LexTARLOCHAN DEV SHARMA versus STATE OF PUNJAB AND ORS.
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.. A TARLOCHAN DEV SHARMA v. ,....__ '· ST A 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'- D Validity of-Held: A President is supposed to act in the best interests of the 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 E intentional wrong-Erroneous exercise of power is not abuse of power-A 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. ,.. H The appellant, who was the President of a Municipality, was served with 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 n
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