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2015 DIGILAW 350 (ALL)

RAM NIWAS v. STATE OF U. P.

2015-02-24

YASHWANT VARMA

body2015
JUDGMENT Hon’ble Yashwant Varma, J.—The challenge in the present writ petition is to an order dated 20.2.2009, in terms of which the services of the petitioner has been terminated by the respondent No. 3. A perusal of the order shows that the services of the petitioner was brought to an end on the following grounds: (a) The petitioner being a relative of Shri Bhagwan Swaroop, Sabhasad, Ward No. 14, Nagar Palika Parishad, Bisalpur; (b) The appointment consequently violating Sections 81, 82 and 83 of the Uttar Pradesh Municipalities Act, 1916; (c) And the petitioner having concealed the above material facts.” 2. Shorn of unnecessary details, the facts relevant for disposal of this writ petition are as follows: in response to an advertisement dated 22.5.2007, for the post of “Sweeper” the petitioner appears to have applied for consideration alongwith all his relevant testimonials. Pursuant to a selection undertaken by a Committee constituted for the said purpose, the petitioner came to be appointed on 20.11.2007, albeit on temporary basis. Pursuant to the aforesaid order of appointment, he also joined his duties on 1.12.2007. 3. On 21.11.2008, a show-cause notice was issued by the respondent No. 3 calling upon the petitioner to explain why his services not be terminated his appointment itself being in violation of the provisions of Sections 81, 82 and 83 of the Uttar Pradesh Municipalities Act, 1916 (hereinafter called the “Act, 1916”). In response to the said notice, the petitioner contended that the disqualifications, penalties and disclosures contemplated under the aforesaid provisions were clearly not attracted in his case. 4. Learned counsel for the petitioner has submitted that neither the provisions of Section 81 nor those of Sections 82 and 83 of the Act, 1916 stand attracted in his case inasmuch as he joined the post after facing a duly constituted selection committee, the post itself having been advertised, and it was only upon the culmination of the said process that the appointment was affected in his favour. He has further submitted that his appointment could not have been annulled inasmuch as none of the liabilities contemplated under the aforesaid provisions of the Act, 1916 stood attracted in the facts of the present case. He has further submitted that his appointment could not have been annulled inasmuch as none of the liabilities contemplated under the aforesaid provisions of the Act, 1916 stood attracted in the facts of the present case. Learned Counsel elaborating his submissions further contended that since the show-cause notice was based only upon the appointment being invalidated on account of the provisions of the Act, 1916 and referred to hereinabove, the impugned order is liable to be tested on the said ground alone. He would submit that no other ground or circumstance which finds mention in the impugned order could be relied upon to terminate his services. He further submitted that the fact that he was the son of Shri Bhagwan Swaroop was never concealed by him and in fact the same was always known to the Nagar Palika Parishad as would be evident from the appointment letter itself. 5. Learned counsel appearing for the respondents while referring to the said provisions of the Act, 1916 failed to point out any particular provision in terms of which the petitioner stood disqualified or debarred from either participating in the selection process or obtaining appointment in the Nagar Palika Parishad. He has submitted that the validity of the appointment offered to the Petitioner would have to be judged and tested on the provisions of Sections 81, 82 and 83 of the Act, 1916 alone. 6. Having heard learned counsel for the parties, this Court finds that a reading of the provisions of Sections 81,82 and 83 of the Act, 1916 establishes that they place upon the President, member, officer and servant of the municipality various liabilities for making good loss caused to the Municipality or misapplication of the money or property of the Municipality; renders the above persons liable to be proceeded against for an offence under Section 168 of the I.P.C. and disqualify such persons from being a servant of such municipality in case they acquire any interest pecuniary or of any other nature in any contract with the Municipality. From a reading of the aforesaid provisions, it is apparent that none of the said disqualifications stand attracted to the petitioner or debar him from seeking appointment in the Nagar Palika Parishad. The provisions aforesaid do not disqualify the Petitioner from applying for a job in the Municipality or being appointed in the said local body. 7. From a reading of the aforesaid provisions, it is apparent that none of the said disqualifications stand attracted to the petitioner or debar him from seeking appointment in the Nagar Palika Parishad. The provisions aforesaid do not disqualify the Petitioner from applying for a job in the Municipality or being appointed in the said local body. 7. Section 81 speaks of a surcharge being levied upon the President, Vice President or other member, officer and servant of the Municipality for recovery of any loss caused to the Municipality or on account of misapplication of money. 8. Insofar as Section 81 is concerned, it provides that a Member or President of the Municipality would be deemed to have committed an offense under Section 168 of the IPC in case he acquires any share or interest in any contract or employment with, by or on behalf of the Municipality. Section 83 mandates that any person who acquires a share or interest in a contract with, by or on behalf of the Municipality or in any employment with the Municipality other than as a Municipal servant shall be disqualified for being a servant of the said local body. Sub-section (2) then provides that a municipal servant who shall acquire or continues to have a share or interest in any contract or employment shall cease to be a municipal servant and his office shall become vacant. 9. This Court finds that Section 81 of the Act, 1916 stands on a completely different pedestal being referable only to an act leading to loss caused to the Municipality or misapplication of moneys, Sections 82 and 83 get attracted when a Municipal servant acquires, holds or continues to enjoy a share or interest, pecuniary or otherwise in any contract or employment with the said local body. Section 82 cannot have any application to the Petitioner as it is confined to a “member” or “President” of the Municipality. The Petitioner here was neither. 10. Coming then to the only provision left and that is Section 83. A plain reading of sub-section (1) reveals that it would apply to a person who has an existing share or interest in a contract or employment of a municipality becoming disqualified from being a servant of the Municipality. The Petitioner here was neither. 10. Coming then to the only provision left and that is Section 83. A plain reading of sub-section (1) reveals that it would apply to a person who has an existing share or interest in a contract or employment of a municipality becoming disqualified from being a servant of the Municipality. A servant being defined under Section 2 (22) of the Act, 1916 as being one who is in the pay or service of the Municipality. The Petitioner is not alleged to have had any existing contract or share, interest with the Municipality. Sub-section (2) thereof then contemplates a situation where an existing municipal servant subsequently acquires or continues to have a share or interest post employment in any contract or employment and who shall accordingly cease to be a municipal servant. The father of the Petitioner being an elected Sabahasad and member of the Municipal body cannot be described as a servant of the said body. Insofar as the Petitioner is concerned, he became a municipal servant only upon obtaining employment. He is not stated to have acquired any subsequent interest in any contract or employment. In light of the above discussion, it is clear that even this provision has no application. As noted hereinbefore, learned counsel for the Respondent did not rely upon any other provision which disqualified the Petitioner from seeking employment. In view of the above facts, this Court holds that the employment of the Petitioner did not contravene Sections 81, 82 and 83 of the Act, 1916. 11. Insofar as the issue of concealment of facts is concerned, it is relevant to point out here that the various applications which were filled up by the petitioner as well as the testimonials demanded by him nowhere required him to disclose his relationship with a Sabhasad of the Parishad. This fact too is not disputed by the learned counsel for the respondents. In light of the above, the charge of concealment of facts also goes. 12. The impugned order further records that the services of the petitioner were temporary in nature and, therefore, he can be terminated at any point of time. However, this Court finds that the termination of the petitioner had not been affected under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. 12. The impugned order further records that the services of the petitioner were temporary in nature and, therefore, he can be terminated at any point of time. However, this Court finds that the termination of the petitioner had not been affected under the provisions of the Uttar Pradesh Temporary Government Servants (Termination of Service) Rules, 1975. At least the show-cause notice which has been issued to the petitioner did not proceed on the said lines. As has been noticed above, the show-cause notice issued to the petitioner itself rested the case against the petitioner on violation of the provisions of Sections 81, 82 and 83 of the Act, 1916 alone. 13. Before closing it would not be out of place to notice these aspects of the matter also. A discussion of the scope and ambit of Sections 81, 82 and 83 of the Act, 1916 established that they were independent provisions and dealt with separate contingencies and eventualities. The show-cause notice issued to the Petitioner mentioned all the above provisions in one breath. This ex facie establishes that the respondents themselves were wholly unsure of which provision had been allegedly breached. Moreover the aspects of concealment of facts and/or the petitioner being a temporary employee did not form part of the show-cause notice at all. They therefore could not have been taken aid of as grounds for terminating the services of the Petitioner. The very purpose of a show-cause notice is to enable the person to become aware of the charge upon which action is proposed to be taken against him. If the ultimate action is permitted to be based upon a ground which never formed a part of the show-cause notice, it would clearly be in violation of the basic principles of natural justice and fair play. The Court in this connection is reminded of what the Hon’ble Supreme Court of India held in Nirode Baran Banerjee v. Union of India, (1971) 3 SCC 788 : “2. In our judgment the order of the Central Government is vitiated because the appellant was never called upon to explain whether “the public sector was interested in the area”. The Court in this connection is reminded of what the Hon’ble Supreme Court of India held in Nirode Baran Banerjee v. Union of India, (1971) 3 SCC 788 : “2. In our judgment the order of the Central Government is vitiated because the appellant was never called upon to explain whether “the public sector was interested in the area”. It appears from the recital in the notice served upon the appellant that the Central Government had tentatively come to the conclusion on the three grounds that the petition filed by the appellant should be dismissed, and the appellant was called upon to submit his comments on the proposed rejection on those three grounds. If thereafter the Central Government dismissed the petition on a ground which was not mentioned in the order served upon the appellant, prima facie the order was illegal, for the appellant was never given an opportunity to make his representation on the fourth ground. We, therefore, set aside the order passed by the Central Government and direct that the Central Government do proceed according to law.” The above proposition of law was reiterated by the Apex Court in Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 . Paragraph 12 of the report being relevant for our purposes is extracted hereinbelow : “12. One of the requirements of the principles of natural justice, as incorporated in second proviso to Section 22, is that the reasons for the proposed removal have to be communicated to the person proceeded against. The purpose of such communication is to enable him to furnish an explanation of his conduct or his act or omission which is likely to be construed as an abuse of power. It is clear that the facts constituting gravamen of the charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relied on in the show-cause notice as a ground providing reason for the proposed removal cannot be relied upon as furnishing basis for the order of removal. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking decision must apply its mind also to the explanation furnished by the person proceeded against and this must appear from the order passed under Section 22.” In view of the above discussion, this Court is of the opinion that the impugned order of termination cannot be sustained. Accordingly, this writ petition is allowed. The impugned order dated 20.2.2009, is hereby quashed. Consequent to the above, the petitioner shall be entitled to be reinstated as a temporary sweeper in the Parishad in question with such other consequential benefits as may be available and applicable in law. ——————