HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Civil Misc. Writ Petition No.28619 of 2009
Smt.Shama Ali.....................................................................................Petitioner
Versus
State of U.P. and others.................................................................Respondents
...............
Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice V.K. Mathur)
Appearance:
For the Petitioner : Mr. Shashi Nandan, Sr. Advocate
Mr. R.P.S. Chauhan
For the Respondents : Mr. S.G. Hasnain
Additional Advocate General
Mr. P.K. Misra
--------
V.K. Mathur, J.
By this writ petition the petitioner, who was elected President of Nagar Palika Parishad, Sahaswan, Budaun, has challenged the order dated 8.5.2009 passed by the respondent no.1 removing the petitioner from the office of President exercising power under Section 48(2-A) of the U.P. Municipalities Act, 1916 (hereinafter referred to as the 'Act').
Affidavits between the parties have been exchanged. The writ petition is being finally decided.
Brief facts of the matter are that the petitioner was elected President of Nagar Palika Parishad, Sahaswan, Budaun on 15.11.2006 for a term of 5 years which was to end on 15.11.2011. She had been discharging her functions honestly and to the best of her abilities. The local M.L.A. of the ruling party had contested the assembly election against the son of the petitioner and could win the election by a very narrow margin and as such had animosity with the petitioner. A complaint by some Corporators at the instigation of local M.L.A. was made to the District Magistrate against the petitioner. The District Magistrate on 23.6.2008 ordered an enquiry to be conducted by the A.D.M. Copy of the undated complaint is annexure-5 to the writ petition. It has been contended that certain baseless and false allegations were made against the petitioner regarding alleged irregularities in the functioning of the petitioner. After the complaint was made the local M.L.A. exerted pressure upon the District Magistrate, who without any order of respondent no.1 for holding inquiry and without adopting due procedure and even without waiting for the enquiry to be completed sent a report to the State Government on 31.7.2008 recommending action against the petitioner under Section 48 of the Act. It is also alleged that since the enquiry report of the District Magistrate had no substance, therefore, the State Government did not take any action on the basis of the report, however, the said local ruling party M.L.A. on 4.9.2008 wrote a letter to Minister, Urban Development, Govt. of U.P. urging the Minister that financial power of the petitioner may be ceased. The Minister on the very next day i.e. 05.09.2008 directed the Principal Secretary, Urban Development to take appropriate action and as a consequence thereof a show cause notice dated 11.9.2008 was served upon the petitioner demanding explanation within 15 days and also ceasing the administrative and financial powers of the petitioner till she was exonerated from the charges. Copy of the letter of the local M.L.A. dated 4.9.2008 is annexure no.6 to the writ petition. On receipt of the show cause notice a detailed explanation was duly submitted by the petitioner on 4.10.2008, copy of which is annexure no.3 to the writ petition. The show cause notice dated 11.9.2008 was challenged by the petitioner in Civil Misc. Writ Petition No.50344 of 2008 which was dismissed vide order dated 24.9.2008 with a direction to respondent no.1 to conclude the enquiry proceedings against the petitioner within a period of three months and pass an appropriate order. The certified copy of the order of the High Court dated 24.9.2008 was served by the petitioner to the respondent no.1 along with his explanation dated 4.10.2008. The enquiry, as ordered by the court, was not completed within the prescribed period. Thereafter, contempt application no.928 of 2009 was filed by the petitioner in which a notice was issued to respondent no.4 herein i.e. Principal Secretary, Urban Development. Due to declaration of parliamentary elections the enquiry was not proceeded with for sometime as the code of conduct was applicable. The opportunity of hearing granted to the petitioner was postponed vide letter of Joint Secretary, Urban Development till the notification of election code of conduct. Copy of the communication by the Joint Secretary, Urban Development is annexure no.16 to the writ petition. It is also contended that the petitioner was never called by respondent no.1 for hearing before passing the impugned order dated 8.5.2009 which was alleged to have been passed while the election code of conduct was continuing. Vide impugned order dated 8.5.2009 the petitioner was removed from her office. The instant writ petition has been filed challenging the said order.
Shri Shashi Nandan, learned senior advocate appearing for the petitioner challenging the impugned order has made the following submissions:-
1. Though sub-section (2-A) was added after sub-section (2) to Section 48 of the Act by U.P. Act No. XXVI of 1964, yet in view of the amendment made in Section 48 of the Act by U.P. Act No. VI of 2004 by insertion of sub-section (2-A) after sub-section (2) in Section 48 of the Act, it must be deemed that earlier sub-section (2-A) of the Act stood omitted. He, therefore, submitted that in such a situation, there was no power left with the State Government for removing the President from office as sub-section (2-A) of the Act which was inserted by U.P. Act No.6 of 2004 does not empower the State Government to remove the President. He further submitted that in any view of the matter, even sub-section (2-A) which was inserted by U.P. Act No.6 of 2004 was subsequently omitted by U.P. Act No.2 of 2005 with effect from 27.2.2004, i.e. the date when U.P. Act No.6 of 2004 was published in the U.P. Extraordinary Gazette.
2. (i)That the State Government could not have taken action under Section 48(2) of the Act referring to the report of the District Magistrate, Budaun dated 31.7.2008 since the report was exparte and the same had been made under the influence of local MLA without holding any inquiry. The District Magistrate had no authority to submit report regarding functioning of the petitioner as elected President of Nagar Palika Parishad, Sahaswan which is a constitutional body within the meaning of Part (IX-A) of the Constitution of India. It has also been argued that municipality is an instrument of self-Government constituted under Article 243 Q of the Constitution of India and as such the District Magistrate was not authorised to suo motu hold/order enquiry against the petitioner.
(ii) No affidavit in support of the complaint of the Corporators was filed. Prima facie correctness of the allegations was not established, therefore, no cognizance could have been taken in view of the G.O. Dated 4.2.2003, annexure-S.A.-1 to the supplementary affidavit.
3. (i)Though the proceedings were initiated by the State Government on the letter of the local M.L.A. dated 4.9.08 and promptly the administrative and financial powers of the petitioner were ceased while issuing show cause notice but there is no mention in the show cause notice dated 11.9.2008 of the communication by the local M.L.A. of the ruling party in order to conceal his involvement.
(ii) The charges against the petitioner regarding the alleged financial irregularity in purchase of electrical appliances, supply of dustbins, purchase of furniture, auction of trees, encroachment of nazul land, non-settlement of annual contracts in proper time were all baseless. All the purchases were made in accordance with the prevailing Government orders, directions/rules etc. The petitioner has replied to all the charges in detail convincingly in her explanation.
(iii) The petitioner holds an elected office. The removal of the petitioner affects her right to hold office. The State Government has passed the impugned order in violation of principles of natural justice since it has relied upon exparte report of the District Magistrate and absolutely no opportunity was afforded to the petitioner for hearing.
(iv) No enquiry was held by the State Government as contemplated under Section 48 (2-A) of the Act.
(v) Petitioner's reply dated 4.10.2008 has not been given due consideration which is apparent from the perusal of the impugned order, therefore, the order of removal is unjustified.
Shri S.G. Hasnain, learned Additional Advocate General appearing for the respondent-State has contended that the petitioner was given due opportunity and she has submitted her reply dated 4.10.2008 which was duly considered by the State Government before passing the impugned order. He has further argued that charges proved against the petitioner are of serious nature. The report of the District Magistrate has been correctly relied upon by the State Government. The District Magistrate afforded many opportunities to the petitioner for placing her case before him, but the petitioner did not cooperate with the District Magistrate. Consequently, on the basis of available evidence the District Magistrate submitted his report which cannot be termed as exparte. The fact remains that even if opportunity had been given to the petitioner by the State Government, she had no convincing reply to the charges levelled against her, therefore, even if opportunity of personal hearing has not been given to the petitioner the same is of no consequence. Her explanation was duly considered.
Shri P.K. Misra, learned counsel appearing for respondent no.5 has submitted that after passing the impugned order by the State Government the seat of the President of the Nagar Palika Parishad, Sahaswan had fallen vacant which was intimated to the State Election Commission in view of the provisions contained under Section 44(A) of the Act. A notification for bye-election was issued by the said Election Commission vide notification dated 27.9.2010, however, the court in the instant writ petition passed the restraint order. Consequently, bye-election could not take place. The Election Commission was not initially impleaded the party, however, an impleadment application was filed by the State Election Commission which was allowed.
Learned counsel for the parties have cited several judgments which shall be referred to while considering the respective submissions.
We have considered the submissions of learned counsel for the parties and have carefully perused the record.
Before considering the submissions of learned counsel for the parties it will be pertinent to refer to relevant statutory provisions relating to procedure and manner of removal of the elected President of a 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 or 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) 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 be 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.
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 inquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his Office."
Sub-Section (2-A) of Section 48 has not been deleted by any subsequent amendment. In fact 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 the President or the Vice President, prima facie is found to be guilty, he shall cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President or the 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 the one which has been inserted by U.P. Act No. VI of 2004. Sub-Section (2-A) 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 was not satisfied with the scheme of Sub-Section (2-A) of Section 48 as introduced by the U.P. Act No. VI of 2004, therefore, it inserted a proviso after Sub-Section 48 (2) and when the proviso was inserted by U.P. Act No. II of 2005, the earlier Sub-Section (2-A) providing for the cessation of the financial and administrative powers was omitted. Thus Section 48 (2-A) as was inserted by U.P. Act No. XXVI of 1964, is still continuing which obliges the State Government to consider the explanation and to hold an inquiry in the matter.
The above stated legal position has been clarified by a Division Bench of this Court in Imran Masood Vs. State of U.P. And others, reported in 2008 (1) ESC 407 (Alld.) in which one of us (Hon. Amitava Lala, J.) was a member. In paragraph 10 of the judgment, the Division Bench observed:
"We have examined the notifications under Uttar Pradesh Municipalities (Amendment) Act 2004. Sub-Section (2A) of Section 48 was inserted although sub-section (2A) was pre-existing. Therefore, it was a case of double numbering of the sub-sections. Subsequently by further amendment, the numbering of such sub-section was deleted by the subsequent notification dated 24.1.2005 giving retrospective effect of 27.4.2004. Therefore, according to us, Sub-Section (2A) under original Act survives and still operative......"
In Hafiz Ataullah Ansari Vs. State of U.P. And others, (2011) 2 UPLBEC 889 the Full Bench of this Court has held that Sub-Section (2-A) of Section 48 was already inserted by U.P. Act No. XXVI of 1964. By U.P. Act No. VI of 2004, it was again inserted. This was a mistake. This was also explained by the Division Bench of this Court in Civil Misc. Writ Petition No. 168309 of 2007, (Girish Chandra Srivastava Vs. State of U.P. And others), reported in 2004 ALJ 268.
Again in Civil Misc. Writ Petition No.16029 of 2011, Sanjeev Agrawal Vs. State of U.P. And others a Division Bench of this Court reiterated the legal position with regard to Section 48 (2-A) and held that Section 48 (2-A) as was inserted by U.P. Act No. XXVI of 1964 still continues in the Statute.
Thus in view of the scheme of Section 48 of the Act, after issuance of the 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 be necessary.
In Trilochan Dev Sharma Vs. State of Punjab and others, (2001) 6 SCC 260, the Apex Court 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 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."
Part-IX-A of the Constitution of India has defined the Municipality as an Institution of the self Government. The relevant provisions are contained in Articles 243 Q to 243 ZG of the Constitution of India.
The Act has been amended after insertion of Chapter IX-A in the Constitution of India. Several Times under the Act District Magistrate has been given various statutory powers and functions and as such the District Magistrate is a statutory authority within the meaning of the Act. Further Sections 34 and 35 of the Act give specific power to the District Magistrate whereunder the District Magistrate can prohibit execution or further execution of a resolution or order and in case of default in preforming a duty imposed on the Municipality, the State Government may appoint the District Magistrate to perform the same. Under Section 36 extraordinary powers to the District Magistrate have been provided in case of emergency, therefore, the submission of the petitioner's counsel that the District Magistrate had no role to play in the functioning of the municipality, cannot be accepted.
Section 48 (2) of the Act provides " where the State Government has, at any time, reason to believe that ...... it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office" The power may be exercised by the State Government after recording its subjective satisfaction. The initiation of proceedings under Section 48 (2) may be on the basis of any material. The State Government can suo moto take cognizance on any complaint by an individual or on information received from the District Magistrate or any other officer of the State. The report sent by the District Magistrate, Budaun on 31.7.2008 cannot be termed as material, which was irrelevant for initiating proceeding under Section 48 (2) of the Act. Further it is apparent from the perusal of the copy of the report of the District Magistrate that several opportunities were afforded to the petitioner to place her case before the District Magistrate but on some pretext or the other, the petitioner did not appear before him.
No such requirement to the effect that complaint against the President has to be necessarily accompanied by an affidavit, could be shown to us. Therefore, the District Magistrate was competent to hold inquiry against the alleged irregularities in discharging the duties as President by the petitioner. On the basis of the above discussion, we are of view that the argument that the State Government could not have issued show cause notice dated 11.08.2008 on the basis of the report of the District Magistrate cannot be accepted.
As regards the alleged violation of the principles of natural justice in respect of passing of the impugned order by the State Government, we are of view that the report sent by the District Magistrate dated 31.7.2008 is a detailed report wherein the District Magistrate has recorded his comments on the charges leveled against the petitioner in the complaint and the District Magistrate provided sufficient opportunity to the petitioner to counter the allegations. It is true that the State Government in the impugned order has heavily relied on the report dated 31.7.2008.
However, the fact remains that opportunity for personal hearing was not given to the petitioner by the State Government before passing the impugned order. It also appears that the proceedings by the State government were initiated against the petitioner on the basis of the letter written by the local ruling party MLA on 4.9.2009. It was held in Rama Shanker Barnwal Vs. State of U.P. And others 2000 (1) AWC 68 that where the State Government passed an order removing the petitioner therein and a 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 principle of natural Justice. The Division Bench of this Court in paragraphs 12 and 13 of the judgment which are being reproduced hereinunder has held:
"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 opportuni9ty 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 commend 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 allowed the writ petition and set aside the order of the State Government. The said judgment fully supports the case of the petitioner in the instant case also. The Division Bench judgment in Ram Shanker Barnwal Vs. State of U.P. And others (Supra) has been relied upon by another Division Bench in Writ-C 16029 of 2011 Sanjeev Agrawal Vs State of U.P. And others.
As regards the objection of non-holding of the enquiry and vitiating the order of the State Government on that basis Section 48 (2-A) of the Act obliges the State Government to consider the explanation of the person and after making such inquiry, as may be considered to be necessary, pass an order, therefore, the obligation to hold inquiry is there and it is wrong to interpret that there is no requirement for holding an inquiry. In the instant case though it was incumbent upon the State Government to conclude the inquiry within 3 months after affording opportunity to the petitioner no opportunity was given to the petitioner for personally presenting her case before the appropriate authority of the State Government.
In Shamim Ahmad (Dr.) Vs. State of U.P. and another, (2005) 1 UPLBEC 171 the Division Bench of this Court in paragraph 10 of its Judgment has held:-
"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."
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 an 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.
It has also been held by Division Bench that the order of removal entails civil consequences in view of sub-section 4 of Section 48 of the Act. Therefore, the proposition laid down by the said Judgments supports the submission of the learned counsel for the petitioner. The State Government has passed the impugned order dated 8.9.2009 removing the petitioner without holding an inquiry. The petitioner in her reply dated 4.10.2008 has denied each and every charge and has given detailed reply and no charge has been admitted by the petitioner. The order of the State Government deserves to be set aside on this ground also.
In Writ Petition No. 7849 of 2011, Abdul Aziz Ansari Vs. State of U.P. and others the Division Bench reiterated that recording of reasons is necessary for removing the elected office bearer. The Division Bench of this Court observed as follows:
"This is a shocking way of dealing with the complaint and the reply submitted, pleading to the removal of the 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 instant case, it is apparent that the entire proceeding by the State Government or their authorities appear to have been undertaken with a pre-determined mind. This is also evident from the perusal of the impugned order wherein respondent no.4, who passed the order under challenge on behalf of respondent no.1, has not applied his mind at all. In the impugned order all the charges have been reproduced along with the respective replies thereto by the petitioner and relevant comments by the District Magistrate. In the end the authority concerned has noted that in view of the report of the District Magistrate, the petitioner could not produce any substantive evidence or the reasons against the charges contained in the show cause notice on the basis of which she could be exonerated of the charges. The authority in the end has ordered dismissal of petitioner from the date of the order from the post of President, Nagar Palika Parishad, Sahaswan. The impugned order has been passed mechanically and arbitrarily in a pre-determined manner.
We thus find substance in the submission of the learned counsel for the petitioner that the reply given by the petitioner, has not been considered duly and adequate opportunity of hearing was not afforded to the petitioner.
As regards the correctness of the show cause notice dated 11.9.2008 to the petitioner, it is apparent from para 46 of the writ petition that the said show cause notice was challenged by the petitioner in Civil Misc. Writ Petition No. 50344 of 2008 earlier which was dismissed vide order of this Court dated 24.9.2008 with directions to respondent no.1 to conclude the inquiry proceeding against the petitioner within a period of three months and pass appropriate orders. Therefore, this aspect cannot be considered again.
Sri P.K. Misra, learned counsel appearing for the Election Commission has, in addition to the oral submissions, filed written argument also. He has also placed reliance on K.V. Narayana Rao and others Vs. P. Purushotham Rao and others , J.T. 1993 (1) SC 13, Mohinder Singh Gill and another Vs. The Chief Election Commissioner and others, AIR 1978 SC 851 and Lakshmi Charan Sen Vs. A.K.M. Hassan Uzzama , 1985 SCC (4) 689. All the authorities relied upon by the learned counsel are in relation to the powers of the election commission and also in respect of the election petition and as such, have no relevance since bye-election is not contemplated.
As regards the argument of learned Additional Advocate General that even if proper opportunity for hearing was not provided to the petitioner in the inquiry, it will not make any difference since she has no convincing answer to the charges. Relying on Aligarh Muslim University Vs. Mansoor Ali Khan, (2000) 7 SCC 529, the Apex Court has held that holding inquiry in a case where there can be no answer to the charges, would be an useless formality. However, in the present case, where the petitioner had strongly denied all the charges providing detailed facts and was keen to be afforded opportunity of hearing but was not provided any such hearing.
We are of view that in the instant case, the explanation of the petitioner against the show cause notice has not at all been considered by the authority concerned duly and it is not a case where without affording personal hearing, the cause of the petitioner has been duly considered.
In totality, the impugned order dated 8.5.2009, Annexure-1 to the writ petition cannot be sustained and is hereby quashed.
The writ petition is allowed.
Parties shall bear their own cost.
(Justice V.K. Mathur) (Justice Amitava Lala)
Nov.4th, 2011
T. Sinha