Allahabad High Court
Satish Chand Sharma vs State Of U.P. And Ors. on 19 January, 2004
Equivalent citations: 2004(2)AWC1066, (2004)1UPLBEC684, 2004 ALL. L. J. 2392, 2004 A I H C 3613, (2004) 2 ALL WC 1066, (2004) 55 ALL LR 177
Author: B.S. Chauhan
Bench: B.S. Chauhan, Arun Tandon
JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 22.11.2003 (Annexure-1), passed by the respondent No. 2, removing the petitioner from the post of Member of Ward No. 9 Nagar Palika Parishad, Pilkhuwa, district Ghaziabad.
2. Facts and circumstances giving rise to this case are that the petitioner was elected as a Member of said Nagar Palika in the election held on 23.11.1999 and had been working as a President of various Committees under the provisions of U. P. Municipalities Act, 1916 (hereinafter called the Act 1916). As a President of the Committee, he had passed certain orders, and brought certain informations and unearthed several irregularities adopted by the employees of the Municipality, and in particular, he raised the grievance against respondent No. 5, the clerk of the Municipality for not maintaining the minutes book of the Board's meeting on 20.12.2000. On his complaint, an enquiry was directed against the respondent No. 5 by the Divisional Commissioner vide order dated 16.3.2001. The respondent No. 5 made a complaint dated 20.4.2001 (Annexure-2) to respondent No. 4 as well as to No. 6 against the petitioner, alleging that on 20.4.2001 at 2.20 p.m., in the premises of the Municipal Board the petitioner had threatened him and pressurised and told that he would see him as he was always siding with the Chairman. But, subsequently he told that whatever he wanted to tell him, he would say so in the Board's meeting. Subsequently another retired employee Mahesh Chandra entered the same room and petitioner told him that if he wanted to get his pension he should throw the dirts in the house of the Executive Officer and that of the Chairman. He should pressurise the said persons and if he does so petitioner would support him. Petitioner told the retired employee Mahesh Chandra that the Executive Officer and Chairman had misappropriated the amount of tax collected to the tune of Rs. 18 lacs and they had made illegal payments to the contractors. He further said that he did not like the employees involved in politics. The complainant further alleged that the petitioner was involved in caste based politics and dividing the employees for his personal gain. He is not a man of good character. He can cause any harm to the complainant, even physical harm.
3. The said complaint was forwarded to the respondent No. 2, through the District Magistrate, and the Chairman of the Nagar Palika respondent No. 6, wherein, it was also mentioned that the petitioner was creating hurdle in the Board's meeting and all the employees except few had been harassed by him. On the basis of the said complaint and in exercise of the power under Section 32 of the Act 1916, District Magistrate vide order dated 2.5.2001 directed the Sub-Divisional Magistrate, Hapur to ascertain the truthfulness of the allegations made in the complaint dated 25.4.2001 and submit his report. In pursuance of the same, the Enquiry Officer asked the petitioner to appear before him vide letter dated 2nd May, 2001 (Annexure-C.A. 1) to appear on 9.5.2001. On 9.5.2001 petitioner attended the office of the Enquiry Officer but the Enquiry Officer was not available. However, it is alleged by the petitioner that he was not served the copy of the complaint and in his letter dated 9.5.2001, he enquired from the Enquiry Officer as on what complaint the enquiry was being conducted, nor he was aware as under what circumstances he had been asked to appear before him ; the copy of the documents may be furnished so that he may file the effective reply. Vide letter dated 11.5.2001 (Annexure-C.A. 3) the petitioner was informed that it was a legal enquiry and as per the provisions of law, the copy of the complaint cannot be furnished to him. However, he was given three days' time to inspect the same and submit his reply by 16th May, 2001. Petitioner submitted his reply dated 26.5.2001 (Annexure-4) denying the allegations and further submitted that respondent No. 5 was responsible for not recording the minutes of the Board's meeting in accordance with law. But, he claimed that there must be a proper enquiry. Evidence should be led and petitioner should be given an opportunity to lead evidence in defence. However, the respondent No. 5 wrote a letter dated 9.5.2001 to the Enquiry Officer (Annexure-5) that he did not want to lead any evidence and say anything whatever he wanted to say, as he had already stated in his complaint dated 20.4.2001 (Annexure-2). On 16.6.2001 Tax Officer of Nagar Palika also submitted a written reply (Annexure-6) before the Enquiry Officer, wherein he stated that the petitioner has asked the respondent No. 5 as, to why he was not recording the minutes of the Board's meeting correctly and told him in his presence that petitioner would not spare respondent No. 5 easily as he would lodge complaint with the higher authority and would bring a motion in the Board's meeting against him.
4. On the basis of the aforesaid enquiry report dated 18.6.2001 (Annexure-7) submitted by the Enquiry Officer to the District Magistrate, Ghaziabad, wherein the allegations made in the complaint were found to be proved observing that if petitioner had any grievance against respondent No. 5 he could raise the issue in the Board's meeting rather than threatening him. He was also found guilty of instigating the other employees against the Chairman of the Board and also for working in disorderly manner in the meeting of the Board as he did not permit the conduct of the Board's meeting peacefully. On the basis of the same, the District Magistrate, Ghaziabad wrote a letter dated 9th July, 2001 submitting the same. On the basis thereof, a show cause notice dated 23.10.2001 (Annexure-8) was issued to the petitioner for creating disorder in conduct of the meeting of the Board and not permitting it to be concluded peacefully and he was asked to submit his explanation within the stipulated period.
5. Petitioner submitted his reply dated 10.11.2001 (Annexure-9) submitting inter alia that, if there was some altercation with the respondent No. 5 clerk and instigated the retired employee Mahesh Chandra, that cannot be held to be creating disorder in the Board's meeting, and further explained that he had never misbehaved in the meeting of the Board. In support of his case, he also annexed the copy of the letter of the local M.L.A. Narendra Singh Sisodia dated 6.11.2001 stating that the allegations were false. An affidavit was filed by the retired employee Shri Mahesh Chandra that the petitioner had never instigated him for throwing the dirts in the house of the Executive Officer or Chairman. He stood retired in 1994 and has got nothing to do with the working of the Municipality. The letter of the office bearers of the Employees' Association that conduct of the petitioner had always been very good was also filed. Subsequently, letters were written by a large number of members of the Municipality to the District Magistrate that the allegations made against the petitioner were totally false. The Board in its meeting held on 13.10.2003 (Annexure-10) resolved unanimously that respondent No. 5 should not be given responsibility of writing the minutes book and disciplinary action should be taken against him for recording the minutes wrongly.
6. After considering the explanation and other documents on record the respondent No. 2 passed the order impugned dated 22.11.2003 (Annexure-1) removing the petitioner from office for creating obstacle in Board's meeting and for getting the work done arbitrarily by pressurising the officials and officers instigating Safai Karmchari against the officers. Hence this petition.
7. Shri Manish Goyal, learned counsel for the petitioner has submitted that no proper charge-sheet has ever been served upon the petitioner giving specific incidence as in which Board's meeting petitioner had created a hurdle or obstacle. The show cause notice dated 23.10.2001 (Annexure-8) contained only one charge that he was creating hurdle in the meeting of the Board and did not let it concluded peacefully. There was no allegation of pressurising any employee or instigating any other employee to do something against the Executive Officer or the Chairman. No person has ever led any evidence on this charge. The authority had acted outside the scope of enquiry and taken into consideration the complaint filed by the respondent No. 5 which was not the subject matter of the charge-sheet or instigating one retired employee Mahesh Chandra. The show cause notice dated 23.10.2001 does not specify that charge/allegation though the petitioner had explained about every thing, therefore, the order itself is liable to be quashed. As no person was examined in respect of the charge of acting in disorderly manner in the meeting of the Board, petitioner could not get any opportunity to cross-examine. The enquiry had been conducted in a arbitrary manner and finding had been recorded without any evidence. Thus, the finding being perverse, the impugned order becomes liable to be quashed.
8. The learned standing counsel appearing for the respondent Nos. 1 to 3 and Shri G. M. Tripathi, learned counsel for respondent No. 4 have submitted that a enquiry was conducted firstly by the Enquiry Officer and on the basis of his report, the show cause notice was issued to the petitioner, and after considering his explanation the order impugned has been passed, and in exercise of the limited power of judicial review, the writ court should not interfere with and the petition is liable to be dismissed.
9. We have considered the rival submissions made by the learned counsel of the parties and perused the record.
10. The Act 1916 stood amended by the U. P. Municipalities (Amendment) Act, 2001, by which the provisions of Section 87A stood repealed/omitted. The said provision provided for procedure of removal of a Chairman by moving a non-confidence motion. Therefore; by bringing the aforesaid amendment in the Act, it is clear that the State Legislature felt it necessary to safeguard the interest of the Chairman considering the rights and privileges of the adult suffrage of the Municipal area. More so, by amendment in the Constitution and particularly by addition of Chapters IX and IX-A by 73rd Constitution Amendment in 1992 and the U. P. Urban Local Self-Government Laws (Amendment) Act, 1976, the Parliament and State Legislature have stressed upon the importance of the Local Self-Government. There can also be no quarrel to the settled legal proposition that removal of a duly elected Member is a quasi-judicial proceedings in nature. Vide Indian National Congress (I) v. Institute of Social Welfare and Ors., (2002) 5 SCC 685. Therefore, the principles of natural justice require to be given strict compliance, even in absence of any provision providing for the same. Principles of natural justice require to provide a fair opportunity of defence to such an elected office bearer.
11. Undoubtedly, any elected office bearer in Local Self Government has to be put on a higher pedestal than of a Government servant. If the temporary Government employee cannot be removed on the ground of misconduct without holding a ful-fledged enquiry, it is difficult to imagine how an elected office bearer can be removed without holding a fulfledged enquiry. In service jurisprudence, minor punishment is permissible to be imposed while holding the enquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a fulfledged enquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in entirely different context that of the Government employees for the reason that for the removal of the elected office bearers, a more stringent procedure and standard of proof is required. (Vide Rameshwari Devi v. State of Rajasthan and Ors., AIR 1999 Raj 47).
12. The Hon'ble Apex Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma v. State of Punjab and Ors., (2001) 6 SCC 260. The Court held that removal of an elected office bearer is a serious matter. The elected office bearer must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is valuable statutory right of not only of the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him, therefore, the grounds under a particular provision for removal must be strictly adhered to and unless a clear case is made out, there can be no justification of his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come to any political pressure. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed-procedure known to law or is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority had applied its mind to the allegations made and the explanation furnished by the elected office bearers sought to be removed.
13. In State of U.P. and Anr. v. Nand Kumar Agrawal, 2000 (3) AWC 2542 (SC) ; JT 2000 (7) SC 302, while considering the provisions of Section 48 of the Act 1916, the Hon'ble Supreme Court held that personal hearing is not contemplated in the said provision, though of course, if the authorities think it fit, they may give the opportunity of personal hearing while holding appropriate enquiry.
14. A Division Bench of this Court in Smt. R.S. Khan v. State of U.P. and Ors., 2003 (1) AWC 366 : (2003) 1 UPLBEC 81, placing reliance upon earlier judgment of this Court in S.P. Goel v. State of U. P., 1992 AWC 394 and Naseemuddin v. State of U. P., 2000 (3) AWC 1803 (LB) : 2000 (3) ESC 1611, held that depending upon the facts and circumstances of the case, the enquiry should be held complying with the principles of natural justice, giving opportunity of defence to the erring elected office bearer and State Government must pass a speaking and reasoned order considering the explanation of the elected office bearer.
15. Relevant parts of the statutory provisions, i.e., Section 40 of the Act 1916 read as under :
"Section 40 (1) (a)...................
X X X X X X X
(g) that he has been guilty of persistent misbehaviour or disorderly conduct at meetings of the board and a complaint to that effect is made to the State Government by the President or any other member.
X X X X X X X (3) The State Government may remove from the Board a member who, in its opinion, while being a member during the current or the last preceding term of the Board, acting as President or a Vice-president, or Chairman of a Committee, or member, or in any other capacity whatsoever, has, whether before, or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, so flagrantly abused his position, or so wilfully contravened any of the, provisions of this Act or any rule, regulation or bye-law, or caused such loss or damage to the fund or property of the Board, as to render him unfit to continue as a member :
Provided that when either the State Government or the Prescribed Authority, as the case may be, proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned and when such action is taken the reasons therefor shall be placed on record."
16. The aforesaid provisions make it clear that before passing the order of removal, the State Government has to form its opinion that the member has flagrantly abused his position as a member.
17. The power of judicial review of the writ court is limited, but ft has competence to examine as to whether there was material to form such an opinion as required by law. (Vide Purushottam Chandra v. State of U.P. and Ors., AIR 1955 All 106). It further requires a fulfledged opportunity of explanation, which implies that the member should be permitted to examine the witnesses against him and if necessary to cross-examine them and produce evidence in his defence. (Vide Mohar Singh v. President Notified Area Committee, 1956 ALJ 759).
18. Sub-section (4) of Section 40 of the Act 1916 necessarily implies an opportunity to explain the conduct attributed to the member or any other material before the State Government has formed the opinion that the member has so flagrantly abused in any manner his position as a member of the Board and to render his continuance as a member detrimental to public interest. All these allegations may specifically require to be made in the charge-sheet and reasonable opportunity to lead evidence or to rebut the evidence led by the department should be given as it is impliedly included the reasonable opportunity of explanation. More so, the power of removal is to be exercised quasi-judicially and not in an arbitrary manner. (Vide Mujeebul Hasan v. Commissioner, 1966 ALJ 1022). The State Government while issuing the show cause notice must specify the action proposed to be taken against him. The show cause notice becomes bad for want of such a specification. (Vide Bhagwan Dass v. State of U. P., 1957 ALJ 286 ; State of U.P. v. Mewa Lal Yadav and Ors., 1961 ALJ 120 and Abdul Latif Nomani v. Commissioner, Gorakhpur, AIR 1968 All 44).
19. While dealing with the provisions of Sub-section (4) of Section 40 of the Act 1916, a Division Bench of this Court in Abdul Latif Nomani (supra), held as under :
"Then we have also held that the notices issued under Section 40 (4) did not give to the two members the opportunity of explanation contemplated by that provision. Section 40 (4) is a mandatory provision of law, and it is clear that before action is taken under Section 40 (1) the Commissioner is bound to afford an opportunity of explanation to the member concerned. When is an order a nullity has been recently discussed by the Supreme Court in Ram Swarup v. Shikar Chand, AIR 1966 SC 896, and it seems to us that the cases before us fall within the rule laid down there. A denial of the rule of natural justice requiring a person to be heard before action is taken against him results in a null and void order. That was laid down by the House of Lords, by majority, in Ridge v. Baldwin, (1966) AC 40, where the Chief Constable of a borough police force had been dismissed without being informed of the charge against him and without being given an opportunity of being heard in his own defence. The decision in that case was referred to with approval by our Supreme Court in Associated Cement Companies v. P.N. Sharma, AIR 1965 SC 1595. Indeed, in this country the doctrine has been treated as an integral feature of our legal philosophy, and in Ebrahim Vazir v. State of Bombay, AIR 1954 SC 229, was recognised by the Supreme Court as involved in the safeguard of Constitutional rights.
In our judgment, therefore, the orders of the Commissioner removing Sanaullah Sardar and Mohammad Yusuf are null and void."
20. In Bhagwan Das (supra) this Court held that the object of giving out the charges is to give out in sufficient details the conduct on which the opinion is formed so as to enable the petitioner to give his explanation.
21. In B.R. Patanga v. State of Punjab, AIR 1972 SC 1571, the Hon'ble Apex Court, explaining the meaning of term FLAGRANTLY held as under :
"The expression 'flagrantly' means glaringly, notoriously, scandalously. A position is said to be abused when it is put to a bad use or for wrong purpose. No doubt it may vary with the circumstances."
22. In State of U.P. v. M.L. Yadav. 1961 ALJ 120, this Court, while examining the similar issue held that the use of the expression "flagrantly abused" in Sub-section (3) of Section 40, therefore, requires that even if there is no sinister or oblique motive, there must be something to show that in committing the acts complained of the member concerned was using his position as a member for a wrong purpose, or that he was taking some advantage of his position which he ought not to have taken, and that he was doing so in glaring and scandalous manner.
23. In Joginder Singh v. State of Punjab, AIR 1963 Punj 280, the Punjab High Court held as under :
"The expression "flagrantly abuses his position, as a member of the Committee" used in Section 16 (1) (e) of the Punjab Municipal Act 3 of 1911, cannot be said to carry the implication that even if the petitioner had broken the law to the detriment of the Municipal Committee on one or two occasions, it cannot be said that he had 'flagrantly abused his position', the suggestion being that the expression 'flagrantly' indicates that the abuse of position must have occurred over a long period of time and in connection with repeated acts. What the clause means is that if a member of a Committee, in disregard of his duty does any act or acts which shock a reasonable mind, then he can be removed by the State Government, and again it is the State Government that has to form that opinion. If the allegations of fact made against the petitioner were true, then the State Government could well have held that the petitioner had 'flagrantly abused' his position as a member of the Committee."
In Mewa Lal Yadav (supra), this Court held as under :
"The point is in our opinion concluded against the appellants by the decision of this Court in Shri Purshottam Chandra v. State of Uttar Pradesh, 1957 ALJ 885. It was pointed out in that case that the two conditions precedent for taking action under Section 40 (3) of the Municipalities Act were that the conduct of the member to which exception was taken must be conduct in his capacity as a member and that the conduct should be such as can amount to a flagrant abuse of his position as a member. Rejecting the precise argument now being advanced it was observed :
"Learned counsel's argument is that a member abuses his position as a member of the board if, while he is a member, he contravenes any of the provisions of the Municipalities Act or the bye-laws made thereunder. We are unable to accept this view, but, even if it be correct, the conduct of the appellant is not such as would bring him within this definition. The learned Judge has held, and we think rightly, that while he was a member the appellant contravened no bye-law ; if contravention there was, it occurred when the construction of the building commenced, and this was before the appellant became a member. Without attempting an exhaustive definition, we are of opinion that a member abuses his position as a member when he misuses his position for the benefit of himself or some other person."
According to the dictionary 'flagrantly' as an adverb means 'glaringly', 'notoriously' or 'scandalously' and 'abuse' as a transitive verb means 'misuse', 'make bad use' or 'use for a wrong purpose or need, and take a bad advantage'. The use of the expression 'flagrantly abused' in Sub-section (3) of Section 40 therefore, requires that even if there is no sinister or oblique motive there must be something to show that in committing the acts complained of the member concerned was using his position as a member for a wrong purpose or that he was taking some advantage of his position which he ought not to have taken and that he was doing so in a glaring and scandalous manner. Without unduly stretching the meaning of the expression, therefore, an act cannot be brought within its purview simply because it in some way contravenes any of the provisions of the Municipalities Act or the bye-laws made thereunder. It was not said in the charge-sheet in connection with either of the two orders passed by the respondent that in passing them he had in any scandalous way attempted to misuse his position as a member."
24. Thus, the authority is to keep in mind the aforesaid settled legal proposition that before passing any order of removal a finding is to be recorded as to whether a member had flagrantly abused his position and persistently misbehaved or disorderly acted in the meetings of the Board. In this respect, there has to be specific charge giving particular date and details of the incident when the member acted disorderly in the meeting of the Board.
25. In S.C. Chakrabarty v. State of West Bengal AIR 1971 SC 752, the Hon'ble Apex Court held that it is not permissible to hold an enquiry 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 harge 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 principles 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."
26. 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 enquiry stood vitiated. (Vide State of Andhra Pradesh v. Sree Rama Rao, AIR 1963 SC 1723). 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 enquiry stands vitiated as having been conducted in violation of the principles of natural justice.
27. In Sawat Singh v. State of Rajasthan, AIR 1986 SC 995, the Apex Court held that even in a domestic enquiry the charge must be clear, definite, and specific as it would be difficult for any delinquent to meet that 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 enquiry 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.
28. In U.P.S.R.T.C. and Ors. v. Ram Chandra Yadav, 2000 (4) AWC 2709 (SC) ; (2000) 9 SCC 327, 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."
29. The purpose of holding enquiry 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 enquiry recording the truth and in that sense the outcome of an enquiry 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.
30. The authority concerned cannot penalise the delinquent on an allegation 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).)
31. In a given case the Enquiry Officer may collect certain information during the enquiry 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, AIR 1970 SC 1244 and State of Assam and Anr. v. Mahendra Kumar Das and Ors., AIR 1970 SC 1255).
32. Enquiry Officer is not entitled to collect evidence behind the back of the delinquent on a charge framed against him and arrive at his finding on the basis of that private enquiry. (Vide Krishna Chandra Tandon v. Union of India and Ors., AIR 1974 SC 1589).
33. Where a delinquent is given a show cause notice, it has to be considered objectively and not subjectively. The authority is under an obligation to specify as to which part of the explanation of the delinquent is not acceptable and for what reason otherwise it would be a case of non-application of mind for not recording the reasons. (Vide B.D. Gupta v. State of Haryana, AIR 1972 SC 1472).
34. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on the vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
35. The instant case requires to be examined in the light of the aforesaid settled legal propositions. The complaint filed by respondent No. 5 (Annexure-2) was in respect of pressurising and threatening him for not writing the minutes book of the meeting of the Board correctly and also in respect of instigating one retired employee Shri Mahesh Chandra. When his complaint was forwarded by respondent No. 6, it was added by her that petitioner was also not permitting the meetings to be held in an orderly manner. In the enquiry conducted by Sub-Divisional Magistrate, Hapur, respondent No. 5 did not adduce any evidence, nor he was examined by the department. He simply wrote a letter that he did not want to say anything more than what he has said in his complaint (Annexure-2). Another retired employee Shri Mahesh Chandra filed an affidavit denying the part of the complaint made by respondent No. 5 of his instigation by the petitioner to throw dirts in the house of the Executive Officer and the Chairman. A large number of Members of the Board and local M.L.A. wrote letters denying the allegations. No body led evidence whatsoever in respect that the petitioner had not been permitting the Board's meetings to be conducted in an orderly manner except a bald statement in the forwarding letter of the complaint made by respondent No. 5, by the respondent No. 6. There is no other evidence. Petitioner had always been demanding the fulfledged enquiry and an opportunity to lead evidence and cross-examine the witnesses of the department. The show cause notice dated 23.10.2001, issued by respondent No. 1. reads as under :
"It has been brought to the notice of the Government that Shri Satish Chandra Sharma. Member, Ward No. 9, Nagar Palika Parishad, Pilkhuwa, District Ghaziabad, creates hindrance in the working of the Nagar Palika and does not permit the Board's meetings to be conducted in an orderly manner."
36. This was the only charge in the show cause notice for which petitioner was asked to furnish his explanation. It did not have any reference to the complaint by respondent No. 5 or instigating the retired employee Mahesh Chandra against the officials/officers of the Board nor does it specify any particular allegation giving rise to a particular incident, date and place thereof. Petitioner submitted the reply to the same denying the allegations submitting that the respondent No. 5 had subsequently been restrained by resolution of the Board from recording the minutes of the meeting of the Board. He had always been guilty of recording the minutes of the meeting wrongly. The charge had been levelled only for political reasons and in support thereof large number of Members and local M.L.A. also submitted their letters/affidavits in support of the petitioner. In the impugned order, charges were found to be proved against the petitioner for creating obstacle in the work, instigating the retired employee against the officers and officials of the Board and also disrupting peace and order in the Board's meetings, and in view thereof, he was removed from the Membership of the Board.
37. We found it shocking as on what basis order impugned has been passed. How the authority concerned failed to apply its mind and recorded such a finding as there could be no evidence to substantiate it. The authority concerned who was responsible to maintain the democratic set-up of the country, has been responsible thwarting the same in contravention of his legal obligation. It had no quasi-judicial approach to examine the material on record in a proper perspective rather seems to have been bent upon to remove the petitioner of his own whim for some extraneous considerations. No enquiry ought to have been conducted on such vague charge and in such flagrant violation of principles of natural justice. The Legislature in its wisdom has been conscious providing different punishments. We fail to understand as to how such disproportionate punishment could be Imposed upon the petitioner by the respondent No. 1. There is no finding of fact that petitioner had flagrantly abused his position as a Member of the Board or so wilfully contravened any of the provisions of the Act 1916 or the Rule. No reasons have been recorded for imposing the punishment.
38. Clause (6) of Section 40 of the Act, 1916 itself provides that in an appropriate case for a proved misconduct the Member may be warned or placed under suspension for a specific term not exceeding three months at a time. We fail to understand that the authority concerned did not even consider it proper to give any adherence, whatsoever, to the statutory provisions. Order Impugned dated 22.11.2003 is perverse being based on no evidence and thus, liable to be quashed.
39. Petition succeeds and is, therefore, allowed. The order dated 22.11.2003 (Annexure-11) is hereby quashed.
40. There shall be no order as to costs.