Back
2003 Supreme(Bom) 256
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Daga V.C. Kanade V.M., JJ.
Manohar Pandhari Deulkar .... Petitioner.
Versus
Commissioner, Nagpur Division others.... Respondents.
Writ Petition No. 325 of 2003, decided on 26-2-2003.
Advocates appeared :
A.S. Chandurkar, for petitioner.
Bhushan Gavai, G.P., for respondent No. 1.
M.V. Mohokar, for respondent No. 2.
Anjan De, for respondent No. 3.
Headnote:CONSTITUTION OF INDIA - Article 19(1)(a) - Scheme of Article 19 contemplates six freedoms - Article 19 is protection against State s action - It has nothing to do with regard to two private parties - Article 19(1)(a). - See Maha- rashtra Zilla Parishad and Panchayat Samiti Act, 1961, Section 16(1)(b).
Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 - Section 16(1)(h) - Constitution of India, Article 19(1)(a) - Disqualifi- cation - A Councillor of Zilla Parishad - An employee of Western Coalfields Ltd. - A subsidiary of Coal India Ltd. - Power of Government - Gov- ernment not empowered to remove employee - Government not appointing authority - Councillor holding office of profit - Office not under control of Government - Employee not disqualified for being a Councillor of Zilla Parishad - Order passed by Com- missioner holding him disqualified not sustainable - Quashed and set aside. - The petitioner who is an employee of the Western Coalfields Limited which is one of the subsidiaries of Coal India Limited could not be disqualified to hold the post of Councillor of the respondent No. 2. When the Apex Court has held that the employee working with the North- Eastern Coalfields Limited cannot be said to have held office of profit within the meaning of Article 191(1)(a) of the Constitution of India one fails to understand as to how the petitioner, a Pump Khalasi working with the Western Coalfields Limited which is at par with North Eastern Coalfields Limited to held to be disqualified on the ground that he is holding the office of profit with the Government.
Government has no power or authority to remove the petitioner nor his appointing authority is the Gov- ernment. On the aforesaid backdrop of the law and facts the impugned order passed by the respondent No. 1 cannot be sustained on any count whatsoever. It is no doubt true that the petitioner holds the office of profit and there is profit attaching with his office, but the said office of profit is not under the Government. The impugned order, in the circumstances cannot stand to the scrutiny of the being contrary to the law laid down by this Court as well as Apex Court. As such, the same is liable to be quashed and set aside.
The Statutory Provisions :
2. The relevant statutory provisions are as under :-
Section 16(1)(h) of the Act reads as Act
"16. (1) Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as, and for being, a Councillor-
(h) if he holds any office of profit under a Panchayat or Zilla Parishad or under or in the gift of the Government."
Whereas, section 40 of the Act is as under :
"40. (1) Subject to the provisions of sub-section (2) of section 62, if any Councillor during the term of his office
(a) becomes disqualified under sub-section (1) of section 16, or
(b) is, for a period of six consecutive months (excluding in the case of presiding authority the period of leave duly sanctioned) without the permission of the Zilla Parishad, absent from meetings thereof or is absent from such meetings for a period of twelve consecutive months,
the office of such Councillor shall, notwithstanding anything contained in Clause (c) of sub-section (1) of section 8, become vacant.
(2) If any question whether a vacancy has occurred under this section is raised either by the Commissioner suo motu or on an application made to him by any person in that behalf, the Commissioner shall decide the question, as far as possible, within ninety days from the date of receipt of such application; and his decision thereon shall be final. Until the Commissioner decides that the vacancy has occurred, the Councillor shall not be disabled from continuing to be a Councillor;
Provided that, no decision shall be given against any Councillor without giving him a reasonable opportunity of being heard."
The Facts in brief.
3. The facts in brief giving rise to the present petition in nut-shell are that the petitioner was elected as Councillor of Zilla Parishad, Chandrapur in the elections held in the month of February 2002. After being elected, the petitioner started functioning as Councillor or respondent No. 2 Zilla Parishad, Chandrapur.
4. On 19th April, 2002, respondent No. 3 filed an application under section 40 of the said Act alleging therein that since the petitioner was and is employed with Western Coalfields Limited ("the WCL". for short), he is holding office of profit under the Government as such disqualified under section 16(1)(h) of the Act.
5. On being noticed the petitioner appeared before the respondent No. 1 and filed his reply admitting the factual averments but denying the legal effect thereof and consequently denying contentions raised by the respondent No. 3. It was thus contended that the petitioner did not incur any disqualification by virtue of his employment with the WCL.
6. The respondent No. 1, after hearing rival contentions and after perusing the documents on record vide order dated 7th January, 2003 was pleased to hold that the petitioner has incurred disqualification under section 16(1)(h) of the Act being in the employment of the WCL and as such, he could not be continued as Councillor of the respondent No. 2, the Zilla Parishad, Chandrapur. The respondent No. 2, pursuant to the said order dated 7th January, 2003, has issued letter to the petitioner on 13th January 2003, informing him in view of the order of the respondent No. 1, the Commissioner, Nagpur Division, Nagpur, the post of the Councillor held by the petitioner is being declared as vacant.
7. The petitioner has filed the present petition seeking to challenge the above order passed by the respondent No. 1 dated 7th January, 2003 and consequent letter issued by the respondent No. 2 dated 13th January, 2003 contending that the respondent
