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2022 DIGILAW 1852 (ALL)

Anju Agarwal v. State of U. P.

2022-11-24

JAYANT BANERJI, MANOJ KUMAR GUPTA

body2022
JUDGMENT : 1. Heard Shri Shashi Nandan, learned Senior Counsel assisted by Shri Vivek Mishra, for the petitioner, Sri M.C. Chaturvedi learned Additional Advocate General, for the State Respondent, Shri Anurag Khanna, learned Senior counsel assisted by Shri Nipun Singh, for Intervenor and Shri Atul Tej Kulshrestha, learned counsel for respondent nos. 5 and 6. 2. The petitioner is challenging the order dated 10.10.2022 by which she has been removed from the office of President of Nagar Palika Parishad, Muzaffar Nagar. The order has been passed by respondent no. 1 in exercise of power under section 48 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act). 3. Initially, an order was passed on 19.07.2022 ceasing the financial power of the petitioner, pending inquiry in relation to charges of irregularities in award of contract, defalcation of accounts, failure to perform duties attached to her post and causing damage to the property of municipality. The said order was subjected to challenge by the petitioner in Writ (C) No. 24233 of 2022 on the ground that the explanations submitted by her on 2.5.2022 and 8.7.2022 in response to show cause notice dated 28.03.2022 were not considered. During course of hearing of the said writ petition, a statement was made on behalf of the State respondents that the reply submitted by the petitioner on 08.07.2022 had been received on 21.07.2022, after passing of the order impugned in the writ petition. The submission on behalf of the petitioner was that the order ceasing her financial power did not consider even the reply submitted by her on 02.05.2022 and there was no independent application of mind to the material available on record. The writ petition was decided by order dated 2.9.2022. The order impugned was quashed with liberty to respondent no. 1 to pass a fresh order in accordance with law. While giving the aforesaid liberty, it was clarified that respondent no. 1 shall consider the reply submitted by the petitioner on 02.05.2022 as well as the reply dated 08.07.2022, which had concededly been received by that time. 4. On 23rd September, 2022, a notice was issued to the petitioner requiring her to remain present on 26.09.2022 for personal hearing before respondent no. 1. The petitioner appeared on that date and submitted a written note and requested that copies of the comments/reports obtained by respondent no. 4. On 23rd September, 2022, a notice was issued to the petitioner requiring her to remain present on 26.09.2022 for personal hearing before respondent no. 1. The petitioner appeared on that date and submitted a written note and requested that copies of the comments/reports obtained by respondent no. 1 from the District Magistrate in response to her reply be made available to her to enable her to rebut the same. It is her specific case that on that date, no hearing took place. The petitioner has also specifically alleged that the State Government did not supply copy of the report of the District Magistrate dated 19.09.2022 to her, despite written request made by her and proceeded to pass the impugned order removing her from the office of President, Nagar Palika Parishad, Muzaffar Nagar. The submissions made by Shri Shashi Nandan, learned Senior Counsel appearing for the petitioner are recorded in our order dated 22.11.2022, which is as follows: “Shri Shashi Nandan, learned Senior Counsel assisted by Shri Vivek Mishra, learned counsel for the petitioner submits that the impugned order directing removal of the petitioner from the post of Chairperson, Nagar Palika Parishad, Muzaffarnagar is ex-facie illegal inasmuch as: (a) no enquiry has been held, (b) there is no independent application of mind by the State Government to the explanation submitted by the petitioner and (c) the report obtained from the District Magistrate dated 19.9.2022 has been blindly relied upon without providing its copy to the petitioner.” 5. Shri M.C. Chaturvedi, learned Additional Advocate General has received instructions from the State respondents. He admits that report of the District Magistrate dated 19.09.2022 was not made available to the petitioner. He places reliance on Para-19 of the counter affidavit, wherein it is alleged that the petitioner never requested for copy of the said report being made available to her. He, however, does not dispute that the primary consideration in removing the petitioner from the post of President is the report of the District Magistrate dated 19.09.2022. He also could not dispute that apart from calling for explanation of the petitioner and thereafter obtaining report from the District Magistrate in reference to the reply submitted by the petitioner, no oral inquiry was held. 6. As noted above, the charges are of serious nature. The petitioner has specifically denied the charges and had offered a detailed explanation to each charge. 7. 6. As noted above, the charges are of serious nature. The petitioner has specifically denied the charges and had offered a detailed explanation to each charge. 7. In Shaila Tahir vs. State of U.P. and Others, Writ (C) No. 21595 of 2022 decided on 13.10.2022, this Court, while dealing with a case of a similar nature relating to removal of President of Nagar Palika Parishad, examined the scope of inquiry to be held under Section 48 of the Act. Taking notice of the amendment made in the Constitution by the Constitution (Seventy Fourth Amendment) Act, 1992 and relying on the judgment of the Supreme Court in Ravi Yashwant Bhoir vs. District Collector, Raigad and Others, (2012) 4 SCC 407 and Division Bench judgments of this Court in Sanjeev Agrawal vs. State of U.P. 2011 (6) AWC 5502 , Girish Chand Srivastava vs. State of U.P. and Others, 2007 (6) AWC 6051 and Umesh Baijal and Others vs. State of U.P. and Others, (2004) 2 UPLBEC 1235 it has been held that removal of elected head of a local self-government castes stigma on that person and has the effect of taking away valuable rights. Such a person is not only removed from the office held by him/her but the electoral college is also deprived of the representation by such person. He/she also stands disqualified to contest election for a stipulated period. 8. The standard of proof in any enquiry held for removal of an elected representative is of a much higher degree as compared to the case of a Government Servant. The principles of natural justice are required to be given full play and proper opportunity of placing the defence is a must. 9. The recording of reasons in writing is also mandatory to fulfil the requirements of Article 14 and 21 of the Constitution and Section 48 (2-A) of the Act. Some of the relevant observations made in this behalf in Shaila Tahir (supra) are reproduced below: “23. In the instant case, the petitioner, who is President of Municipality, would stand disqualified from contesting a re-election as President or Member for a period of five years from the date of her removal in view of Section 48 (4) of the U.P. Municipalities Act, 1916 [the removal being under clause (a) and sub-clause (vi), (vii) and clause (b) of sub-section (2) of Section 48]. 24. 24. Sub-Section (2-A) of Section 48 contemplates making of such inquiry as may be considered necessary by the State Government after considering the explanation that may be offered by the President. An order of removal should be in writing and contain reasons for removal of the President from office. The said provision is quoted below for convenience of reference: (2-A) 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 the President from his office. 26. What is nature and scope of inquiry which is required to be held under Section 48 was considered by this Court in Umesh Baijal and Others vs. State of U.P. and Another, (2004) 2 UPLBEC 1235 . It has been held that there could be cases where the charges are admitted and in which event, it would not be necessary to hold a regular inquiry and examine witnesses etc. There may be cases where the allegations are based on complaint made by certain persons. In such cases, if the State intends to rely on affidavit filed by the complainant, it has to give opportunity of hearing to the Chairperson to cross-examine the complainant. In a given case, the allegations may be of a very serious nature and which have to be proved by documentary as well as oral evidence and in such cases, full fledged inquiry would be required, as merely calling for explanation and considering the same would not meet the requirements of law. The relevant paragraphs from the said judgment are as follows: “13. Thus, it is evident that if a Chairman is removed under these provisions, it would have a very serious repercussion and consequence not only on the Chairman but also on the constituency, which he represented because he is being removed from the membership also, therefore, it cannot be permissible in law to remove him without complying with the requirement of law, as required under the facts and circumstances of a particular case. 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. 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. 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 deponents, 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. 39. Thus, in view of the above, it cannot be held that in each and every case, non-observance of principles of natural justice would vitiate the order. It has to be understood in the context and facts-situation of each case and requirement of statutory Rules applicable therein. 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. It is not possible to lay down any strait-jacket formula as in what cases the fulfledged enquiry is to be held and in what cases removal is permissible on asking office bearers to furnish the explanation to the charges. It will depend on the facts of an individual case.” 27. In Sanjeev Agrawal (supra), after considering the Division Bench judgment in Umesh Baijal and another Division Bench judgment in Dr. Shamim Ahmad vs. State of U.P. and Another, it was concluded as follows: 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 full-fledged enquiry. 28. In Ravi Yashwant Bhoir vs. District Collector, Raigad and Others, the Supreme Court also considered the issue as to whether recording of reasons is mandatory while passing an order of removal. The Supreme Court placed reliance on its previous judgments in case of Krishna Swami vs. Union of India, Sant Lal Gupta vs. Modern Coop. Group Housing Society Ltd. and thereafter concluded by holding as follows: 46. The emphasis on recording reason is that if the decision reveals the ‘inscrutable face of the sphinx’ it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. 29. The quotation from Krishna Swami (supra) relied upon in the said judgment reads thus: “Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21.” 30. In Sant Lal Gupta (supra), it was held as follows: “27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice: “3. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind.” The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected.” 31. The consistent judicial opinion thus is that recording of reasons in writing is not merely an attribute of the principles of natural justice but also essence of transparency and fairness in decision making process. It has been held to be a hallmark of sound and objective exercise of power. An order bereft of reasons violates Article 14 and 21 of the Constitution.” 10. Coming to the facts of the instant case, as noted above, the petitioner had twice submitted detailed explanation (dated 02.05.2022 and 08.07.2022). In her explanation, she has specifically denied the charges. The charges are of serious nature and are based on disputed facts as well as the record. However, respondent no. 1 instead of examining these issues independently in the light of the explanation offered and the material available on record, proceeded to quote from the report of the District Magistrate dated 19.09.2022 in extenso (in Paragraph 6 of its order) and thereafter it has abruptly been concluded that the charges are found proved and accordingly, she has been removed. There is no independent application of mind. 11. In Shaila Tahir (supra), we have held that the report of District Magistrate called for by the State government in response to the reply submitted by the person charged is only an opinion which could have been considered by the State Government alongwith the defence and evidence of the person charged. It is not the final word nor a substitute to the statutory requirement of holding a full-fledged inquiry and recording of reasons by the State Government while passing an order of removal of the President in view of Section 48(2-A) of the Act. Despite exposition of law in the recently delivered judgment, the State Government has repeated the mistakes while passing the instant order in a most casual manner. 12. Even the plea taken in paragraph no. Despite exposition of law in the recently delivered judgment, the State Government has repeated the mistakes while passing the instant order in a most casual manner. 12. Even the plea taken in paragraph no. 19 of the counter affidavit that the petitioner had not asked for the report of District Magistrate dated 19.09.2022, consequently, it was not supplied to her, is not worthy of acceptance, firstly, for the reason that it was the obligation of the State Government to have supplied said report to the petitioner if it was intending to rely on the same and second, because the petitioner had specifically asked for a copy of the said report in the written brief submitted by her on 26.09.2022, the date fixed for hearing. 13. Since the State Government has merely endorsed the report of the District Magistrate dated 19.09.2022, without applying its own independent mind, the impugned dated 10.10.2022 is held to be untenable in law. 14. We accordingly quash the impugned order dated 10.10.2022, leaving it open to the State Government to pass a fresh order in accordance with law. 15. As a result of the removal order being quashed, it is further provided that the respondent shall not interfere in the working of the petitioner as President of Nagar Palika Parishad, Muzaffar Nagar except in accordance with law. 16. The writ petition stands allowed to the extent indicated above.