Damyanti Singh vs State of U.P.& Ors.

D. R. Chaudhary, J.—The petitioner Smt. Damyanti Singh has filed this writ petition challenging order dated 5499 served on 15499 passed by respondent No. 1 (Annexure 25 to the writ petition) under Section 48(2)(a)(b)(vi) & (vii) of the U.P. Municipalities Act, 1916 (hereinafter referred to as ''the Act'') removing the petitioner from the post of President, Nagar Palika Parishad, Farrukhabad.

Facts leading to the controversy are that the petitioner was elected as President of Nagar Palika Parishad, Farrukhabad in December, 1995. One of the Corporators made some complaint dated 311096 against the petitioner. On the basis of the complaint aforesaid Respondent No. 1 directed the District Magistrate, Farrukhabad to enquire into the matter and submit the report. Accordingly the City Magistrate submitted his enquiry report dated 28397 which is Annexure 4 to the writ petition. The District Magistrate sent his report alongwith the enquiry report to the Government with the recommendation to take appropriate action against the petitioner and the employees whose appointments were irregular. Respondent No. 1 issued a showcause notice dated 22497 (Annexure 3 to the writ petition) to which the petitioner submitted a reply dated 30697 (Annexure 11 to the writ petition). The Respondent No. 1 passed an order dated 4797 under Section 48(2)(a) of the Act removing the petitioner from the post of President. The Stationer challenged the order dated 477 by filing a Writ Petition No. 22600 of 1997. This Court by means of an interim order dated 15797 stayed the operation of the removal order dated 4797.

In para 13 of the writ petition the petitioner has stated that the concerned Minister who visited Farrukhabad City, made a statement that the steps will be taken soon for removal of the petitioner again. This statement was published in the daily news paper, a copy of whieh has been filed as Annexure 14 to the writ petition.

Suddenly a showcause notice dated 28898 was served on the petitioner. The petitioner submitted her interim reply dated 311098 (Annexure 17 to the writ petition) as the original record was not supplied to the petitioner. On the receipt of the showcause notice the petitioner for the first time came to know that on filing of complaint by a corporator Sudhanshu Dull Dwivedi, some enquiry was held and enquiry report dated 19697 was submitted to the District Magistrate. The case of the petitioner is that enquiry report dated 19697 has been made behind her back and was prepared to punish the petitioner again as the earlier order of removal has been stayed by this Court. The petitioner, however, continued in her efforts to obtain original record for submitting final reply to the showcause notice aforesaid. The Respondent No. 1 also sent letter dated 2299 (Annexure 18 to the writ petition) to the District Magistrate to supply original record and to obtain final reply and to send the same with his comments. Nothing was done by the District Magistrate in compliance of the aforesaid letter. The last effort was made on 15499. The petitioner was not supplied with the original record on one ground or the other and ultimately on 15 499 the impugned order was served removing her from the post of President. This order as it appears, has been passed under Section 48(2)(a)(b)(vi)(vii) of the Act.

During the pendency of the writ petition the petitioner apprehended that the writ petition would become infructuous in case the fresh election of the President is not stayed by this Court. On 23499 this Court passed an order that in case the writ petition is allowed and the impugned order is set aside then the fresh election would automatically be illegal. On 1699 another order was passed by this Court to the effect that Respondent No. 1 shall not notify the result of the election. However, fresh election was completed and one Dr. Rajni Sarin has been elected as President. Since the notification of the result was stayed by this Court. The newly elected President, Dr. Rajni Sarin approached this Court, Lucknow Bench by tiling a Writ Petition No. 2749 MD of 1999. This petition was disposed of by a consent order dated 25699 wherein it was held that there is no bar to declare the result under Rule 30, a copy of the judgment has been placed on record as Annexure 4 to the application dated 7599. This Court by an order dated 8799 directed the parties to maintain status ciao as on 1699.

In pursuance of the order dated 25699 passed in Writ Petition No. 2749(MB)/99 the result was declared and the oath was administered on 1 799 to the newly elected President.

Counteraffidavit has been filed on behalf of the Respondent Nos. 1,2 and 3 to which rejoinderaffidavit by the petitioner has been filed.

We have heard Smt. Poonam Srivastava for the petitioner and the learned Advocate General assisted by the Additional Advocate General Mr. Vinod Swaroop, Chief Standing Counsel Mr. Vinod Mishra, Standing Counsel Mr. Kripa Shanker Singh for the Respondent Nos. 1 to 3, Sri Rajesh Tandon on behalf of newly elected President Dr. Rajni Sarin and Mr. Yogesh Agarwal with Mr. Pranay Krishna, learned Advocates appearing for the caveator Sudhanshu Dull Dwivedi and have perused the material placed on record.

We want to make it clear that we are not expressing our opinion with regard to removal order dated 4797 which is the subjectmatter of Writ Petition No. 22600 of 1997 pending before this Couit.

With the aid of the submissions canvassed by the learned Counsel for the parties, we proceed to examine hereunder the charges and the conclusions arrived at by the Respondent No. 1 in passing the order dated 5499 impugned in the writ petition.

Charge No. Us related to the alleged accident of Gipsy Jeep No. UMD 5260 and not lodging of FIR to that effect and also not pressing and claim for loss of Rs. 72,578. By the interim reply the petitioner denied the charge and stated that since 1987 the jeep was not insured with any Insurance Company. The petitioner further stated that the amount of Rs. 72,578 is imaginary and has not been paid towards the repairing of the jeep. With regard to lodging of the FIR the petitioner submitted in her reply that it was a ministerial act. Respondent No. 1 came to the conclusion that the petitioner cannot escape the charge by shifting the liability to the Executive officer who is head of the ministerial staff.

The second charge is with regard to the lifting of the garbage by the contractor. The petitioner has also denied this charge vehemently by stating that the garbage was being lifted by the contractor under a contract since before 1995. Such contract was given after inviting the tenders through the newspaper widely circulated within the area and in pursuant to are unanimous resolution No. 262 dated 201296 of the Board. The petitioner further submitted that the contract was cancelled subsequently as the Board was not in position to pay remuneration to the contractor. The cancellation of the contract was also approved by the Board. Respondent No. 1 also found this charge proved against the petitioner without assigning any reason except that the petitioner failed to provide evidence in support of the reply.

Charge No. 3 leveled against the petitioner is that the iron scrap etc. was auctioned on a less price and thereby caused financial loss to the Board. The petitioner submitted in her reply that the auction was made in pursuance of the Resolution No. 102 dated 22396 passed by the Board. The Respondent No. 1 also found this charge proved against the petitioner only by saying that no evidence has been filed with regard to publication of the auction notice in the newspaper.

The last charge being charge No. 4 was with regard to allotment of land to certain persons by the petitioner without following the procedure laid down under the Rules and without publication of notice for auction in the newspaper. The petitioner submitted a detailed reply denying the charge and has said that the land has been allotted to the persons who were in possession for the last several years and the lease in their favour was granted on payment of price at the circle rate prevalent on the date. She also slated that the allotment of land was made in pursuance of the Board''s Resolution No. 262 dated 20 1296. Respondent No. 1 has also found this charge proved against the petitioner without recording any reasons.

On the close scrutiny of the charges we found that the charges are not of the character envisaged by the law contained under Section 48 of tire Act so as to term the acts or omission of the petitioner as flagrant abuse or willful contravention. We are supported by a Division Bench'' decision reported'' in 1992(2) UPLBEC 1464 Surendra Prasad Goel v. State of U.P. and others.

Learned Counsel for the petitioner has vehemently argued that the mandatory provision contained under Section 48 of the Act to record reasons has not been complied with by Respondent No. 1. Before considering submission of the learned Counsel, it is necessary to examine the relevant law contained under Section 48 of the Act which is quoted below

"48. Removal of President.Where the State Government has. at any time, reason to believe that

(a) there has been a failure on the part of the President in performing his duties, or

(b) the President has

(i) incurred any of the disqualifications mentioned in Sections 12Dand 43AA; or

(ii) within the meaning of Section 82 knowingly acquired or continued to have, directly or indirectly, or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with, by or on behalf of the board; or

(iii)......

(iv)......

(v) ......

(vi) been guilty of misconduct in the discharge of his duties ;or

(vii) during the current or the last proceeding term of the Board, acting as President or VicePresident, or as Chairman of a Committee, or as member, or in any other capacity whatsoever, whether before or after the commencement of the Uttar Pradesh Urban Local SelfGovernment Laws (Amendment) (. 1976, xo flagrantly abused Ins position, or so willfully contravened any of the provisions of this Act or any rule, regulation or byelaw, or caused such loss or damage to fund or property of the Board, as to render him unfit to continue to be President :or...."

We have carefully perused the order and the law and we are of the view thai the order impugned does not satisfy the mandate of Section 48(2)(a)(b) (vi)(vii) of the Act in as much as no reason have been recorded for reaching the conclusion to remove the petitioner from the office of the President.

Next submission canvassed by learned Counsel for the petitioner is that the order impugned has been passed in violation of the principles of natural justice as the petitioner has not been afforded any opportunity at the time of enquiry and also when the impugned order was passed. She has also submitted that the mandate of law as contained in Section 48 of the Act has not been complied with as no reason has been recorded by Respondent No. 1 while passing the impugned order. We have already discussed this question of law in the earlier part of the judgment. However, the learned Counsel for the petitioner invited our attention to the case reported in AIR 1990 SC 1984 S.N. Mukherjee v. Union of India (paras 35 and 38). The Hon''ble Apex Court has held that "recording of reason by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decisionmaking. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review." The other cases relied upon by the petitioner on the point are ALJ 1968 78 Ambka Prasnd Chaturvedi v. State of U.P and another, 1986 UPLBEC 1114 ; Ishrat AH Khan v. State of U.P. and others, (paras 4 and 15), AIR 1962 SC 1694 ; Collector of Monghyr and others v. Keshav Prasad Goenka and other, (paras 15 and 16) and AIR 1978 SC 851 ; Mohinder Singh Gill and another v. The Chief Election Commissioner and others, (para 8). The case law cited above, added force to the submission of learned Counsel for the petitioner.

The learned Counsel for tile petitioner submitted that the enquiry report dated 19697, Annexure 16 to the writ petition, has been concocted for the purpose of removing the petitioner from the office of President. It was vehemently argued that the enquiry report dated 19697 was in existence when the order dated 4797 was passed whereby the petitioner was removed from the office of President. The learned Advocate General appearing on behalf of the respondents was confronted with the query as to why the enquiry report dated 19697 was not taken into consideration while passing the earlier order of removal dated 4 797 though it was in existence. The learned Advocate General referred to para 13 of the counteraffidavit wherein it has been averred that while passing the order dated 4797 by which the petitioner was removed from the office of the President, neither the enquiry report dated 19697 was considered nor the complaint included in the enquiry report dated 19697 was considered. It however, couldn''t be refuted by the learned Advocate General that the charges which were subjectmatter of the two enquires related to the same period covered by earlier enquiry and consequential order of removal. Learned Counsel for the petitioner, therefore, submitted that the order impugned passed on the basis of the enquiry report dated 19697 is male fide, arbitrary and with vengeance and the same is liable to be quashed. We find considerab merit in the submissions.

The petitioner further submitted that the order impugned smacks of malice and mala fide on the part of the respondents. Learned Counsel for the petitioner drew our attention to the statements by Smt. Prabha Dwivedi, Labour Minister and Shri Lal ji Tandon Minister, Nagar Vikas of the State of U.P. published in the ''Dainik Jagran'' on 3898 to the effect that the petitioner shall be dismissed after getting the stay order vacated passed in Writ Petition No". 22600 of 1997. The petitioner further submitted that the Respondent No. 1 passed the impugned order in hot haste without waiting for the final reply of the petitioner and comments thereon of the District Magistrate in compliance of the aforesaid two letters. We find substance in the submission of the learned Counsel for the petitioner.

From the facts and circumstances of the case discussed above, we are of the opinion that the propriety to pass the impugned order was for collateral purpose as the respondents have participated in the earlier writ petition in which the stay order dated 15797 was granted staying the removal order dated 4799. We also find substance in the submission of the learned Counsel for the petitioner that the conduct of the Government and its officials in dealing with the matter right from the date of first showcause notice dated 22497 till passing of the impugned order dated 5499.served on 15499 have been unfair and vindictive.

In view of above discussion, we allow this writ petition and quash the impugned order dated 5499 (Annexure 25 to the writ petition). We direct the respondent to take necessary steps to restore the petitioner to the office of President, Nagar Palika Parishad, Farrukhabad forthwith. In the circumstances, the petitioner is entitled to the cost of this petition which is assessed as Rs. 5000. Petition allowed.