REPORTABLE

IN THE 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)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.

2) 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.

3) The facts giving rise to the filing of this appeal may be  

briefly stated as follows:

The 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. 8,12,783/-.     

4) 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.  

Again on 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.   

5) 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.

6) 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.

7) 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 petiton.

8) 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 & 2.

9)   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.  At the 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:

Provided that no such order under this section shall  be passed unless a reasonable opportunity of being heard is  given.”

The above 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.   

10) 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:  

“Charge 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.

8

Charge 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.

Charge 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.”

11)   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/-.  

In the 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.   

12) 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.   

13) 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.  

It  was 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.       

14) 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.     

15) 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.   

16) 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?  

17) In Tarlochan Dev Sharma v. State of Punjab and Ors.  

(2001) 6 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:  

“In 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.”

In Paragraph 11 this Court observed as under:

“A  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.”

The  same  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  

circumstances.

18) 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.

19) 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.  

1

20) 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.   

21) 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.

22) 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)  

NEW DELHI; JANUARY 12, 2010.   

1