HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 11.08.2011. Delivered on 25.08.2011. Case :- WRIT - C No. - 16029 of 2011 Petitioner :- Sanjeev Agrawal Respondent :- State Of U.P. Thru' Principal Secry., Nagar Vikas & Others Petitioner Counsel :- Seema Agrawal,Ravi Kiran Jain Respondent Counsel :- C.S.C.,Durga Prasad Singh Re: Civil Misc. Impleadment Application No. 157952 of 2011. Hon'ble Ashok Bhushan,J.
Hon'ble Naheed Ara Moonis,J.
This is an application filed by Prasant Johary and others praying for impleadment in the writ petition.
The writ petition has been filed against the order dated 25th February, 2011 removing the petitioner from the office of the President of Nagar Palika Parishad, Bulandshahr. The applicants claim to be corporators of the Municipal Board. We have permitted the applicants to be heard in the writ petition under the Rules of the Court, however, no formal impleadment of the applicants is necessary.
The application is disposed of accordingly.
Date: 25.08.2011.
Rakesh Re: WRIT - C No. - 16029 of 2011 Hon'ble Ashok Bhushan,J.
Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Ashok Bhushan, J.) Heard Sri Ravi Kiran Jain, learned Senior Advocate, assisted by Seema Agrawal for the petitioner and Sri S.G. Hasnain, learned Additional Advocate General appearing for the State-respondents. Sri Shashi Nandan, learned Senior Advocate assisted by Sri S.M. Fazal has been heard on behalf of Prasant Johary and others who have filed application for impleadment in the writ petition.
By this writ petition, the petitioner, elected President of the Nagar Palika Parishad, Bulandshahr, has challenged the order dated 25th February, 2011 passed by the State Government removing the petitioner from the office of President exercising power under Section 48(2A) of the U.P. Municipalities Act, 1916.
Affidavits between the parties have been exchanged and with the consent of the learned counsel for the parties, the writ petition is being finally decided.
Brief facts, which emerge from the pleadings of the parties are; the petitioner was elected as President of the Nagar Palika Parishad, Bulandshahr as a candidate by Bhartiya Janta Party on 7th November, 2006. Petitioner's case in the writ petition is that at the instance of the ruling party he has been subjected to harassment by the district administration. It is submitted that at the instance of the district administration first information reports were lodged against him and his brothers. Criminal misc. writ petitions were filed in this Court and this Court granted interim orders staying the arrest of the petitioner. Allegations of mala fide were made against the district administration and police authorities in the aforesaid criminal misc. writ petitions which are matter of the record. The District Magistrate wrote letter dated 8th June, 2009 to the State Government recommending taking of action against the President of the Nagar Palika Parishad, Bulandshahr (Petitioner) referring certain complaints. The Divisional Commissioner vide his letter dated 12th August, 2009 also wrote to the State Government on the subject of proceeding of the Municipal Board dated 28th February, 2009 on complaint submitted by certain Corporators for removing the note put up by the President in the proceeding dated 28th February, 2009. The State Government referring to the letter dated 12th August, 2009 of the Divisional Commissioner and the letter dated 8th June, 2009 of the District Magistrate, issued a show cause notice dated 7th September, 2009 to the petitioner under Section 48(2) of the U.P. Municipalities Act, 1916 to show cause as to why the petitioner be not removed from the office of the President. Exercising the power under the U.P. Nagar Palika Amendment Act, 2005 and financial and administrative powers of the petitioner were ceased till he is exonerated from the charges. The petitioner filed a writ petition being Writ Petition No.55136 of 2009 challenging the show cause notice dated 7th September, 2009. This Court passed an interim order on 28th October, 2009 staying the operation of the order dated 7th September, 2009 insofar as it takes away the financial and administrative powers of the petitioner. It was, however, made clear that proceeding in pursuance of the show cause notice may go on. A restraint was also put on the petitioner to the effect that petitioner shall not pass or sanction any payment exceeding Rs.1,00,000/- without the leave of the Court. The petitioner by letter dated 15th September, 2009 requested respondent No.1 to supply him relevant documents relating to Charges No.2, 3, 6 and 7. The petitioner submitted a reply on 18th November, 2009 to the show cause notice reserving his right for filing additional reply after relevant files asked for by the petitioner are made available to him. The reply dated 18th November, 2009 was received in the office of the District Magistrate on 21st November, 2009. The petitioner made an application under the Right to Information Act, 2005 to the State Government asking as to whether petitioner has submitted the reply within the time and further as to whether State Government has taken a decision on the reply of the petitioner. The State Government vide its letter dated 4th January, 2011 gave reply that petitioner has not submitted reply to the show cause notice dated 7th September, 2009. The petitioner on 4th January, 2011 submitted an application to the District Magistrate under the Right to Information Act, 2005 asking as to whether the reply submitted by the petitioner dated 18th November, 2009 to the show cause notice dated 7th September, 2009 has been received in the office of the District Magistrate and as to whether the reply of the petitioner has been forwarded to the State Government and the details of forwarding letter, if any, was also sought for. The petitioner alleging that interim orders passed by this Court in Writ Petition No. 55136 of 2009 dated 28th October, 2009 and subsequent orders are being violated by the District Magistrate, Shashi Bhushan Lal Sushil, filed a contempt application being Contempt Application (Civil) No.404 of 2011 in which this Court issued notice to the District Magistrate asking to appear in person on 21st February, 2011. On 4th February, 2011 the District Magistrate submitted answer to the questions which were asked for by the petitioner vide letter dated 4th January, 2011 to the effect that petitioner's reply to the show cause notice dated 7th September, 2009 has been forwarded to the State Government vide letter dated 16th January, 2011 of the District Magistrate. The District Magistrate appeared in the contempt proceedings before the contempt Court and this Court directed on 21st February, 2011 to enquire the status of the proceedings before the State Government and further directed that the matter be taken up on 22nd February, 2011. On 22nd February, 2011, the Contempt Court noticed the submission of the petitioner's counsel that the reply submitted by the petitioner as far back as in November, 2009 was detained by the District Magistrate and the same was forwarded only after contempt petition has been filed. The Contempt Court directed the matter to be taken on 4th March, 2011. Thereafter the State Government passed the impugned order on 25th February, 2011 removing the petitioner from the office of the President exercising power under Section 48(2) of the U.P. Municipalities Act, 1916. This writ petition has been filed challenging the said order.
Sri Ravi Kiran Jain, learned Senior Advocate, appearing for the petitioner challenging the order impugned passed by the State Government, made following submissions:-
(i)The State Government could not have taken an action under Section 48(2) of the U.P. Municipalities Act, 1916 relying on the letter of the District Magistrate dated 8th June, 2009 and letter of the Divisional Commissioner dated 12th August, 2009 since the aforesaid letters were letters of the District Magistrate and the Divisional Commissioner who had no jurisdiction or authority to submit report regarding functioning of the petitioner as elected President of the Nagar Palika Parishad which is a constitutional functionary within the meaning of Part IX-A of the Constitution of India. It is submitted that Municipality being an instrument of Self Government constituted under Article 243Q of the Constitution of India, the district administration has no authority or business to comment on the functioning of the petitioner.
(ii)The petitioner holds an elected office of Nagar Palika Parishad Bulandshahr. The order of removal seriously affects the right of the petitioner to hold the elected office. The State Government passed the order dated 25th February, 2011 in violation of principles of natural justice since the State Government relied upon the materials which were obtained ex-parte through the district administration. It is submitted that preliminary inquiry report submitted by the District Magistrate dated 8th June, 2009 as well as the report of the Divisional Commissioner dated 12th August, 2009 were all ex-parte to the petitioner. It is further submitted that State Government has relied upon a report dated 16th January, 2011 of the District Magistrate which was sent by the District Magistrate after the reply was submitted by the petitioner to the show cause notice dated 7th September, 2009 on 18th November, 2009. The report dated 16th January, 2011 having not been supplied to the petitioner, reliance on such report violates the principles of natural justice.
(iii)The petitioner was not supplied the relevant documents which were demanded by the petitioner vide his letters dated 15th September, 2009 and 22nd December, 2009. The district administration was in the process of supplying the relevant documents to the petitioner which is proved from the letter dated 25th February, 2011 issued by the Additional District Magistrate directing the Executive Officer, Nagar Palika Parishad, Bulandshahr to make two files available to the petitioner and when the process of supplying the relevant document and files to the petitioner was still in progress, the impugned order was passed on 25th February, 2011 which violates the principles of natural justice.
(iv)No inquiry was held by the State Government as contemplated under Section 48(2A) of the U.P. Municipalities Act, 1916 and without holding an inquiry impugned order has been passed removing the petitioner.
(v)The petitioner's reply dated 18th November, 2009 has not been given due consideration since in the order of the State Government reasons given by the petitioner in his reply were neither adverted to nor dealt with, hence the order of removal is wholly unjustified.
Sri S.G. Hasnain, learned Additional Advocate General, appearing for the State-respondents, refuting the submission of counsel for the petitioner, contended that petitioner was given due opportunity and he has submitted his reply dated 18th November, 2009 which was considered by the State Government. He submits that in spite of submitting his reply on 18th November, 2009 the petitioner had been asking the documents which is apparent from the letter dated 22nd December, 2009 and the same shows the intent of the petitioner to delay the proceeding. It is submitted that charges proved against the petitioner are serious in nature, specially Charge No.7. The letter dated 16th January, 2011 has been rightly relied by the State Government since the said letter was only comments of the District Magistrate on the reply submitted by the petitioner to the show cause notice. The State Government was fully entitled to take into consideration the comments of the District Magistrate on the reply of the petitioner. Sri Hasnain further contends that even if opportunity was given to the petitioner by the State Government, he had no answer to the charges, hence non giving of opportunity in such matter is of no consequence. It is submitted that when result would have been same, non giving of opportunity does not vitiate the action. It is further submitted that petitioner would not have said anything more from what has been said by him in his reply dated 18th November, 2009, hence any further opportunity was unnecessary.
Sri Shashi Nandan, learned Senior Advocate, appearing on behalf of Prasant Johary and others, who have sought impleadment in the writ petition, contends that after Section 48(2A) of the U.P. Municipalities Act, 1916 has been deleted by the U.P. Act No.II of 2005, there is no provision for holding an inquiry by the State Government and the only requirement under Section 48 is to consider the explanation of the President which having been done in the present case, the order of the State Government is not vitiated. It is submitted that Section 48 of the U.P. Municipalities Act, 1916 does not contemplate holding of an inquiry and the only requirement is to give opportunity to submit a reply to the show cause notice which was done in the present case.
Learned counsel for the parties have cited several judgments of the Apex Court as well as this Court which shall be referred to while considering their respective submissions.
We have considered the submissions of learned counsel for the parties and have perused the record.
Before we proceed to consider the respective submissions of learned counsel for the parties, it is useful to refer to relevant statutory provisions governing the procedure and manner of removal of an elected President of the Municipality.
The U.P. Municipalities Act, 1916 contains statutory scheme of removal of President. Section 48 was amended by U.P. Act No.XXVI of 1964. Section 48 as amended by U.P. Act No.XXVI of 1964 is as follows:-
"48. Removal of President.- (1) [omitted] (2) Where the State Government has, at any time, reason to believe that -
(a) there has been a failure on the part of the President in performing his duties, or
(b) the President has -
(i) incurred any of the disqualifications mentioned in Sections 12-D and 43-AA; or
(ii) within the meaning of Section 82 knowingly acquired or continued to have, directly or indirectly, or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with, by or on behalf of the municipality; or
(iii) knowingly acted as a President or as a member in a matter other than a matter referred to in clauses (a) to (g) of sub-section (2) of Section 82, in which he has, directly or indirectly, or by a partner, any share or interest, whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person; or
(iv) being a legal practitioner acted or appeared in any suit or other proceeding on behalf of any person against the municipality or against the State Government in respect of nazul land entrusted to the management of the municipality, or acted or appeared for or on behalf of any person against whom a criminal proceeding has been instituted by or on behalf of the municipality; or
(v) abandoned his ordinary place of residence in the municipal area concerned; or
(vi) been guilty of misconduct in the discharge of his duties; or
(vii) during the current or the last preceding term of the Board so flagrantly abused his position as President of the board, or, being a President or member, wilfully contravened any of the provisions of the Act or any rule, regulation or bye-law, or caused such loss or damage to the fund or property of the board as to render him unfit to continue to be President; and
(viii) been guilty of any improper or dishonourable conduct, whether as a member or, President or otherwise;
it may call upon him to show cause within the time to be specified in the notice why he should not be removed from the office.
(2-A) After considering any explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office.
Provided that in a case where the State Government has issued notice in respect of any ground mentioned in clause (a) or sub-clause (ii), (iii), (iv), (vi), (vii) or (viii) of clause (b) of sub-section (2) it may instead of removing him give him a warning.
(2-B) An order passed by the State Government under sub-section (2-A) shall be final and shall not be questioned in any court; and (3) The State Government may place under suspension a President who is called upon to show cause in respect of any ground mentioned in clause (a) or sub-clause (vi), (vii) or (viii) of clause (b) of sub-section (2) or against whom a prosecution for an offence which in the opinion of the State Government involves moral turpitude is commenced until the conclusion of the enquiry or the prosecution, as the case may be, and where a President has been so suspended he shall not, for so long as the order of suspension continues, be entitled-
(a) to exercise the powers or perform the duties of a President conferred or imposed upon him by or under this Act or any other enactment for the time being in force, or
(b) to take part in any proceedings of the board.
(4) A President removed under sub-section (2-A) shall also cease to be a member of the board and in case of removal on any of the grounds mentioned in clause (a) and sub-clause (vi), (vii) or (viii) of clause (b) of sub-section (2) shall not be eligible for re-election as President or member for a period of five years from the date of his removal."
Section 48(2-A) of the U.P. Municipalities Act, 1916 contemplates that after considering any explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office.
By U.P. Act No.VI of 2004 another sub-section (2-A) was added, which is to the following effect:-
"In Section 48 of the Uttar Pradesh Municipalities Act, 1916, after sub-section (2) the following sub-section shall be inserted namely: "(2A) where in an inquiry held by such person and in such manner as may be prescribed, if a President or a Vice President is prima-facie found to be guilty on any of the grounds referred to in sub-section (2), he shall cease to exercise, perform and discharge the financial and administrative powers, function and duties of the President or the Vice-President, as the case may be, which shall, until he is exonerated of the charges mentioned in the show cause notice issued to him under sub-section (2), be exercised and performed by the District Magistrate or by any other nominated by him not below the rank of the Deputy Collector."
By U.P. Act No.II of 2005, Section 48 was again amended which amendment was deemed to have come into force with effect from 27th February, 2004 which was the date on which U.P. Act No.VI of 2004 was published in the gazette. In sub-section (2) of Section 48, a proviso was inserted, which is to the following effect:-
"Provided that where the State Government has reason to believe that the allegations do not appear to be groundless and the President is prima facie guilty on any of the grounds of this sub-section resulting in the issuance of the show cause notice and proceedings under this sub-section he shall, from the date of issuance of the show cause notice containing charges, cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President until he is exonerated of the charges mentioned in the show cause notice issued to him under this sub-section and finalization of the proceedings under sub-section (2A) and the said powers, functions and duties of the President during the period of such ceasing, shall be exercised, performed and discharged by the District Magistrate or an officer nominated by him not below the rank of Deputy Collector."
Sub-section (2-A) of Section 48 as inserted on 27th February, 2004 by the Uttar Pradesh Municipalities (Amendment) Act, 2004 (U.P. Act No.VI of 2004) was omitted.
The submission of Sri Shashi Nandan, learned Senior Advocate, that after deletion of Section 48(2-A) now there is no provision for holding an inquiry by the State Government needs to be considered first.
Sub-Section (2-A) of Section 48 which was inserted by U.P. Act No.XXVI of 1964 was to the following effect, "After considering any explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office.". The above sub-section (2-A) of Section 48 has not been deleted by any subsequent amendment. What has been deleted by U.P. Act No.II of 2005 was sub-section (2-A) which was inserted by U.P. Act No.VI of 2004 wherein it was provided that where in an inquiry held, if a President or a Vice-President is prima-facie found to be guilty, he shall cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President or a Vice-President until he is exonerated of the charges. Sub-Section (2-A), which was inserted by U.P. Act No.XXVI of 1964 was an entirely different provision from one which has been inserted by U.P. Act No.VI of 2004. Sub-section (2-A) of Section 48 which was inserted by U.P. Act No.VI of 2004 was with regard to cessation of financial and administrative powers of the President. The State legislature being not satisfied with the scheme of sub-section (2-A) of Section 48 as introduced by U.P. Act No.VI of 2004 came up to the same effect regarding cessation of financial and administrative powers by inserting a proviso after Section 48(2) which proviso contains more drastic provision regarding cessation of financial and administrative powers and when proviso was inserted by U.P. Act No.II of 2005, the earlier sub-section (2-A) providing for cessation of financial and administrative powers was omitted. Thus Section 48(2-A) as was inserted by U.P. Act No.XXVI of 1964 still continues in the statute which obliges the State Government to consider the explanation and to hold an inquiry in the matter.
A Division Bench of this Court in the case of Girish Chandra Srivastava vs. State of U.P. and others reported in 2007 AWC-6-6051, after considering the provisions of Section 48 as amended from time to time, has taken the same view which we have taken above. Following was laid down by the Division Bench in paragraph 20 of the said judgment:-
"20. In view of the aforesaid decisions, we are of the considered opinion that insertion of sub-section (2A) in Section 48 of the Act after sub-section (2) by U.P. Act No.6 of 2004, does not, in any manner, either omit or substitute the earlier sub-section (2A) of Section 48 of the Act which was inserted by U.P. Act No.27 of 1964 and the State Legislature appears to have committed a mistake in numbering the sub-section that was added by U.P. Act No.6 of 2004. However, the mistake that had occurred stood removed by the subsequent amendment made by the State Legislature in Section 48 by U.P. Act No.2 of 2005 as sub-section (2A) that was inserted in Section 48 of the Act by U.P. Act No.6 of 2004 was omitted with effect from 27.2.2004."
Thus according to scheme of Section 48 of the U.P. Municipalities Act, 1916 after issuance of show cause notice under Section 48(2), the State Government is obliged to consider the explanation and also to hold such inquiry as it may deem necessary.
The first submission of learned counsel for the petitioner is that the letter of the District Magistrate dated 8th June, 2009 and the letter of the Divisional Commissioner dated 12th August, 2009 cannot form any basis or foundation for initiating any action under Section 48(2) of the U.P. Municipalities Act, 1916 against the petitioner. He submits that the Municipality is an institution of self Government and petitioner being elected President is neither subordinate to the Divisional Commissioner nor the District Magistrate so as to enable them to submit any comment regarding functioning of the petitioner. Reliance has been placed by Sri Ravi Kiran Jain on the judgment of the Apex Court in the case of Tarlochan Dev Sharma vs. State of Punjab and others reported in (2001)6 S.C.C. 260. The Apex Court in the said case while considering the provisions of Section 22 of the Punjab Municipal Act, 1911 has held that once elected to an office in a democratic institution, the incumbent is entitled to hold the office. It was held that removal from such an office is serious matter. Following was laid down in paragraph 7 of the said judgment:-
"7. 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 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 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 within Section 22 of the Act must be clearly made out. A President may be removed from office by the State 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."
Part-IX-A of the Constitution of India defines the Municipality as an institution of the self Government. The provisions of Articles 243Q to 243ZG of the Constitution of India contain various provisions regarding constitution, composition and election of the Municipality. Article 243ZF of the Constitution continues any inconsistent provision regarding Municipality in the State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992 until amended or repealed or until the expiration of one year from such commencement, whichever is earlier.
The U.P. Municipalities Act, 1916 has been amended after insertion of Chapter IXA in the Constitution of India on several occasions. The District Magistrate has been given various statutory functions under the U.P. Municipalities Act, 1916 likewise the Divisional Commissioner, who is Prescribed Authority within the meaning of U.P. Municipalities Act, 1916 has various statutory functions. The District Magistrate and the Divisional Commissioner are thus statutory authorities within the meaning of the U.P. Municipalities Act, 1916 and the submission of the petitioner's counsel cannot be accepted that they have no role to play in the functioning of the Municipality. Apart from other provisions, Sections 34 and 35 of the U.P. Municipalities Act, 1916 give specific power to the District Magistrate as well as the Prescribed Authority regarding the decisions/resolutions of the Municipal Board.
Section 48 sub-section (2) of the U.P. Municipalities Act, 1916 provides, "Where the State Government has, at any time, reason to believe that ............ it may call for upon him to show cause within the time to be specified in the notice why he should not be removed from office." The power under Section 48 thus can be exercised by the State Government on its subjective satisfaction. The words "reasons to believe" clothe the State Government jurisdiction to initiate proceedings under Section 48(2). The initiation of proceedings under Section 48(2) thus can be on the basis of any material. The State Government can suo-motu under Section 48(2) take cognizance on any complaint submitted by an individual or any information received from the District Magistrate or the Divisional Commissioner or any other officer of the State. The power of the State Government to initiate proceedings under Section 48(2) is not hedged by any precondition. The letter written by the District Magistrate dated 8th June, 2009 and the letter of the Divisional Commissioner dated 12th August, 2009 cannot be said to be materials which were irrelevant for initiating proceedings under Section 48(2) of the U.P. Municipalities Act, 1916. Thus the first submission of learned counsel for the petitioner that the State Government could not have issued show cause notice dated 7th September, 2009 on the basis of the aforesaid two letters, cannot be accepted.
The second and third submissions raised by counsel for the petitioner is with regard to violation of principles of natural justice. Two grounds have been urged in support of the submission i.e. (a) the petitioner was not provided the relevant documents by the respondents to submit a comprehensive reply and the process of supplying the documents was still in progress on 25th February, 2011 when the impugned order was passed; and (b) the State Government has relied on the letter dated 16th January, 2011 of the District Magistrate and the petitioner being not made aware of any such letter, the State Government has violated the principles of natural justice in relying on materials which were never disclosed to the petitioner.
The petitioner after receipt of the show cause notice dated 7th September, 2009 has written to the State Government for providing material documents relating to charges by letters dated 15th September, 2009 and 22nd December, 2009. The State Government vide letter dated 29th January, 2010 (Annexure-49 to the writ petition) has directed the District Magistrate to provide the petitioner desired documents and after obtaining reply of the petitioner the same be forwarded to the State Government along with point-wise comments. The Executive Officer on 25th January, 2010 asked the petitioner to intimate the details of the documents which were required to be shown. The petitioner vide letter dated 31st March, 2010 gave the details of the documents to be provided to him. On 25th February, 2011 the Additional District Magistrate wrote to the Executive Officer to get two files as required by the petitioner traced out in the Nagar Palika Parishad and make them available to the petitioner failing which action be taken against the clerk concerned and report be submitted within three days. The submission is that the process of supplying the documents was still on when the impugned order was passed by the State Government on 25th February, 2011. The petitioner has enclosed letter dated 25th February, 2011 of the Additional District Magistrate as (Annexure-51 to the writ petition) which clearly indicates that direction was issued by the Additional District Magistrate to make available relevant two files to the petitioner. The said fact has been specifically pleaded by the petitioner in paragraph 57(G) of the writ petition. Paragraph 57(G) has been replied by the respondents in paragraph 52 of the counter affidavit in which letter dated 25th February, 2011 issued by the Additional District Magistrate (Annexure-51 to the writ petition) has not been denied. However, reliance has been placed on the letter dated 25th January, 2010 written by the Executive Officer to the petitioner which has been filed as Annexure-51 to the counter affidavit. In the letter dated 25th January, 2010 it has been clearly mentioned that original file regarding allotment in favour of Ravindra Kumar Sharma is not available. The reply which was given by the petitioner on 18th November, 2009 clearly mentioned that the said reply is being given reserving right of filing additional explanation when the files are made available. It is useful to extract following part of the reply, which is as under:-
"..... It is also important to mention here that the undersigned Chairman has repeatedly demanded the file of the above matter but the file has not been made available to the undersigned Chairman till date. So the right is reserved for filing additional explanation and reply in this matter after the file is made available to the undersigned Chairman.
The reply has been delayed due to the fact that the relevant documents have been made available to the undersigned only on 12.11.2009. Some time was taken to study them. So the delay is not on the part of the undersigned Chairman nor it is wilful. It is also important to mention here that still all the documents and the files demanded by the undersigned Chairman have not been made available. So exhaustive reply has not been given. But the undersigned Chairman does not want to give the impression that he is not cooperating with the enquiry, so he is filing this reply immediately and without any further delay. The additional explanation and exhaustive detailed reply shall be filed later on as and when the relevant demanded documents and files are made available to the undersigned Chairman....."
From the facts brought on the record, it is clear that reply dated 18th November, 2009 submitted by the petitioner was received in the office of the District Magistrate on 21st November, 2009 which fact is admitted in paragraph 39 of the counter affidavit. It is also on the record that reply dated 18th November, 2009 was not forwarded by the District Magistrate till 16th January, 2011 which fact has been stated in the letter dated 4th February, 2011 of the Additional District Magistrate (Annexure-17 to the writ petition). The reply dated 18th November, 2009 given by the petitioner to the show cause notice dated 7th September, 2009 was forwarded to the State Government by the District Magistrate along with his letter dated 16th January, 2011. The letter dated 25th February, 2011 issued by the Additional District Magistrate to the Executive Officer directing the Executive Officer to provide relevant files to the petitioner clearly indicates that the district administration was still in process of showing the relevant documents to the petitioner as demanded when on 25th February, 2011 the State Government passed the order removing the petitioner. Thus the process of showing the relevant documents was still on when removal order was passed. Thus the submission of the petitioner that relevant documents could not be supplied to enable the petitioner to submit additional explanation when the order of removal was passed, has substance.
The second limb of argument of the learned counsel for the petitioner is that letter dated 16th January, 2011 which was sent by the District Magistrate along with the reply submitted by the petitioner dated 18th November, 2009 was a material which has been relied by the State Government but the petitioner has not been made aware of the same, hence principles of natural justice have been violated.
The letter dated 16th January, 2011 written by the District Magistrate to the State Government has been brought on the record as Annexure-27 to the counter affidavit. The said letter is a detail report submitted by the District Magistrate to the State Government giving his comments on the reply dated 18th November, 2009 submitted by the petitioner. The letter dated 16th January, 2011 gives finding that reply submitted by the petitioner cannot be accepted and several facts have been mentioned in the report in support of the charges which were not even referred to in the show cause notice. A perusal of the order of the State Government dated 25th February, 2011 (Annexure-1 to the writ petition) clearly indicates that the State Government while recording its conclusion that charges are proved, has heavily relied on the report dated 16th January, 2011 of the District Magistrate which was sent by the District Magistrate much after receipt of the reply of the petitioner. In the counter affidavit letter dated 16th January, 2011 has been referred to as inquiry report submitted by the District Magistrate. In this context paragraph 29 and 30 of the counter affidavit are referred to where it has been stated that after receiving the complete inquiry report from the District Magistrate dated 16th January, 2011 the State Government took decision to remove the petitioner. The petitioner in paragraphs 47 and 48 of the writ petition has categorically stated that letter dated 16th January, 2011 (referred to as inquiry report by the respondents) has not been supplied to the petitioner, which fact has not been denied in the counter affidavit, rather in paragraph 43 of the counter affidavit it has been stated that there is no question of providing inquiry report to guilty person since the inquiry officer is not the final authority to take decision. The stand taken by the respondents is wholly erroneous. The letter dated 16th November, 2011 written by the District Magistrate is a detail inquiry report (as termed by the respondents themselves), which records finding that reply of the petitioner cannot be accepted and the same is surely an adverse material which has been relied by the State Government. The State Government heavily relied on the letter dated 16th January, 2011 in its order dated 25th February, 2011 and admittedly the letter dated 16th January, 2011 having not been supplied to the petitioner, there was complete violation of principles of natural justice and the order of the State Government deserves to be set-aside on this ground alone.
A Division Bench of this Court had occasion to consider similar issues in the case of Rama Shanker Barnwal vs. State of U.P. and others reported in 2000(1) AWC 168. In the said case a show cause notice was issued to the Chairman of the Municipal Board under Section 48 of the U.P. Municipalities Act, 1916 on 25th October, 1997. The petitioner submitted reply. The District Magistrate sent its comments before the State Government on the reply. Thereafter order was passed by the State Government removing the petitioner. The submission was made before the Division Bench that reliance on the comments of the District Magistrate without giving any opportunity to the petitioner is violation of principles of natural justice. It is useful to extract paragraphs 3, 4, 12 and 13 of the said judgment which are to the following effect:-
"3. Taking cognizance of certain complaints received by it, the respondent No. 1 formed an opinion that during the performance of his duties as Chairman, the petitioner had violated the provisions of the Act warranting action under Section 48 of the Act. It, therefore, issued notice dated 25th October, 1997 to the petitioner calling upon him to show cause as to why he should not be removed from his office. The notice was served on the petitioner on 13th November. 1997, which was duly received by the petitioner on 20th November, 1997. From the pleadings of the parties before the Court, it transpires that subsequent to the filing of reply by the petitioner, the District Magistrate, Deoria, the respondent No. 2 sent comments on the reply of the petitioner. These comments are before the Court as Annexure-CA-II, appended to the counter-affidavit sworn by Sri Rajesh Kumar Rai, Sub-Divisional Magistrate, Salempur, Deoria, the respondent No. 3, filed on behalf of the respondent Nos. 2 and 3. Thereafter, the respondent No. 1 passed the impugned order dated 27th January. 1999.
4. Learned counsel of the petitioner submits that the impugned order is bad in law on following two counts-
(a) that the impugned order is founded on material, namely, the report of the respondent No. 3 and the comments of respondent No. 2, which was not disclosed to the petitioner. This was in violation of the principles of natural Justice resulting in serious prejudice to the petitioner ; and
(b) that the impugned order does not disclose reasons.
12. From the pleadings noticed above, inescapable conclusion is that the petitioner was not given copy of the report of respondent No. 3, and that he was also not supplied the copy of note (Samiksha) submitted by the respondent No. 2. It is also clear that the petitioner was not given any opportunity of hearing subsequent to the filing of his reply to the show-cause notice.
13. A perusal of the impugned order clearly shows that it is founded on the comments and notes (Samiksha) submitted to the respondent No. 1 by the respondent No. 2, which were not supplied to the petitioner. At no point of time was the petitioner warned that the comments and notes (Samiksha) of respondent No. 2 will be relied upon by the respondent No. 1. Thus, the well known principle of natural Justice, which required the respondent No. 1 to give opportunity to the petitioner, was flagrantly violated rendering the impugned order wholly unsustainable in law."
The Division Bench after holding as above, allowed the writ petition and set-aside the order of the State Government. The said judgment fully supports the case of the petitioner.
Now comes the fourth submission which is regarding non holding of inquiry and vitiating the order of the State Government on that count. As observed above, Section 48(2-A) of the U.P. Municipalities Act, 1916 as inserted by U.P. Act No.XXVI of 1964 is still in the Statute which obliges the State Government to consider the explanation of the President and after making such inquiry as it may consider necessary, pass an order. Thus the obligation to hold an inquiry has not been done away and the submission of Sri Shashi Nandan that there was no requirement to hold an inquiry cannot be accepted. In the present case, the facts noticed above clearly indicate that no inquiry at any stage has been held under Section 48(2-A) of the U.P. Municipalities Act, 1916. The State Government issued a show cause notice dated 7th September, 2009 and after receiving the reply of the petitioner dated 18th November, 2009 along with the letter of the District Magistrate dated 16th January, 2011 straight away passed the order dated 25th February, 2011. The State Government neither heard the petitioner nor directed for any inquiry to be held in the matter. The District Magistrate while sending his report dated 16th January, 2011 has also not given any opportunity to the petitioner. What is the nature and extent of inquiry which is required to be held under Section 48(2) has been considered by a Division Bench of this Court in the case of Umesh Baijal and others vs. State of U.P. and another reported in (2004)2 UPLBEC 1235. In the aforesaid case, the Division Bench held that whether an inquiry is required depends on facts of each case. It has been held that there may be a case of admission by the President himself or the facts of a case are so admitted that no explanation is required at all, in such eventuality, it will not be necessary to hold a regular enquiry but where President denies the allegation inquiry may be necessary. Following was laid down by the Division Bench in paragraphs 13 and 39 of the said judgment:-
"13. Thus, it is evident that if a Chairman is removed under these provisions, it would have a very serious repercussion and consequence not only on the Chairman but also on the constituency, which he represented because he is being removed from the membership also, therefore, it cannot be permissible in law to remove him without complying with the requirement of law, as required under the facts and circumstances of a particular case. Sub-section (2A) of Section 48 of the Act, 1916 provides for a procedure of removal stipulating that after considering any explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove him. The law does not permit or give unfettered powers to the State Government for passing an order of removal of the Chairman merely after considering his explanation to the show cause. It would depend upon the facts of each case as to whether an enquiry is required. There may be a case of admission by the President himself or the case against him is of such a nature for which he can furnish no explanation or the facts of a case are so admitted or admittedly such that no explanation is required at all, in such eventuality, it will not be necessary to hold a regular enquiry and examine the witnesses etc. giving an opportunity of cross-examination of the witness. There may be a case where the State is considering the affidavits filed by certain persons complaining against the misconduct of the Chairman, if State wants to take into consideration the said affidavits and in his explanation the Chairman denies the allegations, the affidavit cannot be relied upon without giving an opportunity to the Chairman to cross-examine the deponents, as required under the provisions of Order XIX, Rule 2 of the Code of Civil Procedure, for the reason that the Code itself is nothing but codification of the principles of natural justice. The provisions of Order XIX, Rule 2 of the Code become mandatory.
39. Thus, in view of the above, it cannot be held that in each and every case, non-observance of principles of natural justice would vitiate the order. It has to be understood in the context and facts-situation of each case and requirement of statutory Rules applicable therein. However, in a given case, if the allegations are of a, serious nature and has to be proved on a documentary as well as on oral evidence, it is desirable to have a fulfledged enquiry for the reason that removal only on asking the explanation and consideration thereof, would not be sufficient to meet the requirement of law unless the facts are admitted or undeniable. It is not possible to lay down any strait-jacket formula as in what cases the fulfledged enquiry is to be held and in what cases removal is permissible on asking office bearers to furnish the explanation to the charges. It will depend on the facts of an individual case."
Another Division Bench of this Court in the case of Shamim Ahmad (Dr.) vs. State of U.P. and another reported in (2005)1 UPLBEC 171 had occasion to consider ambit and scope of Section 48(2-A) of the U.P. Municipalities Act, 1916. In the said case also the order of removal was passed without holding an inquiry. After considering the provisions, following was laid down in paragraphs 7 to 10, 14, 16 and 17 of the said judgment:-
"7. From the aforesaid decisions, it is clear that sub-section (2-A) of Section 48 of the Act contemplates that the State Government before removing a President from his office has to consider his explanation conduct an enquiry and record the reasons in writing.
8. The question that arises for consideration is whether the State Government is required to make an enquiry after the President furnishes his explanation or whether the explanation submitted by the President is sufficient for the State Government to pass an order of removal?
9. In Umesh Batjal's case, a Division Bench of this Court held that the law does not give unfettered powers to the State Government to pass an order of removal after considering the explanation given by the President. The Court further held that whether an enquiry is required or not would depend on the facts of each case. The Court held that where the incumbent offers no explanation or admits the charges, in such cases, no particular enquiry is required to be made. The Court further held-
"However, in a given case, if the allegations are of a serious nature and has to be proved on a documentary as well as on oral evidence, it is desirable to have a full-fledged enquiry for the reason that removal only on asking the explanation and consideration thereof, would not be sufficient of meet the requirement of law unless the facts are admitted or undeniable."
10. Thus, in our view, it is clear that once an explanation is submitted by the President denying the charges, it is incumbent upon the State Government to make "such enquiry as it may consider necessary" before passing an order of removal. The word "inquiry" contemplates investigation. Therefore, where the President denies the charges and offers his explanation, the State Government is required to consider his explanation. If the State Government is satisfied with the explanation offered by the President, in that case, nothing further is required to be done other than passing a consequential order dropping the proceedings. However, if the State Government is not satisfied with the explanation, in that case, the State Government is required to enquire into the matter by holding a full-fledged enquiry.
14. The petitioner on receipt of the show cause notice, gave his reply denying the charges. From a perusal of the counter-affidavit of the State Government, it is clear that no enquiry was made by the State Government after the petitioner furnished his explanation as contemplated under sub-section (2-A) of Section 48. Therefore, we are of the opinion that the provisions of sub-section (2-A) of Section 48 was not followed by the State Government.
16. In our view, the contention of the State Government is devoid of any merit. The enquiry made by the Sub-Divisional Magistrate is only a preliminary enquiry and cannot partake the enquiry contemplated under sub-section (2-A) of Section 48 of the Act. The Sub-Divisional Magistrate made the enquiry prior to the issuance of the show cause notice under Section 48(2). The enquiry can only be made by the State Government after the submission of the explanation given by the President. Therefore, in our view, the enquiry conducted by the Sub-Divisional Magistrate does not amount to an enquiry contemplated under sub-section (2-A) of Section 48 of the Act. Paragraphs 5 and 6 of the counter-affidavit of the State Government makes it abundantly clear that the enquiry made by the Sub- Divisional Magistrate was a preliminary enquiry pending "contemplation of enquiry". It is also clear from the said paragraphs that no enquiry was made under sub-section (2-A) of Section 48 of the Act after the submission of the explanation by the petitioner. Consequently, the order of removal has been passed against the mandatory provisions of sub-section (2-A) of Section 48 of the Act.
17. The order of removal entails civil consequences. Sub-section (4) of Section 48 contemplates that a, person removed under sub-section (2-A) of Section 48, is barred from contesting an election for a period of five years from the date of his removal. In our view, the non-holding of an enquiry under sub-section (2-A) of Section 48 of the act was violative of the principles of natural justice. The order of the removal, based upon the preliminary report of the Sub-Divisional Magistrate, was also violative of the provisions of natural justice.
The proposition laid down in the aforesaid judgments clearly supports the submission of the learned counsel for the petitioner. The State Government has passed the impugned order dated 25th February, 2011 removing the petitioner without holding an inquiry. In the present case, the petitioner in his reply dated 18th November, 2009 has categorically denied each and every charges giving detail reply. Present is not a case where there is any admission by the President (petitioner) of any charge. The order of the State Government dated 25th February, 2011 thus deserves to be set-aside on this ground also.
The last submission of the petitioner's counsel that reply submitted by the petitioner dated 18th November, 2009 has not been considered also needs consideration.
A perusal of the order dated 25th February, 2011 indicates that with regard to each and every charges there are three paragraphs. In first paragraph the charges are mentioned, in second paragraph the reply given by the petitioner is mentioned and in third paragraph report of the District Magistrate dated 16th January, 2011 has been referred to and thereafter conclusion has been drawn that the charges are proved. The State Government has neither adverted to nor dealt with the detail reply given by the petitioner dated 18th November, 2009. The order of the State Government only records conclusion and there is no reason contained in the order. The Division Bench of this Court in Rama Shanker Barnwal's case (supra) while considering similar submission laid down that giving reason is mandatory for removing a President. Paragraphs 15, 17 and 18 of the said judgment are quoted below:-
"15. A bare perusal of sub-section (2A) of Section 48 of the Act. quoted above, reveals that written recording of reasons in support of the order is a condition precedent for passing the order removing the President from his office. The State Government may remove the President from his office only for reasons to be recorded in writing. In the absence of reasons recorded in writing the order purporting to remove the President from his office would be contrary to the statutory mandate contained in sub-section (2A) of Section 48 of the Act. The Court has read and re-read the impugned order dated 27th January, 1999 but has not been able to locate any reason in support of the order. The first part of the order recites charges against the petitioner, second part of the order reproduces the reply given by the petitioner, and the third part of the order quotes the comments of the respondent No. 2 submitted to the respondent No. 1. Thereafter, the order gives conclusion followed by the order removing the petitioner from the office of Chairman. No part of the impugned order records reasons. The impugned order contains only conclusion.
17. In its decision rendered in the case of Union of India v. M. L. Capoor, AIR 1974 SC 87, the Hon'ble Supreme Court has ruled as below :
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
18. Tested on the above touchstone, the impugned order falls to satisfy the statutory requirement of recording reasons in writing. Thus, the impugned order is liable to be struck on this count also."
Another Division Bench of this Court in Writ Petition No.7849 of 2011 (Abdul Aziz Ansari vs. State of U.P. and others) had occasion to consider similar submission. The Division Bench accepting the said submission held that recording of reason is necessary for removing elected office bearer. Following has been laid down by the Division Bench in the said judgment:-
"This is a shocking way of dealing with the complaint and the reply submitted, leading to the removal of an elected President of Nagar Palika Parishad. Merely completing the procedure and formality of issuing notice and receiving the reply to the notice and giving opportunity of hearing is not sufficient. What is to be seen is that the reply to the show cause notice, which in the present case is detailed point wise reply, has been considered by the authority or not. In the reply, the petitioner has given clear reasons for fixing of annual rental value at below the actual rent received and also for transfer of tenancy rights of the shop in question, which all was done after the necessary resolution was passed by the Members of the Nagar Palika and not by the President alone. What we find from the impugned order is that the explanation given by the petitioner has not been dealt with or considered by the respondent no. 1 while passing the final order.
Foundation of democracy in our country is laid down at the grass root level. In the villages, Gram Pradhans are democratically elected by the people. In towns and cities, the Members and President of Nagar Palika Parishad are elected by the people under the provisions of the Municipalities Act. It is this democratic process, which begins from the grass root level and goes upto the election of the Members of Legislative Assemblies and the Parliament, which runs the State Governments and the country. At the lower level, the village panchayats and local bodies are elected by the people so that people, through their representatives, have their say in the running of the local bodies. No doubt the power to either cease the financial and administrative powers or the removal of a duly elected President of Nagar Palika Parishad is provided in the Act itself, but the same has to be exercised with caution and not in a routine manner at the whims and fancies of the authorities so as to disturb the very fabric of democracy and shake the foundation of a body duly elected by the people. Parliament has recognized the role of local bodies, specially the Panchayats and Municipalities by amending the Constitution and making Constitutional provisions in the matter of term of office and other conditions.
In the present case, what we see is that the entire exercise has been undertaken by the respondent authorities with a predetermined mind, throwing to the winds the entire procedure prescribed in law. This is evident from a plain reading of impugned order as well as the conduct of the respondents while dealing with a serious matter of removal of the petitioner who is a democratically elected President of Nagar Palika Parishad. Neither his reply has been properly considered nor written submissions taken into account, except for a mere mention in the order that nothing material has been stated therein. If this is permitted, then in every case all replies, arguments and submissions can always be brushed aside in a sentence by stating that nothing material has been argued or submitted and thus the reply or submission is rejected. Authorities performing quasi judicial functions are obliged to give reasons for not accepting the replies or submissions of a party. This is to ensure that there is nothing arbitrary in the actions of the authorities and that the authority has looked into the matter after applying his mind. In the present case, the same is totally lacking. This Court strongly deprecates the same. What we also notice is that the conduct of the respondents in the case of the petitioner earlier also has not been very fair as once after the order ceasing the financial and administrative powers of the petitioner as President had been stayed by this Court on 4.2.2010, the same was not restored for more than four months till 23.6.2010, without there even being any stay order from the Apex Court in the Special Leave Petition filed by the respondents, which was ultimately dismissed."
We thus find substance in the submission of the petitioner's counsel that the reply given by the petitioner has not been considered and the order impugned only contains conclusion and no reason are there in the order impugned.
Sri S.G. Hasnain, learned Additional Advocate General, has submitted that even if the petitioner had been given an opportunity, he would not have said anything more except what he had said in the reply dated 18th November, 2009. He submits that providing an opportunity again to the petitioner shall be useless formality since the result shall be the same. He further submits that show cause notice having been served and reply having been given, there was sufficient compliance of principles of natural justice.
The Apex Court in the case of Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal and another reported in (1999)7 SCC 332 has made observation that opportunity may not be necessary where allegation and charges are admitted and no possible defence could be placed before the authority concerned. In the case of Aligarh Muslim Universty vs. Mansoor Ali Khan reported in (2000)7 SCC 529 the Apex Court laid down that holding inquiry in a case where there can be no answer to the charges would be a useless formality. There cannot be any dispute to the proposition as laid down by the Apex Court in the aforesaid cases. It is true that in every case it cannot be said that non observance of principles of natural justice would automatically vitiate the order. Present is a case where the President (petitioner) had denied all the charges giving detail facts and was also waiting to receive certain more documents to submit comprehensive reply. It does not lie in the mouth of the respondents to say that opportunity shall not make any difference in the result specially when no inquiry was held in the present case. Thus the submission of learned Additional Advocate General that giving opportunity shall not make any difference, cannot be accepted.
In view of the foregoing discussions, the order dated 25th February, 2011 cannot be sustained and is hereby quashed.
The writ petition is allowed. Parties shall bear their own costs.
Date :- 25.8.2011 Rakesh