Rajinder Singh vs Punjab State and others

H.R. Sodhi, J.—This writ petition is preferred against the order of the State Government as contained in Punjab Government Gazette Extraordinary notification No. 11765 ICII 69/ dated 8th September, 1969, whereby the Governor of the Punjab directed that the Petitioner be removed from the office of Vice-President and from the membership of Municipal Committee, Tankanwali. for his alleged abuse of power as Vice-President and flagrant abuse of his position as a member of the said Committee. A copy of the notification is appended as Annexure ''C'' with the writ petition. The impugned order purports to have been passed under Sections 22 and 16(1) of the Punjab Municipal Act, 1911, (hereinafter called the Act). The Municipal Committee Respondent will hereinafter be described as the Committee.

A meeting of the Committee was held on 28th September, 1968, and the same was presided over by one Shri Balak Nath Vaid. It is alleged that in the course of some discussion over an item on the agenda regarding a licence application with the merits of which we are not concerned some heat was generated and an exchange of personal remarks took place between the Petitioner and a lady member Smt. Suraksha Sood. The Petitioner is said to have given shoe-beating to the lady member and this has been held to amount to misconduct and (sic) abuse of position within the meaning of Sections 22 and I6(I)(e) of the Act. A show-cause notice dated 9th May, 1969 (Annexure ''A''), was issued to the Petitioner by the Secretary to Government, Punjab,, Local Government, and the former was called upon to furnish bis explantion within a period of 21 days from the date of despatch of that letter. The Petitioner submitted a reply on 27th May, 1969, in which he made a grievance that he was not shown the record on which the charges were based nor was he supplied copies of any of the documents by the Deputy Commissioner, Ferozepur, despite repeated requests in writing. On merits the charge levelled against the Petitioner was denied. According to the Petitioner, the true facts were that Smt. Suraksha Sood was in favour of granting a licence to one Shri Dharam Paul whereas the Petitioner opposed her. Smt. Suraksha Sood used insulting language, then took off her chapal (shoe) and tried to throw the same on the Petitioner, but she could not do so as other members of the Committee intervened and held har arm. It was emphatically, denied by the Petitioner that he ever gave shoe-beating to Smt. Suraksha Sood and his case was that the boot was on the other leg and that it was Smt. Suraksha Sood who assaulted him with a shoe. It was further stated by the Petitioner that after the exchange of words between them, the meeting continued peacefully and business fixed for that meeting was transacted The Petitioner in his explanation, referred to the joint report of the Public Grievance Officer and Deputy Superintendent of Police both of whom had in fact found Smt. Suraksha Sood responsible for the incident and clearly exonerated the Petitioner of the false charge made against him holding that the behaviour of the lady member was more objectionable. The plea of the Petitioner was that the rival group of the Committee which belonged to the opposite political party took Smt. Suraksha Sood to Chandigarh and got a direction issued to the Deputy Commissioner from the higher authorities asking him to hold another enquiry, though the earlier report of the Public Grievance Officer and Deputy Superinten.-dent of Police exonorating him had already been submitted through the Deputy Commissioner. The Petitioner also represented in his explanation that the Deputy Commissioner examined witnesses in his absence and did not afford any opportunity to him to rebut the charges that were being made against him. It is not disputed before me that the Deputy Commissioner, Respondent 4, did make an ex parte enquiry, styled by the Petitioner as second enquiry, and gave a report contrary to what the Public Grievance Officer and the Debuty Superintendent of Police had already said. It is equally conceded that when the first enquiry was made jointly by the Public Grievance Officer and the Deputy Superintendent of Police, both the parties to the dispute, namely, the Petitioner and Smt Suraksha Sood. were associated with the same. The executive file has been shown to me and there is no manner of doubt that the Deputy Commissioner did hold a secret enquiry and examined witnesses, without making the Petitioner aware of the statements made against him in that enquiry or affording him an opportunity to explain, or rebut those statements. It was after receipt of this ex parte report of the Deputy Commissioner that the show-cause notice, Annexue A, was served. The proposal first made was tor removal of the President and his explanation was obtained. The charge against him seems to have been that he kept out of record of proceedings of the meeting the protest lodged by one Shri Munshi Ram, Municipal Commissioner, against misconduct of the Vice-President. When the matter against the President was being processed in the office, the Minister Incharge suggested that action should be taken against the Petitioner as well and that he should not go scot free. It was on this that proceedings against the Petitioner commenced and the show-cause notice issued. The aforesaid report of the Deputy Commissioner formed the basis of the ultimate penal action against the Petitioner.

Mr. J.N. Seth, learned Counsel for the Petitioner, vehemently contends that the Petitioner never misconducted himself by giving a shoe-beating to the lady member and the whole story had been falsely got up mala fide to oust him and the President from membership of the Committee as both of them belonged to the opposite political parties and their outser would give majority to the rival group, Reliance is placed on the assertions as made in para 13 of the writ petition wherein it is stated that on 25th July, 1969, that is, much before the actual order of removal of the Petitioner from office of the Vice-President and membership of the Committee was passed, Des Raj, Respondent 5 and a member of the Committee, openly declared in a meeting held on that day that according to the information with him the order for removal of the Vice-President had been passed. Des Raj was impleaded as a Respondent but he filed no affidavit denying these averments. In such a situation, there is no choice but to accept the statement of fact as made by the Petitioner on oath.

The other argument of Mr. Seth is that the impugned order is violative of the rules of natural justice in as much as no real opportunity was afforded to the Petitioner to establish that he did not give shoebeating to the lady member and that it was really the latter who had assaulted him with her chapal at a meeting of the Committee and in presence of the Municipal Commissioners. It is also submitted that the State Government acting in a quasi-judicial capacity is bound to conform to the well-established norms of natural justice one of which is that there must be some evidence on which the State Government could act and that the action could be taken against a delinquent only after giving him a reasonable opportunity and not merely an illusory one to rebut the charges made against him.

The last contention of the learned Counsel relying on a Full Bench decision of this Court in The State of Punjab v. Bhagat Ram Patanga (1969) 71 P. L. R. 625., is that the final order of removal of the Petitioner passed by the State Government acting as a quasi judicial authority should have indicated the process of reasoning by which the Minister concerned reached his decision so that the party affected might know on what basis the order was passed.

The learned Deputy Advocate-General, appearing for the State of Punjab, submits that no mala fides against the Respondents have been proved and that no rule of natural justice is violated. The argument is that the only requirement of law in terms of the statute is that before the State Government notifies removal of a President or a Vice-President the reasons for his proposed removal should be communicated to him and he be invited to tender, within a specified time, an explanation in writing, and that this Court cannot look into the preliminary enquiry leading to the show-cause. In other words, if a show cause notice is given and an explanation received, this is a sufficient compliance with law and rules of natural justice cannot be invoked. He has invited my attention to Bachhittar Singh Vs. The State of Punjab, ., Union of India v. H. C. Goel A. I. R. 1969 S. C. 364. and an unreported judgment of a Division Bench of this Court in Civil writ No. 1143 of 1969 Kewal Krishan Sabharwal v. State of Punjab and other C. W. 1143 of 1969.), decided on 15th December. 1969. As regards the requirement of reasons to be given by the authority exercising quasijudicial functions, the learned Deputy Advocate General relies on the office noting which, according to him, were seen by the Minister Incharge Local Bodies and therefore, it must be assumed that he applied his mind and adopted the reasons which are to be found in those noti-ngs.

I have given my careful thought to the various contentions raised by the learned Counsel for the parties and am satisfied that the impugned notification cannot be sustained. Section 22 under which action has been taken in the matter of removal of the Petitioner from office as Vice-President runs as under:-

Whenever a president or vice president vacates his seat or tenders in writing to the committee his resignation of his office, he shall vacate bis office and any president or vice president may be removed from office by the State Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two-thirds of the members of the committee:

Provided that before the State Government notifies his removed, the reason for his proposed removal shall be communicated to him by means of a registered letter in which he shall be invited to tender within twenty-one days an explanation in writing and. if no such explanation is received in the office of the apppropriate Secretary to

Government within twenty-one days of the despatch of the said regis-tered letter, the Stale Government may proceed to notify his removal

The very fact that the statute enjoins a particular procedure involving service of show-cause notice and providing an opportunity for am explanation to the delinquent office bearer who is proposed to be removed from office leaves no room for doubt that the State Government in the matter of taking action against a President or a Vice-President performs a quasi judicial function and must make a judicial approach. With regard to removal from membership of the Committee, the relevant provision of law is contained in Section 160(1)(e) of the Act to which there is added a proviso. The provisio is couched almost in the same. language as used in Section 22 and is on the following terms -

Provided that before the State Government notifies the removal of a member under this section, the reasons for his proposed removal shall be communicated to the member concerned and he shall be given an opportunity of tendering an exptanation in writing.

The Court has held in Bhagat Ram Paunga''s case (supra) that; the order of removal of a Municipal Commissioner is a quasi judicial order based on quasi judicial proceedings. It must, therefore by a priorri reason-ing follow that the order of removal of a Vice-President is as much quasi-judicial in nature as that of removal from membership of the Committee. No show-cause notice can have any meaning unless it contains or is accompanied been a Statement of allegations and an opportunity for explanation signifies that the person on whom such notice is served can rebut the allegations as made against him. It is assumed that the authority competent to punish will act with an unbiased mind and decide on receipt of the explanation as to whether the version given therein is correct or not. It may be that after the explanation has been furnished, no enquiry is necessary but there most, in any case, be some evidence, on which the competent authority could reasonably act. This Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India will not, of course, sit in appeal over the findings of the quasi-judicial authority but it must certainly examine the order of that authority and proceedings preceding the same to find out if the latter acted with an open mind and did have before it some objective data on which the conclusions arrived at could be based. The action taken by it should not verge on arbitrariness and give an impression of a pre-determined mind

8 It has now to be seen as to how far the State Government in the discharge of its quasi judicial functions conformed to the well known norms of natural justic. Could it be said that the Petitioner was afforded a real opportunity to satisfy the State Government about the truth of his version and was there any evidence before it on which it could reasonably act and take action against the Petitioner ? I am afraid the returns filed by the Respondents themselves leave no room for doubt that the Government acted in utter disregard of any procedure consistent with the rules of natural justice which could help in sifting the truth. The object of all enquiries or obtaining explanations is to arrive at a just decision, or in other words, to prevent miscarriage of justice. In order to avoid an unjust decision, the material soiaght to be used against the person accused of any default must be made available to him so that he can rebut the same in the manner that he thinks fit. What course has to be tollow in each case depends on the facts and circumstances of that case and no hard and fast rule can possibly be laid down. In the instant case, there were two versions about the incident of 2?th September, 1968. In the first enquiry held jointly by the Public Grievance Officer an the Deputy Superintendent of Police, it had been found that there was no shoe-beating given by the Petitioner and that it was Smt. Suraksha Sood who actually picked up her chapal. This enquiry report was submitted to the Government through the Deputy Commissioner but on a subsequent reference the latter made another secret enquiry.

After the report of the Deputy Commissioner a show-cause notice in which no reference is made to any report was sent to the Petitioner who stoutly denied the allegations against him. In such a situation, the only material against the Petitioner left with the State Government was the ex parte report of the Deputy Commissioner a copy of which was never supplied to the Petitioner nor was he told about its contents. There was no other objective data on which the State Government could act. In order to do justice between the contending parties, it was the duty of the State Government to find out what correct position in fact was and which of the two counter versions was true No attempt was made in this regard and soon after the explanation was received, an order of removal of the Petitioner was passed It seems that the State Government had already made up its mind on the basis of the secret report of the Deputy Commissioner which had been made behind the back of the Petitioner and without associating him with the same. In my opinion, the explanation was obtained just to satisfy the literal requirement of the words of Section 22 without intending to comply with its spirit. The decision arrived at in this manner cannot be said to be a just decision by a quasi-judici 1 authority and nor is the approach judicial. As observed by their lordships of the Supreme Court in A.K. Kraipak and Ors. v. Union of India(5), the concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The procedure that was followed by the State Government was virtually an abuse of its own authority reflecting no desire to act justly and fairly as one would expect from a quasi judicial authority. The State indeed acted not objectively on some evidence before it but arbitrarily. The contention on behalf of the State that the report of the Deputy Commissioner relied upon by it preceded the show-cause notice and must not be taken into consideration has no merit. There is no other report on which the State Government could act after the show-cause notice, except the explanation furnished by the Petitioner which certainly was not an admission of guilty. He denied the allegations against him and it was the report of the Deputy Commissioner alone that could be treated as refuting the assertions of the Petitioner. The entire proceedings have to be taken as a whole and no part of it can be considered in isolation.

Bachhittar Singh''s case referred to by the State Counsel has no bearing on the questions arising in this case. What was held there was that till final decision was taken by the Governor or Rajpurmukh of a State, the Council of Ministers could reconsider its decision. I do not see bow this case can possibly help the Respondents Again, H.C. Goel''s rase (supra) cited on behalf of the State is of no assistance. The ratio

in that case is that where several charges are framed and findings recorded by an inquiry officer, it is open to the State to accept some and reject others. It has also been held that mala fide exercise of power can be attacked independently and that it is not necessary to establish that the impugned order was based on no evidence. It was a service matter and the facts of the case are clearly distinguishable. The unreported judgment in Kewal Krishan Sabharwal''s case is equally not relevant for decision of the present case. It was a case where action had been taken against Kewal Krishan Sabharwal, Secretary, Municipal Committee Phillaur, u/s 41 of the Act. Section 41 gives a power to require a Municipal Committee to suspend, fine, punish or dismiss an officer or servant of the Committee if it is satisfied that the said officer or servant is negligent in the discharge of his duties or is unfit for his employment. A show-cause notice was served on Kewal Krishan and he gave an explanation thereto. He was removed from his post as Secretary in pursuance of the direction given by the State Government and the contention raised by the State Government and the contention raised by him was that he was not afforded adequate opportunity nor was an enquiry held against him. The constitutional validity of Section 41 was upheld and the provision of law as contained in this section does not envisage any enquiry. No procedure is prescribed if an action is to be taken u/s 41 of the Act. The procedure of serving statement of allegations en Kewal Krishan and obtaining his explanation which was duly considered by the Director and Minister Local Government Department, who applied their minds was considered by the learned Judges to be a sufficient compliance with law. It was in these circumstances that an observation was made that the rules of natural justice were amply complied with in as much as Kewal Krishan had been afforded an opportunity to render an explanation.

The next contention of the learned Counsel for the Petitioner that the impugned order gives no reasons is also not without substance. 1 have looked into the executive file which speaks volumes about the manner in which the decision was arrived at. The Petitioner tendered his explanation on receipt of which the office put up a note on 4th June, 1969, to the Deputy Director Local Government Department. A reference was made in this note to the protest of the Petitioner that the Deputy Commissioner had conducted the enquiry in his absence and that the documents required by the Petitioner were not shown to him in spite of his requests in writing. The report of the office was that the Deputy Commissioner had strongly recommended action against the Petitioner and the Public Grievances Officer who was previously deputed to hold the enquiry could not get at the truth. It was stated that some persons who were against Smt. Suraksha Sood did not allow all the witnesses to be examined by the Public Grievance Officer. While recommending removal of the Petitioner, the office sought advice from the higher authorities as to whether an enquiry be made from the Deputy. Commissioner, Ferozepur, to know whether he rejected in writing any request of the Petitioner for documents. The Deputy Director made a note that if the Petitioner wanted to examine any documents he ought to have applied to the Government for necessary facilities. No. reference to the Deputy Commissioner was considered necessary and he recommended action against the Petitioner. There was then some talk between the Director and the Deputy Director. When the papers went to the Minister he put a query on 1st July, 1969, in order to know if there was any written proof that the Petitioner had boycottepd the enquiry proceedings as a protest. It was then that the Deputy Commissoner, Ferozepur, was asked about it and the information received from him was that the Petitioner never boycotted the enquiry made against him secretly. The office pointedly mentioned that the Deputy Commissioner had not stated whether any request for the supply of record was received from the Petitioner or not. A note to this effect was put up to the Deputy Director who passed it on to the Director and the same was seen by the Minister on 27th August, 1969. This note was only with regard to the compliance by the Director of the Minister''s query as made on 1st July, 1969, namely whether the Petitioner had boycotted the proceedings. There was no further note or discussion about the desirability of removing the Petitioner from his office and from the mere signatures of the Minister, on 2th August, 1969, as appearing on the note the office assumed that the Minister had approved the suggestion made earlier with regard to removal of the Petitioner. The Director then directed the impugned notification to issue. The only authority competent to remove the Petitioner from office whether as Vice-President or from membership of the Committee was the State Government and the Minister alone could exercise those powers. There is nothing to indicate as to whether the Minister ever applied his mind and the only thing we find is that at one stage he wanted an enquiry to be made whether the Petitioner had boy cotted the secret enquiry by the Deputy Commissioner. When the Deputy Commissioner clearly stated that his enquiry was secret, the matter was not after that considered a fresh by the Minister and straight away the notification was issued. The only object of ascertaining whether the Petitioner had boycotted the enquiry by the Deputy Commissioner presumably was not to punish him if the enquiry was really secret and he was afforded no opportunity. The file shows nothing whatsoever and all that we find is that the notification for removal of the Petitioner was suddenly issued. What to say of making a judicial approach and passing a speaking order, it is doubtful if the matter was even properly considered by the Minister unless something happened orally which is not disclosed on the file. In the circumstances of this case, it cannot, therefore, be said that there is any material on the executive file which could show the process of reasoning by which the Minister reached his decision with regard to removal of the Petitioner had a right to know how the mind of the competent authority worked after receipt of the explanation and the course adopted by the Government in this regard was clearly violative of rules of natural justice.

For the foregoing reasons, the writ petition is allowed with costs, and the impugned notification dated 8th September, 1969, removing the Petitioner from the office of the Vice-President and from membership of Municipal Committee, Tankanwali, quashed.