ANIL KUMAR AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Akhilesh Kalra, learned counsel for the petitioner and Sri Mukund Tiwari for the State. The petitioner, an elected President of the Nagar Panchayat, Rampur Maniharan, District Saharanpur, challenges the show cause notice dated 29th August 2008 issued by the State Government seeking an explanation from him for various charges mentioned therein and at the same time ceasing his both administrative and financial powers. The petitioner's case is that the action of the respondents is malafide and is politically motivated just to oust the petitioner from the elected office, though the charges are not only non-existent, but have also not been found proved, even prima-facie, in the enquiry. A complaint dated 01.07.2008 was made by a member of Legislative Assembly belonging to the ruling party i.e. Bahujan Samaj Party, to the Chief Minister of the State, copy of which has been brought on record as Annexure No. 2, in which, general allegations were made that he has been informed by the public and the Corporators that the petitioner being the President of Nagar Panchayat, is involved in scams and is misusing his power by means of which he is not only embezzling the government fund for his own profit but is also abusing his position and post by misusing the fund granted by the Government,by giving contracts etc. to his favourites. A copy of the complaint made by the Corporators was also annexed with the complaint. Sri Navneet Sahgal, Secretary to the Chief Minister, vide D.O letter dated 28.5.2008, addressed to the Principal Secretary, Nagar Vikas, directed that an enquiry be got conducted into the complaint and action taken be informed to the Chief Minister. In pursuance to the said direction issued from the office of the Chief Minister, the Joint Secretary, Urban Development directed the District Magistrate Saharanpur to make an enquiry for verifying the veracity of the complaint and further directed that appropriate enquiry into the matter be made and the enquiry report alongwith necessary recommendation be forwarded to the State Government. It was further directed that in view of the fact that the said enquiry is being initiated on the directive issued by the Chief Minister, therefore, compliance of the letter dated 18.6.2008 be made with utmost urgency without any further delay. It was specifically mentioned therein that as the present matter is covered by the orders of the Chief Minister, therefore, it be given top priority. The Government order dated 18th June 2008 has been brought on record as Annexure No. 4 to the writ petition. The State Government in its letter dated 18.6.08, directed the District Magistrate to get an enquiry conducted into the complaint after getting the necessary affidavits and submit his report. However, the Commissioner of the Division, vide his order dated 30.6.08, appointed a committee of two Sub Divisional Magistrates viz. of Rampur Maniharan and Deoband for holding the enquiry. The enquiry was thus, conducted by the aforesaid enquiry committee. The show cause notice issued to the petitioner is dated 7th July 2008. The petitioner submitted his reply on 10th July 2008 alongwith necessary documents. In all 12 charges were levelled against the petitioner showing irregularities committed by him in the performance of his duties and functions of Nagar Panchayat which were specifically denied by the petitioner. The petitioner also pleaded that though none of the charges stand proved or could be said to be proved by any material available on record but even if, the charges are taken to be on their face value with the explanation submitted by the petitioner based on record of Nagar Panchayat itself, the same would not constitute any such serious irregularity or charge so as to remove the petitioner from the office of President. It may be relevant to mention here that the Corporators who had made the allegations against the petitioner in the complaint, which complaint became the basis for referring the complaint by a sitting member of Legislative Assembly belonging to the ruling party to the Chief Minister, on whose directive the enquiry was initiated, levelled 12 charges, mainly alleging that the petitioner has committed gross irregularity in granting contracts to favourite persons, he has misused the government funds, he has embezzled the Government and Nagar Panchayat funds and that he is involved in self gain and therefore, has misused his power, position and has abused the office of the President. The enquiry was conducted by a Committee of two Sub Divisional Magistrates namely; Sarv Sri Raj Kumar and Dinesh Chandra, of Rampur Maniharan and Deoband. The enquiry report submitted by the Sub Divisional Magistrates on 19.7.2008, which has been brought on record as Annexure No. 7 to the writ petition, clearly reveals that the enquiry committee did not find any truth or substance in the allegations made against the petitioner with respect to misuse or abuse of his power or misappropriation or embezzlement of the Government money or grant of contracts to his relatives and giving undue advantage to his favourites and known persons etc. etc. but the only observation which was made is regarding violation of provision of Section 96(1) of the Municipalities Act and the Government order dated 2nd February 2007 and violation of the Election Code of Conduct. Section 96(1) of U.P. Municipalities Act, 1916 is being quoted below:- "96. Sanctioning of contracts.--(1) the sanction of the Municipality by resolution is required in the case of every contract- (a) for which budget provision does not exist; or (b) involving a value or amount, exceeding (fifty thousand rupees) in the case of a contract by the Municipal Council and (fifteen thousand rupees) in the case of a contract by the Nagar Panchayat. [Provided that during the period intervening two meetings of the Municipal Council, the President may sanction contracts involving a value or amount not exceeding (one lakh rupees).] (2) Any contract, other than a contract of either description specified in sub-section (1), may be sanctioned by resolution of the [Municipality] or by a committee of the[Municipality] (not being an advisory committee) empowered in this behalf by regulation, or by any one or more than one officer or servant of the [Municipality] so empowered: [Provided that the contracts sanctioned by a committee, officer or servant shall be placed before the [Municipality] for information at the next ensuing meeting]. (3) [Where] the plans and estimates of a project have, in accordance with any rule made in this behalf, been sanctioned by the [Municipality], and the execution of the work has been entrusted by the [Municipality] to an engineer in its service or employment, the [Municipality]may, with the previous sanction of the [Prescribed Authority] empower by resolution such engineer to sanction all contracts or any one or more contracts of any particular description [other than a contract of either description specified in sub-section (1)] required for the execution of the project, and may in like manner impose any condition or restriction on the exercise of the power so conferred". Sri Haji Naushad, Corporator son of Mohd. Issu Resident of Mohalla Pipaltala, Sri Sudhir Kumar Corporator Ward No. 5, Nagar Panchayat Rampur, Smt. Savita, Corporator Ward No. 4 Nagar Panchayat Rampur, Sri Nawab Ali, Corporator Ward No. 12 Mohalla Pipalta, Nagar Panchayat Rampur, Sri Jamil Ahmad, Corporator Ward No.-6, Nagar Panchayat Rampur, Sri Suresh Saini nominated Corporator Nagar Panchayat Rampur Maniharan, Sri Praveen Jain nominated Corporator Ward Nagar Panchayat Rampur Maniharan, Smt. Jagwati Corporator Ward 11 Nagar Panchayat Rampur, Smt. Sunita Corporator Ward No.14 Nagar Panchayat Rampur Maniharan, examined themselves in support of the complaint but no evidence could be produced which could establish any of the charges that the President, Nagar Panchayat Rampur Maniharan had embezzled any amount or has fraudulently taken the money in the form of cheques, or has given contracts to his near relatives, or has given contracts of slaughter house to his near relative or has granted license token and other contracts to his near relatives. The Committee reported that all charges levelled could not be proved. The consideration of gravity of the charges or their proof, on the basis of material on record, primarily lies within the domain of the Enquiry Officer or the enquiry Committee as the case may be and that it is the satisfaction of the District Magistrate who is to record prima-facie satisfaction regarding the allegations made in the complaint and thereafter it is for the State Government to satisfy itself on objective consideration of the entire material so as to be convinced that the President is prima-facie guilty of any of the irregularities, which fall within the mischief of sub section 2 (b) of Section 48 of the U.P. Municipalities Act, 1916. It is only when either of the conditions as mentioned in the aforesaid provisions of Municipalities Act are found established, the jurisdiction to issue show cause notice under section 48(2) would vest in the State Government, failing which the State Government would have no authority or power to issue show cause notice or to proceed for holding a regular enquiry for removal of the President from the elected office nor would be competent to pass an order for ceasing the administrative and financial power. A plea raised at the outset by the learned counsel for the petitioner that the enquiry was entrusted to the District Magistrate by the Principal Secretary but the Commissioner without any authority entrusted the enquiry to the two Sub Divisional Magistrates, which was per-se illegal, which makes the entire proceeding void, is a question which need not be considered by us in view of discussions made later on. The Court in its power of judicial review would only confine its enquiry for being satisfied that there was a complaint/allegations against the sitting President and those allegations have been found to be proved prima-facie on the basis of material on record and that the allegations are such, which would constitute or fall within financial irregularities or abuse of the power of the office or any irregularity which may be attributed to any one are more circumstance as given in sub-section 2 (a) or 2 (b) of Section 48 of U.P. Municipalities Act, 1916. It is not that every irregularity, may be a simple technical irregularity or technicality in performance of the duty of the President would render him liable for being removed from the office of the President. The petitioner in support of his submission, places reliance upon a decision of a Division Bench this Court in Writ Petition No; 10968 (MB) of 2008, in re:- Shyam Sunder Upadhyay vs. State of U.P. and others, decided on 6.4.09, in which the Court observed as under: "(2) Some technical irregularity or some oversight or minor deviations in the functioning of the Nagar Palika Parishad, which does not effect its smooth functioning nor cause any financial loss or any financial irregularity nor is violation of any statutory provisions or bye-laws nor the action taken is for the undue gain of the Adhyaksha or members of his family i.e. to say, unless the conduct of the Adhyaksha is abuse of his powers, the action under Section 48(2) cannot be taken." In the case of Lakhan Lal vs. State of U.P. and others, (1994) 12 LCD, reiterating the observations made in Surendra Prakash Goel vs. State of U.P. and others, HVD (Alld.) 1992 (1), it has been held that if the President has committed some technical irregularity but he has not been benefited from the same financially or otherwise, Government should not remove him from the office and instead a warning under Proviso to sub-section (2-A) of Section 48 of the Act is sufficient. The provisions of issuing 'warning' has now been deleted. The President holds an elected office under the constitutional scheme of Seventy Third Amendment of the Constitution and has a specified tenure during which he can continue as the President. This tenure can be curtailed only by adopting the procedure prescribed under law. The State Government, when passes an order of removal of the President from the office which has the effect of curtailing the period of President, cannot be allowed to take such a step lightly or casually on mere ipse-dixit of the complaint or on some trivial deviation in functioning of the President in performance of the duty which does not in any way affect either the status or prestige of the Panchayat or does not amount to any financial irregularity so as to have an effect of any financial loss which may or could have been caused to the Panchayat for want of procedure prescribed or that the work performed or action taken by the President was not in the interest of the Panchayat or in the interest of the general public. But, if neither of these or like conditions exist it will be difficult to say that the State Government would be justified in removing the President from his office. Even if the allegations made in the complaint are found to be prima facie established on enquiry but if the allegations are such which do not stand the test as aforesaid there would be no option with the State Government but to drop the proceedings. Care has to be taken and it has to be borne in mind that the power of removal of President, as given in Section 48 is not a power of removal which can be exercised in mechanical or routine manner simply on receiving a complaint and without assessing the gravity and the seriousness of the allegations and that of the irregularities which are said to have been committed. The provision of Section 48 has to be given a strict meaning as in case it is given a liberal meaning it would hamper and obstruct the functioning of the democratic institution, which has been given a constitutional status. Of course, if the President is prima-facie guilty of any such misconduct or irregularity, he cannot probably plead that the power to remove the President from his elected office has been exercised malafidely or because of political motivation. Though judicial notice may not be taken but it cannot be totally ignored that making a complaint by the persons belonging to other group or political party with a motivated design to oust the elected President is not very uncommon and therefore, to protect the democratic institution from vagaries of political vendetta, care and caution is necessary to be taken by the State Government while proceeding with the matter for removal of elected President from his office. In the instant case, it cannot be totally lost sight of that although a complaint was made by the Corporators with specified allegation of misuse of power and misuse of funds but the same, instead of being considered by the concerned department of the State Government, was sent to the office of the Chief Minister by a sitting member of Legislative Assembly belonging to the ruling party who was instrumental in forwarding the said complaint to the Chief Minister, from whose office, the Secretary to the Chief Minister issued a directive to the Principal Secretary, Nagar Vikas to look into the complaint and apprise the Chief Minister about the action taken. Not only this, the Government order dated 18th June 2008 specifically stated that since the matter relates to the office of the Chief Minister, therefore, it should be decided on top priority. A specific procedure having been prescribed under the Act, undue interference of the Chief Minister or his/her office is not called for; interference so made cannot be totally brushed aside, while considering the plea of the petitioner,that the notice has been issued because of political malafide. The complaint was to be made to the State Government namely; to the Principal Secretary of the concerned department on which the State Government was to exercise its own discretion so as to form a reasonable belief that the allegations are not 'ground-less' and then enquiry could have been ordered to find out as to whether the petitioner was prima facie guilty of the charges levelled against him but routing the complaints, through the office of the Chief Minister does not make the entire action free from political design, and bereft of political overtones. It is not a case where the President has granted the contracts illegally or to his favourites or has committed irregularity in the financial matter, and stealthily or without apprising the Board or without the knowledge of the Board he has used or misused the funds of the Panchayat but as a matter of fact it is only on the basis of the resolutions of the Board itself that he has taken further action in all matters including in the matter of awarding contracts and therefore, it cannot be said that there was any deliberate or otherwise violation of provisions of Section 96(1) of the U.P. Municipalities Act by the petitioner. In a case where charges are framed on the basis of a complaint and if those charges fall within the category of misconduct or irregularity as given in sub section (b) of section 48(2), and are found prima facie proved, it would hardly be of any consequence as to whether a complaint was motivated or politically designed by a person belonging to a particular ruling party or there was some animosity between the complainant and the President. The office of President has to be given due protection and that for this reason, the proviso attached to sub section 2(b) of section 48 itself says that the State Government must have 'reason to believe' that the allegations are not 'groundless' and that the President is found to be 'prima-facie guilty' only then regular enquiry would be ordered and a show cause notice would be issued and on issuance of such notice, the financial and administrative power of the President can be ceased. Ceasing of financial and administrative power means virtually denuding the President of all his powers which technically may not be, removal from the office but certainly makes the President non-functional. The President during all the period till he is exonerated, has no say in the functioning of the Panchayat but for his status and perquisites attached to the office, he does not have any role to play in the functioning of the Panchayat. Such a drastic action naturally has to be taken strictly in accordance with law and not on the whims and caprice of the interested persons who may be holding power or otherwise, may be influential. There are twelve charges levelled against the petitioner. We need not go into the charges one by one for finding out that there was any material to hold him guilty or not for the simple reason that in the enquiry committee report, the charges have not been found to be proved, but for violation of the provisions of section 96(1) of the Municipalities Act. The petitioner was not informed that there was any violation of section 96(1) of the Municipalities Act and it is only an inference drawn by the Committee as according to the committee the financial matters with respect to contracts etc. were not placed before the Board and the President himself exercised the financial power of the Board. The petitioner in his reply had submitted that resolutions were duly passed by the Board and after examining every aspect of the matter the contract was awarded. The Board after considering the entire facts, authorised the President to take, the follow up action and in pursuance of such resolutions, the President proceeded to get the works completed. The State Government does not dispute the passing of such resolutions, which find place on record of the Panchayat but the argument of the State Government is that the President could not have vested with all such powers to exercise the power of the Board as Section 96(1) of the Municipalities Act does not permit him to do so. May be that the President was required to place the matters before the Board which touch the financial aspect, after action had been taken by the President but in a case like the present one where charges in respect of misappropriation of funds or award of contract to favourites or relatives and abuse of power and position of the President and all other charge, have not been found to be proved merely because section 96(1) was not strictly followed, though the President was authorised by the Board to carry on all such functions, it cannot be said that he committed any such irregularity so as to remove him from his office of President. Section 96(1) is a check upon misuse of power of the President in the financial matters. Once it is found that no such misuse could be attributed to the petitioner, the charges levelled against the petitioner will not be sufficient to remove him from the elected office. Moreover, it is not a case, where, the Board was not aware, about the action of the President in the matter of Contract etc., but it was the Board itself, who authorized him to proceed and finalise the matters, after passing necessary resolutions for the purpose. In so far as the violation of Election Code of Conduct is concerned, the petitioner has duly explained that it is clear that the Nagar Panchayat on 6th March, 2007 has cancelled all earlier contracts in vogue which were again given after the Code of Conduct had come to an end on 28.6.2007 in accordance with law to the registered contractors. Further it has also been made clear that so far a token contract dated 24.3.2007 is concerned, the same was granted by auction. The contract of slaughter house was also given in the same manner . All other charges need not be appreciated by the Court for the reasons that they have not been found to be proved and on mere technicality that section 96(1) of the Municipalities Act was not followed, the order/show cause notice has been issued, and financial and administrative powers have been ceased. In view of the discussion made above and the reasons recorded and it having been established from the enquiry report that the charges levelled against the petitioner have not been found to be even prima facie proved , we are of the considered opinion that issuance of show cause notice was per-se without authority of law and without there being any material to substantiate the charges and as such, the order passed, for holding regular enquiry as well as ceasing of financial and administrative powers is per se without jurisdiction, we, therefore, quash the impugned notice dated 29.8.2008 and direct that the petitioner shall be allowed to continue and function as the President of Nagar Panchayat Rampur Maniharan, District Saharanpur. The writ petition is allowed. No order as to costs.