2001 Supreme(SC) 979

2001(5) Supreme 361
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and K.G. Balakrishnan, JJ.
Tarlochan Dev Sharma -Appellant
versus
State of Punjab & Ors. -Respondents
Civil Appeal No. 1889 of 2000
Decided on 25-7-2001
Counsel for the Parties :
For the Appellant : Mr. A.K. Panda, Sr. Advocate, Mr. S.K. Pabby for Mr. Prem Malhotra, Advocate.
For the Respondents : Mr. Rajeev Sharma, Mr. Vinod Shukla, Mr. A. Mariarputham, Ms. Kavita Wadia Ms. Pratibha Singh and Mr. Mahinder Singh, Advocates.

IMPORTANT POINT
Appellant cannot be said guilty of an abuse of his power even if allegations made against appellant are accepted as correct. Therefore, the impugned order of removal of appellant from Presidentship/Membership of Municipal Council is not sustainable within the purview of Section 22 of Punjab Municipal Act, 1911.

Headnote:Punjab Municipal Act, 1911-Sections 22, 16(1)(c) and (2)-Show cause to appellant by Principal Secretary, Government of Punjab, Department of Local Government-Charge that appellant asked the executive officer not to pay for Fogging Machine purchased for Municipal Council against the interests of Municipal Council-Replied that Fogging Machine was returned as not working so payment stopped-Still removed from Presidentship and Membership of Municipal Council-Writ against that it was political action in conspiracy with bureaucrats-Dismissed-Appeal against to Supreme Court-Whether the impugned order of removal is sustainable within the purview of Section 22 of the Punjab Municipal Act, 1911? (No)-Case law and Text Books referred-Appeal allowed-(Words & Phrases: Abuse of Power ).

       Held : Even accepting the allegations made against the appellant, as contained in the show cause notice, to be correct, his decision to withhold the payment may be said to be an erroneous or unjust decision. For this reason alone the appellant cannot be said to be guilty of an abuse of his powers. If any one suffered by delay in payment it was the supplier and not the Municipality. There is nothing in the show cause notice or the ultimate order to hold how the act of appellant had obstructed the working of Municipal Council or was against the interest of council . We are, therefore, clearly of the opinion that not only the principles of natural justice were violated by the factum of the impugned order having been founded on grounds at variance from the one in the show cause notice, of which appellant was not even made aware of let alone provided an opportunity to offer his explanation, the allegations made against the appellant did not even prima facie make out a case of abuse of powers of President. The High Court was not right in forming an opinion that the appellant was persuading the High Court to judicially review like an appellate court the finding arrived at by the competent authority. The present one is a case where the impugned order is vitiated by perversity. A conclusion of abuse of powers has been drawn from such facts wherefrom such conclusion does not even prima facie flow. The impugned order is based on non-existent ground. It is vitiated by colourable exercise of power and hence liable to be struck down within the well settled parameters of judicial review of administrative action. Although the appellant tried to suggest a case of malafides and colourable exercise of power by stating a few facts and inviting a finding that impugned order was passed with an ulterior motive in as much as the appellant s election to the office of the President did not suit the power that be and the political bosses of Shri N.K. Arora, the then Principal Secretary, Department of Local Government, State of Punjab, however, we are not entering into that question as it is unnecessary and also because adequate material has not been brought on record and placed before the court so as to undoubtedly arrive at such a finding. However, something has to be said about Shri N.K. Arora, Principal Secretary who initiated the action, heard the appellant and passed the impugned order of removal dated 1-10-1999. It is interesting to view the present day bureaucrat-politician relationship scenario. "A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladin s lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy......The ministers make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it. (Effectiveness of Bureaucracy, The Indian Journal of Public Administration, April-June 2000 at p.165). In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302, this court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in The Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue. The appeal is allowed. The judgment of the High Court under appeal is set aside. The writ petition filed by the appellant stands allowed. The impugned order dated 1-10-1999 removing the appellant from the Presidentship of the Municipal Council, Rajpura under Section 22 of the Punjab Municipal Act, 1911 is hereby quashed and set aside. The appellant shall be entitled to costs quantified at Rs. 10,000/- from the State of Punjab, respondent No. 1, which has contested the appellant s case throughout. The appellant shall stand forthwith reinstated in the office of the President of Rajpura Municipality for the rest of his term. (Paras 14, 15, 16, 17 & 18)