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2004 DIGILAW 1588 (RAJ)

Ramesh Kumar Tibra v. State of Rajasthan

2004-10-29

GOVIND MATHUR

body2004
Honble MATHUR, J.–This writ petition is directed to challenge the order dated 04.09.2000 passed by the State Government exercising the powers under Section 63 read with Section 64 of the Rajasthan Municipalities Act, 1959 (for short as the Act of 1959). By the said order the State Government declared the petitioner ineligible to contest election under the Municipalities Act for next six years. The facts giving rise to the present writ petition are stated hereinafter. (2). The petitioner was elected as Chairman, Municipal Board, Jhunjhunu, on 29.11.1994. By an order dated 22.05.1999 the State Government while exercising the powers under Sub-section 4 of Section 63 of the Act of 1959 placed the petitioner under suspension. (3). The petitioner by way of filing a writ petition before this Court assailed the validity of the order of suspension dated 27.05.1999. This Court by an order dated 08.06.1999 while admitting the writ petition for hearing pleased to stay the operation of the order dated 22.05.1999. In compliance of the order dated 08.06.1999 the petitioner was allowed to take over the charge of the Chairman, Municipal Board, Jhunjhunu, by an order dated 09.06.1999 passed by the Executive Officer, Municipal Board, Jhunjhunu. (4). The State Government decided to initiate an inquiry by a Judicial Officer as envisaged under Section 63 of the Act of 1959 against the petitioner. Accordingly, a charge-sheet was severed upon him and the petitioner was directed to submit an explanation. The petitioner while denying the allegations submitted explanation in detail to satisfy the competent authority with regard to his conduct pertaining to the allegations levelled against him. The petitioner also averred that he has been subjected to the inquiry for extraneous considerations at the behest of certain political persons and the respondent No. 4, Mr. T.C. Bohra, Sub Divisional Officer, Jhunjhunu. (5). The State Government by the order impugned dated 04.09.2000 declared the petitioner ineligible to contest elections for next six years on the basis of the inquiry report dated 2.08.2000 submitted by the Joint Legal Remberencer (II)-cum-Judicial Enquiry Officer. (6). The contention of the Counsel for the petitioner is that the order impugned dated 4.09.2000 is not only an outcome of extraneous considerations but is also passed in violation of the principles of natural justice to the extent that the State Government failed to set-forth any reason to support the conclusion. (7). (6). The contention of the Counsel for the petitioner is that the order impugned dated 4.09.2000 is not only an outcome of extraneous considerations but is also passed in violation of the principles of natural justice to the extent that the State Government failed to set-forth any reason to support the conclusion. (7). A reply to the writ petition has been filed denying the allegations of mala fides and further stating that the inquiry was conducted in accordance with the provisions of the Rajasthan Municipalities act, 1959. (8). I have heard counsel for the parties. (9). The contention of the counsel for the petitioner with regard to mala fides against respondent No. 4 is not substantiated by the sufficient reasons. Infact no material is available on record on basis of which mala fides against the respondent No. 4 could be alleged. The respondents in their reply too, denied the allegations of malafides and stated that the order passed is based on the inquiry report submitted by the Inquiry Officer after holding regular inquiry as provided under Section 63 of the Act of 1959. The petitioner has utterly failed to substantiate the allegations of malafides, therefore, no cognizance of the same can be taken. (10). The next contention of the counsel for the petitioner is that the order impugned dated 4.09.2000 deserves to be quashed as it does not disclose the application of mind, as there is no reason to support the conclusion. The order impugned simply mentions that the allegations levelled against the petitioner were found proved by the Inquiry Officer in its inquiry report dated 02.08.2000, therefore, the learned counsel exercising the powers under Section 63 read with Section 64 of the Act of 1959, declared the petitioner ineligible to contest election for next six years. According to the counsel for the respondents the Government is required to act upon the findings given by the Inquiry Officer and the same has been done in the present case. State Government is required to pass an order in conformity with the enquiry report. Government is having no authority to examine correctness of the inquiry report. (11). The relevant provisions of Section 63 of the Act of 1959 reads as under:– ``63. Removal of members.–(1) The State Government may, subject to the provisions of Sub-section (2) and (3), remove a member of a board on any of the following grounds, (a) ........... Government is having no authority to examine correctness of the inquiry report. (11). The relevant provisions of Section 63 of the Act of 1959 reads as under:– ``63. Removal of members.–(1) The State Government may, subject to the provisions of Sub-section (2) and (3), remove a member of a board on any of the following grounds, (a) ........... (b) ........... (c) ........... (1-A) .......... `(3) The Judicial Officer so appointed shall proceed to inquiry into the charge in the prescribed manner, heard the member concerned, if he makes appearance, record his finding on each matter embodied in the statement was well as on every other matter he considers relevant to the charge and send the record alongwith such findings to the State Government, which shall thereupon pass (final orders or order for re-enquiry by any such other officer as may be deemed proper). (12). Sub-section 3 of the Section 63 of the Act of 1959 in quite unambiguous terms empowers the State Government to pass final orders or order for reinquiry by any such other officer as may be deemed proper after considering the record alongwith the findings given by the Inquiry Officer. The provision came into force on 22.07.2000. The order impugned was passed on 4.09.2000. From perusal of the provisions of Sub-section 3 of Section 63 of the Act of 1959, it is crystal clear that the State Government is required to apply the mind on the basis of available record and the inquiry report submitted by the Inquiry Officer before passing final order. It is wrong to say that the State Government is having no power but to pass an order in conformity with the findings given by the Inquiry Officer. This Court while examining the powers of the State Government under Sub-section 3 of the Section 63 of the Act of 1959, in the case of Chimna Ram vs. State of Rajasthan & Ors. (1), observed as under:- ``The State Government has not applied its mind at all to the inquiry report submitted by the Judicial Officer. This Court while examining the powers of the State Government under Sub-section 3 of the Section 63 of the Act of 1959, in the case of Chimna Ram vs. State of Rajasthan & Ors. (1), observed as under:- ``The State Government has not applied its mind at all to the inquiry report submitted by the Judicial Officer. The statutory provision of Section 63 of the Act imposes an obligation on the State Government to consider the report thoroughly and not to pass an order mechanically for the reason that report may be based on no evidence or the Enquiry Officer might have made the report in flagrant violation of the principles of natural justice or statutory provision. (13). In view of above there is not doubt that the government is required to pass a reasoned order while exercising the powers under Sub-section (3) of Section 63 of the Act of 1959. It is also well-settled that the proceedings under Section 63 are quasi-judicial by nature, therefore, an order with reasons is essential. Honble Supreme Court in the case of Cyril Lasardo vs. Juliana Maria Lasrado (2), while reiterating the the necessary of passing a reasoned order, held as under:- ``12. Even in respect of administrative orders Lord Denning, M.R. in Breen vs. Amalgamated Engg. Union observed: (All ER P. 1154h) ``The giving of reasons is one of the fundamentals of good administration. In Alexander Machinery (Dudley) Ltd. vs. Crabtree it was observed: ``Failure to give reasons amount to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals to ``inscrutable face of the sphinx., it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the powers of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at-least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ``inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance. (14). It is now a settled legal position that the orders passed by quasi-judicial authorities must be reasoned one. The reasons are carrier of objectivity which is the foundation of justice. (15). From reading to the order impugned dated 4.09.2000 it is apparent that no reason has been recorded by the State Government while exercising the powers under Sub-section 3 of the Section 63 of the Act of 1959. The order impugned, therefore, is unsustainable in the eye of law. (16). The Court had an occasion to deal with the argument of the counsel for the respondents that the State Government is required to pass an order in conformity with the findings given by the Inquiry Officer, therefore, the State Government is not required to give reasons, in the case of Rameshwari Devi vs. State of Rajasthan (3). This Court held that the passing of speaking and reasoned order after application of mind and application of principles of natural justice are inbuilt. (17). In the case Rameshwari Devi (supra), this Court held as under:– ``24. In the instant case, the respondents have not passed a speaking/reasoned order. It is astonishing to note and what can be more disgraceful for the State of in a democratic set-up, it removed the duly elected official of the Municipal Board by issuing the order on a cyclostyled paper by filing the blanks as is evident from the impugned order dated 07.10.1998 (Annexure P- 18). The submissions made by Mr. Jasmatia that the State Government can neither apply its mind nor pass a reasoned order as in view of the provision of Sub-section (3) of Section 63, which provides that after conclusion of enquiry, the Enquiry Officer shall send the record to the State Government and the State Government shall pass the orders in ``conformity of those findings for the reasons that if the State Government is not required to apply its mind and pass the speaking/reasoned orders, what was the occasion for sending the record alongwith the enquiry report. The Enquiry Officer would have been authorised to pass the order of removal and disqualification or could hive simply communicated the findings. The statutory provisions have to be interpreted in view of the purposive construction. Moreover, in passing the reasoned and speaking order, after application of mind and application of principles of natural justice, are in built and mandatorily required to be complied with to avoid any kind of arbitrariness and for compelling the authorities to have strict adherence to the procedural fairness. (18). As I have already stated that the order impugned dated 4.09.2000 does not disclose any reason to support the conclusions, it is nothing but arbitrary and mechanical exercise of powers. No authority can be allowed to act in a manner which creates confusion or does not put the matter with clarity as required in a society governed by the rule of law. The order impugned does not and cannot stand valid on measures of law stated above. (19). The writ petition, therefore, deserves to be allowed, hence the order impugned dates September 4th 2000 is hereby quashed. No order as to costs.