Councillor can be removed for misconduct despite pending criminal case on same charge: Karnataka HC

An elected councillor of a municipality can be removed from the post, acting on the ‘proved’ charge of misconduct on the administrative side, even in the absence of conviction in the criminal case, initiated on the same charge, said the High Court of Karnataka.

The court made these observations while upholding the State government’s action of removing three elected councillors of Gadag-Betageri City Municipal Council from post of councillors. They were removed for allegedly creating a fake resolution and forging the signature of the commissioner of the municipality on it, and issuing a possession certificate to certain persons who had illegally occupied public land.

Justice Suraj Govindaraj passed the order while dismissing the petition filed by Usha Mahesh Dasara, Anil M. Abbigere, and Gulappa S. Mushigeri.

The court held that while the presumption of innocence applies strictly to criminal trials, it does not prevent administrative action of removal uner Section 41 of the Karnataka Municipalities Act, 1964 when supported by material evidence.

While criminal liability requires proof beyond a reasonable doubt, administrative action is based on a lower standard —preponderance of probabilities, the court said, while clarifying that a criminal conviction is not a prerequisite for removing an elected councillor when documentary evidence establishes misconduct.

The alleged acts of forging resolution attributed to the petitioners constitute “misconduct” or “disgraceful conduct” within the meaning and scope of Section 41 of the KMC Act, the court said while pointing out that removal was based on documentary evidence, and independent examination of municipal records.

Pointing out that their misconduct had harmed the municipality, the court said that permitting the councillors to continue in office while criminal proceedings were pending posed a risk of further forgery and additional harm.

On the petitioners’ concern regarding their potential disqualification under Section 16 of the KMC Act, the court said that although such a consequence is serious, “the disqualification is not disproportionate, but it is proportionate to the gravity of the misconduct and necessary in the interest of public and democratic governance”.

Removal of the petitioners sends a signal to other elected representatives that forgery and fraud will not be tolerated, the court said.