SHYAM SUNDER UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner, who is Adhyaksha of Nagar Palika Parishad, Mathura, challenges the show cause notice dated 26.11.08 passed by the State Government, by means of which he has been required to submit his reply to the charges mentioned therein and at the same time has been denuded of his powers both financial and administrative, till he is exonerated of the charges levelled and also the consequential order dated 27.11.08 passed by the District Magistrate. THE aforesaid show cause notice has been issued purportedly in exercise of powers by the State Government under sub-section (2) of Section 48 of the U.P. Municipalities Act, 1916 (hereinafter referred to as the Act of 1916). THE petitioner, who has been elected as Adhyaksha in November, 2006, assails the aforesaid show cause notice and the order of cessation of financial and administrative powers pleading, inter alia, that since he belongs to Congress (I) party, the ruling party has manipulated complaints against him so as to oust him from the elected office and that the order impugned is per se bad in law for the reason that (i) no opportunity was afforded to the petitioner before passing the impugned order nor was he associated with the enquiry, which is said to have been conducted by the Additional District Magistrate; (ii) the opportunity to submit the explanation to the Director, Local Bodies in a complaint which was enquired by him, is no opportunity; (iii) the charges, as they are, cannot be said to be proved even prima facie and rather the report has been submitted by the two authorities on two different complaints, without looking into the records and material available with the office of the Nagar Palika Parishad; and (iv) the charges not being proved at all, neither his financial and administrative power could have been ceased nor he can be removed from the office of elected Adhyaksha under Section 48 of the Act. THE petitioner also challenges the vires of the provision of Section 48(2) mainly on the ground that it does not prescribe for any opportunity being given to the elected Adhyaksha before passing an order of cessation of financial and administrative powers but in view of the fact that the said question is already under reference in Civil Misc. Writ Petition No. 62427 of 2008: Hafijataullah Ansari v. State of U.P. and another, decided on 19.12.08, the parties counsel agreed that this question may not be addressed and the matter can be decided on the pleas otherwise raised. Two complaints were made against the petitioner by the Sabhasad, which were directed to be enquired into by the District Magistrate vide order dated 14.7.07 but the District Magistrate instead of making the enquiry himself, entrusted the enquiry to the Additional District Magistrate vide order dated 15.2.08 and the Additional District Magistrate, in turn, submitted his enquiry report on 5.8.08. THE District Magistrate forwarded the said report to the State Government on 11.8.08. Thus, it is apparent that the District Magistrate himself did not make any enquiry though direction was issued by the State Government to him for holding the enquiry and no provision has been shown by the respondent State, under which the District Magistrate could have subdelegated this authority of holding the enquiry to the Additional District Magistrate. It is also clear and an admitted fact that neither the Additional District Magistrate nor the District Magistrate afforded any opportunity to the petitioner, nor associated him with the enquiry while submitting the report to the State Government. THE second enquiry was initiated as the Standing Committee of Vidhan Sabha allegedly on reviewing the functioning of the various municipalities found that the enquiry should be conducted in the affairs of the municipalities at Mathura and Vrandavan. This was decided on 1.4.08 and on 3.7.08 a Committee was constituted by the State Government with Director of Local Bodies being the Chairman and one Assistant Director, Local Bodies and Assistant Engineer, Local bodies as members. This Committee examined the records on 4.9.08 and on 15.9.08 required the petitioner to submit his explanation. On 22.9.08 the petitioner appeared and the copies of complaints were handed over to him but no reply was submitted by the petitioner. THE report was submitted by the committee to the State Government on 31.10.08. On the basis of the aforesaid two enquiry reports, the impugned show cause notice dated 26.11.08 containing an order of cessation of financial and administrative powers, has been passed. THE learned counsel for the petitioner emphasized that even assuming, opportunity was not required to be given to the petitioner while making an enquiry for the purpose of issuing a show cause notice under Section 48 (2), still it was imperative for the District Magistrate to see that the complaints made and for that matter charges levelled, prima facie, stand established from the material on record. His submission is that in the absence of any such material being available which could substantiate the charges, even prima facie, the State Government would not be vested with any jurisdiction or authority either to issue any show cause notice i.e. for holding regular enquiry nor it would be competent to denude the Adhyaksha of his legitimate statutory powers, which could not be taken away otherwise than in accordance with the procedure prescribed under law. Sri J.N. Mathur, learned Additional Advocate General, appearing for the respondent State, does not dispute the aforesaid proposition and rather submitted that the limited enquiry which can be made by the Court is only to the effect that whether the charges levelled are such in nature, which if found proved during the regular enquiry, would be sufficient to remove the Adhyaksha from the office and that this Court would not sit in appellate jurisdiction over the assessment of facts made by the District Magistrate nor would substitute its own finding with respect to the charges framed and findings recorded by the District Magistrate. His further submission is that sufficiency or inadequacy of evidence can also not be the subject matter of judicial review and that the District Magistrate was not required to make a detailed enquiry and to record categorical finding against the irregularities and misconduct of the sitting Adhyaksha but was only to be satisfied, prima facie, about the complaints made and the charges framed. Once the District Magistrate on holding an enquiry, comes to the conclusion and records his satisfaction about the charges levelled against the Adhyaksha, the High Court would not reassess the evidence nor would record a different finding . In regard to the plea aforesaid, it would be necessary to mention that an elected office bearer holding the post of Adhyaksha cannot be deprived of his legitimate right of discharging his/her statutory duties and exercise of the administrative and financial powers, otherwise than in accordance with law. If an Adhyaksha is stripped of his financial and administrative powers, in fact, he stands virtually removed from his office in as much as, he has no business to perform and no function to discharge but for maintaining his status as Adhyaksha and enjoying the perquisites which are attached to such an office. Such an order, therefore, cannot be passed in the absence of satisfaction recorded by the District Magistrate on the basis of the evidence on record and the charges levelled, holding that they are, prima facie, proved and in turn, the State Government also cannot pass restraint orders, without recording its satisfaction that the charges are such which are grave and fall within the abuse of powers by the Adhyaksha or dereliction of duties, which has, or is likely to effect the functioning of the democratic institution of municipality and that that the charges levelled are, prima facie, established. In case any other interpretation is given to the provision of Section 48(2) read with its proviso, it would mean that on any vague, inconsistent or baseless charges, if a report has been submitted by the District Magistrate, the State Government will assume jurisdiction to virtually oust the duly elected Adhyaksha by ceasing his administrative and financial powers, though final enquiry would be conducted later on, in which might or might not be, Adhyaksha stands exonerated. If on regular enquiry the Adhyaksha has been exonerated on the charges levelled against him, the deprivation of his right to exercise his statutory functions for the period during which the final enquiry remains pending, would be an uncalled for encroachment and deprivation of his statutory right to perform his functions as Adhyaksha throughout that period. THE loss so occasioned cannot be compensated in either way, which not only puts such an Adhyaksha to disrepute amongst public but also makes his very functioning suspicious in the public eye, though later on, he may stand exonerated of the charges. Here suffice would be to mention that in case the show cause notice itself is without jurisdiction and without authority and does not conform to the statutory provisions as given under the proviso attached to Section 48(2), the State Government would not have any power to proceed in the matter and the Court would be justified in looking into the validity of the show cause notice. THE proviso to Section 48(2) itself says 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. A glance of the aforesaid provision makes no room of doubt that the State Government cannot pass an order of cessation of administrative and financial powers nor can issue a show cause notice, unless it has reason to believe that the allegations do not appear to be groundless, meaning thereby that the allegations must contain substance and there must be material and evidence in support of those allegations so as to hold the Adhyaksha, prima facie, guilty and if any of the ingredients/contents aforesaid are missing, the State Government would have no authority or jurisdiction either to issue a show cause notice or order of cessation of powers of the Adhyaksha. This protection has been given to the elected office bearer for the obvious reason that the functioning of the democratic institution like Municipalities should not be hampered and obstructed to, by the State Government, ruling party or the State functionaries. THE legislature in its wisdom used the words that the allegation do not appear to be groundless and is prima facie guilty and, therefore, the expression 'reason to believe' has been used which establishes that issuance of the show cause notice is not an empty formality and cannot be issued in routine and mechanical manner. THE said show cause notice is to be issued by the State Government only on its subjective satisfaction with respect to the allegations made against the Adhyaksha on objective consideration of the material on record, which does not give any unfettered and unguided power to the State to issue the show cause notice in each and every case, irrespective of the gravity of the allegations on mere technical irregularities and without being satisfied that the allegations, do fall within the mischief of any of the clause of Section 48 sub-clause (2) (a) and (b) and that too only when such allegation has been prima facie proved from the material on record. It is very common that because of political rivalry the sitting Adhyaksha viz. the elected office bearer is sought to be removed and for that matter allegations and charges are levelled, though there may be no evidence or substance or proof. An elected office bearer on the post of Adhyaksha has a right to continue for the whole term, the term being prescribed under the constitutional scheme and, therefore, any curtailment of the term can be done only if the law so permits, and the manner, so prescribed. THE power of the State Government to remove the Adhyaksha requires caution and cannot be allowed to be exercised merely because the State Government wishes that a particular elected Adhyaksha be removed from the office. THE power so conferred upon the State Government is neither unguided nor can be exercised arbitrarily. It is only when the conditions, as laid down under the proviso of Section 48(2) do exist, that such an order can be passed. THE two reports, one submitted by the District Magistrate, though the enquiry was conducted by the Additional District Magistrate and the report was also prepared by him and also the other report submitted by the Committee constituted by the State Government on the report of the Standing committee of the Vidhan Sabha, do contain same substance, same charges, but the show cause notice, impugned in the present petition does not specify as to on what report, which charge has been framed as against the three charges against the petitioner, which can be summarized as under: 1.It is not clear that how Sri Kishori Lal was allowed to run the Sewerage Treatment Plan (STP) after 1.5.08, when his term had already expired in March, 2008. Even if he had been granted an extension after the expiry of his term, such extension should have been got approved by the Board, which in this case, was not done. Thus, it appears that Adhyaksha Nagar Palika Parishad did not follow the procedure for tender and he, in collusion with Executive Officer, and Engineer, Water Works, illegally, extended the term of Sri Kishori Lal and allowed unauthorised payments to be made to him.

(2.) RELATING to alleged irregularities in the matter of cleaning of 'Nalas' in the year 2007-08. (1) A very short time gap was allowed between the tender publication and the invitation of tenders, which had the effect of depriving the Parishad of the benefit of healthy competition in the bidding process. The estimates/rates for cleaning of the 'Nalas' were neither analyzed nor verified by the competent authority and rates were fixed as per the PWD scheduled items: (2) The Executive Officer vide letter dated 12.6.07, had asked the District Administration to nominate an officer for the purpose of verification of cleaning work. There was no document available from which it may appear that any such verification was done even though a large sum appears to have been made towards the payment of the aforementioned verification in one single instalment. (3) In allowing a separate expenditure of Rs. 36 lacs for the work of cleaning of 'Nalas', misuse of the funds of the Parishad has been committed specially when sufficient labour and requisite equipment was available with the Parishad for that work.