Allahabad High Court
Nand Kumar Maurya vs State Of U.P. And 4 Others on 20 December, 2022
Bench: Manoj Kumar Gupta, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 21 Case :- WRIT - C No. - 34780 of 2022 Petitioner :- Nand Kumar Maurya Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Udayan Nandan Counsel for Respondent :- C.S.C. Hon'ble Manoj Kumar Gupta,J.
Hon'ble Jayant Banerji,J.
(Per Hon. Jayant Banerji, J.)
1. Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri Udayan Nandan for the petitioner and Sri Rajiv Gupta, learned Additional Chief Standing Counsel for the respondents.
2. Though, a counter affidavit has been filed on behalf of the respondents, learned counsel for the petitioner states that there is no requirement to file rejoinder affidavit and, therefore, with the consent of learned counsel for the parties, the case is taken up for final disposal.
3. Under challenge in the present petition is an order dated 3.11.2022, passed by the Principal Secretary, Nagar Vikas, U.P. at Lucknow (Respondent no.2), whereby the petitioner has been removed from the post of President of Nagar Panchayat, Khamariya, District Bhadohi in purported exercise of power under Section 48 (2)(b) of the U.P. Municipalities Act, 19161. Further direction has been sought commanding the respondents not to interfere in the peaceful working of the petitioner on the post of President, Nagar Panchayat, Khamariya, District Bhadohi pursuant to the impugned order dated 3.11.2022.
4. Brief facts of the case are that the petitioner was elected as President, Nagar Panchayat, Khamariya, District Bhadohi in the year 2017 and thereafter, he was discharging duties of President. Pursuant to a complaint filed against the petitioner regarding certain irregularities having allegedly been committed by him in purchase of dustbins, which were to be installed in the Nagar Panchayat and that the firm in question from which the aforesaid dustbins were purchased was under the proprietorship of wife of brother of the petitioner, notice was issued to the petitioner who submitted his reply denying the allegations of impropriety.
5. Thereafter, an inquiry was conducted and a report dated 24.6.2019 was filed by the Sub-Divisional Magistrate, Aurai, District Bhadohi to the effect that no irregularity had been committed in purchase of dustbins and it was recommended that no action was required to be taken. The report was forwarded by the District Magistrate to the Commissioner by a letter dated 15.7.2019 and thereafter, no action was taken on the said report and the matter came to an end. However, thereafter, another inquiry was conducted under the order of Additional Commissioner by the Sub-Divisional Magistrate without hearing the petitioner, in which it was held that various irregularities have been committed by the petitioner in the matter relating to purchase of dustbins. Another complaint on the same allegation was filed against the petitioner, on which inquiry was conducted by the Additional District Magistrate and on that basis, a show cause notice dated 3.9.2020 was issued to the petitioner. The petitioner submitted a reply dated 3.10.2020 to the aforesaid show cause notice and denied the allegations made therein.
6. It was stated by the petitioner that all purchases were made by the Municipality from the portal created by the Central Government approved by a committee formed by the District Magistrate. Further, it was submitted that provisions of Section 82 of the Act of 1916 would not apply in the present case, since the petitioner is neither partner nor has any concern in the firm run by the wife of his brother and, even otherwise she does not come within the definition of family of the petitioner.
7. Subsequently, on the direction of the concerned Sub-Divisional Magistrate, the concerned Revenue Official conducted an inquiry and submitted a report on 5.11.2020 that the petitioner is guilty of not supervising the purchases made by the municipality which is in the breach of provision of Section 50 (bb) of the Act of 1916. Further, it was held that grant of contract to a firm run by the wife of brother of petitioner is against the provision of Section 82 of the Act of 1916. The petitioner submitted reply to the aforesaid report on 16.3.2021, in which the allegations of irregularities were denied. The District Magistrate, thereafter constituted a fresh committee comprising of some officials who submitted a fresh report on 7.6.2021 recommending action against the petitioner as per provisions of Section 48 (2) of the Act of 1916.
8. On the basis of the report dated 7.6.2021, the Additional Chief Secretary, Nagar Vikas issued a show cause notice to the petitioner dated 11.11.2021 and simultaneously ceased financial and administrative powers of the petitioner. The aforesaid show cause notice dated 11.11.2021 was challenged by the petitioner in Writ-C No. 31925 of 2021 (Nand Kumar Maurya Vs. State of U.P. and others) which petition was allowed by this Court and the notice-cum-order dated 11.11.2021 was set aside. Liberty was granted to the State Government to proceed afresh after examining the material on record and the reply submitted by the petitioner in respect of the allegations levelled against the petitioner and pass appropriate orders afresh in accordance with law.
9. Thereafter, a fresh show cause notice dated 27.6.2022 was issued to the petitioner, simultaneously ceasing his financial and administrative power. The petitioner submitted a detailed reply to this show cause notice on 11.7.2022 denying the charges levelled against him. Since, no decision was being taken by the State Government on the matter, the petitioner filed another writ petition being Writ-C No. 29341 of 2022. However, the respondent no.2 passed the impugned order dated 3.11.2022 removing the petitioner from the post of President, Nagar Panchayat.
10. The contention of the learned counsel is that the order impugned has been passed without any application of mind and without taking into account the law laid down by this Court in the matter of conducting enquiry against elected representative in the case of Shaila Tahir Vs. State of U.P. and others (Writ-C No. 21595 of 2022 decided on 13.10.2022). The contention is that all the charges against the petitioner were looked into by this Court in previous Writ-C No. 31925 of 2021 and after considering the provisions of the Act as well as judgements of this Court, it was held that decision to proceed under Section 48(2) of the Act of 1916 was not preceded by proper application of mind to the material placed by the petitioner and the impugned order blindly relied upon the report of District Magistrate dated 7.6.2021 which was not furnished to the petitioner during the hearing by the State Government. It was also held in the previous writ petition that there was no application of mind by the authority concerned. It is stated that in the impugned order dated 3.11.2022 the authority has proceeded with a closed and premeditated mind and has not independently considered the reply filed by the petitioner.
11. Learned Additional Chief Standing Counsel has stated that adequate opportunity of hearing was afforded to the petitioner prior to passing of the impugned order. It is stated that after considering the letter of District Magistrate and examining the joint inquiry report, a fresh show cause notice was issued to the petitioner and it was found that the purchase of dustbins was made without comparing dustbins of the same capacity, but comparison was made with the dustbins of higher capacity in order to provide undue benefit to a particular firm, which belongs to wife of his real younger brother. It is stated that entire process adopted by the petitioner was contrary to the Government Order dated 23.8.2017 and undue advantage was provided to the firm of his family member. It is stated that on the same allegations, departmental proceedings have been initiated against an Executive Officer and Clerk of the Nagar Panchayat, who were also found guilty. It is stated that prior to passing of the impugned order, all inquiry reports and other relevant records were provided to the petitioner and principles of natural justice were duly complied with.
12. Having considered the rival submission of the learned counsel for the parties and after perusing the record, it is apparent that no proper inquiry was conducted by the respondent nos. 1 and 2 in respect of the charges framed against the petitioner. This Court in the case of Shaila Tahir (supra) has considered the matter as under:-
"21. In Ravi Yashwant Bhoir (supra), the Supreme Court held that removal of a duly elected member/president of Municipal Council on basis of proved misconduct, is a proceeding quasi-judicial in nature. Therefore, the principles of natural justice are required to be given full play and a proper opportunity of placing the defence is a must. It was also held that an elected official of a local self government holds a much higher pedestal as compared to a government servant. If a government servant cannot be removed without a full-fledged enquiry, there is no gainsaying that in case of an elected representative, holding of full-fledged enquiry is imperative in law. A more stringent procedure and standard of proof is required-
30. There can also be no quarrel with the settled legal proposition that removal of a duly elected Member on the basis of proved misconduct is a quasi-judicial proceeding in nature. (Vide: Indian National Congress (I) v. Institute of Social Welfare & Ors., AIR 2002 SC 2158). This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab & Anr., AIR 1963 SC 395 and Union of India v. H.C. Goel, AIR 1964 SC 364. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office bearer.
31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office bearer can be removed without holding a full fledged inquiry.
32. In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full fledged inquiry 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 an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required.
22. The Supreme Court also held that removal of elected person casts stigma upon him and takes away his valuable statutory rights. The result of his removal is that not only he, but his electoral college is also deprived of the representation by him. Moreover, he also stands disqualified to contest the election for a stipulated period.
23. In the instant case, the petitioner, who is President of Municipality, would stand disqualified from contesting a re-election as President or Member for a period of five years from the date of her removal in view of Section 48 (4) of the U.P. Municipalities Act, 1916 [the removal being under clause (a) and sub-clause (vi), (vii) and clause (b) of sub-section (2) of Section 48].
24. Sub-section (2-A) of Section 48 contemplates making of such inquiry as may be considered necessary by the State Government after considering the explanation that may be offered by the President. An order of removal should be in writing and contain reasons for removal of the President from office. The said provision is quoted below for convenience of reference:-
(2-A) 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.
25. In Sanjeev Agrawal Vs. State of U.P. and others2 it was contended that sub-section (2-A) of Section 48 was deleted by subsequent amendments and is no more part of the statute. Therefore, no inquiry as per the said provision is required to be held. The argument was repelled after considering the amendments made to Section 48 from time to time. The Court relied on another Division Bench judgement of this Court in Girish Chandra Srivastava vs. State of U.P. and others3 in holding that the said provision continue to exist and that there was error in numbering the sections while making subsequent amendments. It was concluded that the inquiry under Section 48 (2-A) is mandatory, although its nature and scope will depend on fact of each case. The relevant part of the said judgement is quoted in extenso:-
Section 48(2-A) of the U.P. Municipalities Act, 1916 contemplates 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.
By U.P. Act No.VI of 2004 another sub-section (2-A) was added, which is to the following effect:-
"In Section 48 of the Uttar Pradesh Municipalities Act, 1916, after sub-section (2) the following sub-section shall be inserted namely: "(2A) 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, function 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 by any other nominated by him not below the rank of the Deputy Collector."
By U.P. Act No.II of 2005, Section 48 was again amended which amendment was deemed to have come into force with effect from 27th February, 2004 which was the date on which U.P. Act No.VI of 2004 was published in the gazette. In sub-section (2) of Section 48, a proviso was inserted, which is to the following effect:-
"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 discharge 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 (2A) 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."
Sub-section (2-A) of Section 48 as inserted on 27th February, 2004 by the Uttar Pradesh Municipalities (Amendment) Act, 2004 (U.P. Act No.VI of 2004) was omitted.
11. The submission of Sri Shashi Nandan, learned Senior Advocate, that after deletion of Section 48(2-A) now there is no provision for holding an inquiry by the State Government needs to be considered first.
12. Sub-Section (2-A) of Section 48 which was inserted by U.P. Act No.XXVI of 1964 was to the following effect, "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 above sub-section (2-A) of Section 48 has not been deleted by any subsequent amendment. What has been deleted by U.P. Act No.II of 2005 was sub-section (2-A) which was inserted by U.P. Act No.VI of 2004 wherein it was provided that where in an inquiry held, if a President or a Vice-President is prima-facie found to be guilty, he shall cease to exercise, perform and discharge the financial and administrative powers, functions and duties of the President or a Vice-President until he is exonerated of the charges. Sub-Section (2-A), which was inserted by U.P. Act No.XXVI of 1964 was an entirely different provision from one which has been inserted by U.P. Act No.VI of 2004. Sub-section (2-A) of Section 48 which was inserted by U.P. Act No.VI of 2004 was with regard to cessation of financial and administrative powers of the President. The State legislature being not satisfied with the scheme of sub-section (2-A) of Section 48 as introduced by U.P. Act No.VI of 2004 came up to the same effect regarding cessation of financial and administrative powers by inserting a proviso after Section 48(2) which proviso contains more drastic provision regarding cessation of financial and administrative powers and when proviso was inserted by U.P. Act No.II of 2005, the earlier sub-section (2-A) providing for cessation of financial and administrative powers was omitted. Thus Section 48(2-A) as was inserted by U.P. Act No.XXVI of 1964 still continues in the statute which obliges the State Government to consider the explanation and to hold an inquiry in the matter.
13. A Division Bench of this Court in the case of Girish Chandra Srivastava vs. State of U.P. and others reported in 2007 AWC-6-6051, after considering the provisions of Section 48 as amended from time to time, has taken the same view which we have taken above. Following was laid down by the Division Bench in paragraph 20 of the said judgment:-
"20. In view of the aforesaid decisions, we are of the considered opinion that insertion of sub-section (2A) 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 (2A) 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. 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 (2A) 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."
Thus according to scheme of Section 48 of the U.P. Municipalities Act, 1916 after issuance of show cause notice under Section 48(2), the State Government is obliged to consider the explanation and also to hold such inquiry as it may deem necessary.
26. What is nature and scope of inquiry which is required to be held under Section 48 was considered by this Court in Umesh Baijal and others Vs. State of U.P. and another4. It has been held that there could be cases where the charges are admitted and in which event, it would not be necessary to hold a regular inquiry and examine witnesses etc. There may be cases where the allegations are based on complaint made by certain persons. In such cases, if the State intends to rely on affidavit filed by the complainant, it has to give opportunity of hearing to the Chairperson to cross-examine the complainant. In a given case, the allegations may be of a very serious nature and which have to be proved by documentary as well as oral evidence and in such cases, full fledged inquiry would be required, as merely calling for explanation and considering the same would not meet the requirements of law. The relevant paragraphs from the said judgment are as follows:-
"13. Thus, it is evident that if a Chairman is removed under these provisions, it would have a very serious repercussion and consequence not only on the Chairman but also on the constituency, which he represented because he is being removed from the membership also, therefore, it cannot be permissible in law to remove him without complying with the requirement of law, as required under the facts and circumstances of a particular case. Sub-section (2A) of Section 48 of the Act, 1916 provides for a procedure of removal stipulating 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 him. The law does not permit or give unfettered powers to the State Government for passing an order of removal of the Chairman merely after considering his explanation to the show cause. It would depend upon the facts of each case as to whether an enquiry is required. There may be a case of admission by the President himself or the case against him is of such a nature for which he can furnish no explanation or the facts of a case are so admitted or admittedly such that no explanation is required at all, in such eventuality, it will not be necessary to hold a regular enquiry and examine the witnesses etc. giving an opportunity of cross-examination of the witness. There may be a case where the State is considering the affidavits filed by certain persons complaining against the misconduct of the Chairman, if State wants to take into consideration the said affidavits and in his explanation the Chairman denies the allegations, the affidavit cannot be relied upon without giving an opportunity to the Chairman to cross-examine the deponents, as required under the provisions of Order XIX, Rule 2 of the Code of Civil Procedure, for the reason that the Code itself is nothing but codification of the principles of natural justice. The provisions of Order XIX, Rule 2 of the Code become mandatory.
39. Thus, in view of the above, it cannot be held that in each and every case, non-observance of principles of natural justice would vitiate the order. It has to be understood in the context and facts-situation of each case and requirement of statutory Rules applicable therein. However, in a given case, if the allegations are of a, serious nature and has to be proved on a documentary as well as on oral evidence, it is desirable to have a fulfledged enquiry for the reason that removal only on asking the explanation and consideration thereof, would not be sufficient to meet the requirement of law unless the facts are admitted or undeniable. It is not possible to lay down any strait-jacket formula as in what cases the fulfledged enquiry is to be held and in what cases removal is permissible on asking office bearers to furnish the explanation to the charges. It will depend on the facts of an individual case."
27. In Sanjeev Agrawal (supra), after considering the Division Bench judgment in Umesh Baijal and another Division Bench judgement in Shamim Ahmad (Dr.) Vs. State of U.P. and another5, it was concluded as follows:-
10. Thus, in our view, it is clear that once an explanation is submitted by the President denying the charges, it is incumbent upon the State Government to make "such enquiry as it may consider necessary" before passing an order of removal. The word "inquiry" contemplates investigation. Therefore, where the President denies the charges and offers his explanation, the State Government is required to consider his explanation. If the State Government is satisfied with the explanation offered by the President, in that case, nothing further is required to be done other than passing a consequential order dropping the proceedings. However, if the State Government is not satisfied with the explanation, in that case, the State Government is required to enquire into the matter by holding a full-fledged enquiry.
28. In Ravi Yashwant Bhoir Vs. District Collector, Raigad and others, the Supreme Court also considered the issue as to whether recording of reasons is mandatory while passing an order of removal. The Supreme Court placed reliance on its previous judgements in case of Krishna Swami Vs. Union of India6, Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd7 and thereafter concluded by holding as follows:-
46. The emphasis on recording reason is that if the decision reveals the `inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.
29. The quotation from Krishna Swami (supra) relied upon in the said judgment reads thus:-
"Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21."
30. In Sant Lal Gupta (supra), it was held as follows:-
"27. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice.
"3. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."
The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."
31. The consistent judicial opinion thus is that recording of reasons in writing is not merely an attribute of the principles of natural justice but also essence of transparency and fairness in decision making process. It has been held to be a hallmark of sound and objective exercise of power. An order bereft of reasons violates Article 14 and 21 of the Constitution."
13. It is, therefore, evident that the petitioner ought to have been afforded an opportunity of hearing after conducting the inquiry which was required to be of a more stringent standard than departmental inquiries instituted against government servants in view of the judgement of the Supreme Court in Ravi Yashwant Bhoir Vs. District Collector, Raigad and others8.
14. Perusal of the impugned order dated 3.11.2022 reveals that there were three charges levelled against the petitioner, each of which were stated to be proved even before the findings are recorded by respondent no. 2. The first charge is that instead of comparing dustbins of similar capacities, comparison was done with more than approved capacity of the dustbins and were purchased which caused financial loss to the Nagar Panchayat.
In reply to the charge no. 1, the petitioner stated that with regard to the purchase of dustbins in the Nagar Panchayat, in the meeting dated 10.2.2018 for the financial year 2016-17 for being purchased from the allotted amount for the year 2017-18, and, in the meeting dated 17.12.2018 for the financial year 2017-18, purchase of different categories of dustbins from the allotted amount was approved. In line with the above approval, the Executive Officer, Nagar Panchayat by his financial approval order dated 18.2.2018 and 19.1.2019 passed orders for purchase of dustbins on the GEM portal. Thereafter, the Executive Officer uploaded the different bids for the dustbins on the GEM portal and after obtaining the comparative bids, the bidder offering the minimum rates was issued an approval letter by the Executive Officer. After obtaining delivery, the Executive Officer got the same approved by the competent officer and the approval of the quality and quantity was done by the Executive Officer, Nagar Panchayat, whereafter, under the signature of the Executive Officer and the President, payment was made. Since there was no procedural error in any report of the Executive Officer or the verification committee therefore, the petitioner made his signature on the order of the Executive Officer recommending payment. It was stated that there was no financial irregularity in the same.
The committee constituted by the District Magistrate that examined the reply of the petitioner, in its report with regard to charge no. 1 found the petitioner to be guilty and said that the petitioner has tried to shift the responsibility on the departmental employees and disowned his own, and, the examination of the record reveals that the President as well as Executive Officer were both guilty.
15. Charge no. 2 was on the GEM portal goods up to Rs. 30 Lacs can be purchased directly. Accordingly, all the dustbins of the different categories were within the limit of Rs. 30 Lacs. If the value of all the dustbins are added then only one firm was selected for their purchase exceeding Rs. 30 Lacs in respect of which neither the District Magistrate was given any information nor any approval was taken.
In reply the petitioner stated that as per Rule 149 of GFRS, 2017 of the GEM portal, the authorized officer is the Executive Officer of the Nagar Panchayat who is responsible for approving and permiting purchase at the minimum and correct value. All the goods purchased from the GEM portal in respect of the proposed bids were in separate invoices and their payment were made after approval by the competent officer. Since every item was of different category and having different value for which different bids were there, and were purchased from the allotted amounts from the different financial years, therefore it was not correct for all the bids to be clubbed together. As per the approved procedure provided by Government prior permission of the District Magistrate is not necessary. The rules were complied with fully.
With respect to the charge no. 2, the examination committees report is that in Rule 149 of the GFR, 2017, the purchasing officer has not been specified. Purchase was made after violating the rules. Purchase was made from only one firm who were repeatedly issued work orders whereas the value of the property purchased exceeding Rs. 30 Lacs. This revealed that to benefit one person, the entire procedure was planned.
16. In charge no. 3, it is alleged that under the provisions of Section 82 of the Act of 1916 and Section 168 of the Indian Penal Code, offence was committed by the President by repeatedly selecting the firm of his brother's wife for purchase of dustbins contrary to rules.
In his reply, though it was admitted that the owner of the firm to which the contract was awarded was petitioner's brother's wife, but the petitioner has no connection or partnership with that firm. It is stated that whatever purchases are made by Nagar Panchayat, the same are done through the GEM portal after the directions of the Government and of the officers of the Government. With regard to the allegation of violation of Section 82 of the Act of 1916, it was stated by the petitioner that no evidence was made available to demonstrate any benefit derived by him from any contract in deliberate manner. It is stated that in the said firm neither is the petitioner nor his wife or children are partners. From the GEM portal only those items are purchased which were of minimum value.
In the report of the enquiry committee, it is stated that in the certificate issued by the Nagar Panchayat on 14.9.2018, the petitioner and Bahadur Lal Maurya and Smt. Shashikala Devi are recorded in the list of family. In the procedure for purchase in the GEM portal, indirect benefit was given to the petitioner's brother's wife due to the irregular purchase of dustbins.
17. In the conclusion arrived by the respondent no. 2 in the order impugned, it has been stated that the manner of purchase of the dustbins shows that special benefit was accorded to a firm whose proprietor is the wife of the real brother of the petitioner. It is stated that in the Government Order dated 23.8.2017 that the requirement should not be divided into small part on the GEM portal but this procedure was not followed and the dustbins were purchased contrary to the rules. The total value of the dustbins purchased separately would exceed Rs. 30 Lacs from one firm whose proprietor is a family member of the petitioner. Thus, it was held that the petitioner has not followed the procedure prescribed by the GEM portal and accorded an uncalled for benefit to a particular person who was member of his own family which is misappropriation of Government funds and comes under the category of the financial misappropriation. Accordingly, the impugned order was passed for removal of the petitioner as President of the Nagar Panchayat.
18. From perusal of the above, it is evident that the respondent no. 2 has entirely relied upon the enquiry report submitted through the office of the District Magistrate in coming to the conclusion regarding the guilt of the petitioner. As a matter of fact, as already observed above, the so-called charges against the petitioner, his respective replies thereto, and the observations of the enquiry committee, predetermines the guilt of the petitioner. There is no independent application of mind whatsoever by the respondent no. 2 to the reply submitted by the petitioner in respect of each charge. Moreover, the mandate of the judgement of the Supreme Court in Ravi Yashwant Bhoir as followed by this Court in its judgement in the matter of Shaila Tahir, regarding conducting proper enquiry which ought to be a level higher than that of a disciplinary enquiry against a Government servant, has not been followed. Under the circumstances, the order impugned dated 3.11.2022 cannot be countenanced and is hereby quashed. However, since it is contended by the learned counsel for the petitioner that the term of the petitioner has already expired, no direction is being issued to the respondents for consideration of the charges against the petitioner afresh. Nonetheless, in view of the quashing of the impugned order, no such disability or ineligibility, as provided under sub-section (4) of Section 48 of the Act of 1916, would inure to the petitioner.
19. This writ petition is, accordingly, allowed.
Date: 20.12.2022 sfa/A.V. Singh (Jayant Banerji, J) (Manoj Kumar Gupta, J)