JOGINDAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution praying for the issuance of a writ of mandamus or any other appropriate writ, direction or order requiring the State of Punjab, the first respondent, and the Deputy commissioner, hoshiarpur, the second respondent to restore the petitioner to the office of municipal Commissioner, Mukerian Municipal Committee, from which it is alleged that he had been wrongly and improperly removed. According to the allegations made in the petition, the petitioner is said to be a persona non grata with the punjab State because of his political activities. Accordingly, the State Government by notification No. 10212-ICI-60/53358 dated 16th September, 1960, ordered that the petitioner's seat as-member of the Municipal Committee, Mukerian, shall be vacated from the date of publication of the said notification and it was further ordered that, under Section 16 (3) of Punjab Municipal Act, 1911, the petitioner would be disqualified for election for a period of three years from the said date. This was contended to be a mala fide removal. It was further contended that Section 16 of the said Act dealt with the subject of removal of individual members for their acts and defaults, but they had a protection of being given an opportunity of tendering an explanation in writing which was not the case when resort was had to the provisions of Section 14. Notification was under Section 14 (e) with ulterior motive of depriving the petitioner of having an opportunity to defend himself against contemplated removal. in this case, the petitioner did not receive any notice or intimation about the contemplated action against him and was given no opportunity to show cause against the action intended. It was then said that has he been given an opportunity to show cause against the proposed removal, he would have placed the entire material before the State Government to show that there was no cause against his removal. Consequently, it was prayed that a writ of mandamus or any other appropriate writ, direction, or order be issued calling upon the respondents to restore the petitioner to the office of Municipal commissioner.

(2.) IN the written statement filed on behalf of the Punjab State it was stated that the seat of the petitioner in the Municipality was declared vacant under Section 14 (e) of the Punjab Municipal Act, 1911, on the basis of 3 report received from the deputy Commissioner, Hoshiarpur, to the effect that the

(3.) MR. Chetan Dass Dewan, learned counsel on behalf of the Punjab State, has placed his main reliance upon an unreported case decided by a Division Bench of this Court on 16-3-1962, in Civil Writ No. 1194 of 1961, Ram Dayai v. Punjab state. The judgment has been read to me in extenso, and reliance was placed upon certain observations made therein. The petitioner relied upon an earlier division Bench case in Harnam Singh Modi v. State, (1958) 60 Pun LR 394: (AIR 1960 Pun] 186 ). In the judgment of the Division Bench in Ram Dayal's case, C. W. No. 1194 of 1961, D/- 16-3-1962 (Punj) reference was made to a decision of the supreme Court in Radheshyam Khare v. state of Madhya Pradesh, AIR 1959 SC 107. Mr. H. S. Gujrat, learned counsel for the petitioner, has maintained that the points arising in the petition are covered by the Division Bench decision in Harnam singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Pun) 186) and the facts of the two cases bear close analogy. He maintained that the latter case of Ram dayal, C. W. No. 1194 of 1961, D/-16-3-1962 (Punj) was distinguishable and certain observations made by the Division Bench in that case lent some support to him as also the observations of the supreme Court in the case of Radheshyam khare, AIR 1959 SC 107. It was held in Harnam Singh Modi's case, (1958) 60 Pun lr 394: (AIR 1960 Punj 186) that a member who is removed from the office on the ground that he has flagrantly abused his position as a member was entitled to be informed of the reason of his proposed removal and to be afforded an opportunity of tendering an explanation. It was further held that the provisions contained in Section 14 of the Punjab Municipal Act were general provisions and those of Section 16 of the Act were specific or particular. Where the case of removal of a member of a Municipal Committee was clearly governed by special provisions of Section 16 of the Act, the general provisions contained in Section 14 of the Act would not apply. In such a case the Government must communicate to the member the reasons for his proposed removal and afford him an opportunity of tendering his explanation. As no such opportunity had been given, the Letters patent Bench set aside the decision of the learned Single Judge, allowed the appeal and held that the appellant was entitled to a mandamus that he should be restored to the office from which he had been wrongly and improperly removed. A doubt was expressed in Ram Dayal's case, C. W. No. 1194 Of 1961, DA 16-3-1962 (Punj) as to the view of the Letters Patent Bench in Harnam Singh Modi's case, (1958) 60 Pun LR 394: (AIR 1960 Punj 186) that if removal of a member could be ordered either under Section 14 or under Section 16 then It must be ordered under the latter provision. It was thought that this view was no longer sustainable in view of the decision of their Lordships of the Supreme Court in Radheshyam khare's case, AIR 1959 SC 107.