High Court of Judicature at Allahabad

- Removal of President of Nagar Palika A.F.R.

Judicial Review

Democracy is a basic feature of Constitution

Natural Justice

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 15837 OF 2005

Munna Lal Gupta ------------- Petitioner

Versus.

State of U.P. & Ors. ------------- Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the order dated 18.2.2005 (Ann. 8), by which the petitioner has been removed from the post of Adhyaksh, Nagar Panchayat, Sirathu, Kaushambi.

The facts and circumstances giving rise to this case are that petitioner was elected as a Chairman of Nagar Panchayat, Sirathu in the year 1995 and he completed his tenure of five years upto October 2000. He was again elected in November, 2000 as Adhyaksh, Nagar Panchayat, Sirathu, Kaushambi. Certain complaints of irregularities and corruption against him were filed in September 2001 before the National Human Rights Commission, wherein an enquiry was held and the report dated 31.5.2001 (Ann.-1) was submitted to the Commission. Most of the allegations made in the complaint were found baseless. The petitioner received a show cause notice along with a charge-sheet dated 1.9.2003 in respect of irregularities committed by him and he was directed to file the reply to the same. After receiving the said charge-sheet, petitioner submitted his reply before the respondent no. 2 on 7.10.2003. In view of the amendment made in Section 48 of U.P. Municipalities Act, 1916 (hereinafter called the Act 1916), the petitioner was deprived of his administrative and financial powers vide order dated 2nd June, 2004. Being aggrieved, the petitioner filed Writ Petition No. 22469 of 2004, and this Court vide order dated 10.6.2004 stayed the operation of the said order. After considering the reply submitted by the petitioner against the said charge-sheet, the authority found the charge proved, and thus, a second show cause notice was issued to the petitioner, to which, petitioner submitted his reply. However, vide impugned order dated 18.2.2005 the petitioner has been removed and the respondent no. 6 being a Vice Chairman has been given the officiating charge. Hence this petition.

Sri K.S. Rathore learned counsel for the petitioner has submitted that the petitioner has been illegally removed from the post in a most undemocratic manner without giving any opportunity to him to examine or cross examine any witness; no document has ever been proved in his presence; the enquiry was conducted in a most arbitrary manner recording the finding that the petitioner failed to prove that he did not commit misconduct; the earlier enquiry report dated 31.5.2001 was not taken into consideration; the petitioner could not have been removed in such a un-ceromonial manner and the petition therefore deserves to be allowed.

Sri S.N. Singh learned Additional Chief Standing Counsel submitted that the authorities have strictly followed the procedure prescribed by law and no fault can be found with the finding recorded by the enquiry officer. Thus there is no scope of judicial review against such an order and the petition is liable to dismissed.

Sri S.P. Pandey learned counsel appearing for the respondent No. 6 has submitted that he could not file the counter affidavit for the reason that he had not been served the copy of the earlier writ petition filed by the petitioner, i.e, Writ Petition No. 22469 of 2004. Respondent no. 6 is an aggrieved person because in case the petition is allowed, he is bound to lose the officiating charge. On other counts, he has adopted the submission made by Shri S.N. Singh and prayed for dismissal of the writ petition.

We have considered the rival submissions made by the learned counsel of the parties and perused the record.

Neither the learned Standing Counsel nor Shri S.P. Pandey asked for further time to file counter affidavit. The Court had given time on 10-3-2005 and respondent no.6 was served with the copy of the petition on 4-3-2005, through his counsel for this purpose.

The statutory provisions, i.e. Section 48 of the Act 1916 as it stood amended by the Amendment Act, 2001, reads as under:-

"Removal of President. - Where the State Government has, at any time, reason to believe that--

(a) there has been a failure on the part of the President in performing his duties, or

(b) the President has-

xxxxx xxxxx xxxxxxx

xxxxx xxxxx xxxxxxxx

(vii) during the current or the last proceeding term of the Municipality, acting as President or Vice-President, or as Chairman of a Committee, or as member or in any other capacity whatever, whether before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, so flagrantly abused his position, or so wilfully contravened any of the provisions of this Act or any rule, regulation or bye-law, or caused such loss of damage to fund or property of the Municipality as to render him unfit to continue to be President; or

(viii)been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, whether as President or as Vice-President exercising the powers of President, or as Vice-President or as member;

(ix)caused loss or damage to any property of the Municipality; or

(x)misappropriated or misused of Municipal fund; or

(xi) acted against the interest of the Municipality; or

(xii)contravened the provisions of this Act or the rules made thereunder; or

(xiii) created an obstacle in a meeting of the Municipality in such manner that it becomes impossible for the Municipality to conduct its business in the meeting or instigated someone to do so; or

(xiv) willfully contravened any order or direction of the State Government given under this Act; or

(xv)misbehaved without any lawful justification with the officers or employees of the Municipality; or

(xvi)disposed of any property belonging to the Municipality at a price less than its market value; or

(xvii)encroached, or assisted or instigated any other person to encroach upon the land, building or any other immovable property of the Municipality;

it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office.

(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.

......... ............ ............

4. A President removed under sub-section (2-A) shall also cease to be a member of the municipality and in case of removal on any of the grounds mentioned in clause (a) or sub-clause (vi), (vii) or (viii) of clause (b) of sub-section (2), shall not be eligible for re-election as President or member for a period of five years from the date of his removal."

Thus, it is evident that if a President 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 is not 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 2-A of Section 48 of the Act, 1916 which provides for the procedure of removal stipulates that after considering the 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 President merely after considering his explanation to the show cause. It would depend upon the facts of each case as to what kind of 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 and give an opportunity of cross-examination of the witnesses.

Clause (vii) of sub-section (2) of Section 48 of the Act 1916 necessarily implies an opportunity to the President to explain the misconduct attributed to him, or any other material on the basis whereof the State Government forms the opinion that the President has so flagrantly abused his position in such a manner that it has rendered his continuance as a President detrimental to public interest. All these allegations require to be made specifically in the charge-sheet and reasonable opportunity to lead evidence or to rebut the evidence led by the department should be given as such a procedure is implicit in these proceedings. More so, the power of removal is to be exercised quasi-judicially and not in an arbitrary manner. Strict adhreence to the principles of natural justice is required. (Vide Mujeebul Hasan Vs. Commissioner, 1966 ALJ 1022). The State Government while issuing the show cause notice must specify the action proposed to be taken against him. The show cause notice becomes bad for want of such a specification. (Vide Ebrahim Vadir Mavat Vs. State of Bombay[1954] INSC 13; , AIR 1954 SC 229; Ram Swarup Vs.Shiker Chand[1964] INSC 286; , AIR 1965 SC 1595; Bhagwan Dass Vs. State of U.P., 1957 ALJ 286; State of U.P. Vs. Mewa Lal Yadav & Ors., 1961 ALJ 120; and Abdul Latif Nomani Vs. Commissioner, Gorakhpur, AIR 1968 All 44).

In Bhagwan Das (supra) this Court held that the object of giving out the charges is to give out in sufficient details the conduct on which the opinion is formed so as to enable the petitioner to give his explanation.

The statutory provisions provide that only flagrant abuse of his position and not an isolated single incident would warrant the removal of the President.

In B.R. Patanga Vs. State of Punjab[1972] INSC 102; , AIR 1972 SC 1571 the Hon'ble Apex Court, explaining the meaning of term FLAGRANTLY held as under:-

"The expression 'flagrantly' means glaringly, notoriously, scandalously. A position is said to be abused when it is put to a bad use or for wrong purpose. No doubt it may vary with the circumstances."

In State of U.P. Vs. M.L.Yadav, 1961 ALJ 120, this Court, while examining the similar issue held that the use of the expression 'flagrantly abused' in sub-section (3) of Section 40, therefore requires that even if there is no sinister or oblique motive, there must be something to show that in committing the acts complained of the member concerned was using his position as a member for a wrong purpose, or that he was taking some advantage of his position which he ought not to have taken, and that he was doing so in a glaring and scandalous manner.

In Joginder Singh Vs. State of Punjab, AIR 1963 Punj 280, the Punjab High Court while considering a similar provision held as under:-

"......the suggestion being that the expression 'flagrantly' indicates that the abuse of position must have occurred over a long period of time and in connection with repeated acts. What the clause means is that if a member of a Committee, in disregard of his duty does any act or acts which shock a reasonable mind, then he can be removed by the State Government, and again it is the State Government that has to form that opinion."

In Mewa Lal Yadav (Supra) this Court considered its earlier judgment in Shri Purshottam Chandra Vs. State of U.P. & Ors., 1957 ALJ 885 and observed as under:-

"According to the dictionary 'flagrantly' as an adverb means 'glaringly', 'notoriously' or 'scandalously' and 'abuse' as a transitive verb means 'misuse', 'make bad use' or 'use for a wrong purpose or need', and 'take a bad advantage'. The use of the expression 'flagrantly abused' in sub-Sec.(3) of Sec. 40 therefore requires that even if there is no sinister or oblique motive there must be something to show that in committing the acts complained of the member concerned was using his position as a member for a wrong purpose or that he was taking some advantage of his position which he ought not to have taken and that he was doing so in a glaring and scandalous manner."

Thus, the authority is to keep in mind the aforesaid settled legal proposition that before passing any order of removal a finding is to be recorded as to whether the President had flagrantly abused his position and persistently acted in a manner that no business could be conducted in the meeting or that he misappropriated or misused the municipal funds.

In a given case the Enquiry Officer may collect certain information during the enquiry behind the back of the delinquent. Unless it is disclosed to him and the delinquent is given an opportunity to explain, the said material cannot be relied upon. (Vide Executive Committee of U.P. State Warehousing Corporation Vs. Chandra Kiran Tyagi[1969] INSC 221; , AIR 1970 SC 1244 and State of Assam & anr. Vs. Mahendra Kumar Das & ors.[1970] INSC 69; , AIR 1970 SC 1255).

Enquiry Officer is not entitled to collect evidence behind the back of the delinquent on a charge framed against him and arrive at his finding on the basis of that private enquiry. (Vide Krishna Chandra Tandon Vs. Union of India & Ors., AIR 1974 SC 1589).

Where a delinquent is given a show cause notice, it has to be considered objectively and not subjectively. The authority is under an obligation to specify as which part of the explanation of the delinquent is not acceptable and for what reason otherwise it would be a case of non-application of mind or not recording the reasons. (Vide Zora Singh Vs. J.M. Tandon & Ors., AIR 1971 SC 1537; B.D.Gupta Vs. State of Haryana, AIR 1972 SC 1472; and Satish Chandra Sharma Vs. State of U.P.& Ors, (2004) 1 U.P.L.B.E.C. 684).

In Jora Singh (Supra), the Hon'ble Apex Court has held as under:-

"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of its was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."

The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in "exceptional circumstances". ( Vide Union of India Vs. Lt. Gen. R.S. Kadyan & Ors., AIR 2000 SC 2513; Food Corporation of India Vs. A. Prahalada Rao & Anr., AIR 2001 SC 51; Union of India Vs. Ashutosh Kumar Srivastava, (2002) 1 SCC 188; Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583; and Cholan Roadways Ltd. Vs. G. Thirugnansambandam, (2005) 2 SCC 241).

In the General Court Martial & Ors. Vs. Col. Aniltej Singh Dhaliwal, AIR 1998 SC 983, the Hon'ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Inquiry Officer or the Disciplinary Authority to consider the relevant evidence. Similarly, in Rajendra Kumar Kindra Vs. Delhi Administration[1984] INSC 180; , (1984) 4 SCC 635, the Court observed as under:-

"It is equally well settled that where a quasi-judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated..... Viewed from either angle, the conclusion of the Inquiry Officer......are wholly perverse and hence unsustainable. The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence. Between appraisal of evidence and total lack of evidence, there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition."

In R.S. Saini Vs. State of Punjab, (1999) 8 SCC 90, the Apex Court noted as follows:-

"...........The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings."

In State of Kerala Vs. K.T. Shaduli Grocery Dealer & Ors., [1977] INSC 86; AIR 1977 SC 1627, right of cross examination of witnesses was held to be mandatory, by the Hon'ble Supreme Court.

Amendment in the Constitution by adding part IX-A confers upon the local self Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the constitutional institution besides being outrageous is dangerous to the democratic set-up of this country, therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State adopting a casual approach and resorting to manipulations to achieve a ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution.

The democratic set-up of the country has always been recognised as a basic feature of the Constitution. Like other features eg. Supremacy of the Constitution; Rule of law; Principle of separation of powers; Power of judicial review under Articles 32, 226 and 227 etc. (Vide His Holiness Keshwananda Bharti Sripada Galvaru & Ors Vs. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd., Vs. Union of India & Ors, [1980] INSC 141; AIR 1980 SC 1789; Special Reference No. 1 of 2002 In re (Gujrat Assembly Election matter) (2002) 8 SCC 237; and Union of India Vs. Association for Democratic Reforms, AIR 2002 SC 2112). It is not permitted to destroy any of the basic features of the Constitution even by any form of amendment, therefore, it is beyond imagination that it can be eroded by the executive on its whims without any reason. The Constitution accords full faith and credit to the act done by the executive in exercise of its statutory powers, but they have a primary responsibility to serve the nation and enlighten the citizens to further strengthen a democratic State for the reason that the State in a democratic society and derives its strength from the co-operative a dispassionate will for all as it is free and equal for the citizens, therefore, the public administration is responsible for the effective implication of the rule of law and constitutional commands which effectuate fairly the objective standard set for adjudicating good administrative decisions. However, wherever the executive fails, the Courts come forward to strike down an order passed by them passionately and to remove arbitrariness and unreasonableness for the reason that the State by its illegal action become liable for forfeiting the full faith and credit trusted with it. (Vide Scheduled Caste and Scheduled Tribes Officers' Welfare Council Vs. State of U.P. & Ors., AIR 1997 SC 1451; and State of Punjab Vs. G.S. Gill & Anr AIR 1997 SC 2324).

Basic means the basis of a thing on which it stands, and on the failure of which it falls. In democracy all citizens have equal political rights. Democracy means "actual, active and effective exercise of power by the people in this regard. It means political participation of the people in running the administration of the Government. It conveys the State of affairs in which each citizen is assured of the right of equal participation in the polity. (R.C. Poundyal Vs. Union of India & Ors., AIR 1993 SC 1804).

In People's Union for Civil Liberties Vs. Union of India & Ors., AIR 2003 SC 2363, the Hon'ble Apex Court held as under;-

"The trite saying that "democracy is for the people, of the people and by the people" has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thomas Vs. Speaker, Lok Sabha, (1993) 4 SCC 234 quoting from Black's Law Dictionary. The citizens of the country are enabled to take part in the Government through their chosen representatives. In a parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government. The people's representatives fill the role of law-makers and custodians of the Government. People look to them for ventilation and redressal of their grievances."

The Act of 1916 stood amended by the U.P. Municipalities (Amendment) Act, 2001, by which the provisions of Section 87-A stood repealed/omitted. The said provision provided for procedure of removal of a Chairman by moving a no-confidence motion. Therefore, by brining the aforesaid amendment in the Act, it is clear that the State Legislature felt it necessary to safeguard the interest of the Chairman considering the rights and privileges of the adult suffrage of the Municipal area. More so, by amendment in the Constitution and particularly by addition of Chapters IX and IX-A by 73rd Constitution Amendment in 1992 and the U.P. Urban Local Self-Government Laws (Amendment) Act, 1976, the Parliament and State Legislature have stressed upon the importance of the Local Self-Government. There can also be no quarrel with the settled legal proposition that removal of a duly elected Member is a quasi-judicial proceedings in nature. (Vide Indian National Congress (I) Vs. Institute of Social Welfare & Ors., AIR 2002 SC 2158). Therefore, the principles of natural justice require to be given full play and strict compliance should be ensured, even in absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office bearer.

Undoubtedly, any elected official in Local Self-Government has to be put on a higher pedestal than of a government servant. If the temporary government employee cannot be removed on the ground of misconduct without holding a full fledged enquiry, it is difficult to imagine how an elected office bearer can be removed without holding a full fledged enquiry. In service jurisprudence, minor punishment is permissible to be imposed while holding the enquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full fledged enquiry 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 entirely different context of the government employees for the reason that for the removal of the elected officials, a more stringent procedure and standard of proof is required. (Vide Rameshwari Devi Vs. State of Rajasthan & Ors., AIR 1999 Raj. 47).

The Hon'ble Apex 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 & Ors., AIR 2002 SC 2524. The Court held 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 under a particular provision 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. 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 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 had applied its mind to the allegations made and the explanation furnished by the elected office bearers sought to be removed.

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 period of five years, 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 Mohan Lal Tripathi Vs. District Magistrate, AIR 1993 SC 2042; Ram Beti Vs. District Panchayatraj Adhikari & Ors, AIR 1998 SC 1222; Jyoti Basu Vs. Debi Ghosal[1982] INSC 26; , AIR 1982 SC 983; and PUCL (Supra)].

In State of U.P. & Anr. Vs. Nand Kumar Agrawal, JT 2000 (7) SC 302, while considering the provisions of Section 48 of the Act 1916, the Hon'ble Supreme Court held that personal hearing is not contemplated in the said provision, though of course, if the authorities think it fit, they may give the opportunity of personal hearing while holding appropriate enquiry.

A Division Bench of this Court in Smt. R.S. Khan Vs. State of U.P. & Ors., (2003) 1 UPLBEC 81, placing reliance upon earlier judgment of this Court in S.P. Goel Vs. State of U.P., 1992 AWC 394; and Naseemuddin Vs. State of U.P., 2000 (3) ESC 1611, held that depending upon the facts and circumstances of the case, the enquiry should be held complying with the principles of natural justice, giving opportunity of defence to the erring elected office bearer and State Government must pass a speaking and reasoned order considering the explanation of the elected office bearer.

In such a case, the copy of the complaints and the material/evidence collected by the State Government substantiating the said allegations, has to be furnished to the office bearer sought to be removed and if in his explanation, he disputes the veracity thereof or genuineness of any document etc., it would be necessary for the State Government to hold a full fledged enquiry appointing an Inquiry Officer, placing the entire material before him and giving an opportunity to both sides to lead evidence in support of their cases and also to examine the parties/witnesses thereof.

The power of judicial review of the writ court is limited, but it has competence to examine as to whether there was material to form such an opinion as required by law. (Vide Purushottam Chandra Vs. State of U.P. & ors., AIR 1955 Alld 106.). It further requires a full fledged opportunity of explanation, which implies that the member should be permitted to examine the witnesses against him and if necessary to cross-examine them and produce evidence in his defence. (Vide Mohar Singh Vs. President Notified Area Committee, Colonelganj & Ors. 1956 ALJ 759) or the findings recorded by the authority concerned are perverse. It is settled law that non-consideration of relevant material renders an order perverse. A finding is said to be perverse when the same is not supported by evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularities (Vide Gaya Din Vs. Hanuman Prasad, AIR 2001 SC 386; and In the matter of Special Reference No. 1 of 2002 (Gujrat Assembly Election Matter) (Supra).

In view of the above, law can be summarised that an enquiry is to be conducted against the elected officials observing strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and they should give details of the incident which forms the basis of charges. No enquiry can be sustained on the vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. Before passing such an order, the authorities must address itself to the seriousness of the order since it not only removes the elected official from the post but also debars him from contesting the election for the next five years. It further deprives the voter of his constituency, who had elected him to represent them. They must realise what type of enquiry is required in such cases and why a punishment other than removal cannot be passed. The administration cannot be permitted to erode the democratic set-up of the country and passing an order of removal of any elected official on its whims without any reason or passing an order of imposing penalty disproportionate to the delinquency committed by him. Even Section 48 of the Act, 1916 provides for punishment other than removal. Thus, it is not necessary that in every case order of removal is required to be passed.

The instant case requires to be considered in the light of the aforesaid settled legal propositions.

It is nobody's case that petitioner had been given any opportunity to examine or cross examine any witness or any document had ever been produced before him to be proved or for acceptance. Mere formalities of issuing a charge-sheet and asking him to file its reply and again issuing show cause notice and asking for explanation have been carried out and the impugned order was then passed. The order impugned reveals shocking state of affairs. The findings recorded herein are contrary to the evidence on record. A perusal of the findings recorded in the impugned order indicate that inspite of the fact that the petitioner had discharged his burden by affording his explanation, the impugned order erroneously records that the petitioner failed to adduce any explanation or evidence in support of his defence.

This is clearly evident from the explanation in respect of Charge No.1 regarding payment to a contractor of Rs. 24,500/- for the supply of 100 mtrs of 10mm PVC wire. The charge against the petitioner was that the payment was made by the petitioner whereas there is no entry of the said material in the stock register. The petitioners explanation categorically asserts that the proposal to purchase the said material was recommended by the then Executive Officer, Sri Anees Ahmad on the basis of rates approved by the District Magistrate whereafter it was sanctioned and the wire was installed to maintain the Sodium Sets in public interest. It has been pointedly mentioned by the petitioner that the then Executive Officer, Sri Anees Ahmad got the wires fixed at the appropriate places. The bills produced by the supplier/contractor are available on record which would establish the same. The payments, according to the specific averments contained in the reply of the petitioner, were made by the Executive Officer after approval. The petitioner after quoting Sections 50 and 60 of the Act, 1916, has stated that the duty to make entry in the stock register is that of the Executive officer and if any such mistake has occurred, it is the said officer who may be held responsible for such a lapse. It is, therefore abundantly clear that the petitioner afforded a plausible explanation for the said charge.

The Deputy District Magistrate, Sirathu has submitted his comments which were forwarded by the ADM (Finance & Revenue) Kaushambi to the State Government vide letter dated 21/9/2004 who has simply stated that on a perusal of the material on record and the explanation rendered by the petitioner, the petitioner has failed to prove that he is not guilty and that "at present" there is no material to show that the wires were utilised. The said comment of the Deputy. District Magistrate, Sirathu, Mr. Ram Singh, is absolutely vague and it does not specify or even reflect an application of mind to the pointed explanations submitted by the petitioner, in spite of the fact that the petitioner explanation has been quoted in extenso. The conclusion drawn by the Deputy District Magistrate is not supported by any inspection having been made or any such evidence having been collected. The comment of the Deputy District Magistrate does not reflect either any such effort having been made or any other material available to support his conclusion. It is therefore, apparent that the conclusion/opinion formed by the Deputy District Magistrate is founded on surmises and conjectures in as much as the petitioner had indicated the utilisation of the wires to maintain the Sodium Sets. The impugned order simply reproduces the said opinion of the Deputy District Magistrate and has erroneously shifted the onus on the petitioner without considering the explanation of the petitioner which has been set out in detail by him and referred to herein above. The finding and conclusion in the impugned order is therefore perverse and is unsustainable for the foregoing reasons.

It is further to be noted that the conclusion in the impugned order is founded by referring to some statement of the Executive Officer who is alleged to have voluntarily and unilaterally absolved himself by saying that he is not at fault. The said fact, which is a piece of evidentiary material, utilised for forming a definite opinion against the petitioner does not find mention either in the show cause notice issued to the petitioner nor it is referred to in the comments of the Deputy District Magistrate. There is nothing in the impugned order to indicate that the aforesaid stand of the Executive Officer was justified, more so when the clear stand of the petitioner was that under the Act, 1916, it was the duty and obligation of the Executive Officer to maintain the Stock Register. The impugned order therefore, is clearly a tailored order, founded on extraneous and irrelevant material, solely designed to oust an elected Chairman from his office for obvious mala fide reasons.

The action of the Deputy District Magistrate, Sirathu in submitting his comments without referring to the explanation afforded by the petitioner and the impugned order having been passed in a similar fashion establishes a clear motivated deliberate refusal to consider and assess the explanation of the petitioner which is nothing sort of a mala fide exercise of power. Malice-in-law is therefore clearly established and the impugned order is liable to be struck down on this ground as well.

The second charge levelled against the petitioner is with regard to the repair of hand pumps which had to be undertaken on the complaint made by residents of the locality. This charge has also been answered against the petitioner in a similar fashion as the first charge. A perusal of the report of the then Deputy District Magistrate dated 31.5.2001 indicates that while preparing the report to its Executive Officer, Shri Rajjan Lal Srivastava had stated that whatever spare parts of the hand pumps were replaced, they were stored in the office of the Nagar Panchayat on the oral directions of the petitioner. It is alleged that the aforesaid items were however not available in the office of the Nagar Panchayat. The petitioner in his explanation to the aforesaid charge furnished before the authority concerned has stated that no direction was given by him to purchase of spare parts from any particular shop. The purchases were made by the then Executive Officer Shri Anish Ahmed and thereafter by Shri Rajjan Lal Srivastava. The aforesaid works which had been undertaken were also got inspected, and it is only after the verification/approval made by the then Executive Officer the payment was made.

So far as the question of the old spare parts stored in the office is concerned, the same is the responsibility of the Executive Officers, and it is they who are required to store these items on the appropriate place and make entries in respect thereof in the documents concerned. The conclusion drawn in the impugned order that the petitioner failed to establish that for the repairs spare parts were purchased from a particular shop on the instruction of the petitioner is perverse and is bereft of any reasoning. The explanation of the petitioner that the work was executed, and thereafter was got inspected by the respective Executive Officers Shri Anish Ahmed and Shri Rajjan Lal Srivastava and it is only thereafter that the payments were sanctioned has not even been whispered. While recording the finding by the State Government no reasons have been indicated as to why the aforesaid explanation of the petitioner was not acceptable. It is, therefore, manifest that the impugned order deliberately ignores the explanation of the petitioner with a mala fide intent to oust him from office on frivolous charges. The conclusion drawn that the payment for the said items were made in favour of the nephew of the petitioner in a fake manner is therefore founded on no material, and as such the impugned order stands clearly vitiated on this score as well.

The 3rd charge levelled against the petitioner also deserves the same fate. The petitioner was charged for having not taken any appropriate action against the contractor in whose favour the Tah-bazari rights had been settled after he had defaulted in making payments. It is evident from the record that the petitioner directed the concerned Executive Officer to take the appropriate measures in respect whereof the explanation has been clearly submitted to the effect that the specific orders were passed for not allowing the contractors to further realize the tah-bazari and a consequential notice was also issued by the Executive Officer for realization of the defaulted amount; that copies of the said notices having been sent to the Deputy District Magistrate, the district Magistrate and the Station House Officer-in-charge Police Station, Saini to take appropriate steps in this regard. The aforesaid explanation in detail also refers to the documents relied upon by the petitioner in this regard.

A perusal of the comments submitted by the Deputy District Magistrate nowhere refers to either the explanation or the evidence rendered by the petitioner. The impugned order simply reproduces the comments of the Deputy District Magistrate and holds the petitioner guilty of the said charge. It is, therefore, obvious that at no stage any effort was made to deliberate upon the explanation submitted by the petitioner even though the same finds reference in the report submitted by the Deputy District Magistrate. It is, therefore, a clear case of deliberately and knowingly not recording any opinion about the explanation submitted by the petitioner and ignoring the same for obvious mala fide reasons.

All the three charges, against the petitioner have not been proved at all and the procedure adopted by the respondents is in gross violation of the principles of natural justice.

It appears that the officer who held the enquiry was not aware of any procedure or law required to be followed for conducting the enquiry. The enquiry has been conducted in a most unwarranted, uncalled for and scandalous manner and a duly elected Chairman of Nagar Mahapalika has been removed without following any procedure required for the removal of such a office bearer. Passing this kind of order of removal amounts to gross abuse of the power vested in the authority concerned. This Court has been repeatedly asking the Government to hold the enquiry in a proper manner, but the State is not paying any heed. Duly elected officials are being removed in a manner which cannot even be followed for removal of a temporary Class IV employee. The orders are being passed for serving ulterior purpose in utter disregard to law. Burden to prove the charges had been shifted on the petitioner and findings have been recorded that he failed to prove that he had not committed the misconduct. Such a finding alone can be the sole ground for quashing the impugned order. Petitioner seems to be a victim of the over-activism of respondent no.6, who succeeded in getting the officiating charge removing the petitioner with collusion of the so called administration. Findings recorded herein are perverse . The infirmity in the impugned order has impaired the decision.

The petition is allowed. The order impugned dated 18/2/2005 for the reasons aforesaid is hereby quashed. The petitioner shall stand restored to his office of President, Nagar Panchayat, Sirathu, District Kaushambi and respondents no.1 to 5 are directed to give effect to this judgment and order forthwith.

12.5.2005

AKSI/SB