Nov - High Court of Judicature at Allahabad

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1074 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 of the nomination and the failure to disclose the pendency of the case can not be a ground of removal as the disqualification under Section 12 (D) and Section 43 (AA) of the Act, may be incurred after the petitioner is elected. The State Government did not disclose the pendency of any case against the petitioner by giving the details and that the impugned order also does not give reference to the pendency of any case against the petitioner on the day, when he contested the election. The charge is not only vague but is also non existing and does not fall in any of the conditions of exercise of powers under Section 48 (1) (b) of the Act. 8. With regard to second charge relating to the consumption of diesel, it is submitted that the petitioner as Chairman of the Nagar Panchayat was not directly concerned with the consumption of diesel and the supervision of the log book. The charge does not give the details of the consumption of the diesel and the alleged discrepancy in the log book. The allegation that the log book dated 2.8.2007 only relates to the diesel consumed by the tractor, and that log book prior to 2.8.2007 was not maintained was entirely vague and did not allege or establish any misconduct against the petitioner. The petitioner had clearly stated that the maintenance of log book is a matter to be looked after by the Executive Officer and that log book of the period prior to 2.8.2007 is available. The Executive Officer, incharge for maintaining log book may not have produced the same before the enquiry officer but that by itself could not be a ground to make an enquiry unless it was shown that the diesel was misused. 9. On the third charge the State Government has illegally and arbitrarily accepted the report of the District Magistrate that the proceedings of auction held on 30.5.2007 should have awaited the selection of the parking place in accordance with the amended bylaws published on 14.7.2007, and that the petitioner has not given any reply or evidence to disprove the fact. The Chairman has given direct benefit of contract to his brother in violation of Section 48 (b) (2) of the Act and has thus committed an act, which makes him liable to be removed from the office. It is submitted by Shri K.N. Tripathi that Section 48 (2) (b) (ii) relates to knowingly acquire or continued to have, directly or indirectly or by a partner, any share or interest, whether pecuniary or of any other nature, in any contract or employment with by or on behalf of the Municipality or (iii) knowingly acted as President or as a member in a matter other than a matter referred to in clauses (a) to (g) of sub-section (2) of Section 32, in which he has, directly or indirectly, or by a partner, any share or interest whether pecuniary or of any other nature, or in which he was professionally interested on behalf of a client, principal or other person. There are no allegation that the petitioner has any pecuniary interest in the contract awarded to his brother, who was working as a contractor of the Nagar Panchayat from before the election of the petitioner as Chairman. The allegations that the petitioner had approved the contract before the matter could be considered by the Board is entirely incorrect as the petitioner as Chairman of the Nagar Panchayat did not approve the contract. The proceeding of the auction and the highest bid was approved by the
3 All] Matloob Gaur V.State of U.P. and another 1075 Executive Officer and was approved by the Board. 10. With regard to findings on the last allegations Shri Kesari Nath Tripathi submits that the report of the District Magistrate accepted by the State Government was entirely vague and did not give the details either of the construction of the house or the pendency of the case. The petitioner had clearly stated in his reply that his house was not constructed at Plot No.702 Mohalla Khani but was situated in Mohalla Badbalian and that infact the house of Farooq, Mashroor and others were constructed on the Khasra No.702 recorded as purani abadi. The State Government without considering the petitioner's reply has mechanically believed the report of the District Magistrate in exercising the extreme powers of removal of elected Chairman of the Nagar Panchayat. 11. Shri Kesari Nath Tripathi has relied upon the judgments in Munna Lal Gupta Vs. State of U.P. & Ors., 2005 (3) AWC 2818; Nasimuddin Vs. State of U.P. & Ors., 2000 (3) ESC 1611 (All.) and Smt. Kesari Devi Vs. State of U.P. & Ors., 2005 (4) AWC 3563 in support of his submission that the burden of proving of charges is upon the State Government. It cannot be shifted on the petitioner. An elected Chairman of the Nagar Panchayat cannot be removed only on the ground that he could not defend himself of the charges, which were entirely vague and were not supported by any material in proof of the allegations by the District Magistrate. In Nasimuddin Vs. State of U.P. (Supra) the Court relied upon Israt Ali Khan Vs. State of U.P. in finding that the State Government did not hold enqiry in a quasi judicial manner and found the charges to be proved without discussing the evidence on its merits. In Smt. Kesari Devi (Supra) this Court held that in removing the elected representative the State Government must record specific finding of misconduct on the charges after considering the material placed by such elected representative. 12. Learned Standing Counsel on the other hand submits that the charges were fully proved. The petitioner had misused his office. He was facing several criminal cases at the time, when he contested the elections and that charge of misuse of diesel in failing to maintain the log book properly and allowing his brother to be awarded the contract for parking place was sufficient to remove the petitioner. Further the petitioner had occupied public utility land in Khasra No.702 for constructing his house. The State Government considered the preliminary enqiry report and the reply submitted by the petitioner in taking action against him. The Writ Petition No.8761 of 2008, Matloob Gaur Vs. State of U.P. against notice dated 5.2.2008 was dismissed by the High Court on 7.5.2008. He was given full and adequate opportunity to defend himself both by filing a reply in writing and to appear and making oral submissions. The preliminary enquiry report was found established against the petitioner. The complaint made by Hazi Rais Ahmad and Smt. Naeem, Nagar Panchayat Kithore were supported by the affidavits verified by them and that Regional Naib Tehsildar had caused an enquiry and found the allegations to be proved. There is no illegality in the order of the State Government to cause interference in the matter.
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3 All] Smt. Katori Devi V. Nawab Si
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3 All] Kailash Babu Gupta V. State
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3 All] Anil Kumar Vashisth V. State
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3 All] Anil Kumar Vashisth V. State
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3 All] Smt. Sadhana Singh V. State
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3 All] C/M, Lok Bharti Inter Colleg
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3 All] Krishan Kumar V. State of U.
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3 All] Smt. Raman Pandey and others
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3 All] Smt. Shailendra Rai V. State
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3 All] Rishi Pal Singh V. State of
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3 All] Naik R.K. Mahapatra V. Chief
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Page 51 and 52: 3 All] Naik R.K. Mahapatra V. Chief
Page 53 and 54: 3 All] Jafar Khan V. State of U.P.
Page 55 and 56: 3 All] New India Assurance Co. Ltd.
Page 61 and 62: 3 All] National Insurance Co.Ltd. V
Page 63 and 64: 3 All] National Insurance Co.Ltd. V
Page 65 and 66: 3 All] Vinay Kumar Upadhyay V.State
Page 67 and 68: 3 All] Vinay Kumar Upadhyay V.State
Page 69 and 70: 3 All] Aligarh Muslim University an
Page 71 and 72: 3 All] Aligarh Muslim University an
Page 73 and 74: 3 All] Rishikesh Lal Srivastava V.S
Page 99 and 100: 3 All] Matloob Gaur V.State of U.P.
Page 101: 3 All] Matloob Gaur V.State of U.P.
Page 105 and 106: 3 All] Matloob Gaur V.State of U.P.
Page 107 and 108: 3 All] Ashutosh Kumar Tripathi V.St
Page 109 and 110: 3 All] Superintending Engineer and
Page 115 and 116: 3 All] Dr. R.C. Agrawal and another
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Nov - High Court of Judicature at Allahabad

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