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2014 DIGILAW 963 (ALL)

Rajbeti Sankhawar v. State of U. P.

2014-03-26

A.P.SAHI, VIVEK KUMAR BIRLA

body2014
JUDGMENT Amreshwar Pratap Sahi and Vivek Kumar Birla, JJ. 1. The petitioner is the elected President of Nagar Panchayat, Kamalganj, Farrukhabad. The challenge raised by the petitioner is to the order dated 19.2.2014 passed by the State Government whereby the financial and administrative powers of the petitioner as the President of the Nagar Panchayat have been seized under the proviso to section 48(2-A) of the U.P. Municipalities Act, 1916. 2. We have heard Sri Anoop Trivedi extensively for the petitioner, the learned Standing Counsel for the respondents 1 and 2 and Sri Keshri Nath Tripathi, learned Senior Counsel assisted by Sri Ashish Agrawal for the respondent No. 3. 3. Certain allegations were made against the petitioner which became subject-matter of a preliminary inquiry and on a consideration of the documents on record, we prima facie find that this dispute had arisen on account of serious differences between the petitioner and the respondent No. 3, Executive Officer which ultimately has resulted in impediment of the functioning of the Nagar Panchayat. There are allegations and counter allegations, but some of the allegations against the petitioner relate to her conduct as Chairman including that the petitioner allegedly allowing her husband who is not even a member to participate in the official meetings of the Nagar Panchayat which was a clear breach of rules. 4. Not only that when the incident took place in a meeting, it is alleged by the respondent No. 3 that the petitioner attempted a physical assault on him and other members with a shoe in her hand. 5. Learned Counsel for the petitioner submits that these allegations are false and they have been painted adversely inasmuch as, according to the reply of the petitioner, she had taken a posture in self-defence after she had been threatened with a similar assault by a Class-IV employee of the Nagar Panchayat. 6. There are other allegations as well but Sri Trivedi submits that so far as the financial irregularities are concerned they have not been even found prima facie through as per the report of the District Magistrate dated 8.1.2014 Annexure-10 to the writ petition. He submits that this report has not been taken into consideration and the seizure of the powers has taken place almost a year after the incident. 7. He submits that this report has not been taken into consideration and the seizure of the powers has taken place almost a year after the incident. 7. Learned Counsel further submits that there was neither any urgency nor any exigency for the exercise of powers by the State Government in this background when the entire complaint against the petitioner appears to be malicious. The impugned order therefore deserves to be quashed. 8. Sri Tripathi on the other hand submits that all these allegations and counter allegations and the prima facie satisfaction of the State Government are a preliminary exercise which is a prelude to the main inquiry, and he contends that such a preliminary satisfaction is always subject to any final orders. He submits that these allegations and counter allegations as well as the evidence in support thereof, and the explanation given, is yet to be examined and considered by the State Government finally. He therefore submits that given the face value of the allegations some of which are admitted to the petitioner there is a clear prima facie case of misconduct against the petitioner which is amenable to scrutiny in exercise of such powers as has been done in the present case. He therefore submits that it is for this reason and in view of the unsavoury situation that has emanated on account of the incidents indicated in the reports, that the respondent No. 3 was also recommended to be transferred from his present place of posting. 9. A short counter-affidavit has been filed bringing on record a photograph and some newspaper reports to contend, that the admission of the petitioner stands substantiated and corroborated by the said reports has been filed, and therefore this Court may not interfere with the impugned order at this stage. 10. Having considered the submissions raised and in view of the facts as brought on record, we find that the subject-matter of inquiry does indicate an incident which may or may not lead a conclusion of misconduct on the part of the petitioner. 11. The widely reported and photographed show of shoe therapy attempted during the official meeting of the Nagar Panchayat may raise a serious issue of conduct and order. 11. The widely reported and photographed show of shoe therapy attempted during the official meeting of the Nagar Panchayat may raise a serious issue of conduct and order. Even though hurling of shoes in a democratically elected official assembly may be a preserved privilege or a matter of pride or victory but it certainly cannot be given recognition or condoned in a civilized disciplined institution created under our Constitution. Such unethical conduct is neither expected nor is it in any manner essential to express one's constitutional or legal rights in this way. The right to freedom of expression does not extend to such limits, but the same is subject to evidence and enquiry. We find ourselves inherently disabled at this stage under Article 226 of the Constitution to investigate this complex issue leaving it to the State Government to exercise its jurisdiction and discretion in the matter. 12. We may further point out that such expressions may have parallels not uncommon not only in Assemblies and Parliament in this country but also abroad. Anger coupled with disrespect particularly by the use of shoes which are supposed to be worn in the feet reminds us of the feudal modes of punishment in primitive and ancient times. In temperate behaviour and bullying alleged to have been expressed in such a way, that too even by a female, may not be considered to be licensed behaviour. 13. On the other hand, such incidents of hurling shoes during Court proceedings in the judiciary if established have been held to be contemptuous for which reference may be had to R.K. Garg v. The Himachal Pradesh High Court , 1981 (3) SCC 166 and in the case of Nand Lal Balwani,, 1999 (2) SCC 743 . The other side of the coin is that Lord Denning in his famous work "The Due Process of Law" humbly explained when such an incident can be ignored when books were thrown by an impatient lady at the judges in a case. Lord Denning in the said book at page 6 writes as under: On every Monday morning we hear litigants in person. Miss Stone was often there. She made an application before us. We refused it. She was sitting in the front row with a book-case within her reach. She picked up one of Butterworth's 'Workmen's Compensation cases' and threw it at us. Miss Stone was often there. She made an application before us. We refused it. She was sitting in the front row with a book-case within her reach. She picked up one of Butterworth's 'Workmen's Compensation cases' and threw it at us. It passed between Lord Justice Diplock and me. She picked up another. That went wide too. She said, 'I am running out of ammunition We took little notice. She had hoped we would commit her for contempt of Court? just to draw more attention to herself. As we took no notice, she went towards the door. She left saying. 'I congratulate your Lordships on your coolness under fire. 14. Looking to such incidents occurring in public life like throwing of trash, rotten eggs, black ink and the like, a Bill has been proposed in the Parliament which is pending approval where several such incidents including garlanding with foot wears has been proposed to be a punishable offence but only in respect of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The Amendment Bill 2013 has been widely reported. 15. Given the aforesaid background, we hope and trust that the State Government while proceeding to make the inquiry will make an attempt to unravel the truth before the petitioner is indicted as we do not intend to express any opinion on the merits of the incident on the basis of the observations made hereinabove. 16. Not only this the indication of the situation prevailing in the Nagar Panchayat is also an indicator that the enquiry should be held fairly in order to resolve the controversy. The nature of the allegations being made are factual and therefore require an examination by the State Government for passing an appropriate order after consideration of the same. 17. Consequently, we are not inclined to interfere with the impugned order but at the same time we also direct the State Government to transfer the respondent No. 3 forthwith from his present place of posting to some other appropriate place. 18. The State Government shall inform the passing of this order to the Competent Authority of the Election Commission accordingly. 19. The respondent State Government shall conclude the inquiry and pass orders preferably within a period of three months from today. Subject to the aforesaid observations, the writ petition is disposed off.