Allahabad High Court
Anwari Begum vs State Of U.P. And Others on 27 September, 2000
Equivalent citations: 2000(4)AWC3113, (2000)3UPLBEC2673
Author: G.P. Mathur
Bench: G.P. Mathur
JUDGMENT G.P. Mathur, J.
1. The challenge in this writ petition is to an order of the State Government dated 3.4.2000 passed under Section 48 (2A) of U. P. Municipalities Act, removing the petitioner from the office of President of Municipal Board, Bharatganj, district Allahabad.
2. The petitioner was elected as President of Municipal Board, Bharatganj. A motion of no-confidence was brought against her on which the District Magistrate by his order dated 29.10.1999 fixed 15.11.1999 as the date for consideration of the motion but the same was defeated. The State Government also initiated steps to remove the petitioner from the office of President and accordingly, served a notice upon her on 13.7.1999 requiring her to show cause why she should not be removed from the said office under Section 48 (2A) of the U. P. Municipalities Act. The petitioner gave a reply to the notice on 16.8.1999. Thereafter, the State Government passed the impugned order on 3.4.2000 removing the petitioner from the office of President of Municipal Board, Bharatganj. It is this order which is subject-matter of challenge in the present writ petition.
3. Sri M. B. Saxena, learned counsel for the petitioner has assailed the impugned order on the ground that certain material was relied upon by the State Government but the copy of the same was not furnished to the petitioner, which resulted in violation of principles of natural justice. He has also submitted that no reasons have been recorded by the State Government while passing the impugned order, which was necessary under sub-section (2A) of Section 48 of the Act, and, therefore, there has been non-compliance of the mandatory provisions of the Act. Learned standing counsel, who has appeared for respondents No. 1 to 5 has, on the other hand, submitted that the petitioner was aware of all the material which had been considered by the State Government, and, as such, there was no violation of principles of natural justice. He has further submitted that though detailed reasons may not be there but the impugned order contains some reasons and, therefore, the requirement of sub-section (2A) of Section 48 has been met and the order removing the petitioner from the office of President of Municipal Board cannot be faulted on that ground.
4. The show cause notice dated 13.7.1999 contains ten charges. However, in the impugned order, reference has been made to six charges only and, therefore, we will confine our discussion to those charges alone. The first charge is that payment of salary to 'safai' workers had not been made through bank but had been made in cash and while doing so, some amount was deducted. The second charge is that the contract for realising Tehbazari for the year 1997-98 was given to Chaman Lal for a very low amount in an illegal manner due to which the Municipal Board suffered financial loss. The third charge is that one Ashiq Ali had deposited Rs. 5,000 as security while participating in the auction held for settling the right of collection of Tehbazari for the year 1995-96 but the said security amount had not been refunded to him due to which a financial irregularity had been committed. The fourth charge is that a sum of Rs. 500 had been deposited through treasury challan for renewal of 1,000 ration cards but in fact an amount of Rs. 2 had been realised from each ration card holder. The fifth charge is that certain appointments had been made on daily wage basis for which prior approval had not been taken. The sixth charge is that a sum of Rs. 10,000 had been realised from each of the safai workers who had been made permanent.
5. The petitioner gave reply to the show cause notice on 17.7.1999 and the copy of the same has been filed as Annexure-9 to the writ petition. In the reply, the petitioner specifically denied all the charges levelled against her. So far as charge No. 1 is concerned, the specific case of the petitioner was that payment of salary to the safai workers had been made through bank and no cash payment was made. She also filed affidavits of Shankar Lal and Madina Devi, (whose names were mentioned in the charge), and they denied the allegation regarding any forcible deduction from their salary. They also denied to have given any statement against the petitioner in any inquiry which had been allegedly made against her at an earlier stage. While dealing with this charge, it is mentioned in the impugned order that the inquiry report dated 30.10.1998 of the Deputy District Magistrate. Meja, showed that deductions had been made from the salary of safai workers and it further showed that the complaint was correct. After mentioning this fact only, the conclusion has been recorded that the charge levelled against the petitioner had been fully established.
6. Regarding charge No. 2, the case of the petitioner was that in the previous year, the contract had been given to Mustaffa for Rs. 67,000 and for the year 1997-98, the contract had been given to Chaman Lal for Rs. 91,000 which was higher amount and proceedings for realisation of the entire amount from him had been initiated in accordance with rules. While considering this charge, the State Government again relied upon the report of the Deputy District Magistrate, Meja dated 30.10.1998, where it is mentioned that the entire amount had not been realised from Chaman Lal. After mentioning the aforesaid fact, the conclusion has been recorded that the charge had been proved.
7. Regarding the third charge, the case of the petitioner was that after the auction had been concluded, the security amount deposited by the prospective bidders had been refunded by the Executive Officer and Ashiq Ali had also been refunded the security money of Rs. 5,000 deposited by him. While considering this charge also, the State Government relied upon the report of the Deputy District Magistrate, according to which the amount of Rs. 5,000 had not been refunded to Ashiq Ali. Here again after mentioning the contents of the aforesaid report, the conclusion has been recorded to the effect that the charge had been established.
8. Regarding charge No. 4, the case of the petitioner was that the amount for renewal of the ration card had been realised by Sunil who was a clerk in the office of Municipal Board. She further submitted that no ration card holder ever made any complaint to her otherwise she would have forthwith initiated an inquiry. However, after corning to know of the facts she had initiated proceedings against the concerned clerk. While considering this charge, the State Government again relied upon the report of the Deputy District Magistrate and recorded its conclusion that the charge had been proved.
9. The fifth charge against the petitioner was that she made certain appointments on daily wage basis without prior approval. Reply of the petitioner was that the appointments had been made on the existing vacancies of regular employees as it had become almost impossible to carry on the work of cleaning and maintaining hygiene in absence of requisite number of 'safai' workers. It was also submitted that Executive Officer was the competent authority to make appointment of class IV employees on daily wage basis and the President of the Municipal Board had no concern with the same. The State Government merely relied upon the report of the Deputy District Magistrate according to which prior approval had been taken while making appointment of Vakil Ahmad and, consequently, similar approval should have been taken while making the appointment of other persons on daily wage basis and accordingly it was held that the charge had been proved.
10. The last charge considered by the State Government is regarding realisation of Rs. 10,000 each from some daily wage 'safai' workers for their regularisation. The petitioner specifically denied this charge. The State Government chose to rely upon the report of the Deputy District Magistrate, which mentions that possibly this amount had been realised by the persons working in office. After considering this report, the State Government held that the explanation offered by the petitioner did not appear to be completely true as it could not be believed that a President will get no share in the money which may have been realised by the persons working in the office. These are the six charges, which have been considered and have been held to have been established. There is no mention of any other charge in the impugned order.
11. The facts mentioned above would show that while considering all the six charges, reliance has been placed upon the report dated 30.10.1998 of the Deputy District Magistrate, Meja. In fact, a perusal of the order would show that the very foundation of the impugned order is the aforesaid report. It is the specific case of the petitioner that the report of the Deputy District Magistrate, Meja was never supplied to her at any time nor was she informed that the said report shall be relied upon against her. These allegations have been made in paragraphs 40 to 42 of the writ petition. The reply to these paragraphs has been given in paragraphs 29 to 31 of the counter-affidavit and the averments made therein are that there has been no violation of the principles of natural justice and that the procedure prescribed by Section 48 (2A) of the U. P. Municipalities Act had been followed. The specific averment made by the petitioner that the copy of the report of the Deputy District Magistrate, Meja had not been supplied to her has not at all been controverted. In fact, the counter-affidavit is totally silent about the same. Almost a similar case came up for consideration before a Division Bench of this Court in Rama Shankar Barnwal v. State of U. P. and others, 2000 (1) UPLBEC 567, and it was held as follows :
"A perusal of the impugned order clearly shows that it is founded on the comments and notes (Samiksha) submitted to the respondent No. 1 by the respondent No. 2, which were not supplied to the petitioner. At no point of time was the petitioner warned that the comments and notes (Samiksha) of respondent No. 2 will be relied upon by the respondent No. 1. Thus, the well-known principle of natural justice, which required the respondent No. 1 to give opportunity to the petitioner, was flagrantly violated rendering the impugned order wholly unsustainable in law."
12. The impugned order is, therefore, liable to be set aside as the copy of the report of Deputy District Magistrate, Meja was not supplied to the petitioner.
13. We also find force in the second contention of learned counsel for the petitioner that no reasons have been recorded. The impugned order shows that after mentioning the charge and the reply of the petitioner, the findings of the Deputy District Magistrate. Meja in his report dated 30.10.1998 have been narrated and, thereafter, there is a heading 'Nishkarsh' (conclusion) and it is written that the charge levelled against the President is fully established. There is no discussion at all as to how the conclusion that the charge had been established was arrived at. Regarding the first charge, the specific case of the petitioner was that payment of safai workers had not been made in cash but had been made through bank. She had also filed affidavits of Shankar Lal and Madina Devi, whose names are mentioned in the charge. They stated in, their affidavits that payment had been made through bank and no deduction from the salary has been made. They further stated that they had not given any statement at any earlier stage or in any alleged inquiry that any kind of deduction from the salary of the safai workers had been made. The State Government has not at all considered this material evidence which had been produced by the petitioner but merely recorded its conclusion. Same procedure has been adopted with regard to all the remaining charges which have been held to have been proved. A perusal of the impugned order would clearly show that there is no discussion at all with regard to any one of the charge and merely a final conclusion had been recorded that the charge had been established. Sub-section (2A) of Section 48 specifically lays down that after considering any explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office. The recording of reasons is absolutely mandatory as the plain language of the statute would show. In Rama Shankar Barnwal (supra), it has been held as follows in para 15 of the report :
"The State Government may remove the President from his office only for reasons to be recorded in writing. In the absence of reasons recorded in writing the order purporting to remove the President from his office would be contrary to the statutory mandate contained in sub-section (2A) of Section 48 of the Act."
14. Similar view has been taken by another Division Bench in Nasiruddin v. State of U. P.. 2000 (2) UPLBEC 1210. We do not want to multiply the authorities, as this legal position seems to be fully settled by a catena of decisions of this Court. Since the impugned order does not contain any reasons, it cannot be sustained and has to be set-aside.
15. In the result, the writ petition succeeds and is hereby allowed. The impugned order dated 3.7.2000 (Annexure-10 to the writ petition) passed by the State Government removing the petitioner from the office of President of Municipal Board, Bharatganj, district Allahabad, is quashed. It is, however, made clear that this order will not preclude the State Government from taking any fresh action in accordance with law.