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PETITIONER: R.S. SAINI

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT:       09/09/1999

BENCH: R.C.Lohoti, N.Santosh Hegde

JUDGMENT:

SANTOSH HEGDE, J.

     Leave granted.

     Heard learned counsel.

     This  appeal  is  preferred against the  judgment  and order  dated  4th August, 1998 passed by the High  Court  of Punjab  &  Haryana at Chandigarh in C.W.P.  No.9852/98.   In the  said  writ  petition, the appellant herein  prayed  for quashing  of an order dated 26.6.1998 whereby he was removed from the office of the President, Municipal Council, Nangal. He  also  prayed for consequential reliefs like  restraining the   respondents  from   issuing  notifications   regarding electing  respondent  No.3  as  the President  of  the  said Municipal  Council.   The said writ petition having  failed, this appeal has been preferred.

     It is the contention of the appellant both in the writ petition  as well as in this appeal that he was elected as a member  of  the Municipal Council, Nangal on 20.11.1994  and under  Section 57 of the Punjab Municipality Act, 1911  (for short  ‘the Act’) the said Council was managing as many as 3 educational  institutions;  one of which was Shivalik  Model School  and  sequel  to certain political  differences  that arose  between  him and respondent No.4, the  appellant  was served  with  two show cause notices out of which the  first notice  contained  11 charges and the second  notice  listed three charges;  thus making 14 charges in all against him in regard  to various acts of omission and commission which the appellant  is alleged to have committed during his tenure as President  of  the  Municipal Council.   The  appellant  has alleged  that  these show cause notices were issued  due  to political  ven detta at the instance of respondent No.4  who wanted  to promote the political career of respondent  No.3. Though  the appellant had filed an elaborate written  reply, showing  cause  against the charges, the appellant  contends that  he was not afforded a proper opportunity of  defending himself  and the enquiring authority did not apply its  mind to the reply submitted by him and other relevant material on record  that  was  available,  and   in  violation  of   the principles  of  natural justice, coupled with the mala  fide intentions  of  respondent No.4, the impugned order  of  his

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removal came to be passed.

     It is to be noted that out of the 14 charges that were levelled against the appellant, the authority has found only 5  charges proved against him.  They are charge Nos.3, 5,  6 and  9 enumerated in the first show cause notice and  charge No.2  enumerated  in the second show cause notice.  For  the sake of convenience, the same are reproduced hereunder :-

     "CHARGE NO.3 :-

     On  16.6.1997,  the meeting of the  Municipal  Council which was proceeding peacefully and the resolution No.23 was being  discussed then you have without any reason  postponed the  meeting  and  snatched the proceeding  book  from  Shri Subash  Chand  Steno,  Municipal  Council,  Nangal  who  was writing  the  proceeding  of  meeting and went  out  of  the meeting hall.  By doing so you have misused your position.

     x x x

     CHARGE NO.5 :-

     You  have  without  giving information  to  Employment department and without taking any legal action appointed the teachers  on  6  months basis at your own  level  which  was against the Rules/Instructions.

     CHARGE NO.6 :-

     For filling up 21 vacant posts of teachers in Shivalik Model  School  neither  any  resolution was  passed  by  the Committee nor approval for filling up these vacant posts was got   from   the  Government.    The  approval   for   these appointments   was  made  by   the  Municipal  Council  vide resolution  No.43.5  dated  15.4.1997 but  the  decision  of Managing Committee has not been considered in the meeting of the  Municipal  Committee  has not been  considered  in  the meeting  of  the  Municipal  Council.   (sic)  The  Managing Committee  of Shivalik Model School had on 13.9.1996 decided to  make Deputy Director (H.Q) to be one of the members  but at the time of filling up these vacancies neither the Deputy Director  (H.Q)  was  associated   nor  any  intimation  for associating him was issued.

     x x x

     CHARGE NO.9 :-

     At  the  time  of making appointment  of  teachers  in Shivalik  Model  School,  you  have appointed  one  of  your relation  Kuljeet  Kaur daughter of Swaran Singh as  Science teacher.   By doing so, you have violated section 240 of the Punjab  Municipal  Act, 1911 as per which before making  any appointment of some relation, prior approval is necessary to be  taken which has not been done by you.  You are guilty of giving  a direct benefit to your relative from the Municipal Council.

     x x x

     2.   Canal  Based Water Supply Scheme which  is  being installed  in  the slum area of Municipal Council was to  be

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got completed but you have despite persistent demands by the Punjab Water Supply and Sewerage Board has not deposited the funds with the Sewerage Board due to which the residents are facing  major  problems of drinking water.  By doing so  you have misused your position."

     Before  the  High  Court,   the  appellant  urged  the following 3 questions for its consideration :

     "(i)  Has  the competent authority failed to  consider the  reply submitted by the petitioner to the two show cause notices ?

     (ii)  Is  the  order violative of  the  principles  of natural  justice  ?   (iii)  Is the order  vitiated  by  the malafides of respondent No.4 ?"

     After considering the arguments addressed on behalf of the  appellant  in  regard to the  first  contention  raised before  the  High  Court, the High Court  noticed  that  the authority  which  enquired into the charges has  taken  into consideration the entire material that was placed before the said  authority and had also recorded the evidence and it is only  after  such  thorough consideration  of  the  material placed before the said authority and the pleas raised before it, the enquiring authority recorded its findings.  The High Court  with  reference to the first charge agreed  with  the enquiring  authority  that  there was nothing on  record  to indicate  that  the  situation on the date of  the  relevant meeting  did  call for the exercise of power vested  in  the Chairman  under  bye-law 15 even remotely.  Accordingly,  it rejected  the  challenge of the appellant with reference  to the  finding on Charge No.1 of which the appellant was found guilty.

     With  regard to the second contention, viz., violation of  principles of natural justice, the High Court noted that the appellant had been granted a personal hearing apart from giving  an opportunity of filing written submissions.   From the  material  on  record, the High Court also came  to  the conclusion  that  the  appellant had been  heard  at  length personally  and through his counsel.  Hence, this  complaint of  the  appellant that there was failure of  principles  of natural justice, was also negatived by the High Court.

     With  reference to the ground of attack based on  mala fides,  the High Court noticed the fact that respondent No.4 had  filed an affidavit specifically denying the same.   The High  Court  preferred to accept the version of  the  fourth respondent  as  against the ground of challenge in the  writ petition  and  held that it is not possible to come  to  the conclusion  that  the  impugned  order  was  in  any  manner influenced  by the alleged malice entertained by  respondent No.4  against the appellant.  Before us, similar points have been  urged  as  was  done before the High  Court.   It  was contended on behalf of the appellant that the finding of the enquiry  officer was based on no material and suffered  from the  vice  of  non-application  of mind.   In  the  ordinary course,  the facts of this appeal would not have required an elaborate  consideration.  However, it is a case in which an elected  office  bearer is being removed from  office  other than  by way of a process of election and the contentions of the appellant being also based on violation of principles of natural  justice and acts of malice, in all fairness to  the

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appellant   we  consider  it   appropriate  to  examine  the contentions of the appellant at some length.

     Looking  into  the  case of the  appellant  charge  by charge,  we  notice  that Charge No.3, as  extracted  above, shows  that  the  appellant on 16.6.1997 without  any  cause postponed  the meeting and snatched the proceeding book from the  stenographer  of the Municipal Council and went out  of the meeting hall, thereby frustrating the proceedings of the Municipal   Council.   This  charge  is  made  against   the appellant  in  the  background of the fact that  he  did  so deliberately  to prevent a decision being taken contrary  to his  interest  in  the  subject.  While  dealing  with  this charge, the enquiring authority after referring to the reply submitted  by  the  appellant  and  based  on  the  material available  on  record,  came  to  the  conclusion  that  the appellant  on finding that the majority of the members  were not  on  his side, abruptly adjourned the meeting  and  also forcibly took away the proceeding book.  He also came to the conclusion   that  this  conduct  of  the   appellant   was, therefore,  unbecoming of the office that he was holding and the  same  was,  to  use  the  language  of  the  authority, ‘irregular,  illegal  and arbitrary’.  The  enquiry  officer also  came  to the conclusion that the appellant on  finding himself  in  minority  and in  an  uncomfortable  situation, exceeded  his  power  of adjourning the  meeting  which  was otherwise  peaceful.  He also took serious note of the  fact of  the  irregularity committed by the appellant  in  taking away the proceeding book.

     The  next charge in regard to which the appellant  has been  found  guilty  pertains  to  his  appointing  teachers irregularly  on 6 months’ basis, without giving  information to   the  employment  department,   against  the  Rules  and instructions   applicable   to   such  appointments.    With reference  to this charge, the enquiring authority took note of  the  fact  that the appellant had denied  the  same  and noticed  the stand taken by the appellant that the same  was done  by the Municipal Council on a temporary basis and  the said  action  was approved by the Managing Committee of  the Shivalik  Model  School.  However, the  enquiring  authority after going through the record of the Municipal Council came to  the conclusion that these appointments of teachers  were made  without the approval of the Municipal Council and  the same  was done knowing very well that the Managing Committee of  the  School  had  no  funds of  its  own  and  also  the appointments  in  question were made without  following  the procedure  laid  down.   It also noticed the fact  that  the vacancies were never notified to the Employment Exchange nor were they advertised.

     The   third  charge  framed   against  the   appellant pertained  to filling up the posts of 21 teacher in Shivalik Model  School  without any resolution nor approval from  the Managing  Committee  and  the   Government.   The  authority noticed  the  defence  of the appellant that  the  Municipal Council  vide  its  Resolution No.43.5 dated  15.4.1997  did grant  approval to these appointments.  But the decision  of the  Managing  Committee dated 13.9.1996 resolving  to  make Deputy  Director  (HQ)  to  be one of  the  members  of  the appointing  Committee,  was  not  complied  with  and  these appointments were made without inducting the Deputy Director (HQ)  as  a  member of the Selection Committee  as  required under the Rules, nor was any intimation sent to him.

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     The  next  charge  held proved against  the  appellant pertained  to  the  allegation of appointment  of  one  Smt. Kuljeet  Kaur as a Science teacher contrary to the statutory provision  of  Section  240 of the Act.  In regard  to  this charge,  while  noticing the defence of the  appellant  that Smt.   Kuljeet  Kaur was not related to him, held that  from the  Selection  Committee’s  records  and  scrutiny  of  the application   of   Smt.   Kuljeet   Kaur  and  from   Police verification,  she  was  in fact related  to  the  appellant (though  not  a blood relation).  It also noticed  the  fact that  in  the invitation card of the marriage of this  lady, the name of the appellant had appeared as one of the persons inviting,  therefore,  the enquiring authority held that  as required  under Section 241 of the Act, it was obligatory on the   part  of  the  appellant   to  have   refrained   from participating  in  selection  of the said  Mrs.   Kaur,  and having  not  refrained  from  such  selection  process,  the appellant was guilty of this charge also.

     The  last  of  the charges with regard  to  which  the appellant  has been found guilty pertained to the fact  that he  has been interfering in the issuance of tenders for  the works  already sanctioned/approved and such interference was not  warranted  under the Act and the Rules and out  of  279 sanctioned work, tenders in respect of 36 works could not be invited  due to his unauthorised interference.  With  regard to  this  charge,  the  enquiring   authority  came  to  the conclusion  that this charge pertained to the default on the part  of the appellant in not depositing the necessary funds with  the Sewerage Board for the purpose of installation  of Canal  Based  Water  Supply Scheme consequent to  which  the local  residents  suffered  the  major problem  of  lack  of potable water.  Discussing the allegations in regard to this charge,  the enquiring authority took note of the defence of the  appellant that the default was committed not by him but by  the Executive Officer and that he had not either stopped or  restrained  his  office from releasing the  said  funds. From  the  material on record, the enquiring authority  held that  the  appellant  had failed to clear  himself  of  this charge  and from the representation of the Deputy  Director, it   was   clear  that  the   lapse  was   attributable   to non-releasing  of  the funds by the appellant and there  was reluctance  on  the  part of the appellant  in  getting  the Scheme  executed through the Punjab Water Supply and  Sewage Board  which,  according to the enquiring officer,  was  for obvious  reasons.  The enquiring authority also came to  the conclusion  that  because  of this deliberate  default,  the essential supply of water to the poorer sections of the town suffered.   Hence,  the appellant was found guilty  of  this charge.

     Before  adverting  to  the  first  contention  of  the appellant  regarding  want  of  material  to  establish  the charge,  and  of non- application of mind, we will  have  to bear  in mind the rule that the court while exercising  writ jurisdiction  will  not reverse a finding of  the  enquiring authority  on the ground that the evidence adduced before it is  insufficient.   If there is some evidence to  reasonably support the conclusion of the enquiring authority, it is not the  function  of  the court to review the evidence  and  to arrive  at  its  own  independent  finding.   The  enquiring authority  is the sole Judge of the fact so long as there is some  legal  evidence  to substantiate the finding  and  the adequacy  or  reliability  of the evidence is not  a  matter which  can be permitted to be canvassed before the court  in

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writ proceedings.

     A  narration  of  the charges and the reasons  of  the enquiring  authority for accepting the charges, as seen from the  records,  shows that the enquiring authority has  based its  conclusions  on  materials available  on  record  after considering the defence put forth by the appellant and these decisions,  in our opinion, have been taken in a  reasonable manner  and  objectively.  The conclusion arrived at by  the enquiring  authority  cannot  be   termed  as  either  being perverse or not based on any material nor is it a case where there  has  been any non-application of mind on the part  of the  enquiring  authority.   Likewise, the  High  Court  has looked  into the material based on which the enquiry officer has  come  to  the  conclusion,  within  the  limited  scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.

     The other two complaints made before us that there has been flagrant violation of principles of natural justice and the impugned order in question was the end-product of malice entertained  by  respondent No.4 against the appellant  were also,  in  our opinion, rightly rejected by the High  Court. It  is  found from record that the two detailed  show  cause notices  enumerating  the various charges  giving  necessary particulars  were issued to the appellant and the  appellant had  filed  a detailed written reply with reference to  each one  of  the  charges.  The record also bears out  that  the appellant  has  been  heard  through  his  counsel  and  the complaint made that he was not given sufficient adjournments for  further hearing, in our opinion, would not constitute a breach  of  the principles of natural justice.  As has  been noticed  by  the  High Court, the  allegation  of  malafides having  been  answered  by  respondent No.4  by  way  of  an affidavit  denying the same and the High Court having chosen to  accept the affidavit of respondent No.4, and rightly  so in  our opinion, we do not find any material to differ  from the said finding.

     We  have  noted  earlier that the  scope  of  judicial review  in matters of this nature being restricted, the High Court  had  to consider the challenge to the impugned  order with  a limited degree of scrutiny that was called for.   We too  have considered the complaint within that limited scope in  order to find out the correctness of the allegation that the  impugned  order of the disciplinary authority  suffered from  the  vice of perversity, non-application of  mind  and tainted by malice and having come to the conclusion that the report  of the enquiring authority cannot be faulted with on any of the grounds stated above, we are unable to agree with the  appellant.   For the reasons stated above, this  appeal fails and is hereby dismissed.  No costs.