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2001 DIGILAW 501 (RAJ)

State of Rajasthan v. Nathulal Jangid

2001-03-27

K.S.RATHORE, V.S.KOKJE

body2001
JUDGMENT 1. 1. Heard Shri Mohd. Rafiq learned Additional Advocate General for the appellants and Mr. R.P. Garg, Mrs. Naina Saraf and Mr. K.N. Gupta for the respondents. 2. These three appeals have been preferred against an order passed by the learned Single Judge in the writ petitions bearing Nos. SB Civil Writ Petition No. 2965/2000, 4631/1998 and 2348/2000. The learned counsel for the appellants submits that the learned Single Judge has directed the State Government to disclose the entire evidence along with the charge sheet, in a case in which the proceedings are governed by the rules, framed under the statute which do not provide such a procedure. Learned counsel for the appellants has also submitted that the judicial officer entrusted with the inquiry had rendered clear findings and the State Government had to pass fresh orders in accordance with those findings. He, therefore, submits that impugned order is against the procedure prescribed under the law and the same deserves to be set aside. 3. Learned counsel for the respondents submits that a bare perusal of the inquiry report, annexed to the writ petition, would show that it was a non-speaking order in which no findings, whatsoever, are to be found. It was further pointed out that there was no discussion of the evidence or any other material on record and the judicial officer stated that since the material placed on record and the deposition of lone witness examined on behalf of the State Government, having gone uncontroverted, the charges were found to be proved. 4. The learned counsel for the Respondents therefore, submits that the inquiry report contains no finding in the eye of law and therefore, there was nothing on which State Government could have acted to remove the petitioner from the office. 5. We have heard the learned counsel for the parties and have perused the record. Section 63 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to be as the `Act of 1959') provides for the removal of members of the Municipal Board. The respondents in these three petitions were sought to be removed under clause (d) of the sub- section (1) of Section 63 of the Act of 1959. Section 63 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to be as the `Act of 1959') provides for the removal of members of the Municipal Board. The respondents in these three petitions were sought to be removed under clause (d) of the sub- section (1) of Section 63 of the Act of 1959. Proviso to sub-section (1) of Section 63 requires that the order of removal shall be passed by the State Government, after such inquiry as it considers necessary to make either itself or through such officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. Proviso (2) to Sub-section (1) of Section 63 of the Act of 1959 provides that notwithstanding anything contained in sub-section (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-section (1), as a result of the inquiry referred to in the proviso to that sub-section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. Sub-section (3) of Section 63 provides that the judicial officer so appointed shall proceed to enquire into the Charge in the prescribed manner, hear the member concerned if he makes appearance, record his findings on each matter, embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to State Government, which shall thereupon pass orders in confirmity with those findings. The manner in which inquiry is to be conducted is set out in the notification issued by the State Government prescribing procedure for holding inquiry against a member/councillor published in the Rajasthan Gazette (Extraordinary) dated 26.11.1959. The procedure requires the State Government to send statement setting out distinctly the charge against the member-councillor and the same shall be treated as complaint and a copy of the same shall be sent to the Member/Councillor for filing a written statement personally or through his advocate on a date fixed for the purpose by the Judicial Officer. The procedure requires the State Government to send statement setting out distinctly the charge against the member-councillor and the same shall be treated as complaint and a copy of the same shall be sent to the Member/Councillor for filing a written statement personally or through his advocate on a date fixed for the purpose by the Judicial Officer. Clause 2 of the notification provides that if the Member/Councillor admits the charge in his written statement and shows no sufficient cause why he should rot be removed, the Judicial officer shall record his findings on each matter embodied in the statement of the charge after hearing him if he makes appearance and send the record to the State Government for passing necessary orders. Clause 7 of the notification provides that if the Member/Councillor does not appear either personally or through his advocate, the Judicial Officer may proceed exparte and after taking such evidence as he may consider necessary, record his findings on each matter embodied in the statement of the charge. Rule 8 provides that the Judicial Officer after completing the inquiry shall send the record along with his findings to the State Government for passing necessary orders. 6. In the present case there is no serious challenge to the procedure adopted up to compliance of Section 63, of the sub-section (2). The serious challenge is to be proceedings under sub-section (2) and (3) of Section 63 by the Judicial Officer and the report given by him. It has been recorded that since the Member/Councillor did not appear, ex parte proceedings were taken against him, evidence on behalf of the department was taken, the department examined one witness and produced certain documents. Because the material on record was not controverted, it was held that the charges were proved. There is no discussion as to what were the charges, what was the material in support of each of them and what was the specific finding. It is, therefore, clear that the enquiry report was silent so far as findings on specific charges are concerned and cannot be said to be a speaking report. The learned Single Judge has rightly held this report to be not in accordance with the rules and principles of natural justice. It is, therefore, clear that the enquiry report was silent so far as findings on specific charges are concerned and cannot be said to be a speaking report. The learned Single Judge has rightly held this report to be not in accordance with the rules and principles of natural justice. Actually, in accordance with rules, separate finding on each of the charges should have been given so that it could be known as to under which sub-clause of clause (d) of Section 63(1) of the Act of 1959, the member was found guilty. There is no finding as to whether the Member was found guilty of the misconduct in the discharge of his duties, or he has been found guilty of any disgraceful conduct, or whether he was found to be have become incapable of performing his duties as a Member, or he is found otherwise to have flagrantly abused, in any manner his position as Member. The arguments of the learned counsel for the appellants against the decision on the validity of the inquiry report are, therefore, not acceptable and are negatived. 7. So far as the grievance of the appellants that by impugned order, the learned Single Judge has given certain directions which are not based on the statutory procedure prescribed by the Act of 1959 there appears to be considerable force. In paragraphs 12, 13 & 14 of the impugned order. There are certain observations which are not supported by the provisions of law. Actually, those observations were not necessary for just decision of the case. The challenge was simply on the basis of procedure adopted by the Judicial Officer being against the law. It was sufficient to hold that the inquiry should have been conducted in consonance with the provisions of Section 63 and procedure prescribed by the notification issued under Section 63 of the Act of 1959. 8. We, therefore, partly allow this appeal. We uphold the decision of the learned Single Judge on the invalidity of the inquiry report submitted by the judicial officer, but set aside the observations made about the requirement of supplying entire material along with the charge sheet etc, which are not supported by any provisions of law. 8. We, therefore, partly allow this appeal. We uphold the decision of the learned Single Judge on the invalidity of the inquiry report submitted by the judicial officer, but set aside the observations made about the requirement of supplying entire material along with the charge sheet etc, which are not supported by any provisions of law. The directions issued by the learned Single Judge are set aside and instead, it is directed that the impugned order, Annexure 4 to the petition, inquiry report of the judicial officer and Annexure 5, order of removal of the member from the Municipal Council, are set aside and the State Government shall be free to take action under Section 63 of the Act of 1959 against the respondents after complying with the provisions of Section 63 and the procedure prescribed in the notification afresh.All interim orders stand vacated.Appeal Partly allowed. *******