Hon'ble Ritu Raj Awasthi,J.
Heard Sri S.P. Shukla, learned counsel for the petitioner and Sri Alok Sinha, learned Standing Counsel for the respondents.
The petitioner, who is a duly elected Adhyaksha of Nagar Palika Parishad, Sultanpur, challenges the show cause notice dated 19.7.2010 issued by the State Government requiring him to furnish reply to the charges mentioned therein and at the same time ceasing his administrative and financial powers.
On 18.06.2010 an office order was issued, a copy of which was said to have been given to the petitioner also, mentioning therein that on a complaint made, vide letter dated 19.09.2009, by Dr. Om Prakash Tripathi, member of the Legislative Council, against Junior Engineer Shri Shyam Lal Verma, in the matter of construction of C.C. Road wherein fictitious payment has been shown, an enquiry was got conducted by the State Government, wherein the Junior Engineer/Assistant Engineer/Executive Officer along with the petitioner as Adhyaksha, Nagar Palika Parishad, Sultanpur, have been found guilty. A copy of the report of the Technical Audit Cell was furnished to the petitioner and he was requested to furnish his reply within a week to the District Magistrate, Sultanpur and if he failed to submit his reply within the time given, then it would be presumed that he had nothing to say in the matter.
The petitioner sent a letter in response on 05.07.2010, wherein he specifically denied the charges of his involvement in the construction of the C.C. Road and payment made in respect thereof. He also explained that the work on the spot was to be conducted under the supervision of Junior Engineer, who was to maintain the measurement book etc. and that for any loss accrued to the State Government, Junior Engineer, Shri Shyam Lal Verma is liable.
In the absence of the relevant documents, petitioner submitted his reply denying the charges levelled against him, whereby he also prayed for giving the documents for furnishing a detailed reply.
The impugned show cause notice was issued on 19th July, 2010 on the presumption that the petitioner has not furnished any reply to the office order dated 18.6.2010, so far.
Learned counsel for the State Sri Alok Sinha, could not satisfy the Court that when the reply dated 05.07.2010 was already sent and received by the State Government, even then why the averment has been made in the impugned order that no reply was furnished by the petitioner.
The petitioner had asked for documents for submitting a detailed reply and in absence of demanded documents, he had submitted his reply dated 5.7.2010 wherein he has denied the charges and explained about his role and also the role of the Junior Engineer in the matter of complaint made by the Member of Legislative Council and therefore, it was incumbent upon the State Government to consider the said reply before passing any order or issuing any show cause notice. The impugned order, therefore, ceasing the administrative and financial powers of the petitioner and the issuance of the show cause notice under Section 48(2) of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as the Act), thus, can not be sustained on this ground alone.
However, considering the merits of the claim of the parties, we find that there is nothing on record nor was there any material worth the name with the State Government to satisfy itself that the Adhyaksha has committed irregularities and illegalities in the performance of his duties and /or had abused his powers, which resulted in any financial advantage or monetary benefit to him or any member of his family, so as to issue notice under Section 48(2) of the Act and cease the administrative and financial powers.
Needless to say that each and every aberration in the exercise of power by Adhyaksha can not be a ground for his removal, he being an elected office bearer. The control of the State Government apparently for taking action under Section 48 of the Act would not make an elected officer bearer subordinate to the State Government like any administrative officer. The restrictions imposed therein, for taking such actions are clear and loud in the aforesaid provision.
The Technical Audit Cell has found that the Junior Engineer/ Assistant Engineer as well as Executive Officer were guilty of manipulation and camouflaging the record, in the matter of payment towards the construction of C.C. Road out of the MLAs fund and at the same time also implicated the petitioner (as Adhyaksha) without mentioning as to how he was responsible and what role he played in the construction of C.C. Road and in the matter of payment thereof or camouflaging the records.
It remains unexplained by the learned counsel for the respondents that when the TAC had found nothing against the petitioner in the matter of construction of C.C. Road, then what was the occasion for the TAC to name him alongwith officers of Nagar Palika Parishad in the matter.
Moreover, the State Government did not take into consideration the reply submitted by the petitioner wherein he has explicitly stated that clearance for making the payment was given by the A.D.M. himself after getting the reports and therefore unless there was anything further, which could be attributed to the petitioner, his implication was totally arbitrary and without any basis. The payment having been made after clearance being given by the Additional District Magistrate, the petitioner can not be subjected to removal from office on such an allegation.
We take notice of the argument of the learned counsel for the petitioner that the main players as per the complaint of Member of Legislative Council and also as per the report of Technical Audit Cell were the Junior Engineer, Assistant Engineer and Executive Officer of the Nagar Palika Parishad' who were found guilty of the charges but as informed, no action has been taken against them but for the Junior Engineer, who has been only chargesheeted and they are enjoying their offices in the Nagar Palika Parishad, Sultanpur.
Learned counsel for the State, however, tried to justify the action or so to say, the inaction, by saying that the appointing authority of the Assistant Engineer is the State Government, therefore, the matter should have been referred to the State Government for taking action.
The State Government was vigilant enough in taking immediate action against the Adhyaksha but has not been able to take action against Assistant Engineer, Nagar Palika Parishad though it was in the knowledge of the State Government that all these persons were found guilty in the matter of construction of C.C. Road.
Be that as it may, an elected office bearer (Adhyaksha ) Nagar Palika Parishad, cannot be subjected to removal unless his actions fall within the mischief of any clause of Section 48 (2) of the Act and his powers both administrative and financial can not be ceased lest a case is made out against him.
The scope and import of Section 48 (2) read with proviso came up for consideration before this Court, in a couple of cases, wherein the Court has held that there has to be some material to prima facie establish that the Adhyaksha has misused his position or so to say, abused his powers or has derived undue advantage either monetary or otherwise for him or any member of his family or that he is found guilty of financial irregularity, resulting into loss to the Nagar Palika Parishad, on the basis of which the administrative and financial powers of an Adhyaksha can be ceased.
The petitioner in support of his submission, places reliance upon a decision of a Division Bench this Court in Writ Petition No; 10968 (MB) of 2008, in re:- Shyam Sunder Upadhyay vs. State of U.P. and others, in which one of us (Pradeep Kant, J) was a member, decided on 6.4.09, in which the Court observed as under:
"(2) Some technical irregularity or some oversight or minor deviations in the functioning of the Nagar Palika Parishad, which does not effect its smooth functioning nor cause any financial loss or any financial irregularity nor is violation of any statutory provisions or bye-laws nor the action taken is for the undue gain of the Adhyaksha or members of his family i.e. to say, unless the conduct of the Adhyaksha is abuse of his powers, the action under Section 48(2) cannot be taken."
Special Leave Petition against the judgement has been dismissed as informed by the parties' counsel.
The learned counsel for the petitioner has also relied upon a judgement and order passed by this Court in the Writ Petition No.8143(MB) of 2008, in re Anil Kumar Agarwal Vs. State of U.P. and others, in which one of us (Pradeep Kant,J) was a member when this Court has held:
"In a case where charges are framed on the basis of a complaint and if those charges fall within the category of misconduct or irregularity as given in sub section (b) of section 48(2), and are found prima facie proved, it would hardly be of any consequence as to whether a complaint was motivated or politically designed by a person belonging to a particular ruling party or there was some animosity between the complainant and the Adhyaksha.
The office of Adhyaksha has to be given due protection and that for this reason, the proviso attached to sub section 2(b) of section 48 itself says that the State Government must have 'reason to believe' that the allegations are not 'groundless' and that the Adhyaksha is found to be 'prima-facie guilty' only then regular enquiry would be ordered and a show cause notice would be issued and on issuance of such notice, the financial and administrative power of the Adhyaksha can be ceased.
Ceasing of financial and administrative power means virtually denuding the Adhyaksha of all his powers which technically may not be, removal from the office but certainly makes the Adhyaksha non-functional. The Adhyaksha during all the period till he is exonerated, has no say in the functioning of the Panchayat but for his status and perquisites attached to the office, he does not have any role to play in the functioning of the Panchayat. Such a drastic action naturally has to be taken strictly in accordance with law and not on the whims and caprice of the interested persons who may be holding power or otherwise, may be influential."
In the case of Sharada Kailash Mittal Vs State of Madhya Pradesh reported in 2010 (2) SCC 319, the Apex Court held that the provision of removal of a President or Vice President of a municipality has to be strictly construed because holder of office occupies it by election and is deprived of the same by an executive order in which electorate has no chance of participation.
The Apex Court further held that there are no sufficient guidelines in the provisions of Section 41-A as to the manner in which the power has to be exercised, except that it requires that reasonable opportunity of hearing has to be afforded to the office bearer proceeded against.
Keeping in view the nature of the power and the consequences that flows on its exercise it has to be held that such power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post. The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of the office by an executive order in which the electorate has no chance of participation.
Under Section 48 (2) of the Municipalities Act also, the consequence of a charge being proved which falls within the ambit and scope of Sub-clause (2) of Section 48 is removal of an elected Adhyaksha from his office by an executive order. The power of the State Government, thus, has to be restricted and cannot be given a liberal interpretation.
The constitutional mandate is that the Adhyaksha should continue to hold the office for a period of 5 years unless, of course, he is removed by a no confidence motion or is removed under the aforesaid provision.
To function for normal tenure is not only a statutory right of the elected Adhyaksha, but rather a constitutional mandate and this tenure of an Elected Adhyakhsa cannot be reduced unless he abuses his powers persistently, or causes financial loss to the Nagar Palika Parishad or makes undue gain for him or for his family members or commits any such irregularity or illegality, which can well be brought within the scope of Section 48(7). If an Adhyaksha has indulged in such gross irregularities or illegalities he would have no right to stay in the office and would be rightly removed by passing a no confidence motion or by an order of the State Government but the power of the State Government cannot be exercised arbitrarily. Political design and motivation cannot be ruled out when a complaint is made against an elected Adhyaksha and therefore, the Court has to be very careful in judging the merit of an order of removal or an order passed against an elected Adhyaksha, ceasing his administrative and financial powers.
In the case of Tarlochan Dev Sharma v. State of Punjab and Ors. (2001) 6 SCC 260, the Apex Court while dealing with the removal of a President of the Council under Punjab Municipal Act of 1911, held in Paragraph 6 as under:
"In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his elections set aside by a prescribed procedure known to law... Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office a stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held."
In Paragraph 11 the Apex Court observed as under:
"A singular or causal aberration or failure in exercise of power is not enough ; a course of conduct or plurality of aberration or failure in exercise of power and that too involving, dishonesty of intention is... The legislature could not have intended the occupant of an elective office, seated by popular verdict, to be shown exit for a single innocuous action or error of decision."
In the case in hand, there is no allegation, even in the proved charge, that the petitioner was at all involved in the construction of C.C. Road or that he was having knowledge of the payment made by using white fluid in the records as it was the handiwork of the officers of the Nagar Palika Parishad though overall supervision may be of the Adhyaksha.
Another plea has been raised by Sri Alok Sinha, that the impugned order is only a show cause notice, therefore, he may submit his reply and if the State Government finds itself satisfied by the reply, his both administrative and financial powers would be restored and the notice would be withdrawn.
Argument of Sri Alok Sinha, misses the fact that it is not only a show cause notice for holding a formal enquiry but it is also an order, by virtue of which, both, administrative and financial powers of the Adhyaksha stand ceased. Once the administrative and financial powers of an Adhyaksha are ceased then he would only be an Adhyaksha for name sake. An order of ceasing the powers of the Adhyaksha can not be passed in a manner which is not known to law. By an arbitrary decision, the statutory powers, which have been given to a constitutional office bearer, can not be taken or snatched away under the garb of a show cause notice.
We are of the considered opinion that the impugned show cause notice and the orders dated 18.6.2010 and 19.7.2010 can not be sustained for the reasons aforesaid, which are hereby quashed. The petitioner shall be allowed to discharge his powers both, financial and administrative, forthwith.
The writ petition is allowed. No orders as to costs.
Order Date :- 20.10.2010 Prajapati/Adhir