Punjab-Haryana High Court
Parvinder Singh Bajaj vs State Of Punjab And Ors. on 2 February, 1995
Equivalent citations: (1995)110PLR573, 1995 A I H C 3644
JUDGMENT
Jawahar Lal Gupta and K.K. Srivastava, JJ.
1. The Petitioner was elected as a Member of the Municipal Committee, Sangrur in September, 1992 and as its President on October 27, 1992. He was given a show cause notice dated December 28, 1993 calling upon him to explain as to why he should not be removed from the office of the President and the membership of the Municipal Committee. He submitted his explanation vide letter dated January 26, 1994. It was found to be 'unsatisfactory". Consequently, vide order dated April 19, 1994, he was ordered to be removed from the office of the President and membership of the Municipal committee. Aggrieved by the order, the petitioner has filed the present writ petition. He avers that the action has been taken on account of purely 'political considerations' and that in fact the order has been passed arbitrarily without the grant of any proper opportunity.
2. In response to the notice of motion issued by the Bench, three written statements have been filed on behalf of the respondents. On behalf of Respondent Nos. 1 and 2, viz. State of Punjab and Dr. Kewal Krishan, Minister, Local Government, a written statement has been filed by Mr. Mandeep Singh, Joint Secretary to Government of Punjab, Department of Local Government. Respondent Nos. 3 and 4 have filed separate written statements, in which the allegations of malafide have been denied.
3. In the written statement filed on behalf of Respondent Nos. 1 and 2, it has been averred that various complaints had been received from the member of the Municipal Council to the effect that the petitioner had committed "irregularities and illegalities amounting to misuse of powers as President by squandering the municipal funds to the tune of Rs. 7,29,000/- which were enquired into by Chief Vigilance Officer of the Directorate of Local Government, Punjab, and he found that all the allegations levelled in the complaints against the petitioner were correct." It has been further stated that the works executed by the petitioner were "not of such nature which involved or likely to involve extensive damage to property or damage to human life (or) grave inconvenience to the public. No public interest was involved in completing and undertaking the work of structing and widening of roads leading to the new building of Deputy Commissioner Office and, therefore, petitioner misused his powers in according sanction on 9.2.1993 under the provisions of Section 35 of the Act.....According to Section 35, every such action taken under Section 35 has to be reported to the Committee at its next meeting, but the petitioner did not bother to bring this fact to the notice of the Council in seven meetings held on....Therefore, this constituted a grave irregularity which was wholly wrong and erroneous and he violated the law and the rules flagrantly and with impunity." On these premises, the respondents maintain that the impugned orders have been validly passed. As for the allegation that the order had been passed on account of political considerations, it has been averred that "the order of removal of the petitioner have been passed purely on account of merits of the case and there is no political consideration whatsoever and Respondent No. 2 was competent authority (sic) applied his mind to the fact and circumstances of the case and on being satisfied that the case is made out for removal of the petitioner passed the order strictly in accordance with law. "No affidavit has been filed by Respondent No. 2.
4. Learned counsel for the parties have been heard. Mr. Ashok Aggarwal, learned counsel for the petitioner has submitted that the action has been taken on account of purely 'political considerations' and not on the merits of the controversy. He has further submitted that Respondents Nos. 1 and 2 did not apply their mind to the facts of the case and the explanation given by the petitioner was rejected even without affording him an effective opportunity to prove that the charges were false and baseless. The claim made on behalf of the petitioner has been controverted by Mr. Beri, learned Deputy Advocate General, appearing for the respondents.
5. A perusal of the show cause notice issued to the petitioner shows that the petitioner was alleged to have executed four works. One the these related to the construction of a bridge and the other three to the broadening of roads. It was alleged to have been done without giving any information to the Committee and furnishing the details of work estimates with financial break-up. It was further alleged that the approval for execution of works could not have been given under Section 35 as these were not of an emergent nature. The petitioner's failure to place the matter before the Committee in the various meetings held from February 27, 1993 to May 12, 1993 was also appointed out. In his reply to the show cause notice, the petitioner had categorically stated that the Deputy Commissioner had given him verbal orders for the execution of the four works mentioned in the show cause notice. The work estimates had been approved by the Assistant Municipal Engineer and the copy of the order had been forwarded to the Director, Local Government, the Deputy Commissioner, Sangrur, Regional Deputy Director, Local Government, Patiala on February 11, 1993. He had also stated that the works "needed immediate execution in the public interest as the Deputy Commissioner had specifically ordered me verbally to get these works executed on priority basis as his office was to be shifted to the new building and its inauguration was to be done urgently." With regard to the question of not placing the matter before the members of the Committee, it was pointed out that the papers had to be placed before him by the office for inclusion in the agenda and since the officials had not done so, the matter could not be placed before the Committee for its approval. It was also pointed out by him that the Deputy Commissioner had confirmed his action in writing vide his letter dated January 26, 1994. On consideration of the matter, the Government found that the explanation given by the petitioner was unsatisfactory. As a result, the impugned order was passed.
6. At the hearing, Mr. Beri has placed before us the original file. On a perusal of the record, we find that the explanation given by the petitioner was processed. On April, 5 1994 the Secretary, Local Government had observed as under :-
"I have carefully gone through this case and I find that there is no charge of any material irregularity against Sh. Parvinder Bajaj, President, Municipal Committee, Sangrur, except that he got four works done under Section 35 of the Municipal Act without getting the approval of the Committee. In his reply, he has stated that he got these works done under the directions of the Deputy Commissioner, Sangrur and keeping in view the urgency of completing these works in public interest. This act has been confirmed by the D.C., Sangrur on 26.1.1994.
In view of the foregoing, the show cause notice issued to the President may be withdrawn."
7. Thereafter, the matter was placed before the Minister, Respondent No. 2. On April 6, 1994, he ordered as under:-
"I have gone through this case and find that Sh. Parvinder Bajaj, President, Municipal Committee, Sangrur has acted beyond his powers under Section 35 of the Punjab Municipal Act, 1911. As has been reported in para 3 at Np/13 by ASLG/DLG that the works were not of such nature which involved or likely to involve extensive damage to property or danger to human life or grave inconvenience to the public. It is, therefore, proved that the public, It is, therefore, proved that the President has misused his powers under Section 35. Section 35 further says that every such action shall be reported to the Committee at its next meeting. The President issued orders for the execution of these works on 11.2.93 and the next meeting was on 12.2.93. What to speak of bringing this matter before the meeting in its next meeting on 12.2.93, he did not bother to bring this matter in the next 7 meetings of the Municipal Committee. This is a grave irregularity on his part and he has violated the rules. Section 35 says that the President can get certain works done in certain circumstances which are to be reported to the Committee in its next meeting and there is no mention that these are to be got done under the directions of D. C. and to be confirmed by him (D.C.). From the above and as held out by ASLG/DLG in his note at Np/13 (para 4), the allegations against the President are clearly proved. I do not agree with ASLG/SLG that the allegations are not proved under Section 16(1)(2). I would like to bring to his notice the commentary of Section 16 at Page 139 of the book "Doabia's- The Punjab Municipal Act, 1911 with Rules."
It reads as under:-
"29. Abuse as President removal as member, was. justified - Whereas the President of a Committee misused his position it was held that his removal as member and not only from Presidentship is justified."
2. It is, therefore, clear that where the President of a Committee has misused his position, his removal as member and not only from Presidentship is justified."
8. On a perusal of the pleadings of the parties and the record it is clear to us that the petitioner had executed the four works at the asking of the Deputy commissioner. In view of this factual position, the Secretary to the Government had observed that the show cause notice deserved to be withdrawn. Respondent No. 2, however, did not consider this aspect of the matter and observed that the petitioner had acted beyond his powers Under Section 35 and misused his position as a result of which he deserved to be removed not only from the Presidentship, but also from the membership. In our view, the Minister erred in ignoring a vital aspect of the matter. The Secretary in has note had clearly observed that according to the petitioner, he had got the works done under the directions of the Deputy Commissioner and keeping in view of the urgency of the matter. According to the Secretary, this fact had been confirmed by the Deputy Commissioner, Sangrur on January 26, 1994. Furthermore, we have even the documentary evidence in support of this fact. The approval of the Deputy Commissioner, as conveyed to the Executive Officer,-is annexed as Annexure P.2 with the writ petition. In this situation, it could not be said that the petitioner had acted voluntarily on his own or that he had exceeded his powers and misused his position. In fact, it deserves notice that there is not even a suggestion that he had done it for any extraneous consideration. In such a situation, we are satisfied that the action in removing him was not fair.
9. In the written statement filed on behalf of Respondent Nos.l and 2, it has been inter-alia averred that the petitioner had squandered the municipal funds to the tune of Rs. 7.29,000/-. It has also been pointed out that an enquiry was held into the matter by the Chief Vigilance Officer of the Directorate of Local Government, Punjab into the complaints against the petitioner. Mr Beri, learned counsel for the respondents, has conceded before us that neither the complaints, as received by the Government, nor the enquiry report which had been submitted by the Chief Vigilance Officer were ever conveyed to the petitioner. His comments thereon were never obtained. Presumably, on the basis of this evidence, it has been averred in paragraph 2 of the written statement that the petitioner "did not perform his duty of the Presidentship of the Council with utmost honesty and to the entire satisfaction of the general public as well as higher authority." In our view, the action of the respondents in relying on this evidence without its communication to the petitioner, was not only arbitrary, but even violative of the basic principles of the natural justice. The petitioner is alleged to have acted improperly without the grant of any opportunity. In this behalf, it deserves notice that even in the show cause notice issued to the petitioner no dishonest motives have been imputed to him (the petitioner). If the respondents wanted to draw such an inference against him on the basis of any material whatsoever or if Respondent No. 2 had any lurking suspicion in his mind regarding the petitioner's honesty, it was only fair and proper that the material should have been put to him. This was not done. In this situation, we are of the opinion that the action of the respondents was violative of the principles of natural justice.
10. It deserves mention that the petitioner was occupying an elected office. The Panchayats and Municipal Committees are constitutionally recognised instruments of Local Self Government. Persons elected by the people cannot be removed from their respective offices as unceremoniously as has been done in the instant case. Keeping in view the facts and circumstances of this case and more particularly the fact that Respondent No. 2 has not filed an affidavit, the allegation of the petitioner that the action was borne out of political considerations cannot be said to be wholly unfounded.
11. In view of the above, we are satisfied that the impugned order dated April 19, 1994 (Annexure P.5) by which the petitioner was removed from the office of Presidentship as well as the membership of the Committee cannot be sustained. It is quashed. The Petitioner is restored to his original position. Mr Beri has pointed out that during the pendency of the petition, a fresh election had taken place. In our view, the election is governed by the principle of Lis-pendis. In any case, the fresh election had taken place on account of the impugned order. Once the impugned order has gone, the election cannot survive. As a necessary consequence, the status quo ante, as it existed prior to April 19,1994, has to be restored.
12. The petition is allowed. However, in the circumstances of the case, there will no order as to costs.