JUDGMENT V.M. Sahai and Tarun Agarwala, JJ.
1. We have heard Sri H.R. Misra, the learned Counsel for the petitioner, the learned Chief Standing Counsel appearing for respondent Nos. 1 and 2 and Sri Ravi Kiran Jain, Senior Advocate assisted by Sri Sanjay Sharma appearing for the respondent No. 4.
2. On 1.10.2004, we had directed the learned Chief Standing Counsel to produce the record. The record have been produced today alongwith the order dated 1.10.2004 passed by the Principal Secretary Panchayati Raj, U.P. Government, Lucknow. Shri C.B. Yadav, the learned Chief Standing Counsel has placed the order dated 1.10.2004 which is taken on record.
3. Sri C.B. Yadav and the learned Counsel for the respondents submitted that the writ petition could be disposed off finally even without serving respondent Nos. 3, 5 and 6. In any case one of the members of the committee is being represented by Sri Ravi Kiran Jain who has stated that he also does not propose to file counter affidavit and the matter can be decided finally.
4. In view of the statement made by the learned Counsel for the parties and the records produced by the Chief Standing Counsel, we have proceeded with the matter for final disposal.
5. The petitioner was elected as a Chairman of Zila Panchayat, Bulandshahr on 6.8.2000. The term of the members and the Chairman is 5 years and the same is due to expire in August, 2005. Smt. Vimla Solanki, respondent No. 3 contested against the petitioner in the election of Chairman of Zila Panchayat. The respondent No. 3 filed a complaint against the petitioner before the State Government on 30.4.2003. The State Government directed the District Magistrate to hold a preliminary enquiry under Rule 4 of the U. P, Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules 1997 (hereinafter referred to as the Rules). The District Magistrate submitted a preliminary report on the basis of which a show cause notice dated 17.5.2004 was issued by the State Government to the petitioner. The petitioner submitted his reply to the show cause notice on 22.6.2004 which was sent by Speed Post. Inspite of the reply submitted by the petitioner to the show cause notice, the impugned order has been passed on 16.9.2004. In Paragraph No. 3 of the impugned order it has been stated that since the petitioner had not submitted any reply, 'therefore, an ex parte decision was taken by the respondents seizing the financial and administrative powers of the petitioner and further appointed a Committee of 3 members. Sri H.R. Misra has urged that the impugned order has been passed without considering the reply submitted by the petitioner.
6. Sri C.B. Yadav, the learned Chief Standing Counsel urged that even though the State Government had issued a show cause notice, no show cause notice or opportunity of hearing was required to be given under the proviso to sub-section (1) to Section 29 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The learned Chief Standing Counsel submitted that it was not necessary for the State Government to consider the reply of the petitioner before passing the impugned order as no such opportunity was required to be given. Therefore, it is irrelevant as to whether the petitioner had sent a reply to the show cause notice or not.
7. We were not impressed by the arguments advanced by the Chief Standing Counsel and therefore, by our order dated 1.10.2004, we had directed the Chief Standing Counsel to produce the original record in order to verify as to whether the reply of the petitioner to show cause notice was actually received by the State Government or not.
8. Today, Sri C.B. Yadav, the learned Chief Standing Counsel has produced the record and he admits that the reply of the petitioner was received in the office of the State Government on 26.6.2004, and is also on the record. He further informed the Court that the Principal Secretary, Panchayat Raj, U.P. Government has passed an order on 1.10.2004 whereby he has corrected the mistake in the impugned order. We have perused the order dated 1.10.2004 that has been placed before us. From a perusal of this order, the Principal Secretary, has tried to rectify Paragraph 3 of the impugned order to show that the reply of the petitioner was considered which was not found satisfactory. In our opinion, the order dated 1.10.2004 amounts to an interpolation in the impugned order. This is a serious matter. Once the record has been summoned by the Court, the Principal Secretary, Panchayat Raj should not have interfered in the judicial proceedings and passed an order correcting the impugned order. The action of the Principal Secretary is wholly arbitrary. We express our displeasure on the act of the Principal Secretary.
9. It is not necessary for us to dwell into the question as to whether an opportunity of hearing is required to be given under the proviso to sub-section (1) of Section 29 of the Act. Once the State Government has issued a show cause notice, it was incumbent upon the State Government to consider the reply of the petitioner before passing the impugned order. In the present case, we arc satisfied that the explanation given by the petitioner was not considered by the State Government. Further we found that no reasons have been given in the impugned order. Therefore, the impugned order is arbitrary and cannot* be maintained and deserves to be quashed on this point itself.
10. In the result, the petition succeeds and is allowed. The order dated 16.9.2004 passed by the State Government as well as the order dated 1.10.2004 passed by the State Government arc quashed. It shall be open to the respondents to pass a fresh order after considering the reply of the petitioner by a speaking and reasoned order.