Punjab-Haryana High Court
Vikas Deep vs State Of Punjab And Others on 13 March, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:036185
CWP-13108-2023 -1- 2024:PHHC:036185
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-13108-2023 (O&M)
Reserved on : 21.02.2024
Date of Decision: 13.03.2024
Vikas Deep ..... Petitioner
Versus
State of Punjab and others ......Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Gaurav Chopra, Senior Advocate with
Mr. C.M.Munjal, Advocate,
Mr. Akshat Dalal, Advocate,
Ms.Sanjana, Advocate, for the petitioner.
Mr. Ferry Sofat, Addl. Advocate General, Punjab.
Mr. D.V.Sharma, Senior Advocate with
Mr. Manbir Singh, Advocate, for respondent No.4.
Mr. Shashank Shekhar Sharma, Advocate
for respondent No.5.
Rajesh Bhardwaj, J.
1. Prayer in the present petition is for quashing the order dated
30.05.2023 (Annexure P-20) whereby, the petitioner who is the elected
President of Municipal Council, Jalalabad has been illegally and arbitrarily
removed from the post of President and in complete violation of the
provisions of the Punjab Municipal Act, 1911 (for short, 'the Act') as well
as the settled law.
2. Adumbrated facts of the case are that the petitioner was firstly
elected as Municipal Councilor from Ward No.2 of the Municipal Council,
Jalalabad in the month of February, 2021 and thereafter, on 26.04.2021 he
was elected as President of Municipal Council, Jalalabad unanimously. A
complaint dated 02.06.2022 was filed against the petitioner by respondent
No.3 i.e. Jagdeep Kamboj alias Goldy, MLA of Jalalabad Constituency to
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the Hon'ble Chief Minister. It was alleged in the complaint filed that
respectable persons of Vidhan Sabha Constituency, Jalalabad brought to his
notice regarding bungling in the development works of the Municipal
Council, Jalalabad as basic facilities had not been provided to the general
public and request was made to hold an enquiry by the senior officer. On the
basis of same, enquiry was conducted through Chief Vigilance Officer and
then show cause notice dated 17.10.2022 alongwith the detail of charges
was issued to the petitioner for taking action against him under Sections 22
and Section 50 of the Act. Petitioner submitted his reply (Annexure P-3) to
the show cause notice issued to him explaining in detail all the allegations
made against him and thereafter, he filed supplementary reply (Annexure P-
4) in addition to the reply already filed. Thereafter, the petitioner was
removed from the post of President by the respondent-State vide
notification dated 17.02.2023. Aggrieved by the same, the petitioner
approached this Court by way of filing CWP-3684-2023, wherein, the
Hon'ble Division Bench after hearing both the sides, set aside the
notification dated 17.02.2023 vide which the petitioner was removed from
the post of President and remanded the case to the competent authority to
decide the same afresh after complying with the specific directions given by
the Hon'ble Division Bench in the order dated 20.04.2023. Respondent-
State after hearing the petitioner again issued impugned notification dated
30.05.2023, whereby, the petitioner again has been removed from the post
of President. Hence, aggrieved by the same the petitioner has again
approached this Court by way of filing the present petition.
3. Learned Senior Counsel, Shri Gaurav Chopra representing the
petitioner has vehemently contended that the petitioner has fallen victim to
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the political rivalry initiated against him. It is submitted that the petitioner
was elected as a Councilor on the Congress ticket and also opposed
respondent No.3 tooth and nail in the election of MLA and thus, he earned
the wrath of respondent No.3 who started exerting undue pressure on him
after having been elected as MLA from Jalalabad Constituency. It is
submitted that in order to settle the score with the petitioner, respondent
No.3 filed a false and frivolous complaint on the basis of frivolous
allegations and thus, a show cause notice dated 17.10.2022 under Sections
22 and 50 of the Act was issued to the petitioner. He has submitted that the
petitioner duly replied each and every allegation levelled against him. He
has submitted that the allegations against the petitioner are three fold.
Firstly that during undertaking of the development work of P/L interlocking
tiles in street Parmod to Arianwala the street was constructed on the private
property of the petitioner and his brother and thus got the interlocking tiles
laid from the Municipal funds on the said street. Secondly, it was alleged
that during the checking of the record it was found that the petitioner had
got the fuel filled in the Municipal vehicles from his personal petrol pump
and thirdly, with regard to the work of P/L interlocking tiles in berms main
road stadium to drain which work was not actually done but payment of
Rs.4.34 lacs was made to the firm. He has submitted that detailed reply to
these charges were given by the petitioner refuting the allegations levelled
against him. It is submitted that Nirankari Bhawan is existing since 1990
and the said road is existing since then and the devotees are using the said
road from the very beginning. It is submitted that the Municipal Council,
Jalalabad passed a resolution No.509 dated 29.05.2006 and spent
Rs.1,00,000/- on this road and the then Irrigation Minister, Punjab and
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President, Municipal Council, Jalalabad inaugurated the said road in the
year 2006. Thereafter, the said road was repaired and reconstructed by the
Municipal Council on 23.09.2011 through PWD (B & R) by spending an
amount of more than Rs.10 Lacs and further in the year 2013 the Member of
Parliament, Ferozepur gave Rs.5 lacs from his M.P. fund for the
development of the portion of the said road from Harkishan Public School
to Arianwala road which is also known as Peere ki Road. He has submitted
that Municipal Council, Jalalabad passed a resolution dated 07.05.2021 with
the consent of entire house for repair of the said road after nine years and
approval to spend Rs.23.35 lacs on the said road, was passed by the General
House of Municipal Council, Jalalabad. He has submitted that the petitioner
was not even present in the house meeting on 07.05.2021 when the said
resolution was passed, as he was down with Covid-19. He has further
submitted that this resolution was passed under the Chairmanship of Senior
Vice President i.e. respondent No.5 and after passing the resolution, it was
further approved by the Deputy Director, Local Government. Regarding the
second charge of filling up of oil in the municipal vehicles from the petrol
pump of the petitioner, he has submitted that no other petrol pump was
ready to give fuel on credit basis and due to this reason, the Executive
Officer started getting the fuel from the petrol pump of the petitioner. He
has submitted that consumption for six months during the tenure of the
petitioner w.e.f. 08.06.2021 to 21.10.2021 was of Rs.9,58,000/-, whereas,
earlier to it, the consumption for six months was Rs.13,19,000/- and
thereafter, w.e.f. 05.11.2021 to 30.05.2022, it was Rs.13,82,000/-. It is
submitted that during the tenure of the petitioner filling up of fuel was of
much lesser cost than others. It is submitted that fuel was sold on the market
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price and there cannot be any alteration etc. in the rate of the petroleum
products and thus, no financial loss whatsoever was caused to the MC in
purchasing the fuel for about six months from the petrol pump of the
petitioner. He has submitted that regarding the allegation of P/L
interlocking tiles in drain, main road, stadium, the petitioner had no concern
and the work was undertaken by the employees of Municipal Council as per
rules and the entire work was got done by the Executive Officer, Municipal
Engineer and Sectional Officer of Municipal Council, Jalalabad. It is
submitted that the allegations against the petitioner regarding renovation of
the road leading to school, without acquiring the land, is without any basis.
He has submitted that the petitioner has specifically replied that
development work on this road was being carried out since 2006 and it is
not for the first time that Municipal Council has carried out the renovation
of this road. He has submitted that even otherwise, the petitioner has
specifically made a statement that he would never claim any compensation
for his land used in development of this road whereby the width of the road
has also been increased. It is submitted that show cause notice was issued to
the petitioner under Sections 22 and 50 of the Act, but both Sections are not
attracted in the light of the frivolous allegations made against him. It is
submitted by learned Senior Counsel that Municipal Council, Jalalabad in
its general meeting on 07.05.2021 under the Chairmanship of Vice
President approved in all 51 various development works, wherein, agenda
pertaining to the P/L interlocking tiles in street Parmod Chaudhary
Araianwala road was at Sr. No.39. It is submitted that estimate amount for
this agenda was Rs.23.35 lacs. He has submitted this meeting was held
under the Chairmanship of the Vice President i.e. respondent No.5. He
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further submitted that resolution No.15 was approved with unanimity and
thereafter, the proceedings of this meeting was sent to the Deputy
Commissioner and Deputy Director for its approval. He has invited the
attention of this Court to the resolution No.15 wherein it was recorded that
the resolution was for the benefit of the Municipal Council, Jalalabad.
4. Learned Senior counsel further contends that Section 3 (13) (a)
and (b) of the Act define street and public street, which are as under:-
"Section 3 (13) (a) "street", shall mean any road, footway,
square, court, alley, or passage, accessible, whether
permanently or temporarily to the public, and whether a
thoroughfare or not;
and shall include every vacant space, notwithstanding that it
may be private property and partly or wholly obstructed by any
gate, post, chain or other barrier, if houses, shops or other
buildings about thereon, and if it is used by any person as a
means of access to or from any public place or thoroughfare,
whether such persons be occupiers of such buildings or not, but
shall not include any part of such space which the occupier of
any such building has a right at all hours to prevent all other
persons from using as aforesaid :
and shall include also the drains or gutters therein, or on
either side, and the land, whether covered or not by any
pavement, verandah or other erection, up to the boundary of
any abutting property not accessible to the public.
(b) "public street" shall mean any street-
(i) heretofore levelled, paved, metalled, channelled, swerved, or
repaired out of municipal or other public funds, unless before
such work was carried out there was an agreement with the
proprietor that the street should not thereby become a public
street, or unless such work was done without the implied or
express consent of the proprietor; or
(ii) which, under the provisions of section 171, as declared by
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the committee to be, or under any other provision of this Act
becomes, a public street."
5. Learned Senior Counsel for the petitioner has further submitted
that as per the statutory provisions of the aforesaid Section, street would
include every vacant place notwithstanding that it may be private property.
He submits that this road from Arianwala road to the school side was
already inaugurated by the then Irrigation Minister and thereafter, funds
were spent on this road from MP Funds as well. Not only this, PWD (B &
R) had renovated this land from MC funds, thus, in view of the statutory
provisions, this street falls under the category of public street and thus,
charges levelled against the petitioner are totally unsustainable in the eyes
of law. He has further submitted that as per provisions of Section 56(1)(g)
of the Act, this road vests in the Municipal Council and hence, no charges
as alleged against the petitioner are made out. It is submitted that the
petitioner assailed his earlier removal order dated 17.02.2023 before this
Court and Hon'ble the Division Bench of this Court had specifically
observed that plea of the petitioner including the one that part of the road in
question was in existence since 1970, 2006, 2011 and 2013 the same having
been constructed out of the Municipal Council funds, had not been dealt
with. It is submitted that in the meeting dated 07.05.2021, out of 51 total
works, resolution was approved for various streets which were similarly
situated to the agenda No.39 against which the allegations have been made
against the petitioner. He has submitted that the respondents have not dealt
with any of these issues despite there being a specific direction of this Court
rather only in order to remove the petitioner from the post of President, a
stereo type order has been passed, but no explanation has been given by the
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State despite the observation given by this Court rather a new case has been
made out against the petitioner in violation of the directions issued by this
Court only to circumvent the order passed by the Hon'ble Division Bench.
He has submitted that the impugned order is beyond the charges levelled
against the petitioner. He has submitted that if at all there was any illegality
in the proceedings of the General House dated 07.05.2021, action was
required to be taken against the Councilors and Vice President who had
presided over the meeting, however, the same was not done and the
resolution was approved in due course of law. It is submitted that though
show cause notice was issued for the charges under Sections 22 and 50 of
the Act, however, the impugned order has been passed only for the charges
under Section 22 of the Act and not under Section 50 of the Act.
6. Learned Senior counsel for the petitioner has also submitted
that in view of the statutory provisions of the aforesaid Act, every member
of the Committee shall be liable for the loss, waste, or misapplication of any
money or other property belonging to the Committee, if such loss, waste or
misapplication is reported by the Examiner of Local Fund Accounts or other
audit authority empowered by the State Government. He has submitted that
there is no report from the Examiner of the Local Fund Accounts or Audit
Authority to substantiate any embezzlement or loss committed by the
petitioner as alleged, rather respondent-State has intentionally avoided the
applicability of Section 50 of the Act as they never wanted report from the
Local Examiner Fund or Audit Department. He has relied upon the
judgments of Hon'ble Supreme Court as well as this Court in Tarlochan
Dev Sharma vs. State of Punjab, 2001(3) RCR (Civil) 809; Sharda Kailash
Mittal vs. State of M.P. & others, 2010(2) SCC 319; M.V. Bijlani vs. Union
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of India & others, 2006 AIR (Supreme Court) 3475; Roop Singh Negi vs.
Punjab National Bank & others, 2009(2) SCC 570; Narinder Mohan Arya
vs. United India Insurance Co. Ltd. & others, 2006 AIR (Supreme Court)
1748; Union of India and others vs. Dayanand Pandora and another, 2011(3)
SLR 767; Smt. Rubina vs. State of Haryana & others, 2021(1) RCR (Civil)
168; Vijay Mahajan, President Nagar Council, Dina Nagar vs. State of
Punjab, 2002(2) RCR (Civil) 144; and judgment of Jammu and Kashmir
High Court in Laxman Dass vs. Union of India and others, Law Finder Doc
Id # 2082780. He has submitted that as per law settled, no charges under
Section 22 of the Act, have been made out and the respondent-State has
miserably failed in proving the charges that the petitioner has abused his
power in any manner. He has submitted that there are no set guidelines of
MC regarding filling up of fuel in the MC vehicles. He submits that as per
norms, fuel can be purchased from any petrol pump and reimbursement of
the same is made by MC on the basis of production of bills. He has
submitted that there is no evidence whatsoever produced by the State in
support of the allegations made that by purchasing the fuel from the petrol
pump of the petitioner any embezzlement of the MC fund was committed
by the petitioner or by any employee at his behest, rather the figures given
on record proves that the expenditure incurred on the fuel from the petrol
pump of the petitioner was less than in costs than the amount spent during
the period prior to the period when it was purchased from the petrol pump
of the petitioner. It is submitted that in view of the law settled by Hon'ble
Supreme Court which has been followed by this Court as well, a
democratically elected president cannot be removed from his post on the
basis of whims and fancies and thus, the impugned order being totally
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malafide, illegal, and arbitrary, is unsustainable in the eyes of law and
deserves to be set aside.
7. Per contra, learned Senior Counsel. Shri D.V. Sharma,
appearing for respondent No.4 has vehemently opposed the submissions
made by learned Senior Counsel for the petitioner. It has been submitted
that on receiving complaints from various respectables of Vidhan Sabha
Constituency of respondent No.3, he sent a complaint to the Hon'ble Chief
Minister for conducting enquiry from some senior officer in the alleged
bungling in the development works of the Municipal Council, Jalalabad and
Nagar Panchayat, Arianwala. Thus, the enquiry was entrusted to Chief
Vigilance Officer, Local Government Department who conducted enquiry
on 04.08.2022 and 05.08.2022 and in pursuance to the same, show cause
notice dated 17.10.2022 was issued to the petitioner for taking action under
Sections 22 and 50 of the Act and charge-sheet was also issued to the
petitioner. It is submitted that the petitioner filed his reply and
supplementary reply to the charge-sheet issued to him. After considering the
reply filed by the petitioner, the whole charge-sheet was duly appreciated,
however, the reply was not found to be satisfactory to repel the charges
levelled against him. On appreciation of the enquiry report submitted and
the reply filed by the petitioner, it was found that the allegations of
misusing the power and misusing the funds of MC by the petitioner, were
proved for the charges levelled under Section 22 of the Act. Learned Senior
counsel has drawn the attention of this Court to the site plan of the area
where the majority of the land is owned by the petitioner and the
development work was carried out by him out of the funds of the MC. He
submits that the site for school was proposed in Khasra No.39//11, 12, 19,
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20 and 353/1. It is submitted that as per the Aksh Sajra, there was no
revenue rasta for the proposed school and the building plan of the proposed
school signed by Parmod Chaudhary, through the land which belonged to
the petitioner and Parmod Chaudhary, was submitted to the Municipal
Council for approval in the year 2011. He submits that as per bye-laws, a 40
feet wide approach road was required for approach to the school and hence,
the petitioner alongwith Parmod Chaudhary proposed 40 feet wide road
from Arianwala road to the school, which was shown in the black colour in
the site plan (Annexure R-4/2). He has submitted that the proposed 40 feet
road passes through Khasra Nos.39//15, 14, 13, 18, 23/2 etc. He submits
that the petitioner being the President of Municipal Council, Jalalabad gave
verbal orders to the Section Officer for preparing the estimate for
construction of P/L interlocking tiles in street Parmod Chaudhary to
Arianwala. It is submitted that estimate amounting to Rs.23.35 lacs was
duly approved by the petitioner as a President of Municipal Council,
Jalalabad (West). He submits that perusal of the estimate of original work
would show that it does not bear any date although the estimate of original
work was not signed by the Junior Engineer, Assistant Municipal Engineer,
Executive Officer and President of the Municipal Council, Jalalabad (West).
Similarly, the estimate which has been prepared and approved also did not
bear any date. He has submitted that the petitioner in his capacity as a
President of the Municipal Council issued agenda dated 05.05.2021, which
included proposal No.15 (item No.39), for a meeting scheduled to be held
on 07.05.2021 by giving 48 hours notice. He submits that in agenda
proposal No.15 one of the items i.e. item No.39 was proposed laying down
of "P/L interlocking tiles in street Parmod Chaudhary Arianwala road" for
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an estimated cost of Rs.23.35 lacs. It is submitted that in fact it was for a
road on the private land of the petitioner and Parmod Chaudhary, who is his
brother. He submits that despite having issued notice of 48 hours for the
meeting to be held on 07.05.2021, the petitioner intentionally did not attend
the meeting of the Council for which he issued the agenda which included
item No.39 of proposal No.15. It is submitted that the objection was raised
by the Deputy Director to the resolution No.15 (item No.39), but despite
that work for item No.39 was executed. It is submitted that it is evident that
the petitioner had abused his power as a President by getting the road
constructed through the land owned by him and his brother at the expenses
of the MC. He submits that the enquiry was conducted from the Chief
Vigilance Officer, Department of Local Government in the development
works executed by the MC. It was found that 40 feet wide proposed road
was constructed through the land bearing Khewat No.604/570 in Khasra
No.39/11, 39/15, 39/14, 39/13, 39/18 and 39/23 which belonged to the
petitioner and his brother Parmod Chaudhary. He has submitted that during
checking of the bills, it was found that 5th and final bill recorded on MB
No.19, tiles were laid down on a stretch of 1085 feet in length, whereas, in
the estimate, the length of the road was recorded as 1348 feet and, thus, the
estimate was not prepared keeping in view the position at the spot. He has
submitted that the technical staff of Municipal Council, Jalalabad could not
show the execution of the work of P/L interlocking tiles on the berms of
main stadium road to the drain whereas without execution of the work,
payment was made out of the funds of the MC. He further submits that the
petitioner owns a petrol pump in Jalalabad and fuel amounting to
Rs.9,58,446/- was got filled up from his personal petrol pump known as
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Shri Harkishan Filling Station, in the vehicles of the Municipal Council,
Jalalabad. Thus, he misused his position for getting the fuel from his petrol
pump. It is further submitted that notice under Section 22 of the Act was
issued to the petitioner by the Competent Authority on 17.10.2022 asking
him to show cause within 21 days as to why action should not be taken in
accordance with the law and after considering his reply to the notice, the
Competent Authority removed him from his post of President for abusing
his powers vide Government notification dated 17.02.2023. He has further
submitted that the petitioner challenged the notification dated 17.02.2023 by
way of filing CWP-3684-2023, which was disposed of by this Court vide
order dated 20.04.2023. He has submitted that in compliance of the order
passed by this Court, memo dated 26.04.2023 was issued to the petitioner
and he was provided the copy of the enquiry report of the Chief Vigilance
Officer alongwith the documents relating to points No.12 and 13 of the
enquiry report. He submits that the petitioner filed reply to the same on
03.05.2023. It is submitted that the petitioner was provided an opportunity
of personal hearing by the Hon'ble Minister for Local Government, who is
the Competent Authority, however, the contentions raised by the petitioner
were not found tenable and thus, the previous orders passed by the Hon'ble
Minister which were ratified by the Principal Secretary, Local Government
in terms of the standing orders. He has submitted that the petitioner has not
denied the allegations of laying down P/L interlocking tiles in the street
from Arianwala road. The petitioner did not deny that no revenue rasta was
passing through Khasra Nos.39//11(8-0), 15 (8-0), 14 (8-0), 13 (8-0), 18 (8-
0), 23/2 (6-4) and 23/1 (1-16) according to the Jamabandi for the year 2013-
14, thus, for access to the Harkishan Public School, 40 feet wide road was
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proposed through these Khasra numbers in the site plan and these Khasra
numbers belonged to the petitioner and his brother Parmod Chaudhary. He
submits that it was found that the petitioner tried to mislead the Competent
Authority by making reference to the road which leads from Ferozepur-
Fazilka to Nirankari Bhawan and not from Arianwala road. He has
submitted that report of the Chief Vigilance Officer revealed that 5th and
final running bill entered on the pages 23-24 of MB No.19, interlocking
tiles were laid down on 1085 feet road whereas in the estimate, the length of
the road has been shown to be 1348 feet on 10 feet wide road, thus, it is
evident that estimate was not made on conducting spot inspection first. He
has submitted that as per record of the Municipal Council, Jalalabad (W),
width of the road was found to be 30 feet instead of 10 feet, which is against
the estimate. He has further submitted that the petitioner in his capacity of
President of Municipal Council, Jalalabad sanctioned amount for the works
and also signed the cheques for payment. He has submitted that petrol/diesel
amounting to Rs.9,58,446/- was got filled up from the personal petrol pump
of the petitioner in the vehicles of Municipal Council for about six months,
which is in violation of Section 48 of the Act, as the petitioner is the owner
of the petrol pump and he is liable for the penalty under Section 48 of the
Act being an interested party and thus, the charge-sheet issued against him
was legally justified. He has submitted that after the remand of the case by
this Court, reply filed by the petitioner was not found to be satisfactory and
thus, the petitioner was rightly removed from the post of President vide
order dated 30.05.2023 and thus, there is no violation of principle of natural
justice in any manner in passing the impugned order. He submits that the
petitioner was duly supplied with the complete record of the case and
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thereafter, charges under Section 22 of the Act were found to have been
proved against him and thus, there being no merit in the petition filed by the
petitioner, the same deserves to be dismissed. He has relied upon the
judgments of Hon'ble Supreme Court and other High Courts in Lalaram and
others vs. Jaipur Development Authority and another, 2015 AIR (SCW)
6849; State of Bihar vs. Bihar Rajya MSESKK Mahasangh, 2005 AIR SC
1605; Indumati Laxman Bhakare vs. The State of Maharashtra and others,
2004 (3) Mh.LJ 6; R. Kannimuthu vs. Rajendran and others; 2001(4) CTC
366; Deputy General Manager (Appellate Authority) and others vs. Ajai
Kumar Srivastava, 2021(1) SCT 285; and Chairman-cum-Managing
Director and others vs. Bharat Chandra Behera and another, 2013(16) SCC
623.
8. Learned State counsel has also vehemently opposed the
submissions made by learned Senior Counsel for the petitioner. He has also
argued on the same line as submitted by learned Senior Counsel for
respondent No.4. However, in addition to the same, he has drawn the
attention of this Court to the reply filed by way of affidavit of Er. Mukhtiar
Singh, Executive Engineer, Construction Division No.1, Public Works
Department (B&R), Ferozepur and has submitted that in the year 2011
development work of Fazilka road to Nirankari Bhawan street alongwith
other streets was carried out by PWD (B&R) for providing and laying down
interlocking tiles etc. On receiving the necessary sanctioned from Deputy
Commissioner, Ferozepur, the said work was executed by the Department of
PWD (B&R). He further invited the attention of this Court to the reply filed
that development/repair/construction of the said road was undertaken by the
PWD (B&R) Branch Ferozepur for construction of New Link Road
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Jalalabad- Peere Ke Road, which is also known as Arianwala road to
Harikishan Public School vide letter issued by Executive Engineer, PWD
(B&R) dated 26.04.2013. It was submitted that only Katcha path that was
running earlier was made Pucca (metaled) by the Department. He submits
that the Department made this 10 feet wide Pucca road (metaled) under the
MP Land Scheme, thereafter, Municipal Council, Jalalabad upgraded this
road and interlock tiles were laid on this road by Municipal Council,
Jalalabad and not by PWD (B&R).
9. Learned counsel for respondent No.5 has vehemently argued
that the petitioner was rightly removed from the post of President on finding
the charges under Section 22 of the Act having been proved against him. He
has submitted that the petitioner misused his position by misutilising the
public funds for the development of his private land. He also reiterated the
arguments raised by learned Senior Counsel for respondent No.4-MC and
learned State counsel that there is no illegality whatsoever in the impugned
order passed against the petitioner. In addition to the same, he vehemently
contends that on removal of the petitioner, respondent No.5 was appointed
as the President of the Municipal Council, Jalalabad vide notification dated
28.02.2023 (Annexure R-5/1). He has submitted that the petitioner having
not challenged the election of respondent No.5 as President, the present
petition deserves to be dismissed. To substantiate his arguments, he relied
upon the judgment of Hon'ble Supreme Court in Krishnadevi Malchand
Kamathia and others vs. Bombay Environment Action Group and others,
(2011) 3 SCC 636. He has further submitted that action taken by the
petitioner in constructing the road leading to the school is violative of
Section 171 of the Act as the necessary procedure for declaring the street as
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public street has not been followed. Thus, it is contended by him that the
present petition being devoid of any merit deserves to be dismissed.
10. Heard.
11. After hearing learned counsel for the parties and with their able
assistance the Court has gone through the record of the case. It is apparent
that the petitioner was elected as Municipal Councilor from ward No.2 in
February, 2021 and thereafter, in April, 2021 got elected as President of the
Municipal Council, Jalalabad unanimously. On the basis of complaint filed
by respondent No.3, enquiry was conducted by the Chief Vigilance Officer
on 04.08.2022 and 05.08.2022 and subsequent to that a show cause notice
dated 17.10.2022 was issued to the petitioner under Sections 22 and 50 of
the Act. Reply and supplementary reply to the same was filed by the
petitioner. However, earlier notification dated 17.02.2023 passed for
removal of the petitioner was challenged by the petitioner before this Court
by way of filing CWP-3684-2023 before the Hon'ble Division Bench of this
Court. Hon'ble Division Bench of this Court vide order dated 20.04.2023
disposed of the writ petition filed by the petitioner with specific directions
and remanded the case for decision afresh to the Competent Authority.
Thereafter, the respondent-State again on hearing the petitioner, passed a
fresh impugned notification dated 30.05.2023 by virtue of which the
petitioner was again removed from the post of President of Municipal
Council, Jalalabad. Notification dated 30.05.2023 has been impugned by the
petitioner before this Court. The observations made by the Hon'ble Division
Bench, while remanding the case to the Competent Authority, are of utmost
relevance. Para Nos.24 to 28 and 33 are reproduced as under:-
"24. At this stage, we deem it appropriate to refer to para
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10 of the preliminary objections/ submissions of the written
statement filed on behalf of respondent no.2-Executive
Officer, Municipal Council, Jalalabad. It is stated therein
that Chief Vigilance Officer of the Department of Local
Government, Punjab, on conducting an enquiry found that
40 feet approved road has been constructed on the private
land at the instance of Nagar Council, Jalalabad. However,
as per the site plan, Annexure R-2/9 placed on record
subsequently on 12.04.2023 by learned counsel for the
State, width of the existing road is mentioned as 30 feet. It
has further been stated in reply to para 9 of the writ
petition that Rs. 23.35 Lakhs has been incurred on the road
leading from Ferozepur-Fazilka Road to Nirankari
Bhawan, whereas the expenditure was spent for
construction of a private road which is shown in black
colour in the site plan attached as Annexure R-2/3, width of
the road being mentioned as 40 feet. (We reiterate that
despite pointed query, exact dimensions of the road/parts of
the road over the years are not forthcoming and neither is
there any discussion in this regard in the impugned order).
25. During the course of arguments, we had asked learned
counsel for the respondent-State and Municipal Council to
submit details to inform as to (whether other streets, the
repair and restructuring of which has been approved as
mentioned in Proposal No. 15 of Resolution dated
07.05.2021, are situated on private land or on Municipal
Land). This question was raised as Proposal No. 15 deals
with as many as 51 works including repair etc., of about 36
streets/ roads which are referred to by name/s, the work at
serial no. 50 and 51 i.e., laying interlocking tiles F.F. Road
on berms From Hariale Shop to House of Ex.M.P and
laying interlocking tiles F.F Road on berms from BSF
Sector to Nr. Bhamma Chakki, for an estimate of 98.46
lakhs each, being approved additionally on 07.05.2021.
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26. At the time of arguments, learned counsel for the
petitioner orally stated that all the streets mentioned under
Proposal No. 15 are located on private land. However,
learned counsel for the State or Municipal Council neither
verify nor deny the same. It is stated by learned counsel for
the State that he is not in possession of necessary
information in this respect.
27. The issue of other streets of which the repair has been
undertaken being on private or Municipal Council land,
has not been touched and there is not a whisper in the order
about the impact or otherwise thereof or action which has
been taken against other persons.
28. Perusal of order dated 17.02.2023, indeed reveals that
there is copious narration of facts by the authority.
Reference has been made to the report of Chief Vigilance
Officer, Local Government, Punjab. Reference is also made
to comments of the Chief Vigilance Officer, which were
called for by the authority, besides reply to show cause
notice issued to the petitioner. (Thereafter, while referring
to comments of the Chief Vigilance Officer, it is simply
observed that allegations of misuse of power and misuse of
funds of M.C Jalalabad are proved. Non application of
mind by the authority in question is reflected clearly as
there is not a shred of reasoning available).
x x x x x x x x
33. In the present case, it is an indisputable position that
impugned order has been passed with a bare narration of
the facts and simple observation that the order is being
passed on the basis of the enquiry by the Vigilance. None of
the points, issues and contentions as raised have even been
considered, deliberated upon and thereafter decided with
attendant reasoning. There is nothing on record to indicate
that the relevant record was looked into, examined and
considered by the competent authority. Pleas of the
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petitioner including the one that part of the road in
question has been in existence since 1970, 2006, 2011 and
2013 with the same being constructed out of the Municipal
Council funds since then has not been dealt with.
Discrepancies as narrated in the foregoing paras have also
not been considered, neither their impact or otherwise
discussed. It was indeed incumbent upon the authority to
have looked into all these aspects.
12. From abovesaid directions given by Hon'ble Division Bench, it
is evident that mandate of the Court was to the State to pass a fresh order
after the compliance of the directions given therein. A perusal of the
proceedings taken in the present case shows that the notification/order under
challenge has been issued without application of mind and without taking
care of the directions issued by the Hon'ble Division Bench reproduced
above. For the adjudication of the issue involved, perusal of Section 22 of
the Act is essential, which reads as under:-
"22. Resignation [or removal] of President and Vice-
President. - Whenever a President or Vice-President vacates
his seat or tenders in writing to the committee his resignation
of his office, he shall vacate his 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 if a resolution requesting the removal of
the President or the Vice-President is passed by two-thirds of
the members of the committee, the President or, as the case
may be, the Vice- President shall be deemed to be under
suspension immediately after such resolution is passed] :
Provided further that before the [State] Government
notifies his removal, the reason for his proposed removal shall
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be communicated to him by means of a registered letter in
which he shall be [called upon] to tender within twenty-one
days an explanation in writing, and, if no such explanation is
received in the office of the [appropriate Secretary to
Government] within twenty one days of the despatch of the
said registered letter, the [State] Government may proceed to
notify his removal.]
13. Precise grounds taken for removal of the petitioner from the
post of President, are on the basis of three fold allegations as enumerated in
the charge-sheet. Firstly, renovation of the street from Ferozepur-Fazilka
road i.e. Arianwala road going upto Shri Harkishan School. Secondly,
laying down the interlocking tiles at the berms on both sides of the road and
thirdly, filling up of fuel from petrol pump of the petitioner in the MC
vehicles for about six months. From the record, it is evident that on the basis
of complaint, enquiry was conducted by the Chief Vigilance Officer on
04.08.2022 and 05.08.2022 i.e. within two days. General House meeting
had taken place on 07.05.2021 under the Chairmanship of Vice President
i.e. respondent No.5, wherein approval for total 51 development works was
granted which was lateron approved by the Director as well. The precise
contention raised by learned Senior Counsel for respondent No.4-MC is that
the petitioner got approved the agenda No.39 primarily for the development
of his own land, however, learned Senior Counsel for the petitioner in
emphatic terms argued that this road existed since long and time and again
in the years 2006, 2011 and 2013 renovation of this road was carried out at
the expenses of PWD (B&R). It is evident from the record that school is
also functioning since 2013 and the same has not been denied by the
respondents as well. Once an institute like school is running in the area, it
does not lie in the mouth of respondent-State that it is not its duty to provide
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necessary infrastructure for the children and the public at large. While
granting the sanction for running a school, the safety, hygiene etc. of the
children is the primary incumbent duty of the State. Learned Senior counsel
for the petitioner has also undertaken before this Court that the petitioner
would never claim any compensation for the necessary land which has been
used for widening of this road. It is also an admitted fact that the necessary
approval of Rs.23.35 lacs was granted by passing the resolution dated
11.05.2021 in accordance with law. From the agenda passed, it is evident
that in all 51 development works were approved and approval for some of
other streets of the private nature, was also granted vide this resolution.
Once work has been carried out by the technical experts in pursuance to the
agenda passed, simply because the majority of the land in the area belongs
to the petitioner and his brother, is not a sufficient ground to hold the
petitioner guilty for the abuse of power. This Court had given specific
directions while disposing of the earlier petition as mentioned above, but
the respondents had again failed to comply with the directions given by this
Court that whether the development work was carried out regarding other
private streets as well. Besides this, the road was renovated on the earlier
occasions as well, as is evident from the record. Thus, simply because the
interlocking tiles were laid and the road was further widened, is not
sufficient to prove the charges against the petitioner. Next charge regarding
the interlocking tiles on the berms of the road was also under the
supervision of the technical experts. If at all there was any negligence in the
execution of this work, the technical team was responsible for executing the
necessary work but there is nothing on record to show that any action has
been taken against any technical staff. Regarding third allegations of filling
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up the fuel from the petrol pump of the petitioner for about six months, the
prime allegation is that petrol pump belonged to the petitioner and thus, he
becomes an interested party. However, on the query raised by the Court
whether there are any set guidelines framed by the respondent-MC for
purchasing the fuel, it was answered that there are no written guidelines and
as per norms fuel can be purchased for the vehicles from any petrol pump
and on presentation of bills, the same is reimbursed by the respondent-MC.
Thus, except saying that the petitioner is owner of the petrol pump, there is
no substance regarding any embezzlement or bungling made in purchasing
the fuel from his petrol pump. Even otherwise statistics produced on record
would show that the expenditure incurred on the fuel during the period
when it was purchased from the petrol pump of the petitioner is less than the
amount spent in purchasing the fuel from another filling stations. From the
fresh impugned order, it is apparent that the respondent-State has not
answered the directions given by this Court while remanding the case on
20.04.2023 as reproduced above. Thus, the moot question to be answered by
this Court is that on the basis of the allegations made against the petitioner
as produced on record in the light of the law settled whether the impugned
order passed is legally sustainable.
14. At this stage, it is pertinent to mention that the Hon'ble
Supreme Court in case of Tarlochan Dev Sharma's case (supra), has
observed as under:-
"6. In a democracy governed by rule of law, once elected to an
office in a democratic institution, the incumbent is entitled to
hold the office for the term for which he has been elected
unless his election is set aside by a prescribed procedure known
to law. That a returned candidate must hold and enjoy the
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office and discharge the duties related therewith during the
term specified by the relevant enactment is a valuable statutory
right not only of the returned candidate but also of the
constituency or the electoral college which he represents.
Removal from such an office is a serious matter. It curtails the
statutory term of the holder of the office. A stigma is cast on
the holder of the office in view of certain allegations having
been held proved rendering him unworthy of holding the office
which he held. Therefore, a case of availability of a ground
squarely falling within Section 22 of the Act must be clearly
made out. A President may be removed from office by the State
Government, within the meaning of Section 22, on the ground
of "abuse of his powers" (of President), inter alia. This is the
phrase with which we are concerned in the present case.
7. The proceedings for removal must also satisfy the
requirements of natural justice. Second proviso to Section 22
requires that the reason for the proposed removal shall be
communicated to the person proceeded against by means of a
registered letter and he shall be allowed 21 days for putting up
his explanation in writing. And thereafter alone, the State
Government may proceed to notify his removal. In between a
duty to take decision by due application of mind to the
allegations made and the explanation given is implicit and shall
have to be read in the provision though not expressly stated
therein. The appellant is not charged with habitual failure to
perform the duties of President of Municipal Council. He is
charged with having abused his powers of President. The vires
of the impugned order dated 1.10.1999 have to be tested on the
touchstone of the availability of this ground.
xx xx xx
10. The expression 'abuse of powers' in the context and setting
in which it has been used cannot mean use of power which may
appear to be simply unreasonable of inappropriate. It implies a
willful abuse or an intentional wrong. An honest though
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erroneous exercise of power or an indecision is not an abuse of
power. A decision, action or instruction may be inconvenient or
unpalatable to the person affected but it would not be an abuse
of power. It must be such an abuse of power which would
render a Councilor unworthy of holding the office of President,
Inasmuch as an abuse of power would entail adverse civil
consequences, the 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
of Section 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 involving, dishonesty of intention is 'abuse of powers'
within the meaning of Section 22 of the Act. The legislature
could not have intended the occupant of an elective office,
seated by popular verdict, to be shown exit for a single
innocuous action or error of decision.
11. One of the requirements of the principles of natural justice,
as incorporated in second proviso to Section 22, is that the
reasons for the proposed removal have to be communicated to
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 necessary corollary therefrom that what has not
been communicated or not relled on in the show cause notice as
a ground providing reason for the proposal removal cannot be
relied upon as furnishing 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 meet
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and therefore he must be apprised of the exact content of the
abuse of power attributed to him. The authority taking decision
must apply its mind also to be explanation furnished by the
person proceeded against and this must appear from the order
passed under Section 22."
15. Hon'ble Supreme Court M.V. Bijlani's case (supra) has held as
under:-
"9. Evidently, the evidences recorded by the Enquiry Officer
and inferences drawn by him were not commensurate with the
charges. If it was a case of misutilisation or misappropriation,
the Appellant should have been told thereabout specifically.
Such a serious charge could not have been enquired without
framing appropriate charges. The charges are otherwise vague.
We have noticed hereinbefore that the High Court also
proceeded on the basis that the non-maintenance of diary
amounted to misutilisation of copper wire.
x x x x x x x x
12. Disciplinary proceedings, however, being quasi-criminal in
nature, there should be some evidences to prove the charge.
Although the charges in a departmental proceedings are not
required to be proved like a criminal trial, i.e., beyond all
reasonable doubts, we cannot lose sight of the fact that the
Enquiry Officer performs a quasi-judicial function, who upon
analysing the documents must arrive at a conclusion that there
had been a preponderance of probability to prove the charges
on the basis of materials on record. While doing so, he cannot
take into consideration any irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot shift the burden of proof.
He cannot reject the relevant testimony of the witnesses only
on the basis of surmises and conjectures. He cannot enquire
into the allegations with which the delinquent officer had not
been charged with."
16. Further this Court in Rubina's case (supra) dealing with same
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issue, held as under:-
"19. The ground which has been taken in the impugned order
dated 20.07.2020 (Annexure P-18) to conclude that the work,
which has been carried out by the petitioner is with a mala fide
intention to help the owners of the property of a particular
locality/area, is also without any basis or evidence on record.
Merely because, complainant has alleged that by constructing
this passage, the value of the property abutting the said passage
would result in escalation giving undue advantage to the
owners of the properties out of the Municipal funds, the
allegations could not be said to be proved. If this reason, which
has been given by respondent No.2, is accepted and that too,
without any evidence being on record showing/establishing the
benefit being given to a particular person(s) in this manner
then, no development work would and could be carried out
anywhere. It is known to one and all and it is not a secret that
wherever public amenities improve, escalation of the value of
the properties of the said area and abutting thereto, takes place.
Being a representative of the public, President of the Municipal
Committee, is mandated and required to act for the benefit of
the public at large and as stated above, construction of this
passage has been found to be for the benefit of the public and
not merely the residents of the particular locality. Therefore,
the allegation that the petitioner had acted with a mala fide
intention, is without any justification and basis."
17. From the conjoint reading of the law settled by Hon'ble
Supreme Court, which has been followed thereafter in various cases, it is a
settled position of law that the term abuse of power is to be such which
would render a Councilor unworthy of holding the office of President. A
single instance where a petitioner was alleged to have acted without due
caution and care, neither would be a ground for holding him guilty of abuse
of power nor would fall within the term of habitual failure to perform duties
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as it would require multiple failure to perform the duties for invoking this
power.
18. Respondent-State despite the directions not only failed to
answer the above query but rather concealed the same. Charge-sheet was
issued for the offences under Sections 22 and 50 of the Act, whereas,
lateron Section 50 of the Act was dropped and the petitioner was removed
only for the charges under Section 22 of the Act. Section 50 of the Act reads
as follows:-
50. Liability of members of the committee. - (1) Every
person shall be liable for the loss, waste or misapplication of
any money or other property belonging to a committee, if such
loss, waste or misapplication is reported by the Examiner of
Local Fund Accounts, or other audit authority empowered by
the State Government in this behalf to be a direct consequence
of his neglect or misconduct in the performance of his duties
while a member of the committee; and he may after being
given an opportunity, by notice served in the manner provided
for the service of summonses in the Civil Procedure Code, to
show cause by written or oral representation why he should not
be required to make good the loss, be surcharged with the value
of such property or the amount of such money by the Deputy
Commissioner, and if the amount is not paid within fourteen
days from the expiry of the period of appeal prescribed by
subsection (2) the Collector at the request of the Deputy
Commissioner shall proceed forthwith to recover the amount as
if it were an arrear of land revenue, and have it credited to the
municipal fund.
(2) The person against whom an order under sub-section (1) is
made, may, within thirty days of the notification of such order,
appeal to the State Government who shall appoint an officer to
hear the appeal; and the appellate authority shall have the
power of confirming, modifying or disallowing the surcharge :
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Provided that no person shall under this section be called
upon to show cause after the expiry of a period of four years
from the occurrence of such loss, waste or misapplication or
after the expiry of one year from the time of his ceasing to be a
member:
Provided further that nothing in this section shall be
deemed to debar the aggrieved party from seeking a remedy in
a civil court against an order made under sub-section (1).
(3) Nothing in this section shall apply to an associate member."
19. From the reading of the statutory provisions of Section 50 of
the Act, it is apparent that the legislature in the best of its wisdom had laid
down that for the loss, waste or misapplication of any money etc. the
Examiner of the Local Fund Accounts or other audit authority is empowered
to assess the same, but no such procedure has been adopted to substantiate
the allegations against the petitioner. Rather respondent-State has time and
again made efforts to remove the petitioner from his democratically elected
post on the basis of conjunctures and surmises.
20. Hon'ble Supreme Court of India in Narinder Mohan Arya's
(supra) has held as under:-
"19. In our opinion the learned Single Judge and
consequently the Division Bench of the High Court did not
pose unto themselves the correct question. The matter can be
viewed from two angles. Despite limited jurisdiction a civil
court, it was entitled to interfere in a case where the report of
the Enquiry Officer is based on no evidence. In a suit filed by a
delinquent employee in a civil court as also a writ court, in the
event the findings arrived at in the departmental proceedings
are questioned before it should keep in mind the following: (1)
the enquiry officer is not permitted to collect any material from
outside sources during the conduct of the enquiry. [See State
of Assam & Anr. V. Mahendra Kumar Das & Ors.[ (1970) 1
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SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry
fairness in the procedure is a part of the principles of natural
justice [See Khem Chand V. Union of India & Ors., AIR
1958 SC 300 and State of Uttar Pradesh v. Om Prakash
Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary
power involve two elements (i) Objective and (ii) subjective
and existence of the exercise of an objective element is a
condition precedent for exercise of the subjective element. [See
K.L. Tripathi V. State of Bank of India & Ors. [ (1984) 1
SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down
any rigid rules of the principles of natural justice which
depends on the facts and circumstances of each case but the
concept of fair play in action is the basis. [See Sawai Singh V.
State of Rajasthan [ AIR 1986 SC 995] (5) The enquiry
officer is not permitted to travel beyond the charges and any
punishment imposed on the basis of a finding which was not
the subject matter of the charges is wholly illegal. [See
Director (Inspection & quality Control) Export Inspection
Council of India & Ors. Vs. Kalyan Kumar Mitra & Ors.
[ 1987 (2) CLJ 344]. (6) Suspicion or presumption cannot take
the place of proof even in a domestic enquiry. The writ court is
entitled to interfere with the findings of the fact of any tribunal
or authority in certain circumstances. [See Central Bank of
India Ltd. V. Prakash Chand Jain, AIR 1969 SC 983,
Kuldeep Singh v. Commissioner of Police and Others,
(1999) 2 SCC 10].
x x x x x x x x x
21. Yet again in Sher Bahadur V. Union of India &
Ors. [2002 (7) SCC 142] this Court observed:
"It may be observed that the expression "sufficiency of
evidence" postulates existence of some evidence which links
the charged officer with the misconduct alleged against him.
Evidence, however voluminous it may be, which is neither
relevant in a broad sense nor establishes any nexus between the
alleged misconduct and the charged officer, is no evidence in
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law. The mere fact that the enquiry officer has noted in his
report, "in view of oral, documentary and circumstantial
evidence as adduced in the enquiry", would not in principle
satisfy the rule of sufficiency of evidence. Though, the
disciplinary authority cited one witness Shri R.A. Vashist, Ex.
CVI/Northern Railway, New Delhi, in support of the charges,
he was not examined. Regarding documentary evidence, Ext.
P-1, referred to in the enquiry report and adverted to by the
High Court, is the order of appointment of the appellant which
is a neutral fact. The enquiry officer examined the charged
officer but nothing is elicited to connect him with the charge.
The statement of the appellant recorded by the enquiry officer
shows no more than his working earlier to his re-engagement
during the period between May 1978 and November 1979 in
different phases. Indeed, his statement was not relied upon by
the enquiry officer. The finding of the enquiry officer that in
view of the oral, documentary and circumstantial evidence, the
charge against the appellant for securing the fraudulent
appointment letter duly signed by the said APO (Const.) was
proved, is, in the light of the above discussion, erroneous. In
our view, this is clearly a case of finding the appellant guilty of
charge without having any evidence to link the appellant with
the alleged misconduct. The High Court did not consider this
aspect in its proper perspective as such the judgment and order
of the High Court and the order of the disciplinary authority,
under challenge, cannot be sustained, they are accordingly set
aside."
21. Hon'ble Division Bench of this Court in Union of India and
others vs. Dayanand Pandora and another's case (supra) has held
observed as under:-
17. Reliance has been placed by the learned counsel for the
applicant- respondent No. 1 on the judgment of Hon'ble the
Supreme Court rendered in the case of M.V. Bijlani v. Union
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of India, 2006(2) S.C.T. 454 : JT 2006 (4) SC 469 : [2006 (3)
SLR 105 (SC)], wherein it has been held that allegations in
respect of which the delinquent officer had not been charged
with, no punishment could be imposed on such an allegation.
In para 23 of the judgment, Hon'ble the Supreme Court has
observed thus:
"Evidently, the evidence recorded by the enquiry
officer and inferences drawn by him were not
commensurate with the charges. If it was a case of
misutilisation or misappropriation, the appellant should
have been told thereabout specifically. Such a serious
charge could not have been enquired without framing
appropriate charges."
18. Therefore, in the present case when there was neither any
allegation of monetary loss in the charge-sheet nor was there
any finding by the disciplinary authority that the applicant-
respondent No. 1 had misappropriated, then the punishment
imposing recovery is unsustainable in the eyes of law."
22. Thus, as per law settled, it is evident that the evidence collected
should link the delinquent with the charges he has been prosecuted with.
The guilt of the delinquent cannot be based on conjunctures and surmises. A
fair and impartial enquiry/investigation is the backbone for the pursuit of
the truth in the allegations levelled against the delinquent. However, in the
present case, the enquiry has been conducted by the Chief Vigilance Officer
in a hasty manner within two days. The respondent-State without answering
the directions given by the Hon'ble Division Bench has made futile attempt
in justifying the charge-sheet issued against the petitioner on the basis of
vague probabilities. However, Hon'ble Supreme Court in the judgments as
cited above has held that sufficiency of evidence would be met if the same
links the delinquent with the charges he has been charged with.
23. This Court on weighing the facts and circumstances of the
present case finds that the evidence produced during the enquiry is not
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sufficient to prove the allegations against the petitioner.
24. So far as contentions raised by learned counsel for respondent
No.5 that respondent No.5 was subsequently elected as the President of
Municipal Jalalabad, however, it was argued before this Court that though
respondent No.5 was elected as President but she is not working as
President of Municipal Council, Jalalabad. Even otherwise her appointment
was subject to the outcome of the litigation initiated by the petitioner. Thus,
this Court does not find any merit in the submissions made by respondents
No.5.
25. There is no dispute regarding the judgments relied upon by
learned Senior Counsel for respondent-MC and respondent No.5, but the
same are distinguishable in the facts and circumstances of the present case.
26. Testing the impugned action taken by the respondents on the
anvil of the law settled, this Court finds the impugned notification dated
30.05.2023 (Annexure P-20) to be unsustainable in the eyes of law and
hence, the same is set aside.
27. The present petition is allowed.
(RAJESH BHARDWAJ)
13.03.2024 JUDGE
sharmila Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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