1

A.F.R.

Court No. - 21

Case :- WRIT - C No. - 21595 of 2022

Petitioner :- Shaila Tahir

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Udayan Nandan,Sr. Advocate

Counsel for Respondent :- C.S.C.,Ashwani Kumar Sachan,Saurabh

Sachan,Vashishtha Dhar Shukla

Hon'ble Manoj Kumar Gupta,J.

Hon'ble Jayant Banerji,J.

1.The petitioner has challenged her removal from the post of President,

Nagar Palika Parishad, Nawabganj, Bareilly by the order of respondent no.

1, i.e. Principal Secretary, Nagar Vikas, U.P. Lucknow dated 10.5.2022 and

the report of District Magistrate, Bareilly dated 6.1.2022. She has also

prayed for a writ of mandamus commanding the respondents to permit her to

discharge her duties as President of the Nagar Palika Parishad, Nawabganj,

Bareilly.

2.The petitioner was elected as President of Nagar Palika Parishad,

Nawabganj, Bareilly on 1.12.2017. A show cause notice dated 17.7.2019

was issued to her by respondent no. 1, seeking her explanation in relation to

alleged wrongful withdrawal of a sum of Rs. 47,31,035/-, out of Rs.

52,40,554/-, from the funds provided by the State Finance Commission

Grants. It was alleged that at the relevant time, no Executive Officer was

working in the Nagar Palika and therefore, the withdrawal of the amount,

amounts to a financial irregularity. It was also alleged that as a result, the

safai karmees could not get their salary during Holi festival. The petitioner

was called upon to reply to the said notice within seven days, along with the

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evidence, otherwise, proceedings for her removal would be initiated. The

petitioner replied to the said notice on 27.07.2019 stating that the amount

was used towards payment of arrears of salary to the employees of the

Municipality and the development works executed by different firms. All the

payments were made by account payee cheques. At the relevant time,

Gulshan Kumar Suri was working as Executive Officer and the payments

were made under the joint signatures of the petitioner and the said Executive

Officer. The petitioner annexed the bank statements to prove her contention.

3.On 17.8.2019, the District Magistrate sent a communication to the

State Government, mentioning various charges of misconduct on part of the

petitioner and recommended for seizing her financial and administrative

powers. On 18.8.2019, a show cause notice was issued to the petitioner by

respondent no. 1, requiring her to submit her explanation within seven days,

failing which, proceedings under Section 48(2) of the Act would be initiated

against her. By same notice, respondent no. 1, exercising power under the

proviso to sub-section (2) of Section 48 ceased the financial and

administrative powers of the petitioner.

4.The petitioner challenged the show cause notice/order seizing her

financial and administrative powers by filing a writ petition

1

before this

Court. An interim order was passed in the said writ petition on 24.9.2019,

staying the operation of the order dated 18.8.2019, seizing the administrative

and financial powers of the petitioner, while permitting enquiry in relation to

removal to be concluded without being influenced by the pendency of the

1Writ – C No. 28121 of 2019

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writ petition.

5.On 9.09.2019, the petitioner submitted a detailed reply to the show

cause notice dated 18.08.2019 and categorically denied the charges levelled

against her. The receipt of reply of the petitioner dated 9.09.2019

(19.09.2019) to the show cause notice dated 17.7.2019 is admitted. In reply

to the first charge, the petitioner reiterated the stand taken by her in her reply

dated 17.7.2019.

6.In respect of the second charge, the petitioner took a specific stand

that keeping in mind the G.O. dated 12.7.2010, the payments were made on

priority basis to the regular and contractual employees by issuing cheques on

31.12.2018. Cheques were encashed by the payee as per their convenience,

in some case in the month of February, 2019. The petitioner stated that she

had supplied salary details along with her previous reply. However, no

enquiry was held on the said issue. The petitioner also specifically denied

the charge that the salary of employees was diverted to contractors. She also

stated that one regular employee Sant Ram retired on 31.12.2018 and an

account payee cheque was issued to clear his back wages, etc. The said

cheque was encashed in 2019 from the grant received from the State Finance

Commission. The petitioner admitted that a payment of Rs. 6,03,540/- was

made to the contractors under joint signatures on 31.12.2018, which were

encashed in 2019. According to the petitioner, these payments were in

respect of urgent works got done in the past through the contractors. It was

also contended by the petitioner that had these payments not been made, the

functioning of the Municipality would have become difficult.

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7.The petitioner also stated that salary of the employees in the month of

March, 2019 on the occasion of Holi, could not be paid, as at that time, no

executive officer was posted in the Municipality, under whose joint

signature, payment of salaries was possible. The petitioner also specifically

denied the charge that signatures on the cheques were ante-dated. She

contended that the mere fact that in some cases, cheques were encashed by

the payee in January and February, 2019 would not mean that the cheques

were ante-dated.

8.In reply to Charge No.3, the petitioner stated that even before she took

over charge as Chairman, the Government Scheme relating to disbursement

of funds to the beneficiaries under the Swachh Bharat Mission was in the

hands of Senior Clerk Achal Sharma and Computer Operator Anuj Kumar.

They did not inform the petitioner that the second installment of Rs. 4,000/-

was due and was to be transferred in the bank accounts of the beneficiaries.

They also never presented the cheques for payment to the beneficiaries. The

petitioner claimed that on the other hand, the town was reeling under the

threat of communicable diseases and household wastes were dumped openly

everywhere. To bring the conditions under control, the petitioner permitted

purchase of cleaning equipments, chemical spray, tankers, dustbins, fogging

machines, sewage cleaning machines, portable toilets, LED lights and the

same was done according to established procedures. The petitioner was

never made aware regarding the fund from which purchases and payments

through cheques were made.

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9.She also claimed that later when she was informed about the Swachh

Bharat Scheme, she personally inspected the work got done through the

contractor and found the same to be completely unsatisfactory and

substandard and therefore, 50% of the bill amount was withheld with

direction to the contractors to complete the work according to prescribed

norms. She also alleged that she went to Lucknow and informed the

Principal Secretary, Urban Development, about the said fact.

10.In respect of Charge No.4, that the husband of the petitioner

misbehaved with Balbir Singh, Executive Officer, the petitioner specifically

denied the same. She also refuted the allegation that he was ever pressurized

to make any payment against Rules. She also specifically stated that all

records of the Municipalities were kept in Nagar Palika Parishad and there

was no hurdle in Government work. As regards issue relating to appointment

of Mohammad Arshad, she submitted that the matter was pending before this

court, as such, she was not in position to give any reply to the same. She also

specifically denied the charge that her husband had any altercation with

Mahinder Pal. She alleged that the charge in this regard is actuated by

political vendetta. She requested for copies of documents and opportunity of

hearing.

11.On 6.1.2020, a report was submitted by the District Magistrate to the

State Government in respect of four charges levelled against her by means of

show cause notice dated 18.8.2019. The petitioner was again issued a show

cause notice by the State Government on 14.5.2020 in respect of four

charges. The case of the petitioner is that she once again submitted detailed

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reply to the show cause notice dated 14.5.2020 on 12.3.2021 and denied the

allegations made therein, against her.

12.On 23.07.2020, the petitioner submitted an application before the

State Government, stating that the report of District Magistrate dated

6.1.2020 was ex-parte and the procedure adopted by him was completely

illegal and arbitrary. The petitioner prayed for an opportunity to cross

examine the Additional City Magistrate, the then Executive Officer Balbir

Singh, the observer, Swachh Bharat Mission, IVth Class Employee

Mahender Pal, the complainant and certain other persons.

13.The case of the petitioner is that the State Government did not appoint

any enquiry officer to hold oral enquiry. She requested the State Government

to provide her with the relevant documents on which charges were based.

However, without considering the application and the reply submitted by the

petitioner and also without holding any enquiry, the Principal Secretary,

Nagar Vikas, U.P. Lucknow, proceeded to pass the impugned order dated

10.5.2022, removing the petitioner from the post of President of the

Municipality in purported exercise of powers conferred by Section 48(2) of

the U.P. Municipalities Act, 1916. According to the impugned order, all four

charges were found proved against the petitioner.

14.Sri Shashi Nandan, learned Senior Counsel for the petitioner

submitted that the petitioner had been removed unceremoniously, without

holding any proper enquiry. The petitioner is the Head of a Local Self-

Government. She could not have been removed without holding a full-

fledged enquiry. The alleged enquiry held in the instant case was a mere

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eyewash. The petitioner was not provided with the documents and evidences

on which charges were based, despite repeated requests. She was also not

given proper opportunity of hearing. Request for cross-examination was

ignored in a casual manner. In case of enquiry in relation to removal of an

elected representative, it should be more elaborate and thorough than the one

required to be held in case of removal of a government employee. Standard

of proof has to be more stringent than in case of a departmental enquiry

against a government servant. In support of his submission, he placed

reliance on the judgment of the Supreme Court in Ravi Yashwant Bhoir vs.

District Collector, Raigad and Others

2

.

15.He also submitted that the proceedings started with issuance of notice

dated 17.7.2019. It contained only one charge in relation to alleged

withdrawal of amount from the bank from the funds provided by the State

Finance Commission. The said amount was alleged to have been withdrawn

at a time when no executive officer was posted. However, the order of

removal is based on four charges and this ex facie amounts to violation of

the principles of natural justice.

16.He further submitted that Section 48(2) of the Act itself contemplates

that after considering the explanation of the President, the State Government

should hold such enquiry as it would consider necessary. In the instant case,

since the charges were specifically denied and the petitioner sought

opportunity to cross examine various witnesses on whose version the

charges were founded, it was incumbent upon the respondents to have held

2(2012) 4 SCC 407

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oral enquiry, but which was not done in the instant case. The respondents

adopted a procedure which was completely inconsistent with the principles

of natural justice and therefore, the entire proceedings stand vitiated. In this

regard, reliance was placed on a Division Bench judgment of this Court in

Sanjeev Agrawal vs. State of U.P. and Others

3

.

17.It is also contended that the respondents merely relied on the report

submitted by the District Magistrate dated 6.1.2020, in holding the petitioner

guilty of the charges. The State Government did not apply its mind to the

replies submitted by the petitioner, nor discussed any evidence. Therefore,

the impugned order is a result of non-application of mind and in clear breach

of principles of natural justice. The State Government had not given any

independent findings. It is submitted that any conclusion arrived at without

giving reasons is ex facie illegal and in derogation of the principles of

natural justice.

18.Countering the submissions, Shri Neeraj Tripathi, learned Additional

Advocate General, appearing for the State, submitted that the petitioner was

given repeated show cause notices and fullest opportunity of hearing. The

State Government also held proper enquiry through the District Magistrate.

He submitted his reports from time to time and which were rightly relied

upon in passing the impugned order. The impugned order itself reveals that

several dates were fixed for personal hearing, but the petitioner did not avail

the opportunity. The contention that the petitioner was charge sheeted only

on basis of one charge while the impugned order is based on four charges is

32011 (6) AWC 5502

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not correct. Initially, the show cause notice dated 17.7.2019 was based on a

single charge. Another notice was issued on 18.8.2019, calling for the

explanation of the petitioner. The said notice was based on all the four

charges. The petitioner's financial and administrative powers were ceased

thereby and she was given seven days time to submit her explanation to the

charges mentioned in the said notice. By the said notice, the petitioner was

clearly informed that in case she does not submit her reply within seven

days, proceedings under Section 48(2) would be taken to its logical

conclusion. He further submitted that the replies dated 12.3.2020, 14.8.2020

and 15.6.2021 were never received. According to him, the impugned order

takes into consideration every aspect of the matter and as the charges against

the petitioner relates to financial irregularities, this Court should decline to

interfere in the matter.

19.Since a factual controversy relating to receipt of various replies said to

have been submitted by the petitioner was raised, therefore, we required the

respondents to produce the original records before us. In compliance of the

same, the original records were placed before us and wherein we found that

the replies of the petitioner dated 12.3.2021, 14.8.2020 and 15.6.2020 were

missing. Consequently, we directed the State respondent to hold an enquiry

in this regard, inasmuch as, those replies were allegedly sent by registered

post/speed post on the correct address. The petitioner claimed benefit of

Section 27 of the U.P. General Clause Act and Section 114 of the Evidence

Act. In pursuance of our order dated 12.09.2022, respondent no. 1 held an

enquiry and according to the enquiry report, the alleged replies were not

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received. Although there is presumption of service when the document is

sent by registered post/speed post at the correct address, but we find that

apart from these replies, there are other detailed replies which were

admittedly received by the respondents. These replies were also in relation

to the same charges and cover the entire defence of the petitioner. Therefore,

instead of going into the above factual dispute, we proceed in the matter by

considering only the replies that were admittedly received by the

respondents.

20.We first proceed to analyse the nature of the enquiry that was required

to be held in the instant case. The petitioner was the elected President of

Nagar Palika Parishad, Nawabganj, a 'Municipality' within the meaning of

clause (e) of Article 243P of the Constitution. It is a unit of local self

government. It has been accorded constitutional status with the insertion of

Part IX-A in the Constitution by the Constitution (Seventy Fourth

Amendment) Act, 1992 w.e.f. 01.06.1993. The Statement of Objects and

Reasons as was published in the Gazette on 16.09.1991 when the Bill was

introduced is as under:-

1. In many States local bodies have become weak and ineffective on

account of a variety of reasons, including the failure to hold regular

elections, prolonged supersessions and inadequate devolution of

powers and functions. As a result, Urban Local Bodies are not able to

perform effectively as vibrant democratic units of self-government.

2. Having regard to these inadequacies, it is considered necessary that

provisions relating to Urban Local Bodies are incorporated in the

Constitution particularly for-

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(i) putting on a firmer footing the relationship between the State

Government and the Urban Local Bodies with respect to-

(a) the functions and taxation powers; and

(b) arrangements for revenue sharing;

(ii) Ensuring regular conduct of elections;

(iii) ensuring timely elections in the case of supersession; and

(iv) providing adequate representation for the weaker sections like

Scheduled Castes, Scheduled Tribes and women.

3. Accordingly, it is proposed to add a new part relating to the Urban

Local Bodies in the Constitution to provide for-

(a) constitution of three types of Municipalities:

(i) Nagar Panchayats for areas in transition from a rural area to urban

area;

(ii) Municipal Councils for smaller urban areas;

(iii) Municipal Corporations for larger urban areas. The broad criteria

for specifying the said areas is being provided in the proposed article

243-0;

(b) composition of Municipalities, which will be decided by the

Legislature of a State, having the following features:

(i) persons to be chosen by direct election;

(ii) representation of Chairpersons of Committees, if any, at ward or

other levels in the Municipalities;

(iii) representation of persons having special knowledge or experience

of Municipal Administration in Municipalities (without voting rights);

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(c) election of Chairpersons of a Municipality in the manner specified

in the State law;

(d) constitution of Committees at ward level or other level or levels

within the territorial area of a Municipality as may be provided in the

State law;

(e) reservation of seats in every Municipality-

(i) for Scheduled Castes and Scheduled Tribes in proportion to their

population of which not less than one-third shall be for women;

(ii) for women which shall not less than one-third of the total number

of seats;

(iii) in favour of backward class of citizens if so provided by the

Legislature of the State;

(iv) for Scheduled Castes, Scheduled Tribes and women in the office

of Chairpersons as may be specified in the State law;

(f) fixed tenure of 5 years for the Municipality and re-election within

six months of end of tenure. If a Municipality is dissolved before

expiration of its duration, elections to be held within a period of six

months of its dissolution;

(g) devolution by the State Legislature of powers and responsibilities

upon the Municipalities with respect to preparation of plans for

economic development and social justice, and for the implementation

of development schemes as may be required to enable them to

function as institutions of self-government;

(h) levy of taxes and duties by Municipalities, assigning of such taxes

and duties to Municipalities by State Governments and for making

grants-in-aid by the State to the Municipalities as may be provided in

the State law;

(i)xx xx xx

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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

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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 others

4

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

42011 (6) AWC 5502

15

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 others

5

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

52007 AWC (6) 6051

16

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

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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 another

6

. 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

6(2004) 2 UPLBEC 1235

18

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

19

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 another

7

, 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

7(2005) 1 UPLBEC 171

20

placed reliance on its previous judgements in case of Krishna Swami Vs.

Union of India

8

, Sant Lal Gupta Vs. Modern Coop. Group Housing

Society Ltd

9

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.

8(1992) 4 SCC 605

9(2010) 13 SCC 336

21

“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.

32.We now proceed to examine the contention of learned counsel for the

parties in the light of the law discussed above.

33.In the instant case, the respondents initially issued a notice dated

17.07.2019 mentioning that it is in receipt of report of District Magistrate

and Commissioner, Bareilly Region, Bareilly that the petitioner had misused

funds under the head 'State Finance Commission'. To be precise, it was

alleged that the petitioner had distributed Rs.47,31,035/- out of

Rs.52,40,544/- from the State Finance Commission head. At the relevant

time, no Executive Officer was posted in the Municipality. As a result

thereof, the cleaning staff of the Municipality could not be paid their salary

22

during the Holi festival. The petitioner was called upon to submit her

explanation within seven days, failing which, proceedings under Section 48

would be initiated against her. The petitioner responded to the said notice by

submitting her explanation on 17/27.7.2019 in which she categorically

refuted the allegations and specifically raised the issue that the show cause

notice was issued to her on basis of false complaint made by the candidate

who had lost the election i.e. Smt. Prem Lata Rathor. She emphatically

denied the charge and pleaded that the amount was spent in payment of

salary/stipend of daily-wagers and safai karmis. All the payments were made

by account payee cheques under joint signatures of the petitioner and

Gulshan Kumar Suri, the Executive Officer posted at the relevant time. She

also pleaded that all the aforesaid cheques were drawn on 31.12.2018, but

were encashed by the payees in the months of January and February, 2019 as

per their convenience. It was followed by another show cause notice dated

18.08.2019 which contained three more charges, as noted in foregoing part

of the instant order. The petitioner was called upon to offer her explanation

within seven days, failing which, further proceedings on merits will be

undertaken under Section 48 (2) of the Act. Simultaneously, the financial

and administrative powers of the petitioner were also ceased in exercise of

powers under the proviso to Section 48 (2). The petitioner feeling aggrieved

thereby filed a writ petition before this Court wherein this Court vide its

order dated 24.09.2019 stayed part of the order ceasing administrative and

financial powers, but permitted the respondents to conclude the inquiry in

accordance with law.

23

34.The petitioner submitted a detailed reply on 09.09.2019 (19.09.2019).

Therein, she specifically refuted all the four charges and offered detailed

explanation to each charge. Therein, she also raised a specific plea that she

was not provided with the report of A.D.M. dated 17.8.2019 which formed

the basis for issuing show cause notice dated 18.08.2019. She further

pleaded that the respondents had illegally relied on the report of the A.D.M.,

Bareilly dated 17.08.2019 in issuing the notice dated 18.08.2019 without

first seeking her explanation in response thereto. The petitioner sought to

impress upon the respondents that they were proceeding in violation of

principles of natural justice and the adverse material which formed the basis

for issuing show cause notice (inquiry report and documentary evidence)

was not provided to her. She again requested for the same being made

available to her.

35.It seems that the explanation of the petitioner was forwarded by the

State Government by its covering letter dated 18.08.2019 to the District

Magistrate for submitting his comments. As a follow up, the District

Magistrate submitted his comments dated 6.01.2020 to the State

Government.

36.On 14.05.2020 the State Government issued another show cause

notice to the petitioner in context of the comments submitted by the District

Magistrate on 6.01.2020. The petitioner was asked to submit her explanation

once again within seven days.

37.On 15.06.2020 the petitioner submitted an application and requested

for oral hearing. On 27.07.2020 the petitioner submitted an application

24

specifying therein the documents to be provided to her in respect of each

charge.

38.On 10.5.2022 the respondents passed the impugned order. It recites

that on 14.05.2020 the petitioner was issued a notice stating that on account

of lock-down as a result of Covid 19 protocol in place at the relevant time,

personal hearing was not possible, therefore, she was directed to submit her

written reply within seven days, but the petitioner did not submit any written

reply. The order further mentions various dates fixed for personal hearing

subsequently and that the petitioner did not avail the said opportunity. Para 2

of the order mentions that the report submitted by the District Magistrate

dated 6.01.2020, after examining the response of the petitioner, holds the

petitioner guilty of various charges and thereafter the extract from the report

of the District Magistrate is quoted in the impugned order. Para 3 of the

order mentions that all the charges levelled against the petitioner are found

proved and established in view of the report of the District Magistrate and

the Additional Report (comments submitted after examining the reply of the

petitioner). She has been found guilty of the grounds mentioned in clause (a)

and sub-clauses (vi), (vii), (x) and (xi) of clause (b) of sub-section (2) of

Section 48 of the Act and accordingly, her removal has been ordered.

39.It is clear from the facts noted above that initially the notice dated

17.07.2019 issued to the petitioner seeking her explanation contained only

one charge. However, notice dated 18.08.2019 contained three more charges

and the explanation of the petitioner was duly called for in response to the

said notice. As such, we find no force in the submission of learned counsel

25

for the petitioner that the order of removal is based on additional charges, in

relation to which the petitioner was not called upon to show cause.

40.We now proceed to examine the plea as to whether the impugned

order is violative of principles of natural justice, as proper enquiry was not

held and also bad in law, as the State Government had failed to record any

independent finding of its own in relation to the charges framed against the

petitioner.

41.The impugned order, as noted above, merely relies on the report of the

District Magistrate and the Additional Report submitted in response to the

reply of the petitioner to the show cause notice. The State Government in the

entire order has not recorded any independent reasoning in arriving at the

conclusion that the grounds stipulated under Section 48 (2) are made out

against the petitioner. As discussed above, giving of reasons was imperative

as reasons are link between the material, the foundation for their erection

and the actual conclusion. Sans reasons, this Court is unable to uphold the

decision as well as the decision making process.

42.The receipt of application dated 23.7.2020 to cross-examine the

witnesses is admitted to the respondents. Therein, the petitioner after giving

detailed explanation to different charges and specifying reasons, requested

for opportunity to cross examine various persons in relation to whom, or on

basis of whose version, the charges were being pressed against her. She

reiterated the request made by her in her previous reply for being provided

with complete set of documents and evidences in support of the charges and

for being provided proper opportunity of hearing and for setting aside the

26

ex-parte report of the District Magistrate dated 6.1.2020.

43.The petitioner by her application dated 10.8.2020, receipt of which is

admitted to the respondents, demanded large number of documents.

44.It is evident from the stand taken in the counter affidavit that after

receipt of replies from the petitioner, respondent no. 1 called for comments

from the District Magistrate. The specific case of the petitioner is that the

District Magistrate never held any enquiry, nor gave her any opportunity of

hearing and submitted his report behind the back of the petitioner.

45.The report of the District Magistrate and the Additional Report

submitted after examining the reply of the petitioner were only in form of an

opinion which could have been considered by the State Government

alongwith the defence of the petitioner and the evidence submitted by her. It

was not a gospel truth nor final word. The same is not a substitute to the

statutory requirement of recordal of reasons in writing by the State

Government while passing an order of removal of the President in view of

Section 48 (2-A) of the Act. On this ground alone, the impugned order is

rendered vulnerable and is liable to be quashed.

46.We have already noted that the petitioner denied all the four charges.

It is noteworthy that charge no.4 particularly related to the letters written on

8.08.2019 and 13.8.2019 by the then Executive Officer Balveer Singh in

relation to pressure allegedly exerted upon him by the petitioner and her

husband to facilitate certain payments. The said charge also related to certain

other complaints received against the petitioner from different quarters in

relation to alleged mis-behavour on part of her husband. The petitioner in

27

general and particularly in reference to charge no.4 requested for opportunity

to cross-examine the then Executive Officer Balveer Singh Yadav and

certain other persons. On 27.07.2020 she demanded various documents

which formed basis for levelling the charges. The charges related to alleged

misuse of funds; ante dating of cheques; alleged illegal payments to certain

contractors in violation of the provisions of certain Government instructions;

alleged diversion of funds.

47.Once the petitioner had specifically denied the charges and prayed for

proper inquiry being held, it was incumbent upon the respondents to provide

all documentary evidence, hold oral inquiry giving full opportunity to the

petitioner to cross-examine the complainant and other witnesses. However,

that was not done. The respondents rather adopted a peculiar procedure.

After receipt of explanation of the petitioner dated 17.07.2019, they called

for comments from the District Magistrate. Thereafter when the petitioner

submitted another detailed reply dated 19.09.2019, once again comments are

called from the District Magistrate. The State Government without holding

any enquiry, merely on basis of comments submitted by the District

Magistrate, proceeded to pass the impugned order for the reason that the

petitioner had not submitted any reply in response to notice dated

14.05.2020 which was issued as a substitute to personal hearing on account

of Covid 19 protocol being in force at the relevant time. The rebuttal of the

petitioner to the charges was already there in shape of the reply dated

17.07.2019 and 9.09.2019 and therefore, there was no need of reiterating the

stand once again in response to notice dated 14.05.2020. The issuance of

28

repeated show cause notices and calling for explanations cannot be a

substitute to the oral inquiry which in the facts and circumstances of the

instant case was necessary to comply with the principles of natural justice as

well as the requirements of statute itself.

48.We find considerable force in the submission of learned counsel for

the petitioner that the petitioner, who was head of a Municipality, has been

removed in a casual manner, without holding proper inquiry, which could

pass the test of fairness.

49.In consequence, the writ petition succeeds and is allowed in part. The

impugned order is quashed leaving it open to the State respondents to

proceed in the matter afresh in the light of the observations made in the

foregoing paragraphs of this order.

50.No order as to costs.

(Jayant Banerji, J.) (Manoj Kumar Gupta, J.)

Order Date :- 13.10.2022

SL