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Om Prakash Mathuria v/s State of U.P.

    W.P. (M/B) No. 11526 of 2013

    Decided On, 20 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench


    For the Appellant: Anupam Dwivedi, Advocate. For the Respondent: V.K. Singh, Advocate.

Judgment Text

Rajiv Sharma & Mahendra Dayal, JJ.

1. In compliance of the order dated 11.2.2014, the record has been produced by the Standing Counsel. Heard Mr. Prashant Chandra, Senior Advocate duly assisted by Mr. Anupam Dwivedi, learned Counsel for the petitioner, Mr. Abdul Moin, learned Additional Chief Standing Counsel and Mr. Kapil Deo, Senior Advocate duly assisted by Dr. V.K. Singh, learned Counsel for the opposite party No. 4 and perused the record. Through the instant writ petition, the petitioner has questioned the validity of the impugned order/second show cause notice dated 28.11.2013 passed by the respondent No. 1, contained in Annexure No. 1 to the writ petition. Further, the petitioner prays for a direction to the respondents to allow him to discharge his duties as Chairman, Nagar Palika Parishad, Badaun, without any let or hindrance; and not to

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interfere with the functioning of the petitioner in any manner whatsoever.

2. In nutshell, the case of the petitioner is that on 17.7.2012, the petitioner was elected as Chairman of Nagar Palika Parishad, Badaun. Soon after assuming the office, the erstwhile chairman of Nagar Palika Parishad, Mr. Abid Raza, who is a sitting MLA from Samajwadi Party, has started making frivolous complaints in writing against the petitioner. However, without providing copies of the complaints, the same were acted upon and after enquiry, the committee submitted its report. Thereafter, on 31.5.2013, the State Government issued a notice under sections 48(1) and (b) (xiv) and (xv) of the U.P. Municipalities Act requiring him to show cause as to why he may not be removed from the post of Chairman, Nagar Palika Parishad. In this regard, it is relevant to point out that the financial and administrative powers of the petitioner have not been suspended. When the petitioner assailed the show cause notice by filing writ petition No. 34134 of 2013, it was dismissed, at the stage of admission, on the ground that the reply which may be submitted by the petitioner would be considered by the State Government after affording an opportunity of hearing to him. Thereafter, the petitioner tendered his reply specificity stating therein that the charges levelled against him are not made out. Instead of affording an opportunity and deciding the sustainability of the show cause notice dated 31.5.2013, the respondent No. 1/Principal Secretary has passed the impugned order/second show cause notice suspending the financial and administrative powers of the petitioner.

3. According to the petitioner, the opposite parties issued two show cause notices dated 31.5.2013 and 28.11.2013. The only difference in two notices is suspension of financial and administrative powers. It has been vehemently argued that the State has acted under the political pressure of the sitting MLA, who was the erstwhile Chairman, without applying its independent mind. Further, there is no provision under the Municipalities Act, 1916 to issue a second show cause notice. Prior to suspension of financial and administrative powers, it is incumbent upon the State Government to provide an opportunity of hearing as has been held in Hafiz Ataullah Ansari Vs. State of U.P. and Others, by this Court in Full Bench. As the petitioner is an elected representative, the manner in which the administrative and financial powers have been withheld, without holding any enquiry and without providing an opportunity of hearing to the petitioner is clearly violative of provisions contained in Article 243 of the Constitution of India, as has been held by the Apex Court in Sharda Kailash Mittal Vs. State of M.P. and Others, .

4. Mr. Abdul Moin, learned Additional Chief Standing Counsel submits that section 48(2)(a) of U.P. Municipalities Act, 1916 pertains to failure on the part of the President in performing his duties. As the petitioner has failed to perform his duties or required under law, the impugned order has rightly been passed.

5. Mr. Kapil Dev, Senior Advocate appearing for the Nagar Palika Parishad submits that as the reply tendered by the petitioner was not found satisfactory and after taking into consideration the enquiry report and the charges levelled against him, the impugned notice dated 28.11.2013 has been issued to the petitioner. As grave charges are levelled against the petitioner, he does not deserve for leniency.

6. Before dealing with the merits of the case, we would like to mention that the office of a local body is an elected office of a constitutional democratic institution. He is not merely head of a society or an organization. He is entitled to hold office for the term that he was elected. It is not only his right but also that of his constituency or the electoral college that he represents. The curtailment of his rights is a serious matter.

7. As regard the violation of principles of natural justice, it is well settled principle that any order which entails civil consequences must be in consonance with the principles of natural justice. The respondents while issuing second show cause notice dated 28.11.2013 has put a rider that the petitioner will not discharge the admissible and financial power.

8. The cessation of exercise of financial and administrative power is a step in finalization of removal proceeding but this does not mean that principles of natural justice would not apply. Depending on the circumstances, the order in a step to finalisation of a proceedings may also attract principles of natural justice. The principles of natural justice apply at interim stage too: it depends on the consequences.

9. In Hafiz Attaullah's case (supra) on which petitioner has placed reliance, the Full Bench while summarizing the conclusions held in respect of cessation of administrative and financial powers of a President of a Municipality as under:

(a) There can be proceeding for removal of President under section 48(2) of the Municipalities Act without ceasing his financial and administrative power under its proviso;

(b) The following conditions must be satisfied before cessation of financial and administrative powers of a President of a Municipality can take place:

(i) The explanation or point of view or the version of the affected President should be obtained regarding charges and should be considered before recording satisfaction and issuing notice/order under proviso to section 48(2) of the Municipalities Act;

(ii) The State Government should be objectively satisfied on the basis of the relevant material that:

The allegations do not appear to be groundless; and

The President is prima facie guilty of any of the grounds under section 48(2) of the Municipalities Act.

(iii) The show cause notice must contain the charges against the President;

(iv) The show cause notice should also indicate the material on which the objective satisfaction for reason to believe is based as well as the evidence by which charges against the President are to be proved. Though in most of the cases they may be the same;

10. We would like to add that the Standing Counsel has argued that the petitioner failed to discharge his duties and as such, there is no illegality in the impugned action. No doubt, section 48 of the Act confers power on the State Government to remove the President when the State Government has reason to believe regarding the misconducts alleged to have been committed by the Chairman. The provisions of section 48A speak about the failure on the part of the Chairman in performance of his duties. However, bare perusal of the impugned order dated 28.11.2013 does not disclose as to in what manner the petitioner failed to perform his duties. In our view, power can be invoked by the State Government only for very strong and weighty reason. Such a power is not to be exercised for minor irregularities in discharge of duties by the holder of the elected post.

11. Even after minutely examining the materials on record and the relevant provisions, it is imminently clear that there is no provision for issuance of second show cause notice for the same set of allegations. In the instant case, both the notices dated 31.5.2013 and 28.11.2013 are almost identical, except the fact that by the latter, the petitioner has been restrained from discharging administrative and financial powers. Accordingly, the writ petition is allowed and the impugned order/second show cause notice dated 28.11.2013, contained in Annexure No. 1 to the writ petition is quashed. However, it will be open for the State Government to pass fresh order.