- (1.) This is an application u/Art. 226 of the Constitution praying that a writ of certiorari be issued quashing the order of suspension dated 9-8-1956 passed against the Petitioner and proceedings Under Section 40(3) of the Municipalities Act taken against the Petitioners with all costs. It is further prayed that a writ of mandamus be issued directing the State of UP not to interfere in any manner with the functioning of the applicant as a member of the Municipal Board, Etah. The Petitioner was elected as a member of the Municipal Board of Etah in October, 1953. The Board consists of a President and sixteen members. On 8-9-1955 proceedings Under Section 48 of the UP Municipalities Act were started against Sri Parshottam Dass Sarraf who was elected as the President of the Board. A petition u/Art. 226 of the Constitution was filed by him challenging the validity of the proceedings taken against him by the State Government, which was rejected on 17-1-1956 by this Court and a special appeal against the decision of a single Judge is pending before a Bench. In the year 1955, Piarey Lal Sharma, was elected as Senior Vice President of the Board. His election was also challenged by means of Writ Petition No. 1155 of 1955 in this Court. This petition, however, was rejected subsequently on a certain statement made by counsel of the Petitioner on 18-1-1956. On 10-8-1956 an order of suspension was served upon the applicant Under Section 40 of the Municipalities Act, and it is this order which is being challenged by means of this writ petition. Notices were issued to the opposite parties, the State of UP and the Joint Secretary to Government, UP, Municipal (A) Department, and a counter affidavit has been filed on behalf of the State. Subsequent to this, a meeting was held for the election of the Senior Vice Chairman and that was also challenged by means of a writ petition in this Court which was allowed: By a letter dated 9-8-1956 from the joint Secretary to the Government of UP to the District Magistrate of Etah, the Petitioner was asked to show cause within fifteen days of the receipt of the order as to why he should not be removed from the membership of the Board under Sub-section (3) of S. 40 of the UP Municipalities Act on account of the charges set forth in the list furnished with that letter. The charges are as follows:- That he has so flagrantly abused his position as a member of the Board as to render his continuance as a member detrimental to public interest. The following are the instances: (1) he has deliberately and with a view to shield Sri G.S. Mathur, Executive Officer, under suspension, withheld certain records including cash payment vouchers entrusted to him under the Board's Resolution No. 18 dated 8-2-56 in connection with an inquiry into the allegations of embezzlement levelled against Sri G.S. Mathur, and certain other payment vouchers and records requisitioned by him (Sri Attra) and passed to him for report. He has not cared to return the same to the Board inspite of repeated reminders ; (2) he has deliberately avoided submission of accounts of the Board of a total sum of Rs. 950 drawn from the Municipal fund in the name of the Executive Officer and handed over to him (Sri Attra) with the approval of the Board for pairvi in S. A. No. 19 Sri Purshottam Das v. State and others and Misc. Writ No. 1150/1955 Dr. Sohan Lal v. Municipal Board, Etah, etc.
(2.) Along with this, an order of suspension was passed with the following terms: that in exercise of the powers conferred by sub S. (5) of S. 40 of the Municipalities Act, 1916 (II of 1916), the Governor has been pleased to order immediate suspension of Sri Damodar Das Attra from the membership of Municipal Board, Etah, pending completion of the proceedings started against him referred to above. In the counter affidavit filed on behalf of the opposite parties it is stated that the proceedings against the Petitioner were bona-fide and that he deliberately withheld the papers. S. 40 of the Municipalities Act provides that State Government in the case of city, or the Prescribed Authority in any other case, may remove a member of the board on any of the grounds enumerated in Cls. (a) to (f) of sub S. (1). Sub S. (3) of S. 40 further provides that the State Government may remove from the board a member who in its opinion has so flagrantly abused in any manner his position as a member of the board as to render his continuance as a member, detrimental to the public interest. Sub S. (4) of S. 40 reads as follows:- Provided that when either the State Government or the Prescribed Authority, as the case may be, proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned and when such action is taken the reasons therefore shall be placed on record. Sub S. (5) of S. 40 further empowers the Commissioner to suspend a member against whom proceedings Under Section 40 (3) have been started. S. 40 (3) empowers the State Government to remove a member if he, in its opinion, has so flagrantly abused his position as a member that his continuance will be detrimental to the public interest. After the State Government has formed an opinion and before the actual order of removal is passed, an opportunity has to be given to the member to explain his conduct and the further requirement of an order of removal is that it should contain reasons. No final order so far has been passed by the State Government, and the question which arises for consideration is whether the State Government can be prohibited at this stage from proceeding further with the inquiry into the matter. Before the State is to give an opportunity to the member to explain his conduct, it has got to form its own opinion on the materials placed before it if he has so flagrantly abused his position as a member so as to make his further continuance detrimental in the public interest or not. In the letter which is sent along with the charges it does not expressly even specify that the State Government has formed any opinion that the Petitioner should be removed as he has flagrantly abused his position as a member so as to render his continuance detrimental to the public interest. The section requires that the State Government should not only come to a conclusion that a member has flagrantly abused his position as a member, but that the abuse should be of such a nature as to render his further continuance detrimental to the public interest. There may be cases where even assuming that an act by a member amounts to a flagrant abuse of his position it may still not be such a one as to render his continuance detri mental to the public interest. It may equally be contended that every failure to carry out one's duties may not be a flagrant abuse of his position. If it is established that there was no material before the Government to form any opinion on these as to requisite conditions for the exercise of the powers Under Section 40 (3) or if it is established that the charges have no relation to the conditions necessary for the exercise of power Under Section 40, the very foundation for the exercise of the powers Under Section 43 vanishes and this Court can issue a writ prohibiting the State Government from further proceeding with the matter. If further proceedings are quashed the order of suspension automatically should come to an end. The main contention raised by the Petitioner is that from the order it does not appear that the State Government at any stage formed an opinion that the Petitioner had flagrantly abused his position in such a manner as to render his further continuance detrimental to the public interest. The letter which was sent to the Petitioner only stated that he should show cause as to why he should not be removed from the Board and in the absence of anything else on the record it cannot be held on a perusal of the order that at any stage the State Government formed an opinion that the Petitioner had flagrantly abused his position. As I have pointed out, S. 40 (3) does not contemplate that if certain complaints are brought to the notice of the State Government, the State Government should straight away give opportunity to the member to explain the allegations and suspend him pending the inquiry. The notice itself depends upon the formation of an opinion by the State Government, and the reason for that is that as soon as the opinion is formed, the State Government has been authorised to suspend a member during the pendency of the inquiry. It is also necessary that before an opportunity is afforded to a member to explain his conduct, the State Government must have the materials before it, on which it can form an opinion.
(3.) Regarding the next question whether the charges have any relation to the subject matter of S. 40 (3), it is necessary to refer to some of the facts of the case as disclosed in the affidavit filed by the parties. The Petitioner was appointed a member of a certain committee which was entrusted with the work of investigating into the conduct of the Executive Officer. In that connection, certain documents and certain files were entrusted to the Petitioner and a dispute arose between the Board and the Petitioner as regards the return of these documents. The Chairman, it appears, was insisting upon the return of these documents by the Petitioner. The Petitioner, on the other hand, was insisting upon a date being fixed for the consideration of the report and he was further insisting that he was willing to place the report and connected documents only before the Board on the date fixed for the meeting to be convened for the consideration of the report. He was not prepared to send the report for being looked into by the members of the Board before the meeting actually convened.;