KRISHAN KUMAR v. STATE OF HARYANA & Ors.

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 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 Kang ( AJAI LAMBA ) JUDGE