Allahabad High Court
Smt. R.S. Khan vs State Of U.P. And Ors. on 16 November, 2002
Equivalent citations: 2003(1)AWC366, (2003)1UPLBEC81
Author: M. Katju
Bench: M. Katju, Rakesh Tiwari
JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order dated 12.12.2001, Annexure-1 to the writ petition by which the petitioner has been removed by the State Government from the office of the Chairman of Nagar Palika Parishad, Khurja, Bulandshahr under Section 48 (2) (a)/(b) of the U. P. Municipalities Act.
2. Heard learned counsel for the parties.
3. The petitioner was elected as Chairman of Nagar Palika Parishad, Khurja, Bulandshahr in the election held in November, 2000 and her result was declared on 26.11.2000 vide Annexure-2 to the writ petition. The petitioner took oath of the office on 2.11.2000 vide Annexure-3 to the writ petition.
4. It is alleged in paragraph 4 of the writ petition that an agenda was circulated by the Executive Officer, Nagar Palika Parishad, Khurja, on 4.12.2000 for convening the meeting of the Municipal Board on 11.12.2000 in which 24 members of the Board including the petitioner were present. Two members of the Board were absent. In this meeting various resolutions were passed vide Annexure-5 to the writ petition. The minutes of the meeting dated 11.12.2000 were published in the newspaper 'Dainik Diksha', Bulandshahr, on 14.12.2000 vide Annexure-6 to the writ petition. A copy of the minutes of the said meeting held on 11.12.2000 was also sent to the District Magistrate, Bulandshahr, vide letter dated 16.12.2000, Annexure-7 to the writ petition.
5. After a period of about six months from the above meeting, it appears that a complaint was made by certain members of the Board to the State Government through the Commissioner, Meerut, vide Annexure-8 to the writ petition. In pursuance of this complaint, the Chief Development Officer, Bulandshahr, by letter dated 14.6.2001 asked the President/Executive Officer of the Nagar Palika Parishad to produce the record of the meeting dated 14.12.2000 by 15.6.2001. True copy of the said letter is Annexure-9 to the writ petition. In pursuance of the said letter written by the Chief Development Officer, Bulandshahr, requisite records were furnished by the Board on 15.6.2001 along with the letter dated 15.6.2001 vide Annexure-10 to the writ petition. The Chief Development Officer submitted a report dated 27.6.2001 vide Annexure-11 to the writ petition. It is alleged in paragraph 12 of the writ petition that the respondent No. 4 Chief Development Officer, Bulandshahr, did not issue any show cause notice to the petitioner and also did not provide any opportunity of hearing to the petitioner before submitting the report dated 27.6.2001 and the entire enquiry was held behind the back of the petitioner. It is alleged in paragraph 13 of the writ petition that the said report dated 27.6.2001 is ex parte and has been manufactured at the instance of the rival group. It is alleged that the allegations in the report are totally false and incorrect and the report was prepared in gross violation of the principles of natural justice.
6. It is alleged in paragraph 16 of the writ petition that in the meeting held on 11.12.2000 thirty-nine resolutions were passed. When the complaint was made by the members of Municipal Board thereafter, no resolution was acted upon nor any work done nor any expenses were incurred and there was no loss or Injury caused to the Board. Only resolution No. 1 was acted upon. At any event, the Commissioner, Meerut. passed an order on 20.7.2001 keeping in abeyance the resolution passed in the meeting dated 11.12.2000 by the Board. True copy of the order dated 20.7.2001 is Annexure-13 to the writ petition.
7. In paragraph 19 of the writ petition, it is stated that on 20.7.2001 the respondent No. 2 also issued a notice to the petitioner under Section 35 of the Act granting fifteen days time to file a reply. However, it is alleged in paragraph 22 of the writ petition that before fifteen days expired, the matter was sent to the State Government to take action against the petitioner under Section 48.
8. In pursuance of the letter dated 20.7.2001 written by the respondent No. 2 to the State Government, a notice was issued by the State Government to the petitioner on 10.8.2001. vide Annexure-18 to the writ petition. In pursuance of the notice dated 10.8.2001 the petitioner immediately wrote a letter on 6.9.2001 to the respondent No. 1 to supply a copy of some documents to enable her to file an effective reply. The details of the document are mentioned in the said letter, copy of which is Annexure-19 to the writ petition. In pursuance of the letter dated 6.9.2001, twelve documents were supplied to the petitioner as demanded by her. It is alleged that four of them were not legible hence the petitioner requested to supply her the above documents vide letter dated 24.9.2001, Annexure-20 to the writ petition.
9. In paragraph 29 of the writ petition, it is stated that although the four documents asked by the petitioner was not supplied to her but one month time was granted to her for giving a reply. True copy of the letter dated 29.9.2001 is Annexure-22 to the writ petition. In paragraph 30 of the writ petition, it is stated that the District Magistrate wrote a letter on 22.10.2001 to the petitioner that the documents desired by the petitioner can be taken by her from the office of the Nagar Palika Parishad. True copy of the letter dated 22.10.2001 is Annexure-23 to the writ petition.
10. In paragraph 31 of the writ petition, it is stated that the when the petitioner approached the Executive Officer of the Nagar Palika Parishad, for supply of these documents as indicated by the District Magistrate, the Executive Officer wrote a letter to the State Government on 6.11.2001 that the original copies of the documents demanded by the petitioner were not available because the same were handed over to the Chief Development Officer, Bulandshahr, during the enquiry conducted by him. Therefore, the same may either be sent to the petitioner or to him to supply to the petitioner. True copy of the letter dated 6.11.2001 is Annexure-24 to the writ petition.
11. The petitioner asked the Executive Officer, Nagar Palika Parishad to give reply to her relating to the facts mentioned in the notice dated 10.8.2001 as it is the duty of the Executive Officer to convene the meeting of the Board and to circulate the agenda as the Chairman has no concern with the same. In pursuance of the letter dated 6.11.2001 written by the petitioner to the Executive Officer, a reply was submitted by the Executive Officer vide letter dated 19.11.2001. True copies of the letters dated 6.11.2001 and 19.11.2001 are Annexures-25 and 26 to the writ petition. In paragraph 33 of the writ petition, it is stated that an interim reply was sent by the petitioner to the respondent No. 1 through the District Magistrate, Bulandshahr, as well as by registered post vide letter dated 26.11.2001, Annexure-27 to the writ petition. This reply annexed copy of the letter of the Executive Officer, Annexure-26 to the petition.
12. It is alleged in paragraph 34 of the writ petition that the State Government illegally without any basis has passed the impugned order dated 12.12.2001, removing the petitioner from the post of Chairman, Nagar Palika Parishad, Khurja vide Annexure-1 to the writ petition. It is alleged that the order has been passed illegally and mala fide on political consideration.
13. In paragraph 37 of the writ petition, it is alleged that in the impugned order, no finding has been given that the petitioner is guilty of any misconduct mentioned in Section 48 of the U. P. Municipalities Act. It is alleged in paragraph 38 that no reasons have been given.
14. A counter-affidavit has been filed on behalf of the State Government. In paragraph 3 of the counter-affidavit, it is alleged that the petitioner had earlier filed a Writ Petition No. 44025 of 2001 which was dismissed for default on 21.12.2001. In reply, the petitioner has stated in paragraph 4 of the rejoinder-affidavit, that she has never filed Writ Petition No. 44025 of 2001 and it appears to have been filed by some imposter. We have examined the record of Writ Petition No. 44025 of 2001 and it appears to have been filed by one Pradeep Kumar, advocate on behalf of the petitioner. The enrolment number of the alleged Pradeep Kumar, advocate who is said to have filed Writ Petition No. 44025 of 2001 is 2855 of 1997. It has been alleged by the petitioner that there is no advocate in the name of Pradeep Kumar bearing enrolment number 2855 of 1997. A fraud has been created on the petitioner and on the Court by some imposter. The petitioner has also filed a supplementary-affidavit stating that neither he nor his wife has authorised any advocate to file Writ Petition No. 44025 of 2001 nor they signed the affidavit in that petition, nor the vakalatnama. It appears that the said petition was filed by some rival of the petitioner for mala fide reasons. We have compared the signatures on the vakalatnama filed in Writ Petition No. 44025 of 2001 and the present petition and we find that they are totally dissimilar. The signature on the affidavits also are totally different.
Hence, we hold that the Writ Petition No. 44025 of 2001, was not filed by the petitioner but by some imposter.
15. In paragraph 3 (Hi) of the counter-affidavit, it is alleged that on 21.5.2001 a complaint purporting to have been signed by 16 members of the Nagar Palika Parishad was submitted to the Principal Secretary, Nagar Vikas, U. P., through the Commissioner, Meerut, alleging that the petitioner committed serious financial irregularities. The matter was referred by the Commissioner to the District Magistrate to investigate and report. The District Magistrate deputed the Chief Development Officer to enquire into the matter and submit his report. The complaint related to the meeting dated 11.12.2000 and 2.2.2001 wherein it is alleged that the Chairman, Nagar Palika Parishad without any agenda being given in the notice passed many resolutions incurring huge financial losses to the Nagar Palika Parishad. It is alleged that the Chief Development Officer enquired into the matter and sent a letter dated 14.6.2001 to the petitioner and the Executive Officer, Nagar Palika Parishad, Khurja, to be present in his office with record on 15.6.2001. It is alleged that the Executive Officer appeared on 15.6.2001 before the Chief Development Officer, Bulandshahr, but the petitioner did not appear despite several opportunities and hence the Chief Development Officer completed his enquiry and submitted his report to the District Magistrate dated 27.6.2001. The District Magistrate referred the report to the Commissioner, Meerut and the Commissioner on the basis of the said report passed an order dated 20.7.2001 referring the matter to the Secretary, Urban Development, U.P., for necessary action. True copy of the letter of the Commissioner dated 20.7.2001 is Annexure-C.A. 1 to the counter-affidavit. It is alleged that several financial irregularities have been committed by the petitioner.
16. A show cause notice was issued by the Secretary, Nagar Vikas, U. P., to the petitioner on 10.8.2001, wherein the petitioner was asked to submit her explanation within fifteen days. The petitioner sought for certain documents and even after time was granted to file her explanation, she deliberately avoided to do the same on one pretext or the other. Hence, the concerned authorities had no option but to pass the impugned order removing the petitioner.
17. In paragraph 23 of the counter-affidavit, it is stated that the allegation in paragraph 33 of the writ petition are not denied. In paragraph 33 of the writ petition, it is stated that the petitioner has sent an interim reply to the State Government on 26.11.2001 vide Annexure-27 to the writ petition enclosing copy of the letter of the Executive Officer. True copy of the report of the Executive Officer is Annexure-26 to the writ petition. In his report dated 19.11.2001, Annexure-26 to the writ petition, the Executive Officer has stated that 39 resolutions, which were placed in the meeting held on 11.12.2000 were placed in accordance with the rules. These resolutions were read out in the meeting of the Board and the entire proceedings were in accordance with law. The Executive Officer has further stated in his letter that the duty of preparing the agenda and presenting the resolution is that of the Executive Officer and not of the Chairman. The allegations in the show cause notice dated 10.8.2001 really are against the Executive Officer and not against the Chairman. The Executive Officer has referred to the Division Bench decision of this Court in Writ Petition No. 1510 of 1997, Shyam Lal Jain v. State of U. P., decided on 1.8.1997 : 1977 (3) ALR (SOC) 73.
18. In our opinion, this writ petition deserves to succeed. A perusal of the impugned order Annexure-1 to the writ petition shows that no proper reason has been recorded therein. In paragraph 1 of the impugned order, there is no doubt mention of certain allegations, but paragraph 2 of the impugned order merely states that notice was given to the petitioner but the petitioner avoided to give a reply. In our opinion, even if the petitioner was avoiding to give a detailed reply, she had at least given an interim reply vide Annexure-27 of the writ petition read with Annexure-26 to the writ petition. Hence, at least, this reply should have been considered by the State Government, but it has not been considered at all.
19. In our opinion, the impugned order is quasi-judicial order and it has civil consequences. Hence it should have been passed in accordance with the principles of natural justice. In S.P. Goel v. State of U. P., 1992 AWC 394, it has been held that the President of a Nagar Palika cannot be removed for any kind of misconduct. He can be removed only for some flagrant and serious misconduct but he cannot be removed for technical misconduct as that would undermine democracy and make elected persons easily removable by the executive. It has also been held in that decision that the State Government must deal with the representation given by the petitioner. In the present case, neither proper reasons have been given in the impugned order nor the reply of the petitioner Annexures-27 and 26 of the writ petition has been considered.
20. Moreover, the meeting held on 10,12.2000, was the very first meeting of the newly elected Nagar Palika Parishad and even the resolutions passed in that meeting were stayed by the Commissioner on 20.7.2000. Hence, it is evident that the action of the State Government in passing the impugned order was arbitrary and illegal.
21. In Naseemuddin v. State of U. P., 2000 (3) ESC 1611, a Division Bench of this Court held that the Chairman of Nagar Palika cannot be removed by the State Government without holding an enquiry by the State Government and the State Government cannot simply act upon the report of the District Magistrate. The enquiry can be ordered by the State Government and no one else. In Naseemuddin's case (supra), the Principal Secretary, Nagar Vikas, U. P., simply acted upon the report of the District Magistrate and he did not discuss the various explanations on individual charges that were offered by the petitioner and the removal order was cryptic. It simply referred to the charges against the petitioner. It was held that such an order is illegal. In the present case also, the same appears to be the position as the Secretary, Nagar Vikas, has acted upon the report of the Chief Development Officer and the State Government has not held any enquiry on its own. The Division Bench relied on the decision of this Court in Ishrat AH Khan v. State of U. P., 1986 UPLBEC 1114, in which it was held that if the State Government merely states its conclusion and not the reasons that would be illegal. In the present case, it appears that only conclusion has been recorded and not the reasons and there is no discussion in the impugned order relating to the charges against the petitioner and her interim reply. In Smt. Anwari Begum v. State of U. P., 2000 (4) AWC 3113 : 2001 (3) ESC 1336, it has been held that reasons must be recorded in the order removing the Chairman. The same view was taken in Om Prakash Gupta v. State of U. P., 1991 LCD 458, wherein it was held that recording reasons is mandatory.
22. Thus, we are clearly of the opinion that the State Government has acted in violation of the principles of natural justice by not giving proper reasons in the impugned order and by not considering the explanation of the petitioner and the letter of the petitioner, Annexure-27 of the petition, read with the letter of the Executive Officer of the Nagar Palika Parishad, Khurja, Annexure-26 of the petition which was sent along with the interim reply of the petitioner Annexure-27.
23. For the reasons given above this petition is allowed and the impugned order dated 12.12.2001 is quashed. No order as to costs.