Mohd. Alim vs State of U.P. and Others

Pradeep Kant and Ritu Raj Awasthi, JJ.—Notice on behalf of respondent Nos. 1 to 4 has been accepted by the learned Chief Standing Counsel and on behalf of respondent No. 5, notice has been accepted by Sri M.K. Dixit.

Issue notice to respondent No. 6 returnable at an early date.

Respondents pray for and are granted three weeks'' time to file counter affidavit. List immediately thereafter for hearing in the month of December, 2009.

Heard the learned Counsel for the petitioner Sri Manish Kumar, Sri M.K. Dixit for respondent No. 5 and Sri Mukund Tiwari for the State and perused the record.

The petitioner, who is an Adhyaksha of the Nagar Panchayat, District Barabanki, faces a show cause notice issued u/s 48(2) of the U.P. Municipalities Act, 1960 by the State Government, seeking explanation as to why he should not be removed from the aforesaid office and at the same time ceasing his administrative and financial powers and authorizing the District Magistrate to discharge his functions.

Various grounds have been urged, assailing the aforesaid action/issuance of show cause notice, including the plea that the enquiry has been conducted by the District Magistrate on his own initiative without any direction being issued by the State Government with respect to the complaint said to have been made on 3.2.09, on the basis of which the impugned orders have been passed.

In respect of the aforesaid plea, it has also been vehemently urged that the charges, which have been mentioned in the show cause notice, on the face of it, do not make out any case for removal, apart from the fact that they are all based on incorrect facts. Every action has been taken by the petitioner in accordance with the rules and with the sanction of the Board.

It is the specific case of the petitioner that the petitioner was not associated in the enquiry and his powers have been ceased.

In respect of the plea that the District Magistrate of his own, does not have any authority to make any enquiry and then to submit report to the State Government, the petitioner relies upon a Division Bench judgment of this Court in the case of Vimla Devi Vs. State of U.P. and Others, , wherein the following observation has been made:

A bare reading of Section 48 read with Sub-section 2 and the proviso lays down a scheme of removal of the Adhyaksha, therefore, while taking action u/s 48(2), the scheme under the proviso cannot be given a complete go-bye. The proviso itself speaks about the satisfaction of the State Government before issuance of show cause notice and for that matter the first and essential ingredient is that the State Government must have reason to believe or to say, in other words, must reasonably believe that the allegations do not appear to be groundless and the Adhyaksha is prima facie, guilty of any of the grounds mentioned in the Sub-section. How this provision shall be put into execution is also provided in the said proviso and in Sub-section (2) of Section 48. The proviso can be read to mean that first the State Government on receipt of a complaint is to make a reasonable belief that the allegations are not groundless and then an enquiry is to be conducted by the nominated officer or by the State Government for seeing that the charges levelled prima facie stand proved, that is, to say, the Adhyaksha is found prima facie guilty on the charges levelled against him. It is only thereafter that a show cause notice u/s 48 Sub-clause (2) is to be issued.

Sri Mukund Tiwari, learned Counsel for the State, however, disputing the claim of the petitioner, submits that it is a case where the same very persons had made three complaints, which were also, one and the same. The first complaint was made on 29.3.08 to the District Magistrate, but without any affidavit, therefore, the complainants were directed to furnish necessary affidavit to the District Magistrate, which they did on 24.5.08. Thereafter, the District Magistrate entrusted the enquiry upon the aforesaid complaint to the Sub Divisional Magistrate, Nawabganj.

Again on 6.8.08, another complaint was made before the State Government by the same very persons, on which an order was passed for holding an enquiry by the District Magistrate and, therefore, if the complaint dated 3.2.09 was not addressed to the State Government or was not sent to the State Government and was taken cognizance of, by the District Magistrate, who ordered for holding enquiry, it cannot be said that the action taken by the District Magistrate was without jurisdiction or authority.

We have considered the arguments and we are, prima facie, of the view that cessation of administrative and financial powers of the Adhyaksha has got serious impact upon the status and functioning of the petitioner as Adhyaksha.

Once the aforesaid powers, namely, administrative and financial are taken away from the Adhyaksha, he practically stands denuded of all his powers as Adhyaksha, but only for the name sake, he remains an Adhyaksha.

An order which has adverse civil consequences, cannot be passed without affording any reasonable opportunity.

However, at this juncture, we would like to mention that the question regarding affording of reasonable opportunity to the Adhyaksha at the time of holding preliminary enquiry, is engaging attention of a Larger Bench, a reference of which has been made by a Division Bench at Allahabad.

The satisfaction u/s 48(2) is of the State Government and not of the District Magistrate, who is only to be entrusted with the enquiry on the directives of the State Government, which function he discharges only for collecting material, so as to place it before the State Government for making up its mind as to whether any case for removal is made out and if so, whether the charges are groundless or the Adhyaksha is, prima facie, guilty of such charges, which would be sufficient to remove his/her from the office, and if such a satisfaction is arrived, only then the show cause notice can be issued u/s 48(2) of the Act.

The scheme of the aforesaid Section alongwith proviso, establishes that it is a provision for giving protection to the elected Adhyaksha from interference of the State Government or the State authorities in his/her functioning as an elected Adhyaksha and it is not a provision only for removal of Adhyaksha from such office. It is only in the given circumstances that the State Government has been conferred power to remove an elected officer bearer, which could not be exercised lightly, casually or for satisfying the political ambitions.

The District Magistrate, in this case, appeared in person on 28.10.09 and has clearly stated and admitted that the complaint on which the enquiry has been made, i.e. dated 3.2.09 was not sent to the State Government nor any direction was issued by the State Government for holding enquiry on this complaint. He stated that earlier complaint was filed on 29.3.08, which was not supported by any affidavit, therefore, the complainants were required to furnish necessary affidavit, which they did on 24.5.08, but no enquiry was held on this complaint. Again a complaint was made on 6.8.08 before the State Government, and thereafter the State Government directed the District Magistrate to hold an enquiry, but the enquiry has been made only on the complaint dated 3.2.09.

The petitioner''s counsel, however, disputes the filing of complaints dated 29.3.08 and also dated 6.8.08 said to have been given to the State Government relying upon the affidavit filed by Sri Sanjay Singh, one of the complainants, who had applied for impleadment, in which he has mentioned only one complaint, i.e. 3.2.09, on which the enquiry has been conducted.

We have also perused the charges mentioned in the show cause notice and we find that, prima facie, they do not make out any case for removal of the Adhyaksha, even if found proved, though explanation has been made by the petitioner against such charges.

We, under the circumstances, as an interim measure stay the operation of the impugned order dated 23.9.09 and direct that the petitioner shall be allowed to continue to discharge his duties and functions as Adhyaksha, till further orders.