TARLOCHAN DEV SHARMA v. STATE OF PUNJAB AND ORS

Citation: [2001] 3 S.C.R. 1146

Court: Supreme Court of India

Bench: A.S. ANAND, R.C. LAHOTI, K.G. BALAKRISHNAN

Judgment text

TARLOCHAN DEV SHARMA v. ,.... __ '· STATE OF PUNJAB AND ORS. JULY 25, 2001 [DR. A. S. ANAND, C. J. , R. C. LAHOTI AND K. G. BALAKRISHNAN, JJ. ) Municipalities: - Punjab Municipal Act, 1911: Section 22. President-Removal of-On ground of 'abuse ofhis powers '-Payment for a defective fogging machine withheld by President-Consequently, President removed for 'obstructing the working of Municipal Council'- Validity of-Held: A President is supposed to act in the best interests ofthe Municipality-Decision to withhold payment may be an erroneous or unjust decision-But this does n . :.. _ expression has to be narrowly construed. Yet again, the expression employed in Section 22 is 'abuse of his powers or habitual failure to perform his duties'. The use of plural - powers, and the setting of the expression in the framing ofSection 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 invol~ng dishonesty ofintention is 'abuse of powers' within the meaning of Section 22 of the Act. The legislature could not have intended the occupa~t of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision. [1156-B-E] '• M. Narayanan Naimbiar v. State ofKerala, AIR (1963) SC 1116, relied on. Justice G. P. Sin__g'1_: "Principles ofStatutory Interpretation ", 7th Edn. (1999), pp. 258-259, re~rred 'to. ~ 3. One of the rE~quirements of (he principles of natural justiee, as incorporated in the se·cond proviso to Section 22, is that the reasons for the proposed removal havt~ to be communicatedto the person proceeded against.

The purpose of such communication is to enable him to furnish an explanation of his conduct or his act or omission, which is likely to be construed as an abuse of power. It is clear that the facts constituting gravamen of the charge have to be communicated. It follows as a ne~essary corollary th~refrom that what has not been communicated or not relied on in the show cause notice ,~ as a ground providing reason for the proposed removal cannot be relied upon as furnishing the 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 mf! et and, therefore, he must be apprised of the exact content of the abuse of power attributed to him: The authority taking the decision must apply its nnind also to the explanation furnished by the person proceeded against and 1this must appear fro~ the order passed .. _ under Section 22. {1156-F-H; 1157·•AI r ' )-- 4.

A President is supposed to act in the best interests of the Muni~! pali1;y, · which he is heading. In spite of fo~:ging machine worth lakhs having been found by the Executive Officer to lbe okay hi its trial run, if the Ptesldent T. D. SHARMA v. STATE 1149 was informed of the machine having certain inherent defects, there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of abuse of his powers. If anyone suffered by the 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 the appellant had 'obstructed the working of Municipal Council' or was 'against the interest ofcouncil'. 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 in the show cause notice, of which the appellant was not even made aware of let alone provided an opportunity to offer his explanation, but also the allegations made against the appellant did not evenprimafacie make out case of abuse of powers of the President. (1157-F-H; 1158-A-C) 5.

In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. (1159-A-C) Anirudsinhji Jadeja, (1995] 5 SCC 302 and Purtabpur Company Ltd. , AIR (1970) SC 1896, relied on.

Effectiveness of Bureaucracy, the Indian Journal of Public Administration, April-June 2000, p. 165, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889 of 2000. From the Judgment and Order dated 15. 10. 1999 ofthe Punjab & Haryana High Court in CWP No. 14703/99. A. K. Panda and S. K. Pabby for Prem Malhotra for the Appellant. ~ Rajeev Sharma, Vinod Shukla, A. Mariarputham, Ms. Kavita Wadia, Ms. Pratibha Singh and Maninder Singh for the Respondents. The Judgment of the Court was delivered by . R. C. LAHOTI, J. The appellant was elected a Councilor of Rajpura Municipal Council in January, 1998. In the month of April, 1998, he was elected as President of the Municipality. He had held the office hardly for a period of four months when he was served with a notice dated 19. 8.

1998 issued by the Principal Secretary, Department of Local Government, State of Punjab requiring him to show cause why he be not removed from the post of President and of member of the Municipal Council and also why he be not restrained from contesting elections of the Municipal Council for the next five years. The notice levelled three charges against the appellant. The first two charges are redundant in as ~uch as the same have been found not 1 substantiated. and hence not acted upon. The third charge only needs to be dealt with on which alone is founded the order of removal from Presidentship which was impugned by the appellant by filing a writ petition before the High Court. Charge no. 3 is extracted from the show cause notice and reproduced hereunder:- "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 ofthe 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 ofyow;s is )against the interest of the Municipal Council. 4.

Therefore, for the charges stated above it is proposed that action tC I be taken against you under Section 22, 16(l)(e) and (2) of Punjab Municipal Act, 1911 and to remove you from the post of President/ post of Member ofthe Municipal Council, Rajpura and to restrain you from contesting the election of Council for next five years. " ,[Underlining by us] 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 ofmaking 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 ofimagination 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 which is 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.

The so called report submitted by the Executive Officer ofthe Municipal Council Shri Ashok Kumar against the undersigned, through various communications dated 5. 8. 1998 and 3. 8. 1998 are out ofpersonal 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. " The appellant was called for a personal hearing on 27. 7. 1999 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 ,Jo.. submitting to their dictates, acting together they were determined to drive him out ofthe office. By order dated 1. 10. 1999 issued by Shri N:K. Arora, Principal Secretary to Government of Punjab, Department of Local Government, the r appellant was informed that although there was doubt in allegations no. 1 and 2 but allegation no. 3 was substanti~ted and therefo~e the appellant was being removed from the presidentship ofthe Municipal Council, Rajpura. The relevant part of the order reads as under:- '·. ,4... ' ·'1'. ' "I have gone through the facts of the case and have given due ' consideration to the claims and contentions advanced by the noticee on the one hand and the State representati_ve on the other. Even if full benefit of doubt is given to the noticee in regard to allegation No. I . .

and 2, it is abundantly clear that in regard to allegatio11: No. 3, he has utterly failed to clarify his position. Instead, deep and distinct shadows of doubt and' suspicio! l hover 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 had found the fogging machine defective on its ~fficial rep'ort and had thus ordered its return. There is thus no . I question for payment of the machine. Facts, however, tell a different i story. During the trial run, the machine was found to be okay. The Executive Officer had prepared the cheque and signed the same on 20. il. 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 ~tates that th~ ~achine was 1 retumed·and no payment was to be·made. One also fails to ~nderstand ....... ~ 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 po~er and the conduct· of the ' . President is quite unbecoming. ,Accor ceeded against under Section 22 ofthe Act has to be made aware of the precise charge which r he i. s required to meet and therefore he must be apprised of the exact content . H of the abuse of power attributed to him. The authority·taking decision must apply its mind also to the explanation furnished by the person proceeded against and this must appear from the order passed under Section 22.

The show cause notice alleged only this much that the Municipal Council had purchased a fogging machine of which payment was to be made but the appellant (as President of the Municipality) instructed the Executive Officer not to make the payment and this resulted in "the working of the Municipal Coul'1cil having been obstructed". The finding arrived at in the impugned order dated 1. 10. 1999 is different. There is no finding arrived at that the working of the Municipal Council was in any manner obstructed by the appellant having instructed the Executive Officer not to make the payment. The specific stand taken by the appellant in his reply was that the machine had certain inherent defects and was not working properly and hence it was on the advice of the Municipal Council that the appellant had desired the payment not to be made. The finding as to abuse of power is based mainly on the fact that the Executive Officer had prepared a cheque and signed the same on 20. 11.

1998 and yet the cheque was not presented to the bank resulting in delayed payment to the supplier of the fogging machine. The impugned order also states that the cheque was kept by the appellant in his custody for over two months. These events are subsequent to the date of the show cause notice, i. e. 19. 8. 1998 as also to the date of appellant's reply i. e. 8. 9. 1998. Thus, briefly stated, the content of abuse of power, as stated in the notice dated 19. 8. 1998 was-asking the Executive Officer not to make payment while the order dated I. I0. 1999 is founded on a subsequent event that in spite of the Executive Officer having prepared and signed the cheque on 20. 11. 1998, the appellant detained the cheque in his custody for about two months resulting payment being delayed and this amounted to abuse of power. There is no finding recorded in the impugned order that the explanation furnished by the appellant was factually incorrect.

A President is supposed to act in the best interests of the Municipality which he is heading. In spite of fogging machine worth lakhs having been found by the Executive Officer to be okay in its trial run, ifthe President was informed ofthe machine having certain inherent defects, there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For 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 ofcouncil'. 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 th~ one in 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 ~as 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 on non-existent grounds. It is vifo~ted by colourable exercise of power and hence liable to be struck down within the well settled D . parameters ofjudicial review of administrative action. Although the appellant tried to suggest a case of malajides and f colourable exercise ofpower by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellant's 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 because adequate material has not been brought on record and 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 l. l 0. 1999. It is interesting to view the present day bureaucrat-politician relationship scenario. A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like AJladin's lamp, it serves die interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy......... The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it. [Effectiveness of Bureaucracy, The Indian Journal of Public Administration, April-June 2000 atp. 165]. ..... .... In the system of Indian Democratic Governance as contemplated by the Constitution.

senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of . ,.. power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior.

In Anirudhsinhji Jadeja, [1995] 5 sec 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this court in The Purtabpur Company Ltd. , AIR (1970) SC 1896, are instructive and apposite. Executive 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 in 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 utter nonapplication 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 least 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 leave at that and say no more on this issue. The appeal is allowed. The judgement of the High Court under appeal is set aside.

The writ petition filed by the appellant stands allowed. The impugned order dated 1. 10. 1999 removing the appellant from the Presidentship of the Municipal Council, Rajpura under Section 22 of the Punjab Municipal A Act, 1911 is hereby quashed and set aside. The appellant shall be entitled to costs quantified at Rs. I0,000 from the State of Punjab, respondent No. I, which has contested the appellant's case throughout. The appellant shall ·stand forthwith reinstated in the office ofthe President ofRajpura Municipality for the rest of his term. B vs. s. Appeal allowed.