I am of the considered opinion that this writ petition is not maintainable at this stage being premature, and the petitioner, if so advised, may challenge the ultimate order which may be passed against the petitioner.

Dismissed.