REKHA BARNAWAL Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Sri H.N. Singh, learned counsel on behalf of the petitioner, Learned Standing Counsel and Sri K.N. Tripathi, learned Senior Advocate assisted by Sri Ram Pravesh Yadav, learned counsel appearing for newly impleaded respondent No. 4. Present writ petition is directed against the show -cause notice dated 30.10.2012 issued by the respondent No. 1 as also the consequential order dated 6.11.2012 passed by the respondent No. 2. By means of order dated 6.11.2012 the financial and administrative powers of the petitioner who is Chair -person of Nagar Panchayat, Jafrabad, Jaunpur, has been ceased and the Sub Divisional Magistrate, Sadar, Jaunpur has been nominated to exercise the same. The show -cause notice was issued on the charge that the petitioner alongwith her husband misbehaved with the Executive Officer Dukkhi Singh and Clerk Rajman. The Sub Divisional Magistrate, Sadar by the letter dated 11.10.2012 had informed and submitted a report to the District Magistrate, Jaunpur in this regard. The petitioner was to give reply to the notice issued under Section 48(2)(a) of the U.P. Municipalities Act, 1916 (hereinafter referred to as the 'Act') on the charges mentioned therein and called upon to explain as to why she should not be removed from the office of the President. It has also been mentioned in the show -cause notice dated 30.10.2012 that under the proviso to Section 48(2)(a) of the Act, the petitioner has been ceased to exercise and discharge the financial and administrative powers, functions and duties of the President till she is exonerated of the charges mentioned in the show -cause notice. The petitioner was called upon to show -cause as to why proceedings be not initiated under Section 48 of the Act.

(2.) CHALLENGING the show -cause notice and consequential order of cessation of powers of the petitioner, the learned counsel for the petitioner submits that there is only one charge mentioned against the petitioner that too relates to alleged misbehaviour with the officer and employee of the Municipality. For the purpose, an FIR has already been lodged. He further submits that show -cause notice was issued under Section 48(2)(a) of the Act as the petitioner had failed to perform her duties as President of Nagar Panchayat, Jafrabad, Jaunpur. In so far as the financial and administrative powers and functioning and discharging the duties of the President is concerned, neither any reason has been given in the show -cause notice issued by respondent No. 1 nor any satisfaction has been recorded by the State Government for doing so. He placed reliance upon the Full Bench judgment of this Court in submitting that the words 'reason to believe' as contained in proviso to Section 48(2)(a) of the Act clearly indicate that the show -cause notice must contain the material and the reason to believe that the action under the proviso is required in a particular case.

(3.) REFUTING assertions of learned counsel for the petitioner, Sri K.N. Tripathi, learned Senior Advocate appearing for the newly impleaded respondent and the learned Standing Counsel submitted that there is no requirement of issuing notice to the President before passing the order of cessation of her financial and administrative powers or not allowing her to discharge the functions and duties of President till she is exonerated from the charges mentioned in the show -cause notice. The proviso to Section 48(2)(a) of the Act as contained does not provide for issuing the show -cause notice before passing the order. In absence of any such provision, the contention of the petitioner that there is requirement of issuing any show -cause notice or call for explanation from the President i.e. petitioner before passing impugned order cannot be accepted.