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2004 DIGILAW 2434 (ALL)

Shamim Ahmad v. State of U. P.

2004-12-03

TARUN AGARWALA, V.M.SAHAI

body2004
JUDGMENT Tarun Agarwala, J.—The moot question which arises for consideration in the present writ petition is whether the removal of the petitioner as President of the Nagar Palika Parishad, Mubarakpur, District Azamgarh was in accordance with the provisions of Section 48 (2A) of the U.P. Municipalities Act, 1916. 2. A President is elected by an electorate, but he may be removed from office by the State Government on charges specified in Section 48 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the ‘Act’). 3. The relevant provisions of Section 48 of the Act reads as under : "48. Removal of President.—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) ........................................ (viii) been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, whether as President or as Vice-President, exercising the powers of President, or as Vice-President, or as member ; or (ix) caused loss or damage to any property of the Municipality ; or (x) misappropriated or misused Municipal fund ; or (xi) acted against the interest of the Municipality ; or (xii) contravened the provisions of this Act or the rules made thereunder ; or (xiii) created an obstacle in a meeting of the Municipality in such manner that it becomes impossible for the Municipality to conduct its business in the meeting or instigated someone to do so ; or (xiv) wilfully contravened any order or direction of the State Government given under this Act ; or (xv) misbehaved without any lawful justification with the officers or employees of the Municipality ; or (xvi) disposed of any property belonging to the Municipality at a price less than its market value ; or (xvii) encroached, or assisted or instigated any other person to encroach upon the land, building or any other immovable property of the Municipality ; 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. (2A) After considering any explanation that may be offered by the President and making such enquiry as it consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office." 4. (2A) After considering any explanation that may be offered by the President and making such enquiry as it consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office." 4. A perusal of Section 48 of the Act indicates that the State Government may issue a notice to the petitioner to show cause why he should not be removed from the post of President. Section 48 (2A) contemplates that the State Government before removing the President from his office is required to : "(1) to consider the explanation offered by the President ; (2) to conduct an enquiry ; and (3) to record the reasons in writing regarding removal of the President from his office." as held by a Division Bench of this Court in Nasimuddin v. State of U.P. and others, 2000 (3) AWC 1803 (LB) : 2000 (3) ESC 1611. 5. Similar view was also made in Hazi Islam v. State of U.P. and others, 2004 (2) ESC 1055, holding : "Sub-section (2A) requires recording of reasons and holding of enquiry and consideration of explanation. Therefore, before passing the order of the removal of a President, the State Government has to comply with three conditions. Firstly, consider the explanation offered by the President, secondly, hold enquiry and lastly, record reasons in the order of removal from the office of the President." 6. In Umesh Baijal and others v. State of U.P. and others, 2004 (2) AWC 1757 : 2004 (55) ALR 188, it was held : "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. 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 dependents, 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." 7. From the aforesaid decisions, it is clear that sub-section (2A) 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 Baijals 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 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 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." 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 fulfledged enquiry. 11. In view of the observations made above and before examining whether the provisions of sub-section (2A) of Section 48 of the Act has been complied by the State Government or not, it would be necessary to consider the facts of this case. 12. The petitioner was elected as the President of the Nagar Palika Parishad, Mubarakpur, District Azamgarh. On the basis of a complaint, an enquiry report dated 24.2.2003 was submitted by the Sub-Divisional Magistrate and, on this basis, the District Magistrate vide his letter dated 25.2.2003, made a recommendation to the State Government to initiate appropriate proceedings against the petitioner. The State Government issued a notice dated 6.12.2003 to the petitioner under Section 48 (2) of the Act to show cause why he should not be removed from the office of President of the Nagar Palika Parishad on the basis of the charges mentioned in the notice. The State Government issued a notice dated 6.12.2003 to the petitioner under Section 48 (2) of the Act to show cause why he should not be removed from the office of President of the Nagar Palika Parishad on the basis of the charges mentioned in the notice. The petitioner submitted his reply on 12.2.2004 and thereafter the impugned order dated 12.7.2004 was passed removing the petitioner from the office of President of the Nagar Palika Parishad. 13. We have heard Sri Shashi Nandan, senior advocate, assisted by Sri K.P. Pathak for the petitioner, Sri C.B. Yadav, chief standing counsel for the State of U.P., respondent No. 1 and Sri S.K. Yadav, advocate, holding brief of Sri S.A. Ansari, advocate, appearing for respondent No. 2. 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 (2A) of Section 48. Therefore, we are of the opinion that the provisions of sub-section (2A) of Section 48 was not followed by the State Government. 15. Sri C.B. Yadav, the learned chief standing counsel, however, emphatically submitted that an enquiry was conducted by the Sub-Divisional Magistrate in which an opportunity was given to the petitioner and thereafter after considering the evidence and the report of the Sub-Divisional Magistrate, an order of removal was passed by the State Government. The learned counsel for the State Government submitted that in view of the enquiry made by the Sub-Divisional Magistrate and in view of the fact that the charges stood proved, no further enquiry was required under sub-section (2A) of Section 48. 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 (2A) 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 (2A) of Section 48 of the Act. 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 (2A) 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 (2A) 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 (2A) 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 (2A) 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 (2A) 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. 18. Accordingly, the writ petition is allowed on this ground itself. The impugned order dated 12.7.2004 removing the petitioner from the office of President of the Nagar Palika Parishad, Mubarakpur, District Azamgarh under sub-section (2A) of Section 48 of the Act is quashed. It is, however, open to the State Government to pass a fresh order after holding an enquiry as contemplated under sub-section (2A) of Section 48 of the Act. In the meantime, a writ of mandamus is issued, commanding the State Government not to interfere in the working of the petitioner as President, Nagar Palika Parishad, Mubarakpur, District Azamgarh. In the circumstances of the case there shall be no order as to cost.