- (1.) THE present writ petition has. been filed questioning the correctness of the show cause notice dated 28.11.2008 and the order restraining the petitioner from exercising his financial and administrative powers as Chairman, Nagar Panchayat, Khamaria, District-Sant Ravidas Nagar, as well as the consequential order by which the said powers have been directed to be performed by an Officer under the orders of the District Magistrate till finalization of proceedings against the petitioner
(2.) THE present dispute relates to the proceedings initiated by the State Government against the petitioner under the provisions of Section 48 (2) of the U.P. Municipalities Act, 1916, whereby an inquiry has been set up for investigating the charges indicated in the impugned show cause notice. THE petitioner has also been restrained from exercising his financial and administrative powers during the pendency of such inquiry. THE contention raised on behalf of the petitioner questioning the orders impugned are that the impugned order is in violation of principles of natural justice and that in view of the ratio of the decision in the case of Smt. Vimla v. State of U.P. and others, 2008 (10) ADJ 128 (DB)(LB), the entire proceedings are invalid. It is further submitted that the petitioner is being politically victimized and the charges relate to his previous term as Chairman of Nagar Panchayat and none of the charges relate to the present term, therefore, there was no occasion to have invoked the powers under the proviso of Section 48 (2) for restraining the petitioner from discharging his financial and administrative powers. It is submitted by the learned counsel for the petitioner that the exercise of such powers is mala fide and the show cause notice is grounded on the same set of charges which were subject matter of the earlier removal of the petitioner in his previous term vide order dated 28.7.2005. It has been pointed out that questioning the order dated 28.7.2005, whereby the petitioner had been removed on ah earlier occasion during his previous term, Writ Petition No. 55155 of 2005 has been preferred and in which the petitioner has been granted an interim protection. In substance, the contention raised is that on the same set of facts which were existing in respect of the previous term of the petitioner, and which matter is already subjoined before this Court in Writ Petition No. 55155 of 2005, in which the petitioner has been granted an interim relief, there was no occasion for the State Government to have proceeded against the petitioner on the same set of charges and issue a fresh show cause notice. Learned Addl. Chief Standing Counsel Sri Chandra Shekhar Singh has urged that the charges are not identical, and even otherwise under the provisions of the 1916 Act, the charges relating to the previous tenure can be examined. It has been submitted that the petitioner has been provided full information with regard to the material in support of the charges, and the same material was very much available with the State Government for its satisfaction to invoke the powers under the proviso of Section 48 (2) for temporarily depriving the petitioner of his financial and administrative powers. It is contended by the learned Addl. Chief Standing Counsel that the charges are serious enough which may ultimately warrant removal of the petitioner and, therefore, there should be no interference. There appears to be no dispute that the petitioner, for the past almost two decades, has been elected and re-elected as the Chairman of Nagar Panchayat, Khamaria. There also appears to be substance in the allegation that the material and the charges, which have been indicated in the impugned notice, relate to the previous tenure of the petitioner, and not with regard to his fresh tenure that commenced in 2006. Further, the entire material, which forms the basis of the impugned notice, was very much available to the respondents when the order of removal on 28.7.2005 had been passed, but the petitioner was confronted with only two charges.
(3.) WE have heard learned counsel for the parties and we have also perused the records of Writ Petition No. 55155 of 2005. The said writ petition had been entertained by this Court and an interim order had been passed on 11.8.2005, whereby the order of removal of the petitioner in respect of his previous term had been stayed. The said writ petition was dismissed in default and the interim order was vacated on 27.3.2008. A restoration application was filed which was allowed on 18.4.2008 and the order dated 27.3.2008 was recalled. Prima facie, in our opinion, in view of the law laid down in the case of Vareed Jacob v. Sosamma Geevarghese and others, AIR 2004 SC 3992 (paras 20 and 21), the interim order, which had been granted initially in the said writ petition, can be treated to have revived on the restoration of the writ petition on 18.4.2008. WE further find that one of the charges relating to the purchase of certain electrical items, which has been dealt with as charge No. 2 in the removal order dated 28.7.2005, is the same charge which has been entailed in the impugned show cause notice as Charge No. 1. Similarly with regard to the other charge of getting work done through contracts without following the' prescribed procedure, is also indicated in the impugned show cause notice under challenge. However, from a comparison of the charges in respect of the removal order in the previous tenure and the present impugned notice, it appears that certain additional charges have also been levelled against the petitioner. Nonetheless, the same requires an explanation by the respondents as to why the previous charges, which were subject matter of the earlier writ petition, have again been included in the present proceedings and further if the entire material in respect of the charges, which have now been additionally included in the impugned notice, was available being related to the previous tenure, then why had the respondents chosen not to confront the petitioner with the same in the proceedings pertaining to the previous term which are subject matter of writ petition No. 55155 of 2005.;