High Court
Case Details
WP(C) 4670/2011 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (Oral) Heard Mr. AK Bhattacharyya, learned Senior Counsel assisted by Mr. S Dutta, lear ned counsel for the petitioners and Mr. Nur Mohammad, learned Govt. Advocate app earing for the respondent-State. Also heard Mr. MK Choudhury, learned Senior Cou nsel assisted by Mr. MH Rajborbhuiyan, learned counsel appearing for respondent Nos. 5 & 6. 02. By way of this petition, under Article 226 of the Constitution o f India, petitioners seek a direction to restrain respondent No. 6, Chairman of Karimganj Municipal Board, from dealing with all the financial matters of the Ka rimganj Municipal Board (Board) and to remove him from the post of Chairman of t he Board for criminal misappropriation of public money. Petitioners further seek a direction to conduct an inquiry by the Central Bureau of Investigation (CBI) into the allegation of misappropriation of public money by respondent No. 6.
Legal Reasoning
03. Petitioners are the elected Ward Commissioners of the Board and they have alleged various financial improprieties against the Chairman, i.e. res pondent No. 6 in dealing with Municipal funds. Court is of the view that conside ring the nature of the grievance expressed and the order that is proposed to be passed, a detailed narration of the financial improprieties alleged is not requi red as it may cause prejudice to the parties. Suffice it to say that pursuant to a complaint received against the respondent No. 6, Deputy Commissioner, Karimga nj caused an inquiry through the Addl. Deputy Commissioner, Karimganj, who there after submitted his report dated 25.07.2011. The said report disclosed irregular ities in dealing with funds of the Board. The said report along with the relevan t documents were forwarded by the Deputy Commissioner, Karimganj vide the forwar ding letter dated 26.07.2011 to the Secretary to the Govt. of Assam, Municipal A dministration Department. Grievance of the petitioners is that no action has bee n taken by the Secretary on the said inquiry report submitted by the Deputy Comm issioner. 04. ing the reliefs as indicated above. Aggrieved, petitioners have filed the present writ petition seek
Decision
05. On 26.09.2011, this Court admitted the writ petition and passed an interim order restraining the respondent No. 6 from spending any money belong ing to the Board without approval from the elected body. It was ordered as under : - (cid:28)Since serious allegations of financial irregularities are levelled against the respondent No. 6 and the notice under Section 28(3) of the Act has been issued, the respondent No. 6 is restrained from spending any money belonging to the Kari mganj Municipal Board without approval from the elected body. Any amount spent, even after approval by the elected body, must be accounted for. (cid:29) 06. Respondent No. 1, in his affidavit filed on 21.09.2012, has stat ed that report of the Deputy Commissioner, Karimganj was received by the Govt. o n 27.07.2011, whereafter the Chairman of the Board was served with a show cause notice dated 19.08.2011 under section 28(3) of the Assam Municipal Act, 1956 (Ac t). The Chairman submitted his reply on 06.09.2011 denying the charges of financ ial misappropriation levelled against him and instead raised objections to the i nquiry report submitted by the Deputy Commissioner. It is stated that in order t o ascertain the truth and to arrive at a proper decision, an independent inquiry into charges was considered necessary. Therefore, Director of Municipal Adminis tration, Assam was asked to submit an inquiry report. The affidavit further stat es that Director of Municipal Administration had, in the meanwhile, submitted hi s report which was under consideration of the Govt. Considering the above, this Court passed order on 22.11.2012 dir 07. ecting the Govt. of Assam in the Municipal Administration Department to dispose of the proceeding that was initiated under section 28(3) of the Act expeditiousl y within 31.01.2013. 08. Thereafter, Secretary to the Govt. of Assam in the Urban Develop ment Department (Municipal Administration Department since re-designated as Urba n Development Department) passed an order dated 31.12.2012 holding that allegati on of involvement in corruption and misappropriation of Municipal fund by respon dent No. 6 is not a fact. Though report of the Director of Municipal Administrat ion revealed certain irregularities in the maintenance of records and accounts o f the Board, the matter was closed by directing respondent No.6 to strictly adhe re to the accounting norms. This order has been brought on record by an addition al affidavit filed by the petitioners on 28.02.2013. 09. Respondent Nos. 5 & 6 in their separate affidavits have denied t he allegation of corruption and financial impropriety levelled against the respo ndent No. 6 by the petitioners. Respondent No. 6, in his affidavit has explained the details of the expenditures incurred by him including withdrawing of money by self-cheques. Respondent No.6 has contended that all decisions regarding spen ding of municipal money were taken by taking the Board into confidence. 10. In the reply-affidavit, petitioners have not only contested the stand of respondent No. 6, but have also pointed out violation of various statut ory provisions, including sections 37(1) and 61 of the Act by the respondent No. 6 while spending Municipal fund. 11. At the time of hearing the petition, Mr. AK Bhattacharyya, learn ed Senior Counsel appearing for the petitioners submitted that from the material s on record, it is clearly evident that there has been gross financial irregular ity while spending the Municipal fund belonging to the Board by the respondent N o. 6. Respondent No. 6 cannot escape or evade responsibility. Government order d ated 31.12.2012 is only an attempt to cover up the corruption indulged in by the respondent No. 6. He submits that the state has failed to exercise its power as conferred under sections 293, 296, 296A and 297 of the Act in an objective mann er. Since financial impropriety committed by the respondent No. 6 is now in the public domain, it would be in the fitness of things and it would subserve the ca use of justice, if an inquiry is directed against respondent No. 6 by an indepen dent investigating agency, preferably by the CBI. 12. Learned State Counsel has, however, referred to and relied upon the Govt. order dated 31.12.2012 and contended that the Government had followed a fair procedure and had conducted a thorough inquiry into the allegations level led against respondent No. 6, but did not find the allegation of corruption and misappropriation of Municipal fund by respondent No. 6 to be correct. He, theref ore, submits that in the circumstances which have unfolded, no further order is called for in the present proceeding. 13. Mr. MK Choudhury, learned Senior Counsel for respondent Nos. 5 & 6, on the other hand, submits that the entire allegation against respondent No. 6 is actuated by political consideration as both the petitioners and respondent No. 6 belong to rival political groups. There is no truth in the allegations br ought against the respondent No.6. Allegations brought against respondent No. 6 were however inquired into by the Government and having due regard to the enquir y report, a considered decision was taken by the Government not to take any acti on under section 28(3) of the Act. He submits that since the issues are politica l, petitioners can raise them in the meetings of the Board itself and seek remov al of the respondent No. 6 if they so desire in the appropriate forum. No case f or interference is made out, he submits. 14. nsidered. Submissions made by learned counsel for the parties have been co 15. Before proceeding further, a reference to the report of the Addl . Deputy Commissioner, Karimganj is considered necessary as the said report is t he basis leading to passing of the order dated 31.12.2012. 16. Inquiry was conducted by the Addl. Deputy Commissioner, Karimgan j jointly with the Finance and Accounts Officer, Karimganj. After a thorough ver ification of the accounts and records, including cash books, report was submitte d. As per the inquiry report during the present tenure of respondent No. 6 as Ch airman, accounts related records have not been properly maintained. Closing bala nce in the cashbook indicated gross irregularities in dealing with funds of the Board. Chairman had withdrawn an amount of Rs.22.80 lakhs through self-cheques, which was in violation of financial rules and which also did not have the approv al of the Board. There were diversion of funds without approval of the competent authority. Money was spent on schemes which were not approved. 17. As noticed above, on receipt of the said inquiry report from the Deputy Commissioner, Karimganj, the Govt. had issued a show cause notice to the Chairman, to which the Chairman submitted his reply refuting and controverting the allegations brought against him. At that stage, the Govt. requested the Dire ctor of Municipal Administration to conduct an inquiry in order to ascertain the truth. Director of Municipal Administration conducted the inquiry through the V aluation Officer and Finance and Accounts Officer of the Directorate. In their j oint report dated 29.11.2011, they stated that it was difficult to find out actu al balance position of funds under respective Heads of Accounts because of non-m aintenance of proper books of accounts. The inquiry report stated that procedura l lapse was seen and the office was functioning without any system of maintainin g proper systematic records of official work. There were diversion of funds with out approval of the Govt. which is not permissible. The inquiry report suggested that a thorough audit has to be performed by the Audit Department, as no audit has been done since a long time, which has caused irregularities in maintaining books of accounts. It was, thereafter, that the order dated 31.12.2012 was passe d. Relevant portion of the order dated 31.12.2012 reads as under: - (cid:28)On the perusal of the report of the Director of Municipal Administration, Assam , submitted in this regard, it has been ascertained that the allegation relating to involvement in corruption and misappropriation of Municipal fund by Dr. Mana sh Das, Chairman, Karimganj Municipal Board as reported by the Deputy Commission er, Karimganj, vide No. KDV(G)50.Pt./2011/35, dated 26.07.2011 is not a fact. Th e report of the Director of Municipal Administration, Assam, revealed certain om issions in respect of maintenance of records and more particularly relating to A ccounts of the Karimganj Municipal Board. Therefore, the matter of Show Cause no tice issued to Dr. Manash Das, Chairman, Karimganj Municipal Board vide No.UDD(M )120/2011/29, dtd. 19.8.2011, pursuant to the allegation made by the Deputy Comm issioner, Karimganj, vide No.KDV(G).50/Pt./2011/35, dtd. 26.07.2011, is hereby d isposed in consonance with the Order of the Hon’ble Gauhati High Court given on 22.11.2012 in WP(C) No. 4670/2011 without following guidelines to the Chairman, Karimganj Municipal Board. Henceforth, the Chairman, Karimganj Municipal Board is hereby directed to adhere strictly to the provisions of the Assam Municipal Accounting Manual, based on t he National Municipal Accounts Manual and notified by the Government vide No.UDD (M)31/ 2008/195, dtd. 30.3.2011. (cid:29) A perusal of the two inquiry reports, one dated 25.07.2011 of th 18. e Addl. Deputy Commissioner, Karimganj and the other dated 29.11.2011 of the Dir ectorate of Municipal Administration would show that there were gross anomalies in the maintenance of accounts relating to utilization of funds of the Board. In other words, financial mismanagement has been admitted. Whether such mismanagem ent has led to misappropriation of Municipal fund by respondent No. 6 has howeve r not been clearly spelt out. Rather, in the inquiry report of the Directorate o f Municipal Administration, it has clearly been suggested that since no audit ha s been carried out for a long time leading to irregularities in the maintenance of books of accounts of the Board, a thorough audit has to be carried out by the Audit Department i.e. by the Directorate of Local Fund Audit. 19. Viewed in the above context, the conclusion reached by the Secre tary, Govt. of Assam in the Urban Development Department in the order dated 31.1 2.2012 that the allegation of corruption and misappropriation of Municipal fund by respondent No. 6 is not a fact, appears to be not based on the said two repor ts. On the face of the above two reports, prima facie the Government could not h ave given a clean chit and absolve respondent No. 6 of the allegations made agai nst him. However, I may hasten to add that this does not mean or should not be c onstrued to mean that respondent No. 6 should be held guilty of corruption and m isappropriation of Municipal fund. The materials which have emerged from the two enquiry reports would justify a further and a more focused examination of the f laws pointed out. Therefore, the finding given by the Secretary in the order dat ed 31.12.2012 appears to be hasty without a detailed examination of the issue as was suggested by the inquiring authority when the materials on record clearly i ndicated financial irregularity, including unapproved diversion of funds. 20. referred to. At this stage, some of the relevant provisions of the Act may be 21. Section 28 of the Act deals with removal of Chairman and Vice Ch airman. Since this petition is concerned with removal of Chairman, reference wil l be made only to the Chairman. As per sub-section (3), the State Government aft er giving an opportunity to explain, may remove the Chairman from his office, if he is persistently omitting or refusing to carry out or disobeying the provisio ns of the Act and the Rules thereunder or he becomes incapable of so acting or i s declared insolvent or is convicted by a criminal court for any offence involvi ng moral turpitude. Under section 29(3), the State Government may after consulta tion with the Board remove any Commissioner, if his continuance in office is, in its opinion, dangerous to the public peace or order or likely to bring the admi nistration of the Board into contempt. However, no such action shall be taken wi thout giving an opportunity of showing cause to the Commissioner. Chapter VIII o f the Act deals with control of the affairs of a Municipal Board by the Governme nt and other authorities. Under section 293, the Commissioner of Division, the D eputy Commissioner, Director of Municipal Administration, Sub-Divisional Officer or any other Officer specially appointed by the State Government has the author ity to enter into and inspect any Municipal office and its affairs, including in spection of any work in progress. The said authorities along with the State Govt . are also empowered to suspend execution of any action by the Board under secti on 296. Section 296A empowers the State Govt. and the other authorities to have control over proceedings of Municipal Boards to ensure that those are in conform ity with the law and to do all things necessary to secure such conformity. Of co urse, such an action has to be preceded by giving an opportunity to the Board to express its views on the matter. State Govt. in case of default and the Deputy Commissioner in case of emergency has the authority under section 297 to interve ne in the affairs of the Board and can appoint some fit and appropriate person t o perform the duty of the Board. In case of incompetence, default or abuse of po wer, the State Government is empowered under section 298 of the Act to dissolve the Board after giving a reasonable opportunity of hearing. A conjoint reading of the aforesaid provisions would show that d 22. uty is cast upon the State Govt. to ensure that affairs of a Municipal Board are carried out in accordance with law and that there is no deviation from the lega lly prescribed path by any municipal functionary taking advantage of his unassai lable position in the Board due to majority support. Therefore, when reports of financial mismanagement or irregularity is brought to the notice of the State Go vernment, duty is cast upon it to consider such report in an objective manner wi th all seriousness and take suitable remedial action under the relevant provisio ns of the Act as noticed above, if the situation so warrant. Thus, viewed in the above context, the decision of the Govt. dated 31.12.2012 falls well short of t he standard prescribed by the above legal requirements. 23. Accordingly and in view of above, the said order 31.12.2012 pass ed by the Secretary to the Govt. of Assam, Urban Development Department cannot b e sustained and is as such set aside and quashed. Since the matter relates to se rious allegation of financial impropriety of Municipal fund, Court is of the vie w that based on the two inquiry reports as noticed above, the matter requires to be looked into afresh by a higher authority of the rank of Add. Chief Secretary . It is, therefore, directed that Chief Secretary to the Govt. of Assam shall en trust one of the Addl. Chief Secretaries of the State to look into the above asp ect of the matter and take fresh decision in accordance with law. 24. Regarding prayer of the petitioners for an investigation by an i ndependent authority, it is seen that petitioners on their part have not taken a ny steps for initiation of any criminal investigation into the allegations which they have brought against respondent No.6. Petitioners have neither lodged any first information before the police nor any complaint before the Magistrate agai nst alleged financial irregularities committed by respondent No. 6. Since no inv estigation has been set in motion, question of referring such investigation to a n independent body does not arise. Accordingly, the said prayer of the petitione rs cannot be acceded to at this stage. 25. Notwithstanding the above, it will be open to the petitioners to lodge such first information or complaint before the appropriate authority, if they so desire. 26. It is made clear that any observation made in the course of the judgment is to be construed as limited for the purpose of deciding the present p etition only and the authorities shall not be influenced by any such observation s made. 27. Writ petition is allowed to the extent indicated above. However, there shall be no order as to costs.