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TMI Blog2001 (7) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned by the appellant by filing a writ petition before the High Court. Charge no.3 is extracted from the show cause notice and reproduced hereunder:- 3. . the Executive Officer vide his letter No. 6416 dated 5.6.1998 have informed that the Municipal Council, had invited the tenders for purchase of the Fogging Machine as per the rules and after completion of all the formalities Fogging Machines were brought and tested for many days in different wards of Municipal Council but you asked the Executive Officer that payment of this machine should not be made. Due to this reason the working of Municipal Council have been obstructed. Whereas to purchase this machine the funds from the District Planning Board have been received by the Municipal Council. But Deputy Commissioner, Patiala had also ordered the Municipal Council, to purchase this Fogging Machine. This action of yours is against the interest of the Municipal Council. 4. Therefore, for the charges stated above it is proposed that action be taken against you under Section 22, 16(1)(e) and (2) of Punjab Municipal Act, 1911 and to remove you from the post of President/post of Member of the Municipal Council, Rajpura and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party and the politicians in power and the bureaucracy having joined hands with the politicians by submitting to their dictates, acting together they were determined to drive him out of the office. By order dated 1.10.1999 issued by Shri N.K. Arora, Principal Secretary to Government of Punjab, Department of Local Government, the appellant was informed that although there was doubt in allegations no. 1 and 2 but allegation no. 3 was substantiated and therefore the appellant was being removed from the presidentship of the Municipal Council, Rajpura. The relevant part of the order reads as under:- I have gone through the facts of the case and have given due consideration to the claims and contentions advanced by the noticee on the one hand and the State representative on the other. Even if full benefit of doubt is given to the noticee in regard to allegation No.1 and 2, it is abundantly clear that in regard to allegation No.3, he has utterly failed to clarify his position. Instead, deep and distinct shadows of doubt and suspicion hover over his head as he has tried to mislead the Government and had patently resorted to falsehood. He clearly mentions in his reply that he had found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignation of his office, he shall vacate his office; and any president or vicepresident may be removed from office by the State Government on the ground of abuse of his powers or of habitual failure to perform his duties or in pursuance of a resolution requesting his removal passed by two-thirds of the members of the committee: Provided that if a resolution requesting the removal of the President or the Vice-President is passed by two-thirds of the members of the committee the President or, as the case may be the Vice-President shall be deemed to be under suspension immediately after such resolution is passed; Provided further that before the State Government notifies his removal, the reason for his proposed removal shall be communicated to him by means of a registered letter in which he shall be called upon to tender within twenty-one days an explanation in writing and if no such explanation is received in the office of the appropriate Secretary to Government within twenty one days of the despatch of the said registered letter, the State Government may proceed to notify his removal. In a democracy governed by rule of law, once elected to an office in a democratic institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word is not a term of art in the law and that its every day popular sense is well known; but that its proper signification when employed depends upon the context and subject matter. In its largest sense, ill use or improper treatment of another; misuse. In the plural as used with reference to the authority of governmental commissions to correct abuses, the word has been held to mean a disregard of duty imposed by law; any improper use of a right or privilege. The word abuse as occurring in Section 5(1)(d) of Prevention of Corruption Act, 1947 came up for consideration of this court in M. Narayanan Nambiar Vs. State of Kerala, AIR 1963 SC 1116. This court observed ___ Abuse means mis-use i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word otherwise has wide connotation and if no limitation is placed on it, the words corrupt, illegal, and otherwise mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted but it would not be an abuse of power. It must be such an abuse of power which would render a Councilor unworthy of holding the office of President. In as much as an abuse of power would entail adverse civil consequences, the expression has to be narrowly construed. Yet again, the expression employed in Section 22 is abuse of his powers or habitual failure to perform his duties. The use of plural - powers, and the setting of the expression in the framing of Section 22 is not without significance. It is suggestive of legislative intent. The phrase abuse of powers must take colour from the next following expression - or habitual failure to perform duties. A singular or casual aberration or failure in exercise of power is not enough; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is abuse of powers within the meaning of Section 22 of the Act. The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision. One of the requirements of the principles of natural justice, as incorporated in second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content of abuse of power, as stated in the notice dated 19.8.1998 was-asking the Executive Officer not to make payment while the order dated 1.10.1999 is founded on a subsequent event that in spite of the Executive Officer having prepared and signed the cheque on 20.11.1998, the appellant detained the cheque in his custody for about two months resulting payment being delayed and this amounted to abuse of power. There is no finding recorded in the impugned order that the explanation furnished by the appellant was factually incorrect. A President is supposed to act in the best interests of the Municipality which he is heading. In spite of fogging machine worth lakhs having been found by the Executive Officer to be okay in its trial run, if the President was informed of the machine having certain inherent defects, there was nothing wrong in his asking the Executive Officer not to make the payment unless he was satisfied that the machine was fit for the purpose for which it was being purchased, all the more, when the funds for purchasing the machine were made available to the Municipality by the District Planning Board. Even accepting the allegations made against the appellant, as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent day bureaucrat-politician relationship scenario. A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladins 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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