# Smt. Shaila Tahir v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-13
- **Case number:** Writ C No. 21595 of 2022
- **Bench:** Manoj Kumar Gupta, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shaila-tahir-v-state-of-u-p-ors-47795
- **Pages:** 16

## Headnote

A. UP Municipalities Act, 1916 - Section
48 - Removal of President of Nagar Palika
Parishad
-
Charges
of
wrongful
withdrawal of public fund - No enquiry
was held - Effect - Principle of natural
justice,
how
far
relevance
-
Ravi
Yashwant Bhoir's case relied upon -
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 -
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 - Held, 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 crossexamine
the
complainant
and
other
witnesses. However, that was not done -
The petitioner has been removed in a
casual manner, without holding proper
inquiry, which could pass the test of
fairness. (Para 21, 22, 47 and 48)
Writ petition allowed in part. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,970 of 54,617. This is a partial read: ask again with offset=39970 for what follows._

11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
137
facts and circumstances of each case and
should also bear in mind the provisions of
Section 17 The law does not give them a
free hand.

14. The petition is allowed. The
orders of the Commissioner and the District
Magistrate
cancelling
the
petitioner's
licence are quashed. The petitioner shall get
costs.
----------
(2022) 11 ILRA 137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 21595 of 2022

Smt. Shaila Tahir ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udayan Nandan, Sr. Advocate

Counsel for the Respondents:
C.S.C., Sri Ashwani Kumar Sachan, Sri
Saurabh Sachan, Sri Vashishtha Dhar
Shukla, Sri Neeraj Tripathi (Addl. A.G.)

A. UP Municipalities Act, 1916 - Section
48 - Removal of President of Nagar Palika
Parishad
-
Charges
of
wrongful
withdrawal of public fund - No enquiry
was held - Effect - Principle of natural
justice,
how
far
relevance
-
Ravi
Yashwant Bhoir's case relied upon -
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 -
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 - Held, 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 crossexamine
the
complainant
and
other
witnesses. However, that was not done -
The petitioner has been removed in a
casual manner, without holding proper
inquiry, which could pass the test of
fairness. (Para 21, 22, 47 and 48)
Writ petition allowed in part. (E-1)
List of Cases cited:-
1. Ravi Yashwant Bhoir Vs District Collector,
Raigad & ors.; (2012) 4 SCC 407
2. Sanjeev Agrawal Vs St. of U.P. & ors.; 2011
(6) AWC 5502
3. Girish Chandra Srivastava Vs St. of U.P. &
ors.; 2007 AWC (6) 6051
4. Umesh Baijal & ors. Vs St. of U.P. & anr.;
(2004) 2 UPLBEC 1235
5. Shamim Ahmad (Dr.) Vs St. of U.P. & anr.;
(2005) 1 UPLBEC 171
6. Krishna Swami Vs U.O.I.; (1992) 4 SCC 605
7. Sant Lal Gupta Vs Modern Coop. Group
Housing Society Ltd.; (2010) 13 SCC 336

(Delivered by 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
138 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
petition1 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
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
11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
139
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.

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.

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
140 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 exparte 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 fullfledged enquiry. The alleged enquiry held
in the instant case was a mere 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 Others2.

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.
11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
141
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 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 Others3.

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 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
142 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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-

(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:
11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
143

(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);

(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 onethird 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 selfgovernment;

(h) levy of taxes and duties by
Municipalities, assigning of such taxes
and duties to Municipalities by State
Governments and for making grants-inaid by the State to the Municipalities as
may be provided in the State law;

(i) xx xx xx

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 quasijudicial 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
144 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 subsection (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 others4 it was contended that subsection (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 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
others5 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
11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
145
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 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 subsection 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 subsection (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 (2A) of Section 48 has not been deleted by
any subsequent amendment. What has been
deleted by U.P. Act No.II of 2005 was subsection (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
146 INDIAN LAW REPORTS ALLAHABAD SERIES
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 (2A) 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 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 subsection (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 subsection 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 another6. 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 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
11 All. Smt. Shaila Tahir Vs. State of U.P.& Ors.
147
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 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 factssituation 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 straitjacket 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
another7, 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
148 INDIAN LAW REPORTS ALLAHABAD SERIES
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 placed reliance on its
previous judgements in case of Krishna
Swami Vs. Union of India8, Sant Lal
Gupta Vs. Modern Coop. Group Housing
Society Ltd9 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.