ORDER

09.02.2021

As per: Sujoy Paul,J.

This Writ Appeal filed u/S.2 of the Madhya Pradesh Uchcha

Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam 2005

assails following order of the writ Court:-

“Reserved on: 31/12/2020

ORDER

(06/01/2021) Rohit Arya,J:

The petitioner has approached this Court under Article

226 of the Constitution of India against the order dated 23.12.2020 passed by respondent no.1 removing the petitioner from the post of President of Municipality, Alirajpur in respect of her tenure between 2017-2022 on the ground of an irregularity in an auction during her tenure between 2012-2017 and also restrained her from contesting for any such post.

Upon hearing, learned Sr.counsel and consideration of the nature of charges levelled and the impugned order, limited to the issue of two fold penalties imposed against the petitioner, issue notice to the respondents by ordinary as well as registered AD mode on payment of process fee within a period of three working days, returnable within four weeks on. No interim relief.”

[2] In brief, the case of appellant is that he was an elected President of Nagar Palika Parishad (Council), Alirajpur. During the previous tenure of the appellant the then Chief Municipal Officer committed a misconduct because of which the Directorate subjected him to disciplinary proceeding which ended with imposition of punishment of stoppage of two increments with cumulative effect. In addition, the loss caused by him to the tune of Rupees Ten Lakh was directed to be recovered from him by order dated 27/5/2020.

[3] The said incident which became subject matter of disciplinary proceeding against the then Chief Municipal Officer Shri Shailendra Sinha became reason for issuance of a show cause notice against the appellant by invoking Section 41-A of M.P. Municipalities Act, 1961 (for short “Municipalities Act”). The appellant was again elected in the second term. The appellant filed a detailed reply to the said show cause notice. The State Government by order dated 23/12/2020 Annexure P/5 decided to remove the appellant from the post of President.

[4] Shri Piyush Mathur, learned Sr.Counsel submits that a conjoint reading of the punishment order dated 27/5/2020 Annexure P/2 and the impugned order before Writ Court dated 23/12/2020 Annexure P/5 shows that; (i) the subject matter/incident relates to the previous term of appellant; (ii) CMO was held to be responsible for the misconduct; (iii) there was no allegation in the show cause notice that the then CMO in connivance with present appellant has committed the misconduct.; (iv) in absence of allegation levelled with accuracy and precision that appellant connived with the then CMO and jointly responsible for the misconduct, no case was made out to invoke Section 41-A of the Municipalities Act. In the factual matrix of this case, necessary ingredients for attracting Section 41-A are totally missing which is evident from the following judgments:-

Tarlochan Dev Sharma Vs. State of Punjab & Ors. (2001) 6 SCC 260 State of Madhya Pradesh & Ors. (2010) 2 SCC 319 Ajay Kumar Shukla Vs. State of M.P. & Ors. 2019 (1) MPLJ 426

Section 41-A was wrongly invoked.

[6] It is strenuously contended that all these points were raised in support of prayer for interim relief and matter was heard and reserved on 31/12/2020. The impugned order was delivered on 6/1/2021, but no reasons are assigned as to why no case was made out for grant of interim relief.

[7] The reference is made to a Full Bench judgment of this 2007(3) MPLJ 565 (Arvind Kumar Jain Vs. State of M.P

is maintainable against the impugned order.

[8] Learned Sr. Counsel has taken pains to contend that during the pendency of this Writ Appeal, an intervention application was filed by certain Counselors which was not entertained by this Court. Parallelly, the government appointed one of such Counselor u/S.37(2) of Municipalities Act to take care of the President’s work. The government at any time may notify the election and fill up the po