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2009 DIGILAW 343 (RAJ)

Mahendra Kumar v. State of Rajasthan

2009-02-04

GOPAL KRISHAN VYAS

body2009
Judgment Hon'ble VYAS, J.—In this writ petition, the petitioner is challenging impugned order dated 23.07.2008 (Annex.-10) whereby the petitioner was removed from the post of Ward Member and declared disqualified to contest the election for six years. Although the petitioner has raised so many grounds to challenge the said order; but, while not pressing the other grounds, the petitioner has prayed that the order impugned is against the principles of natural justice and, before passing the impugned order dated 23.07.2008, the authority of the respondent has not supplied copy of the enquiry report to the petitioner and, also, did not afford an opportunity to the petitioner to furnish his explanation. Further, it is stated that the proceedings resulted in removal of the duly elected member of the Board which is quasi-judicial in nature, therefore, at the time of passing such order, it is also required to grant proper opportunity to the incumbent against whom the order is to be passed by the competent authority so as to provide him an opportunity to submit his explanation. 2. It is also urged before this Court by the petitioner that the order impugned Annex.-10 dated 23.07.2008 is not a speaking order and has been passed by the authority concerned without recording any reasons; therefore, it is totally without application of mind. It is contended on behalf of the petitioner that the quasi-judicial authority is bound to pass a reasoned speaking order but, in this case, while accepting the judicial enquiry in toto, the competent authority has passed in the impugned order which is not tenable in the eye of law. Learned counsel for the petitioner invited my attention towards the judgment of this Court reported in (1999) 1 WLC 440, in which, it has been held by the co-ordinate Bench of this Court that after completion of the enquiry by the Judicial Officer the respondents are required to furnish the copy of the enquiry report to the incumbent and after obtaining explanation from him proper order can be passed. 3. According to learned counsel for the petitioner, the coordinate Bench of this Court after taking into consideration large number of cases decided by the Hon’ble Supreme Court, held that before passing final order for disqualification and removal of a Member of the Municipal Board under Section 63(1), principle of natural justice is required to be followed. 3. According to learned counsel for the petitioner, the coordinate Bench of this Court after taking into consideration large number of cases decided by the Hon’ble Supreme Court, held that before passing final order for disqualification and removal of a Member of the Municipal Board under Section 63(1), principle of natural justice is required to be followed. Learned counsel for the petitioner vehemently argued that only upon this ground the writ petition deserves to be allowed and the order impugned deserves to be quashed and the matter may be remitted to the competent authority for deciding the matter afresh after supplying copy of the enquiry report and granting opportunity of hearing before adjudication of the matter. 4. Learned Addl. Advocate General as well as counsel for the Municipal Board, however, vehemently contended that no prejudice has been caused to the petitioner and the impugned order has been passed by the competent authority after taking into consideration the finding reached upon enquiry conducted by member of Higher Judicial Service, therefore, as per the language of Section 63 of the Rajasthan Municipalities Act, if no prejudice is caused to the petitioner, then, the matter is not required to be sent back for deciding the same afresh after providing opportunity of hearing after supplying copy of the enquiry report. Learned counsel for the Municipal Board, Mr. Rajesh Joshi, while placing reliance upon the apex Court judgment reported in (1993) 4 SCC 727 , submits that if no prejudice is caused then, as per the said judgment decided by the Hon’ble Supreme Court, the contention of the petitioner deserves to be rejected because the petitioner was at liberty to obtain copy of the enquiry report if he was having any grievance with regard to the said judicial enquiry. 5. Further, it is submitted by learned counsel for the Board, Mr. Joshi that in whole of the writ petition, it is nowhere stated by the petitioner how he is aggrieved by the enquiry report submitted by the Judicial Officer upon the charges leveled against the petitioner, therefore, if no prejudice is shown by the petitioner in the writ petition, then, the judgment in Rameshwari Devi’s case (supra) will not apply in the present case. Learned counsel for the Municipal Board submits that very serious charges are leveled against the petitioner for which FIR is also filed and civil suit for cancellation of the sale-deed has been preferred which is pending in the civil Court, therefore, no case is made out for interference and the order passed by the competent authority is well within jurisdiction and there is no requirement of law to provide any opportunity of hearing and to supply copy of the enquiry report prior to passing the order of disqualification and removal by the Special Secretary, Local Self Bodies dated 23.07.2008 and the writ petition deserves to be dismissed. 6. I have considered the rival submissions made by learned counsel for the respective parties. 7. Admittedly, an enquiry was initiated against the petitioner who was elected Member of the Municipal Board, Nokha and charges against him were in regard to preparing forged patta of the land belonging to the municipality in the Tehsil Improvement Committee book in favour of one Inder Chand Baid. The enquiry was conducted by a Higher Judicial Service member who was working on the post of Joint Legal Remembrancer in the Law Department of the Government of Rajasthan. The petitioner is not raising any voice to challenge the said enquiry before this Court although prayer has been made but the petitioner is raising voice that as per the language of Section 63 (1) of the Rajasthan Municipalities Act, as per judgment of the co-ordinate Bench of this Court in Rameshwari Devi’s case (supra), the competent authority was under obligation to provide an opportunity of hearing so also to supply copy of the enquiry report and, after obtaining explanation from the petitioner, speaking order was to be passed. 8. The judgments cited by learned counsel for the respondents have already been considered by the co-ordinate Bench in the case of Rameshwari Devi’s case (supra). 9. I have perused the judgment of the co-ordinate Bench delivered in Rameshwari Devi’s case. It is true that in the said judgment while observing the deficiency in the enquiry, it has been held that the respondents shall furnish copy of the enquiry report to the petitioner within a period of two weeks thereafter and the petitioner may submit his explanation within a period of two weeks thereafter. It is true that in the said judgment while observing the deficiency in the enquiry, it has been held that the respondents shall furnish copy of the enquiry report to the petitioner within a period of two weeks thereafter and the petitioner may submit his explanation within a period of two weeks thereafter. Further it is ordered that the respondents after considering the explanation may pass appropriate order; meaning thereby, while discussing large number of cases the co-ordinate Bench has specifically held that if something is required to be said by the delinquent after completion of the enquiry, then, he shall be granted opportunity of hearing and he shall be granted the opportunity to give explanation with regard to the finding of the enquiry. 10. In this case also, the contention of the learned counsel for the respondents that what prejudice has been caused is not explained by the petitioner cannot be a ground for denial of an opportunity of hearing by the competent authority before passing the order for disqualifying the petitioner. It is the duty of the competent authority to pass order after providing opportunity of hearing; but, in this case, although the Enquiry Officer has provided opportunity to prove the innocence but, before passing the order by the competent authority, at least, the incumbent is required to be heard. But, in this case, without supplying the copy of the enquiry report, straight away, the order impugned has been passed which is not proper. More so, it is against the principles of natural justice. The petitioner is only claiming opportunity of being heard before passing of the adverse order against him which cannot be denied because the order impugned casts stigma upon the petitioner's career. Therefore, in my opinion, although the facts of Rameshwari Devi's case (supra)are slightly different than the present case, but the fact remains that it was held in that case after considering the judgments of the Hon'ble apex Court that before passing the order against the incumbent on the basis of enquiry report, at least, he is required to be given opportunity of hearing. Therefore, while accepting the adjudication made in Rameshwari Devi's case, impugned order is held contrary to law having not been passed after providing copy of the enquiry report and giving opportunity of hearing to the incumbent. 11. Therefore, while accepting the adjudication made in Rameshwari Devi's case, impugned order is held contrary to law having not been passed after providing copy of the enquiry report and giving opportunity of hearing to the incumbent. 11. Recently, Hon’ble Supreme Court, in the case of Official Liquidator vs. Daya Nand & Others, reported in (2008) 10 SCC 1 , held at para 78 that there must be judicial discipline in deciding the cases by the High Courts. Relevant para 78 is as follows : “78.There have been several instances of different Benches of the High Court not following the judgments/orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia vs. Administrator General of W.B. ( AIR 1960 SC 936 ) this Court observed: (AIR p.941, para 19) 19. .............If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.” 12. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.” 12. In this view of the matter, while following the judgment of the apex Court in the case of Official Liquidator vs. Daya Nand & Others (supra) and judgment rendered by the co-ordinate Bench of this Court in Rameshwari Devi’s case (supra), this writ petition is disposed of in the terms indicated hereinbelow. 13. The order impugned dated 23.07.2008 is hereby set aside and the case is remitted to the Special Secretary, Local Self Bodies, Government of Rajasthan, Jaipur with further direction to decide the matter afresh after providing opportunity of hearing to the petitioner. In this case, the petitioner has already obtained copy of the enquiry report, therefore, no order for supply of the report of the enquiry to the petitioner is required to be passed because he has already filed copy of the enquiry report before this Court. The petitioner shall file his representation against the enqujiry report within a period of two weeks from the date of receiving certified copy of this order. After receiving representation from the petitioner the matter shall be decided by respondent No.1 afresh within a period of two weeks thereafter, strictly in accordance with law. 14. The writ petition is partly allowed in the above term.