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2010 DIGILAW 2549 (ALL)

RUBAIDA KHAN v. STATE OF U. P.

2010-08-20

SATISH CHANDRA, UMA NATH SINGH

body2010
JUDGMENT Hon’ble Dr. Satish Chandra, J.—By this petition, the petitioner has challenged the impugned show-cause notice dated 19th March, 2010 issued by the State Govt. under Section 48(2) of U.P. Municipalities Act, 1916 (hereinafter referred to as Act) by which the financial and administrative powers, functioning and duties of the President of Nagar Panchayat Parshadepur, District Rae Bareli has been ceased. 2. Learned counsel for the petitioner, Sri O.P.Srivastava submits that the said notice has been issued on extraneous consideration for such allegations which have no substance. One Executive Officer (earlier known as Bakshi), namely Sri Bhimsen Sonkar (opposite party No. 5) was already working as Executive Officer when the petitioner took oath of the office of the President on 15.11.2006. The said Executive Officer has made certain complaints against the petitioner to pressurize the petitioner to revise his pay according to the 6th Pay Commission and pay salary but without providing the service book. He further submits that the work and conduct of the Executive Officer was very bad and he was not cooperating with the smooth functioning of the Nagar Panchayat. The said officer was not attending the office regularly and was neither marking his presence in the Attendance-register nor mentioning any detail of his tour/visit in the concerned register, so the petitioner passed an order dated 19.3.2009 requiring the Executive Officer to attend the office properly by recording the entries in the Attendance register. He has drawn our attention towards Annexures No. 2 and 3 of the writ petition. When the said officer did not respond properly, the petitioner wrote a letter on 3.4.2009 requesting him again to supply information in writing pertaining to his service book. 3. The officer did not supply the service book despite repeated requests and he remained absent from duty under the pretext that he had gone Rae Bareli. The petitioner wrote a letter dated 12.5.2002 (Annexure No. 8) to the District Magistrate as well as Additional District Magistrate (Administration), Rae Bareli informing the prevailing situation. The copy of the said letter was endorsed to the Director, Local Bodies, Uttar Pradesh. Learned counsel for the petitioner also submits that the Executive Officer (opposite-party No. 5) is posted in Nagar Panchayat, Parshadepur for the last about five years but he is not residing at the place of posting and he is not attending the duties by coming to the office in time. Learned counsel for the petitioner also submits that the Executive Officer (opposite-party No. 5) is posted in Nagar Panchayat, Parshadepur for the last about five years but he is not residing at the place of posting and he is not attending the duties by coming to the office in time. The Executive Officer has not produced the service book despite repeated requests, as mentioned in Annexure No. 9 to the writ petition. According to the counsel for the petitioner, the employees of Nagar Panchayat had also lodged complaint against the said Executive Officer Sri Bhimsen Sonkar as he is demanding bribe for making the payment of salary and for continuing the Safai Karmchari. For this purpose, he has drawn our attention to Annexure No. 10 to the writ petition. 4. Sri O.P.Srivastava, learned counsel for the petitioner, has also drawn our attention towards Annexure No. 12 to the writ petition, which is a letter written by the petitioner on 19.8.2009 to the District Magistrate, Rae Bareli stating that Sri Sonkar is involved in criminal cases. There are seven criminal cases against him, out of which he has also been convicted in one case. The Executive Officer has grabbed the land of Gram Sabha, Manikpur and got the same entered in his name in the Khatauni. The said officer made manipulation and got the name of his wife entered against the 6 bigha land of Gram Sabha, Manikpur illegally. He also leveled the several charges by stating that the officer has made her fabricated signatures on certain documents and probably in his service book, hence he is not prepared to show the said service book. The petitioner wrote a letter to the authorities on 22.12.2009 and 14.1.2010 (Annexures No. 15 and 16) to take action against the said officer. Learned counsel also submits that the said officer is not receiving the salary but, on the other hand, the Additional District Magistrate vide his letter dated 7.10.2009 has written to the petitioner alleging that she is deliberately not paying the salary to the Executive Officer and the husband of the petitioner is interfering in the functioning of the Nagar Panchayat. Hence, the petitioner was directed to pay the salary to the Executive Officer and restrain her husband from making interference in the functioning of the Nagar Panchayat, failing which the SDM will submit report against the petitioner. Hence, the petitioner was directed to pay the salary to the Executive Officer and restrain her husband from making interference in the functioning of the Nagar Panchayat, failing which the SDM will submit report against the petitioner. The ADM again asked the petitioner to comply its earlier orders dated 7.10.2009 and 31.10.2009. When it was so, then the petitioner has filed Writ Petition No. 1732 of 2009 (S/B) before this Hon’ble Court challenging the validity of the aforesaid action of the Additional District Magistrate (F & R), Rae Bareli. The said writ petition is still pending. 5. On the basis of these facts, learned counsel for the petitioner has challenged the validity of the impugned show-cause notice by mentioning that charge No. 1 is without any material. Regarding Charge No. 2, he submits that an advertisement was made in ‘’Rashtriya Sahara’, a Hindi daily on 10th June, 2009 on behalf of Nagar Panchayat. For making payment of this advertisement, the bill amounting to Rs. 17,415/- was prepared and signed by the petitioner but the Executive Officer refused to make the signature on the same by stating that the said advertisement was not in the interest of Nagar Panchayat. The copy of the said payment with regard to advertisement is at page Nos. 19 and 20 of the counter-affidavit. He submits that as the Executive Officer has always endeavoring to malign the petitioner on one pretext or another, this charge has been fabricated. In Charge No. 3 of the show-cause notice, it has been alleged that the petitioner and her husband have made some unauthorized possession over the land of Nagar Panchayat but no detail of the land or any other particulars were mentioned. The said charge is wholly vague and without any substance. The matter was duly enquired and report dated 20.8.2009 was submitted by Up-Ziladhikari, Salon, Rae Bareli in which the alleged charges were found baseless (Annexure No. 20 to the writ petition). 6. About Charge No. 4, he submits that the husband of the petitioner has uttered some caste based abuses ([kfVd lkys rsjk fnekx [kjkc gks x;k gS). This charge is wholly false and fabricated and the petitioner cannot be held responsible by invoking Section 48(2) of the Act. The petitioner and her husband had never uttered any such word, as alleged. About Charge No. 4, he submits that the husband of the petitioner has uttered some caste based abuses ([kfVd lkys rsjk fnekx [kjkc gks x;k gS). This charge is wholly false and fabricated and the petitioner cannot be held responsible by invoking Section 48(2) of the Act. The petitioner and her husband had never uttered any such word, as alleged. He also submits that the petitioner is unable to say that how Charge No. 4 has been based without any material/report. No report has been made in violation of the Act. Similarly, he submits that regarding Charge No. 5, no detail has been given as how many trees have been cut or damaged by the petitioner. 7. Finally, he submits that impugned show-cause notice is not sustainable in the eye of law. For this purpose, he relied on the ratio laid down in the case of Anil Kumar’s case. He read out paras 13,16,17,19 and 20 of the said case but learned counsel neither supplied the copy of the judgment nor citation till date despite opportunity/liberty given to him for filing the brief submissions alongwith case laws, so no discussion can be made pertaining to the said case laws. 8. Before concluding the arguments, learned counsel also discussed the meaning of word ‘mala fide’; ‘show-cause notice’; ‘reasons to believe’ etc. with the help of said case laws and dictionary. Lastly, he made a request that the impugned show-cause notice may kindly be quashed. 9. On the other hand, learned Standing Counsel appearing for opposite partie Nos. 1 to 4 has supported the impugned notice by stating that it is merely a show-cause notice which is in accordance with Section 48 (proviso) of the Act. Opportunity was given to the petitioner to appear before A.D.M., who has filed the report against the petitioner. For this purpose, he read out para 29 of the counter-affidavit. The report of the A.D.M.(Admn.) dated 29.12.2009 is based for the impugned notice. He also submits that the petitioner has still opportunity of filing the explanation/reply. By the notice, only prima facie opinion has been formed, so the State is entitled reason to believe. Prima facie charges prove that this is the case of misconduct, so he justified the impugned show-cause notice. For this purpose, he relied on the ratio laid down in the following cases- 1. By the notice, only prima facie opinion has been formed, so the State is entitled reason to believe. Prima facie charges prove that this is the case of misconduct, so he justified the impugned show-cause notice. For this purpose, he relied on the ratio laid down in the following cases- 1. Zaheer Ahmad Ansari v. State of U.P., (2005) 1 UPLBEC 40 ; 2. Hafiz Ataullah Ansari v. State of U.P., 2009(1) ADJ 487 ; and 3. Mukesh Rajput v. State of U.P., (2003) 3 UPLBEC 2587 10. In all the cases, it was observed by this Hon’ble Court that in cases of charges of financial and other irregularities, the Court should not exercise its discretionary jurisdiction under Article 226 of the Constitution of India, as the case is required yet to be examined thoroughly during inquiry. 11. Sri Girish Chandra Sinha, learned counsel for the opposite party No. 5 i.e. Sri Bhimsen Sonkar also justified the show-cause notice. However, he further submits that the writ petition itself is not signed by the petitioner and, in fact, it has been actually filed by the husband of the petitioner, as already mentioned in the short counter-affidavit. He further submits that the work of Nagar Panchayat is looked by the husband of the petitioner who is de facto Chairman as the petitioner is a ‘’Pardanaseen’ lady, so the duty of the petitioner is being performed by her husband who sometimes used to make signature as President and even he presides over several meetings. He also submits that for the last more than one year, the petitioner was misusing her position and has created undue pressure on Executive Officer. The activities of the husband of the petitioner create harassment not only to her but also to the employees of the Parishad. The petitioner is completely under the control of her husband, so he could not resist the illegal activities of her husband. The husband petitioner allowed and assisted several persons to make encroachment over the land of the town area by raising permanent constructions. When his client raised the objection, then threat was given to his client. He further submits that the Executive Officer being custodian of the property of the Nagar Panchayat was duty bound to report all such illegal activities to the senior officials of the Government. The respondent No. 5 is a Govt. When his client raised the objection, then threat was given to his client. He further submits that the Executive Officer being custodian of the property of the Nagar Panchayat was duty bound to report all such illegal activities to the senior officials of the Government. The respondent No. 5 is a Govt. employee and completely depends for his livelihood on the salary but the petitioner and her husband have illegally withheld the salary of the petitioner. As a last resort, the respondent No. 5 has approached the District Magistrate, Rae Bareli and also informed the Director, Local Bodies with a request to take appropriate action in the matter. In the circumstances, an inquiry was made by the Prescribed Authority A.D.M.(F & R) who observed in its report that the petitioner is unnecessarily sticking for not making payment of salary and the petitioner and her husband are making undue interference into the day-to-day activities of the Nagar Panchayat. The petitioner obtained an ambiguous report from SDM under political contacts of her husband but the District Magistrate disapproved the report of SDM and has directed the ADM (Administration) to go through the complaints made by the respondent No. 5 as well as by the petitioner. The ADM (Administration) has considered each and every complaint and finally made a recommendation against the President. He continued to argue by mentioning that the petitioner has committed financial irregularities, abused the employees of the Town Area and has made attempt to misappropriate the funds. Apart from that, she has illegally withheld the salary of the Executive Officer and thus she is guilty of misconduct and caused damage to the property of the Nagar Panchayat, willfully contravened the order and direction of the State Govt./its officials, misbehaved with the officials of the Nagar Panchayat, assisted to encroach upon the land of the Nagar Panchayat. Lastly, he has justified the impugned order with the help of the following case laws— 1. Swarn Prabha Singh v. State of U.P., 2008(6) ADJ 16 (DB); 2. Girish C. Srivastava v. State of U.P., 2007(5) ADJ 381 (DB); 3. Rekha (kinner) v. State of U.P., 2008(3) ADJ 315 (DB); and 4. Zaheer Ahmad Ansari v. State of U.P., (2005) 1 UPLBEC 40 12. We heard learned counsel for the parties at length and gone through the material available on record. Girish C. Srivastava v. State of U.P., 2007(5) ADJ 381 (DB); 3. Rekha (kinner) v. State of U.P., 2008(3) ADJ 315 (DB); and 4. Zaheer Ahmad Ansari v. State of U.P., (2005) 1 UPLBEC 40 12. We heard learned counsel for the parties at length and gone through the material available on record. The amended provision, as referred to above, in Section 48 of the Act, 1916 reads as under : “(2-A) Where in an inquiry and by such persons in such manner as may be prescribed, if a President or Vice-President, prima facie, found to be guilty to any of the grounds referred to in sub-section (2), he shall cease to exercise, perform and discharge the financial and administrative powers, functions 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 evoked and performed by the District Magistrate or by an officer nominated by him not below the rank of Deputy Collector.” STATEMENT OF OBJECTS AND REASONS “Section 48 of the Uttar Pradesh Municipalities Act, 1916 (U. P. Act No. 2 of 1916) provides for removal of President of a municipality. In the said section the State Government is empowered to issue show-cause notice to the guilty President on the grounds mentioned under Section 48, before removing him from his office. Most of the Presidents used to delay the proceedings by not replying the show-cause notice in time and they continue to misuse their financial powers. It has, therefore, been decided to amend the said Act to cease the financial powers of such President of a Vice-President during the pendency of the inquiry and his financial powers and functions will be exercised and performed by the District Magistrate until he is exonerated of the charges.” The Statement of Objects and Reasons makes it clear that the petitioner facing the enquiry is deprived of her financial and administrative powers automatically by operation of law. Once the show-cause is served upon her, her administrative and financial powers cease and she cannot exercise the same, therefore, we find no substance in the submissions made by Shri Srivastava. Unless petitioner is exonerated of the charges levelled against her, she cannot be permitted to exercise the said powers as mandatorily required by the aforesaid provision. 13. Once the show-cause is served upon her, her administrative and financial powers cease and she cannot exercise the same, therefore, we find no substance in the submissions made by Shri Srivastava. Unless petitioner is exonerated of the charges levelled against her, she cannot be permitted to exercise the said powers as mandatorily required by the aforesaid provision. 13. We also find no force in the submissions made by learned Counsel for the petitioner that before depriving the petitioner of financial and administrative powers, an opportunity of hearing was to be given for the reason that upto the stage of serving the charge-sheet in such a matter, the right of hearing cannot be claimed as a matter of right. Petitioner has a right to defend herself and this right comes into existence from the time she is served with the show-cause notice, therefore, she cannot have any grievance on this count. But an opportunity was given to the petitioner as appears from the report dated 9.1.2010. 14. In the instant case, it also appears that the main dispute is between the petitioner and opposite party No. 5 who cannot see each other eye-to-eye. As there were several complaints, so the ADM asked to make an inquiry into the matter. The SDM has given the report in favour of the petitioner and ADM (F & R) has given the report against the petitioner. It means that there is some prima facie material available against the petitioner. That is why, the competent authority has exercised its power under Section 48(2) and its proviso and has issued the impugned show-cause notice. Before it, the ADM (F & R) has given the opportunity to the petitioner to submit her explanation. No doubt, the petitioner is a duly elected public representative but it appears from the material available on record that her husband is de facto Chairman of the Nagar Panchayat. There were instances in the report dated 29.12.2009 while exercise of power, there was accumulating the wealth by illegal means and the same have come to the notice of the authorities, as appears from the report of ADM (F & R). 15. Further, it is evident that one Mr. Mohd. Akhtar Rayeen, M.P. vide his letter dated 4.12.2009 has made a complaint against the petitioner to the District Magistrate, Rae Bareli. 15. Further, it is evident that one Mr. Mohd. Akhtar Rayeen, M.P. vide his letter dated 4.12.2009 has made a complaint against the petitioner to the District Magistrate, Rae Bareli. In the said complaint, it is stated that there is unauthorized encroachment on the public land by the Chairman and her husband. Similarly, he also made a complaint regarding illegal cutting of trees. Moreover, the report filed by the ADM (F & R) is also giving prima facie material for issuing the impugned show-cause notice. The proper opportunity was already given by the A.D.M. (F & R) while making the inquiry. When it is so, we find nothing wrong in the impugned show-cause notice. The petitioner is at liberty to submit her explanation before the competent authority as she will have another opportunity. 16. The show-cause notice was issued by the authorities as there were several complaints against the petitioner, as mentioned above. Therefore, the State Govt. by means of letters dated 5.7.2009 and 30.12.2009 directed the District Magistrate, Rae Bareli to conduct inquiry. The SDM and ADM, Rae Bareli submitted their reports dated 26.11.2009 and 9.1.2010 and the State Govt. has reasons to believe that the allegations contained appear neither arbitrary nor violates any provision of law as the petitioner is found violating the provisions of Section 48(2) of the Act and issued the impugned show-cause notice dated 19.3.2010 whereby the financial and administrative function and duties have been ceased until she is exonerated from the charges as mentioned in the show-cause notice. The opportunity was afforded to the petitioner, as is evident from the report dated 9.1.2010 thereby it is incorrect on the part of her counsel that show-cause notice has been issued without affording any opportunity. 17. However, we do not find any provision pertaining to an opportunity in the present proviso, which is the subject-matter of challenge in the present writ petition. Further, we are unable to agree with the argument that before ceasing the administrative and financial powers of the petitioner as Chairman/President of the Nagar Panchayat concerned during the pendency of the proceedings for removal under Section 48 of the Act, it is necessary to afford an opportunity of hearing to the petitioner. Further, we are unable to agree with the argument that before ceasing the administrative and financial powers of the petitioner as Chairman/President of the Nagar Panchayat concerned during the pendency of the proceedings for removal under Section 48 of the Act, it is necessary to afford an opportunity of hearing to the petitioner. In our opinion, neither it is the requirement of the Statute, nor principles of natural justice so necessarily warrants considering the nature of dispute because no rights of the petitioner are being adjudicated upon while power under proviso to sub-section (2) of Section 48 of the Act is exercised. The scope of exercise of power under the proviso has been dealt with by the Apex in the case of S. Sundaram Pillai etc. v. R. Pattabiraman, AIR 1985 SC, 582 in paragraph 42, which reads thus : “42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting certain provisions from the main enactment; (2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable; (3) it may also be embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendement of the statutory provision.” 18. Since, the final order purporting to removal of the petitioner is yet to be passed, which is in our view will be passed only after explanation submitted by the petitioner to show-cause notice is considered, we do not find that for exercise of the power under the proviso to sub-section (2) of Section 48 of ‘the Act’, there is any requirement for affording an opportunity of hearing to the petitioner or for the observance of principles of natural justice even by implication, though in the instant case, necessary opportunity was given by A.D.M. before submitting his report as mentioned above. The exercise of power under Section 48(2) of ‘the Act’ is only an interim arrangement pending final orders for removal of the petitioner as Chairman of Nagar Panchayat concerned. This view of ours find support from the decision of a Division Bench in the case in Rekha (Kinner) v. State of U.P. and others, 2008 (3) ADJ 315 (DB). 19. The inquiry reports dated 26.11.2009 and 9.1.2010 submitted by the District Magistrate, Rae Bareli demonstrates that the petitioner is prima facie guilty of violating the provision of Section 48(2) of the Act. The petitioner has not paid the salary inspite of direction of the higher authorities to the opposite party No. 5. So, we are satisfied that the allegations are not purely baseless and vague but there is prima facie material for issuing show-cause notice. When it is so, we find no merit in the writ petition filed by the petitioner. 20. However, from the available materials, it also appears that the opposite party No. 5 Sri Bhim Sen Sonkar, the Executive Officer, has also not approached the higher authorities with clean hands as per the maxim “SUPPRESSIO VERI, SUGGESTIO FALSI”. Further, there were criminal cases pending against him, as alleged in the letter dated 19.8.2009 addressed to the District Collector (Annexure No. 12). When it is so, then we direct the opposite partie Nos. 1 to 4 to institute an inquiry against the respondent No. 5 too within a period of two weeks. Further, we direct the opposite partie Nos. 1 to 4 to transfer opposite party No. 5 to a distant place at least five hundred kilometers away from the place of present posting, so that he may not be in a position to maneuver and influence the inquiry. 21. In the instant case, it also appears that there are prima facie charges for corruption, accumulating undisclosed wealth against the petitioner as well as opposite party No. 5 i.e. Mr. Bhimsen Sonkar as alleged against each other. So, we direct the Chief Commissioner of Income Tax, Lucknow to investigate into the matter against both the persons at the earliest. Registrar of this Court shall ensure the service of a copy of this order on the Chief Commissioner, Income Tax Department, Lucknow. 22. With the above direction, the writ petition stands disposed of finally. —————