Allahabad High Court
Girish Chandra Srivastava Son Of Late ... vs State Of U.P. Through Its Principal ... on 18 April, 2007
Author: B.S. Chauhan
Bench: B.S. Chauhan, Rajes Kumar
JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the show cause notice dated 13/3/2007 that has been issued by the State Government in exercise of the powers under Section 48(2) of the U.P. Municipalities Act, 1916 (hereinafter called Act) and the order depriving the petitioner from exercising his financial and administrative powers issued under the proviso to Section 48 (2) of the Act.
2. The petitioner was elected as a Chairman of the Nagar Palika Parishad, Azamgarh (hereinafter called the Nagar Palika). An advocate namely Shri Pramod Kumar Yadav filed a complaint before the Lok Ayaukt alleging certain illegalities and irregularities committed by the petitioner as a Chairman of the Nagar Palika. The Lok Ayukt vide letter dated 29/5/2003 made a recommendation for holding an enquiry against the petitioner. However, prior to that the State Government had directed for holding of an enquiry against him and after holding a preliminary inquiry a report was submitted to the State Government by the District Collector, Azamgarh on 25/9/2002. A show cause notice dated 21/5/2003 was issued by the State Government under Section 48 (2) of the Act. The petitioner filed Writ Petition No. 2956 of 2003 to challenge the said notice. The said writ petition was disposed of by the judgment and order dated 06/6/2003 with the observation that a copy of the report be supplied to the petitioner and he will file the reply of the same and till then no action should be taken on the basis of the said notice. Subsequent thereto, the State Government issued another show cause notice dated 11/5/2004 containing seven charges. The petitioner submitted a reply to the said charges on 31/5/2004. An inquiry was then conducted by the District Magistrate, Azamgarh and the report was submitted. The petitioner was also given a copy thereof and he filed his reply on 21/9/2005. The State Government passed the order dated 26/9/2005 depriving the petitioner from exercising the financial and administrative powers and the District Collector Azamgarh passed the consequential order dated 29/9/2005 withdrawing the administrative and financial powers of the petitioner. The said orders dated 26/9/2005 and 29/9/2005, were again challenged by the petitioner in Writ Petition No. 62368 of 2005, but no interim relief was granted, nor the respondents filed a counter affidavit. The said petition is still pending. The term of the petitioner came to an end on 03/12/2005 but he was again elected as Chairman on 07/11/2006. The petitioner was then served with a fresh show cause notice dated 13/3/2007 and an order depriving him from exercising his financial and administrative powers. This writ petition has been filed to challenge the said notice.
3. Shri Shashi Nandan, learned Senior Counsel appearing for the petitioner submitted that in view of the amendments made from time to time in Section 48 of the Act, the State Government does not have a power to remove the Chairperson of the Nagar Palika and while interpreting the provisions of Section 48 of the Act the Court should give a strict literal interpretation as the order which could be passed would not only have the consequence of removal from the post but could also make the Chairman disqualified from contesting the election for a period of five years in future. He further submitted that even otherwise, a charge-sheet had earlier been served upon him in respect of the alleged misconduct in his earlier term but without concluding the inquiry the second charge-sheet on the same allegations has been issued which is not permissible and that the charge sheet is vague and no inquiry can be conducted on the said allegations.
4. On the contrary, Shri C.S. Singh, learned Standing Counsel and Shri P.S. Baghel learned Counsel permitted to assist the Court under the provisions of Chapter XII Rule 5A of the Allahabad High Court Rules 1952, have submitted that submissions made on behalf of the petitioner are totally misconceived as there is an apparent mistake in numbering the amended provision. If the submission of Shri Shashi Nandan is accepted then Section 48 of the Act would be rendered otiose as there would be no power with the State Government to pass any order for removal of the Chairman. They also submitted that the charge sheet did not suffer from any infirmity.
5. We have considered the rival submissions made by the learned Counsel for the parties and have perused the record.
6. In order to appreciate the contentions advanced by the learned Counsel for the parties, it is necessary to refer to the provisions of Section 48 of the Act and the various amendments made from time to time. Section 48 of the Act deals with removal of President. Sub-section(1) of Section 48 was deleted by U.P. Act No. 7 of 1949. Sub-section (2) of Section 48 which was substituted by Act No. 27 of 1964 provides that where the State Government has, at any time, reason to believe that any of the circumstances enumerated in (a) or (b) exist, then it may call upon the President to show cause within the time to be specified in the notice why he should not be removed from office. Sub-sections (2A). and (2B) were also added by U.P. Act No. 27 of 1964. Sub-section (2A) provides that after considering any explanation that may be offered by the President and after making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from office while Sub-section (2-B) provides that an order passed by the State Government under Sub-section (2-A) shall be final and shall not be questioned in any Court.
7. Section 48 was again amended by U.P. Act No. 6 of 2004 and the same was published in the State Extraordinary Gazette on 27/2/2004 and the same is as follows:
In Section 48 of the Uttar Pradesh Municipalities Act, 1916, after Sub-section (2) the following sub-section shall be inserted namely:
(2-A) where in an inquiry held by such person and in such manner as may be prescribed, if a President or a Vice-President is prima-facie found to be guilty on any of the grounds referred to in Sub-section (2), he shall cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President or the Vice-President, as the case may be, which shall, until he is exonerated of the charges mentioned in the show case notice issued to him under Sub-section (2), be exercised and performed by the District Magistrate or by any officer nominated by him not below the rank of the Deputy Collector.
8. The statement of objects and reasons for making the aforesaid amendment is as follows:
Section 48 of the Uttar Pradesh Municipalities Act, 1916 (U.P. Act No. 2 of 1916) provides for the removal of President of a municipality. In the said section the State Government is empowered to issue show-cause notice to the guilty President on the grounds mentioned under Section 48, before removing him from office. Most of the Presidents used to delay the proceedings by not replying the show-cause notice in time and they continue to misuse their financial powers. It has therefore been decided to amend the said Act to cease the financial powers of such President or a Vice-President during the pendency of the inquiry and his financial powers and functions will be exercised and performed by the District Magistrate until he is exonerated of the charges.
9. However, soon thereafter Section 48 of the Act was again amended by U.P. Ordinance No. 4 of 2005 which was published in the Gazette on 24/1/2005. It was subsequently converted to U.P. Act No. 2 of 2005 and it was provided that the amendment shall be deemed to have come into force on 27/2/2004 which was the date on which U.P. Act No. 6 of 2004 was published in the Gazette. The amendment is as follows:
2. In Section 48 of the Uttar Pradesh Municipalities Act, 1916, hereinafter referred to as the principal Act, -
(a) in Sub-section (2) the following proviso shall be inserted at the end, namely:
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 discharged 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.
(b) Sub-section (2-A) as inserted on February 27, 2004 by the Uttar Pradesh Municipalities (Amendment) Act, 2004 (U.P. Act No. 6 of 2004) shall be omitted.
10. The contention of Shri Shashi Nandan, learned Senior Counsel appearing for the petitioner is that though Sub-section (2-A) was added after Sub-section (2) to Section 48 of the Act by U.P. Act No. 27 of 1964, yet in view of the amendment made in Section 48 of the Act by U.P. Act No. 6 of 2004 by insertion of Sub-section (2-A) after Sub-section (2) in Section 48 of the Act, it must be deemed that earlier Sub-section (2-A) of the Act stood omitted. He, therefore, submitted that in such a situation, there was no power left with the State Government for removing the President from office as Sub-section (2-A) of the Act which was inserted by U.P. Act No. 6 of 2004 does not empower the State Government to remove the President. He further submitted that in any view of the matter, even Sub-section (2-A) which was inserted by U.P. Act No. 6 of 2004 was subsequently omitted by U.P. Act No. 2 of 2005 with effect from 27/2/2004, i.e. the date when U.P. Act No. 6 of 2004 was published in the U.P. Extraordinary Gazette.
11. We express our inability to accept this submission. The scheme of Section 48 of the Act provides that under Sub-section (2), the State Government can issue a show cause to the President for removing him from office. Under Sub-section (2-A) of the Act as was inserted by UP. Act No. 27 of 1964, the State Government could remove the President from office after considering the* explanation offered by the. president and after making such enquiry as it considered 'necessary. The bone of contention between the parties is the amendment made in Section 48 of the Act by U.P. Act No. 6 of 2004. As seen above, the State Legislature by the aforesaid amendment added Sub-section (2-A) after Sub-section (2) in Section 48 of the Act whereas there already existed Sub-section (2-A) in Section 48 of the Act in terms of the amendment made by U.P. Act No. 27 of 1964. What is to be noted is that U.P. Act No. 6 of 2004 does not repeal/omit the existing Sub-section (2-A) of Section 48 and nor does it mention that the existing Sub-section (2-A) was being substituted. It merely mentions that Sub-section (2-A) shall be inserted in Section 48 after Sub-section (2). This, in our opinion, appears to be an oversight on the part of the State Legislature in not noticing that Sub-section (2-A) already existed in Section 48 of the Act of Sub-section (2). The insertion of any further sub-section in Section 48 of the Act could have been either before or after the existing Sub-section (2-A). It needs to be mentioned that Sub-section (2-A) which was inserted by U.P. Act No. 6 of 2004 provides that where in an enquiry the President or a Vice president is found prima facie guilty on any of the grounds referred to in Sub-section (2), he shall cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President or the Vice President, as the case may be, which shall, until he is exonerated of the charges mentioned in the show cause notice issued to him under Sub-section (2), be exercised and performed by the District Magistrate or an officer nominated by him not below the rank of the Deputy Collector. Sub-section (2-A) as inserted by U.P. Act No. 27 of 1964, however, empowers the State Government to make a final order in the enquiry made under Sub-section (2) of Section 48 of the Act after issuance of show cause notice. It is, therefore, more than apparent that Sub-section (2-A) as inserted by U.P. Act No. 6 of 2004 and Sub-section (2-A) as inserted by U.P. Act No. 27 of 1964 operate in entirely different fields. This apart, the object and reason for inserting Sub-section (2-A) by U.P. Act No. 6 of 2004 is to cease the financial and administrative powers of the President during the pendency of the enquiry as most of the Presidents used to delay the proceedings by not replying to the show cause notice in time and they continued to misuse their financial powers. It cannot by any stretch of imagination be assumed that by insertion of Sub-section (2-A) by U.P. Act No. 6 of 2004, the State Government intended to divest the State Government of the power to remove the President. Section 48 deals with the power of the State Government to remove the President and it would indeed be ironical that the State Government would possess the power to issue notice for removal and also the power to pass an order divesting the President of his financial and administrative powers for the interagum period but would have no power to pass an order for removal of the President. It is, therefore, more than apparent that there is a mistake in numbering the Sub-section (2-A) that was inserted by U.P. Act No. 6 of 2004 in Section 48 of the Act.
12. The view which we have taken finds support from the contents of the proviso added to Sub-section (2) of Section 48 of the Act by. U.P. Act No. 2 of 2005. It provides 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 from the charges mentioned in the show cause notice issued to him and finalisation of proceedings under Sub-section (2-A). It is, therefore, clear that proviso that was added to Sub-section (2) of Section 48 of the Act by U.P. Act No. 2 of 2005 is almost identical to Sub-section (2-A) of Section 48 of the Act that was inserted by U.P. Act No. 6 of 2004 and it provides that the President shall cease to exercise, perform and discharge the financial and administrative powers until he is exonerated of the charges mentioned in the show cause notice and the finalisation of the proceedings under Sub-section (2-A). The State Legislature was thus conscious of the fact that Sub-section (2-A) contained in Section 48 of the Act that was added by U.P. Act No. 27 of 1964 existed because it is only under the said Sub-section (2-A) that proceedings on the basis of the show cause notice are finalised. We, therefore, repel the contention of the learned Senior Counsel that Sub-section (2-A) contained in Section 48 of the Act as was added by U.P. Act No. 27 of 1964 should be deemed to have been omitted by the amendment made in Section 48 of the Act by U.P. Act No. 6 of 2004.
13. In Union of India v. Hansoli Devi and Ors. a Constitution Bench of the Hon'ble Supreme Court held that while interpreting the statutory provisions, though it is not permissible for a Court to add words to a Statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should not be possible to state that with certainty that these words would have been inserted by the draftsman and approved by the legislature had their intention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear, but the unskilfulness of the draftsman in introducing certain words in the statute result in apparent ineffectiveness of the language and in such a situation, it may be permissible for the Court to reject the surplus words so as to make the statute effective.
14. In Smt. Hira Devi and Ors. v. District Board, Shrahjahanpur the Hon'ble Supreme Court held that the Court must try to harmonise various provisions of the Act passed by the legislature, but it is certainly not the duty of the Court to stretch the words used by the legislature to fill in the gaps or omissions in the provisions of an Act.
15. In P.K. Unni v. Nirmala Industries and Ors. the Hon'ble Supreme Court held that while interpreting the statutory provisions the Court' cannot presume that legislature has made a mistake and in case there is any omission or defect, it is not for the Court to rectify it by making its own addition, especially, when literal meaning produces an intelligible result. Similar view has been reiterated in Nalinakhya Bysack v. Shyam Sunder Haldar and Ors. .
16. The Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India , pointed out what approach should be adopted when it noticed that typographical mistake had crept in Order VII Rule 14 (4) of the Code of Civil Procedure and made the following observations for removal of the confusion:
By mistake, instead of "defendant's witnesses", the words "plaintiffs witnesses" have been mentioned in Order VII, Rule (4). To avoid any confusion, we direct that till the Legislature corrects the mistake, the words "plaintiff's witnesses" would be read as "defendant's witnesses" in Order VII, Rule 4. We, however, hope that the mistake would be expeditiously corrected by the Legislature.
17. In this context, we must also make a reference to the decision of Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 which was relied upon by the Supreme Court in N.K. Jain v. C.K. Shah ; M. Pentiah v. Muddala Veeramallapa ; Bangalore Water Supply v. A. Rajappa, ; and Directorate of Enforcement v. Deepak Mahajan and Anr. . Lord Denning observed as follows:
A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the drafts-man. He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he, must supplement the written word so as to give 'force and life to the intention of legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and 'should iron out the creases.
18. In Directorate of Enforcement (supra), the Supreme Court observed:
Authorising, a few of which we have referred to above, show that in given circumstances, it is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislative exercise and its scope and object may not become futile.
19. In Ramesh Mehta v. Sanwal Chand Singhvi and Ors. , the Supreme Court observed as follows:
Examples are galore when with a view to make a statute workable the Court has corrected obvious drafting errors. The Court in suitable cases may add or omit or substitute words.
20. In view of the aforesaid decisions, we are of the considered opinion that insertion of Sub-section (2-A) in Section 48 of the Act after Sub-section (2) by U.P. Act No. 6 of 2004, does not, in any manner, either omit or substitute the earlier Sub-section (2-A) of Section 48 of the Act which was inserted by U.P. Act No. 27 of 1964 and the State Legislature appears to have committed a mistake in numbering the sub-section that was added by U.P. Act No. 6 of 2004.
21. However, the mistake that had occurred stood removed by the subsequent amendment made by the State Legislature in Section 48 by U.P. Act No. 2 of 2005 as Sub-section (2-A) that was inserted in Section 48 of the Act by U.P. Act No. 6 of 2004 was omitted with effect from 27/2/2004.
22. Shri Shashi Nandan, learned Senior Counsel appearing for the petitioner then submitted that no enquiry can be held against the petitioner as the charges contained in the charge-sheet are vague.
23. Learned Counsel for the petitioner has taken us through the charges, though no specific date, time and place of misconduct/misdeeds have been mentioned therein. The charges really lack preciseness to certain extent and material facts which are required to be disclosed to the delinquent.
24. In S.C. Chakrabarty v. State of West Bengal the Hon'ble Apex Court held that it is not permissible to hold an inquiry on vague charges as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against ' him and what kind of defence he can put in rebuttal thereof. The Supreme Court observed as under:
The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.
25. In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the inquiry stood vitiated. (Vide State of Andhra Pradesh v. Sree Rama Rao ). Thus, nowhere a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the inquiry stands vitiated as having been conducted in violation of the principles of natural justice.
26. In Sawai Singh v. State of Rajasthan , the Apex Court held that even in a domestic inquiry the charge must be clear, definite, and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the inquiry from being vitiated for the reason that there must be fair-play in action, particularly, in respect of an order involving adverse or penal consequences.
27. In U.P.S.R.T.C. and Ors., v. Ram Chandra Yadav , while dealing with a similar case, the Apex Court held as under:
In other words, what is required to be examined is whether the delinquent knew the nature of accusation, whether he has been given an opportunity to state his case and whether the departmental authority has acted in good faith. If these requirements are satisfied then it cannot be said that the principle of natural justice has been violated.
28. The purpose of holding inquiry against any person is not only with a view to establish the charge against him or imposing penalty, rather it is conducted With the object of recording the truth and in that sense the outcome of an inquiry may either result in establishing or vindicating his stand and result in his exoneration. Therefore, fair action on the part of the authority concerned is of a paramount necessity.
29. The authority concerned cannot penalise the delinquent on an allegation which is not a part of the charge-sheet, as it would be an order beyond the charge against the delinquent and it cannot be sustained. [Vide Vishwanath Mishra v. U.P. Public Services Tribunal (1985) 2 SLR 708 (All)].
30. In a given case the Inquiry Officer may collect certain information during the inquiry behind the back of the delinquent. Unless it is disclosed to him and the delinquent is given an opportunity to explain, the said material cannot be relied upon. (Vide Executive Committee of U.P. State Warehousing Corporation v. Chandra Kiran Tyagi and State of Assam and Anr. v. Mahendra Kumar Das and Ors. ).
31. In the instant case as the petitioner has already submitted reply to the charge sheet, he cannot be permitted to take advantage of it for the reason that such an issue ought to have been raised prior to filing the reply to the charge-sheet. Thus, we are not willing to examine this issue at such a belated stage.
32. Thus, for all the reasons stated above, there is no merit in this petition. It is accordingly dismissed. However, in the facts and circumstances of the case, the respondents are directed to conclude the enquiry and pass a final order giving strict adherence to the statutory provisions expeditiously, preferably within a period of three months from the date of filing a certified copy of the order before the respondent No. 1 i.e. Principal Secretary, Nagar Vikas Government of U.P.