Holding

A removal under Section 22 requires a willful, dishonest misuse of authority involving a course of misconduct; a single erroneous decision does not constitute "abuse of powers", and the order was invalid as the notice failed to specify the charge and natural justice was not observed.

Summary

The appellant, Tarlochan Dev Sharma, was the elected President of Rajpura Municipality and was removed under Section 22 of the Punjab Municipal Act, 1911 on the ground of "abuse of his powers" for allegedly withholding payment for a fogging machine. He contended that the machine was defective, that his decision was made in the public interest, and that the show‑cause notice did not specify the precise charge, violating natural‑justice requirements. The Supreme Court examined the meaning of "abuse of powers" and held that it requires a willful, dishonest misuse of authority involving a pattern of misconduct, not a single erroneous or unjust decision. The Court also emphasized that the charge must be clearly communicated in the notice and that the decision‑maker must consider the explanation offered. Finding that the notice was vague, the alleged conduct did not amount to abuse, and procedural fairness was breached, the Court set aside the removal order. Consequently, the appellant was reinstated as President and awarded costs.

Issues considered

The adequacy of the show‑cause notice and compliance with the natural‑justice provisions of Section 22.
Whether the President's refusal to sanction payment for a fogging machine constitutes "abuse of his powers" under the Punjab Municipal Act, 1911.
The proper interpretation of "abuse of powers" in the context of municipal governance.
Whether the removal order was vitiated by procedural irregularities and perverse findings.

Legislation cited

Prevention of Corruption Act, 1947s. 5(1)(d)
Punjab Municipal Act, 1911s. 16(1)(e), s. 16(2), s. 22

Subjects

abuse of powersPunjab Municipal ActSection 22natural justiceshow cause noticemunicipal president removaladministrative lawprocedural fairnessjudicial reviewmunicipal governancepolitical interference

Judgment

..

A TARLOCHAN DEV SHARMA
v. ,....__
'·
STA TE OF PUNJAB AND ORS.

JULY 25, 2001

B [DR. A.S. ANAND, C.J., R.C. LAHOTI AND
K.G. BALAKRISHNAN, JJ.)

Municipalities: -
c Punjab Municipal Act, 1911: Section 22.

President-Removal of-On ground of 'abuse of his powers '-Payment
for a defective fogging machine withheld by President-Consequently,
President removed for 'obstructing the working of Municipal Council'-
Validity of-Held: A President is supposed to act in the best interests of the
D Municipality-Decision to withhold payment may be an erroneous or unjust
decision-But this does n<?t amount to 'abuse of his powers '-:-Hence, removal
of President not warranted: j

"Abuse of powers "-Meaning of-Held: Implies a wilfal abuse or an
intentional wrong-Erroneous exercise of power is not abuse of power-A
E single incident of misuse of power is not 'abuse of powers '-A course of
conduct or plurality of aberration or failure in exercise of power involving
dishonest intention is "abuse of powers '.

Administrative Law :
F Natural Justice-Principles of~Show cause notice-Order of removal
based on such notice-Held: What has not been communicated or not relied
on in show cause notice cannot furnish the basis for order of removal.

Bureaucrat-Politician relationship-Discussed.
G Words and Phrases :
"
"Abuse ofpowers"--Meaning of-Jn the context of S.22 of the Punjab
Municipal Act, 1911.
,..
The appellant, who was the President of a Municipality, was served with
H 1146
T.C. SHARMA v. STATE 1147

a show cause notice alleging that the Municipal Council had purchased a A
fogging machine of which payment was t,~ be made but the appellant (as
President of the Municipality) instructed the Executive Officer not to make
the payment and this resulted in "the working of the Municipal Council
having been obstructed." The appellant, in his reply, stated that the fogging
machine had certain inherent defects and was not working properly and
hence it was on the advice of the Municipal Council that the appellant had B
desired the payment not to be made. However, the appellant was removed from
the office of th~ President under Section 22 of the Punjab Municipal Act,
1911 on the ground that the appellant had kept the cheque prepared by the
Executive Officer in his custody for over two months resulting in delayed
payment in respect of the fogging machine which amounted to abuse of C
power. The High Court dismissed the appellant's writ petition. Hence this
appeal.

Allowing the appeal, the Court
HELD : 1. In a democracy governed by rule of law, once elected to an
office in a democratic institution, the incumbent is entitled to hold the office D
for the term for which he has been elected unless his election is set aside
by a prescribed procedure known to law. That a returned candidate must hold
and enjoy the office and discharge the duties related therewith during the
term specified by the relevant enactment is a valuable statutory right not
only of the returned candidate but also of the constituency or the Electoral E
College, which he represents. Removal from such an office is a serious
matter. It curtails the statutory term of the holder of the office. A stigma is
cast on the holder of the office in view of certain allegations having been held
proved rendering him unworthy of holding the office, which he held. Therefore,
a case of availability of a ground squarely falling under Section 22 of the
Punjab Municipal Act, 1911 must be clearly made out. A President may be F
removed from the office by the State Government, within the meaning of
Section 22, on the ground of "abuse of his powers" (of President), inter alia.
(1153-H; 1154-A-C}

2. The expression 'abuse of powers' in the context and setting in which G
it has been used in Section 22 of the Act cannot mean use of power, which
may appear to be simply unreasonable or inappropriate. It implies a wilful
abuse or an intentional wrong. An honest though erroneous exercise of
power. or an indecision is not an abuse of power. A decision, action or
instruction may be inconvenient or unpalatable to the person affected but it
would not be an 'abuse of power'. It must be such an 'abuse of power' which H
1148 ~ SUPREME COURT REPORTS [200 I] 3 S.C.R.

A would render ;t Councillor unworthy of holding the office of President.
Inasmuch
-
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
B 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 invol~ng
dishonesty ofintention is 'abuse of powers' within the meaning of Section
c 22 of the Act. The legislature could not have intended the occupa~t of an
elective office, seated by popular verdict, to be shown exit for a single
innocuous action or error of decision. [1156-B-E]
'•
M. Narayanan Naimbiar v. State ofKera la, AIR (1963) SC 1116, relied
on.
D
Justice G.P. Sin__g'1_: "Principles of Statutory Interpretation ", 7th Edn.
(1999), pp. 258-259, re~rred 'to.
~
3. One of the rE~quirements of (he principles of natural justiee, as
incorporated in the se·cond proviso to Section 22, is that the reasons for the
E proposed removal havt~ to be communicated to the person proceeded against.
The purpose of such communication is to enable him to furnish an explanation
of his conduct or his act or omission, which is likely to be construed as an
abuse of power. It is clear that the facts constituting gravamen of the charge
have to be communicated. It follows as a ne~essary corollary th~refrom that
what has not been communicated or not relied on in the show cause notice ,
F as a ground providing reason for the proposed removal cannot be relied upon ~

as furnishing the basis for the order of removal. The person proceeded
against under Section 22 of the Act has to be made aware of the precise
charge which he is required to mf!et and, therefore, he must be apprised of
the exact content of the abuse of power attributed to him: The authority
G taking the decision must apply its nnind also to the explanation furnished by
the person proceeded against and 1this must appear fro~ the order passed
under Section 22. {1156-F-H; 1157·•AI .._
r '

4. A President is supposed to act in the best interests of the Muni~!pali1;y, · )--

which he is heading. In spite of fo~:ging machine worth lakhs having been
H found by the Executive Officer to lbe okay hi its trial run, if the Ptesldent
T.D. SHARMA v. STATE 1149
was informed of the machine having certain inherent defects, there was A
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. 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. B
For this reason alone the appellant cannot be said to be guilty of abuse of
his powers. If anyone suffered by the 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 the appellant had 'obstructed the
working of Municipal Council' or was 'against the interest of council'. Not
only the principles of natural justice were violated by the factum of the C
impugned order having been founded on grounds at variance from the one
in the show cause notice, of which the appellant was not even made aware
of let alone provided an opportunity to offer his explanation, but also the
allegations made against the appellant did not evenprimafacie make out a
case of abuse of powers of the President. (1157-F-H; 1158-A-C)
D
5. 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 their 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 E
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 F
superior. (1159-A-C)

Anirudsinhji Jadeja, (1995] 5 SCC 302 and Purtabpur Company Ltd.,
AIR (1970) SC 1896, relied on.
G
Effectiveness of Bureaucracy, the Indian Journal of Public
Administration, April-June 2000, p. 165, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1889 of
2000. H
I 150 SUPREME COURT REPORTS. [2001) 3 S.C.R.

A From the Judgment and Order dated 15 .10.1999 of the Punjab & Haryana
High Court in CWP No. 14703/99.

A.K. Panda and S.K. Pabby for Prem Malhotra for the Appellant.
~

Rajeev Sharma, Vinod Shukla, A. Mariarputham, Ms. Kavita Wadia, Ms.
B Pratibha Singh and Maninder Singh for the Respondents.

The Judgment of the Court was delivered by

. R.C. LAHOTI, J. The appellant was elected a Councilor of Rajpura
c Municipal Council in January, 1998. In the month of April, 1998, he was
elected as President of the Municipality. He had held the office hardly for a
period of four months when he was served with a notice dated 19.8.1998
issued by the Principal Secretary, Department of Local Government, State of
Punjab requiring him to show cause why he be not removed from the post
of President and of member of the Municipal Council and also why he be not
D restrained from contesting elections of the Municipal Council for the next five
years. The notice levelled three charges against the appellant. The first two
charges are redundant in as ~uch as the same have been found not
substantiated. and hence not acted upon. The third charge only needs to be
1
dealt with on which alone is founded the order of removal from Presidentship
E which was 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
F 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
G
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 yow;s is )-
against the interest of the Municipal Council.

H 4. Therefore, for the charges stated above it is proposed that action
tC
I

T.D. SHARMA v. STATE [LAHOTI, J.] 1151
be taken against you under Section 22, 16(l)(e) and (2) of Punjab A
Municipal Act, 1911 and to remove you from the post of President/
post of Member of the Municipal Council, Rajpura and to restrain you
from contesting the election of Council for next five years."
,[Underlining by us]

The appellant gave a detailed reply. In so far as the abovesaid third B
charge is concerned, the appellant submitted as under:-

" .................. that the aforesaid fogging machine was delivered to the
Municipal Council Rajpura for testing purposes and the said machine
was worked out in various wards of the Municipal Council. Upon
using and testing the said machine, it was found that the said machine C
has certain inherent defects and was not working properly. Because
of the same defects and on the advice of the. Municipal Council, the
said machine was returned to the supplier and therefore, there was no
question of making any payment of the aforesaid machine. It is apparent
that the Executive Officer Shri Ashok Kumar wanted a defective machine D
to be purchased by the Municipal Council for his personal gains. By
any stretch of imagination the undersigned was not expected to approve
the purchase of a defective machine and make the payment thereof
causing a big loss to the Municipal Council. Under the circumstances,
there is no question of any loss having been caused to the Municipal
Council or any such act done by the undersigned which is against the E
interest of the Municipal Council. All the actions of the undersigned
as a President of the Municipal Council have been taken in the best
interest of the general public and in the interest of the Municipal
Council and public exchequer. The so called report submitted by the
Executive Officer of the Municipal Council Shri Ashok Kumar against F
the undersigned, through various communications dated 5.8.1998 and
3.8.1998 are out of personal vengeance and is a calculated move made
by him to harm ·the undersigned and to seek his removal so that the
aforesaid Shri Ashok Kumar may carry out his evil designs with a free
hand and .without any obstruction."
G
The appellant was called for a personal hearing on 27.7.1999 before the
Principal Secretary, Local Government. The appellant availed the opportunity
of personal hearing and apart from making oral. submissions, also submitted
a written memo of his submissions reiterating, though by elaborating, the
stand earlier taken by him. He also set out in very many details, how his
presidentship of the Municipality in the background of the political party to H
1152 SUPREME COURT REPORTS (2001] 3 S.C.R.

A which he belonged., was an eyesore to the political party and the politicians
in power and the bureaucracy having joined hands with the politicians by
,Jo..
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 r
appellant was informed that although there was doubt in allegations no. 1 and
B 2 but allegation no. 3 was substanti~ted and therefo~e the appellant was being
removed from the presidentship of the Municipal Council, Rajpura. The relevant
part of the order reads as under:- '·.,4 . . .

' ·'1'.'
"I have gone through the facts of the case and have given due
'
consideration to the claims and contentions advanced by the noticee
c on the one hand and the State representati_ve on the other. Even if full
.
benefit of doubt is given to the.noticee in regard to allegation No. I
and 2, it is abundantly clear that in regard to allegatio11: No. 3, he has
utterly failed to clarify his position. Instead, deep and distinct shadows
of doubt and' suspicio!l hover over his head as he has tried to mislead
D the Government and had patently resorted to falsehood. He clearly
mentions in his reply that he had found the fogging machine defective
on its ~fficial rep'ort and had thus ordered its return. There is thus no
.I
question for payment of the machine. Facts, however, tell a different i
story. During the trial run, the machine was found to be okay. The
Executive Officer had prepared the cheque and signed the same on
E
.. .
20.il.1998. For over two months, the cheque was not presented to
,_ '

the bank. Eventually, it was presented on 22.1.1999 and the payment
was made. In all fairness, the President should have not distorted the
facts and got himself sunk into highly embarrassing ·situation. One
fails to understand why in his reply;· he ~tates that th~ ~achine was
retumed·and no payment was to be· made. One also fails to ~nderstand
1
.......
F ~

why he kept the cheque in his custody for over 2 months.
Circumstantial evidence, therefore, goes deeply against him. It
appears to be a case of abuse of po~er and the conduct· '
of .the
President is quite unbecoming. ,Accor<!ingly, Shri Tarlochan Dev
Sharma is hereby removed from the presidentship of the Municipal
G· Council Rajpura in exercise of powers vested in me under Section 22
of Punjab Municipal Act, 1911." .,,
[Underlining by us]
(,._
The appellant filed a writ petition before the High Court of Punjab &
H Haryana putting in issue the abovesaid order. A Division Bench of the ·High
T.D. SHARMA v. STATE [LAHOTI, J.] 1153

.,..... Court formed an opinion that the High Co~rt could not test the validity of A
the impugned order sitting like an appellate court merely because there could
A.
be a possibility of arriving at a conclusion different from the one arrived at
by the competent authority, and therefore, the impugned order was not liable
to be interfered with. The writ petition was directed to be dismissed. Feeling
aggrieved by the impugned judgment of the High Court, the appellant has
filed this appeal by special leave which leave has been granted. B
-
The notice to show cause dated 19.8.1998 proposed a dichromatic
action. What has followed at the end is removal from the office of President
only. Therefore, the short question arising for decision in this appeal is:
whether the impugned order of removal is sustainable within the purview of
Section 22 of the Punjab Municipal Act, 1911 (hereinafter, 'the Act', for short)?
c
Section 22 of the Act read as under:-

"22. Resignation or removal of President and Vice-President-
Whenever a President or Vice-President vacates his seat or tenders in
writing to the committee his resignation of his office, he shall vacate D
his office; and any president or vice-president 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:
E
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; F
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 G
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 institution, the incumbent is entitled to hold the office for the term H
1154 SUPREME COURT REPORTS [2001] 3 S.C.R.

A for which he has been elected unless his election is set aside by a prescribed
procedure known to law. That a returned candidate must hold and enjoy the
.....,
,.;,_
office and discharge the duties related therewith during the term specified by
the relevant enactment is a valuable statutory right not only of the returned
candidate but also of the constituency or the electoral college which he
represents. Removal from such an office is a serious matter. It curtails the
B statutory term of ·the holder of the office. A stigma is cast on the holder of
the office in view of certain allegations having been held proved rendering
him unworthy of holding the office which he held. Therefore, 'a case of
availability of a ground ~quarely falling within Section 22 of the Act must be
clearly made out. A President may be removed from office by the State
c Government, within the meaning of Section 22, on the ground of "abuse of
his powers" (of President), inter alia. This is the phrase with which we are
concerned in the present case.

The proceedings for removal must also satisfy the requirements of
natural justice. Second proviso to Section 22 requires that the reason for the
D proposed removal shall be communicated to the person proceeded against by
means of a registered letter and he shall be allowed 21 days for putting up
his explanation in writing. And thereafter alone, the State Government may
proceed to notify his removal. In between a duty to take decision by due +
application of mind to the allegations made and the explanation given is
implicit and shall have to be read in the provision though not expressly stated
E
therein. The appellant is not charged with habitual failure to perform the
duties of President of Municipal Council. He is charged with having abused
his powers of President. The vires of the impugned order dated 1.10.1999 have
to be tested on the touchstone of the availability of this grou_nd.

F The phrase 'abuse of powers' as providing a ground for proceeding
under Section 22 is not defined in the Act. Black's Law Dictionary (Seventh
Edition, 1999) gives the meaning of'abuse' as 'to depart from legal or reasonable
use in dealing with (a person or thing)', ··to injure (a person) physically or
mental~y', 'to damage (a thing)'. In Corpus Juris Secundum (VoU, p. 402) it
is so stated:-
G
"ABUSE.

As Noun-It has been said that the word is not a term of art in the law
and that its every day popular sense is well known; but that its proper r )

signification when employed depends upon the context and subject I
H matter. In its largest sense, ill use or improper treatment of another;
r
T.D. SHARMA v. STATE [LAHOTI, J.] 1155
misuse. In the plural as used with reference to the authority of A
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(l)(d) of Prevention of Corruption
Act, 1947 came up for consideration of this court in M. Narayanan Nambiar B
v. State of Kera/a, 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', C
'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 preceding words along with
which it appears in the clause, that is to say, something savouring of D
dishonest act on his part. The contention of the learned counsel that
if the clause is widely constructed even a recommendation made by
a public servant for securing a job for another may come within the
clause and that could not have been the intention of the Legislature.
But in our view such innocuous acts will not be covered by the said
clause. The juxtaposition of the word 'otherwise' with the words 'corrupt E
or illegal means', and the dishonesty implicit in the word 'abuse'
indicate the necessity for a dishonest intention on his part to bring
him within the meaning of the clause."

To find the meaning of a word or expression not defined in an enactment
the courts apply the 'subject and object rule' which means ascertain carefully F
the subject of the enactment where the word or expression occurs and have
regard to the object whi~h the Legislature has in view. Forego the strict
grammatical or etymological propriety of language, even its popular use; let
the subject or the context in which they are used and the object which the
Legislature seeks to attain be your lenses through which look for the meaning G
to be ascribed. "In selecting one out of the various meanings of a word,
regard must always be had to the context as it is a fundamental rule that the
meanings of words and expressions used in an Act must take their colour
from the context in which they appear. Therefore when the context makes the
meaning of a word quite clear, it becomes unnecessary to search for and
select a particular meaning out of the diverse meanings a word is capable of, H
1156 SUPREME COURT REPORTS [2001] 3 S.C.R.

A according to lexicographers .......... .Judge Learned Hand cautioned 'not to make ,_
a fortress out of the dictionary' but to pay more attention to 'the sympathetic
,J-,
and imaginative discovery' of the purpose or object of the Statute as a guide
to its meaning (See - Principles of Statutory Interpretation, Justice G.P. Singh,
7th Edition 1999, pp. 258-259).

B The expression 'abuse of powers' in the context and setting in which
it has been used cannot mean use of power which may appear to be simply
unreasonable or inappropriate. It implies a willful abuse or an intentional
wrong. An honest .though erroneous exercise of power or an indecision is not
----:-
an abuse of power. A decision, action or instruction may be inconvenient or
c unpalatable to the person affected but it would not be an abuse of power. It "Iii.
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
D setting of the expression in the framing of Section 22 is not without significance.
It is suggestive of legisfative 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
+
E 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
F incorporated in second proviso to S~ction 22, is that the{easons for. the
proposed removal have to be commumcated to the person proceeded agamst.
The purpose of such communication is to enable him to furnish an explanation
of his conduct or his act or omission which is likely to be construed as an
abuse of power. It is clear that the facts constituting gravamen of the charge
have to be communicated. It follows as a necessary corollary therefrom that
G •
what has not been communicated or not relied on in the show cause notice
as a ground providing reason for the proposed removal cannot be relied upon
as furnishing basis for the order of removal. The person pr<;>ceeded against
under Section 22 of the Act has to be made aware of the precise charge which r
he i.s required to meet and therefore he must be apprised of the exact content
.H of the abuse of power attributed to him. The authority· taking decision must
T.D. SHARMA v. STATE [LAHOTI, J.] 1157
apply its mind also to the explanation furnished by the person proceeded A
against and this must appear from the order passed under Section 22.

The show cause notice alleged only this much that the Municipal
Council had purchased a fogging machine of which payment was to be made
but the appellant (as President of the Municipality) instructed the Executive
Officer not to make the payment and this resulted in "the working of the B
Municipal Coul'1cil having been obstructed". The finding arrived at in the
impugned order dated 1.10.1999 is different. There is no finding arrived at that
the working of the Municipal Council was in any manner obstructed by the
appellant having instructed the Executive Officer not to make the payment.
The specific stand taken by the appellant in his reply was that the machine C
had certain inherent defects and was not working properly and hence it was
on the advice of the Municipal Council that the appellant had desired the
payment not to be made. The finding as to abuse of power is based mainly
on the fact that the Executive Officer had prepared a cheque and signed the
same on 20.11.1998 and yet the cheque was not presented to the bank
resulting in delayed payment to the supplier of the fogging machine. The D
impugned order also states that the cheque was kept by the appellant in his
custody for over two months. These events are subsequent to the date of
the show cause notice, i.e. 19.8.1998 as also to the date of appellant's reply
i.e. 8.9.1998. Thus, briefly stated, the content of abuse of power, as stated in
the notice dated 19 .8.1998 was-asking the Executive Officer not to make E
payment while the order dated I. I 0.1999 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 F
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 G
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 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 H
1158 SUPREME COURT REPORTS (200 I] 3 S.C.R.

A 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
B grounds at variance from th~ 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 ~as
not right in forming an opinion that the appellant was persuading the High
-
C 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 grounds. It is vifo~ted by colourable
exercise of power and hence liable to be struck down within the well settled
D . parameters of judicial review of administrative action.

Although the appellant tried to suggest a case of malajides and f
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
E 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.
F Arora, Principal Secretary who initiated the action, heard the appellant and
passed the impugned order of removal dated l. l 0.1999.

It is interesting to view the present day bureaucrat-politician relationship
scenario. A bureaucratic apparatus is a means of attaining the goals
G prescribed by the political leaders at the top. Like AJladin's lamp, it serves die
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
H of Bureaucracy, The Indian Journal of Public Administration, April-June 2000
T.D. SHARMA v. STATE [LAHOTI, J.] 1159

..... ....
atp.165]. A
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 B
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 c
he is acting under the direction of his official superior. In Anirudhsinhji
Jadeja, [1995] 5 sec 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 D
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 E
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 F ..
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
G
of the State Government. We leave at that and say no more on this issue.

The appeal is allowed. The judgement 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 H
1160 SUPREME COURT REPORTS. (200 I] 3 S.C.R.

A Act, 1911 is hereby quashed and set aside. The appellant shall be entitled to
costs quantified at Rs. I 0,000 from the State of Punjab, respondent No. I,
which has contested the appellant's case throughout. The appellant shall
·stand forthwith reinstated in the office of the President ofRajpura Municipality
for the rest of his term.

B vs.s. Appeal allowed.

0