Shri Tilak Raj Sharma vs The State of Himachal Pradesh and Another

R.S. Pathak, C.J.—The Petitioner in this writ petition challenges the orders dated April 8, 1969, removing him from the membership of the Simla Municipal Committee and disqualifying him for election for five years.

In 1960 the Petitioner was elected as a member of the Municipal Committee, Simla. The Municipal Committee was superseded by the Punjab Government in 1966, but subsequently upon writ petitions filed before the Delhi High Court the supersession order was quashed. On November 1, 1966, with the re-organisation of the State of Punjab, the District of Simla was transferred to the Union territory of Himachal Pradesh. The Petitioner says that he fell into disfavour with the Himachal Pradesh Government on account of certain public statements made by him in connection with the forthcoming Municipal elections. On October 4, 1968, a notice was issued by the Himachal Pradesh Government to the Petitioner detailing a number of charges on the basis of which it was said he had rendered himself liable for removal u/s 16(1)(e) of the Punjab Municipal Act, 1911 and he was called upon to show cause why he should not be removed from the membership of the Municipal Committee. The Petitioner submitted his reply in respect of each charge. On April 8, 1969, the Himachal Pradesh Government made an order reciting that the Petitioner had flagrantly abused his position as a member of the Committee and that, therefore, he was removed from the membership of the Municipal Committee u/s 15 of the Himachal Pradesh Municipal Act, 1968. The order further recited that the Petitioner was disqualified for election u/s 15(2) of the said Act for a period of five years from the date of the order. On the same date, another order was made directing the Petitioner to vacate his seat in the Municipal Committee with effect from that date. These orders are assailed by the present writ petition.

The Petitioner contends that the order removing him from the membership of the Municipal Committee is invalid because the Government took into consideration material which was never disclosed to the Petitioner, and that the Petitioner had no opportunity to controvert that material. That material, the Petitioner says, consists of a report made by Shri Vaidyanathan Deputy Superintendent of Police, and a report by the Deputy Commissioner, Simla, upon enquiries made respectively by them on the directions of the Government. The Petitioner relies on the principles of natural justice.

Section 15 of the Himachal Pradesh Municipal Act, 1968 provides:

15(1) The State Government may, by notification, remove any member of the committee,--

(e) if, in the opinion of the State Government he has flagrantly abused his position as a member of the committee or has through negligence or misconduct been responsible for the loss, or misapplication of any money or properly of the committee.

(2) A person removed under this section...shall be disqualified for election for a period not exceeding five years.

The original Government record has been placed before me by Shri Inder Singh, learned counse for the Respondents. Upon a perusal of that record the following facts appear. The complaint, on the basis of which charges were framed against the Petitioner in the show cause notice, was entrusted to the Superintendent of Police, Anti-Corruption Unit, Himachal Pradesh by the Local Self Government Department of the Himachal Pradesh Government. The enquiry was conducted by Shir Vaidyanathan, Deputy Superintendent of Police, and on the basis of documentary evidence as well as oral evidence recorded by him he drew up a report dated September 25, 1968, holding the charges proved. This report was received by the Under Secretary, Local Self Government on October 4, 1968. Another enquiry into the charges was entrusted to the Deputy Commissioner, Simla. It appears that the General Assistant to the Deputy Commissioner enquired into the charges and examined a mass of documentary material. On October 30, 1968, she drew up a report and the Deputy Commissioner, Simla, submitted it to the Government. Some of the fiadings contained in the report were adverse to the Petitioner.

The original Government record discloses that on September 23, 1968, a note was drawn up in the Local Self Government Department suggesting the issue of a notice to the Petitioner calling for his explanation. On the same date the Secretary, Shri D.B. Lal, recorded his concurrence and on October 4, 1968, the Minister, Shri Hari Ram also concurred and directed immediate action. Accordingly, a show cause notice dated October 4, 1968, was issued. It does not appear that either the report of the Deputy Superintendent of Police or the report of the General Assistant were before the Minister and the Local Self Government Department when the order was made for the issue of the show cause notice.

When we turn to the note dated December 5, 1968, contained in the original Government record it appears clearly that most of the charges against the Petitioner were found to be proved and that the findings preceded on the report of the Deputy Commissioner and with respect to some charges on the report of the Deputy Superintendent of Police also. The note recommended that the Petitioner be removed from the membership of the Municipal Committee. This was followed by a note of the Secretary, Shri D.B. Lal, statings:

We have considered the charges levelled against Shri Tilak Raj Sharma, and we have also considered his explanation as well as the report submitted by the Deputy Commissioner and the Anti Corruption Department. I am satisfied that this Municipal Commissioner has flagrantly abused his position as a member of the Committee and has through his negligence and misconduct been responsible for committing such acts which make him unfit to continue as member of the Committee. His conduct has also led to a misapplication of the property belonging to the Committee. It may be stated that it is against public interest to continue him as a member of the Committee. Therefore, he is liable to be removed u/s 15 of the H.P. Municipal Act and further a direction has got to be given u/s 13(c) for vacation of his seat. The period of disqualification shall be for 5 years.

T.M. may kindly see for approval.

D.B. Lal Secreatry (L.S.G.) 14.12.69

The recomandation was accepted by the minister on March 14 1969. Thereafter the impugned orders dated April 8, 1969, were made.

From the aforesaid facts the conclusion is irresistable that the report of the Deputy commisionr and the Deputy supertend of police from the basis of the decision to remove the petitionor from the membership of the municipal committee and to disqualifiy him for futher election. It is not disputed that the aforesaid two reports were never disclosed to the petitioner by the governement at any time before the orders dated April 8, 1969, were made. Shri Inder Singh, for the respondents state that it was for the petitioner to have asked for a copy of the reports. That presupposes that the existance of the reports was known to the petitioner at the time . But from a persusal of the avernment contained in the writ petition it appears that the petitioner came to know for the first time of their existatance and it was only when the origninal government record was produced in court by learned counsel for the respondednts during the hearing of the writ petition that the petitioner came to know of their existance. For that reson, the Petitioner amended his writ petition with a view to taking them in to account. The reports Contain material and findings adverses to the petitioner before the impugned orders were made. Reference may be made with advantage to the observations of the Supreme court in Bhagat Ram pantanga v. Sate of Punjab in a somewhat similar case.

Shri Inder Singh contends that even if die reports of the Deputy Commissioner and the Deputy Superintendent of Police are ignored, the material otherwise on the record will justify the findings to which the Government has come. It seems to me that the difficulty before the Government in the present case cannot be surmounted by adopting this course. The infirmity goes deeper. The two reports have been made the essential basis of the findings. In the circumstances, it is not open to the court to extract other material from the record, to assess it and then to come to its own findings in the matter. I am of opinion that the impugned order dated October 4, 1968, '' removing the Petitioner from the membership of the Municipal Committee cannot be sustained and must be quashed.

The order disqualifying the Petitioner for further election for a period of five years is invalid on two grounds. The first is that the disqualification can attach only to a person removed u/s 15(1). If the removal of such person u/s 15(1) is invalid, Section 15(2) cannot be called into play. The second is that before an order of disqualification is made the person sought to be disqualified should be afforded an opportunity of being heard in the matter. It may be, as the Respondents contend, that the disqualification is automatic upon removal, but the actual period of disqualification is not fixed by the statute. Only the maximum period is specified. According to Section 15(2), the period of disqualification may extend up to five years. It seems to me that it is open to a person sought to be disqualified to show that there is good reason for not disqualifying him for the full period of five years and that the circumstances of his case would justify a more lenient view. A valuable right is taken away from a person by an order of disqualification, and livery reason injustice requires that he should be heard. Shri Inder Singh relies upon a Full Bench decision of the Punjab High Court in Jogindar Singh Vs. The State of Punjab and Another, Upon the considerations which have prevailed with mo I am unable, with respect, to agree with the view taken in that case. It is not disputed that the Petitioner was given no opportunity of being heard before the order was made disqualifying him for election for five years. In my opinion, on both the aforesaid grounds the order of disqualification must be quashed.

Consequently, the further order made on April 8, 1969, directing the Petitioner to vacate his seat must also be set aside.

Shri Sushil Malhotra for the Petitioner indicated that he had other contentions to raise in support of the petition. But in the circumstances, it is not necessary to hear him on those contentions.

The writ petition is allowed. The orders dated April 8, 1969 of the Himachal Pradesh Government removing the Petitioner from the membership of the Municipal Committee, Simla, and disqualifying him for election for a period of five years and also directing him to vacate his seat in the Municipal Committee are quashed. The Petitioner is entitled to his costs, which I assess at Rs. 150.