IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 7 of 2009 (O&M)
DATE OF DECISION : FEBRUARY 17, 2009
KRISHAN KUMAR
....... PETITIONER(S)
VERSUS
STATE OF HARYANA & ORS.
.... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. SC Kapoor, Sr. Advocate, with
Mr. Harminderjit Singh, Advocate, for the petitioner(s).
AJAI LAMBA, J.
CM 2429 of 2009
The application is allowed. Show Cause notice dated
28.6.2007, issued by the Director, Urban Local Bodies, Haryana, and reply
of the petitioner dated 5.7.2007, are taken on record as Annexures P-6 and
P-7, respectively.
CWP 7 of 2009
This petition under Articles 226/227 of the Constitution of
Civil Writ Petition No. 7 of 2009 (O&M) 2
India prays for issuance of a writ in the nature of certiorari for quashing
order dated 17.6.2008 (Annexure P-4), passed by the Director, Urban
Local Bodies, Haryana, and order dated 28.11.2008 (Annexure P-5),
passed by the Financial Commissioner and Principal Secretary to
Government Haryana, Urban Local Bodies Department.
The facts, in brief, as they emanate from the pleadings are
that the petitioner was elected as a Municipal Councillor in Municipal
Committee, Meham, on 16.4.2005. Smt.Pinki Gupta was the Chairperson
of the Municipal Committee who, however, resigned on 9.1.2007.
Smt.Shanti Devi became contender for the office of Chairperson of the
Municipal Committee and was enjoying support of majority of the
Councillors, including the petitioner. It has been pleaded that the local
MLA was opposed to Smt.Shanti Devi and did not want her to be elected
and, therefore, a false complaint was engineered against the petitioner and
FIR No.109 dated 7.5.2007 under Sections 379, 406, 420, 201, Indian
Penal Code, was got registered at Police Station, Meham. The election to
the office of President was not being scheduled and, therefore, Smt.Shanti
Devi had to approach this Court by way of filing CWP 4987 of 2007,
praying for issuance of a writ of mandamus for fixing the election. After
notice of motion was issued, the authorities fixed the date of election as
6.7.2007. The election was held and Smt.Shanti Devi was elected as
President of the Municipal Committee. The petitioner supported
Smt.Shanti Devi. It is the contention of the learned counsel for the
petitioner that it was the local MLA who got the petitioner suspended as a
Councillor in the Municipal Committee on 2.8.2007. A copy of the order
Civil Writ Petition No. 7 of 2009 (O&M) 3
has been placed on record as Annexure P-1.
The petitioner filed an appeal against the order of suspension
before the Financial Commissioner, Urban Local Bodies, Haryana. Since
the appeal was not being heard, the petitioner was constrained to file CWP
14408 of 2007. On 14.9.2007, directions were issued to the Financial
Commissioner to expeditiously decide the appeal. It was further ordered
that till the appeal was decided, order of suspension of the petitioner shall
remain in abeyance.
After hearing the appeal, the Financial Commissioner, Urban
Local Bodies, Haryana, remanded the matter to the Directorate, Urban
Local Bodies, Haryana, to pass a reasoned and speaking order, after
giving fair opportunity of hearing to the petitioner to present his case.
The Directorate of Urban Local Bodies, again, passed order dated
7.4.2008 (Annexure P-3) whereby the petitioner was suspended. The
order, however, was not a speaking order and had been passed without
assigning any reason.
The petitioner, again, approached the Financial
Commissioner, who again remanded the matter back to the Directorate,
Urban Local Bodies, Haryana, for the same purpose viz. to pass a
speaking order after giving reasons. The Directorate again passed order
of suspension on 17.6.2008 (Annexure P-4). The order is under challenge
in this petition.
The petitioner again approached the Financial
Commissioner, Urban Local Bodies, Haryana, who vide the other
impugned order dated 28.11.2008 (Annexure P-5) upheld the order passed
Civil Writ Petition No. 7 of 2009 (O&M) 4
by the Directorate, Urban Local Bodies, Haryana.
The contention of the learned counsel for the petitioner, in
brief, is that this Court while dealing with the writ petition of the
petitioner had held the order of suspension in abeyance while taking into
account the fact that the charges had not been framed against the
petitioner nor the petitioner had been convicted in any criminal case.
Since the same circumstances exist today, the order of suspension of the
petitioner is liable to be set aside.
The second contention of the learned counsel for the
petitioner is that the FIR is based on concocted facts and does not indicate
moral turpitude or defect in character.
Relevant provisions in regard to powers of Director to
suspend are required to be noticed. Section 14Aof the Haryana Municipal
Act, 1973 (for short ‘the Act’), reads as under:
“14A. Suspension of members. – (1) The Director may,
suspend any member of committee where –
(a) a case against him in respect of any criminal
offence is under investigation, enquiry or trial, if
in the opinion of the Director the charge made or
proceeding taken against him, are likely to
embarrass him in the discharge of the duties to
involves moral turpitude or defect of a
character ;
xx xx xx xx xx
xx xx xx xx xx
Provided that the suspension period of a Member
would not exceed six months from the date of issuance
of suspension order except in criminal cases involving
moral turpitude.
(3) Any person aggrieved by an order passed under sub-
section (1) may, within a period of thirty days from the
communication of the order prefer an appeal to the
Government.”
Civil Writ Petition No. 7 of 2009 (O&M) 5
A perusal of order (Annexure P-4), passed by the Director,
indicates that the petitioner has been given hearing, as required by law.
The petitioner pointed out that the criminal case is at the charge stage.
Initially, the case was registered under Section 379, Indian Penal Code
only, however, Sections 406, 420 and 201, Indian Penal Code, were added
later on. A perusal of the order (Annexure P-4) further indicates that the
Director has taken into account the record submitted by Municipal
Committee, Meham as also the FIR, the particulars whereof have been
given hereinabove. The allegation against the petitioner is of removing
the bricks from a street of Municipal Committee, Meham. It stands
recorded in the order that recovery of bricks had also been effected from
the petitioner. It is in these given facts that a conclusion has been drawn
by the Director in order (Annexure P-4) that the act allegedly done by the
petitioner involves moral turpitude and defect of character and, therefore,
the continuation of the petitioner as Member of the Municipal Committee
is not in public interest or in the interest of Municipal Committee, Meham.
A perusal of the other impugned order (Annexure P-5),
passed by the appellate authority, shows that the petitioner had been
granted adequate opportunity of being heard. The act ascribed to the
petitioner involves moral turpitude.
I have considered the impugned orders in the context of the
arguments of the learned counsel.
The nature of offence allegedly committed by the petitioner
certainly involves moral turpitude and indicates defect of character. A
perusal and consideration of the provisions of Section 14A of the Act,
Civil Writ Petition No. 7 of 2009 (O&M) 6
relevant portion of which has been extracted above, shows that the
conditions that are pre-requisite for suspension of a Member exist in the
case of the petitioner viz. FIR has been lodged and the criminal case is
under investigation. I also find that the case at that point in time when the
matter was considered by the Director, Urban Local Bodies, was at the
stage of charge and, therefore, it becomes evident that even final report
under Section 173, Code of Criminal Procedure, had been filed, prima
facie indicating the fact that incriminating material had been collected
against the petitioner, although no such document has been placed on
record. The nature of allegations against the petitioner viz. of removing
bricks from a municipal street, reflects defect in character and would
involve moral turpitude. I find no error in decision making process.
So far as the decision itself is concerned, I find that the
relevant facts and circumstances have been taken into account before the
authorities have exercised jurisdiction vested in them in suspending the
petitioner from membership of the Municipal Committee. I am of the
considered opinion that the nature of offence as is made out from the
perusal of order (Annexure P-4) indicates moral turpitude and defect of
character, which is likely to embarrass the petitioner in discharge of
functions as a Member of Municipal Committee, Meham.
The contention of the learned counsel for the petitioner that
this court had disposed of CWP 14408 of 2007 on 14.9.2007 while
directing decision of the appeal and further order of suspension of the
petitioner was held in abeyance as the charges had not been framed and
conviction had not been recorded and, therefore, since the same
Civil Writ Petition No. 7 of 2009 (O&M) 7
circumstances exist even today, the order of suspension is liable to be set
aside, is not acceptable.
The issue raised before the writ court at that point in time was
only pendency of appeal for an indefinite period without dealing with the
stay application. The portion of the provisions extracted above makes it
clear that it is not a pre-requisite for the authority to wait for final report to
be filed under Section 173, Code of Criminal Procedure, or for the charges
to be framed by court or conviction to be recorded, before suspending a
Member of a Municipal Committee. Since the provision is silent in that
regard, none can be read therein.
In view of the above, no interference is called for. The writ
petition is, accordingly, dismissed.
This Court, however, is not oblivious of the fact that the trial
in such cases takes a long time to conclude. The petitioner was elected at
a nucleus level in a democratic set-up for a limited term. The facts and
circumstances require a direction to the trial court to conclude the trial
expeditiously, preferably within 6 months from the date of receipt of a
copy of this order. Ordered accordingly.
It is further made clear that in case of alteration of charge or
change in circumstances that might indicate that the petitioner is not
involved in an act of moral turpitude, it will be open to the petitioner to
file an application before the Directorate of Urban Local Bodies, Haryana.
The changed circumstances would be brought to the notice of the
authority, whereupon the Director would be required to reconsider the
case of the petitioner. If the changed circumstances so warrant, the order
Civil Writ Petition No. 7 of 2009 (O&M) 8
of suspension would be revoked.
February 17, 2009 ( AJAI LAMBA ) Kang JUDGE