Daulat Ram vs The State of Punjab and Another

P.C. Pandit, J.—These two writ petitions (Civil Writs Nos. 1090 and 1263 of 1965) are concluded by a Bench decision of this Court in Kishori Lal Batra Vs. The Punjab State and Another, Civil Writ No. 1090 of 1935 under Article 226 of the Constitution has been filed by Daulat Ram and is directed against the order dated 21st April, i965 passed by the Governor of the Punjab removing him from the post of the Executive Officer of Municipal Committee, Kotkapura, in Bhatinda District.

The facts are not in dispute. In February, 1963 the petitioner was appointed an Executive Officer of the Kotkapura Municipal Committee by the Punjab Government in exercise of the powers vested in them u/s 3(1) of the Patiala Municipal (Executive Officers) Act, 2003 Bk (hereinafter referred to as the Act) for a period of five years with effect from the date he took over charge at Rs. 210/- per mensem in the time-scale of Rs. 210-10-250/260-10-300/315-15-450 plus usual allowances admissible under the rules. He assumed charge on 7th February 1963 and continued working as an Executive Officer of this Municipal Committee, when on 21st April, 1965 the Governor of the Punjab in exercise of the powers conferred by sub-section (4) of section 3 of the Act removed him from this post with immediate effect without serving any charge-sheet and holding an enquiry against him. On that very date, however, by virtue of section 3(1) of the Act; the petitioner was appointed the Executive Officer of the Municipal Committee, Rajpura in Patiala District, for the period up to 6th February, 1968 with immediate effect on his existing pay in the same pay-scale. That led to the filing of the present writ petition on 24th April, 1965.

Two contentions have been raised by the learned counsel for the petitioner-

(1) that the petitioner was appointed Executive Officer of the Municipal Committee, Kct Kapura for a fixed period of five years. He, therefore, could not have been removed before the expiry of the said period u/s 3(4) of the Act. Such a removal amounted to punishment and no punishment could have been inflicted without serving a charge-sheet and holding a proper enquiry; and

(2) that the orders of removal and appointment on the same date virtually amounted to his transfer from Kot Kapura to Rajpura Municipal Committee, The Government had no such power of transfer under the Act. He had been appointed Executive Officer of Kot Kapura Municipal Committee only and he could not be sent to another Municipal Committee in the same capacity.

In order to appreciate the first contention, it is necessary to refer to section 3 of the Patiala Municipal (Executive Officers) Act (6 of 2003 Bk.) under which his appointment was made and later on he was removed from office. The relevant portion of this section reads thus-

S. 3.-(I) The Government of the State may appoint any person as Executive Officer of the Committee for a renewable period not exceeding 5 years and he would be classed in the grade of Under Secretaries in respect of pay and grade.

(2) When a member of the Committee is appointed Executive Officer, he shall on his appointment cease to be a member of the Committee.

(3) The remuneration of such Executive Officer shall be payable by the Committee from the Municipal fund.

(4) The Executive Officer may at any time be suspended or removed from office by the Government of the State suo motu or on the recommendation of the Committee if at its meeting convened to consider the question of his suspension or removal, not less then five-eighth of the total number of members constituting the Committee for the time being, vote in favour of his suspension or removal, and if the Executive Officer is suspended the Government of the State shall appoint some person to officiate as Executive Officer.

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The petitioner was appointed under sub-section (1) and later on removed under sub-section (4) of this section. A reading of the provisions of subsection (4) would show that the Government was authorized to remove the Executive Officer from office suo molu at any time. There is nothing in this Act which lays down that before such removal a certain procedure has to be followed, inasmuch as the petitioner has to be given a show-cause notice or that he is entitled to any enquiry. Learned counsel for the petitioner contended that under the provisions of Article 311 of the Constitution or, at any rate, under the principles of natural justice a show-cause notice should have been given to the petitioner and enquiry thereafter held before he was removed from office. This matter has been set at rest by a Bench of this Court in Kizhari Lal Batra''s case (supra) where it was held that an Executive Officer appointed under the Punjab Municipal (Executive Officer) Act, 1931, was neither a servant of the Government nor a Municipal servant appointed under the provisions of the Punjab Municipal Act, but he was a creature of the statute under which he had been appointed and it was not permissible to go outside that statute or the rules framed hereunder for any matters governing his appointment, punishment, suspension or removal. The procedure for appointment of the Executive Officer was laid down in that Act and no rules made under the Punjab Municipal Act could affect that procedure or applied to any action taken u/s 3(7) of the Act. It was further laid down in that authority that in the absence of a contractual or statutory provision to the contrary, a right vested in the master to terminate the services of a servant at any time without giving him any reasons for the same and the same rule applied to officers of local authorities, who could be removed at any time without notice or hearing. That right could be circumscribed only by a contract or a statutory provisions to the contrary. The removal of an Executive Officer appealed under the Punjab Municipal (Executive Officer) Act, 1931, without giving him on opportunity to be heard was not illegal or actionable. It may be mentioned that the provisions of the Punjab Municipal (Executive Officer) Act, 1931, in this respect are similar to the provisions of the Patiala Municipal (Executive Officers) Act, 2003 Bk. Section 3(7) of the Punjab Act is almost in similar terms as section 3(4) of the Patiala Act It may be mentioned that the learned counsel for the petitioner submitted that this Bench decision did not lay down correct law. Sitting singly, however, I am bound by the same. In another Bench decision of this Court in Mangal Sain Vs. The State of Punjab and Another, it was observed that the expression "civil post under a State" did not include the post held by persons in the service of any local authority within the territory of the State. An Executive Officer appointed under the Punjab Municipal (Executive Officer) Act, 1931 did not hold a civil post under a State within the meaning of Article 311 of the Constitution, although the Government might have a hand in his appointment or dismissal under the provisions of sub sections (7) and (9) of section 3 of the Act. Following the Bench decision in Kishori Lal Batra''s case, (supra) I would repel this contention.

There is no merit in the second contention as well. It is true that under the provisions of the Act no power is given to the Government to transfer the Executive Officer of one Municipal Committee to another Committee. The case of the Government, however, is that they had not transferred the petitioner to Rajpura Municipal Committee. That was, according to then, a fresh appointment If the petitioner does not wish to go there, he can refuse to do so. Learned counsel for the petitioner admitted before me that his client was not bound to accept the appointment at Rajpura and that though he had taken over charge there for the time being, he would, if circumstances did not suit him, resign from there. In my view, the moment we come to the conclusion that the order of the petitioner''s removal from the Kot Kapara Municipal Committee was valid in law, the other contention raised by the petitioner would not arise, because, as already mentioned above, the petitioner was under no legal obligation to accept the appointment at Rajpura.

It may be stated that the petitioner raised some argument on the basis of section 14(2) of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance (XVI of 2005 Bk.). It is needless to examine this point in any detail, because the learned counsel could not show that the provisions of this Ordinance applied to the petitioner''s case or in any way benefited him.

The result is that this writ petition fails and is dismissed, but with no order as to costs.

In Civil Writ No. 1263 of 1985, the petitioner, Ajit Kumar, was appointed the Executive Officer of Municipal Committee, Rajpura, District Patiala, on 2lst July, 1961 for a period of two years On 24th June, 1963 u/s 3(1) of the Act, the Punjab Government further extended his term of office for a period of three years on the existing terms and conditions with effect from 22nd July, 1965, on which date his previous tenure was expiring. On 21st April, 1965, by virtue of the powers conferred u/s 3(4) of the Act, the Punjab Government removed him from the said office and on that very day appointed him the Executive Officer of the Municipal Committee at Kot Kapura in District Bhatinda, for a period up to 21st July 1963 on his existing pay in his old pay-scale. In order to challenge his order of removal from the office of Executive officer of the Rajpura Municipal Committee, he filed the present writ petition on 10th May, 1965.

Learned counsel for the petitioner has raised the same contentions which have been advanced by the learned counsel for the petitioner in Civil Writ No. 1090 of 1965.

For the reasons given above, I would repel these contentions, with the result that this petition also fails and is dismissal but with no order as to costs.