Case: Tarlochan Development Sharma Vs. State of Punjab

"3......... The Executive Officer vide his letter No. 6416 dated 5.6.1998 have informed that the Municipal Council, had invited the tenders for purchase of the Fogging Machine as per the rules and after completion of all the formalities Fogging Machines were brought and tested for many days in different wards of Municipal Council but you asked the Executive Officer that payment of this machine should not be made. Due to this reason the working of Municipal Council have been obstructed. Whereas to purchase this machine the funds from the District Planning Board have been received by the Municipal Council. But Deputy Commissioner, Patiala had also ordered the Municipal Council, to purchase this Fogging Machine. This action of yours is against the interest of the Municipal Council4. Therefore, for the charges stated above it is proposed that action be taken against you under Section 22, 16(1)(e) and (2) of Punjab Municipal Act, 1911 and to remove you from the post of President/post of Member of the Municipal Council, Rajpura and to restrain you from contesting the election of Council for next five years." *2. The appellant gave a detailed reply. In so far as the abovesaid third charge is concerned, the appellant submitted as under :"........ that the aforesaid fogging machine was delivered to the Municipal Council Rajpura for testing purposes and the said machine was worked out in various wards of the Municipal Council. Upon using and testing the said machine, it was found that the said machine has certain inherent defects and was not working properly. Because of the same defects and on the advice of the Municipal Council, the said machine was returned to the supplier and, therefore, there was no question of making any payment of the aforesaid machine. It is apparent that the Executive Officer Shri Ashok Kumar wanted a defective machine to be purchased by the Municipal Council for his personal gains. By any stretch of imagination the undersigned was not expected to approve the purchase of a defective machine and make the payment thereof causing a big loss to the Municipal Council. Under the circumstances, there is no question of any loss having been caused to the Municipal Council or any such act done by the undersigned whcih si against the interest of the Municipal Council. All the actions of the undersigned as a President of the Municipal Council have been taken in the best interest of the general public and in the interest of the Municipal Council and public exchequer. Thed report submitted by the Executive Officer of the Municipal Council Shri Ashok Kumar against the undersigned, through various communications dated 5.8.1998 and 3.8.1998 are out of personal vengeance and is a calculated move made by him to harm the undersigned and to seek his removal so that the aforesaid Shri Ashok Kumar may carry out his evil designs with a free hand and without any obstruction." *3. The appellant was called for a personal hearing before the Principal Secretary, Local Government. The appellant availed the opportunity of personal hearing and apart from making oral submissions, also submitted a written memo of his submissions reiterating, though by elaborating, the stand earlier taken by him. He also set out in very many details, how his Presidentship of the Municipality in the background of the political party to which he belonged, was an eyesore to the political party and the politicians in power and the bureaucracy having joined hands with the politicians by submitting to their dictates, acting together they were determined to drive him out of the office. By order dated 1.10.1999 issued by Shri N.K. Arora, Principal Secretary to Government of Punjab, Department of Local Government, the appellant was informed that although there was doubt in allegations No. 1 and 2 but allegation No. 3 was substantiated and, therefore, the appellant was being removal from the Presidentship of the Municipal Council, Rajpura. The relevant part of the order reads as under :"I have gone through the facts of the case and have given due consideration to the claims and contentions advanced by the notices on the one hand and the State representative on the other. Even if full benefit of doubt is given to the noticee in regard to allegation No. 1 and 2, it is abundantly clear that in regard to allegation No. 3, he has utterly failed to clarify his position. INstead, deep and distinct shadows of doubt and suspicion hand over his head as he has tried to mislead the Government and had patently resorted to falsehood. he clearly mentions in his reply that he ha found the fogging machine defective on its official report and had thus ordered its return. There is thus no question for payment of the machine. Facts, however, tell a different story. During the trial run, the m, machines was found to be okay. The Executive Officer had prepared the cheque and signed the same on 20.11.1998. For over two months, the cheque was not presented to the bank. Eventually, it was presented on 22.1.1999 and the payment was made. In all fairness, the President should have not distorted the facts and got himself sunk into highly embarrassing situation. One fails to understand why in his reply, he states that the machine was returned and no payment was to be made. One also fails to understand why he kept the cheque in his custody for over 2 months. Circumstantial evidence, therefore, goes deeply against him. It appears to be a case of abuse of power and the conduct of the President is quite unbecoming. According, Shri Tarlochan Dev Sharma is hereby removed from the Presidentship of the Municipal Council Rajpura in exercise of powers vested in me under Section 22 of the Punjab Municipal Act, 1911." *4. The appellant filed a writ petition before the High Court of Punjab and Haryana putting in issue the abovesaid order. A Division Bench of the High Court formed an opinion that the High Court could not test the validity of the impugned order sitting like an appellate court merely because there could be a possibly of arriving at a conclusion different from the one carried at by the competent authority, and, therefore, the impugned order was not liable to be interfered with. The writ petition was directed to be dismissed. Feeling aggrieved by the impugned judgment of the High Court, the appellant has filed this appeal by special leave which leave has bee granted

Reasoning: That a returned candidate must hold and enjoy the office and discharge other duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cost on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers"(of President), inter alia. This is the phrase with which we are concerned in the present case10. The expression `abuse of powers in the context and setting in which it has been used cannot mean use of power which may paper to be simply unreasonable of 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 Councilor unworthy of holding the office of President. In as such as an abuse of power would entail adverse civil consequences, the expression has to be narrowly constructed. Yet again, the expression employed in Section 2 is `abuse of his powers or habitual failure to perform his duties. The use of pluralpowers, 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 intended the occupant of an elective office, seated by popular verdict, to be shown exist for a single innocuous action or error of decisionIt is clear that the facts constituting gravamen of the charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relled on in the show cause notice as a ground providing reason for the proposal removal cannot be relied upon as furnishing basis for the order of removal. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking decision must apply its mind also to be explanation furnished by the person proceeded against and this must appear from the order passed under Section 22For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had `obstructed the working of Municipal Council or was `against the interest of Council. We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one is the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an Appellate Court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based ont grounds. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action13. Although the appellant tried to suggest a case of mala fides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellants election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also be cause adequate material has not been brought on record nd placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary, who initiated the action, heard the appellant and passed the impugned order of removal dated 1.10.1999Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor is weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. yet we have no hesitation in holding that the impugned order betrays uttern of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the let what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. WE have at that and say no more on this issue