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2004 DIGILAW 1660 (RAJ)

Meena Saini v. State of Rajasthan

2004-11-11

K.S.RATHORE

body2004
JUDGMENT 1. - This writ petition is directed against the order dated 22.7.2004 whereby the petitioner was removed from the post of Chairperson and further declared disqualified for contesting the election for six years. 2. Brief facts of the case are that the petitioner was elected as a member of Municipal Council, Alwar on 27.11.1999 and was also elected as Chairperson of Municipal Council on 28.11.1999. A complaint was lodged against the petitioner regarding irregularities committed by him as Chairperson. Comments were asked from the Commissioner, Municipal Council and the same were sent vide letter dated 4.8.2001 to Deputy Director. Thereupon, a notice was issued by the Deputy Secretary, Department of Local Self on 16.9.2003 to the petitioner whereby four charges were levelled against the petitioner. On the basis of enquiry report submitted by the Deputy Director, explanation of the petitioner was sought within 10 days of notice, failing which proceedings under section 63 of the Rajasthan Municipalities Act, 1959 were to be initiated. 3. The petitioner has challenged the impugned order on the ground that the respondents have not followed the mandatory procedure as stipulated under section 63, which is necessary for removal of a member and no enquiry whatsoever has been conducted as per the provisions of Rajasthan Municipalities Act, 1959 and rules made thereunder. 4. After conducting the enquiry, the petitioner was put under suspension vide order dated 28.2.2004. Against the suspension order, the petitioner filed a writ petition which was registered as S.B. Civil Writ Petition No. 1288/2004. Since subsequently, final order was passed by the judicial officer, the petitioner withdrawn the writ petition, the same was dismissed as having become infructuous. 5. Learned counsel for the petitioner drawn my attention towards Section 63(d), which reads as under : 63. Removal of members - (1) The State Government may, subject to the provisions of sub-secs. (2) & (3), remove a member of a board on any of the following grounds, namely - (d) that he has (i) been guilty of misconduct in the discharge of his duties, or (ii) been guilty of any disgraceful conduct, or (iii) become incapable of performing his duties as a member, or (iv) otherwise absured in any manner his position as such member; 6. Mr. Mr. Hora, learned counsel for the petitioner submits that in the notice under section 63, the respondents have not specified that the charges levelled against the petitioner is with regard to functioning as a Chairperson or a member. In absence of specific notice, the petitioner was deprived to represent his case properly before the respondents and the petitioner was also not aware that he will be removed from the membership and will be debarred for contesting the election for six years. 7. Learned counsel further referred effected Section 64 and sub-Section (10) of Section 65 which reads as under : 64. Disability of members removed under section 63(1)(d). - A member who has been removed u/Cl. (d) of sub-Section (1) of Section 63 or against whom adverse findings have been recorded under section 63-A shall not be eligible for re-election for a period of six years from the date of the order of his removal or of recording adverse findings as the case may be. Section 65(10). - Every chairman and every vice-chairman shall be removed from his office as such Chairman and vice-chairman on any of the grounds specified in clause (d) of sub-Section (1) of Section 63, and the provisions of sub-secs. (2) to (5) of that section shall apply. 8. After referring the aforesaid provisions, learned counsel submits that for removal from membership as well as Chairman/Chairperson, procedure has been laid down under section 63,,but the proceedings should be initiated specifying that the person concerned will be removed from the membership or Chairmanship. 9. In support of his submissions, he placed reliance on the judgment rendered by the Division Bench of Gujarat High Court rendered in case of Chimanbhai R. Patel & etc. v. Anand Municipality, Ananu & Ors., reported in AIR 1983 Gujarat 136 wherein the Division Bench of Gujarat High Court has held as under:- "If a person has abused his powers as the President he can be removed from that office but not also from the office of a Municipal Councillor. in a given case the duties may overlap in which case the incumbent can perhaps be removed from both the offices. in a given case the duties may overlap in which case the incumbent can perhaps be removed from both the offices. However, where the duties to be performed are distinct or attached to a particular officer and can only be performed by a person holding that office, then it is obvious that he can be removed from that office on the ground that he misconducted himself while discharging his duties pertaining to that particular office. Therefore, a person who misconducts himself or conducts himself in a disgraceful manner while performing his duties as a President or a Chairman of a Committee constituted by the Municipality under the Act can be removed from the office of the President or Chairman, as the case may be, but it seems difficult to hold that he can also be removed from the office of Municipal Councillor even though the alleged misconduct or disgraceful conduct was not referable to anything done in the discharge of duties as a Municipal Councillor." 10. Section 37(1) of the Gujarat Municipalities Act, 1963 reads as under:- "37. (1) The State Government may remove from office - (a) any Councillor of a municipality, on its own motion or on receipt of a recommendation of the municipality in that behalf supported by a majority of the total number of the then councillors of the municipality, or (b) any President or Vice-President of a municipality. 11. Learned counsel for the petitioner further submits that the provisions contained in Gujarat Municipalities Act, 1963 are para materia with the provisions of Section 63 of the Rajasthan Municipalities Act, 1959, therefore, the judgment rendered by the Division Bench of Gujarat High Court is applicable to the instant case. Since the respondents have not followed the due process of law as envisaged under section 63(d) & 65(10), the petitioner can not be removed from the membership as he was found guilty of discharge in duties as Chairman, therefore, debarring the petitioner to contest the election for six years is contrary to the aforesaid judgment as well as provisions of Rajasthan Municipalities Act, 1959. 12. 12. In case of S.L. Kapoor v. Jagmohan & Ors., reported in AIR 1981 SC 136 , the Hon'ble Supreme Court has held as under : "Thus on a consideration of the entire material placed before us we do not have any doubt that the New Delhi Municipal Committee was never put on notice of any action proposed to be taken under section 238 of the Punjab Municipal Act and no opportunity was given to the Municipal Committee to explain any fact or circumstance on the basis of which that action was proposed. If there was any correspondence between the New Delhi Municipal Committee and any other authority about the subject-matter or any of the allegations, if information was given and gathered it was for entirely different purposes. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very persons proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations *which might lead to a certain action being taken against him. If that is made known the requirements are met. We disagree with the finding of the High Court that the Committee had the opportunity to meet the allegations contained in the order of supersession." 13. It is further submitted on behalf of the petitioner that in view of the judgment rendered by the Hon'ble Supreme Court, the respondents should keep the notice with the specific stipulation that whether the petitioner will be removed from the post of Chairman or from the membership whereas the impugned notice only contained that action under section 63 is contemplated against the petitioner. On account of this fact, the petitioner could not represent his case properly before the respondents. 14. Per contra, Mr. Shyam Arya, learned Government Advocate has vehemently opposed the plea raised on behalf of the petitioner. On account of this fact, the petitioner could not represent his case properly before the respondents. 14. Per contra, Mr. Shyam Arya, learned Government Advocate has vehemently opposed the plea raised on behalf of the petitioner. Learned Government Advocate submits that looking to the gravity of the charges and adverse findings were recorded against the petitioner under section 63, the petitioner was declared disqualified for re-election for a period of six years from the date of order of his removal. The petitioner was well aware of the fact that proceedings under section 63 are being initiated against him for the purposes of removal from membership which includes removal from Chairmanship also. 15. Heard rival submissions of the respective parties and perused the material available on record as well as relevant provisions of Rajasthan Municipalities Act, 1959 as well as Gujarat Municipalities Act,1963. 16. As per Section 63(1)(d), a member can be removed if he has been guilty of misconduct in the discharge of his duties, any disgraceful conduct, become incapable of performing his .duties as a member or otherwise abused in any manner his position as such member. In the instant case, the petitioner is found guilty of misconduct in the discharge of his duties being a Chairman. 17. Now the question arise whether the petitioner can be removed from the membership, in case, he is found guilty of misconduct in the discharge of his duties being a Chairman. 18. Sub-section (2) of Section 63 stipulates the procedure to initiate the action against particular person for the purpose of removal a member on the ground specified u/Cl. (c) or clause (d) of Section 1, as a result of the enquiry and such enquiry shall be conducted by .the judicial officer of the rank of District Judge appointed by the State Government. As per sub-Section (3) of Section 63, the Judicial Officer has to proceed to inquiry into the charge in the prescribed manner and shall record his finding on each matter. Here in the instant case, the notice was issued under section 63 which means the proceedings were initiated against the petitioner from removal of membership and the petitioner was aware of this fact. 19. Here in the instant case, the notice was issued under section 63 which means the proceedings were initiated against the petitioner from removal of membership and the petitioner was aware of this fact. 19. As per Section 65, every chairman and every vice-chairman of a board shall be removable from his office as such chairman and vice-chairman on any of the grounds specified in clause (d) of sub-Section (1) of Section 63, meaning thereby the procedure for removal of Chairman, Vice-Chairman and member is same. In such circumstances, I am not convicted with the submissions made on behalf of the petitioner. 20. In the impugned notice, charges were levelled against the petitioner and the petitioner was called upon to give reply to the charges mentioned in the notice, failing which proceedings under section 63 will be initiated against the petitioner. Since the proceedings under section 63 were initiated for removal from membership which included removal from Chairman and Vice-Chairman, therefore, the provisions of Gujarat Municipalities Act, 1963 are not para materia with the provisions of Rajasthan Municipalities Act, 1959. Consequently, the judgment referred by the petitioner of Division Bench of Gujarat High Court is also not applicable to the instant case. 21. Now the question remains with regard to the factual aspect of the matter. The charges levelled against the petitioner is found proved by the judicial officer and findings have been recorded against the petitioner. As consistent view has been taken by the Hon'ble Supreme Court that while exercising power Under Article 226 of the Constitution of India the Court cannot sit as appellate Court to re-appreciate each and every finding given by the judicial officer. Thus, I do not want to enter into the fact finding given by the enquiry officer and judicial officer. 22. In view of the aforesaid observations, no interference is called for by this Court while exercising power Under Article 226 of the Constitution of India. Consequently, the writ petition fails and the same is hereby dismissed with no order as to cost.Writ Petition Dismissed. *******