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2023 DIGILAW 387 (ALL)

Mehrunnissa v. State of U. P.

2023-02-08

J.J.MUNIR, RAJESH BINDAL

body2023
ORDER : 1. Though the writ petition, out of which this reference to a Full Bench has arisen, has outlived its purpose and the cause of action therein does not survive, the question referred is one of general public importance and is, in our opinion, still required to be answered. 2. Since no one appeared for the writ petitioner, we requested Mr. Samir Sharma, learned Senior Advocate on January 23, 2023 to assist the Court as Amicus Curiae. Mr. M.C. Chaturvedi, Additional Advocate General appeared on behalf of the State. 3. The Division Bench, in this writ petition, finding itself in disagreement with the principles of law laid down regarding the scope and extent of inquiry to be undertaken under Section 48(2-A) of the Uttar Pradesh Municipalities Act, 1916 in Dr. Shamim Ahmad vs. State of U.P. and Another, 2005 (1) AWC 963 , has referred the following question for consideration by a Larger Bench: “Whether, notwithstanding the words ‘such enquiry as it may consider necessary’ used in section 48(2A) of the U.P. Municipalities Act, 1916, the State Government is obliged to hold a full fledged enquiry in every case where the State Government does not agree with the explanation of the President.” 4. At the outset, we were rather baffled to find that in all publications of the Uttar Pradesh Municipalities Act, 1916, Sub-Section (2-A) of Section 48 was shown to be omitted by U.P. Act No. 2 of 2005. Now, U.P. Act No. 2 of 2005 was given retrospective effect and directed to have come into force on February 27, 2004. It transpired during the course of hearing that Sub-Section (2-A) of Section 48 was a provision that was erroneously numbered while enacting U.P. Act No. 6 of 2004; erroneously because there was already a Sub-Section (2-A) on the Statute Book introduced vide U.P. Act No. 27 of 1964. Therefore, Sub-Section (2-A), that was inserted by U.P. Act No. 6 of 2004 to the existing provisions of Uttar Pradesh Municipalities Act, 1916 was omitted by U.P. Act No. 2 of 2005 together with consequential amendments. In this case, what we are concerned with is Sub-Section (2-A) of Section 48 of the Uttar Pradesh Municipalities Act, 1916, as introduced in the provisions of the parent Statute, to wit, the Uttar Pradesh Municipalities Act, 1916 (for short ‘the Act of 1916’) vide U.P. Act No. 27 of 1964. In this case, what we are concerned with is Sub-Section (2-A) of Section 48 of the Uttar Pradesh Municipalities Act, 1916, as introduced in the provisions of the parent Statute, to wit, the Uttar Pradesh Municipalities Act, 1916 (for short ‘the Act of 1916’) vide U.P. Act No. 27 of 1964. Sub-Section (2-A) of Section 48 in its existing form reads: “(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.” 5. The grounds, on which the action for removal of the President of a Municipality can be taken by the State Government, are spelt out by various clauses of Sub-Section (2) of Section 48 of the Act of 1916. The procedure to be adopted at the inquiry for the removal of the President of a Municipality is envisaged under Sub-Section (2-A) of Section 48. The issue that has made the Division Bench to make a reference to a Larger Bench in this case is the import of the words “making such inquiry as it may consider necessary” occurring in Sub-Section (2-A) of Section 48 of the Act of 1916. While the Division Bench in Dr. Shamim Ahmad (supra) construed the words to mean that where the State Government was not satisfied with the explanation submitted by the President, it was imperative upon the Government “to inquire into the matter by holding a full fledged inquiry.” The Division Bench in this case found that the words of the Statute were unambiguous and unequivocal. Those words did not make it imperative for the State Government to hold a full-fledged inquiry in every case, where it was not satisfied with the President’s explanation. The Division Bench in this case thought that the Division Bench in Dr. Shamim Ahmad’s case was not right in making a fullfledged inquiry imperative in every case. Those words did not make it imperative for the State Government to hold a full-fledged inquiry in every case, where it was not satisfied with the President’s explanation. The Division Bench in this case thought that the Division Bench in Dr. Shamim Ahmad’s case was not right in making a fullfledged inquiry imperative in every case. According to their Lordships “We are unable to find any reason for such overriding of the express, clear, unambiguous and unequivocal words of the Statute.” Now, in this Court, there has been an almost consistent view regarding the scope of the inquiry envisaged under Section 48(2-A) of the Act of 1916 and that view leans in favour of affording the President of a Municipality the benefit of a full-fledged inquiry before he is deprived of his elected office. In Dr. Shamim Ahmad’s case, it was held: “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.” 6. The same view was expressed by a Division Bench of this Court in Sanjeev Agrawal vs. State of U.P. and Others, 2011 (6) AWC 5502 . The principle in Dr. Shamim Ahmad’s case was followed by another Division Bench of this Court in Smt. Shama Ali vs. State of U.P. (2012) 1 All. L.J. 463. 7. Again, the question fell for consideration before a Division Bench of this Court in Shaila Tahir vs. State of U.P. and Others, 2022 (11) ADJ 621 (DB), where it was held: “47. Shamim Ahmad’s case was followed by another Division Bench of this Court in Smt. Shama Ali vs. State of U.P. (2012) 1 All. L.J. 463. 7. Again, the question fell for consideration before a Division Bench of this Court in Shaila Tahir vs. State of U.P. and Others, 2022 (11) ADJ 621 (DB), where it was held: “47. Once the petitioner had specifically denied the charges and prayed for proper inquiry being held, it was incumbent upon the respondents to provide all documentary evidence, hold oral inquiry giving full opportunity to the petitioner to cross-examine the complainant and other witnesses. However, that was not done. The respondents rather adopted a peculiar procedure. After receipt of explanation of the petitioner dated 17.7.2019, they called for comments from the District Magistrate. Thereafter when the petitioner submitted another detailed reply dated 19.9.2019, once again comments are called from the District Magistrate. The State Government without holding any enquiry, merely on basis of comments submitted by the District Magistrate, proceeded to pass the impugned order for the reason that the petitioner had not submitted any reply in response to notice dated 14.5.2020 which was issued as a substitute to personal hearing on account of Covid-19 protocol being in force at the relevant time. The rebuttal of the petitioner to the charges was already there in shape of the reply dated 17.7.2019 and 9.9.2019 and therefore, there was no need of reiterating the stand once again in response to notice dated 14.5.2020. The issuance of repeated show-cause notices and calling for explanations cannot be a substitute to the oral inquiry which in the facts and circumstances of the instant case was necessary to comply with the principles of natural justice as well as the requirements of statute itself.” 8. This decision was later followed by the Division Bench in Mohan Sahu vs. State of U.P. and Others, Writ (C) No. 32241 of 2022, decided on December 14, 2022. 9. In Anju Agarwal vs. State of U.P. and Others, 2022 SCC Online All. 802, there was a frown by this Court upon the practice of the Government in eschewing the course of a full-fledged inquiry despite the repeated pronouncements entitling a President of a Municipality to such an inquiry. In Anju Agarwal’s case (supra) it was held: “12. 9. In Anju Agarwal vs. State of U.P. and Others, 2022 SCC Online All. 802, there was a frown by this Court upon the practice of the Government in eschewing the course of a full-fledged inquiry despite the repeated pronouncements entitling a President of a Municipality to such an inquiry. In Anju Agarwal’s case (supra) it was held: “12. 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.” 10. There is discordant opinion in line with the opinion of the Division Bench making the order of reference to be found in Umesh Baijal and Others vs. State of U.P. and Another, 2004 (2) AWC 1757 . In that case, the holding of a full-fledged inquiry in every case of removal of a President was not held imperative. In Umesh Baijal’s case (supra), it was observed: “39. Thus, in view of the above, it cannot 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 straight 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 is not possible to lay down any straight 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.” 11. Now, the issue for consideration is whether the words ‘such enquiry as it may consider necessary’ occurring in Section 48(2-A) of the Act of 1916 envisage a full-fledged inquiry or leave it open to the Government to adopt a procedure to enquire into the charges ensuring a fair opportunity of hearing, which may be short of a fullfledged inquiry. This question has fallen for consideration of the Supreme Court in the context of removal of the elected President of an Urban Municipal Council under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. This was in Ravi Yashwant Bhoir vs. District Collector, Raigad and Others, (2012) 4 SCC 407 that the issue came up before their Lordships of the Supreme Court and it was held on wider principle: “30. There can also be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide Indian National Congress (I) vs. Institute of Social Welfare, (2002) 5 SCC 685 : AIR 2002 SC 2158 ] This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh vs. State of Punjab, AIR 1963 SC 395 and Union of India vs. H.C. Goel, AIR 1964 SC 364 . Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer. 31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full-fledged inquiry. 32. 31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full-fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full-fledged inquiry. 32. In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full-fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required. 33. This Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma vs. State of Punjab, (2001) 6 SCC 260 : AIR 2001 SC 2524 and observed that removal of an elected office-bearer is a serious matter. The elected office-bearer must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come under any political pressure. 34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. 34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed. 35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal [Vide: Jyoti Basu vs. Debi Ghosal, (1982) 1 SCC 691 : AIR 1982 SC 983 , Mohan Lal Tripathi vs. District Magistrate, Rae Bareily, (1992) 4 SCC 80 : AIR 1993 SC 2042 and Ram Beti vs. District Panchayat Raj Adhikari, (1998) 1 SCC 680 : AIR 1998 SC 1222 ]. 36. In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office-bearer but his constituency/electoral college is also deprived of representation by the person of their choice.” 12. We must observe that the guidance of their Lordships in Ravi Yashwant Bhoir (supra) is based on wider principle and it is about the seriousness, which must attend an inquiry, in consequence of which an elected representative of the people can be removed from office. After coming into force of Part IX-A of the Constitution, the Municipalities have been raised to a constitutional status. After coming into force of Part IX-A of the Constitution, the Municipalities have been raised to a constitutional status. Article 243R provides: “243R. Composition of Municipalities: (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide: (a) for the representation in a Municipality of: (i) persons having special knowledge or experience in Municipal administration. (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area. (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area. (iv) the Chairpersons of the Committees constituted under clause (5) of article 243S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality. (b) the manner of election of the Chairperson of a Municipality.” 13. There is no gainsaying the fact that the President of a Municipality in Uttar Pradesh is an elected representative of his constituency and his removal from office cannot be subject to a procedure that may be anything which the State Government may decide in the facts of a given case. Once the President of a Municipality denies the charge against him through an explanation, which is not found satisfactory by the State Government, a fullfledged inquiry must follow. 14. In the context of a different question regarding cessation of financial and administrative powers of the President under the proviso to Section 48 (2-A) of the Act of 1916, a Full Bench of Five Judges of this Court in Paras Jain vs. State of U.P. and Others, AIR 2016 All. 59 (FB) observed: “19. Part IX of the Constitution contains provisions in relation to the panchayats. Part IX-A provides for the municipalities. These provisions were introduced by the Seventy-third and Seventy-fourth amendments to the Constitution. Municipalities and panchayats as institutions of local self-government have a constitutional status. Their role and position are defined by the Constitution as are their powers, duties and responsibilities. Part IX of the Constitution contains provisions in relation to the panchayats. Part IX-A provides for the municipalities. These provisions were introduced by the Seventy-third and Seventy-fourth amendments to the Constitution. Municipalities and panchayats as institutions of local self-government have a constitutional status. Their role and position are defined by the Constitution as are their powers, duties and responsibilities. They are not mere administrative agencies of the State but, as institutions of self-governance, have been conferred with a degree of autonomy to ensure that democracy finds expression at the grassroots of Indian society. The Constitution seeks to attain a decentralisation of democratic governance through these institutions. 20. The extent of control which the agencies of the State exercise over these institutions of local self-government must necessarily conform to constitutional standards. State legislation of a regulatory nature must be interpreted in a manner that fosters the attainment of constitutional objectives. The Court, consistent with the high constitutional purpose underlying Parts IX and IXA of the Constitution, must give expression to the autonomy expected to be wielded by the constitutionally recognized levels of local self-government. Hence, while interpreting state legislation, the need to conform to constitutional parameters must be borne in mind. An interpretation of state legislation which will dilute the autonomy of institutions of local self-government must, to the extent possible, be avoided. Similarly, an interpretation which would result in reducing the panchayats and municipalities to a role of administrative subordination must be eschewed. Consequently, where an issue arises in regard to the removal of an elected head of a municipality, as in the present case, the procedure prescribed by the law must be followed. The law itself must be interpreted in a manner that would render it fair, just and reasonable in its operation and effect. Moreover, in areas where the law is silent, an effort must be made by the Court in the process of interpretation to ensure that the procedure for removal is just, fair and reasonable to be consistent with the mandate of Article 14.” 15. The aforesaid exposition of the law makes it explicit that in interpreting the provisions of a State Legislation, like the Act of 1916, the Court must bear in mind the provisions of Part IX-A of the Constitution, which confers a constitutional status upon the Municipalities in the State and also safeguards their autonomy as elected bodies of local self-government. The aforesaid exposition of the law makes it explicit that in interpreting the provisions of a State Legislation, like the Act of 1916, the Court must bear in mind the provisions of Part IX-A of the Constitution, which confers a constitutional status upon the Municipalities in the State and also safeguards their autonomy as elected bodies of local self-government. It is from that vantage that the provisions of Section 48 (2-A) of the Act of 1916 have to be interpreted, in particular, the words ‘such enquiry as it may consider necessary’ employed therein, consistent with the scheme envisaged under Part IX-A of the Constitution. 16. In our opinion, therefore, the words in Section 48 (2-A) of the Act of 1916 ‘such enquiry as it may consider necessary’ cannot mean any kind of inquiry, which the State Government may consider feasible in the facts of a given case. Upon a denial of the charge/ charges by the President of a Municipality, the State Government, if not satisfied with the explanation submitted by the President, has to hold a full-fledged inquiry. 17. The question referred to us by the Division Bench is answered accordingly. 18. The cause of action giving rise to the writ petition no longer survives, as the term of the petitioner as the President of the Municipality (Nagar Palika, Joya, District Jyotiba Phule Nagar) in this case would have come to an end long ago, no further orders are required to be made to place our answer before the Division Bench.