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Judgment
Heard Sri H.N. Singh, learned counsel on behalf of the petitioner, Learned Standing Counsel and Sri K.N. Tripathi, learned Senior Advocate assisted by Sri Ram Pravesh Yadav, learned counsel appearing for newly impleaded respondent No. 4. Present writ petition is directed against the show-cause notice dated 30.10.2012 issued by the respondent No. 1 as also the consequential order dated 6.11.2012 passed by the respondent No. 2. By means of order dated 6.11.2012 the financial and administrative powers of the petitioner who is Chair-person of Nagar Panchayat, Jafrabad, Jaunpur, has been ceased and the Sub Divisional Magistrate, Sadar, Jaunpur has been nominated to exercise the same. The show-cause notice was issued on the charge that the petitioner alongwith her husband misbehaved with the Executive Officer Dukkhi Singh and Clerk Rajman. The Sub Divisional Magistrate, Sadar by the letter dated 11.10.2012 had informed and submitted a report to the District Magistrate, Jaunpur in this regard. The petitioner was to give reply to the notice issued u/s 48(2)(a) of the U.P. Municipalities Act, 1916 (hereinafter referred to as the ''Act'') on the charges mentioned therein and called upon to explain as to why she should not be removed from the office of the President. It has also been mentioned in the show-cause notice dated 30.10.2012 that under the proviso to Section 48(2)(a) of the Act, the petitioner has been ceased to exercise and discharge the financial and administrative powers, functions and duties of the President till she is exonerated of the charges mentioned in the show-cause notice. The petitioner was called upon to show-cause as to why proceedings be not initiated u/s 48 of the Act.
Challenging the show-cause notice and consequential order of cessation of powers of the petitioner, the learned counsel for the petitioner submits that there is only one charge mentioned against the petitioner that too relates to alleged misbehaviour with the officer and employee of the Municipality. For the purpose, an FIR has already been lodged. He further submits that show-cause notice was issued u/s 48(2)(a) of the Act as the petitioner had failed to perform her duties as President of Nagar Panchayat, Jafrabad, Jaunpur. In so far as the financial and administrative powers and functioning and discharging the duties of the President is concerned, neither any reason has been given in the show-cause notice issued by respondent No. 1 nor any satisfaction has been recorded by the State Government for doing so. He placed reliance upon the Full Bench judgment of this Court in submitting that the words ''reason to believe'' as contained in proviso to Section 48(2)(a) of the Act clearly indicate that the show-cause notice must contain the material and the reason to believe that the action under the proviso is required in a particular case.
He further submits that before passing the order under proviso to Section 48(2)(a) of the Act, an explanation or point of view or affirmation of the President is required to be obtained regarding charges and only after issuing notice and considering the explanation of the President, the order under proviso to Section 48(2) of the Act should be passed. He placed reliance upon Full Bench decision of this Court and Hafiz Ataullah Ansari Vs. State of U.P. and Others, .
Refuting assertions of learned counsel for the petitioner, Sri K.N. Tripathi, learned Senior Advocate appearing for the newly impleaded respondent and the learned Standing Counsel submitted that there is no requirement of issuing notice to the President before passing the order of cessation of her financial and administrative powers or not allowing her to discharge the functions and duties of President till she is exonerated from the charges mentioned in the show-cause notice. The proviso to Section 48(2)(a) of the Act as contained does not provide for issuing the show-cause notice before passing the order. In absence of any such provision, the contention of the petitioner that there is requirement of issuing any show-cause notice or call for explanation from the President i.e. petitioner before passing impugned order cannot be accepted.
He further drew attention of the Court to clause (xv) of sub-section (2)(b) of Section 48 of the Act and submits that the petitioner was prima facie guilty on one of the grounds of misconduct of sub-section (2)(b) which is contained in clause (xv) resulting in issuance of show-cause notice and the proceedings. The misbehaviour with officer and employees of Municipality amounts to misconduct in discharge of duties of the petitioner as President and the State Government has reason to believe that the allegations do not appear to be groundless and the petitioner was found prima facie guilty of the allegations made against her. The State Government has recorded its satisfaction in issuing the show-cause notice asking the petitioner to submit explanation and ceased the financial and administrative powers and she was restrained from discharging the functions and duties of the President till she is exonerated of the charges levelled against her. The show-cause notice is elaborate and is self contained. The material on which the charge is levelled has been clearly mentioned in the show-cause notice dated 30.10.2012. In view thereof, it cannot be said that the State Government has not recorded its satisfaction before passing of order of cessation of powers as President of Nagar Panchayat, Jafrabad, Jaunpur.
He further submits that in view of notice issued on 30.10.2012, the order was passed on 6.11.2012 and from the date of order itself, the SDM, Sadar, Jaunpur has been discharging the functions and duties of the President, Nagar Panchayat, Jafrabad, Jaunpur. The petitioner has approached this Court only at the end of January, 2013 after three months. This Court should not interfere in the decision taken by the State Government and the writ petition is liable to be dismissed as such.
Considered the submissions of the learned counsel for the petitioner and perused the record.
The question which has been raised in the present writ petition was the subject-matter of consideration by the Full Bench in the case of Hafiz Ataullah Ansari (supra) of this Court. The reference before the Full Bench was whether before initiating proceedings for removal of a President in the Municipality for misconduct u/s 48 of the Act, and issue of the notice against him indicating the condition under the proviso to sub-section (2) of Section 48 of the Act, is he entitled to an opportunity? While answering the reference the Full Bench considered the phrase "reason to believe" and observed in paragraph 75 that the satisfaction of the State Government under the proviso is not a subjective but is an objective satisfaction based on relevant material; the satisfaction is of reasonable man and has to be based on material; it cannot be based on mere suspicion, gossip, rumour or just a complaint. The conclusion drawn by the Full Bench while answering the reference is contained in paragraph 133. Relevant points of the conclusion drawn are extracted below:
(a) There can be proceeding for removal of president u/s 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 relevant material that:
The allegations do not appear to be groundless; and
The president is prima facie guilty of any of the grounds u/s 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;
(c) It is not necessary to pass separate order under proviso to Section 48(2) of the Municipalities Act. It could be included in the notice satisfying the other conditions under proviso to Section 48(2). In fact it is not even necessary. It comes into operation by the Statute itself on issuance of a valid notice under proviso to Section 48(2) of the Municipalities Act.
Sri Tripathi, learned Senior Advocate representing newly respondent submits that in clause (c) of paragraph 133 of the Full Bench, it has been concluded that there is not necessity to pass separate order under proviso to Section 48(2) of the Municipalities Act. It could be included in the notice satisfying the other conditions under proviso to Section 48(2). In the present case, the show-cause notice dated 30.10.2012 cannot be said to be bad as the satisfaction has duly been recorded by the State Government and indicated in the opening lines of the show-cause notice itself.
Admittedly, in the present case, no explanation or point of view or averment of the President i.e. the petitioner has been obtained regarding charges and no notice was issued to her before passing the order under proviso to Section 48(2) of the Act. Moreover, there is nothing to indicate in the show-cause notice that there was any material on record or any objection on the basis of which it came to the conclusion that the allegations against the petitioner do not appear to be groundless or the petitioner is prima facie guilty on any account u/s 48(2) of the Act.
Only material before the State Government referred in the show-cause notice dated 30.10.2012 are letters of Sub Divisional Magistrate, Sadar dated 11.10.2012, the letter of Executive Officer dated 11.10.2012 and the letter of the District Magistrate, Jaunpur dated 11.10.2012.
In view of above, discussions, we find that the petitioner''s case is covered by the observations/conclusions of the Full Bench in the case of Hafiz Ataullah Ansari (supra). The show-cause notice and order dated 30.10.2012 in so far as cessation of powers under proviso to Section 48(2)(a) of the Act and the consequential order passed by the District Magistrate dated 6.11.2012 in pursuance thereof cannot be sustained and are quashed to the extent mentioned above. However, the enquiry conducted against the petitioner shall continue and be brought to its logical end within a period of one month from the date a certified copy of the order is produced, in accordance with law. We hereby direct that the petitioner be allowed to exercise, perform and discharge the financial and administrative powers, functions and duties of the President till the enquiry is concluded and appropriate orders are passed. With these observations, the writ petition is partly allowed.