B.S. Chauhan, J.
1. This writ petition has been filed seeking direction to the respondent No. 1 to initiate proceedings under Section 48 of the U. P. Municipalities Act for removing the respondent No. 2, the President/Chairman, Nagar Palika Parishad, Shikohabad, District Firozabad.
2. Facts and circumstances giving rise to this case are that the respondent No. 2 is duly elected Chairman of the aforesaid Nagar Palika. The petitioners are duly elected members of the same Palika. They have made certain allegations against the respondent No. 2, which are of the nature of financial irregularities/embezzlement while granting the contract of collection of Tehbazari granted to one Shri Raj Kumar. The said Tehbazari was collected by his employees but not deposited in the treasury for the period between 23.5.2002 to 12.7.2002. The contractor Shri Raj Kumar collected the amount of Rs. 1,28,336 but he deposited a sum of Rs. 76,465 only. Certain affidavits had been filed by the members before the respondent No. 1 and representations had been made to the District Collector regarding many other irregularities including also not passing of the budget. Complaints are also for forging and fabricating the record of the meetings, contravention of the orders passed by the District Magistrate, the defalcation of funds, shielding the misdeeds of Junior Engineers, non-payment of salaries/ wages of the sweepers. Petitioners submit that in spite of making large number of representations, no action has been taken by the respondent No. 1 against the respondent No. 2. Hence this petition.
3. Shri Tejpal, learned counsel appearing for the petitioners has submitted that in spite of large number of representations/complaints made to the District Collector as well as to the respondent No. 1, no action has been taken against the respondent No. 2 and, therefore, this Court must issue direction to the respondent No. 1 to give a show cause notice in respect of the aforesaid charges and ask the respondent No. 2 to furnish the explanation and then to pass appropriate order.
4. Shri Awadhesh Prasad, learned counsel appearing for the respondent No. 2 has submitted that a duly elected Chairman of Nagar Palika cannot be removed so unceremoniously merely by issuing a show cause notice and asking him to furnish the explanation of the same and unless a fulfledged enquiry is held and he is given an opportunity to defend himself properly, examining and cross-examining the witnesses in a fulfledged enquiry, the question of removal does not arise. On one hand, the State Government came with an amendment in the U. P. Municipalities Act, 1916, hereinafter called the "Act 1916" deleting the provisions of Section 87A which was meant for removal of the Chairman by no-confidence motion on the ground that he could not be removed by a few elected members by moving a no-confidence as he had been elected by the voters of the entire city within the territorial jurisdiction of the Municipal Board. On the other hand, the Chairmen, are being removed merely by giving a show cause notice and asking him to furnish an explanation. Therefore, this kind of direction cannot be issued for removal of the duly elected Chairman. An enquiry should be held by some higher authority like a District Judge who is beyond the control and supervision of the State authorities and all opportunities of defence should be made available to the Chairman sought to be removed. More so, in this case, as the Lokayukt and the District Magistrate, on complaints of the petitioners, have already taken cognizance and inquiries are held, the Court may not issue any direction at this stage and petition be dismissed at the threshold.
5. Shri Noorul Huda, learned standing counsel appearing for the respondent No. 1 submitted that the issues involved in this petition are purely legal and as there is no order of removal, at this stage, the counter-affidavit is not required by either of the respondents and the matter may be disposed considering the legal submissions made by learned counsel for the parties.
6. We have considered the rival submissions made by the learned counsel for the parties and perused the record and particularly written submissions filed on behalf of the petitioners and the respondent No.
7. Respondent No. 2 is a duly elected Chairman who entered in the office by contesting the election wherein the entire voters of Nagar Palika, Sikohabad participated. The Act 1916 stood amended by the U. P. Municipalities (Amendment) Act, 2001, by which the provisions of Section 87A stood repealed/omitted. The said provision provided for procedure of removal of a Chairman by moving a no-confidence motion. It provided that the meeting for no-confidence shall be presided over by a Judicial Officer and the Chairman shall stand removed by a majority of not less than 2/3rd of the total number of members of the Municipality and further if the no confidence motion is not carried out, no further attempt for removal by no confidence was permissible for a further period of two years. The reason given by the State for repealing the said provision is evident from the statement of object and reasons, which provides that as the Chairman of the Nagar Palika is elected on the basis of adult suffrage by the electors in the municipal area, he should not be removed by a motion of no confidence passed by a majority of 2/3rd of the total number of the members of the Municipality. It was considered to be improper to remove the President elected by the electors in the Municipal area merely on the ground of no confidence motion of the members of the Municipality. Therefore, by bringing the aforesaid amendment in the Act, it is clear that the State Legislature felt it necessary to safeguard the interest of the Chairman considering the rights and privileges of the adult suffrage of the Municipal area. More so, by amendment in the Constitution and particularly by addition of Chapters IX and IX-A by 73rd Constitution Amendment in 1992 and the U. P. Urban Local Self-Government Laws (Amendment) Act, 1976, the Parliament and State Legislature have stressed upon the importance of the Local Self-Government. There can also be no quarrel to the settled legal proposition that removal of a duly elected Member is a quasi-judicial proceeding in nature. Vide Indian National Congress (I) v. Institute of Social Welfare and Ors., (2002) 5 SCC 685. Therefore, the principle of natural justice requires to be given strict compliance, even in absence of any provision providing for the same. Principles of natural justice require to provide a fair opportunity of defence to such an elected officebearer.
8. Undoubtedly, any elected officebearer in Local Self-Government has to be put on a higher pedestal than of a Government servant. If the temporary Government employee cannot be removed on the ground of misconduct without holding a fulfledged enquiry, it is difficult to imagine how an elected officebearer can be removed without holding a fulfledged enquiry. In service jurisprudence, minor punishment is permissible to be imposed while holding the enquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a fulfledged enquiry 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 entirely different context that of the Government employees for the reason that for the removal of the elected office bearers, a more stringent procedure and standard of proof is required. Vide Rameshwari Devi v. State of Rajasthan and Ors., AIR 1999 Raj 47.
9. The Hon'ble Apex Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma v. State of Punjab and Ors., (2001) 6 SCC 260. The Court held that removal of an elected office bearer is a serious matter. The elected office bearer must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is valuable statutory right of not only of the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him, therefore, the grounds under a particular provision for removal must be strictly adhered to and unless a clear case is made out, there can be no justification of his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come to any political pressure. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority had applied its mind to the allegations made and the explanation furnished by the elected officebearers sought to be removed.
10. In State of U. P. and Anr. v. Nand Kumar Agrawal, 2000 (3) AWC 2542 (SC) : JT 2000 (7) SC 302, while considering the provisions of Section 48 of the Act 1916, the Hon'ble Supreme Court held that personal hearing is not contemplated in the said provision, though of course, if the authorities think it fit, they may give the opportunity of personal hearing while holding appropriate enquiry.
11. A Division Bench of this Court in Smt. R.S. Khan v. State of U. P. and Ors., 2003 (1) AWC 366 : (2003) 1 UPLBEC 81, placing reliance upon earlier judgment of this Court in S.P. Goel v. State of U. P., 1992 AWC 394 and Naseemuddin v. State of U. P., 2000 (3) AWC 1803 (LB) : 2000 (3) ESC 1611, held that depending upon the facts and circumstances of the case, the enquiry should be held complying with the principles of natural justice, giving opportunity of defence to the erring elected officebearer and State Government must pass a speaking and reasoned order considering the explanation of the elected office bearer.
12. The statutory provisions, i.e.. Section 48 of the Act 1916 as it stood amended by the Amendment Act, 2001, reads as under :
"Removal of President.--Where the State Government has, at any time, reason to believe that:
(a) there has been a failure on the part of the President in performing his duties, or
(b) the President has :
x x x x x x x
(viii) been guilty of any other misconduct whether committed before or after the commencement of the Uttar Pradesh Urban Local Self-Government Laws (Amendment) Act, 1976, whether as President or as Vice-President exercising the powers of President, or as Vice-President or as member;
(ix) caused loss or damage to any property of the Municipality; or
(x) misappropriated or misused Municipal fund; or
(xi) acted against the interest of the Municipality; or
(xii) contravened the provisions of this Act or the rules made thereunder ; or
(xiii) created an obstacle in a meeting of the Municipality in such manner that it becomes impossible for the Municipality to conduct its business in the meeting or instigated someone to do so; or
(xiv) willfully contravened any order or direction of the State Government given under this Act; or
(xv) misbehaved without any lawful justification with the officers or employees of the Municipality; or
(xvi) disposed of any property belonging to the Municipality at a price less than its market value; or
(xvii) encroached, or assisted or instigated any other person to encroach upon the land, building or any other immovable property of the Municipality; it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office.
(2A) 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.
.................................................................... .................................................................... .................................................................... ..................................................................
4. A President removed under Sub-section (2A) shall also cease to be a member of the municipality and in case of removal on any of the grounds mentioned in Clause (a) or Sub-clauses (vi), (vii) or (viii) of Clause (b) of Sub-section (2), shall not be eligible for re-election as President or member for a period of five years from the date of his removal."
13. Thus, it is evident that if a Chairman is removed under these 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.
14. In Shiv Sahai v. Tika, AIR 1942 Oudh 350, the Court held as under :
"A perusal of this rule leaves no doubt that it is open to a Court on sufficient ground to allow proof of facts by means of affidavit, but if the production of the declarant of the affidavit is required in good faith for cross-examination by any party, the Court shall not use such affidavit in support of facts alleged therein without the production of the declarant. Rule 2 of Order XIX, C.P.C. puts the matter further beyond doubt. This rule is to the effect that upon any application, evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent."
15. In Pijush Kanti Guha v. Smt. Kinnori Mullick, AIR 1984 Cal 184, the Calcutta High Court considered the scope of application elaborately under Order XIX of the Code, while considering the application for temporary injunction, and held that there is a discretion left with the Court and no party can claim an absolute right to call the declarants of the affidavits for cross-examination, but it has to be determined on the facts of each case.
16. In Ranjit Ghosh v. Hindustan Steel Ltd., AIR 1971 Cal 100, the Court held that while deciding interlocutory applications, where the affidavits form sheet-anchor and facts are being tried to be proved by affidavits, the other party may be given an opportunity to meet the contents thereof, otherwise the order would stand vitiated being passed in "non-conformance to the procedure established by law."
17. In Abdul Hameed Khan v. Mujeed-ul-Hasan and Ors., AIR 1975 All 398, it was held that if contents of affidavits are contradicted, the Court may summon the deponents of the affidavits for cross-examination.
18. While examining a case under the provisions of the Industrial Disputes Act, 1947, the Hon'ble Supreme Court, in Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 1972 SC 330, considered the application of Order XIX, Rules 1 and 2 of the Code and observed as under :
"But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is : is it a genuine document, what are its contents and are the statements contained therein
true...............If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under Order XIX of the Code and the Evidence Act, both of which incorporate the general principles."
19. In Needle I.I. Ltd. and Ors. v. N.I.N.I.H. Ltd. and Ors., AIR 1981 SC 1298, the Hon'ble Apex Court considered the case under the Indian Companies Act and observed that "it is generally dissatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination." Unless the parties have agreed to proceed with the matter on the basis of affidavits only.
20. In Ramesh Kumar v. Keshav Ram, AIR 1992 SC 700, the Hon'ble Supreme Court considered the scope of application of provisions of Order XIX, Rules 1 and 2 in a Rent Control matter, observing as under :
"The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure."
21. In State of Kerala v. K.T Shaduli Grocery Dealer etc.. AIR 1977 SC 1627, right of cross-examination of witnesses was held to be mandatory, by the Hon'ble Supreme Court.
22. In such a case, the copy of the complaints and the material/evidence collected by the State Government substantiating the said allegations, has to be furnished to the officebearer sought to be removed and if in his explanation, he disputes the veracity thereof or genuineness of any document etc., it would be necessary for the State Government to hold a fulfledged enquiry appointing an Inquiry Officer placing the entire material before him and giving an opportunity to both sides to lead evidence in support of their cases and also to examine the parties/witnesses thereof.
23. One of the fundamental principles of natural justice is audi alteram-partem, i.e., no man should be condemned unheard. In Dr. Bentley's case, i.e., R. v. University of Cambridge, (1723) 1 Str. 757, the King's Bench traced the history of principles of natural justice and observed that the first hearing in human history was given in the Garden of Eden and even "God himself did not pass sentence upon Adam, before he was called upon to make his defence."
24. In Painter v. Liverpool Oil Gas Light Co., (1836) 3A and E 433, it was held that "a party is not to suffer in person or in purse without an opportunity of being heard.
25. Even if there is no provision in the statute about giving of notice, if the order in question adversely affects the rights of an individual, the notice must be given. Vide East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893. The notice must be clear, specific and unambiguous and the charges should not be vague and uncertain. Vide Management of the N.R. Co-operative Credit Society Ltd. v. Industrial Tribunal, AIR 1967 SC 1182. The object of notice is to give an opportunity to the individual concerned to present his case and therefore, if the party is aware of the charges or allegations, a formal defect would not invalidate the notice, unless the prejudice is caused to the individual. Vide Bhagwan Datta Shastri v. Ram Ratanji Gupta, AIR 1960 SC 200 and Fazal Bhai Dhala v. Custodian General, Evacuee Property, AIR 1961 SC 1397. The party should also be given a reasonable time to file reply to the charges. Vide State of J and K v. Haji Wali Mohammad and Ors., AIR 1972 SC 2538. Where a notice regarding one charge has been given, the person cannot be punished for a different charge for which no notice or opportunity of being heard was given to him. Vide Annamuthodo v. Oilfields Workers, (1961) 3 All ER 621 and Govindsinh v. G. Subbarao, (1970) 11 GLR 897.
26. In Ridge v. Baldwin, (1963) 2 All ER 66, it was held that the power of dismissal could not be exercised without giving a reasonable opportunity of being heard and without observing the principles of natural justice.
28. In Malik Ram v. State of Rajasthan, AIR 1961 SC 1575, the scope of hearing was confined by the enquiry officer only to the hearing of arguments and rejected the application of the appellant to lead oral or documentary evidence. The Supreme Court disapproved it observing that the delinquent should have been given an opportunity to lead evidence.
29. In Bishambhar Nath Kohli v. State of U. P. AIR 1966 SC 573, in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the order stood vitiated for non-observance of the principles of natural justice.
30. In Chairman, Board of Mining Examination and Chief Inspector of Mines and Anr. v. Ramjee, AIR 1977 SC 965, the Hon'ble Supreme Court observed as under :
"Natural justice is not unruly horse, no lurking land line, nor a judicial cure all. If fairness is shown by the decision/maker to the man proceeded against, the form, features and fundamentals of such essential process, properly being conditioned by facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expanion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt-that is the conscience of the matter."
31. The Apex Court has reiterated time and again that the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. Vide Union of India v. P.K. Roy and Ors., AIR 1968 SC 850 : Channabasappa Basappa Happali v. State of Mysore, AIR 1972 SC 32 and Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors., 2001 (1) AWC 83 (SC) : (2001) 1 SCC 182.
32. In S.L. Kapoor v. Jag Mohan, AIR 1981 SC 136, the Hon'ble Supreme Court has observed that where on admitted or undisputed facts, only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue the writ to compel the observance of the principles of natural justice as it would amount to issuing a futile writ. Similarly, in State of U. P. v. O.P. Gupta, AIR 1970 SC 679, the Hon'ble Supreme Court has served that the Courts have to see whether non-observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Thus, it can be held that even if in a given case there has been some deviation from the principles of natural justice but which has not resulted in grave injustice or has not prejudiced the cause of the delinquent, the Court is not bound to interfere. This Court does not function as a Court of Appeal over the findings of the Disciplinary Authority, rather it has limited power of judicial review to the departmental proceedings in which appreciation of evidence is not permissible. The Court can review only to correct the error of law or fundamental procedural requirements which lead to manifest injustice or Court can interfere with the impugned order if the same has been passed in flagrant violation of the principles of natural justice. Vide Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors., AIR 1997 SC 1908.
33. In Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, 2000 (2) AWC 2,23 (SC) (NOC) : (2000) 5 SCC 65, the Hon'ble Supreme Court dealt with a similar case and held that where a show cause notice is served upon the delinquent employee and the employee chooses not to respond to the said notice even after expiry of the notice-period, the employer has a right to presume that the employee does not want to say anything and he is no more interested in the services of the employer. The Court observed as under :
"It is no point laying strength on the principles of natural justice without understanding their scope or real manner. There are two essential elements of natural justice which are : (a) no man shall be a Judge in his own cause; and (b) no man shall be condemned either civilly or criminally without being afforded an opportunity of being heard in answer to the charge made against him. In course of time by various judicial pronouncements.............. the bank had followed the requirement (of law)............ Under these circumstances it was not necessary for the bank to hold an enquiry before passing the order. An enquiry would have been necessary if Dayananda had submitted his explanation which was not acceptable to the bank or contend that he did report for duly but was not allowed to join by the bank. Nothing of the like has happened here. Assuming for a moment that enquiry was initiated, evidence led before the Tribunal clearly showed that notice was given to Dayananda and it is he who defaulted and offered no explanation for his absence from duty and did not report on duty within thirty days of the notice.......... It is undoubtedly relevant on the principles of natural justice by the Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the bank if concerned. The conduct of Dayananda, as an employee of the bank, had been astounding."
34. Similar view has been reiterated in Punjab and Sindh Bank and Ors. v. Sakattar Singh, 2001 (1) AWC 473 (SC) : (2001) 1 SCC 214.
35. In Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v. Educational Appellate Tribunal and Anr., (1999) 7 SCC 332, the Hon'ble Supreme Court observed as under :
"Giving an opportunity or an enquiry is a check and balanced concept that no one's right be taken away without giving him/her opportunity or when enquiry in a given case or where the statute requires. But this cannot be in a case where allegations and charges are admitted and no possible defence is placed before the Authority concerned. What enquiry is to be made when one admits violations ........................ In case where the facts are almost admitted, the case reveals itself and is apparent on the face of the record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with the termination order."
36. In Aligarh Muslim University v. Mansoor Ali Khan, 2000 (4) AWC 2993 (SC) : (2000) 7 SCC 529, the Apex Court held that holding enquiry in a case where there can be no answer to the charges, would be a useless formality. Similar view has been reiterated in Union of India and Anr. v. Mustafa and Najibai Trading Co. and Ors., (1998) 6 SCC 79; Dr. J. Shashidhara Prasad v. Governor of Karnataka and Anr., (1999) 1 SCC 422; M.C. Mehta v. Union of India, 1999 (3) AWC 2.107 (SC) (NOC) : (1999) 6 SCC 237 and Designated Authority (Anti Dumping Directorate) , Ministry of Commerce v. Haldor Topsoe A/S, (2000) 6 SCC 626.
37. In Liberty Oil Mills v. Union of India, AIR 1984 SC 1271, the Apex Court held as under :
"We do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the Court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties................There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case."
38. In H.C. Sarin v. Union of India. AIR 1976 SC 1686, the Hon'ble Apex Court placed reliance upon the judgment of Lord Denning in R. v. Secretary of State for the Home Department ex parte Mugal, (1973) 3 All ER 796, wherein it has been observed as under :
"The rule of natural justice must not be stretched too far. Only too often, the people who have done wrong seek to invoke 'the rule of natural justice' so as to avoid the consequences."
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 facts-situation 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 strait-jacket formula as in what cases the fulfledged enquiry is to be held and in what cases removal is permissible on asking officebearers to furnish the explanation to the charges. It will depend on the facts of an individual case.
40. In the fact situation of this case, as the respondent No. 2 has placed on record a large number of documents showing that on the complaint lodged by the petitioners, as enquiry has been initiated by the District Collector, Firozabad and the Additional District Collector. Firozabad has been appointed as the Inquiry Officer and he has issued notice dated 29th May, 2003 (Annexure-S.C.A. 2) to the said members-complainants to appear before him and to lead evidence and vide letter dated 23rd July, 2003 (Annexure-S.C.A. 1), Lokayukt of Uttar Pradesh has also initiated the enquiry against the respondent No. 2 and further it has been placed on record that some of the petitioners particularly Nos. 6, 10, 15 and 16 have filed their affidavits (SA-4 to SA-6) before the Deputy Collector, Sikohabad that they had not lodged any complaint against respondent No. 2. We do not find any substance in the allegations that the authorities have not taken any action against the respondent No. 2 or are not willing to proceed against him. At the most, it can be held at this stage that it would be desirable to ask the said authorities to conclude the enquiry expeditiously.
41. Learned counsel for the petitioners has submitted that there is a gap in the Legislation on this subject and this Court must fill up the same and to fortify his submissions, reliance has been placed upon the judgments of Hon'ble Supreme Court in Union of India and Ors. v. Raghubir Singh, AIR 1989 SC 1933; Ratan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67; Mrs. Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219; United Bank of India, Calcutta v. Abhijeet Tea Company Pvt. Ltd. and Ors., (2000) 7 SCC 357 and Superintending Engineer, Public Health, Union Territory of Chandigarh and Ors. v. Kuldeep Singh and Ors., 1997 (2) AWC 2.169 (SC) (NOC) : AIR 1997 SC 2133. We do not consider it necessary to deal with the issue as no gap exists. The provisions of the Act 1916 itself provide for an enquiry if the facts and circumstances of a particular case so require.
42. Submissions have been made by learned counsel for the petitioners that this Court should issue direction to the respondent No. 1 that in each case of this nature, the enquiry should be held by a Judicial Officer or a District Judge against the elected office bearers and the State Government should frame the Rules prescribing the procedure of removal, as the Rules have been enacted for removal of officebearers under the U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, further amended by amendment in 2001. The said Rules prescribed a detailed procedure of framing the charges; giving the copy thereof to the elected office, bearer; seeking his explanation, if not found satisfactory, to appoint an Inquiry Officer. During the enquiry, both the parties would have opportunity to lead oral as well as documentary evidence; they shall be at liberty to examine and cross-examine the witnesses; submission of the enquiry report; furnishing the copy of the enquiry report to the said elected officebearer; right to such officebearer to file objection to the enquiry report; and then to pass the appropriate order of removal. The aforesaid submissions cannot be accepted for the reason that it would amount to legislation. If the Legislature in its wisdom has not provided that enquiry should be held only by a Judicial Officer, this Court cannot issue such a direction.
43. In Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96, the Hon'ble Supreme Court observed as under :
"It is not the duty of the Court either to enlarge the scope of legislation or the intention of the Legislature when the nature of the provision is plain and unambiguous. The Court cannot re-write, re-cast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts."
44. More so, the Court does not have the power to issue a direction to the Legislature to enact in a particular manner. In Mullikarjuna Rao and Ors. etc. etc. v. State of Andhra Pradesh and Ors., AIR 1990 SC 1251, the Hon'ble Apex Court has held that writ court, in exercise of its power under Article 226, has no power even indirectly to require the Executive to exercise its law-making power. The Court observed that it is neither legal nor proper for the High Court to issue direction or advisory sermons to the Executive in respect of the sphere which is exclusively within the domain of the Executive under the Constitution. The Courts cannot usurp the functions assigned to the Executive under the Constitution and cannot even indirectly require the Executive to exercise its law-making power in any manner. The Courts cannot assume to itself a supervisory rule over the rule-making power of the Executive under Article 309 of the Constitution.
45. While deciding the said case, the Hon'ble Court placed reliance on a large number of judgments, particularly Narender Chand Hem Raj v. Lt. Governor, Union Territory, Himachal Pradesh, AIR 1971 SC 2399; State of Himachal Pradesh v. Parent of a Student of Medical College, Shimla, AIR 1985 SC 910. In Asif Hamid v. State of Jammu and Kashmir, AIR 1989 SC 1899, the Hon'ble Apex Court observed as under :
"While doing so, the Court must remain within its self-imposed limits. The Court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the Executive in matter of policy or to sermonize qua any matter which under the Constitution lies within the sphere of Legislature or Executive."
46. The Court cannot examine the wisdom, merit or efficacy of the policy of the Legislature to see whether it effectuates the purpose of the Act. Vide Maharashtra State Board of Secondary and Higher Education v. Paritosh B. Sheth, (1984) 4 SCC 27.
47. In Union of India v. Prakash P. Hinduja and Anr., (2003) 6 SCC 195, the Apex Court held that issuing a direction, which amounts to legislation or direction to enact a legislation in a particular manner, may be unenforceable being without jurisdiction. While deciding the said case, the Court placed reliance upon its earlier judgment in A. R. Roy v. Union of India, AIR 1982 SC 710; Supreme Court Employees' Welfare Association v. Union of India, (1989) 4 SCC 187 and State of Jammu and Kashmir v. A.R. Jakki, AIR 1992 SC 1546; and held that no mandamus can be issued to the Legislature to enact a particular law. When a subordinate legislation is enacted by an authority in exercise of its delegated power, such executive authority cannot be asked to enact a law which he had been empowered to do under the delegated legislative authority. Under the constitutional mandate, the Parliament exercises sovereign powers to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.
48. Similar view has been reiterated in Union of India and Ors. v. Association for Democratic Reforms and Anr., AIR 2002 SC 2112; Ms. Aruna Roy and Ors. v. Union of India and Ors., (2002) 7 SCC 368 and Jinia Keotin and Ors. v. Kumar Sita Ram Manjhi and Ors., 2003 (2) SCCD 685 : 2003 (3) AWC 2288 (SC) : (2003) SCC 730.
49. Thus, it is evident that neither the Court can legislate nor it is permissible for the Court to issue a direction to pass a particular legislation. Even in absence of statutory Rules for removal, the authority is bound to observe the principles of natural justice, even if the rules to that effect, have not been enacted.
50. In totality of the circumstances and peculiar facts of this case, as the complaints filed by the petitioners are being entertained and the statutory authorities have taken appropriate steps to enquire into the allegations made by them, we do not consider it proper to issue any direction to the respondent No. 1 to hold enquiry against the respondent No. 2 under Section 48 of the Act, 1916. However, the authorities, which are dealing with the grievances of the petitioners, must conclude the enquiry expeditiously in accordance with law.
51. With these observations, petition stands disposed of.
52. Under the facts and circumstances of the case, there shall be no order as to costs.