JUDGMENT Anjani Kumar and Rakesh Sharma, JJ.
1. Heard Sri Shailendra, learned Counsel appearing on behalf of the petitioner, learned Standing Counsel for respondents No. 1, 2, 3, 4 and 6, Sri Ranjan Srivastava for respondent No. 5 and Sri U.K. Saxena, learned Counsel for respondent No. 7.
2. The petitioner, who is the President of Nagar Palika Parishad, Ahraura, district Mirzapur, which is a Municipal 3oard constituted under the Uttar Pradesh Municipalities Act, 1916 (In short "Act of 1916"), approached this Court by means of present writ petition under Article 226 of the Constitution of India seeking prayer to quash the order dated 19th December, 2007, a copy whereof is annexed as Annexure-'20' to the writ petition, whereby the State government in purporting exercise of power under Sub-section (2) of Section 48 of 'Act of 1916' has passed the order ceasing the financial and administrative power of the petitioner, pending enquiry in the matters of charges levelled against the petitioner.
3. Learned Counsel for the petitioner submits that proviso to Section 48(2) of 'Act of 1916', which is reproduced below, contemplates a preliminary enquiry before passing of the order of seizure of the financial power and since no enquiry, what to say preliminary enquiry has been conducted to the knowledge of the petitioner the order, whereby the financial power has been ceased, impugned in this writ petition deserves to quashed by this Court.
48. Removal of President. (1) (2) Where the state Government has, at any time, reason to believe that-
(a) there has been a failure on the part ot the President in performing his duties, or
(b) the President has-
(i) incurred any of the disqualifications mentioned in Sections 12-D and 43-AA; or
(ii) within the meaning of Section 82 knowingly acquired or continued to have, directly or indirectly or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with, by or on behalf of the [Municipality]; or
(iii) knowingly acted as a President or as a member in a matter other than a matter referred to in Clauses (a) to (g) of Sub-section (2) of Section 32, in which he has, directly or indirectly, or by a partner, any share or interest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person; or
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv) (xvi) (xvii) It may call upon him to show cause within the time to ho specified in the notice why he should not be removed from office.
Provided that where the State Government has reason to believe that the allegations do not appear to be groundless and the President is prima facie guilty on any of the grounds of this sub-section resulting in the issuance of the show-cause notice and proceedings under this sub-section he shall, from the date of issuance of the show-cause notice containing charges, cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President until he is exonerated of the charges mentioned in the show-cause notice issued to him under this sub-section and finalization of the proceedings under Sub-section (2-A) and the said powers, functions and duties of the President during the period of such ceasing, shall be exercised, performed and discharged by the District Magistrate or an officer nominated by him not below the rank of Deputy Collector.
4. The Scheme of Section 48 of 'Act of 1916' clearly demonstrate that an elected President of the Municipal Board can be removed from his office on the specified charges contemplated under Sub-section (2) of Section 48 of 'Act of 1916'. The concluding portion of Sub-section (2) of Section 48 of 'Act of 1916' reads as under:
(i) (II) ...it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office.
From the Scheme of Section 48 of 'Act of 1916', holder of the office of President in case any proceeding for removal is initiated against the President, then he is entitled to an opportunity before an order of removal is passed. The proviso to Sub-section (2) of Section 48 of 'Act of 1916', which has been brought in by subsequent amendment in the year 2004 in our opinion has been brought in as an interim arrangement during the pendency of the proceedings for removal of the President. A bare reading of proviso clearly demonstrates that the proviso does not contemplate any enquiry, much less a preliminary enquiry as suggested by learned Counsel appearing on behalf of the petitioner before passing of the order of seizure of financial and administrative power. The phrase used by the legislature "... where the Slate Government has reason to believe that the allegations do not appear to be groundless and the President is prima facie guilty of any of the grounds of this Sub-section (2) of Section 48, resulting in the issuance of the show-cause notice and proceedings under this sub-section he shall...."
5. The aforesaid Scheme clearly demonstrates that powers under the proviso is only an interim arrangement pending finalization of the proceedings It is not disputed that by the impugned order-proceedings have been initiated against the petitioner as contemplated under Section 48(2) of 'Act of 1916'. The further reading of proviso clearly demonstrates that once a proceedings have been initiated under Sub-section (2) of Section 48, the consequences are namely, seizure of financial and administrative power.
6. The Apex Court in the case S. Sundaram Pillai etc. v. R. Pattabiraman, in paragraph 42 has held, which reads thus:
42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:
(1) qualifying or excepting certain provisions from the main enactment.
(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and (4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.
7. The view that we are taking finds support from the aforesaid law laid down by the Apex Court.
8. Learned Counsel appearing on behalf of the petitioner relied upon a Division Bench decision of this Court reported in (2003) 3 U.P.L.B.E.C. 2587 Mukesh Rajput v. State of U.P. and Ors. The Division Bench of this Court while dealing with the provisions of Section 29 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 has held that " ...the State Government can remove an Adhyaksha if in an enquiry he is found guilty of misconduct in the discharge of his duties." We do not find any such provision in the present proviso, which is the subject matter of challenge in the present writ petition. In this view of the matter, the case relied upon by learned Counsel for the petitioner i.e. the case of Mukesh Rajput is different than the facts of present case. In our opinion, since the enquiry has been initiated under Sub-section (2) of Section 48 of 'Act of 1916', as we have held above, the consequences are namely, seizure of financial and administrative power.
9. In this view of the matter, we do not find any force in this writ petition. It is accordingly dismissed. However, in the facts and circumstances of the case and in view of the apprehension of learned Counsel for the petitioner that the enquiry may not be finally concluded during the term of the petitioner, we direct the respondents concerned to conclude the enquiry initiated against the petitioner expeditiously, preferably within a period of three months' from the date of presentation of a certified copy of this order before it.