Allahabad High Court
Smt Shakuntla Jaiswal vs State Of Up And 5 Others on 1 August, 2024
Bench: Anjani Kumar Mishra, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:123435-DB
Reserved on 22.07.2024
Delivered on 01.08.2024
Court No. - 3
Case :- WRIT - C No. - 21414 of 2024
Petitioner :- Smt Shakuntla Jaiswal
Respondent :- State Of Up And 5 Others
Counsel for Petitioner :- Jyoti Kumar Singh,Rakesh Pande (Senior Adv.),Vishakha Pande
Counsel for Respondent :- Akhilesh Kumar Gupta,Ashok Kumar Tiwari,C.S.C.,Chandan Sharma,Piyush Patel,Pradeep Kumar,Rakesh Kumar Gupta,Swapnil Kumar
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Jayant Banerji,J.
1. Heard Shri Shashi Nandan and Shri Rakesh Pande, Senior Advocates for the petitioner, Shri Ashok Mehta for the State of U.P. and Shri Anil Tiwari, who has filed an impleadment application on behalf of one Shesh Nath, the complainant.
2. Challenge in the writ petition is to the order dated 26.06.2024 passed by the Additional Chief Secretary, Urban Development, Lucknow, U.P., whereby the financial and administrative powers of the petitioner, an elected President of Nagar Panchayat Parishad, Siswa Bazar, Maharajganj, has been ceased and the Additional Sub-Divisional Magistrate, Sadar, Maharajganj has been directed to take charge of the post of President.
3. From the record, it transpires that several notices were issued to the petitioner, namely on 19.12.2022/04.11.2022, which contains six charges, notice dated 28.02.2023 containing four charges and the notice dated 16.05.2023.
4. It is not in issue that each of these notices were duly replied by the petitioner. Yet another notice was issued to the petitioner on 04.07.2023 calling upon the petitioner to appear in person and to explain the charges levelled against her. It is stated that the petitioner was heard on 14.09.2023 and thereafter a report was called from the District Magistrate on 23.11.2023 as also the Executive Officer.
5. After the report of the District Magistrate dated 11.12.2023 was received, yet another show cause notice was issued to the petitioner on 02.02.2024, which was a compilation of the charges in the earlier notices dated 14.11.2023, 28.02.2023 and 16.05.2023 along with the report of the District Magistrate dated 11.12.2023. The petitioner is stated to have submitted a detailed reply on 16.02.2024, copy whereof has filed as Annexure 14 to the writ petition.
6. Thereafter, the impugned order has been passed on 26.06.2024 holding that the charges against the petitioner were, prima facie, proved and, therefore, the financial and administrative powers have been ceased exercising powers conferred by Section 48(2-A) of the Municipalities Act, 1916.
7. The contention of learned counsel for the petitioner is that though repeated notices were issued to the petitioner, none of the notice expressed any intention to cease the financial and administrative powers of the petitioner.
8. Apart from the above, the impugned order is vitiated as the explanation offered by the petitioner has not been considered while passing the impugned order. The impugned order is therefore, in the teeth of the ratio of the Full Bench in Paras Jain Vs. State of U.P. & 5 Others, 2016 (1) ADJ 1 (ALL) as also the ratio in a Division Bench decision of this Court in Nand Kumar Maurya Vs. State of U.P. and Others, 2022 (3) ADJ 472.
9. In reply, the submission of Shri Ashok Mehta, learned Additional Advocate General is that the charges levelled against the petitioner stood admitted by the reply furnished by her and therefore, the impugned order calls for no interference. It stands admitted on record that three days after taking charge as the President, the petitioner issued tenders involving an expenditure in excess of 11 crores, although the total money available in the account of the Nagar Palika Parishad on that date was only 4 crores and odd. Subsequently, when a show cause notice was issued, the tenders were withdrawn. The petitioner also issued tenders for work, which had already been performed. These tenders are also alleged to have been withdrawn subsequently, but no date in this regard is mentioned. Apart from the above illegal issuance of tenders, it is stated, the tenders themselves suffered errors like inadequacy of the period of notice etc. Additionally as per charge 11, Class IV employees were granted promotion to Class III post without following the procedure, prescribed. Such promotion was granted also to the husband of the petitioner. The issuance of the tenders and also promotions having been granted, is admitted, although, it is the case of the petitioner that these tenders as also the promotion order was subsequently withdrawn on being apprised of the illegality, therein. However, the factum of illegal issuance of tenders and of promotions having been granted stand admitted and, therefore, the charges against the petitioner were prima facie proved. For this reason alone, he states, the impugned order deserves to be affirmed. In any case, the order has been passed after due notice to the petitioner and after affording adequate opportunity of hearing. The writ petition therefore, merits dismissal.
10. Shri Anil Tiwari appearing for the complainant intervener has reiterated the submissions made on behalf of the State by Shri Ashok Mehta and has drawn the attention of the Court to the proviso to Section 48(2) of the Municipalities Act, 1916. It has been submitted that the petitioner is not fit to continue as President of the Nagar Palika Parishad.
11. In rejoinder, the submission of Shri Shashi Nandan is that insofar as charge no.1 is concerned the decision was by the Board and, therefore, the petitioner acting on her own was not competent to withdraw an order, or a Resolution of the Board.
12. He has also vehemently argued that from the material on record, it is clearly borne out that no financial loss was offered by the Nagar Palika Parishad on account of so called illegal acts of the petitioner and, therefore, it cannot be said that the actions of the petitioner were motivated by personal gain. The impugned order only mentions possibility of financial loss. Therefore, also impugned order cannot be sustained.
13. We have considered the submissions made by learned counsel for the parties and perused the record.
14. Insofar as charge no.1 against the petitioner is concerned, the same that although only a sum of Rs. 4,45,79,277.92/- was available in the account of the Nagar Palika Parishad, Siswa Bazar, Maharajganj.
15. By the Board Resolution dated 01.04.2022 approval was granted for work amounting to Rs. 11,58,69,000/- which approval was granted by the 25 members of the Board and the President. The reply of the petitioner was that the Board had granted approval to various development work and the Executive Officer and the Senior Clerk informed the Board that in each financial year a sum of Rs. 15 crores and odd is available for development work and, therefore, the Board had granted approval. This explanation is definitely mentioned in the impugned order but the same has not been objectively considered and a finding has been returned that the action of the petitioner was contrary to financial guidelines and in violation thereof.
16. Insofar as the issuance of tenders is concerned, the reply of the petitioner was that these tenders have been withdrawn. This aspect has again not been dealt with in the impugned order.
17. It would be relevant to state that the reply of petitioner to the charge of illegal tenders having been issued was that all these tenders have been withdrawn before being finalized and the wrong promotion granted to the Class IV employee promoting him to a Class III post, de-hors the rules and law was also, withdrawn. None of these actions resulted in any financial loss. The only financial loss which is alleged is a loss of Rs. 6,000/- and odd, which is attributed to stationary charges etc.
18. As regards the argument raised by the learned Additional Advocate General that the allegations were admitted by the petitioner in her reply to the show cause notice, we find from perusal of the show cause notice that the replies to the allegations proceed on the premise of events narrated in the show cause notice/charges against the petitioner and the explanations in rebuttal in reply have been submitted thereon. The expenditures, therefore, cannot be considered in a manner to dub them as admissions. The explanations are mandatorily required to be considered in the backdrop of the allegations made and a reasoned order is required to be passed accordingly. Failure to do so is abhorrent and in derogation of the principles of natural justice and is liable to be vitiated in view of the patent arbitrariness.
19. Upon a perusal of the impugned order, this Court finds that the explanations to each charge given by the petitioner definitely find mention but the same has not been objectively dealt with by the State Government while passing the impugned order. Merely giving an opportunity to show cause, and then passing an order without objectively dealing with the explanations offered, is contrary to the very object of issuance of a show cause notice and an opportunity of being heard. The opportunity of hearing and giving replies under the circumstances, is merely an eye wash and not adequate opportunity of hearing, especially when the reply furnished and the explanation offered has not been objectively considered while passing the impugned order and ceasing the financial and administrative powers of an elected President of a Nagar Palika Parishad. The impugned order therefore is in the teeth of the ratio of the Full Bench in Paras Jain and the division Bench in Nand Kumar Maurya (supra). The impugned order under the circumstances cannot be sustained.
20. Accordingly, we allow the writ petition, set aside the impugned order dated 26.06.2024 leaving it open for the respondents to proceed afresh against the petitioner strictly in accordance with law and in the light of the observations contained in the body of the judgment, in case circumstances so justify.
21. No order as to costs.
Order Date :- 1.8.2024
Mayank
