Lakhan Lal vs State of U.P.and others

R.A. Sharma, J.—Petitioner, who was President of Municipal Board, Betha, Pratapgarh, has by means of this writ petition challenged the order dated 2361993, passed by the Government of U.P. in exercise of its power conferred on it by Section 48 (2A) of the U.P. Municipalities Act (hereinafter referred to as the Act), whereby he has been removed from the office of the President. Parties have exchanged affidavits. We have heard learned counsel for the petitioner, learned Standing Counsel and learned counsel for the intervener, Sri Anil Kumar Singh, who was impleaded as respondent by this Court.

A notice dated 2771992 under Section 48(2), (a), (b), (vi) and (vii) of the Act, a copy of which has been filed as Annexure 1 to the counter affidavit of Sri Ram Pyare on behalf of the respondent No. 1, was issued to the petitioner containing the following charges :

(i) after the constitution of the Board on 26111988 petitioner did not hold the meeting of the Board every month inspite of the provisions to that effect contained in Section 86 of the Act,

(ii) spending of Rs. 5,000.00 (Rupees Five Thousand) on Independence Day Celebrations on 1581991 without prior approval of the appropriate authority, and

(iii) execution of 14 works in 199091 in anticipation of the sanction of the Board.

Petitioner submitted his reply. It appears that thereafter the comments were obtained from the District Magistrate, Pratapgarh by the Government. On 2361993 the Government passed the order removing the petitioner from the office of the President of the Municipal Board.

Section 48(2), so far as it is relevant is reproduced below : "48. Removal of President.

(2) 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

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

(vii) during the current or the last preceding term of the Board, acting, as President or Vice President, 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 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 byelaw, or caused such loss or damage to fund or property of the Board, as to render him unfit to continue to be President.

(2A) 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 ;

Provided that in a case where the State Government has issued notice in clause (a) or subclause (ii), (iii), (iv), (vi, (vii) or (viii) of clause (b) of subsection (2) it may instead of removing him give him a warning.

(4) A President removed under subsection (2A) shall also cease to be a member of the board and in case of removal on any of the grounds mentioned in clause (a) or subclause (vi), (vii) or (viii) of clause (b) of subsection (2), shall not be eligible for reelection as President or member for a period of five years from the date of his removal.

Subsection (2)(a) of Section 48 of the Act relates to "failure on the part of the President in performing his duties." Subsection (2) (b ) (vi) contemplates a case when the President is guilty of misconduct in the discharge of his duties and clause (vii) of the same subsection deals with a case when President has so flagrantly abused his position as the President of the Board or who so wilfully contravened any of the provisions of the Act or any rule, regulation or byelaw, or caused such loss or damage to the municipal fund or property vested in or entrusted to the management and control of the Board, as to render him unfit to continue as President.

The Government in the impugned order has recorded a finding that after the constitution of the Board in 1988 petitioner has convened only 20 meetings, whereas in accordance with Section 86 (1) of the Act he should have called 43 meetings and thus he is guilty of nonperformance of his duties under subsection (1) of Section 86 of the Act. Subsections (1) and (2) of Section 86 of the Act are reproduced below :

"86. Meeting of a board(1) There shall be at least one meeting of the board in every month to be held on a day fixed by regulation or of which notice has been given in a manner provided by regulation in this behalf.

(2) The President may convene a meeting whenever he thinks fit and shall upon a requisition made in writing by not less than onefifth of the members of the board and served on the President or sent by registered post acknowledgement due addressed to the municipal board at their office, convene a meeting within a period of fifteen days from the date of the service or receipt of such requisition."

Section 86 (1) of the Act requires that meeting of the Board shall be held in every month. Its subsection (2) gives the discretion to the President to convene a meeting of the Board whenever he thinks fit. Section 51 (a) (i) of the Act empowers the President to convene and preside at all meetings of the Board. Section 55 of the Act gives power to the Vice President to perform the functions and duties of the President in his absence.

Petitioner in his reply to the show cause notice has stated that he is an old man of about 80 years and he fell ill from time to time and was getting medical treatment in Sanjay Memorial Hospital, Lucknow. It is also stated therein that he has got operation of hernea and Prostate done in Allahabad. It is further mentioned that due to illhealth he has delegated his powers to the Vice President under Section 53 of the Act. In the impugned order the finding has been recorded by the Government to the effect that in the absence of the President, Vice President could have convened the meetings of the Board : but if he has not done so, the President is responsible for it. The above finding cannot be sustained. When the President delegates the powers and duties to the Vice President,, in the absence of the President it is the duty of the Vice President to do all such things, which are required to be done by the Statute by the President. For inaction or omission of the Vice President, liability cannot be fastened on the President, specially when the President, on account of his illhealth, is unable to attend and discharge the functions of the President. Under the circumstances, it cannot be said that there has been failure on the part of the petitioner in performing his duties. That apart, when a public authority is required by law to do something within a given time, the prescription of time for doing it is generally treated as directory. A Full Bench of this Court in Gopal Tewari v. District Panchayat Raj Officer, Deoria & others (1991) 2 UPLBEC 904) has in this connection laid down as follows :

"When public authority or public officials are required by law to perform a duty within given time, the prescription of time is not a rule of limitation and is generally treated as directory. In R. v. Urbanowski. 19761 ALL ER 679, while considering provisions of Section 7 (4) of the Courts Act, 1971 which required the trial to begin not later than prescribed time,, it was laid down that if the law was dealing with what was required of a public official, stipulation of time for performance of a duty is directory and not mandatory."

Supreme Court also in the case of Dattatraya Moreshwar v. the Stale of Bombay and others (AIR 1952 SC 181) laid down as under :

''It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative."

Similarly in Remington Rand of India Ltd. v. The Workmen (AIR 1968 SC 224) provisions of Section 17 (1) of Industrial Disputes Act regarding the publication of award within 30 days was held to be directory. Provisions of Section 86 (1) of the Act requiring holding of meeting in every month cannot be said to be mandatory.

There is difference between ''failure'' and ''omission''. Omission refers to the not doing of something, whereas ''failure'' connotes not carrying, out an obligation. An element of negligence may be involved in the case of failure but not in the case of omission. As mentioned hereinbefore, petitioner was not keeping good health on account of which he has delegated his powers to the Vice President. Under the circumstances, it cannot be said that there has been failure on his part in performing his duties. Apart from it, obligation cast by Section 86 (1) of the Act cannot be said to be of mandatory nature, breach of which as such cannot be a ground for removing the President unless something more is there in the charge sheet.

Subclause (vi) and (vii) of clause (b) of subsection (2) of Section 48 of the Act can be attracted only when the President is guilty of misconduct in the discharge of his duties or when he has so flagrantly abused his position as President or so wilfully contravened any of the provisions of the Act, rule, regulation or byelaw or caused such loss or damage to the municipal fund or to the property vested in or entrusted to the management and control of the Board, as to render him unfit to continue as President. Subclause (vi) covers a case of misconduct, whereas subclause (vii) deals with cases of serious misconduct. Inefficiency or carelessness would not constitute misconduct unless the consequences flowing therefrom would be such as to cause damage. Supreme Court in Union of India and others v. J. Ahmed (AIR 1979 SC 1022), while considering the meaning of ''misconduct'' in relation to a Government Servant, has laid down as follows :

"It is however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high."

A Division Bench of this Court in State of U.P. v. Mewa Lal Yadav (1961 ALJ 120), while considering the similar provision of Sec. 40 (3) of the Act, which provides for removal of a member of the Board on the ground of flagrant abuse of power has laid down as follows:

"According to the dictionary ''flagrantly'' as an adverb means ''glaringly'', ''notoriously'' or ''scandalously'' and ''abuse'' as a transitive verb means ''misuse, ''make bad use ''for'' use for a wrong purpose or need'', and take a bad advantage. The use of the expression ''flagrantly abused'' in subsec. (3) of Sec. 40 therefore requires that even if there in 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 byelaws made thereunder. It was not said in the chargesheet in connection with either of the two orders passed by the respondent that in passing them he had any scandalous way attempted to misuse his position as a member. The charges were, therefore, not such as could attract action against the respondent under subSec. (3) of Sec. 40 of the Act."

In the chargesheet there are neither allegations about the loss or damage caused to the Municipal Board or its property nor are there allegations that some benefit has accrued to the petitioner or somebody else on account of his act and omission referred to therein. There are also no finding to that effect. Charge No. 1 by no stretch of imagination can fall within subclauses (vi) and (vii). As regards charge No. 2, it is not disputed that the petitioner has spent a sum of Rs. 5,000.00 (Rupees Five Thousand) on Independence Day Celebrations on 1581991 and further that the Board had granted sanction to the above expenditure unanimously in its meeting dated 26101991 It is not the case of the respondents that the petitioner has in any manner misappropriated any part of the above amount. The only thing said in the impugned order is that he could not have spent money except with the prior permission of the appropriate authority. No charge of misuse, misappropriation or embezzlement of the amount has been raised against the petitioner. In fact there is no finding to that effect. It cannot be said to be a case of misconduct or of so flagrantly abusing the position or contravening the Act, rule, regulation or byelaw as to render him unfit to continue to be President. There is also no finding that he has caused any loss or damage to the municipal fund or to the property vested in or entrusted to its management and control of the Board.

As regards the third charge, the only thing said is that the petitioner executed 14 works in 199091 in anticipation of the approval of the Board. The fact that the Board granted approval retrospectively is not disputed Regarding this charge also there are no allegations of misappropriation, misuse or embezzlement of the fund spent in the execution of works. It is ah o not the case of the respondents that the petitioner has by executing the 14 works caused any loss or damage to the municipal fund or to the property vested in or entrusted to the management or control of the Board. Under the circumstances, neither subclauses (vi), (vii) of Clause (b) of subSec. (2) of Sec. 48 of the Act can be attracted to the instant case, and the acts of the petitioner for which he has been held guilty are not covered by any of the above provisions. None of the charges levelled against the petitioner can amount to failure on his part in performing his duties. The order of removal passed by the Government, as such cannot be sustained.

In this connection it may be mentioned that under the proviso to subSec. (2A) of Sec. 48 of the Act discretion has been given to the Government to give a warning to the President instead of removing him incase, the case falls in clause (a) or subclauses (ii), (iii), (iv), (vi), (vii) or (viii) of clause (b) of subSec. (2) of Sec 48 of the Act. A Division Bench of this Court in Surinder Prakash Gael v. State of U.P. and others HVD (Alld.) 1992 (1), relevant extract from which is reproduced below, has held that if the President has committed some technical irregularity but he has not been benefited from the same financially or otherwise, Government should not remove him from the office and instead a warning under proviso to subSec. (2A) of Sec. 48 of the Act is sufficient :

"The petitioner has also stated in his reply that he has not benefited personally in connection with the charges leveled against him and there is no finding in this connection. This fact is also relevant because under the proviso to Section 48 (2A) of the U.P. Municipalities Act the State Government has an option to either remove the President or to give him a warning and hence it is obvious that not in every case where some misconduct is found proved against President that he must be removed. Even assuming that the petitioner committed some technical irregularities but if he had not benefited from the same financially or otherwise it may not have been proper to remove him from the post of President and instead a warning may have been sufficient. This aspect has also not been considered by the State Government."

In this connection it may be mentioned that subsection (4) of Section 48 of the Act disqualifies the President, who has been removed under Section 48 (2A) for five years. When the consequences of removal are so serious, Government should be careful in passing the orders of removal and if no loss has been caused to the municipal Board and no gain has accrued to any person, the order of removal should, as far as possible, be avoided. This aspect has to be considered by the Govt. while passing order under subSec. 2A.

It is well settled that punishment to be awarded must be proportionate to the gravity of the charge. If charges are of only of technical nature there need not be any decision by the Government to remove the President from his office in as much as in such cases a warning as contemplated by proviso to subsection (2A) of Sec. 48 of the Act will meet the end of justice. Removal of the President in such a case would obviously be disproportionate to the gravity of the charge.

For the reasons given above, this writ petition is allowed with costs and the impugned order dated 2361993 (Annexure 1 to the writ petition) is quashed.