High Court of Judicature at Allahabad

- LOCUS STANDI OF UP-ADHYAKSHA A.F.R.

- LEGAL PROPOSITIONS

- DEMOCRACY-A BASIC FEATURE

- PROCEDURE UNDER THE RULES

- COMPLAINT/AFFIDAVIT-VERIFICATION THEREOF

- RULES-WHEN MANDATORY

- REMOVAL OF ELECTED REPRESENTATIVE-MEASURE OF GRAVITY AND DOCTRINE OF

PROPORTIONALITY

- Judicial Review

- Natural Justice

- Malice in law

- Consequential action- when invalid

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 53754 OF 2005

Smt Kesari Devi ------------- 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.)

The petitioner who was elected to the office of Adhyaksha (Chairperson), Zila Panchayat, Allahabad in the elections held in November, 2000, has approached this Court with a prayer for quashing the impugned order dated 30th July, 2005 (Annex. 15) passed by the respondent State Government removing the petitioner from her office on the basis of alleged charges which the State Government contends to have been proved against the petitioner under the provisions of Section 29 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter called the ''1961 Act') read with The Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1997 (hereinafter called the ''1997 Rules'). Haunted and hotly pursued by her rival political opponents, the petitioner contends that the impugned order is a result of political motivation and is a complete mala fide exercise of power in violation of the provisions of the 1961 Act and 1997 Rules, referred to hereinabove.

The petition was entertained and affidavits were invited on behalf of the respondents. An impleadment application was also moved by one Shri Ashok Kumar Dubey, Upadhyaksha, Zila Panchayat, Allahabad who claims to be officiating as Adhyaksha upon the removal of the petitioner. We have heard Shri R.N. Singh, learned Senior Counsel assisted by Shri A.K. Mishra for the petitioner, Shri S.M.A. Kazmi, learned Chief Standing Counsel for the respondent-State and Shri Shashi Nandan, learned Senior Counsel assisted by Shri R.S. Mishra for Shri Ashok Kumar Dubey, who has sought impleadment in the present writ petition.

FACTUAL MATRIX:

The facts and circumstances giving rise to this case are that petitioner was elected as a Chairperson of Zila Panchayat, Allahabad in the elections held in November, 2000. The tenure of the office is till November, 2005. One Smt Uma Devi Yadav who had lost the election against the petitioner and belonged to the rival political party, submitted a complaint dated 27.9.2003 (Annex. 1) to the Hon'ble Chief Minister of Uttar Pradesh levelling large number of allegations against the petitioner, and requested for holding an inquiry against her on the said charges. The said complaint was processed and the District Magistrate, Allahabad was directed to hold a preliminary inquiry vide order dated 18.10.2003. The District Magistrate, Allahabad further appointed a Committee of four-officers working under him, to hold an inquiry against the petitioner on the said charges with a direction to submit the report to him, vide order dated 9.12.2003 (Annex. 2) within a period of one week. A preliminary inquiry was conducted by the Committee consisting of the said four officers, and the report was submitted. The District Magistrate then sent the report on 19.3.2004 to the State Government, and the latter placing reliance upon the said preliminary inquiry report issued a show cause notice dated 16.4.2004 (Annex. 3) to the petitioner to furnish an explanation within a period of two weeks. As the petitioner was busy contesting the election for the Parliament seat from Phoolpur Constituency and had filed her nomination on 12.4.2004, she asked the State Authorities to extend the time for furnishing the explanation vide letter dated 19.5.2004 (Annex. 4). She had been continuously writing to the District Magistrate, Allahabad for supplying her the documents as the record of her office had been taken away by the officers holding the preliminary inquiry, as is evident from the letter dated 28.5.2004 (Annex 5). One more complaint was filed by Shri Kazi Mojjam, a Member of the Zila Panchayat, Allahabad. It could not be processed as it was not in a proper form as required under the statutory rules but it appears that a copy of the said complaint was also sent to the Inquiry Officer. Subsequently, without sending any reply to the letters/notices written by the petitioner for extending the time or supplying the documents so that she could prepare the reply to the show cause, the respondent-authorities passed an order dated 19th June, 2004 (Annex. 6) depriving her of her right to exercise financial and administrative powers and a three-Member Committee was appointed for that purpose which included Smt Uma Devi Yadav, the complainant who had lost the elections.

Being aggrieved, petitioner the filed Writ Petition No. 23352 of 2004 challenging the order dated 19th June, 2004, wherein this Court vide order dated 1st July, 2004 (Annex 7) granted an interim order staying the operation of the order dated 19th June, 2004 till further orders. The State Government preferred Special Appeal No. 556 of 2004 against the order of the learned Single Judge dated 1st July, 2004 which was allowed vide judgment and order dated 12.7.2004 (Annex 8). The petitioner approached the Hon'ble Apex Court, by filing the Special Leave to Appeal (Civil) No. 14713 of 2004, wherein the Court vide order dated 6.8.2004 (Annex 9) stayed the operation of the judgment and order dated 12.7.2004. Subsequently, the Apex Court granted leave in the matter vide order dated 3.12.2004 (Annex. 10) and the matter is still pending consideration before the Hon'ble Supreme Court. In view of the interim order passed by the Hon'ble Apex Court the petitioner continued to perform her duties in the office as a Chairperson of Zila Panchayat, Allahabad. She had been continuously asking the State Authorities to furnish the documents so that she could file the reply, as is evident from the letters dated 17.5.2004 and 19.5.2004 (Annex. 11), 3.9.2004 and 25.11.2004 (Annex 12). The Divisional Commissioner, Allahabad, the inquiry officer sent the charge-sheet dated 9.8.2004 and asked the petitioner to submit her reply. She submitted the reply (Annex 13) in the absence of the copies of the documents asked for by her which had not been furnished.

On the basis of the preliminary inquiry report, the reply submitted by the petitioner to the charge-sheet and taking into consideration some other material and without giving any opportunity to the petitioner to participate further in the inquiry, the inquiry officer submitted his report to the State Government on 30.12.2004. The State Authorities were not satisfied in the manner the findings had been recorded by the inquiry officer at least in respect of certain charges. The State Authorities therefore vide letter dated 7th May, 2005 (Annex 14) sought clarification from the inquiry officer on four charges. Ultimately, the respondents passed the impugned order dated 30th July, 2005 (Annex 15), removing the petitioner from the office. Hence this petition.

Shri R.N. Singh, learned Senior Counsel, appearing on behalf of the petitioner has submitted that in a democratic set up neither the bureaucrats nor the State Authorities are supposed to conduct an inquiry in such a arbitrary manner and in utter disregard to the statutory provisions enacted for this purpose. After commencement of the provisions of Part IX and IX-A in the Constitution which had been brought by amendment, a constitutional status has been conferred upon the Adhyaksha of Zila Panchayat, and the petitioner could not be removed in such a unceremonious manner. More so, the procedure adopted by the inquiry officer was not sufficient even to remove a temporary Class IV employee on the allegation of misconduct. The statutory rules which are mandatory in nature have not been followed. The inquiry stood vitiated from the very beginning itself. The first complainant had been the rival of the petitioner who had lost the election by 12 votes. None of the complaints were in consonance with the statutory rules nor they were addressed to the Statutory Authority as provided under the Rules. The respondents could not initiate any regular inquiry on such a complaint. Charges have not been framed precisely and inquiry cannot be conducted on vague charges against the petitioner. The authority did not consider her explanation before recording the findings on the charges. The State did not agree with the findings recorded by the inquiry officer on certain charges, and proceeded to pass the order without giving any opportunity to the petitioner to explain. The copy of the inquiry report was not served upon her. The matter of depriving the petitioner of her right to exercise administrative and financial powers is still pending consideration before the Hon'ble Apex Court as well as before this Court. Under no circumstances the authorities could have continued with the inquiry, even if there is no interim order of the Hon'ble Supreme Court in this regard. Neither the inquiry officer nor the State Government addressed itself to the charges levelled against the petitioner, nor considered her explanation before recording the findings. The petition deserves to be allowed and the impugned order dated 30th July, 2005 is liable to be quashed.

Shri S.M.A. Kazmi, learned Chief Standing Counsel appearing for the State has opposed the petition vehemently submitting that the inquiry was conducted strictly in accordance with law. There has been no violation of any rules or statutory provisions. Petitioner had been given full opportunity to defend herself. No fault can be found with the inquiry report and with the order impugned. Petition is, therefore, liable to be dismissed.

LOCUS STANDI OF UP-ADHYAKSHA:

Before proceeding to deal with the contentions advanced by the parties on merits, we first propose to dispose of the issue of the locus of Shri A.K. Dubey who has sought impleadment in this writ petition.

It has been submitted by Shri Shashi Nandan that if the petition stands allowed, the applicant would be adversely affected. He is therefore a necessary party and as he has not been impleaded by the petitioner, the petition is liable to be dismissed only on this ground. Even if the applicant is not held to be a necessary party, in strict legal sense, being a public representative and having interest in the subject matter, he has a right to be heard. Shri R.N. Singh, learned Senior Counsel appearing for the petitioner has opposed the application contending that he is neither a necessary party and nor he is required to be heard in public interest. The applicant is a politically motivated person and is a mere beneficiary of the impugned order. He cannot be termed as a "person aggrieved". Therefore, his application is liable to be rejected. Shri S.M.A. Kazmi, learned Chief Standing Counsel has supported Shri Shashi Nandan and submitted that the application for impleadment deserves to be allowed.

The applicant Shri Ashok Kumar Dubey is Upadhyaksha (Vice Chairperson) of the Zila Panchayat. The contingency in which such a person can function as Adhyaksha is provided for in Section 25 of 1961 Act quoted herein below:-

"25. Filling of casual vacancy.- If a vacancy occurs by reasons of death or otherwise in the office of Adhyaksha, Upadhyaksha or an elected member of the Zila Panchayat, it shall be filled before the expiration of a period of 6 months from the date of such vacancy, in the manner provided for in Section 18 and 19, as the case may be, for the residue of the term of his predecessor:

Provided that if on the date of occurrence of such vacancy the residue of the term of the Zila Panchayat is less than six months, the vacancy shall not be filled."

The provision makes it crystal clear that Upadhyaksha has a right only to officiate for a maximum period of six months and in case the residue of tenure is less than six months, he may continue till the tenure of the Adhyaksha comes to an end. An Upadhyaksha can only occupy the office if a casual vacancy arises. The use of the word ''casual' clearly implies that there is no permanent nature of vested right created as the nature of vacancy is itself casual. The provision requires that the vacancy shall be filled for the residue of the term of the Adhyaksha but the same shall not be filled up in case the term of the Zila Panchayat itself is less than six months. The right of an Upadhyaksha to occupy such an office is entirely dependent upon the vacancy occurring and not otherwise. In the event there is no vacancy, then there is no corresponding right to an Upadhayaksha to occupy the office. In such a situation, whether the Upadhyaksha can claim any semblance of right to defend the order of removal of the petitioner, is the question which has to be answered by us.

This Court while considering a similar case in Suresh Singh Vs. Commissioner, Moradabad Division, Moradabad, (1993) 1 UPLBEC 414, held that in an inquiry under Section 95 (g) of the U.P. Panchayat Raj Act, 1947 the complainant, who was Up Pradhan could be a witness in inquiry but had no locus standi to approach this Court against the order of the State Authorities, for the reason that none of his personal or statutory rights were affected.

A similar view has been reiterated in Satya Pal Vs. IV Additional District & Sessions Judge, Shahjehanpur, (1997) 1 UPLBEC 106, wherein it was observed that he may be entitled to hold the office in absence of the Adhyaksha but he does not have a right to challenge the order passed by State or the Court as he has no locus standi to challenge the same.

The question has to be examined also from the angle that in case the order had been passed by the State Government in favour of the petitioner, could the Upadhyaksha have claimed any right to challenge such an order. Looking to the provisions of the Act that an Upadhyaksha can only occupy the office of Adhyaksha upon a casual vacancy, it is obvious that the answer to the aforesaid question would be in the negative inasmuch as none of the rights of the Upadhyaksha are being affected by passing of such an order. It cannot be said that the Upadhyaksha suffers a legal injury so as to be defined as an aggrieved person having locus to challenge any State action taken against the Upadhyaksha. Conversely, applying the said principles, the Upadhyaksha will have no right to claim his impleadment as a matter of right to support an order which is against the petitioner. To support our aforesaid reasoning, it would be apposite to refer to certain decisions of the Apex Court on the question of locus standi and person aggrieved.

It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. Writ petition under Article 226 of the Constitution is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (Vide Calcutta Gas Company (Proprietary) Ltd. Vs. State of West Bengal & Ors., [1962] INSC 41; AIR 1962 SC 1044; Mani Subrat Jain etc. etc. Vs. State of Haryana & Ors., [1976] INSC 319; AIR 1977 SC 276; State of Kerala Vs. A. Lakshmikutty & Ors., [1986] INSC 228; AIR 1987 SC 331; Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor & Ors., AIR 1998 SC 3104; State of Kerala & Ors., Vs. K.G. Madhavan Pillai & Ors., [1988] INSC 285; AIR 1989 SC 49; Rajendra Singh Vs. State of Madhya Pradesh & Ors., AIR 1996 SC 2736; Utkal University etc. Vs. Dr. Nrusingha Charan Sarangi & Ors., AIR 1999 SC 943; and Laxminarayan R. Bhattad & Ors., Vs. State of Maharashtra & Anr., (2003) 5 SCC 413.

Legal right is an averment of entitlement arising out of law. It is, in fact, an advantage or benefit conferred upon a person by a rule of law. (Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York[1974] INSC 127; , AIR 1974 SC 1719; and State of Rajasthan Vs. Union of India & Ors., [1977] INSC 145; AIR 1977 SC 1361).

In Jasbhai Motibhai Desai Vs. Roshan Kumar Hazi Bashir Ahmed & Ors., [1975] INSC 335; AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order, can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has a more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition. The Hon'ble Apex Court observed as under:-

"Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected interest, the business competition causing it being a lawful activity. Juridically, harm of this description is called damnum sine injuria. The term injuria being here used in its true sense of an Act contrary to law. The reason why law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to society at large. In the light of the above discussion, it is demonstratively clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to legal wrong. He has suffered no grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a "person aggrieved" and has no locus standi to challenge the ground of the no objection of certificate."

Similarly, in K. Ramadas Shenoy Vs. The Chief officers, Town Municipal Council, Udipi & Ors., [1974] INSC 140; AIR 1974 SC 2177, the Hon'ble Supreme Court examined a case of a resident in a locality where a cinema building was to be constructed contrary to the Building Town Planning Scheme. He was held to be entitled to maintain writ on the ground that the residential area would stand spoiled by unauthorized construction in violation of the statutory provisions and the municipal authorities owed a public duty and an obligation under the Statute not to allow the construction of a cinema hall in a residential area.

In The Nagar Rice and Flour Mills & Ors., Vs. N. Teekappa Gowda & Bros. & Ors., [1970] INSC 46; AIR 1971 SC 246, the Hon'ble Supreme Court rejected the claim of an existing Mill owner that in case any other Mill is shifted to the locality wherein his Mill stood situated, he would be adversely affected, therefore, has a locus standi to maintain the suit/writ. The Hon'ble Supreme Court held that the right to carry on business being fundamental right guaranteed under Article 19 (1) (g) of the Constitution, its exercise is subject to only to the restrictions imposed by the law in the interest of general public under Article 19 (6) (i) of the Constitution.

Similar view has been reiterated by the Hon'ble Supreme Court in Saghir Ahmad & anr. Vs. State of U.P. & Ors., [1954] INSC 89; AIR 1954 SC 728; Hans Raj Kehar & Ors., Vs. The State of U.P. & Ors., [1974] INSC 261; AIR 1975 SC 389; and Mithilesh Garg etc. etc. Vs. Union of India & Ors., [1991] INSC 307; AIR 1992 SC 443, while examining the locus of the existing operators to have objection for grant of permits under the provisions of the Motor Vehicles Act.

In Northern Plastics Ltd. Vs. Hindustan Photo Films Mfg. Co. Ltd. & Ors., (1997) 4 SCC 452, the Hon'ble Supreme Court again considered the meaning of "person aggrieved" and "locus of a rival government undertaking" and held that a rival businessman cannot maintain a writ petition on the ground that its business prospects would be adversely affected. However, in the said case, the Union of India's writ petition was held to be maintainable in larger public interest.

In Thammanna Vs. K. Veera Reddy[1980] INSC 131; , AIR 1981 SC 116, the Hon'ble Supreme Court held that although the meaning of expression "person aggrieved" may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone. However, in Dr. Duryodhan Sahu & Ors., Vs. Jitendra Kumar Mishra & Ors., (1998) 7 SCC 273, the Hon'ble Supreme Court rejected the claim of a stranger to maintain a writ petition even in Public Interest.

In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, the Hon'ble Supreme Court considered the matter at length and placed reliance upon a large number of its earlier judgments including the Chairman, Railway Board & Ors., Vs. Chandrima Das (Mrs.) & Ors., AIR 2000 SC 998; and held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him.

The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense. (Vide K.N. Lakshminarasimaiah Vs. Secretary, Mysore S.T.A.T., (1966) 2 Mys. L.J. 199).

Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons.

In Thiruvengadam Vs. Muthu Chettiar & Anr., AIR 1970 Mad. 34, it has been held that a person can be said to be aggrieved if apart from the general interest, such a person, as a member of the public, has particular or special interest in the subject matter supposed to be wrongly decided.

In Messrs. Swami Motor Transport (Private) Ltd. Vs. Messrs. Raman & Raman (Private) Ltd. & Ors., AIR 1961 Mad. 180, the Full Bench of Madras High Court, while considering the provisions of Madras Motor Vehicles Act, considered the issue and approved the law laid down in The King Vs. Richmond Confirming Authority, (1921) 1 KB 248; and The King Vs. Groom & Ors., [1901] UKLawRpKQB 73; 1901 (2) KB 157, and laid down the principle as under:-

"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered."

In Ram Singh & Anr. Vs. Director of Consolidation & Ors., 1968 All. WR 844, this Court held that the expression "person aggrieved" does not include a person who suffers from psychological or imaginary injury; the person aggrieved must necessarily be one whose right or interest is adversely affected or jeopardised, and not who suffers from psychological or imaginary injury

The Constitution Bench of the Hon'ble Supreme Court in State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, held that the existence of a legal right in favour of the writ petitioner is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. In Kalyan Singh Vs. State of U.P. & Ors., [1961] INSC 349; AIR 1962 SC 1183, the Hon'ble Apex Court enunciated the proposition that the right to maintain a writ postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested.

The term "person aggrieved" was also considered and defined in Re" Sidebotham[1880] UKLawRpCh 148; , (1880) 14 Ch.D. 458, wherein it has been observed as under:-

"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."

In Ghulam Qadir Vs. Special Tribunal & Ors., (2002) 1 SCC 33, the Hon'ble Supreme Court considered the similar issue and observed as under:-

"There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law -------------In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

In Lakhi Ram Vs. State of Haryana & Ors., AIR 1981 SC 1655 the Hon'ble Supreme Court examined an issue where writ petition was entertained by a person whose promotion chances had been adversely affected by expunging the adverse remarks of another officer. The petition was filed on the ground that had the adverse remarks continued to remain in the confidential report of the said officer, it would have improved the chances of promotion of the petitioner vis-à-vis the said officer. The Apex Court held that in such a case writ can be entertained only if the petitioner successfully establishes that while expunging the adverse remarks the authority had acted beyond the scope of its powers. The aforesaid judgment was reversed by the larger Bench in Chandra Gupta Vs. Secretary, Government of India, (1995)1 SCC 23 observing that expunging the adverse remarks was a matter between the master and servant and no other person can be heard on the issue merely because his chances of future promotion etc. may be adversely affected if the adverse entry is expunged.

In R.S. Deodhar Vs. State of Maharashtra & Ors., [1973] INSC 205; AIR 1974 SC 259 the Apex Court held that no employee has a right or vested right to chance of promotion. He simply has a right to be considered for promotion, provided he falls within zone of consideration on fulfilling the pre-requisite conditions for that. While deciding the said case, the Apex Court placed reliance upon the judgment in State of Mysore Vs. G.B. Purohit, AIR 1967 SLR 753, wherein it has been held that though a right to be considered for promotion is a condition of service mere chances of promotion are not, the rule which merely affects chance of promotion cannot be regarded as varying a condition. The Apex Court rejected the contention that even a person whose chances are affected has a right to be heard observing as under:-

"It is said on behalf of the respondents that as their chances of promotion have been affected, their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service."

In Mohammad Shujat Ali & Ors., Vs. Union of India & Ors., [1974] INSC 120; AIR 1974 SC 1631, the Court held that where a rule confers a right of actual promotion, or a right to be considered for promotion is a rule prescribed in a condition of service, but, mere chance of promotion does not fall within the said right.

Similar view has been reiterated by the Apex Court in Mohammad Bhakar Vs. Y. Krishna Reddy, 1970 SLR 768; Reserve Bank of India Vs. C.T. Dighe[1981] INSC 128; , AIR 1981 SC 1699; State of Maharashtra Vs. Chandrakant Anant Kulkarni[1981] INSC 162; , AIR 1981 SC 1990; Reserve Bank of India Vs. C.N. Sahasranaman, AIR 1986 SC 1830; Paluru Ramkrishnaiah Vs. Union of India & Ors., [1989] INSC 99; AIR 1990 SC 166; K. Jagadeesan Vs. Union of India[1990] INSC 46; , (1990) 2 SCC 228; Union of India & Ors., Vs. N. Y. Apte & Ors., (1998) 6 SCC 741; and Vinoy Kumar Vs. State of U.P. AIR 2001 SC 1739.

In Commissioner, Assam State Housing & Anr. Vs. Purna Chandra Bora & Anr., (1998) 6 SCC 619, the Apex Court held that a person officiating on the post has no right to challenge the entry of the regular selected candidate.

In Dr. Chanchal Goyal (Mrs) Vs. State of Rajasthan (2003) 3 SCC 485, the Hon'ble Supreme Court held that if a temporary employee holding a tenure post does not have any right to hold the post, even if the selected candidate did not join the post.

However, in Mehsana District Central Cooperative Bank Ltd & Ors., Vs. State of Gujarat & Ors, AIR 2004 SC 1576, the Apex Court observed that where there are allegations of violation of statutory rules which have been brought to the notice of the authorities and the authorities concerned fail to perform their statutory obligations, any aggrieved citizen can bring the inaction to the notice of the Court, which may pass the appropriate orders. Similarly, the locus of the University teacher for challenging the appointments made illegally and irregularly, in contravention of the University Statute has been recognized by the Hon'ble Supreme Court in Dr. ( Mrs.) Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, But he should be genuinely concerned to rectify the wrongs without "any personal animosity against anyone." It should not be for "personal gain" and he must have "bona fide feelings". His action should not be "politically motivated" nor for "publicity".

A Division Bench of this Court in Sanjay Kumar Gupta Vs. Secretary Ministry of Cooperative, Government of U.P., Lucknow & Ors, 2002 AWC 4131, held that unless a person suffers from actual legal injury, he cannot be heard in writ Court. He cannot maintain a petition merely because he may be beneficiary of the circumstances.

Thus, it is evident from the aforesaid that "person aggrieved" is to be considered in context of the Act involved and is to be restricted to the person, who has wrongfully been deprived of something or wrongfully refused something or his interest/ title is adversely affected, but the same does not require a very liberal and wide interpretation. A person having a mere chance to officiate would have no locus standi in such a matter. The party has to satisfy as what is the legal injury caused by that violation of law for the redressal of which the party has approached the Court. Mere violation of law or making out a legal issue is not enough to maintain the writ petition.

Apart from the aforesaid proposition of law, it has also to be examined on the touchstone of the principles laid down in the Code of Civil Procedure as to whether the applicant Ashok Kumar Dubey is a proper or necessary party or not. A necessary party is one without whose presence no effective adjudication can be accomplished whereas a proper party is one without whose presence a matter can be decided. The applicant Ashok Kumar Dubey is not a necessary party in the sense that this writ petition can be adjudicated even without impleading him. The State Government is already defending its order and has filed a counter affidavit and Shri S.M.A. Kazmi, learned Chief Standing Counsel has produced the entire records before us. Shri Ashok Kumar Dubey is neither the complainant nor was it his complaint that had been made the basis of the inquiry. The inquiry proceeded on the basis of a complaint and affidavit filed by Smt. Uma Devi, who was a candidate having contested the election to the office of Adhyaksha against the petitioner. Thus, Shri Ashok Kumar Dubey had no concern with the proceedings and even otherwise he would not suffer any consequence much less a civil consequence in case the order impugned is interfered with. His right as Upadhyaksha would not diminish, in any way, and he would continue to enjoy his lien as Upadhyaksha. Thus, in the absence of any such possible right which could be claimed by Shri Ashok Kumar Dubey to be curtailed, it can be safely presumed in law that Shri A.K. Dubey is not a necessary party at all.

In the instant case, the applicant cannot claim to have any vested right to the office. He has merely a chance to officiate in case the Adhyaksha is removed. Applicant has a personal gain and his move appears to be politically motivated, therefore, it is beyond our imagination that he has come forward for any public interest. His application is liable to be rejected. The facts of the case of Ram Swarup & Ors., Vs. S.N. Maira, AIR 1999 SC 941 relied upon by Mr. Shashi Nandan are distinguishable from the present case. The Apex Court therein held that in a case where a chunk of land had been declared to be surplus in view of the provisions of the Ceiling Act and the surplus land is allotted to different persons, the allottees are necessary parties. In that case the allottees had been given a vested right in the land and the present case does not present similar features as it merely creates a right to officiate for a maximum period of six months if the Adhyaksha is not available.

The question can be examined from another angle namely that if the State Government had acquitted the petitioner of all charges levelled against her, then whether the applicant have could approached this Court to challenge the order. The only possible answer is no.

In view of the above, the application for impleadment stands rejected. However, since the issues raised in this writ petition have wide repercussions and since the questions to be answered are of a serious nature, we have heard Shri Shashi Nandan, learned Senior Counsel solely for the assistance of the Court in view of the provisions of Chapter XXII Rule 5-A of the Allahabad High Court Rules, 1952 in order to secure the ends of justice and in order to prevent any miscarriage of justice.

We now proceed to examine the rival contentions advanced on the merits of the case.

LEGAL PROPOSITIONS:

The issues which have been raised in this case pertain to non-fulfillment of the procedure prescribed under 1997 Rules and the consequences following therefrom, violation of principles of natural justice, non-consideration of relevant material on record and the impact thereof and the mala fide exercise of power by the respondents.

To start with, we take up the issue keeping in view the exalted position on which the Hon'ble Apex Court and our Courts throughout the country have placed an elected office bearer. The removal of such an office bearer has been examined in several decisions.

DEMOCRACY-A BASIC FEATURE:

The petitioner holds the post of a Adhyaksha, Zila Panchayat. Amendment in the Constitution by adding Part IX and 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 by adopting a casual approach and resorting to manipulations to achieve 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 recognized as a basic feature of the Constitution, like other features e.g. Supremacy of the Constitution, Rule of law, Principle of separation of powers, Power of judicial review under Article 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 the matter of Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), (2002) 8 SCC 237; and Union of India Vs. Association for Democratic Reforms, AIR 2002 SC 2112). It is not permissible to destroy any of the basic features of the Constitution even by any form of amendment, and 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. 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 becomes 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. Poudyal 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."

PROCEDURE UNDER THE RULES:

Coming to the next question of the procedure prescribed for processing a complaint and holding an inquiry, the case requires to be considered in the light of the provisions of the 1997 Rules. The relevant rules thereof are quoted hereunder:-

"3. Procedure relating to complaints.-(1) Any person making a complaint against a Pramukh, Up-Pramukh, Adyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayati Raj Department, Vidhan Bhawan, Lucknow.

(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavit respectively.

(4) Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions shall not be entertained.

4. Preliminary inquiry.-(1) The State Government may, on the receipt of a complaint referred to in Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a Pramukh of Up-pramukh and District Magistrate in the case of an Adhyaksha or Upadhyaksha to conduct a preliminary inquiry with a view to finding out if there is a prima facie case for a formal inquiry in the matter.

(2) The officer appointed under sub-rule (1) shall conduct the preliminary inquiry as expeditiously as possible and submit his report to the State Government within a fortnight of his having been so appointed.

5. inquiry officer.- Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4, that an inquiry should be held against a Pramukh or Up-Pramukh under Section 16 or against an Adhyaksha or Upadhyaksha under Section 29, it shall, by an order, appoint an officer to hold the inquiry, who shall not be below the rank of the District Magistrate in the case of an inquiry under Section 16, and not below the rank of a Commissioner in the case of an inquiry under Section 29.

6. Procedure for the inquiry.- (1) The substance of the imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the inquiry officer by the State Government.

(2) The inquiry officer shall draw up-

(a)the substance of the imputations into definite and distinct articles of charge; and

(b)a statement of the imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and a list of witnesses by whom, the Articles of charge are proposed to be sustained.

(3) The inquiry officer shall deliver or cause to be delivered to the person against whom he is to hold the inquiry, a copy of the Articles of charge, the statement of the imputations and a list of documents and witnesses by which each Article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.

(4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of the Articles of charges as are not admitted, and where all the Articles of charges as are not admitted, and where all the Articles of charges have been admitted in the written statement of defence, the inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.

(5) If the person who has not admitted any of the Articles of charge in his written statement of defence appears before the inquiry officer, he shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the Articles of charge, the inquiry officer shall record the plea, sign the record and obtain the signature of that person thereon, and return a finding of guilt in respect of those charges.

(6) If the person fails to appear within the specified time or refuses or omits to plead, the inquiry officer shall take the evidence and if there is a complainant, require him to produce the evidence by which he proposes to prove the Articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the said person may, for the purpose of preparing his defence-

(a)inspect within five days of the order or within such further time not exceeding five days as the inquiry officer may allow, the documents specified in the list referred to in sub-rule (2);

(b)submit a list of witnesses to be examined on his behalf; or give a notice within ten days of the order or within such further time not exceeding ten days as the inquiry officer may allow, for the discovery or production of any documents that are relevant to the inquiry and are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2).

(7) The person against whom the inquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry officer may appoint any person as a Presenting officer to assist him in conducting the inquiry:"

Sub-rule (8) provides that if the person applies orally or in writing for the supply of copies of the statements of witnesses as mentioned in sub-rule (2), the inquiry officer shall furnish him with such copies as early as possible or within three days before the commencement of examination of the witnesses. Sub-rule (9) says that the inquiry officer shall on receipt of the notice for production of documents, forward the same to the authority in whose possession the documents are being kept, with a requisition for the production of the documents by such date as may be specified. Sub-rule 10 provides that on receipt of the requisition, the authority having custody or possession of the requisitioned documents shall produce the same before the inquiry officer. Sub-rule 11 provides that on the date fixed for the inquiry, the oral and documentary evidence by which the charges are proposed to be proved shall be produced and the witnesses shall be examined by the inquiry officer by or on behalf of the complainant and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be re-examined by the inquiry officer or the complainant on any point, but not on any new matter, with the leave of the inquiry officer. Sub-rule 12 provides that the inquiry officer may allow the production of evidence not included in the list given to the person against whom the inquiry is being held. The inquiry officer shall give the said person an opportunity of inspecting such documents before they are taken on the record. The inquiry officer may also allow the said person to produce new evidence if he thinks that to be necessary in the interest of justice. Sub-rule 13 provides that if the defence is made orally, it shall be recorded and the said person shall sign the record. In either case a copy of the statement of defence shall be given to the complainant, if any. Sub-rule 14 provides that the evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiry officer. Sub-rule 15 provides that the inquiry officer may, after the person against whom the inquiry is being held closed his case, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Sub-rule 16 provides that the inquiry officer may, after the completion of the production of the evidence, hear the complainant if any, and the person against whom the inquiry is being held or permit them or him , as the case may be, to file written briefs of their respective cases. Sub-rule 17 says that if the person to whom a copy of the charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiry officer or otherwise fails or refuses to comply with the provisions of this rule, the inquiry officer may hold the inquiry ex-parte.

Rule 7 provides that after conclusion of the inquiry the inquiry officer shall prepare a report which shall contain (a) the charge and the statement of the imputations, (b) the defence of the person against whom the inquiry has been held, (c) the assessment of the evidence in respect of each charge and (d) the findings on each of the charge and reasons therefor.

Rule 8 provides that the inquiry officer shall forward to the State Government the records of the inquiry which shall include (a) the report prepared by him, (b) the written statement of defence, if any, of the person against whom the inquiry has been held (c) the oral and documentary evidence produced during the course of the inquiry (d) written briefs, if any, filled during the course of the inquiry (e) the orders, if any, mad by the State Government and the inquiry officer in regard to the inquiry.

The aforesaid provisions make it crystal clear that a specific procedure has been prescribed under the statutory rules and there is no possibility of making any deviation there from by the Authorities concerned.

The 1997 Rules, quoted hereinabove, clearly provide that the preliminary inquiry has to be conducted, in the case of an Adhyaksha, by the District Magistrate and in the case of Upadhyaksha and Member, by Additional District Magistrate. It is, thus, clear that only the District Magistrate can hold the inquiry. The words used in the Statute have to be construed strictly.

In Kailash Nath Agarwal & Ors., Vs. Pradeshiya Indust. & Inv. Corp. of U.P. & Anr., AIR 2003 SC 1886, the Hon'ble Supreme Court held that if the legislature has used two different words in the same statute, it is to be construed as carrying different meanings.

The Hon'ble Supreme Court had an occasion to examine the said Rule 4 of 1997 Rules in State of U.P. & Ors., Vs. Smt Janki Devi Pal AIR 2003 SC 1825, wherein the Hon'ble Apex Court interpreting the said rule held as under:-

"The draftsman of the Rules has clearly used the term "District Magistrate" as distinct from the term "Additional District Magistrate". The definition of District Magistrate in clause (14) of Section 2 of the Act is not applicable if there be something repugnant in the subject or context. The very use of "Additional District Magistrate" and "District Magistrate" in the same rule, consisting of one sentence, clearly suggests that the two terms are used in two different meanings. The High Court appears to be right in holding that an inquiry against a Pramukh or Up-Pramukh can be held by an officer not below the rank of an Additional District Magistrate while as against Adhyaksha or Upadhyaksha - these two being democratically elective offices, higher in status than that of Pramukh or Up-Pramukh- the inquiry should be held by the District Magistrate."

Thus, it is evident from the above that the preliminary inquiry is to be conducted only by the District Magistrate and he cannot ask any other officer to hold the inquiry.

COMPLAINT/AFFIDAVIT-VERIFICATION THEREOF:

The matter in which the complaint has to be lodged and supported by an affidavit has been laid down in detail in the 1997 Rules.

Rule 3 of the 1997 Rules provides that every complaint and affidavit shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter called 'C.P.C.') for the verification of the pleadings and affidavit respectively. Order VI Rule 15 C.P.C. Provides for verification of the pleadings. It provides that every pleading shall be verified at the foot by the party acquainted with the facts of the case. The pleadings have to be numbered in paragraphs and he has to explain as to which paragraph is being verified on his personal knowledge and which upon information received and believes it to be true. The person verifying the pleadings shall also furnish an affidavit in support of his pleadings.

The procedure for filing the affidavit and its verification etc. have been provided under Order XIX, C.P.C. Rule 3 thereof provides that the affidavit shall be confined to such facts as the deponent is able to prove of his own knowledge. The purpose of providing for verification either in the pleadings or affidavit is to put a responsibility upon the deponent of what he has stated in the pleadings.

In V. Narayanaswamy Vs. C.P. Thirunavukkarasu, AIR 2000 SC 694, the Hon'ble Supreme Court held that in case the election petition is based on corrupt practice, the existence of material facts, material particulars, correct verification and affidavit are relevant and important and in absence thereof, the Court has jurisdiction to dismiss the petition.

Similarly, a person who is well acquainted with the facts of the case is the only competent person to verify the pleadings and where the pleadings have not been verified as per the requirement of the Code, it cannot be held that there has been compliance of the mandatory provisions of law (Vide Delhi Lotteries Vs. Rajesh Agarwal, AIR 1997 Del. 332; & Palm Print Textile (India) Ltd. Vs. British Millerain Co. Ltd., AIR 2002 Del. 497).

In A.K.K. Nambiar Vs. Union of India[1969] INSC 309; , AIR 1970 SC 652, it was held by the Supreme Court that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence.

A similar view has been reiterated in Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore & Anr., [1963] INSC 136; AIR 1964 SC 1545; and Rajit Ram & Ors. Vs. Kateskar Nath & Ors., 18 ILR (All.) 396.

In Sukhwinder Pal Bipan Kumar Vs. State of Punjab[1981] INSC 196; , AIR 1982 SC 65, it was held that under Order XIX Rule 3 C.P.C., it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity and in its absence the allegations in the petition, would not be supported by an affidavit as required by law.

A Division Bench of this Court in Har Krishan Khosla Vs. M/s. Alembic Chemical Works company Ltd. & Anr., AIR 1986 Alld. 87, held that it is mandatory for a person to disclose the names and address and sufficiently describe the identity of the person or persons from whom he received such information. In absence thereof, the affidavit cannot be read in evidence.

The verification in the pleadings as well as in the affidavit as required under Rule 3 of the 1997 Rules is to be made strictly in consonance with the procedure prescribed in the C.P.C.

RULES-WHEN MANDATORY:

The aforesaid provisions have also to be examined as to whether they are mandatory or directory. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.

Supreme Court in the case of Dattatraya Moreshwar Vs. The State of Bombay & Ors., [1952] INSC 18; AIR 1952 SC 181 has laid down that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below:-

"It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done."

A Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & Ors., Vs. Babu Ram Upadhya, AIR 1961 SC 751, considered the issue as to whether the provision involved in the said case was mandatory and held as under:-

"For ascertaining the real intention of the Legislature, the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."

In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur[1964] INSC 245; , AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, [1975] INSC 172; AIR 1975 SC 2190, whether a provision is mandatory or directory, would, in the ultimate analysis, depends upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.

In Sharif-Ud-Din Vs. Abdul Gani Lone[1979] INSC 233; , AIR 1980 SC 303, the Hon'ble Supreme Court, while considering the provisions of Sub-section (3) of Section 89 of the J&K Representation of People Act, 1957, held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory. The Apex Court held as under:-

"In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

Similar view has been reiterated in M/s. Bharat Barrel & Drum Mfg. Co. Private Ltd. & Anr Vs. The Employees Estate Insurance Corporation, [1971] INSC 261; AIR 1972 SC 1935; State of Mysore & Ors., Vs. V.K. Kangan & Ors., [1975] INSC 172; AIR 1975 SC 2190; Govind Lal Chaggan Lal Patel Vs. The Agriculture Produce Market Committee & Ors., [1975] INSC 181; AIR 1976 SC 263; Dalchand Vs. Municipal Corporation, Bhopal & Anr., AIR 1983 SC 303; Ganesh Prasad Sah Kesari & Anr. Vs. Lakshmi Narayan Gupta, [1985] INSC 94; AIR 1985 SC 964; M/s. B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick & Anr., , [1986] INSC 84; AIR 1987 SC 1010; Owners and Parties Interested in M.V. "Vali Pero" Vs. Fernandeo Lopez & Ors., [1989] INSC 279; AIR 1989 SC 2206; Lakshmanasami Gounder Vs. C.I.T., Selvamani & Ors., [1991] INSC 284; (1992) 1 SCC 91; Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 3400; Collector of Customs, Calcutta Vs. Tin Plate Co. of India Ltd., (1997) 10 SCC 538; Dinkar Anna Patil & Anr. Vs. State of Maharashtra & Ors., (1999) 1 SCC 354; Shashikant Singh Vs. Tarkeshwar Singh, AIR 2002 SC 2031; Balwant Singh & Ors., Vs. Anand Kumar Sharma & Ors., (2003) 3 SCC 433; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors., AIR 2003 SC 511; and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036).

In M/s. Rubber House Vs. M/s. Excellsior Needle Industries Pvt. Ltd.[1989] INSC 84; , AIR 1989 SC 1160, the Hon'ble Supreme Court considered the provisions of the Haryana (Control of Rent & Eviction) Rules, 1976, which provided for mentioning the amount of arrears of rent in the application and after placing reliance upon large number of judgments, including Bhikraj Jaipuria Vs. Union of India[1961] INSC 228; , AIR 1962 SC 113; Raza Buland Sugar Co. Ltd (supra); K. Kamaraja Nadar Vs. Kunju Thevar, AIR 1958 SC 687; Hari Vishnu Kamath Vs. Syed Ahmad Ishaque[1954] INSC 122; , AIR 1955 SC 233; State of U.P. Vs. Babu Ram Upadhya (supra); and Ajit Singh Vs. State of Punjab, AIR 1983 SC 494, the provision was held to be directory though the word "shall" has been used in the statutory provision for the reason that non-compliance of the rule, i.e. non-mentioning of the quantum of arrears of rent did involve no invalidating consequence and also did not visit any penalty.

In B.S. Khurana & Ors., Vs. Municipal Corporation of Delhi & Ors., (2000) 7 SCC 679, the Hon'ble Supreme Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpsoe of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.

In State of Haryana & Anr. Vs. Raghubir Dayal, [1994] INSC 574; (1995) 1 SCC 133, the Supreme Court has observed as under:-

"The use of the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would ot so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word 'shall', therefore, ought to be constructed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word 'shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory."

In Ramchandra Keshav Adke Vs. Govind Joti Chavare & Ors., 1975 SC 915, the Hon'ble Apex Court held that where "the imperative language, the beneficent purpose and importance of the provisions for efficacious implementation of the general scheme of the Act, all unerringly lead to the conclusion that they were intended to be mandatory, neglect of any of those statutory requisites would be fatal."

The law on this issue can be summarised that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. But the circumstance that Legislature has used the language of compulsive force is always of great relevance and in the absence of anything contrary in the contest indicating that a permissive interpretation is permissible, the Statute is to be construed as peremptory.

REMOVAL OF ELECTED REPRESENTATIVE-MEASURE OF GRAVITY AND

DOCTRINE OF PROPORTIONALITY:

The case requires to be examined considering the gravity of the consequences provided under section 29 of the 1961 Act. Section 29 (1) reads as under:-

"If in the opinion of the State Government the Adhyaksha or the Up-Adhyaksha while acting in place of Adhyaksha wilfully omits or refuses to perform his duties or functions under this Act or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, or because physically or mentally incapacitated for performing his duties, the State Government, after giving the Adhyaksha a reasonable opportunity for explanation may by order remove him from office."

Section 29 (3) of the 1961 Act provides that an Adhyaksha so removed shall not be eligible for election for the said post for a period of three years from the date of his removal.

In State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378, the Hon'ble Supreme Court considered a similar submissions and held that where the statutory provision has a very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the provisions. All the safeguards and protections provided under the statute have to be kept in mind while exercising such a power. The Hon'ble Supreme Court considering its earlier judgments in Mohinder Kumar Vs. State, (1998) 8 SCC 655; State of Punjab Vs. Baldev Singh, (1998) 2 SCC 724; Ali Mustafa Abdul Rehman Moosa Vs. State of Kerala[1994] INSC 498; , (1994) 6 SCC 569, held as under:-

"It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed."

The Constitution Bench of the Hon'ble Supreme Court in G. Sadanandan Vs. State of Kerala & Anr., AIR 1966 SC 1925, held that if all the safeguards provided under the Rules are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, becomes liable to be quashed.

There can also be no quarrel with the settled legal proposition that removal of a duly elected Member is a quasi-judicial proceeding in nature. (Vide Indian National Congress (I) Vs. Institute of Social Welfare & Ors., AIR 2002 SC 2158). This view stands further fortified by the Constitution Bench judgments of the Supreme Court in Bachhitar Singh Vs. State of Punjab[1962] INSC 88; , AIR 1963 SC 395; and Union of India Vs. H.C. Goel[1963] INSC 185; , AIR 1964 SC 364. 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 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. 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. (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; and Jyoti Basu Vs. Debi Ghosal[1982] INSC 26; , AIR 1982 SC 983).

JUDICIAL REVIEW:

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 All 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).

Section 29 (3) of the 1961 Act not only provides for the punishment of removal of the Adhyaksha but further deprives him to contest the election for a period of three years from the date of removal. Therefore, as the punishment has serious rigours, the matter requires to be taken very seriously.

There is no dispute to the settled legal propositions that statutory provisions require to be given strict adherence and authority is bound to act in the manner prescribed under the statute.

When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto an uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.(Vide Taylor Vs. Taylor, (1876) 1 Ch.D.426; Nazir Ahmad Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan[1961] INSC 131; , AIR 1961 SC 1527; Patna Improvement Trust Vs. Shrimati Lakshmi Devi & Ors., [1962] INSC 352; AIR 1963 SC 1077; State of Uttar Pradesh Vs. Singhara Singh & Ors., AIR 1964 SC 358; Nika Ram Vs. The State of Himachal Pradesh, AIR 1972 SC 2077; Chettiam Veettil Ammad & Anr.Vs. Taluk Land Board & Ors., [1979] INSC 95; AIR 1979 SC 1573; State of Bihar & Anr. Vs. J.A.C. Saldanna & Ors., [1979] INSC 234; AIR 1980 SC 326, A.K. Roy & Anr. Vs. State of Punjab & Ors, [1986] INSC 204; (1986) 4 SCC 326; State of Mizoram Vs. Biakchhawna, (1995) 1 SCC 156; J.N. Ganatra Vs. Morvi Municipality Morvi, AIR 1996 SC 2520; and Babu Verghese & Ors., Vs. Bar Council of Kerala & Ors., AIR 1999 SC 1281).

The aforesaid settled legal proposition is based on a legal maxim " Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following some other course is not permissible. This maxim has consistently been followed, as is evident from the cases referred to above. A similar view has been reiterated in Chandra Kishore Jha Vs. Mahavir Prasad & Ors., (1999) 8 SCC 266; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., AIR 2000 SC 2281; Delhi Administration Vs. Gurdip Singh Uban & Ors., (2000) 7 SCC 296; Dhanajaya Reddy Vs. State of Karnataka, AIR 2001 SC 1512; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633; Prabha Shankar Dubey Vs. State of Madhya Pradesh, AIR 2004 SC 486; and Ram Phal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657.

It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court without entering into the issue of sufficiency or adequacy of the evidence, must exercise its jurisdiction to declare such an act to be illegal and invalid as naked and arbitrary exercise of power is bad in law.

In Sirsi Municipality Vs. Cecelia Kom Francis Tellis[1973] INSC 12; , AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities."

Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors., Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., [1975] INSC 43; AIR 1975 SC 1331, has observed as under:-

"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies............ Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).

Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., [1986] INSC 264; AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji[1951] INSC 52; , AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-

"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

In Commissioner of Police (supra), the Apex Court observed as under:-

"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."

In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:-

"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits.............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."

The Supreme Court has taken the same view in Ram Chand & Ors., Vs. Union of India & Ors., [1993] INSC 396; (1994) 1 SCC 44; and Purushottam Vs. Chairman, Maharashtra State Electricity Board & Anr., (1999) 6 SCC 49, holding that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness."

NATURAL JUSTICE:

The State has to further discharge its burden of establishing that there has been no violation of the principles of audi alteram partem. The procedure provided under the Rules is extensive and defines every step to be followed. Any violation thereof would render the proceedings to be invalid being violative of principles of natural justice. The law on the aforesaid subject, therefore, has to be considered before recording our findings.

In State of U.P. & Anr. Vs. Nand Kumar Agrawal, judgment (2000) 7 SC 302, while considering the provisions of Section 48 of the U.P. Municipal 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 inquiry.

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 inquiry 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 inquiry 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.

While holding the inquiry, even in Service Jurisprudence, the disciplinary authority has a final say even on the issues of findings of fact and it has a right to disagree with the findings recorded by the inquiry officer. If such a position is not accepted, in law, the inquiry officer would become a final authority, and the disciplinary authority would become redundant. However, the disciplinary authority while disagreeing with the inquiry officer, on a particular finding of fact, has to record reasons, and then serve a show cause notice upon the delinquent, and after considering his explanation, the disciplinary authority is competent to take action. In case disciplinary authority disagrees with the findings recorded by the inquiry officer, and no notice is given to the delinquent, the findings so changed by the disciplinary authority would be in flagrant violation of the principles of natural justice, and the order of imposing the punishment would stand vitiated. (Vide Punjab National Bank & Ors., Vs. Kunj Behari Misra, AIR 1998 SC 2713; The High Court of Judicature at Bombay Vs. Shashi Kant S. Patil & Anr., AIR 2000 SC 22; S.B.I. & Ors., Vs. Arvind K. Shukla, AIR 2001 SC 2398; State Bank of India Vs. K.P.N. Kutty, AIR 2003 SC 1100; and J.A. Naikstam Vs. Prothonotary & Senior Master, High Court of Bombay & Ors., (2004) 8 SCC 653. In Yoginath D. Bagde Vs. State of Maharashtra & Anr., (1999) 7 SCC 739, the Hon'ble Supreme Court held that even if the statutory provisions applicable in inquiry do not provide for such a notice, it is inbuilt in the rules, being the principles of natural justice.

A Full Bench of this Court in Iqbal Ahmad Vs. State of U.P. & Ors., 1998 All C J 3, while considering the similar case under the provisions of U.P. Town Areas Act, 1914 held that the State Government before passing the order, has to provide an opportunity to the Chairman/Member, who is sought to be removed. In the said case, it was also held that even if there was no requirement of furnishing the copy of the inquiry report to the office bearer, sought to be removed, it is mandatory on the part of the State Authority to serve the same and provide an opportunity to such an office bearer of putting his case before the State Government in writing and an order passed without giving an opportunity of hearing to the person concerned, would stand vitiated.

Even the regular inquiry is to be conducted under the said Rule giving strict adherence to its provisions. It is mandatory for the Department as well as for the office bearer to lead evidence, documentary as well as oral, examine, cross-examine and re-examine the witnesses. Inquiry officer has been given competence to enforce the attendance of the witnesses. The copies of the documents to be relied upon by the document is to be served upon the office bearer sought to be removed. More so, the State has to frame the specific and precise charge.

In S.C. Chakrabarty Vs. State of West Bengal[1970] INSC 250; , AIR 1971 SC 752 the Hon'ble Apex Court held that it is not permissible to hold an inquiry on vague charges as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. The Supreme Court observed as under:-

"The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."

In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the inquiry stood vitiated. (Vide State of Andhra Pradesh Vs. Sree Rama Rao[1963] INSC 94; , AIR 1963 SC 1723). Thus, nowhere a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the inquiry stands vitiated as having been conducted in violation of the principles of natural justice.

In Sawai Singh Vs. State of Rajasthan[1986] INSC 104; , AIR 1986 SC 995, the Apex Court held that even in a domestic inquiry the charge must be clear, definite, and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the inquiry from being vitiated for the reason that there must be fair-play in action, particularly, in respect of an order involving adverse or penal consequences.

In U.P.S.R.T.C. & Ors., Vs. Ram Chandra Yadav, (2000) 9 SCC 327, while dealing with a similar case, the Apex Court held as under:-

"In other words, what is required to be examined is whether the delinquent knew the nature of accusation, whether he has been given an opportunity to state his case and whether the departmental authority has acted in good faith. If these requirements are satisfied then it cannot be said that the principle of natural justice has been violated."

The purpose of holding inquiry against any person is not only with a view to establish the charge against him or imposing penalty, rather it is conducted with the object of recording the truth and in that sense the outcome of an inquiry may either result in establishing or vindicating his stand and result in his exoneration. Therefore, fair action on the part of the authority concerned is of a paramount necessity. The authority concerned cannot penalise the delinquent on an allegation which is not a part of the charge-sheet, as it would be an order beyond the charge against the delinquent and it cannot be sustained. [Vide Vishwanath Mishra Vs. U.P.Public Services Tribunal, (1985) 2 SLR 708 (All)].

In a given case the Inquiry Officer may collect certain information during the inquiry 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).

Inquiry 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 inquiry. (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 B.D.Gupta Vs. State of Haryana, AIR 1972 SC 1472).

During the course of enquiry, every document which is being relied upon by the Department and by the Inquiry Officer to record a finding must be supplied to the delinquent failing which the inquiry would not be in accordance with law and the authority must act in good faith otherwise the proceedings would stand vitiated (State of U.P. Vs. Shatrughan Lal & Anr., (1998) 6 SCC 651; and U.P.S.R.T.C. & Ors. Vs. Ram Chandra Yadav, (2000) 9 SCC 327).

It is the duty of the Inquiry Officer that he has to record reasons while reaching to his conclusion at the time of recording the findings of fact on each charge. If reasons have not been recorded, the findings become perverse and inquiry stand vitiated (Vide Anil Kumar Vs. Presiding Officer, Labour Court & Ors., AIR 1985 SC 1121).

MALICE IN LAW:

More so, the State is under obligation to act fairly without ill will or malice- in facts or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Jaichand Lal Sethia Vs. The State of West Bengal & Ors., [1966] INSC 126; AIR 1967 SC 483; A.D.M. Jabalpur Vs. Shiv Kant Shukla[1976] INSC 129; , AIR 1976 SC 1207; State of A.P. Vs. Goverdhanlal Pitti, AIR 2003 SC 1941).

CONSEQUENTIAL ACTION-WHEN INVALID:

Learned counsel for the petitioner invited the attention of the Court to another feature of this case and submitted that once the basic procedure of preliminary inquiry falls through as being invalid, the consequential action taken by the State Government by holding a regular inquiry and passing the impugned order has also to necessarily be treated to be invalid.

There can be no dispute with the settled legal proposition that if an order is bad in its inception, it cannot be made good by efflux of time or by subsequent improvement. In Upen Chandra Gogoi Vs. State of Assam & Ors., (1998) 3 SCC 381, the Apex Court held that the writ Court should not validate an action which was not lawful at inception.

If the basic order falls being illegal, invalid or void the consequential order cannot be given effect to as it automatically becomes inoperative.

In Badrinath Vs. Government of Tamil Nadu & Ors., (2000) 8 SCC 395, the Court held as under:-

"This flows from the general principle applicable to "consequential orders". Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime- like the recommendation of the State and by the UPSC and the action taken thereon- would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders."

The Apex Court held that if the basic order stands vitiated, the consequential order automatically falls.

One of the submissions which requires to be dealt with before finally recording the findings on the basis of the principles, referred to herein above, is the submission with regard to the impact of the pendency of the Special Leave Petition before the Hon'ble Apex Court which arose out of the withdrawal of the financial and administrative powers of the petitioner during the pendency of the inquiry proceedings.

Shri R.N. Singh, learned Senior Counsel appearing for the petitioner has submitted that in view of the fact that the matter is still engaging the attention of the Hon'ble Supreme Court, the question of passing the impugned order after holding the inquiry could not arise. More so, the writ petition is still pending before this Court and the interim order staying the operation of the order withdrawing the financial and administrative powers has been passed. Thus, the respondents at least ought to have taken permission from this Court to proceed with the inquiry and thus the entire proceedings stand vitiated. In support of his submission reliance has been placed upon large number of judgments, including the judgment in Civil Appeal No. 7224-7225 of 1999 Committee of Management LLN Degree College Vs. Director, Higher Education, Uttar Pradesh decided by the Hon'ble Supreme Court on 6th April, 2003, wherein the Apex Court has held that as the State Government had been party in the writ proceedings, before proceeding further, the State should have presented its view before the High Court and waited for the orders, or it ought to have taken permission from the High Court to proceed with the matter.

Undoubtedly, it is settled legal proposition that any order passed in contravention of the order of the Court cannot be given effect to. It remains unenforceable and in executable provided the interim order passed by the Court is communicated to the Authority concerned.

In Mulraj Vs. Murti Raghunathji Maharaj[1967] INSC 54; , AIR 1967 SC 1386, the Hon'ble Apex Court held that any order passed by the Court comes into force immediately, and if any authority passes an order in contravention of the order passed by the Court, it is a nullity if the order of the Court had been communicated to the said authority. The Hon'ble Apex Court further observed as under:-

"----------------In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute but where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force."

Similar view has been reiterated in Surjit Singh & Ors., Vs. Harbans Singh & Ors., [1995] INSC 467; (1995) 6 SCC 50; and Govt. of A.P. Vs. Gudepu Sailoo & Ors., AIR 2000 SC 2297.

Be that as it may, the matter, pending before this Court as well as before the Apex Court remained limited to the order depriving the petitioner of her financial and administrative powers and there is no order restraining the Authorities to proceed with the inquiry. Even in the case of the Committee of Management LLN Degree College, the Apex Court has made an observation that ordinarily in the pending cases, the High Court should be informed of further proceedings taken by the parties subsequent to the passing of order.

In view of the above, we do not find any merit in the submission made by Shri R.N. Singh and accordingly reject it.

Power vested by the State in a Public Authority should be viewed as in trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact -situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". Decision taken in arbitrary manner contradicts the principle of legitimate expectation. Authority is under legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. (Vide Sirsi Municipality Vs. Cecelia Kom Francis Tellis[1973] INSC 12; , AIR 1973 SC 855; The State of Punjab & Anr. Vs. Gurdial Singh & ors.[1979] INSC 220; , AIR 1980 SC 319; The Collector (Distt Magistrate) Allahabad & Anr. Vs. Raja Ram Jaiswal, [1985] INSC 107; AIR 1985 SC 1622; and Delhi Administration Vs. Manohar Lal, (2002) 7 SCC 222).

In such a case, authority has to satisfy that it has acted reasonably in a fair and just manner and whatever the statutory mandate requires must be honoured by the State. No deviation of the requirement of the procedure is permissible if the statute provides for severe consequence. Undoubtedly, the interest of the State is supreme but every action of the State must be right, just and fair.

In view of the above, law can be summarised that an inquiry is to be conducted against any such office bearer applying strict adherence to the statutory provisions and principles of natural justice. The provisions of Rule 3 of the 1997 Rules are mandatory in nature. Non-compliance of any of the sub-rules thereof would render the proceedings illegal. The complaint should be filed in the manner prescribed by the 1997 Rules, verification of the complaint as well as of the affidavit has to be made in accordance thereof. As per Rule 5 of the 1997 Rules unless the State Government is of the opinion, that the complaint has been processed strictly in accordance with Rule 3, and the preliminary inquiry has been conducted by the designated authority in accordance with the procedure prescribed under the Rules and strict compliance has been observed, it shall be impermissible for the State Government to proceed any further for regular inquiry. The charges should be specific, definite and give details of the incident which formed the basis of charges. No inquiry can be sustained on vague charges. Inquiry has to be conducted fairly, objectively and not subjectively. The parties have to lead oral as well as the documentary evidence and there must be fair opportunity to examine, cross-examine and re-examine the witnesses. The authority must record reasons for arriving at the finding of fact in the context of the statute defining and dealing with the misconduct after giving an opportunity of explanation to the Adhyaksha sought to be removed after furnishing him the copy of the inquiry report. The punishment under the Statute is singular and severe. Removal is accompanied by a complete disqualification prescribing debarment from contesting elections in future for three years. Applying the tests laid down by the Apex Court, strict adherence to every provision is mandatory and failure to do so would make the action liable to be struck down.

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

FINDINGS:

We have heard learned counsel for the parties and Mr. Shashi Nandan, learned Senior Counsel, at length and they have compelled us to examine the record microscopically. We have also examined the original records produced by Shri S.M.A. Kazmi, learned Chief Standing Counsel for the State.

Learned counsel for the respondents has vehemently submitted that it is not the State Government which had to prove the guilt of the petitioner but the petitioner herself had to prove her innocence as per the scheme of the Rules. More so, no opportunity of hearing was required to the petitioner after the report submitted by the Inquiry Officer was accepted and order of removal was passed. We do not see any substance in the same as the scheme of the Rules does not envisage such a course. Section 29 of the Act itself provides that before passing the order of removal of the official an opportunity of explanation is required. A Full Bench of this Court in Iqbal Ahmad (Supra) has categorically held that even if such a requirement is not there in the Rules, the principles of natural justice demand it and any order passed without giving an opportunity of explanation and without furnishing the copy of the inquiry report would stand vitiated. This Court has observed as under:-

".........in absence of any provision which expressly or by necessary implication includes the application of principles of natural justice or just and fair procedure, it is our considered view that the State Government before passing the order of confirmation has to provide an opportunity to the Chairman/Member, who is sought to be removed by supplying him a copy of the order passed by the Collector and provide him an opportunity of putting his case before the State Government in writing."

In view of the aforesaid settled legal propositions we are of the candid view that it is obligatory on the part of the State Government to supply a copy of the inquiry report to the office bearer sought to be removed and provide him an opportunity of explanation before passing any order under Section 29 of the 1961 Act.

The 1997 Rules provides for examination of the complainant and other witnesses by the Department, and the Inquiry Officer has to question the delinquent on the circumstances appearing against him in the evidence for enabling him to furnish the explanation thereon. Such a requirement is under Section 313 Code of Criminal Procedure, 1973, and it requires strictly to be observed. Thus when the legislature in its wisdom has prescribed stringent requirements on the part of the Department, and on Inquiry Officer, then the submission that the burden lies on the petitioner to prove her innocence and State does not have to prove her guilt, cannot be accepted, and is hereby rejected.

Admittedly, the complainant Smt. Uma Devi Yadav had lost by a margin of 12 votes against the petitioner in the election for office of the Adhyaksha. A true translation of her undated complaint filed by her reads as under:-

"To

The Chief Minister,

State of Uttar Pradesh, Lucknow.

Subject:In respect of removal of Adhyaksha, Zila Panchayat, Allahabad Smt. Kesari Devi, B.J.P., for financial , of crores

of rupees."

Sir,

It is requested that Smt. Kesari Devi, Adhyaksha, Zila Panchayat, Allahabad, B.J.P., is responsible for financial and administrative irregularities and is involved in corruption of several crores of rupees.

Therefore, it is in the public interest that on the issues mentioned in the annexure, C.B.I. Inquiry may be ordered and the said Adhyaksha may be punished. She be removed from the office. In addition thereto, it is also requested that during the inquiry, she be deprived of her right to exercise the financial and administrative power so that she may not misuse her office and affect the inquiry.

Sd/- Uma Devi

Member, Zila Panchayat,

Allahabad."

There is no annexure to the said complaint, as mentioned therein. What she had annexed is an affidavit giving details of various irregularities. The affidavit runs into 10 pages. The first page is a stamp paper of Rs. 10/- and the remaining are plain papers. The complainant has signed only on the first page and at the end of the affidavit, i.e. on the 10th page. She did not put her signature on any other page of the said affidavit though each page contains the seal of the notary and it had been sworn on 27th September, 2003. The affidavit has been verified that the contents of paragraphs 1 to 11 are true to her personal knowledge. It is difficult to imagine that she was having personal knowledge of everything for which she had furnished the details in such a meticulous manner. Such a knowledge could have been acquired only from the records obtained by the complainant from certain employees whose names and details have not been disclosed by her. The disclosure of the source of knowledge therefore is not only suspicious but is seriously doubtful and therefore is not worth believing. On the basis of such an affidavit, no proceedings could have been undertaken.

We fail to understand how the said complaint and the affidavit annexed along with it meets the requirement of Rule 3 of the 1997 Rules. There are no details in the complaint nor it was filed in triplicate as required under the Rules and it appears to be a purely motivated complaint which had not been filed in the manner meeting the requirement of the Rules. It has not been verified nor any date has been mentioned. It was sent to the Chief Minister of the State of Uttar Pradesh and not to the Secretary, Panchayat Raj. The stress of the complainant was more on the rival political status of the petitioner. We also fail to understand how sanctity can be attached to an affidavit which has been filed as an annexure and which does not bear the signature of the complainant at least on eight pages. Shri S.M.A. Kazmi, learned Chief Standing Counsel could not satisfy the Court as to how the State Government could have proceeded with the complaint when it was not in conformity with the provisions of the Rules. The preliminary inquiry was directed to be made by the District Magistrate, Allahabad. For reasons best known to him, he further appointed a four Member Committee, as mentioned above, to hold the inquiry and submit a report to him. We are not satisfied by the submissions made on behalf of the State that the report was prepared by the District Magistrate himself. Firstly, it is evident from the order constituting the four-Members Committee that the Committee was required to submit the report to the District Magistrate. In the counter affidavit, a large number of documents have been filed which contain the letter dated 19.02.2004 written by Smt. Pushpa Mishra, Additional Chief Executive, Zila Panchayat, Allahabad to the various officers to submit the documents before the said Committee and it is evident from the said letter that the District Magistrate had appointed that Committee to hold the inquiry against the petitioner and all the authorities were directed to make the record available to that Committee and the language used therein is crystal clear that for making the inquiry against the Adhyaksha Zila Panchayat, a Committee has been constituted under the Chairmanship of the Additional District Magistrate (Nazul), Allahabad. Undoubtedly, the report of the preliminary inquiry has been submitted by the District Magistrate but the records proved to the contrary that he did not participate in the inquiry and the report submitted by him was only on the basis of the report prepared by the four-Member Committee. He personally did not examine any witnesses and nor did he examine any document and nor did any officer or authority produce any record before him. The petitioner had been demanding from the District Magistrate documents so that she could prepare the reply as is evident from her letters dated 19.05.2004, 28.05.2004 and subsequent representations dated 12.05.2005, 28.05.2005, 08.06.2005, 12.09.2004, 16.09.2004, 23.09.2004, 16.11.2004 and 25.11.2004. However, no document had ever been supplied. Receipts of said letters had been accepted by the respondents in their counter affidavit and all such letters and representations filed by her have been produced by the State Government in the counter affidavit from pages 192 to 211. Undoubtedly, there is a letter dated 24.09.2004 written by the District Magistrate calling upon the petitioner to examine the records available in the office of the Divisional Commissioner, Allahabad (page 212 of counter affidavit). However, the petitioner again protested that she had gone to the office of the Divisional Commissioner but she was not permitted to inspect any document and nor any record was made available to her.

In view of the law, referred to above, as the inquiry could be held only by the District Magistrate and no one else, the preliminary inquiry stood vitiated and there was nothing before the State Government on the basis thereof it could order the regular inquiry. Rule 5 of the 1997 Rules empowers the State Government to appoint the Investigating Officer for the purpose of regular inquiry only if it is of the opinion, on the basis of the preliminary inquiry report submitted under Rule 4(2) of the 1997 Rules, that it requires a regular inquiry. Firstly, the complaint was not maintainable and secondly the preliminary inquiry has not been conducted in accordance with law by the District Magistrate himself. The State Government, therefore, could not hold the regular inquiry. While directing the regular inquiry against the petitioner, the State Government deprived her the right to exercise her administrative and financial powers and for that purpose a three member committee was appointed. One member of this Committee was the complainant herself. The matter had been contested and the order dated 19.06.2004 is pending consideration before the Hon'ble Apex Court wherein the Hon'ble Court had been pleased to grant interim relief in favour of the petitioner.

While holding the inquiry, the petitioner had been asking the Inquiry Officer to furnish the copies of the documents as most of the documents had been taken away during the course of the preliminary inquiry. Her grievance had been found to be genuine by the Inquiry Officer as he has observed as under:-

"Undoubtedly, there is a force in the preliminary objection raised by Smt Kesari Devi that she had not been given the opportunity even to examine the original documents. However, as the regular inquiry has been directed by the State and she has now been given an opportunity to examine the documents, and she has been furnished the copies of particular documents, I am bound to proceed with the inquiry charge-wise."

It appears from the said language used by the Inquiry Officer that he understood that the inquiry was not warranted in such a fact situation but he was bound to do it as he had been directed by the State Government to do so.

Altogether, there were 41 charges against the petitioner, but only charge nos. 1, 3, 4, 5, 8, 10, 15, 28, 34, 38 and 40 have been found to be partly or fully proved and it may be necessary to give a birds' eye view of the said charges and the procedure adopted for holding the inquiry and the findings were recorded.

CHARGE NO.1:

The Adhayaksha was not prudent in utilising public funds for repairing of her official residence and she had spent a sum of Rs. 10,11,571/-. She had purchased four cordless telephones, two air conditioners and other luxurious items.

The petitioner submitted her reply to the said charge that the house was in dilapidated condition; no repairing had taken place for the last 30 years; the issue was raised before the Committee which had approved the repairing and then the resolution was passed by the Panchayat Sadan in the general house. Repairing was carried out by the Executive Officer and there was no irregularity as neither any amount had been misappropriated nor any bogus bill had been produced by any person. She did not purchase the four cordless telephones. The Inquiry Officer took into consideration the complaint filed by Smt. Uma Devi and the so-called preliminary report submitted by the District Magistrate in evidence and other complaints sent by other members in this regard. He recorded the findings mostly in favour of the petitioner but in the result he found the charge partly proved observing that she was supposed to be more frugal in using the public funds and such a huge amount should not have been spent on repairing of her residence or office or houses of the employees of the Zila Panchayat. It was held that she did not purchase four cordless telephones. Making reference to the construction or repairing of the houses of the employees of the Zila Panchayat, as referred to above, shows that the Inquiry Officer himself was not aware as what had been the charge no.1 against the petitioner. It is a clear cut case of non-application of mind. The Inquiry Officer did not consider it proper to consider the explanation furnished by the petitioner. If the house was in a dilapidated condition and no repairing had been made therein for such a long time, then under what circumstances the expenditure on such repairing was alleged to be a misuse of public funds when the proper resolution etc. had been passed by the Zila Panchayat itself and the repairing had been carried out by its officers. We fail to understand as under what circumstances, the regular inquiry had been conducted without examining the complainant Smt. Uma Devi Verma and Shri Moajjam Kazi and why an opportunity to cross-examine them had not been given to the petitioner as is the mandatory requirement under the Rules 1997. It was not a charge of misappropriation or embezzlement by the petitioner by submitting bogus bills etc. involving moral turpitude.

CHARGE NO.3:

The petitioner did not get the amount of auction of mining lease in respect of the stones etc. recovered from the contractors.

The charge against the petitioner was that she had misused her power by extending the period of deposit of money by the contractors/auction purchasers and by this way, her family obtained financial gain. The finding had been recorded by the Inquiry Officer relying upon large number of documents, that none of her relative got financial gains. She had extended the period by 15 days for depositing the auction money. However, the amount could be recovered at a belated stage. Therefore, she was held guilty. On this charge also, as the amount had subsequently been recovered, there could be an irregularity on the part of the petitioner for giving certain time to deposit the auction money but it was not a charge relating to any corrupt motive on her part.

CHARGE NO.4:

For the year 2002-2003, on 10.04.2002, certain auctions for mining lease has been conducted by the then Chief Executive Officer. She got the auction deferred and the Zila Panchayat suffered a financial loss.

The petitioner submitted the explanation that the issue had already been considered by the State Government earlier and she had been warned. The Inquiry Officer accepted her explanation and observed that such a charge could not be levelled again. The State Government on this issue recorded the following finding:-

"That the Inquiry Officer has found the charge proved and the State Government fully agree with the findings recorded by the Inquiry Officer."

Admittedly, there was no such finding by the Inquiry Officer and applying the doctrine of 'double jeopardy', the issue could not have been considered. In case the State Government did not agree with the finding of the Inquiry Officer, no such finding could be recorded nor such an observation could be made without furnishing a show cause notice to the petitioner. This finding has been recorded by the State Government in violation of the mandate of law and in flagrant violation of principles of natural justice or it is a case of non-application of mind as when the Statute provides for imposing such a severe punishment, the State Government should have considered the matter seriously.

CHARGE NO.5:

This charge was in respect of extension of time to deposit a sum in respect of an auction held on 30.09.2004 and as the money could not be recovered in time, the Zila Panchayat suffered a loss.

The petitioner submitted an explanation that in view of the provisions of Section 78 of the 1961 Act, it was the responsibility of the Executive Officer to make the recovery and the petitioner was, by no means, concerned with the recovery and no order had ever been passed restraining any officer to make the said recovery. The Inquiry Officer recorded the finding on this issue as under:-

"Prima-facie, the charge stands proved against the Chairperson. She had extended time to deposit the money unauthorisedly. However, it was correct that she alone could not be held responsible for non recovery of the amount."

The State Government agreed with the findings recorded by the Inquiry Officer. As the charge had been found proved by the Inquiry Officer taking a prima-facie view of the case, the Inquiry Officer was not aware as to whether he was holding a preliminary inquiry or a regular inquiry. The State Government did not even consider as to whether it was appropriate for the Inquiry Officer to record such a finding on the basis of prima-facie view of the matter. Such an apathy and indifferent attitude on the part of the authorities is not worth acceptable and it appears that neither the Inquiry Officer nor the State Government had taken the inquiry seriously. More so, it cannot be held to be a loss in strict legal sense as the amount is always recoverable with interest. Loss means something which is irrecoverable and as such the very use of word ''loss' by the respondent authorities is absolutely misplaced inasmuch as the amount which was due in respect of the auction of teh-bazari is recoverable under the Act and the Rules framed for the said purpose and as such it cannot be described as a loss, as suggested by the respondents.

CHARGE NO.8:

This charge related to purchase of a new Ambassador Car without disposal of the old car and, thus, the petitioner violated the orders issued by the State Government from time to time.

The petitioner had submitted the explanation that the old car was not roadworthy and it was necessary to purchase the new car for which permission was accorded from the Principal Secretary of the department. Permission was sought for disposal of the old car but no response was given by the department and for non-disposal of the old car, the Executive Officer was responsible. The Inquiry Officer did not give any reason for recording the finding against the petitioner. The findings read as under:-

"I have considered the evidence. The charge stands proved against the Adhyaksha from the files examined by me. Explanation furnished by her is contrary to the records."

The finding has been recorded by both the authorities is without furnishing any reason and without even considering the explanation furnished by the petitioner. The Inquiry Officer was supposed to give the details of what he had seen in the files and why the explanation furnished by the petitioner was not acceptable. Such a finding cannot be sustained in the eyes of law. The State Government did not apply its own mind and affirmed the same. It clearly shows non-applicant of mind.

CHARGE NO.10:

This charge related to spending a huge amount in the repairing of the vehicle without prior sanction of the Competent Authority.

The petitioner submitted the explanation that she had never been apprised of any Government Order and if there was any fault, it had been committed by the other officers and she could not be held responsible for the same.

The Inquiry Officer accepted her explanation to the extent that she had not been apprised of the Government Order issued from time to time in this regard but in spite of that she was not supposed to spend such an amount without getting the amount sanctioned in advance and the charge was proved partly against the petitioner. The State Government agreed with the finding recorded by the Inquiry Officer. If her explanation had been accepted to the extent that she had not been apprised of any Government Order or Circular in this regard and the subordinate staff was responsible for this, there was no occasion either for the Inquiry Officer or for the State Government to hold her guilty merely on the ground that even if she had not been apprised of any Government Order or Circular, she should not have spent a huge amount on repairing of the car.

CHARGE NO.15:

This charge related to regular decline in the amount of auction of teh-bazari contract each year and, therefore, the Zila Panchayat had suffered a loss.

The petitioner submitted the explanation that a large number of sites used for parking etc. had been utilised for different purposes and so the fall in auction money in this regard was natural. However, in the year 2003-2004, there had been increase in the income of the Zila Panchayat in this regard also.

The Inquiry Officer accepted the explanation furnished by the petitioner that the Zila Panchayat could not get the Teh-bazari collection as large number of sites ceased to remain so. However, the charge was proved to the extent that there was a decline in the auction amount. This decline was based on changed circumstances. Therefore, for the decline of the amount of teh-bazari, the petitioner could not be held responsible partly or fully and there was no occasion either for the Inquiry Officer or for the State Government to hold that the charge stood proved against the petitioner even partly. The charge has been found to be proved against the petitioner in view of the prima facie opinion formed by the Inquiry Officer. Such an opinion is permissible to be formed only in the preliminary inquiry and not in the regular inquiry. Therefore, such a finding is not worth taking note of.

CHARGES NO. 28, 34 AND 38:

These charges are identical in nature. All the three charges related to irregularity in granting contract for construction of the roads by dividing the roads into several parts as it was not within her competence to grant the contract for a length of the road.

The petitioner furnished the explanation that the Government had sanctioned the amount of first instalment for construction of the roads and there was no irregularity in executing the said contracts and even if there was any illegality/irregularity, the responsibility was that of the Chief Executive Officer, Junior Engineer and other technical staff.

The Inquiry Officer as well as the State Government accepted the explanation of the petitioner that for this, the said staff were also responsible. However, the charge stood proved partly against the petitioner in all the three cases.

Be that as it may, these charges were not of grave nature and there was no whisper of any misappropriation/embezzlement of any amount, whatsoever, on her part.

CHARGE NO.40:

This charge related to cleaning of Hema Pond by spending an amount of Rs.1,51,618/-.

The petitioner submitted her explanation that if there was some irregularity in executing the said work, the subordinate staff was responsible as she had issued clear-cut instructions to maintain the quality and to execute the contract as per the specifications.

The Inquiry Officer accepted the explanation furnished by the petitioner. However, she could not be exonerated completely as in one of the cases, she had granted the sanction. In such a case, at the most, the petitioner could be held responsible for supervisory negligence.

Regular inquiry had been conducted by the Divisional Commissioner without examining any person and permitting the petitioner to cross-examine them and nor the petitioner had ever been intimated of any date fixed for the purpose of holding the inquiry and nor any inquiry had ever been held in presence of the petitioner. Shri Kazmi could not satisfy us as to how the inquiry could be held in such a manner on such charges when such a severe punishment could be imposed. The complaint had not been examined at all. Her complaint was itself not maintainable. There had been no attempt even to find out as to whether the complainant owned the complaint.

CONCLUSIONS:

Thus, in view of above, it can be held that none of charges related to any kind of fraud, misrepresentation, misappropriate or embezzlement or involving moral turpitude was levelled against the petitioner. Most of the charges have been held to have been proved without any justification. Even the regular inquiry has not been conducted in the manner prescribed in the Rules, no witness had ever been examined nor there was any opportunity for the petitioner to cross-examine such a witness. The procedure adopted for holding the regular inquiry remained far from satisfactory. Even the State Government did not apply its mind to the findings recorded by the Inquiry Officer.

In view of the above, we reach the following inescapable conclusions:-

i.The complainant herself had lost election against the petitioner for the post.

ii.In a complaint of few lines, the complainant had highlighted twice that the Adhyaksha belonged to B.J.P.

iii.The complaint filed by Smt. Uma Devi Yadav was not in the manner prescribed under 1997 Rules. It did not contain any precise specific allegation against the petitioner. No particular instance had been given wherein the petitioner had been involved in corruption. The application was undated what to talk of verification. The application had not been sent to the Statutory Authority rather sent to the Chief Minister of Uttar Pradesh.

iv.There was no annexure annexed to the complaint but it made a reference to the annexure.

v.The affidavit filed in support of the complaint was in 10 pages. Only the first page was typed on the stamp paper and the remaining 9 pages were typed on plain papers. The complainant had put her signature only on the first and last pages. Remaining 8 pages of the affidavit had not been signed by the complainant. Therefore, no sanctity could be attached to such an affidavit.

vi.The affidavit had been verified mentioning that the contents of paragraphs 1 to 11 were true to her personal knowledge. The affidavit running into 10 pages contains serious allegations of facts and details of which cannot be presumed to be known by any person personally. Therefore, the verification of the affidavit was unbelievable.

vii.The information of the details given in the said affidavit could be received by a person from various records and authorities. No such disclosure has been made. The affidavit itself has been in contravention of the 1997 Rules.

viii.The complaint was not filed by Smt Uma Devi Yadav in triplicate as required under Rule 3 (4) of the 1997 Rules. The complaint could not be entertained in view of the provisions of Rule 3(5). The provision is analogous to Order 7, Rule 11 CPC, which provides that if the plaint is not filed in duplicate as required under Order 4 Rule 1 CPC, the plaint is to be rejected.

ix.As the complaint itself was not in accordance with Rules, in view of Clause 5 of Rule 3 of the 1997 Rules the Government could not proceed with the preliminary inquiry.

x.The preliminary inquiry had not been conducted, as explained above, by the designated authority. It had been directed to be conducted by a Committee of four-officers and, therefore, it did not meet the requirement of 1997 Rules. In spite of our persistent demand, the preparatory work prepared by the four-officers Committee had not been produced before us. Therefore, inference has to be drawn that the report prepared by the said Committee had been signed and submitted by the District Magistrate without himself holding the inquiry.

xi.The petitioner in spite of making large number of requests/representations, had not been furnished the documents to defend herself.

xii.As there was nothing, in law, before the State Government to form an opinion as to whether a regular inquiry was to be conducted, initiation of the regular inquiry was not permissible.

xiii.Most of the charges had not been framed precisely and specifically and some of them were rather vague.

xiv.Even the regular inquiry, though initiated illegally, had not been conducted in accordance with law. No person had been examined, cross-examined or re-examined in support of the charges.

xv.The Inquiry Officer did not maintain any order sheet, so it could not be examined as in what manner the inquiry had proceeded. Only one letter dated 8th December, 2004 had been sent to the petitioner to participate in the inquiry on 16th December, 2004. Subsequent thereto, there is no communication either to the petitioner or complainant or any other witness on record to appear before him for the purpose of conclusion of the inquiry and the inquiry report has subsequently been submitted admittedly on the basis of the documents before him.

xvi.Clause 6 of Rule 6 of 1997 Rules mandatorily provides for examination of the complainant but what to talk of examination of the complainant not a single person has been examined.

xvii.Before recording the finding of facts, clause 15 of Rule 6 of 1997 Rules mandatorily provided that before closing the inquiry, the Inquiry Officer may generally question the delinquent on the circumstances appearing against him in the evidence for the purpose of enabling him to explain such a circumstance. This provision is analogous to Section 313 of the Code of Criminal Procedure 1973 and there has been no compliance to this requirement.

xviii.In order to prove all the charges, a very heavy reliance had been placed by the Inquiry Officer on documents consisting of two complaints made by Smt. Uma Devi Yadav and Kazi Moajjam, preliminary inquiry report and the audit reports. None of these documents was proved by any person. Undoubtedly, the technical rules of Evidence Act, C.P.C. etc. are not be relied upon in a domestic inquiry except to the extent provided for in the Rules but it was necessary as none of the complainants had been examined in the inquiry.

xix.Some of charges had been found proved by the Inquiry Officer only on the basis of prima facie opinion. The rules require recording of final opinion and a person guilty cannot be held to be guilty on the basis of prima facie opinion. It appears that the officer conducting the final inquiry was not even aware of the provisions under which he was proceeding to record findings in respect of the charges.

xx.In respect of charge no.1, where the allegations had been that the petitioner had not been frugal in using the public funds for repairing her residential accommodation, the finding had been recorded that she had spent a huge amount on the construction of the houses for the employees of the Zila Panchayat. There is no coherence between the charge levelled and the findings recorded which leaves no room for doubt that there is a complete non-application of mind and the officer appears to have no idea of what he was adjudicating upon.

xxi.After submission of the report, the State Government sought clarification from the Inquiry Officer at least in respect of four charges, as to how the finding of guilt could be recorded. Thus, it is abundantly clear that the regular inquiry was not made in accordance with law even in the opinion of the State Government.

xxii.The State Government did not consider the matter in its correct perspective. In charge no.4, where the finding had been recorded by the Inquiry Officer that it was a case of double jeopardy as it had already been dealt with, the Government found the charge proved. It was not permissible for the State Government to record such a finding.

xxiii.In respect of charge no. 5, finding has wrongly been recorded that the Zila Panchayat suffered a loss, as the amount is always recoverable with interest under the law. Thus, it is a perverse finding.

xxiv.In respect of charge no.8, no reason had been recorded by the Inquiry Officer for recording the finding of guilt. Thus, the finding stood vitiated for absence of reasons.

xxv.The State Government did not agree with the findings recorded by the Inquiry Officer in some of the cases and recorded its own finding without giving any reason, whatsoever. Such a course was not permissible.

xxvi.In case the State Government did not agree with the findings recorded by the Inquiry Officer, the petitioner was entitled at least to a show cause and no finding could have been recorded in violation of principles of natural justice inasmuch as admittedly no such opportunity was given to the petitioner as is evident from the records.

xxvii.The petitioner had been deprived of her financial and administrative powers by passing an order and the power had been conferred upon a three-member Committee and one of them had been the complainant herself which reflects mala fides in action.

xxviii.The Act provides only for one punishment and that is removal followed by disqualification for a period of three years to contest election. Therefore, the authorities were supposed to act keeping in mind all possible safeguards provided under the Rules. The State Government miserably failed to do so.

xxix.The Authority failed to exercise their power fairly and the proceedings have been executed in flagrant violation of the 1997 Rules.

xxx.Provisions of Rule 3 of the 1997 Rules are mandatory and non-compliance of any of the clauses have rendered the subsequent proceedings invalid and without jurisdiction.

xxxi.Nobody has tried to find out as to whether the complaint had ever been sent by Smt. Uma Devi Yadav. The genuineness of the complaint itself had not been examined.

xxxii.Every authority, including the preliminary as well as regular inquiry, had placed a very heavy reliance upon the complaint sent by Smt Uma Devi Yadav, the genuineness of which had never been ascertained by any one.

xxxiii.The order impugned stands vitiated as the petitioner had not been furnished the copy of the so called inquiry report by the State Government and no opportunity had been given to her to furnish her explanation.

xxxiv.As per the scheme of the 1997 Rules, it is the State Government which has to prove the charges by leading evidence against the office bearer, sought to be removed, and by no stretch of imagination it can be presumed that such an office bearer has to prove his innocence.

xxxv.Neither Mr. Shashi Nandan nor Mr. Kazmi could satisfy us on the basis of records that there had been substantial compliance of the 1997 Rules, what to talk of its strict compliance.

xxxvi.It can very easily be inferred that the manner in which the inquiry has been conducted, the procedure provided in law has been flagrantly violated.

xxxvii.The State Government while initiating the preliminary inquiry, the designated authority, while holding preliminary inquiry, the State Government while passing the order for holding the regular inquiry, the inquiry officer, while holding the inquiry, and the State Government while passing the order of removal had adopted a very casual approach in the matter. None of them had ever applied their mind to the matter. Thus, the order can safely be characterised as having been passed in a mala fide manner.

SUGGESTIONS:

Before parting with the case, it may be pertinent to mention here that Section 29 (3) of the 1961 Act provides only for one punishment and that is removal from the post with further disqualification for a period of three years for contesting the election for the post. No other punishment has been provided, even if the delinquency is not of such a grave nature which may warrant removal and consequential disqualification upon a person duly elected in a democratic set up of Government having a constitutional status. On the contrary, under Section 48 (2-A) of the U.P. Municipalities Act, 1916, major as well as minor punishments have been provided by the Legislature and we fail to understand as under what circumstances, the Legislature in its wisdom did not consider it proper to provide a similar pattern of punishment under Section 29 of the 1961 Act. In a given case, where the misconduct is not of a grave nature, imposing the penalty under Section 29 (3) of the 1961 Act of removal may be disproportionate and attract the provisions of Article 14 of the Constitution of India as in such a case the punishment so awarded would not only be disproportionate to the misconduct but also arbitrary and unreasonable. Therefore, it is desirable that the State Government may consider the issue by providing other punishments proportionate to the delinquency committed by an elected office bearer by making suitable amendments in the 1961 Act.

The question of disqualification for further contesting the election is provided under the Representation of the People Act (hereinafter called the '1951 Act'), provided the election petition was based on the ground of corrupt practices under Section 123 of the 1951 Act, and not in any other case. In that case, the standard of proof also is much higher than in case of other grounds for the election petition. Under the 1961 Act, there is no such distinction and this issue requires the attention of the legislature.

However, it is worth appreciating that the State Government has framed the 1997 Rules for the purpose of holding the inquiry against the Adhyaksha and Upadhyaksha. Such Rules are also required for conducting inquiries against elected members and office bearers of other local bodies including Municipalities and Municipal Corporations. Such guidelines have been introduced by a Government Order dated 4.2.2003 issued by the State Government for that purpose. However, we find that in spite of these extensive statutory rules, authorities have miserably failed to live up to these objectives, even though they have been reminded to adhere to objectivity in such matters. Even before the Parliament had framed The Right to Information Act 2002 which has now been replaced by the Central Act No. 22 of 2005, the U.P. Government had framed a Code in the shape of guidelines known as the Uttar Pradesh Code of Practice on Access to Information Act, 2000. All Government Departments including local bodies are enjoined with the obligation to provide information to an individual including access to all such material to ensure a sound and efficient administrative system. Clause 2 of the Code provides its aims to improve the democratic process by extending access to the records which provide the basis for the consideration of proposed policy; Clause 3 (v) thereof provides to release, in response to specific requests, information relating to their policies, actions and decisions and other matters related to their areas of responsibility. Clause 5 of the Code provides for respons to request for information. Clause 6 provides that the Code applies to every departments of the Government of Uttar Pradesh Organisations and offices such ad Public Sector Undertakings, Local Bodies etc.

Thus, the authorities in order to ensure these principles are to be guided by them. They are facets of the principles of natural justice which also deserve to be given the shape of legislation. The State Government may also explore the feasibility of including such provisions in view of the need that is desirable to ensure effective adjudication in such matters for holding the inquiry against the elected office bearers in other cases like Municipalities etc.

ORDER:

In view of the above, as we are of the considered opinion that all the proceedings initiated against the petitioner had been in contravention of the Statutory Rules, the petition deserves to be allowed and the order impugned dated 30th July, 2005 (Annex. 15) is liable to be quashed.

The petition, therefore, succeeds and is allowed with cost of Rs.5000/-. The order impugned dated 30th July, 2005 (Annex. 15) is hereby quashed. The respondents are directed to forthwith restore the petitioner to the post of Adhyaksha, Zila Panchayat, Allahabad.

18.8.2005

AKSI/SB/AHA