SAROJ KUMAR KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Rule is directed against the order (annex. A to the petition) passed by the Government of West Bengal on June 13, 1966, in exercise of its powers under the proviso to Sub -section (2) of Sec. 61 of the Bengal Municipal Act, 1932 (hereinafter referred to as 'the Act'), removing the Petitioner from the office of vice -chairman of the South Dum Dum Municipality. At a special meeting of the Commissioners of the Municipality held on November 12, 1965, a resolution was passed by a vote of 11 out of the 18 commissioners of the Municipality to remove the Petitioner from the office of vice -chairman, but since this number was less than two -thirds of the total number of commissioners of the Municipality, it was submitted for the orders of the State Government under the proviso to Sec. 61(2) of the Act. As stated before, by the impugned order, the State Government gave its sanction to the removal on June 13, 1966. The Petitioner came to Court on June 22, 1966 and obtained this Rule and also an interim injunction against electing another person as vice -chairman in place of the Petitioner eventually the election was allowed to be held, but the opposite party have been restrained from taking any further steps in pursuance of that election, pending disposal of this Rule. Separate affidavits -in -opposition have been filed on behalf of (a) opposite parties Nos. 6 to 15, who are some of the commissioners of the Municipality; (b) opposite party No. 5, the chairman of the Municipality; (c) opposite parties Nos. 1 -2, i.e., the State of West Bengal.

(2.) The first point urged on behalf of the Petitioner can be disposed of at once. It is urged that the order of the State Government is vitiated by reason of a contravention of the principle of natural justice inasmuch as the Petitioner was not heard before the impugned order was made. This contention can be upheld only if a quasi -judicial obligation can be inferred from the provisions of the proviso inasmuch as no such duty is imposed by it expressly. Sec. 61(2) says:

(3.) The distinction made by the Legislature in the two cases is based on obvious reasons. Under Sec. 62(1) a commissioner may be removed by the State Government only on the charge of misconduct supported by a resolution of the commissioners passed at a special meeting Sub -section (2) of Sec. 62 empowers the State Government to remove a commissioner even without such resolution of the body of commissioners in case any of the contingencies mentioned in Clauses (a) to (f) take place. These contingencies are all objective facts, e.g. whether the commissioner in question is a defaulter in payment of rates and taxes or he has been declared an insolvent, (a) In a case governed either by Sub -section (1) or Sub -section (2) of Sec. 62, thus, there is an objective allegation against the commissioner in question, which it is possible for him to rebut by producing evidence or otherwise that he was either not guilty of the misconduct alleged or that any of the contingencies specified by the Legislature did not exist in fact, (b) Under Sec. 61, on the other hand, there is no such allegation of misconduct or any other objective state of affairs. It is to be noted that a chairman or a vice -chairman holds his office upon the vote of the commissioners given at a meeting held for that purpose under Sec. 48. The Legislature, therefore, provides in Sec. 61(2) that the chairman or the vice -chairman so elected can be removed without any other formality of a two -thirds or more of the number of commissioners of the municipality express their want of confidence by passing a vote for his removal, irrespective of any allegation of misconduct or the like. The proviso to Sub -section (2) deals with the contingency when such adverse vote is less than two -thirds but more than half of the total number of commissioners of the municipality. It is in this case that the matter has to be presented before the State Government and the vice -chairman cannot be removed unless the State Government so orders. The specification of a two -thirds majority is not fixed by the Legislature arbitrarily but is founded on a consideration of prudence that if two -thirds or more of the number of commissioners is hostile to a chairman or vice -chairman it would not, in any case, be possible for him to carry on the functions of his office. Whenever, therefore, the number of members adverse to the chairman or vice -chairman exceeds this specified majority, the chairman or vice -chairman must vacate his office without more. In other words, the power of a two -thirds majority of the commissioners to remove the holder of such office is absolute. But when the number is short of the statutory minimum of two -thirds, the question of removal is left to the discretion of the State Government. The State Government will apparently have to exercise the discretion with regard to the proportion of members for and against the chairman or vice -chairman. Supposing only one more than a half of the members are against the chairman or vice -chairman, the State Government may ordinarily refuse to exercise its discretion if, according to its assessment, it might be possible for the chairman or vice -chairman to carry on his functions by winning over one or two members to his side, who might for the time being have expressed an adverse opinion against him or by taking advantage of the casual absence of one or two members from the meetings. On the other hand, if the number of members voting against the vice -chairman is just short of the two -thirds majority by one or two the State Government may have to remove the vice -chairman, if it finds that it would not be possible for the vice -chairman to overcome such an adverse situation. The exercise of the discretionary power of the Government under the provision thus would depend upon the subjective assessment of the situation by the Government.