Punjab-Haryana High Court
Smt. Sudesh Kumari vs Smt. Mukesh And Others on 13 August, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
L.P.A. No. 1146 of 2012 ( O&M )
DATE OF DECISION : 13.08.2012
Smt. Sudesh Kumari
.... APPELLANT
Versus
Smt. Mukesh and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr. Puneet Bali, Senior Advocate, with
Mr. Vibhav Jain, Advocate,
for the appellant.
***
SATISH KUMAR MITTAL, J.
This Letters Patent Appeal has been directed against the judgment dated 1.8.2012, passed by the learned Single Judge, whereby Civil Writ Petition No. 2 of 2012 filed by Smt. Mukesh (respondent No.1 herein), challenging the order dated 30.12.2011 (Annexure P-1) passed by the Director General, Urban Local Bodies, Haryana, in exercise of the powers conferred upon him under Section 14A (1) (a) of the Haryana Municipal Act, 1973 (hereinafter referred to as `the Act') suspending her from the office of Councilor, Ward No. 26, Municipal Council, Jind, was allowed; and her suspension order was held to be illegal, without jurisdiction, arbitrary and malafide. It was held by the learned Single Judge that the LPA No. 1146 of 2012 ( O&M ) -2- suspension order was passed in hurry while violating the principles of natural justice and apparently was with an aim to deny right to respondent No.1 to participate in the move of no confidence motion against the appellant, who was President of Municipal Council, Jind.
We have heard learned counsel for the appellant and gone through the impugned order.
The brief facts of the case are that Municipal Council, Jind, consists of 31 Councilors. On 20.5.2010, respondent No.1 was elected unopposed as Municipal Councilor from Ward No. 26. Subsequently, the appellant was elected as President of Municipal Council, Jind. On 17.11.2011, respondent No.1 along with 22 other Municipal Councilors moved a requisition to the Deputy Commissioner for convening a meeting of the Municipal Council to consider no confidence motion against the President. As per Section 21 (2) of the Act read with Rule 72-A of the Haryana Municipal Election Rules, 1978, Deputy Commissioner, Jind, authorised the Sub Divisional Officer (Civil), Jind, to convene the said meeting for considering no confidence motion against the President in accordance with rules. Thereupon, the Sub Divisional Officer (Civil) wrote letters to all the members of the Municipal Council regarding convening of the meeting on 14.12.2011 at 11 AM in the meeting room of the office of Municipal Council, Jind. However, on 14.12.2011, the Deputy Commissioner postponed the said meeting to 3.1.2012 at 11 AM on the LPA No. 1146 of 2012 ( O&M ) -3- ground that the Sub Divisional Officer (Civil) was having some back problem. The communication in this regard was given to the members of the Municipal Council on 19.12.2011.
It was the case of respondent No.1 that the said meeting was illegally postponed in order to help the appellant and to pressurise the Municipal Councilors not to support the no confidence motion and in order to win over them. It was further case of respondent No.1 that in the meanwhile, the official respondents in connivance with the appellant obtained a false complaint from one Jagdish to the effect that in the last elections, respondent No.1 had casted her vote at two places, therefore, legal action be taken against her. On that complaint, the Deputy Commissioner issued notice to respondent No.1 on 23.12.2011, requiring her to remain present before the Additional Deputy Commissioner, Jind (respondent No.5 herein) on 25.12.2011. On that day, respondent No.1 did not appear before respondent No.5 and the matter was adjourned to 27.12.2011. On that day also, respondent No.1 did not appear before respondent No.5 as she fell ill and remained admitted in the Hospital till 28.12.2011. It was the case of respondent No.1 that the said complaint was absolutely false and there was no occasion for her to cast vote at two different places, as she was elected as unopposed. It was further her case that without holding proper enquiry and without waiting for response from her, respondent No.5 submitted ex-parte report against her. On the basis of the said ex-parte enquiry report, vide LPA No. 1146 of 2012 ( O&M ) -4- order dated 30.12.2011 passed under Section 14A (1) (a) of the Act, she was placed under suspension.
Instead of filing appeal against the said order, respondent No.1 challenged the said order by filing writ petition alleging that the said order was passed wholly without jurisdiction, while exercising power in most unreasonable, unfair and malafide manner. The writ petition was listed for hearing before the learned Single Judge on 2.1.2012, in which notice of motion was issued and respondent No.1 was allowed to cast her vote in the proceedings for no confidence, which was to be held on 3.1.2012, but her vote was ordered to be kept in a sealed cover. It is pertinent to mention here that on 3.1.2012, meeting of the Municipal Councilors was held, in which 21 members voted in favour of no confidence motion against the appellant and the vote of respondent No.1 was kept in sealed cover.
Ultimately, vide judgment dated 1.8.2012, passed by the learned Single Judge, the writ petition was allowed and the official respondents were directed to declare the result of no confidence motion after counting vote of respondent No.1, which was kept in sealed cover, and consequential action be followed.
Against the said judgment, the instant Letters Patent Appeal has been filed.
Learned counsel for the appellant has vehemently argued that the learned Single Judge has erred in law while holding that suspension of LPA No. 1146 of 2012 ( O&M ) -5- respondent No.1 by the Director General Urban Local Bodies, Haryana, in exercise of the powers conferred upon him under Section 14A (1) (a) of the Act was without jurisdiction and beyond the scope of the said provision. Learned counsel argued that under Section 14A (1) of the Act, the Director can suspend any member of a committee in two situations. Firstly, under clause (a) of this provision, if a case against such member in respect of any criminal offence is under investigation, enquiry or trial, and if in the opinion of the Director, the charge made or proceedings taken against such member, are likely to embarrass him in the discharge of his duties, such member can be suspended. Under this clause, the Director may suspend the member of a committee even without providing him opportunity of hearing. Secondly, under clause (b) of Section 14A (1) of the Act, a member of the committee can be suspended during the course of an enquiry initiated against him for his removal under Section 14 of the Act. But such suspension order can be passed only after giving him a reasonable opportunity of being heard.
Learned counsel for the appellant argued that in the ex-parte enquiry conducted by respondent No.5, it was found that respondent No.1 had voted at two different places, therefore, according to learned counsel, she has committed an offence under Section 13C of the Act for making false declaration. Learned counsel contends that since the ex-parte enquiry was conducted, finding of which disclose the offence committed by respondent No.1 under Section 13C of the Act, therefore, it should be taken that a case LPA No. 1146 of 2012 ( O&M ) -6- in respect of a criminal offence is under enquiry and the Director was justified to suspend respondent No.1 under clause (a) of Section 14A (1) of the Act. The main thrash of the learned counsel is that the word `enquiry' used in clause (a) of the aforesaid provision also includes preliminary enquiry to be conducted by the authority for reaching to the conclusion that an offence under Section 13C of the Act has been committed or not. Learned counsel argued that even if on the basis of the said enquiry, no complaint was filed or no FIR was lodged, the Director was competent enough to suspend the elected member of the Municipal Council under clause (a) of Section 14A (1) of the Act.
It has not been disputed before us that in the present case, neither any criminal case is pending against respondent No.1 nor any FIR for a criminal offence has been registered or is pending against her. It is also admitted position that no criminal complaint has been filed or pending against respondent No.1 in a criminal court for committing offence under Section 13C of the Act.
After hearing learned counsel for the appellant on this issue in detail, we are of the opinion that the submission made by learned counsel for the appellant is not tenable at all. Section 14 of the Act gives powers to the State Government to remove a member of the committee on the grounds mentioned therein. It is undisputed position that no enquiry was initiated for removal of respondent No.1 under Section 14A of the Act. Section 14A of LPA No. 1146 of 2012 ( O&M ) -7- the Act further provides power for suspension of members of the committee. This provision reads as under :-
14A. Suspension of members - (1) The Director may, suspend any member of a committee where -
(a) a case against him in respect of any criminal offence is under investigation, enquiry or trial, if in the opinion of the Director the charge made or proceedings taken against him, are likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of a character;
(b) during the course of an enquiry for any of the reasons for which he can be removed under section 14, after giving him a reasonable opportunity of being heard. (2) Any member suspended under sub-section (1) shall not take part in any act or proceedings of the committee during the period of suspension and shall hand over the records, money or any other property of the committee in his possession or under his control -
(i) to president/vice-president, as the case may be;
(ii) in case both the president and vice-president are suspended, to such person as the Director may appoint in this behalf;
Provided that the suspension period of a member shall not exceed six months from the date of issuance of suspension order except in criminal cases involving moral turpitude.
(3) Any person aggrieved by an order passed under sub-
section (1) may, within a period of thirty days from the communication of the order, prefer an appeal to the Government.
LPA No. 1146 of 2012 ( O&M ) -8-A perusal of the aforesaid provision clearly reveals that a member of a committee can be suspended in two situations : Firstly, (a) where a case against him in respect of any criminal offence is under investigation, enquiry or trial, and if in the opinion of the Director the charge made or proceedings taken against such member, are likely to embarrass him in the discharge of his duties or involves moral turpitude or defect of a character. Secondly (b) during the course of an enquiry for his removal under Section 14 of the Act. Such suspension under clause (b) can be passed only after giving him a reasonable opportunity of being heard.
Undisputedly, in the present case, respondent No.1 was not suspended under clause (b). She was suspended by the Director under clause (a) of Section 14A (1) of the Act. The said order of suspension was passed on the basis of enquiry report submitted by respondent No.5. It is also admitted position that before placing respondent No.1 under suspension, she was not given an opportunity of hearing. The words `investigation, enquiry or trial' used in clause (a) mean that the investigation, enquiry or trial in respect of any criminal offence is pending against a member of the committee. All the three words have been derived from the Code of Criminal Procedure and they cannot be given different meaning. Learned counsel argued that the words `investigation' and `trial' pertain to a case pending in a criminal case or before the police, but word `enquiry' has to be given a different meaning and it includes any preliminary LPA No. 1146 of 2012 ( O&M ) -9- enquiry conducted by the authorities in order to find out whether an election offence was committed by a member or not, and during the pendency of such enquiry, a member of the committee can be placed under suspension. In our opinion, such interpretation cannot be given to clause (a) of Section 14A (1) of the Act. The word `inquiry' has been defined under Section 2 (g) of the Code of Criminal Procedure, 1973, which means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. For example, under Section 202 of the Code, a Magistrate can postpone the issue of process against accused and inquire into the case himself. Similarly, under Section 192 of the Code, any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. Under Section 176 of the Code, the Magistrate may hold an inquiry into the cause of death etc. The word `investigation' has also been defined under Section 2 (h) of the Code, which includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf. In Section 177 of the Code, the words `inquiry' and `trial' have been used together. Therefore, in our opinion, under clause (a) of Section 14A (1) of the Act, suspension of a member of a committee can be ordered where a case against him in respect of any criminal offence is under investigation, enquiry or trial conducted under the Code of Criminal Procedure. The preliminary enquiry LPA No. 1146 of 2012 ( O&M ) -10- conducted by respondent No.5 with regard to casting of vote by respondent No.1 at two different places cannot be taken as a proceeding under the Code of Criminal Procedure. Pertaining to that allegation, neither an FIR has been registered nor a private complaint has been filed by any person. Thus, for suspending a member of the committee under clause (a) of Section 14A (1) of the Act, an investigation, enquiry or trial conducted under the Code of Criminal Procedure must be pending before the police or the court.
However, in our opinion, a member of the committee cannot be suspended under Section 14 (1) (a) of the Act, merely on the basis of the preliminary enquiry conducted by the Deputy Commissioner or his authorised officer under Section 13C of the Act to ascertain whether such member has committed offence or not.
Section 13C of the Act defines the offence of making false declaration and the punishment thereof. It reads as under :
13C. Making false declaration :- If any person makes in connection with -
(a) the preparation, revision or correction of an electoral roll; or
(b) the inclusion or exclusion of any entry in or from an electoral roll, a statement or declaration in writing, which is false and which he either knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both.
If any person has committed such an offence, legal action is to be taken LPA No. 1146 of 2012 ( O&M ) -11- against him by filing criminal complaint before the competent criminal court. The Executive authorities have no power to punish the person who is alleged to have committed an offence under Section 13C of the Act. In the present case, no private complaint was filed or pending before the criminal court, therefore, merely because allegations against respondent No.1 are of criminal nature, the Director is not competent to pass the order of suspension during the pendency of preliminary enquiry with regard to such complaint. Such interpretation will provide the Executive with vast powers to place an elected member under suspension without notice, and without there being any pendency of a criminal case, enquiry or investigation against him.
Thus, in our view, the learned Single Judge has rightly considered this aspect of the matter, while observing as under :
"The line of submission pursued before me by and on behalf of the respondents is that the Director has rightly invoked his power under Section 14A(1)(a) and to substantiate the same, the counsel would submit that the word "enquiry" used in this section is the enquiry which can be other than these `enquiries' as envisaged for a criminal charge. I can not accept this to be a correct line from the plain reading of the section, when it is examined in the light of Section 14A(1)(b). Once it is not pleaded before me that the suspension has followed when the enquiry was for an allegation for which the petitioner could be removed from the office of Councillor, it is not appropriate for me to consider the case from this angle.LPA No. 1146 of 2012 ( O&M ) -12-
May be because of this difficulty arising from the impugned order, a subtle attempt appears to have been made by counsel by making reference to Section 13-C. Efforts seem to be to urge that a criminal offence is made out against the petitioner under this section. With this aim, certain documents have also been placed on record with the additional affidavit filed by respondent No.7. This method may not help the cause of respondents. As per records, there is no offence registered against the petitioner. There can not be any investigation or trial for any criminal offence. Enquiry, if any, for criminal offence has to be under Cr.P.C. For this reason only, the respondents have perused the line of that enquiry under this clause is any enquiry other than criminal charge or allegation. This line is found to be against the scheme of this Act. Accordingly, this subtle attempt to bring the case within Section 14A(1)(a) on the ground is again an unsuccessful attempt to justify suspension."
Learned counsel for the appellant further argued that the learned Single Judge has erred while entertaining the writ petition filed by respondent No.1 without availing alternative remedy of appeal against the impugned order, and while holding that the official respondents have passed the order of suspension against respondent No.1 in an illegal, arbitrary and malafide manner. This submission of learned counsel is also devoid of any merit. We are in agreement with the observation made by the learned Single Judge that the facts and circumstances of this case would tend to show that the entire exercise in suspending respondent No.1 was done with an object LPA No. 1146 of 2012 ( O&M ) -13- to defeat the no confidence motion which was going to be passed against the appellant. The order of suspension was passed in hurry while violating the principles of natural justice and apparently was with an aim to deny right to respondent No.1 to participate in the move of no confidence motion against the appellant. The learned Single Judge has discussed this aspect of the matter in detail and we do not find any illegality in the order passed by the learned Single Judge.
No merit. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
August 13, 2012 ( INDERJIT SINGH )
ndj JUDGE