Bal Raj Tuli, J. - (1.) THIS writ petition came up for hearing before me and, by my order dated September 29, 1971, I referred it for decision by a Full Bench and that is how this petition has been placed for disposal before this Bench.
(2.) THE Petitioner is a Law Graduate and holds the diploma in Local Self Government. He also passed the examination for Accountants of Local Bodies held by the Local Government Department of Punjab State. He was selected for the post of Secretary, Municipal Committee, Abohar, by the Punjab Public Service Commission in 1966 and his appointment was approved by the Director of Local Bodies, Punjab, under Section 38 of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act). The Petitioner actually joined his post on May 25, 1967, and was confirmed by a resolution of the Municipal Committee dated June 11, 1967. On December 18, 1968, a charge -sheet was issued to him by the President of the Municipal Committee to which he submitted his explanation which was not considered satisfactory with the result that he was suspended by a resolution of the Municipal Committee dated December 30, 1968. After holding an enquiry through Shri Hans Raj, Municipal Commissioner, the Petitioner was dismissed from service by a resolution of the Municipal Committee dated May 11, 1969. The Petitioner filed an appeal before the Commissioner, Jullundur Division, against the order of his dismissal which was accepted on December 5, 1969, and the resolution of the Municipal Committee dated May 11, 1969, dismissing the Petitioner from service was set aside. As a result of the order of the Commissioner, the Petitioner was reinstated in his post of Secretary on January 4, 1970, and was paid full back wages. Some members of the Municipal Committee made a complaint to the State Government levelling certain charges against the Petitioner and the State Government ordered an enquiry into those charges. The enquiry was held by the Deputy Director, Local Government, on various dates in the months of September, October and November, 1970, and he submitted a report in respect of some charges to the Director, Local Government, on December 14, 1970, which was considered to be incomplete by the Secretary of the Department. The case was then sent to the Minister Incharge for his orders. He agreed with the opinion of the Secretary and returned the case to him. The Secretary thereafter passed an order dated January 25, 1971, to the effect that complete enquiry should be made. The case was referred back to the Deputy Director, Local Government, who held an enquiry into the charges which had earlier remained unenquired by him. Those charges were Nos. 8, 10, 11, 13 and 16. With regard to charges Nos. 8, 10 and 11, the Inquiry Officer reported that the enquiry into those charges was being made by Deputy Director (R), Ferozepore, and a report thereon might be sent for from him. Regarding charges Nos. 13 and 16 he suggested that he would have to go to Abohar in case further probe was required.. It appears that no enquiry into those five charges was held by any one; at least no report was received in respect of them as is clear from the note of the Director, Local Government, dated March 16, 1971, which reads as under: A statement of the charges which have been enquired into is placed below at flag 'W. From it, it is clear that charges Nos, 1, 2, 3, 4, 5, 9, 12, 14, 15 and 17 have been proved against the Secretary, Municipal Committee, Abohar. In these charges, the charges of temporary embezzlement, wrong charging of T.A., promotion of junior employees, mal -practice in leasing out of land, illegal retention of Rs. 500 from the payments made to the contractor are proved. As recommended earlier, the Secretary should be dismissed from service under Section 41 of the Punjab Municipal Act. There is no need for waiting the reports of those cases which have not been received so far. The Hon'ble Minister has desired this case to be put up to him today. Therefore, the Secretary should submit the same to him after giving his comments. With this note, the Director, Local Government, forwarded the case to the Secretary of the Department, who sent it to the Minister Incharge after appending his signatures on March 27, 1971, but without expressing any opinion of his own on the merits. The Minister then passed the following order: I have read the whole file of Shri Hans Raj Sachdev. Secretary. Municipal Committee. Charges Nos. 1, 2, 3, 4, 5, 9, 12, 14, 15 and 17 levelled against the Secretary have been proved. Therefore, I agree with, the recommendation of the Director, Local Government, that Shri Sachdev, Secretary, Municipal Committee, Abohar, should be dismissed from service under Section 41 of the Municipal Act. Accordingly, an order was issued to the Municipal Committee, Abohar, on March 29, 1971, as under: ORDER OF THE GOVERNOR OF PUNJAB In exercise of the Powers conferred by Section 41 of the Punjab Municipal Act, 1911, the Governor of Punjab is pleased to require the Municipal Committee, Abohar, District Ferozepore, to dismiss Shri Hans Raj Sachdeva from the post of Secretary, Municipal Committee, Abohar, forthwith, since he has been found to be unfit for employment. That order has been challenged in this petition to which the Respondents are the State of Punjab, Shri Daulat Ram, Ex -President of Municipal Committee, Abohar, Shri Rawel Singh, Ex -Minister of State, Municipal Committee, Abohar, and Shri Radha Krishan, Ex -Minister. Written statements were filed by the State of Punjab, Shri Daulat Ram and the Municipal Committee, Abohar. Shri Rawel Singh and Shri. Radha Krishan did not choose to file any affidavits although allegations of mala fide were made against them by the Petitioner.
(3.) THE State Government passed the order in exercise of the powers conferred by Section 41 of the Act, which then read as under: 41. Power to demand punishment or dismissal. If in the opinion of the State Government any officer or servant of the committee is negligent in the discharge of his duties, the committee shall on the requirement of the State Government suspend, fine, or otherwise punish him; and if in the opinion of the State Government he is unfit for his employment, the committee shall dismiss him. A proviso has been added to this section by the Punjab Municipal (Amendment) Act, 1973, reading as under: Provided that before requiring the committee to suspend fine or otherwise punish any officer or servant or before declaring any officer or servant as unfit for employment, the State Government shall give to the concerned officer or servant an opportunity of being heard. Since this proviso was not there on March 29, 1971, when the impugned order of the Governor of Punjab was passed, the question has arisen whether before passing the order the State Government was under an obligation to follow the principles of natural justice and issue a notice to the Petitioner to show cause against the action proposed. According to the proviso now added, it has become obligatory on the State Government to afford an opportunity of being heard to the concerned officer or servant whose dismissal is required by it under the said section.;