Civil Writ Petition No.9807 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9807 of 2011 Date of Decision: 30.5.2011 Namdev s/o Roshan Lal ....Petitioner Versus The Secretary to Government of Punjab and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Gurinder Singh Gill, Advocates for the petitioner. Mr.Gurmeet Singh Sandhawalia, Advocate for the respondent- caveator. M ehinder S ingh S ullar , J. (Oral) The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, is that in the wake of elections of Municipal Council held in the month of June, 2008, petitioner Namdev was elected as a Municipal Councilor. Complainant Harbans Singh Walia (respondent No.3) was defeated in the elections and he filed an election petition against the petitioner before the Election Tribunal, Kapurthala. 2. Petitioner claimed that a false criminal case was registered against him and his family members, by virtue of FIR No.161 dated 6.6.2009 (Annexure P4) for the commission of offences punishable under sections 420 and 120-B IPC and section 31 of the Representation of People's Act, 1950, by the police of Police Station City, Kapurthala. They filed Criminal Misc. Petition No.3242 of 2010 titled as “Namdev and others Vs. State of Punjab and others” for quashing the FIR (Annexure P4), which is still pending in this Court. 3. It is not a matter of dispute that another criminal case was registered against the petitioner and his other co-accused, by way of RC No.16 dated 10.5.2003 on accusation of having committed the offences punishable under Civil Writ Petition No.9807 of 2011 -2- section 120-B read with sections 420 and 468 IPC and section 13 of the Prevention of Corruption Act, 1988 (hereinafter to be referred as “the PC Act”) by the police of Police Station SPE/CBI/ACB, Chandigarh. They were convicted and sentenced, by means of judgment of conviction and order of sentence dated 14.5.2009 (Annexure P12). 4. Taking cognizance of the conviction and sentence, the Secretary to Government of Punjab, Department of Local Government (respondent No.1) issued show cause notice to the petitioner, to which, he filed the reply, but he did not avail the opportunity of personal hearing despite numerous opportunities. Thereafter, respondent No.1 removed the petitioner from the membership of Municipal Councilor, through the medium of impugned order dated 24.3.2011 (Annexure P15) and published, vide notification bearing No.6/95/08-4LG3/850 dated 7.4.2011. 5. The petitioner did not feel satisfied and preferred the present writ petition, challenging the impugned order (Annexure P15) of his removal, invoking the provisions of Articles 226 and 227 of the Constitution of India. 6. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant writ petition in this context. 7. Ex-facie, the argument of learned counsel that since the allegations contained in the aforesaid two criminal cases are no so serious, to warrant the removal of the petitioner from the membership of Municipal Councilor, so, the impugned order (Annexure P15) is arbitrary and illegal, is not only devoid of merit but misplaced as well. 8. As is evident from the record, that first criminal case was registered against the petitioner, by way of FIR No.161 dated 6.6.2009 (Annexure P4) for having committed the offences punishable under sections 420 and 120-B IPC and section 31 of the Representation of People's Act, 1950, by the police of Police Civil Writ Petition No.9807 of 2011 -3- Station City, Kapurthala, in which, he alongwith his family members has filed a petition for quashing the FIR, which is still pending in this Court. 9. Sequelly, another criminal case was also registered, vide RC No.16 dated 10.5.2003 under section 120-B read with sections 420 and 468 IPC and section 13 of the PC Act by the police of Police Station SPE/CBI/ACB, Chandigarh, in which, very serious allegations of cheating and preparing the false documents etc. were levelled against the petitioner alongwith his other co-accused. 10. Having completed all the codal formalities, the Special Judge convicted the petitioner and his other co-accused, by means of judgment of conviction and order of sentence dated 14.5.2009 (Annexure P12), the operative part of which is (paras 82 & 86) as under (even the petitioner did not place on record complete copy of judgment of conviction) :- “82. The stress of learned defence counsel that the stock had been checked and got analyzed and the analysis were not as per rules or that result of the analysis do not point out that those were beyond specifications and not fit for human consumption, is misplaced. The samples so drawn out were representative ones and they having been found below specifications point out towards dishonest intention of the accused in conspiracy with each other to cheat the FCI by causing wrongful gain to themselves and wrongful loss to FCI. One more thing to be kept in mind is that stock of private millers had been dispatched which had not been accepted by the FCI at hired godown, Dhilwan which other things apart itself is a criminal act. 83 to 85 xxx xxx xxx 86. Thus, in view of the detailed discussion above, I find that prosecution has successfully proved its charge against the accused conclusively and affirmatively that all of them had hatched a criminal conspiracy having prior meeting of mind agreeing with each other to do an illegal act i.e. to cheat FCI and they took steps in that regard in pursuance of the conspiracy and further they committed offence of cheating by dishonestly supplying unaccepted sub-standard rice common sela of private millers accused Jaipal Midha and Namdev. It is further established on the record beyond a shadow of reasonable doubt that accused Sukhdev Raj employed as AG-1 (Depot)/T.A.-1 at HG Dhilwan with FCI willfully with intention to defraud falsified the record in the form of stackwise register etc. being maintained by him and further more accused Manjit Singh and Sukhdev Raj being public servants caused wrongful loss to FCI and wrongful gain to the accused by misusing/abusing their position as public servant. Although the prosecution has not been able to prove Civil Writ Petition No.9807 of 2011 -4- loss to the tune of Rs.43.08 Lacs by the accused to the FCI. However, loss for a smaller sum of Rs.4105.60 is proved on the record and offence of cheating stands proved against the accused. Therefore, the accused stand convicted accordingly. Let they be heard on the point of quantum of sentence.” 11. Not only that, petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 10,000/- under section 120-B IPC and to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 20,000/- under section 420 IPC, by virtue of order of sentence dated 14.5.2009 (Annexure P12). It was held by the Special Judge that the petitioner alongwith his other co-accused committed the criminal conspiracy and cheated the FCI. That means, the very serious allegations of criminal conspiracy, cheating and commission of the indicated offences by the accused are duly proved, involving the moral turpitude. 12. The next celebrated contention of learned counsel that as the election petition is pending, therefore, the impugned order is illegal, is again not tenable. The pendency of election petition is altogether a different issue, while the removal on the ground of conviction of the petitioner on a criminal charge is entirely different matter. The learned counsel did not point out any legal provision to support his submission that once the election petition is pending, then the proceedings of removal of the petitioner cannot be initiated against him in this respect. 13. What is not disputed here is that petitioner was convicted for serious offences of criminal conspiracy and cheating. Show cause notice was duly issued to him, to which, he filed the reply on 7.7.2010. He was provided number of opportunities of personal hearing on 28.10.2010, 6.12.2010, 15.12.2010, 6.1.2011, 14.1.2011, 27.1.2011 and finally on 31.1.2011. The petitioner did not avail any opportunity of personal hearing. Respondent No.1, after taking into consideration the totality of the facts and circumstances, removed the petitioner from the membership of Municipal Councilor, by means of impugned order (Annexure Civil Writ Petition No.9807 of 2011 -5- P15), which was notified, vide notification dated 7.4.2011, which, in substance, is (paras 3 & 4) as under:- “Whereas, obviously, the charges for which Sh.Namdev has been convicted by the Court, involves moral turpitude and have direct bearing on the conduct of the person concerned. Now, as provided under section 16 sub. Section (1)(a), the State Government may by Notification remove any member of the committee, if he has been convicted of any such offence or subjected by a criminal court to any such order as implies in the opinion of the State Government, a defect of character, which unfits him to be a member, is liable to be removed from the membership. Whereas, in view of the position explained above Sh.Namdev has been convicted by a Court for an offence under section 120 B read with Section 420 and 468 of IPC and section 13(1) read with 13(2) of PC Act, 1988, which certainly constitutes a defect of Character. Therefore, a speaking order dated 24.3.2011 was issued vide Govt. Letter No.6/95/09-4LG3/729-735, dated 25.3.2011 for his removal. As such, Sh.Namdev, member (under suspension) is hereby removed from the membership of the Municipal Council Kapurthala.” 14. Meaning thereby, respondent No.1 has rightly issued show cause notice, provided adequate opportunities to the petitioner, after following the due procedure and after considering the entire material on record, removed him, by way of impugned order. Such order containing valid reasons, cannot possibly be interfered with, while exercising the writ jurisdiction of this Court, unless and until, the same is illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order (Annexure P15) deserves to be and is hereby maintained in the obtaining circumstances of the case. 15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 16. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. (Mehinder Singh Sullar) 30.5.2011 Judge AS Whether to be referred to reporter?Yes/No