IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 328 (M/S) of 2011 Smt. Madhu Chauhan …Petitioner Versus State of Uttarakhand & others …Respondents With Writ Petition No. 1566 (M/S) of 2010 Smt. Madhu Chauhan …Petitioner Versus State of Uttarakhand & another …Respondents Hon’ble Tarun Agarwala, J. In a democracy governed by rule of law, an incumbent who is elected to hold an office for a term for which he has been elected unless his election is set aside by a prescribed procedure known to law, such removal, if not done through a process of law, becomes a serious matter. It curtails the statutory term of the holder of the office and a stigma is cast on the holder of the office in view of the allegations levelled against him and if proved, renders him unworthy of holding the office which he held. This is precisely the Supreme Court has held in the case of Trilochan Dev Sharma vs. State of Punjab and others, (2001) 6 SCC 260, holding that a singular or casual aberration or failure in the exercise of power was not enough; a course of conduct or plurality of aberration or failure in the exercise of power and that too involving dishonesty of intention was an “abuse of powers”. The Supreme Court further held that the legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown the exit for a 2 single innocuous action or error of decision. The exercise of power given to the State Government under Section 29 of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961, has serious civil consequences on the status of an office bearer. After the commencement of the provisions of Part IX and Part IX-A in the Constitution of India, a constitutional status has been conferred upon the Adhyaksha of a Zila Panchayat and an Adhyaksha cannot be removed in an unceremonious manner. Serious insinuations have been levelled on the State. This is what has led the petitioner to approach this Court invoking the writ jurisdiction under Article 226 of the Constitution of India. The facts leading to the filing of the writ petition is, that the petitioner is the wife of an Ex- M.L.A. who was in the ruling party of the State Government when he was elected in the year 2007. On account of certain reasons, he resigned as M.L.A. and also from the primary membership of the ruling party and thereafter contested the by- election as an independent candidate from Vikas Nagar Constituency in which he lost the election in the year 2009. In the meanwhile, the petitioner stood for election as Adhyaksha of the Zila Panchayat as an independent candidate and was elected in October, 2008 after defeating her nearest rival and a candidate of the ruling party, namely, Smt. Neeru Devi. Smt. Neeru Devi had an axe to grind and, in order to show her allegiance to the political bosses filed a complaint before the Secretary, Panchayat 3 Raj, levelling as many as eight charges against the petitioner contending that the petitioner had misused her office and abused her powers. The District Magistrate was directed to conduct a preliminary inquiry under the Rules, who submitted a report, on the basis of which, the Secretary, Panchayat Raj, passed an order dated 31st August, 2010 under Section 29 of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as the ‘Act’) ceasing the financial and administrative powers of the petitioner. The petitioner, being aggrieved by the said action, filed Writ Petition No. 1566 of 2010, in which an interim order dated 17th September, 2010 was passed staying the effect and operation of the order passed by the Secretary, Panchayat Raj. As a result of the interim order, the petitioner continued to function and exercise her powers as the Adhyaksha of the Zila Panchayat. Notwithstanding the aforesaid, the Secretary, Panchayat Raj, being the competent authority, directed that a full-fledged inquiry be initiated against the petitioner for the alleged malpractices and accordingly, appointed the Commissioner, Garhwal, to make the necessary inquiry. The Commissioner submitted his report dated 26.10.2010 holding that out of eight charges levelled against the petitioner, five charges could not be proved and that two charges were partially proved and one charge was fully proved. On the basis of this inquiry report, the Secretary, Panchayat Raj, issued a show cause notice dated 13th December, 2010 to show cause as to why 4 further action should not be taken against the petitioner. The petitioner submitted her reply and contended that no financial irregularity was committed by her nor has gained any financial benefit through any of the transactions alleged against her. The petitioner further contended that in the issuance of the work orders, she had no personal role to play and that the issuance of the work orders was routed through the proper channel wherein the Niyojan Samiti recommended the said work orders and that a collective decision was taken by the Zila Panchayat recommending the execution of these work orders. The petitioner further submitted that the Model Code of Conduct was never violated and that all the schemes were passed by the House of Zila Panchayat prior to the issuance of the notification for holding the by-election. The petitioner refuted the allegation that the schemes sanctioned was to give undue benefit to the petitioner’s husband who stood as an independent candidate from the same constituency where the schemes were to be implemented. Inspite of the objections raised by the petitioner, the Secretary, Panchayat Raj, passed the impugned order dated 18th February, 2011 under Section 29 of the Act removing the petitioner from the post of Adhyaksha of the Zila Panchayat on the ground of abuse of powers. The petitioner, being aggrieved by her removal, has filed writ petition no. 328 of 2011. In this writ petition, an averment was made that after the issuance of the show cause notice by the Secretary, Panchayat Raj and after hearing the 5 submission of the petitioner, a note was prepared by the Secretary, Panchayat Raj on the files of the case, which makes it an interesting reading and reads somewhat like this: The Secretary, Panchayat Raj, in its note after dwelling into the pros and cons concluded and recorded two options, namely, that on the basis of the averments which has been brought on record, the petitioner should be exonerated from the charges levelled against her and in the alternative, the matter be proceeded under Section 29 of the Act. This noting was placed before the Minister of Panchayat for his consideration, who passed an order dated 12.1.2011 directing the Secretary, Panchayat Raj to proceed under Section 29 of the Act. Based on the said direction of the Minister dated 12th February, 2011, the impugned order was passed on 18th February, 2011. Before proceeding further, it would be essential to bring on record, in brief, the charges levelled against the petitioner which are alleged to have been partially and fully proved. Charge No. 4 contemplated that four schemes/work orders, which were executed, were not done in public interest, but were done in personal interest. This charge was partially proved by the Inquiry Officer. Charge No. 5 relates to violation of Model Code of Conduct during the period 12th August, 2009 to 17th September, 2009 when the by-election was taking place. It is alleged that a large number of payments were made by the Zila Panchayat for the work executed in order to influence and sway the voters. 6 The charge was partially proved on the ground that one cheque was paid to the contractor during the period when the Model Code of Conduct was invoked. Charge No. 8 contemplated that the majority of the work sanctioned by the Zila Panchayat was executed in the constituency where the husband of the petitioner stood for election. This charge, according to the Inquiry Officer, was fully proved. Both the writ petitions have been clubbed and are being decided together. Heard Sri Rajendra Dobhal, the learned senior counsel assisted by Sri D.C.S. Rawat and Sri Manoj Sah, the learned counsel for the petitioner. On an earlier occasion, Sri L.P. Naithani, the learned senior counsel for the petitioner was also heard. Sri S.N. Babulkar, the learned Advocate General assisted by Sri J.P. Joshi, the learned Chief Standing Counsel for the State has also been heard at length. The learned counsel for the petitioner submitted that on the question of the legality of the order of the authority ceasing the financial and administrative powers, the authority was required to give not only an opportunity of hearing before passing the impugned order but was also required to record its subjective satisfaction which has not been done. The learned counsel further submitted that there is no finding that the petitioner has been benefitted from any of the schemes/work orders executed on behalf of the Zila Panchayat and that no financial benefit was made by the petitioner. The learned counsel submitted that no finding of 7 financial irregularity has been made out against the petitioner. The learned counsel submitted that the petitioner had no role to play and that the Niyojan Samiti had sanctioned/approved the work to be executed which was ultimately sanctioned and approved by the House of the Zila Panchayat which was done in accordance with the rules and regulations and consequently, the petitioner had no individual role to play in the entire matter. The learned counsel submitted that even the charges, which have been partially proved and fully proved, are based on no evidence and at best, the evidence has wrongly been appreciated which no reasonable person could arrive at. The learned counsel submitted that the question of violation of Model Code of Conduct does not arise since an identical allegation was also made by Smt. Neeru Devi to the District Election Officer, who conducted an inquiry and concluded that the Model Code of Conduct had not been violated. The learned counsel submitted that once a competent authority had held that there was no violation of the Model Code of Conduct, the same was binding upon the authority concerned and could not digress from the said findings. The learned counsel further submitted that the impugned order has been passed on the dictates of the Minister and that the authority had not applied his own mind and consequently, on this short ground, the impugned order was liable to be set aside. The learned counsel submitted that when an authority has been given a statutory duty to pass an order under an Act, he has to apply his mind independently and could not be guided by the 8 whims and dictates of others, especially, that of the Minister concerned. The learned counsel further submitted that the impugned order does not disclose any reasons and that the entire order clearly indicates non-application of mind by the authority concerned. The authority has only mentioned the charge, the findings given by the Inquiry Officer and thereafter in one paragraph has concluded that he concurs with the findings of the Inquiry Officer, which requires no interference and consequently, directed the removal of the petitioner. The learned counsel submitted that the impugned order was passed without any application of mind and has been passed mechanically without giving any reasons. In support of his submissions, the learned counsel has placed certain decisions which will be referred to at the appropriate place. On the other hand, the learned Advocate General submitted that the petitioner has been removed for the malpractices committed by her and abuse of powers by her as Adhyaksha and that the authority was justified in passing the order of removal once the charges were found to be correct which were proved in the course of inquiry. The learned counsel submitted that the instruction issued by the Minister was made pursuant to the Rules of Business framed under sub-clause (3) of Article 166 of the Constitution and that under Rule (3), the Secretary was bound to make the notings and place the same for its approval before the Minister concerned. The learned Advocate General submitted that the notings on the files by the Secretary and thereafter by the Minister concerned 9 have no evidentiary value and these notings have been done as per the Rules of Business under Article 166 of the Constitution. The learned Advocate General further submitted that the authority was not required to give any reasons while concurring with the findings of the Inquiry Officer and that it was sufficient for the authority to hold that he had concurred with the findings of the Inquiry Officer which was sufficient to indicate that the authority had applied his mind and that the impugned order was not passed mechanically or on the dictates of the Minister concerned. The learned Advocate General further submitted that no malafides have been alleged nor have been proved and the decisions cited by the petitioner are not ratio decidendi and not applicable to the facts and circumstances of the present case. The petitioner has been removed by the State Government in exercise of the powers conferred to it under Section 29 of the Act. For facility, Section 29 of the Act is extracted hereunder: “29. (1) If in the opinion of the State Government the Adhyaksha or the Up- Adhyaksha while acting in place of Adhyaksha willfully omits or refuses to perform his duties or functions under this Act or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, [or because physically or mentally incapacitated for performing his duties] the State Government, after giving the Adhyaksha or Up-Adhyaksha, as the case may be, a reasonable opportunity for explanation may by order remove him from office [and such order shall be final and not open to be questioned in a Court of law]: [Provided that where in an enquiry held by such person and in such manner as may be 10 prescribed, an Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities such Adhyaksha or Upadhyaksha shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercise and performed by a committee consisting of three elected members of the Zila Panchayat appointed in this behalf by the State Government. (2) [x x x] (3) An Adhyaksha or Up-Adhyaksha, removed from his office under this section, shall not be eligible for election as Adhyaksha or Up-Adhyaksha for a period of three years from the date of his removal.” A perusal of Section 29 of the Act indicates that if in the opinion of the State Government the Adhyaksha willfully omits or refuses to perform his duties or functions under this Act or abuses the powers vested in him or is found to be guilty of his misconduct in the discharge of his duty, the State Government, after giving a reasonable opportunity, may by order remove him from office. The proviso provides that if a prima facie case is made out, the authority may cease the financial and administrative powers of the Adhyaksha. Sub- clause (3) of Section 29 of the Act indicates that the Adhyaksha who has been removed from the office shall not be eligible for election as Adhyaksha for a period of three years from the date of his removal. It is clear that the aforesaid provision provides one punishment, namely, the removal from the post of Adhyaksha. Sub-clause (3) of Section 29 of the Act further disqualifies the person to contest the election for a period of three years. This statutory provision has a serious repercussion. Not only it 11 has civil consequences but a stigma is cast upon the person who has been elected by a popular mandate. It is therefore imperative and obligatory on the part of the authority to ensure strict adherence to the provisions of the Act. The authority has to act cautiously and should not act on the whims and fancies or on the dictates of others. A statutory power has been given to remove the Adhyaksha who has been given a constitutional status under Part IX and Part IX-A of the Constitution of India. Consequently, Adhyaksha cannot be removed in an unceremonious manner on flimsy grounds. The charges must be serious warranting removal on the finding of useful misuse of powers, etc. This is what is required in a democracy which is governed by the rule of law. The petitioner has been removed for abusing her powers as an Adhyaksha of the Zila Panchayat. The Supreme Court has explained the expression “abuse of powers” in Trilochan Dev Sharma’s case (supra) as under: “11. The expression “abuse of powers” in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a willful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. It must be such an abuse of power which would render a Councillor unworthy of holding the office of President. Inasmuch as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 12 is “abuse of his powers or of habitual failure to perform his duties”. The use of plural – powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase “abuse of powers” must take colour from the next following expression – “or habitual failure to perform duties”. A singular or casual 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 “abuse of powers” within the meaning of Section 22 of the Act. The legislature could not have indented the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision.” The Supreme Court has clearly expressed that the expression “abuse of powers” has to be narrowly construed. The Supreme Court said that the legislative intent is that a singular or casual aberration or failure in exercise of power is not enough and that a person who has been elected by a popular verdict should not be shown the exit for a single innocuous action or on an error of decision. The petitioner has been removed on account of two charges being partially proved and one charge being fully proved. Lengthy arguments were made on either side. The learned counsel for the petitioner dwelt at length to show and prove to the Court that the charges so proved partially and fully are without any basis. On the other hand, the learned Advocate General indicated that the existing rules were violated and the schemes were illegally sanctioned and consequently, the petitioner being the Adhyaksha and being overall responsible, was guilty of the charges. 13 This Court, after considering the matter, finds that it is not necessary to dwell into the merits and demerits on each charge levelled against the petitioner since the Court finds that the writ petition can be disposed of on other grounds. Section 29 of the Act gives power to the State Government to remove the Adhyaksha from office. The power of the State Government is required to be exercised statutorily by the Secretary, Panchayat Raj. In the Indian democratic system, senior officers, such as, Secretaries are not supposed to mortgage their own discretion or their decision making authority to give way to the directions of the politicians and to carry out their commands which have no sanctity in law. No government servant shall in the performance of his official duties or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Karansinhji Jadeja vs. State of Gujarat, (1995) 5 SCC 302, the Supreme Court held that a statutory authority vested with jurisdiction must exercise it according to its own discretion and discretion exercised under the direction or instruction of some higher authority was a failure to exercise discretion altogether. As far back in the year 1970, the Supreme Court in Purtabpur Co. Ltd. vs. Cane Commissioner, Bihar, AIR 1970 SC 1896 held that the power exercised by the Cane Commissioner was a statutory power and could not be replaced by the Chief Minister. The Supreme Court further held that the Executive Officers entrusted with statutory 14 discretion may, in some cases, be obliged to take into account considerations of public policy and in some context, the policy of a Minister or the Government, but that would not absolve them from their duty to exercise their personal judgment in individual cases. The Supreme Court held: “13. The power exercised by the Cane Commissioner under clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone – not even in favour of the State Government or the Chief Minister. It was not proper from the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognized by clause (6) read with clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. 14. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior.” Similar view was reiterated by the Supreme Court in Trilochan Dev Sharma’s case (supra) in the year 2001. On the other hand, the learned Advocate General submitted that in the light of the powers conferred under Articles 154 and 166 of the Constitution of India and the Rules of Business framed therein, the action of the Secretary was not 15 illegal in seeking approval of his action from the Minister concerned and such an exercise was in conformity with the provisions of Article 166 of the Constitution. In support of his submission, the learned Advocate General placed reliance upon a decision of the Supreme Court in Union of India and another vs. Kartick Chandra Mondal and another, (2010) 2 SCC 422, wherein the Supreme Court, in paragraph 18, held that an order would be deemed to be a government order as and when it is issued and publicized. The learned Advocate General submitted that internal communications while processing a matter cannot be said to be an order issued by the competent authority unless they are issued in accordance with law. The Supreme Court further expressed that notings in a note file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the officer concerned on the subject under review. In the opinion of the Court, the said ruling nor Article 166 of the Constitution has any application whatsoever to the facts and circumstances of the present case. Article 166 directs all executive actions to be expressed and authenticated in the manner laid therein. Articles 166(1)