Hon'ble Bharati Sapru,J.
(Delivered by Hon'ble Ashok Bhushan,J).
Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Prem Chand and Udayan Nandan for the petitioner, Shri S.G. Hasnain, Additional Advocate General for the respondents and Shri Anurag Khanna for the applicant i.e. Roop Singh who has sought impleadment in the writ petition.
By this petition, the petitioner has prayed for quashing the order dated 25/7/2011, passed by he State Government issuing show cause notice to the petitioner, the President Nagar Palika Parishad, Rampur to show cause as to why he be not removed from the office of President on the charges as mentioned in the notice issued under Section 48(2) of the U.P. Municipalities Act, 1916 hereinafter referred to as the "Act 1916". The State Government also while issuing the show cause notice directed that the charges being serious in nature the petitioner's financial and administrative powers shall remain ceased till he is exonerated from the charges.
The petitioner was elected as the President Nagar Palika Parishad, Rampur in October, 2006. Twenty Two temporary posts of drivers were created in Nagar Palika Parishad, Rampur by order dated 28/8/2006. Nagar Palika Parishad, Rampur issued an advertisement on 30/12/2006, inviting applications for appointment on 22 posts of drivers from the candidates having Driving Licence with an ability to read and write Hindi. 143 applications were received in response to the aforesaid advertisement. A Selection Committee consisting of the President (Petitioner), Executive Officer, Senior Health Officer, Executive Engineer, Assistant Tax Superintendent and Accounts Officer was constituted by the Chairman and the selection took place on 21/4/2008 and 22 persons were given appointment.
The State Government has extended the appointment of the 22 selected candidates on temporary posts which extension is up to 28/2/2012. A complaint was submitted by one Dinesh Sharma on 07/7/2008 and one by Ritu Joshi on 04/8/2008 to the office of Hon'ble The Chief Minister making allegations against the recruitment of 22 drivers. Several Corporators of the Nagar Palika Parishad also submitted complaints to the Minister, Nagar Vikas in December, 2008 on which an order was passed by the minister concerned to the Principal Secretary, Nagar Vikas to enquire into the matter and submit a report. The State Government by the letter dated 18/2/2009, wrote to the District Magistrate to submit a report on a complaint submitted by Uma Sharma, Corporator and others. Another letter dated 18/11/2009 was issued by the Special Secretary, State Government referring to complaint submitted by one Girish Chand, M.L.A. directing the District Magistrate to submit a report after giving opportunity of hearing to the petitioner and also following the procedure prescribed in the Government Order dated 04/2/2003. The District Magistrate wrote to the petitioner on 04/11/2009, to submit his explanation on the complaint submitted by the Corporators. The petitioner asked for the report and copy of the complaint which was provided to the petitioner by letter dated 13/11/2009. The petitioner was asked to submit his reply by 05/12/2009. The petitioner submitted his reply dated 05/12/2009 which was received on 07/12/2009. The District Magistrate after considering the reply of the petitioner submitted a detail report to the State Government by letter dated 09/12/2009, recommending for taking action against the President and the Executive Officer of the Municipal Board. After receiving the report of the District Magistrate, a notice has been issued on 25/7/2011 by the State Government under Section 48 (2) of the Act, 1916 with an order that the petitioner shall cease to exercise financial and administrative powers.
Learned counsel for the petitioner challenging the order dated 25/7/2011, submitted that the report of the District Magistrate dated 09/12/2009, could not have been relied by the State Government since the report has not been submitted in accordance with the procedure prescribed by the Government Order dated 04/2/2003. He submits that the Government Order dated 04/2/2003, provides for the procedure of enquiry on a complaint against the President of Nagar Palika Parishad and it states that enquiry be held only when the complaint is accompanied by an affidavit. He submits that no affidavits were filed by the complainant, hence no enquiry ought to have been taken and the report of the District Magistrate 09/12/2009, could not form any basis for issuing any show cause notice under Section 48 (2) of the Act, 1916. It is further submitted by the learned counsel for the petitioner that there was no occasion of ceasing financial and administrative powers of the petitioner after a lapse of 3 years from making appointment of 22 drivers. He submits that the appointment of 22 drivers were made in the Nagar Palika Parishad, Rampur in accordance with the Government Order dated 17/3/1952 copy of which is filed as (Annexure-9) to the writ petition and the provisions of Uttar Pradesh Procedure for Direct Recruitment for Group-C Posts (Outside the purview of Uttar Pradesh Public Service Commission) Rules, 2001 hereinafter called the "Rules,2001" are not applicable with regard to appointment of drivers to be made in the Nagar Palika Parishad. He submits that the charges levelled against the petitioner on the provisions of the aforesaid Rules, 2001 are misconceived and unfounded. He submits that the appointment of 22 drivers were made in accordance with the Government Order dated 17/3/1952 as applicable in the Municipal Board. He further submits that minor discrepancies and the mistake pointed out in the report of the District Magistrate dated 09/12/2009, are not sufficient for initiating proceedings against the petitioner under Section 48 (2) of the Act, 1916 or to cease financial and administrative powers. He submits that the report of the District Magistrate was submitted on 09/12/2009, but no action was taken till 25/7/2011, which clearly indicates that there was no urgency in the matter and at this late stage the cessation of financial and administrative powers is illegal. He further submits that it is not necessary for proceeding under Section 48 (2) of the Act, 1916 to cease financial and administrative powers of a President. He has placed reliance on a Full Bench judgment of this Court in Hafiz Ataullah Ansari Vs. State of U.P. & Ors, 2011 (3) ADJ 502.
Shri S.G. Hasnain, Additional Advocate General appearing for the respondents refuting the submission of the learned counsel for the petitioner contended that the charges levelled against the petitioner are serious in nature. The appointments of 22 drivers made in the Nagar Palika Parishad, Rampur was not made in accordance with law. He submits that although it was claimed that 143 candidates appeared, but in the attendance sheet there was signature of 34 persons only. He submits that one Shri Rashid Ali was not a candidate nor he appeared in the interview but his name was included in the select list.
Shri S.G. Hasnain, Additional Advocate General appearing for the respondents submits that the Rules, 2001 are applicable for the recruitment of drivers in the Nagar Palika Parishad and neither the selection committee was constituted properly nor any driving test was taken of the drivers and the recruitment of 22 drivers being wholly illegal, the State Government has rightly issued show cause notice to the petitioner under Section 48(2) of the Act, 1916. He submits that the cessation of administrative and financial powers are consequent to the fact that the charges against the petitioner are serious and the State Government has initiated proceedings under Section 48(2) of the Act, 1916 for the removal of the petitioner.
Shri Anurag Khanna appearing for the applicant i.e. Roop Singh submitted that the petitioner has already submitted his reply to the State Government on 11/8/2011, hence the petition has become infructuous. He further submits that there were other serious misconducts committed by the petitioner including the misconduct of financial impropriety which regard to which the District Magistrate has already sent his report to the State Government on 18/3/2010, 08/1/2010, 01/11/2010 and 06/3/2010. He submits that there being serious allegations against the petitioner, petitioner is not a fit person in whose favour this Court may exercise its discretion under Article 226 of the Constitution of India.
We have heard learned counsel for the parties and have perused the record.
The order impugned has been issued by the State Government in exercise of power issued under Section 48(2) of the Act, 1916. Section 48(2) of the Act, 1916 along with the proviso is quoted below:
"48. Removal of President.- (1) [omitted] (2) Where the State Government has, at any time, reason to believe that -
(a) there has been a failure on the part of the President in performing his duties, or
(b) the President has -
(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) being a legal practitioner acted or appeared in any suit or other proceeding on behalf of any person against the Municipality or against the State Government in respect of nazul land entrusted to the management of the municipality, or acted or appeared for or on behalf of any person against whom a criminal proceeding has been instituted by or on behalf of the municipality; or
(v) abandoned his ordinary place of residence in the municipal area concerned; or
(vi) been guilty of misconduct in the discharge of his duties; or
(vii) during the current or the last preceding term of the Municipality, acting as President or Vice- President, or as Chairman of a Committee, or as member or in any other capacity whatever, whether before or after the commencement of the Uttar Padesh Urban Local Self Government Laws (Amendment) Act, 1976 so flagrantly abused his position or so wilfully contravened any of the provisions of the Act or any rule, regulation or bye-law, or caused such loss or damage to the fund or property of the Municipality as to render him unfit to continue to be President; or
(viii) been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self Government Laws (Amendment) Act, 1976 whether as President or as Vice-President, exercising the powers of President or as Vice- President,or as member; or [(ix) caused loss or damage to any property of the Municipality; or;
[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.] The first submission of the learned counsel for the petitioner is that the report submitted by the District Magistrate not being in accordance with the Government Order 04/2/2003, said report could not have been the basis for taking any action against the petitioner. Copy of the Government Order dated 04/2/2003 is filed as Annexure-7 to the writ petition. The said Government Order has been addressed to all the Divisional Commissioners and the District Magistrates on the subject of disposal of complaints received against the Presidents and Corporators of Nagar Palika Parishad/Nagar Panchayat. The said Government Order provides that the complaints received against the said office bearers will be entertained only when the complainant had submitted his own affidavit and affidavit of those persons from whom he has obtained the information regarding the allegations and submit relevant documents. The said Government Order has been issued with an object to ward off the District Magistrate and the Divisional Commissioner to entertain frivolous complaints which were not supported by any affidavit and which have no substance. There cannot be any dispute that the District Magistrate and the Commissioner had to consider the complaints received by them as per the procedure prescribed by the Government Order dated 04/2/2003, but present is a case where the State Government has initiated proceeding under Section 48(2) of the Act, 1916 after receiving the complaints directly from the Corporators and other persons.
Section 48(2) of the Act, 1916 begins with the words "Where the State Government has, at any time, reason to believe that-."
A Division Bench of this Court in which one of us (Ashok Bhushan,J) was a member in Writ Petition No.16029/2011, Sanjeev Agarwal Vs. State of U.P. & Ors, decided on 25/8/2011, while considering the scope of Section 48(2) of the Act, 1916 has laid down following:
"Section 48 sub-section (2) of the U.P. Municipalities Act, 1916 provides, "Where the State Government has, at any time, reason to believe that ............ it may call for upon him to show cause within the time to be specified in the notice why he should not be removed from office." The power under Section 48 thus can be exercised by the State Government on its subjective satisfaction. The words "reasons to believe" clothe the State Government jurisdiction to initiate proceedings under Section 48(2). The initiation of proceedings under Section 48(2) thus can be on the basis of any material. The State Government can suo-motu under Section 48(2) take cognizance on any complaint submitted by an individual or any information received from the District Magistrate or the Divisional Commissioner or any other officer of the State. The power of the State Government to initiate proceedings under Section 48(2) is not hedged by any precondition. The letter written by the District Magistrate dated 8th June, 2009 and the letter of the Divisional Commissioner dated 12th August, 2009 cannot be said to be materials which were irrelevant for initiating proceedings under Section 48(2) of the U.P. Municipalities Act, 1916. Thus the first submission of learned counsel for the petitioner that the State Government could not have issued show cause notice dated 7th September, 2009 on the basis of the aforesaid two letters, cannot be accepted."
The present is not a case where the District Magistrate after receiving the complaints of his own has submitted a report on 09/12/2009. The District Magistrate has submitted his report in pursuance of the direction issued by the State Government.
In the counter affidavit filed by the State Government, letter dated 18/2/2009 has been brought on record as Annexure-3 by which the State Government has directed the District Magistrate to submit his report on the complaint of Uma Sharma and other Corporators. The District Magistrate was obliged to submit his report in pursuance of the direction of the State Government dated 18/2/2009. Although, another letter dated 18/11/2009, was sent by the State Government forwarding the complaint of one Girish Chandra, M.L.A. in which the District Magistrate was directed to obtain affidavit of complainant after giving opportunity to the delinquent to submit a report but from the report of the District Magistrate dated 09/12/2009, which has been annexed as Annexure-10 to the writ petition, it appears that even before the letter dated 18/11/2009, was received, District Magistrate had proceeded to obtain the reply of the petitioner on the complaints which was received from the Corporators. The petitioner was informed by letter dated 04/11/2009 to submit his reply. Thus, the proceeding for preliminary inquiry which was initiated in pursuance of the direction of the State Government dated 18/2/2009, was already in progress and the mere fact that the affidavits were not obtained from the complainants in pursuance of letter dated 18/11/2009, cannot be said to be a ground to make the report of the District Magistrate irrelevant.
Present is not a case where the District Magistrate of his own has submitted a report after receiving the complaints which were not supported by affidavits, rather present is a case where the District Magistrate has submitted his report under the directions of the State Government, thus the report of the District Magistrate dated 09/12/2009 cannot be said to be irrelevant for exercising power under Section 48(2) of the Act, 1916, thus the submission of the learned counsel for the petitioner that the report of the District Magistrate dated 09/12/2009 cannot be the basis for taking action against the petitioner cannot be accepted.
The next submission of the learned counsel for the petitioner is that the charges have been levelled against the petitioner on the basis of 2001 Rules, which has no application on the recruitment undertaken by the Nagar Palika Parishad on the post of 22 drivers. He submits that the Rules, 2001 have been framed under the proviso to Article 309 of the Constitution of India and is applicable on the employees of the State Government and the entire allegations made against the petitioner in the charge-sheet regarding non-compliance of the procedure for recruitment is unfounded.
The submission of the learned counsel for the petitioner is that the Nagar Palika Parishad proceeded to fill up the vacancies of drivers in pursuance of the Government Order dated 17/3/1952, Annexure-9 to the writ petition which itself provides for method of recruitment and qualification.
At the first blush, the submission made by the learned counsel for the petitioner that the Nagar Palika Parishad is free to make recruitment on the post of drivers and is not regulated by the Rules, 2001 appears to be attractive, but when the matter has been pondered by us, the issue is not free from doubt and needs further scrutiny.
Learned counsel for the petitioner has relied on the Government Order dated 17/3/1952, Annexure-9 to the writ petition. By the said Government Order, paragraph 6 in the earlier Government Order dated 10/4/1950 was substituted which is to the following effect:
"6. When direct recruitment to any post specified in the annexure has to be made it will be governed by the educational qualifications shown therein. Recruitments to posts from outside should, however, be made through the Employment Exchange; and the system of filling up vacancies under Government Departments should be adopted by local bodies as already instructed in G.O. No.3306/IX-156-47 dated June 2, 1948. Local Bodies may also form a Committee consisting of the Chairman or the President, the Executive Officer of the Secretary, as the case may be and the principal administrative officer of the department concerned, to make a selection from amongst the candidates suggested by the Employment Exchange, for a vacant post, by interviewing them after a competitive test, if necessary. The actual appointment will, however, be made by the competent authority."
The important direction in the above paragraph 6 which is relevant is to the following effect:
"And the system of filling up vacancies under Government Departments should be adopted by local bodies as already instructed in G.O. No.3306/IX-156-47 dated June 2, 1948".
The next sentence in the Government Order was that the Local Bodies may also form a Committee consisting of the Chairman or the President, the Executive Officer of the Secretary, as the case may be and the principal administrative officer of the department concerned. It is relevant to note that the said Government Order was issued on March,17,1952 and after the said Government Order, several Government Orders have been issued and an Act namely; The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes & Other Backward Classes) Act, 1994 has been enacted providing for reservation in posts in a Local Authority which is being followed by the Nagar Palika Parishad for the selection in the posts under Nagar Palika Parishad. There are Government Orders and Rules regarding constitution of the selection committee having representatives from Reserved Category. When the Government Order dated 17/3/1952 provides for system of filling of vacancies under Government Department the same should be adopted by the local bodies. It does not appeal to reason that the Nagar Palika Parishad is completely free to adopt its procedure for carrying out the selection and recruitment. It has been submitted by the learned counsel for the respondents that the driving test has been introduced in the recruitment of drivers in the Government Department and the selection committee in the Government Department consists of representative of the District Magistrate and the candidate belonging to the reserved category candidates, the question need to be thoroughly considered as to whether the local bodies are not obliged to constitute selection committee accordingly.
We, however, hasten to add that we are not expressing any concluded opinion in the above regard since the State Government has yet to take a decision after considering the reply submitted by the petitioner to the show cause notice dated 25/7/2011. Present is not a stage, where this Court may express any concluded opinion on the aforesaid issue. Suffice it to say, that the charges which have been levelled against the petitioner in the show cause notice cannot be brushed aside without there being thorough examination and deliberation in the matter.
We, are thus of the view that the show cause under Section 48 (2) of the Act, 1916 for removal of the petitioner cannot be quashed in this writ petition at this stage.
The question which now needs to be considered is as to whether while issuing the show cause notice to the petitioner under Section 48(2) of the Act, the State Government was justified in ceasing the financial and administrative powers of the petitioner.
Learned counsel for the petitioner has placed reliance on the Full Bench judgment of this Court in Hafiz Ataullah Ansari (supra). The Full Bench of this Court had an occasion to consider the issues in paragraph 40. The issues which were considered by the Full Bench of this Court have been noted which is to the following effect:
"40. The division bench has referred three questions. They are mentioned under the heading 'QUESTIONS REFERRED'. For convenience, we have reformulated them into the following points for determination and have added preliminary objection of the respondent as the first point.
(i) Whether the reference should be sent back unanswered;
(ii) Can there be proceeding for removal of a president under section 48(2) of the Municipalities Act, without ceasing his financial and administrative powers;
(iii) Whether any separate or specific order is required under proviso to section 48(2) of the Municipalities Act for ceasing financial and administrative power.
(iv) If the notice purported be given under proviso to Section 48(2) of the Municipalities Act does not comply with it then what is the consequence;
(v) What are the condition precedent (other than mentioned in the next point) for ceasing financial and administrative powers under proviso to section 48(2) of the Municipalities Act;
(vi) Whether any opportunity is also required to be afforded before ceasing financial and administrative powers;
(vii) In case opportunity is required to be afforded then what is its extent;"
The Full Bench in the case of Hafizataullah Ansari (supra) laid down following in paragraphs 59,60,61,79 and 84 which are quoted below:
"59. The president ceases to exercise the financial and administrative powers as soon as a show cause notice under section 48(2) satisfying the conditions of the proviso to section 48(2) or a valid show cause notice under proviso to section 48(2)of the Municipalities Act is issued. The cessation of power is automatic: it is so contemplated in the proviso itself.
60. Once, a valid notice under proviso to section 48(2) of the Municipalities Act is issued, then even if it is not mentioned that the financial and administrative powers of the president have ceased, it does not mean that he can still exercise them. The cessation of the president's power is automatic and necessary consequence of issuance of the valid notice complying with the conditions under the proviso.
61. In view of above, it is not necessary that order ceasing the right to exercise financial and administrative powers should be mentioned in the separate order or in the show cause notice itself but what is necessary is that the notice should be valid; it should comply with the conditions of the proviso to section 48(2) of the Municipalities Act.
79. The notice that results in ceasing the financial and administrative powers under the proviso to section 48(2) of the Municipalities Act is not a simple show cause notice--it must contain the charges as well. It is only when the show cause notice contains the charges that the cessation of the financial and administrative power takes place.
84. In our opinion, the cessation of financial and administrative power can take place only if the power under the proviso to section 48(2) of the Municipalities Act is rightly exercised. It is rightly exercised only if at least the following conditions are satisfied in the notice/ order:
(i) There should be objective satisfaction of the State government that:
The allegations do not appear to be groundless; and The president is prima facie guilty of the ground that have to be indicated under section 48(2) of the Municipalities Act.
(ii) The show cause notice should contain the charges;
(iii) The show cause notice should not only indicates the material on which the reason to believe or objective satisfaction is based, but the evidence by which charges are to be proved should also mentioned. However, in most of the cases they might be the same and there would not be any point in repeating them."
Ultimately, the Full Bench in the case of Hafizataullah Ansari (supra) in paragraph 133 recorded its conclusion which is quoted below:
"133. Our conclusions are as follows:
(a) There can be proceeding for removal of president under section 48(2) of the Municipalities Act without ceasing his financial and administrative power under its proviso;
(b) The following conditions must be satisfied before cessation of financial and administrative powers of a president of a Municipality can take place:
(i)The explanation or point of view or the version of the affected president should be obtained regarding charges and should be considered before recording satisfaction and issuing notice/ order under proviso to section 48(2) of the Municipalities Act;
(ii) The State government should be objectively satisfied on the basis of relevant material that:
The allegations do not appear to be groundless; and The president is prima facie guilty of any of the grounds under section 48(2) of the Municipalities Act.
(iii)The show cause notice must contain the charges against the president;
(iv)The show cause notice should also indicate the material on which the objective satisfaction for reason to believe is based as well as the evidence by which charges against the president are to be proved. Though in most of the cases they may be the same;
(c) It is not necessary to pass separate order under proviso to section 48(2) of the Municipalities Act. It could be included in the notice satisfying the other conditions under proviso to section 48(2). In fact it is not even necessary. It comes into operation by the Statute itself on issuance of a valid notice under proviso to Section 48(2) of the Municipalities Act.
(d) ....... (e) .................. (f)............"
From the above pronouncement made, it is clear that the cessation of financial and administrative powers can take place after fulfilment of the condition and there should be objective satisfaction of the State Government that allegations do not appear to be groundless and the President is prima-facie guilty of the grounds as indicated in the show cause notice issued under Section 48(2) of the Act, 1916, that it should contain the charges as well as the evidence by which charges are to be proved.
Learned counsel for the petitioner contended that there was no occasion to cease the financial and administrative powers of the petitioner after more than one and a half year from sending the report by the District Magistrate when the State Government did not take any action immediately. The proviso to Section 48(2) as quoted above indicate that the cessation of financial and administrative powers follow when the State Government has reasons to believe that the allegations appear not to be groundless and the President is prima-facie guilty on any of the grounds. The words "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................. clearly spells out the above intent."
As noted above, the Full Bench of this Court in Hafiz Ataullah Ansari (Supra) has held that there is no necessity of issuing a separate order for ceasing the financial and administrative powers of the petitioner and if the State Government is satisfied that the charges do not appear to be ground less and the President is prima-facie guilty of any of the charges, the cessation of financial and administrative power takes place automatically.
In the present case, when the State Government has recorded its objective satisfaction that the charges are not groundless and the President is prima-facie guilty of the charges, it cannot be said that the cessation of financial and administrative powers of the petitioner is illegal merely because more than one and a half year has elapsed from the submission of the report by the District Magistrate. The consequence as contemplated under Section 48(2) of the Act, 1916 shall ensue as and when the power is exercised under Section 48(2) of the Act, 1916 and the mere fact that certain time has elapsed and the State Government did not promptly take action in any manner vitiates the proceeding in exercise of power under Section 48(2) of the Act, 1916.
We are, therefore, of the considered opinion that the financial and administrative powers of the petitioner have rightly been ceased consequent to issuance of notice under Section 48(2) of the Act, 1916. None of the submissions made by the learned counsel for the petitioner makes out any ground for quashing the order of the State Government dated 25/7/2011.
We, however, observe that the State Government while passing the final order under Section 48 (2) of the Act, shall not be influenced by any of the observations made by us in this order which observations have been made only for examining the issue of issuing notice under Section 48(2) of the Act, 1916 and cessation of financial and administrative powers.
The writ petition is dismissed subject to observations as made above.
No order as to costs.
02/9/2011 SB