Manipur High Court
The State Manipur vs Thongam Shyamo Singh on 16 September, 2021
Equivalent citations: AIRONLINE 2021 MPR 84
Author: A. Bimol Singh
Bench: Mv Muralidaran, Ahanthem Bimol Singh
KABORAM Digitally signed by KABORAMBAM
SAPANA CHANU
DN: c=IN, o=High court of manipur,
BAM
ou=HIGH COURT OF MANIPUR,
pseudonym=fac69f56cfb99637988
d4ed4d28335819d52f60cbfb17e1e
086c00bb91513a07,
SAPANA postalCode=795002, st=MANIPUR,
serialNumber=0328258e1d925a01c
24115d784d05b91f8b833880e581a
CHANU
92f723fa8ae8ec1012,
cn=KABORAMBAM SAPANA CHANU
Date: 2021.09.16 15:33:04 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018
1. The State Manipur, represented by the Commissioner/Secretary,
MAHUD, Old Secretariat- South Block, Government of Manipur,
P.O. & P.S Imphal and Imphal West District, Manipur, Pin-
795001.
2. The Under Secretary, MAHUD, Old Secretariat - South Block,
Government of Manipur, P.O. & P.S. Imphal and Imphal West
District, Manipur, Pin-795001.
... Appellants.
-Versus -
1. Thongam Shyamo Singh, aged about 55 years, S/o (Late) Th.
Tombi Singh, resident of ThoubalAthokpam Leikai, Thoubal, P.O.
& P.S. Thoubal, Manipur, Pin - 795138.
2. The Thoubal Municipal Council represented by its Executive
Officer, P.O. & P.S. Thoubal, Thoubal District, Manipur-795138.
3. WaikhomIbochouba Singh, aged about 50 years, S/o. (L) W.
Gouramani Singh, Councillor, Ward No. 9 of Thoubal Municipal
Council, a resident of ThoubalPakhangkhongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
4. Thingujam Ongbi Sangita Devi, aged about 33 years, W/o Th.
Arun Singh, Councillor, Ward No. 14 of Thoubal Municipal
Council, a resident of ThoubalKiyam, P.O. & P.S. Thoubal,
Thoubal District, Manipur-795138.
5. Saphura, aged about 27 years, W/o Md. KhambaCouncillor,
Ward No. 17 of Thoubal Municipal Council, a resident of
Phoudem Manning Leikai, P.O. & P.S. Thoubal, Thoubal District,
Manipur-795138.
6. AkoijamChandrajini Devi, aged about 44 years, W/o. W. Dina
Singh, Councillor, Ward No. 4 of Thoubal Municipal Council, a
resident of Thoubal Awang Leikai, P.O. & P.S. Thoubal, Thoubal
District, Maniipur-795138.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 1
7. Waikhom Ongbi Sanathoi Devi, aged about 50 years, W/o W.
Amujao Singh, Councillor, Ward No. 8 of Thoubal Municipal
Council, a resident of ThoubalPakhangkhongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
8. Ningthoujam Shanti Devi, aged about 55 years, W/o N.
Dhananjoy Singh, Councillor, Ward No. 15 of Thoubal Municipal
Council, a resident of KiyamSiphaiHeibongLeirak, P.O. & P.S.
Thoubal, Thoubal District, Manipur-795138.
9. PuyamJiteswar Singh, aged about 39 years, S/o (Late) P. Shamu
Singh, Councillor, Ward No. 3 of Thoubal Municipal Council, a
resident of ThoubalKshetri Leikai, P.O. & P.S. Thoubal, Thoubal
District, Manipur-795138.
10. N. Ravi Singh, aged about 39 years, S/o M. Gokul Singh,
Councillor, Ward No. 18 of Thoubal Municipal Council, a resident
of ThoubalKhunou, P.O. & P.S. Thoubal, Thoubal District,
Manipur-795138.
.....Respondents
B E F O R E HON'BLE MR. JUSTICE MV MURALIDARAN HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH For the Appellant : Mr. M. Rarry, Ld. Addl. AG For the respondent : Mr. Th. Mahira, Advocate for respondent No.1;
Mr. G.A. Romendro Sharma,
Advocate for respondent No. 3, 5 6 &
9.
Date of Hearing : 02.12.2020.
Date of Order : 16.09.2021.
JUDGMET &ORDER
(CAV)
(A. Bimol Singh, J)
[1] Heard Mr. M. Rarry, Ld. Addl. AG appearing for the appellant, Mr. Th.
Mahira, Ld. Counsel appearing for Respondent No. 1 and Mr. G.A. Romendro Sharma, Ld. Counsel appearing for the Respondents No. 3, 5, 6 & 9. W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 2 [2] This appeal is preferred against the judgment and order dated
26.11.2019 passed by the Ld. Single Judge in W.P. (C) No. 1049 of 2018. The only issue to be considered in the present writ appeal is the validity and legality of the impugned order dated 12.11.2018 passed by the Secretary (MAHUD), Government of Manipur, for disqualifying the writ petitioner/Respondent No. 1 herein from being a Councilor of Ward No. 5 of Thoubal Municipal Council.
[3] The relevant facts of the present case in a nutshell is that the Respondent No. 1 was elected as Councilor of Ward No. 5 of Thoubal Municipal Council and thereafter he was elected as the Chairperson of the Thoubal Municipal Council - vide notification dated 09.02.2016. [4] While the Respondent No. 1 was functioning as the Chairperson of the Thoubal Municipal Council (herein referred to as the Council for short) a requisition dated 16.11.2017 was submitted by 7 (seven) Councilors of the council to the Executive Officer of the council requesting for convening a special meeting to consider the charges of misconduct alleged against the Respondent No. 1 and to move the Government for removal of the Respondent No. 1 from being a member of the council under Section 29 of the Manipur Municipalities Act 1994 on the charges of misconduct alleged against the Respondent No. 1 in the said requisition and for disqualifying the Respondent No. 1 under Section 59 of the Manipur Municipalities Act 1994 (herein referred to as the Act for short) on the basis of allegations for his involvement in contract works of the council without Government approval. W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 3 The said requisition was forwarded to the Commissioner (MAHUD), Government of Manipur by the Executive Officer of the Council under a letter dated 01.12.2017.
[5] On receipt of the said requisition, the Under Secretary (MAHUD) wrote a letter dated 27.12.2017 to the Executive Officer of the Council requesting to submit a detail report with supporting documents on the claim and allegations to the Government for a thorough examination.
[6] In response to the aforesaid letter of the Government, the Executive Officer of the council submitted a detailed parawise report with supporting documents in connection with the charges and allegations made against the Respondent No. 1 under his letter dated 08.01.2018 stating that the charges and allegations made against the Respondent No. 1 were without any basis. [7] During this period, another Councilor of Thoubal Municipal Council filed a writ petition registered as W.P (C) No. 181 of 2017 in this High Court, praying for issuing appropriate directions to the Deputy Commissioner, Thoubal, to exercise his power under Section 202 of the Act and also to dispose of the representation dated 20.02.2017 submitted by the aforesaid councilor. The said writ petition was disposed of by this Court by an order dated 18.07.2017 directing the Deputy Commissioner, Thoubal to consider and dispose of the said representation dated 20.02.2017 within a period of 2 (two) weeks from the date of passing of the order by this Court and to issue an appropriate order in respect thereof, - vide order dated 18.07.2017 passed by this Court in W.P. (C) No. 181 of 2017.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 4 [8] In purported compliance of the order of this Court dated 18.07.2017
passed in W.P. (C) No. 181 of 2017, a five members District Level Enquiry Committee headed by the Deputy Commissioner, Thoubal was constituted to enquire into the allegations made against the Respondent No. 1. The said enquiry committee enquired into the following 3 (three) allegations made against the Respondent No. 1:-
(i) the direct/indirect involvement of Shri Thongam Shyamo Singh in the contract work of entry toll tax pursuant to tender notice No. 55/TBL/TVL/MUC/ETT/20-15 dated 3rd May, 2016;
(ii) the direct/indirect involvement of Shri Thongam Shyamo Singh in the contract purchase of Bolero;
(iii) the non-payment of honorarium for 20 days of February, 2016.
[9] The fivemember District Level Committee, after due consideration/examination of the enquiry report submitted by the Executive Officer of the council and all connected documents/papers, were satisfied with the enquiry report submitted by the said Executive Officer and recommended to dispose of the aforesaid representation dated 20.02.2017 in the light of the said enquiry report.
[10] Pursuant to the recommendation made by the said District Level Enquiry Committee and the enquiry report submitted by the Executive Officer of the council, the Deputy Commissioner, Thoubal issued an order dated 13.12.2017 disposing of the aforesaid representation dated 20.02.2017 as baseless and devoid of merit.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 5 [11] Subsequently, 9 (nine) councilors including the 7 (seven) councilors, who earlier submitted the requisition letter dated 16.11.2017, submitted another representation to the Commissioner (MAHUD), Government of Manipur reiterating the earlier allegations made by them against the Respondent No.1 and stating that the requisition for disqualification of the Respondent No.1 from the Thoubal Municipal Council submitted to the Executive Officer of the Council was on valid legal grounds. [12] On the basis of the allegations made in the requisition letter dated 16.11.2017 and the representation dated 02.01.2018 submitted by the councilors of the Thoubal Municipal Council and by ignoring the earlier report of the Executive Officer of the Council and the District Level Enquiry Committee, the Secretary (MAHUD), Government of Manipur, issued an order dated 31.01.2018 disqualifying the Respondent No.1 from being a member/councilor of the Thoubal Municipal Council in exercise of the power conferred under Section 58 and 59 of the Act.
[13] Having been aggrieved, the Respondent No.1 filed a writ petition being W.P. (C) No. 90 of 2018 in this Court assailing the order of his disqualification dated 31.01.2018 and in the said writ petition, this Court was pleased to pass an interim order on 02.02.2018 suspending the said order of disqualification dated 31.01.2018. Consequently, the Secretary (MAHUD), Government of Manipur, issued an order dated 13.12.2018 cancelling the order of disqualification dated 31.01.2018.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 6 [14] After cancellation of the earlier disqualification order, the Secretary (MAHUD), Government of Manipur, wrote a letter dated 13.04.2018 to the Deputy Commissioner, Thoubal, requesting to conduct an enquiry under Section 202 of the Act in connectionwith the allegation made against the Respondent No.1 and to submit a report on or before 25.04.2018. [15] Pursuant to the direction of the Government, the Deputy Commissioner, Thoubal, formed a 4 (four) member District Level Enquiry Committee headed by the Deputy Commissioner, Thoubal, and the said Enquiry Committee made a detail enquiry to the allegations made against the respondent No. 1 and submitted a report dated 07.07.2018 wherein, no adverse findings were made against the respondent No. 1. Thereafter, the said Enquiry Report submitted by the District Level Enquiry Committee dated 07.07.2018 was submitted to the Secretary (MAHUD) by the Addl. Deputy Commissioner, Thoubal under a letter dated 09.07.2018. [16] On receiving of the said Enquiry Report dated 07.07.2018, the Under Secretary (MAHUD), Government of Manipur, wrote a letter dated 03.08.2018 to the Executive Officer of the council, enclosing therein a copy of the said Enquiry report and requesting to place the same before a special meeting called specifically for the purpose of removing the respondent No. 1 from the council. Consequently, a notice dated 07.08.2018 was issued by the Executive Officer of the council fixing the date for holding a special meeting on 17.08.2018 which was challenged by the respondent No. 1 by filing W.P. (C) W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 7 No. 740 of 2018 in this court. In the said writ petition, this Court passed an order dated 16.08.2018, directing that the special meeting may be held but the result thereof should not be given effect to without leave of the Court. The said special meeting was held on 21.08.2018 and thereafter, the Executive Officer informed the Government about it on 30.08.2018.
Subsequently, the Under Secretary (MAHUD), Government of Manipur,wrote a letter dated 27.10.2018, informing the Executive Officer of the council that the earlier Government letter dated 03.08.2018 for convening the special meeting had been withdrawn and thereafter, requesting the Executive Officer to take necessary action for cancelling the meeting notice dated 07.08.2018.
[17] After ordering for cancellation of the special meeting held for removing the respondent No. 1 from the council, the Under Secretary (MAHUD), Government of Manipur, wrote a letter dated 29.10.2018 to the respondent No. 1 enclosing therein, the Enquiry Report dated 07.07.2018 of the District Level Enquiry Committee and directing the respondent No. 1 to show cause as to why action should not be taken against him under the provisions of section 29 of the Act. In response to the said letter, the respondent No. 1 submitted his reply dated 05.11.2018 and after considering it, the link Secretary (MAHUD), in exercise of the power conferred Under Section 29 (2) (d) read with section 58 and 59 of the Act issued an order dated 12.11.2018, disqualifying the respondent No. 1 from being a W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 8 councilorwith immediate effect. Having been aggrieved, the respondent No. 1 filed the connected writ petition challenging the said disqualification order date 12.11.2018.
[18] After considering the rival submissions of the parties, the learned Single Judge passed a very reasoned Judgment and order and allowed the writ petition by quashing and setting aside the impugned order dated 12.11.2018. The relevant portions of the said Judgment and order are reproduced here under:-
"[11] It may be noted that the petitioner was disqualified by the State Government in exercise of power conferred upon it under Section 29 (2) (d) read with Section 58 and 59 of the Act, 1994. The grounds on which the order is disqualification was issued, are the ones mentioned therein. If the order is examined minutely and in particular, paragraph 8 thereof, it is seen that they are all allegations relating to misconducts against the petitioner. In other words, the order of disqualification was based on the report of the Committee dated 07.07.2018 submitted by the office of the Deputy Commissioner on 09.07.2018. In order to attract the provisions of Section 29 (2) (d),it becomes necessary for the State Government to establish that the Councillor has a share or interest in any contract, lease, sale or purchase of land or any agreement of the same or any kind whatsoever to which the Council is a party or shall hold any office of profit under it. On perusal of the report of the Committee dated 07.07.2018 submitted by the office of the Deputy Commissioner as mentioned above, it is further seen that there is no any finding that the petitioner has a share or interest in any contract, lease, sale or purchase of land or any agreement of the same or any W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 9 kind whatsoever to which the Council is a party or shall hold any office of profit under it. In other words, the findings arrived at by the Committee in its report, are only in relation to misconducts which have nothing to do withthe action to be taken by the State Government under Section 29 (2). The establishment of misconduct is one of the conditions required to be fulfilled for purpose of removal of a Councillor under Section 29 (1) but not under Section 29 (2) (d). The expression "indicating direct or indirect involvement and vested interest in the award of work to the concerned bidder"as stated in the impugned order dated 12.11.2018 at paragraph 8 (e) is not there at all in the report of the Committee submitted by the office of the Deputy Commissioner. The same expression is found in the order dated 31.01.2018 issued by the Secretary (MAHUD), Government of Manipur which was withdrawn vide its order dated 13.02.2018 after the same being suspended by this Court. In other words, there is no any specific finding that the petitioner has a share or interest in the award of contract for collection of toll tax. The only thing that can be noted by this Court, is that pursuant to the resolution of the council, the petitioner issued an order dated 09.06.2017 extending the period of contract for a year. The contention of the learned counsel appearing for the respondents may be true to some extent that the petitioner should not have issued the said order, as it is the domain of the Executive Officer but that itself could not be a ground for removal. The Councillor being an elected person, cannot be removed by the State Government on the basis of presumption and in other words, in the absence of materials to prove that he has a share or interest in the contract, lease, sale etc. the provisions of Section 29 (2) (d) ought not to have been invoked by the State Government. In fact, the Committee did not examine the issue whether the petitioner had any share or interest in the award of contract for collection of toll tax, although such an issue W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 10 was considered by the earlier and similar Committee, in its meeting held on 13.12.2017, which found it to be baseless and devoid of merit. Considering the submissions made by the counsel appearing for the parties, this Court is of the opinion that the submission of the counsel appearing for the petitioner has merit and substance and therefore, the impugned order is bad in law. The only thing that can be done by the State Government in the facts and circumstances of the present case, is to proceed with the provisions of Section 58 which reads as under:
"58.Liability for loss, waste or misapplication of funds and property - Every Chairperson, Vice-Chairperson, Councillor, officer or employees of a Nagar Panchayat or of a Council including a Government servant whose services are lent to the Nagar Panchayat or to the Council, shall be liable for the loss, waste or misapplication of any money or other property owned by or vested in the Nagar Panchayat or the Council, if such loss, waste or misapplicationis a direct consequence of any illegal act, omission, neglect or misconduct on his part; and a suit for compensation may be instituted against him in any Court of competent jurisdiction by the Nagar Panchayat or by the Council, as the case may be."
If the State Government is of the prima facie view, on the basis of the materials available with it, that if loss, waste or the misappropriation is a consequence of any illegal act, omission, neglect or misconduct on the part of the petitioner, it is open to it to proceed in accordance with the provisions of this Act, in the sense that the Council may be directed to institute a suit for compensation against him in any Court of competent jurisdiction."
"[12.1] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed and consequently, the order dated 12.11.2018 issued by the link Secretary (MAHUD), W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 11 Government of Manipur is quashed and set aside with no order as to costs."
[19] At the outset, Mr. M. Rarry, learned Addl. AG, Manipur appearing for the appellant draw the attention of this Court to the provisions of section 29 (2) (d) and section 59 of the Act and submitted that under the said provisions the State Government is empowered to remove any councilor, if the councilorhas, within the meaning of section 59 knowingly acquired or continued to hold without the permission in writing of the State Government, directly or indirectly or as partner, any share or interest in any contract or employment with, by or on behalf, of the municipality. Section 29 (2) (d) and section 59 of the Act reads as under:-
"29.(1) The State Government may remove any elected Councillor on the ground of his misconduct in the discharge of his duties if the removal is recommended by a resolution of the municipality passed at a special meeting called for the purpose and supported by a majority of the total number of Councillors of the municipality and by a majority of not less than two-third of Councillors present and voting in such a meeting.
(2) The State Government may remove any Councillor-
(a) if he ceases to reside within the municipality continuously for a period of twelve months; or
(b) if he has been declared by the State Government by notification to have violated his oath or affirmation of allegiance; or W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 12
(c) if he becomes disqualified by or under any law for the time being in force for the purpose of elections to the Manipur Legislative Assembly; or
(d) if he has, within the meaning of section 59 knowingly acquired or continued to hold without the permission in writing of the State Government, directly or indirectly or as a partner, any share or interest in any contract or employment with, by or on behalf, of the municipality; or
(e) if he is in arrears of any kind of dues to the municipality for more than six months after a bill or a notice has been duly served on him.
Provided that no Councillor shall be removed under sub-section (1) or sub-section (2) unless he has been given an opportunity of being heard.
"59. No Counillor of a Nagar Panchayat or of a Council shall have without the written permission of the State Government, directly or indirectly, any share or interest in any contract, lease sale or purchase of land or any agreement for the same or any kind whatsoever to which the Nagar Panchayat or Council is a party, or shall hold any office of profit under it, and if any Councillor shall have such share or interest or shall hold such office he shall thereby become disqualified to continue in office as a Councillor:
Provide that a Councillor shall not be so disqualified or liable by reason -
(a) of having a share or interest in -
(i) a contract entered into between the Nagar Panchayat or the Council, as the case may be, and any incorporated or registered company or any registered Co-operative Society of which such Councillor is a member or shareholder; or W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 13
(ii) any agreement for the loan of money, or any security for the payment of money only; or
(iii) any newspaper in which any advertisement relating to the affairs of the municipality is inserted; or
(iv) of his being professionally engaged on behalf of the Nagar Panchayat or the Council, as the case may be, as a legal or medical practitioner and receiving a fee for services rendered in his professional capacity."
[20] The learned Addl. AG submitted that after due consideration and examination of the Enquiry Report dated 07.07.2018 of the District Level Enquiry Committee along with supporting documents furnished by the Deputy Commissioner, Thoubal and Executive Officer of the council, the State Government was pleased to order the disqualification of the respondent No. 1 as councilor of the Thoubal Municipal Councilin exercise of the power conferred under section 29 (2) (d) read with section 58 and 59 of the Act. It has also been submitted that the findings in the said Enquiry Report dated 07.07.2018 were sufficient enough to come to the conclusion that the petitioner has a share or interest in the award of contract work given in favour of Shri Sushilkumar Singh for collection of Toll tax and also about the misconduct of the respondent No. 1 as Chairperson of the council and that it is not for the High court, in exercise of its power under article 226 of the constitution of India, to sit as an appellate authority, over the said findings of W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 14 the committee and action taken by the Government on the basis of such Enquiry Report.
In support of his contention, the learned Addl. A.G. relied on the Judgment of the Apex Court in the case of "Haryana Financial Corporation vs. Jagdamba Oil Mills" reported in (2002) 3 SCC 496 (para 10-13).The learned Addl. AG also rely on the Judgment an order dated 03.07.2019 passed by this Court in W.P. (C) No. 829 of 2016 (paragraph 26-
32).
[21] It has also been submitted by the learned Addl. AG that the learned Single Judge passed the impugned Judgment and order without considering the pleadings filed on behalf of the State Government and the arguments advanced on the basis of such pleadings.
The learned Addl. A.G.further submitted that the State respondents in their pleadings/counter affidavit enclosed a copy of the letter/documents written by the Executive Officer of the council, wherein, the name of one ThangjamKoba Singh had been clearly mentioned and submission had been advanced before the learned Single Judge that the said ThangamKoba Singh is the paternal nephew of the respondent No. 1 and had been collecting toll taxes on behalf of the contractor viz., Shri Sushilkumar Singh and that the said contractor had admittedly not paid the collection of the toll tax to the council.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 15 It has also been submitted that instead of cancelling the contract awarded to Shri Sushilkumar Singh, the respondent No.1 had illegally awarded fresh contract to the said contractor in violation of the Municipality Act and hence, the case of direct or indirect share in the said contract/tender of collecting toll tax had been clearly made out and accordingly, there is no illegality in issuing the impugned order dated 12.11.2018, ordering the disqualification of the respondent No. 1 from being a councilor.
Shri GA Romendro Sharma, learned counsel appearing for the respondents No. 3, 5, 6 & 9 endorsed and adopted the arguments and submissions advanced by the learned Addl. A.G. [22] Mr. Th. Mahira, the learned counsel appearing for the respondent No. 1 submitted that a 5 (five) members Enquiry Committee headed by the Deputy Commissioner, Thoubal, conducted an enquiry to the allegations made by some councilors against the respondent No. 1 demanding for his removal.
After making a detail enquiry, the said enquiry committee submitted a reportexonerating the respondent No. 1 from all the allegations made against him and on the basis of the said Enquiry Report, the Deputy Commissioner, Thoubal, issued an order dated 13.12.2017 disposing of the allegations as baseless and devoid of merit. Thereafter, when the State Government issued an order dated 31.01.2018 ordering the disqualification of the respondent No. 1 as councilor of Thoubal municipal council, the W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 16 respondent No. 1 assailed the said order by filing a writ petition in this Court and in the said writ petition, this Court passed an order on 02.02.2018, suspending the said order dated 31.01.2018.Thereafter, the State Government issued another order dated 13.02.2018, cancelling the earlier disqualification order dated 31.01.2018.
[23] Subsequently, the State Government under its letter dated 13.01.2018 directed the Deputy Commissioner, Thoubal to cause a detail enquiry in respect of 5 (five) issues of misconduct allegedly committed by the respondent No. 1 and to submit a report on or before 25.04.2018 for further necessary action. Pursuant to the said direction of the Government, the Deputy Commissioner, Thoubal formed a District Level Enquiry Committee consisting of 4 (four) members headed by the Deputy Commissioner, Thoubal and the said committee after holding a detail enquiry submitted a report dated 07.07.2018.In the said report submitted by the District Level Enquiry Committee, no adverse finding has been made against the respondent No. 1 and in fact the respondent No. 1 was exonerated from all allegations made against him.
[24] It has been submitted by the learned counsel appearing for the respondent No. 1 that instead of rejecting the requisition submitted by the councilorsfor removal of the respondent No. 1, the Government directed the Executive Officer of the council to call a special meeting specifically for the W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 17 purpose of removing the respondent No. 1 and to place the findings of the said Enquiry Committee before the special meeting.
However, by a letter dated 27.10.218, the Government informed the Executive Officer of the council that its earlier letter dated 03.08.2018 for convening a special meeting has been withdrawn and directing the Executive Officer to take necessary action for cancellation of the said meeting notice. [25] The learned counsel for the respondent No. 1 further submitted that instead of declaring the allegations made against the private respondents as devoid of merit, the State Government with malafide intention issued a letter dated 29.10.2018, addressed to the respondent No. 1, directing him to show cause as to why appropriate action should not be taken against him under the provisions of section 29 of the Act, in the light of the observations made in the Enquiry Report dated 07.07.2018.
In response to the said show cause letter, the petitioner submitted his reply in time, however, without at all considering the reports submitted by two enquiry committees as well as the reply of the petitioner and without any application of mind and in a very arbitrary and mala-fide manner, the State Government issued the impugned order dated 12.11.2018, ordering the disqualification of the respondent No. 1 from being acouncilor of Thoubal Municipal council.
[26] It has been vehemently submitted by the learned counsel for the respondent No. 1 that in the two enquiry reports submitted by the Enquiry W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 18 Committees, the respondent No. 1 had been exonerated of all allegations made against him and no adverse findings had been given against the respondent No. 1 that he acquired or continued to hold without permission of the State Government directly or indirectly or as a partner, any share or interest in any contract or employment with, by or on behalf, of the council. Accordingly, it has been submitted that the impugned order disqualifying the respondent No. 1 has been issued by the Government arbitrarily and in colourable exercise of power andthe said order cannot stand in the eye of law.
[27] Under Section 29 (1) of the Act, the State Government can remove any elected councilor on the ground of his misconduct in the discharge of his duties if the removal is recommended by a resolution passed a majority of not less than two-thirdof councilors present and voting in a special meeting called for the purpose. Under Sections 29 (2) (d) of the Act, the State Government can remove any councilor if he has acquired or continued to hold without the permission in writing of the State Government, directly or indirectly or as a partner, any share or interest in any contract or employment with, by or on behalf, of the municipality. The provisions under Sub-section (1) and (2) of Section 29 of the Act has different and distinct applicability. In the present case, the respondent No. 1 had been disqualified by the Government by issuing the impugned order dated 12.11.2018 in exercise of the power Under Sections 29 (2) (d) read with section 59 of the Act.
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 19 [28] On examination of the first requisition letter dated 16.11.2017 submitted by 8 (eight) councilors for disqualifying the respondent No. 1 and also the second supplementary letter dated 02.01.2018 submitted by 9 (nine) councilors in support of the first requisition letter, except for certain allegations of misconduct committed by the respondent No. 1 in discharge of his duties as Chairman of the council, we do not find any specific allegations being made against the respondent No. 1 in the aforesaid 2 requisition letters that the respondent No. 1 has knowingly acquired or continued to hold without the permission in writing of the State Government, directly or indirectly or as a partner, any share or interest in any contract or employment of the council.
[29] In the report dated 08.01.2018 submitted by the Executive Officer of the council to the Government in connection with the allegations made in the requisition letters for disqualification the respondent No. 1, no adverse findings were given against the respondent No. 1.
An enquiry was held by a 5 (five) members Enquiry Committee on 13.12.2017 to find out whether the respondent no. 1 has direct/indirect involvement in the contract work of entry tall tax and whether he has direct/indirect involvement in the purchase of 2 (two) Bolero of the council and submitted a report. In the said report no adverse findings were given against the respondent No. 1 and in fact, on the basis of the said enquiry report, the Deputy Commissioner, Thoubal issued an order dated 13.12.2017 W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 20 declaring that the allegations made against the respondent No. 1 are baseless and devoid of merit.
[30] The State Government by a letter dated 13.04.2018 directed the Deputy Commissioner, Thoubal to hold a detail enquiry against the respondent No. 1 in connection with 5 (five) issues of misconduct allegedly committed by the respondent No. 1 including the misconduct relating to the award of contract work for collection of Tall tax of the council.
Pursuant to the direction of the State Government, the Deputy Commissioner formed a 4 (four) members District Level Enquiry Committee headed by the Deputy Commissioner, Thoubal and the said Enquiry Committee conducted a detail enquiry against the respondent No. 1 in connection with the 5 (five) issues of allege misconduct conducted by the respondent No. 1 and submitted a detail report dated 07.07.2018. In the said enquiry report also no adverse findings were given against the respondent No. 1 and in fact there was not even a single whisper in the said enquiry report that the respondent No. 1 has knowingly acquired or continued to hold without the permission in writing of the State Government, directly or indirectly or as a partner, any share or interest in any contract or employment of the council.
[31] Even though, no adverse findings were given in any of the enquiry reports submitted in connection with the enquiry held against the respondent No. 1 in connection with the allegations made against him, the State W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 21 Government, purportedly after due consideration and examination of the enquiry reports along with supporting documents furnished by the Deputy commissioner, Thoubal and the Executive Officer of the council, quite surprisingly, gave a finding that there are certain points indicating direct or indirect involvement and vested interest in the award of work to the concerned bidder without any written permission of the State Government and thereafter, disqualified the respondent No. 1 as councilor by issuing the impugned order dated 12.11.2018.
[32] According to us, there is no material available on record to arrive at the conclusion that the respondent No. 1 has acquired or continued to hold without permission in writing of the State Government, directly or indirectly or as a partner, any share or interest in any contract or employment of the council so as to attract the provisions of section 29 (2) (d) of the Act against the Respondent No. 1.
In our considered view, the State Government issued the impugned order and disqualified the respondent No. 1 without any basis or material and without any application of mind and in a very arbitrary manner. [33] With regard to the contentions advanced by Mr. M. Rarry, learned counsel appearing for the appellant that the learned Single Judge passed the impugned Judgment and order without considering the specific pleadings filed by the State Government and arguments advanced on the basis of such pleadings,we have examined the relevant paragraphs and pleadings made on W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 22 behalf of the State Government and we find that those pleadings are new facts and grounds which were never placed or brought to the notice of either the Enquiry Committee or before the Secretary (MAHUD), Government of Manipur, who passed the impugned order. We are of the considered view that such new pleadings or grounds have been raised by the State Government in their affidavits to validate and to fill up the lacuna in issuing the impugned order and accordingly, we cannot take into consideration such new grounds or reasons while examining the legality and validity of the impugned order.
It is a well settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order and such order cannot be construed in the light of explanation or fresh reasons subsequently given in the form of affidavit or otherwise. In this regard, we may gainfully refer to the Judgment rendered by a constituted bench of 5 (five) Judges of the Apex Court in the case of "Mohinder Singh Gill vs. Chief Election Commissioner", New Delhi reported in (1978) 1 SCC 405 wherein, the Hon'ble Apex Court held in Paragraph 8 as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.Otherwise,an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by W.A. No. 46 of 2020 Ref: W.P. (C) No. 1049 of 2018 Page 23 additionalgrounds later brought out. We may here draw attention to the observations of Bose, J in "GordhandasBhanji."
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those whom they are addressed and must be construed objectively with reference to the language use in order itself."
Orders are not like old wine becoming better as theygrow older."
The said principle of law had been followed consistently by the Apex Court in many subsequent Judgments.
[36] In view of our findings and reasons given hereinabove, we do not find any ground for interfering with the impugned Judgment and order dated 26.11.2019 passed by the learned Single Judge and accordingly, we dismissed the present appeal as being devoid of merit, however, without any cost.
JUDGE JUDGE
FR/NRF
Sapana
W.A. No. 46 of 2020
Ref: W.P. (C) No. 1049 of 2018 Page 24