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2011 DIGILAW 821 (RAJ)

Om Prakash Saini v. State of Rajasthan

2011-04-26

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—Aggrieved by the charge-sheet dated 10.05.2004, issued by the Deputy Secretary (Admn.) for holding an inquiry under Section 63 of the Rajasthan Municipalities Act ('the Act', for short), the petitioner has approached this Court. 2. The brief facts of the case are that the petitioner was elected as a member from ward No.30 of Municipal Board, Chirawa ('the Board', for short) for the term 1982 – 1986. During this term, he was also elected as a Vice-Chairman of the Board. During this term, since the Chairman was suspended, the charge of Chairman of the Board was handed-over to the petitioner. The petitioner continued to act as the Chairman till 1986. Thereafter, in 1986, an Administrator was appointed to look after the charge of the Board. In 1990, the petitioner was again elected as a member of the Board. However, during this tenure, the petitioner was served with a charge-sheet wherein it was alleged that in his earlier tenure as the Chairman, between the years 1982 to 1986, he had wrongly regularized land of forty-seven persons while discharging his duties as Vice-Chairman and as Chairman. Vide order dated 20.05.1992, the petitioner was suspended from the post of member. Since the petitioner was aggrieved by the said order, he filed a writ petition, namely S.B. Civil Writ Petition No.3080/1992, Om Prakash Saini vs. State of Rajasthan, before the Principal Seat of this Court at Jodhpur. Vide order dated 11.06.1992, this Court stayed the operation of the suspension order dated 20.05.1992. During the pendency of the said writ petition, vide order dated 21.01.1993, which was duly published in Rajasthan Gazette on 22.01.1993, the Government of Rajasthan took a decision to withdraw the suspension order dated 20.05.1992. It further stated that the inquiry pending against the petitioner will not be effected. Therefore, the writ petition filed by the petitioner became infructuous; it was dismissed as infructuous vide order dated 11.09.1996. 3. Meanwhile, in 1995, the petitioner again contested the election as a member of the Board; again, he was elected. He completed his term in 2000. Considering his popularity, again he was re-elected as a member of the Board on 20.08.2000. According to the petitioner, his victory in 2000 election brought him face to face with his political adversary, one Mr. Subhash Sharma, who was elected as the Chairman of the Board. While Mr. He completed his term in 2000. Considering his popularity, again he was re-elected as a member of the Board on 20.08.2000. According to the petitioner, his victory in 2000 election brought him face to face with his political adversary, one Mr. Subhash Sharma, who was elected as the Chairman of the Board. While Mr. Sharma acted as the Chairman, the petitioner was elected as the Vice-Chairman of the Board. Thus, began the battle between the two political adversaries. 4. Allegedly one Gangadhar Saini made a complaint against the petitioner with regard to the allotment of land during his term as the Chairman of the Board way back in 1982 to 1986. The Government got an inquiry conducted through the District Collector and the Sub-Divisional Officer ('SDO', for short). On 03.07.2003, the SDO submitted his report to the District Collector. Despite the fact that the Government itself had revoked the suspension order dated 20.05.1992 vide its order dated 21.1.1993, still the SDO submitted that with the dismissal of the writ petition the suspension order revived itself. Vide letter dated 11.06.2003, the District Collector forwarded the report of the SDO to the Government. Thereafter, on 25.07.2003, the Government issued a show cause notice to the petitioner calling upon him to submit his explanation with regard to his having alloted 49 Pattas during his previous term in 1982 – 1986. The petitioner submitted a detailed reply wherein he clearly pointed out that vide order dated 21.01.1993, the Government had revoked the suspension order and had clearly stated that the inquiry shall not be effected. Meanwhile, a no confidence motion was moved against Mr. Subhash Sharma and he was removed from the Chairmanship of the Board. On 07.10.2003, the charge of the Chairmanship was handed over to the petitioner. Even subsequently, he was elected as a Chairman of the Board on 17.02.2004. However, as the petitioner belonged to the opposite party, a charge-sheet was issued to him on 10.05.2004 again alleging that in his tenure from 1982 to 1986, he had regularized the Pattas of 49 persons. Hence, this petition before this Court. 5. Mr. L.L. Gupta, the learned counsel for the petitioner, has vehemently contended that in 1992, the petitioner was served with the same exact charge-sheet as in the year 2004. According to him, in both the charge-sheets, the petitioner had regularized Pattas of 49 persons. Hence, this petition before this Court. 5. Mr. L.L. Gupta, the learned counsel for the petitioner, has vehemently contended that in 1992, the petitioner was served with the same exact charge-sheet as in the year 2004. According to him, in both the charge-sheets, the petitioner had regularized Pattas of 49 persons. Further, according to him, the impugned charge-sheet has been served upon the petitioner almost twenty years after the tenure was over, and twelve years after the first charge-sheet was served. Thus, the service of the charge-sheet is motivated more by political vendetta, than by administrative exigency. Secondly, as there is right to speedy trial in criminal law, similarly there is a right to speedy inquiry. A person cannot be subjected to a long inquiry as it would violate his fundamental right under Article 21 of the Constitution of India. A charge-sheet that relates back to an alleged incident which occurred twenty years ago also deprives the petitioner of his right to defend himself fairly and reasonably. For, after twenty years, it is impossible for the petitioner to gather the documents and the witnesses for his defence. Therefore, such a charge-sheet makes a mockery of fair inquiry. Thirdly, the impugned charge-sheet is clearly an abuse of the process of law as the old charge-sheet which was revoked vide order dated 21.01.1993, is sought to be resurrected in the year 2004. Therefore, the charge-sheet is being used as a handy tool to obstruct the political rise of the petitioner. Moreover, such a charge-sheet is a clever ploy to undermine the democratic process. Since the petitioner belongs to the opposite party, the Government has invoked its power to thwart his acting as the Chairman of the Board. Lastly, the charge-sheet suffers from non-application of mind and amounts to a colourable exercise of power. Hence, it deserves to be quashed and set aside. 6. On the other hand, Mr. Jinesh Jain, the learned Additional Government Advocate, has strenuously contended that the Government is justified in instituting the inquiry as there are allegations of corruption against the petitioner. Moreover, merely because the suspension order was revoked vide order dated 21.01.1993, it would not pre-empt the Government from re-opining the entire case. Furthermore, Section 63A of the Act empowers the government to hold an inquiry for any misconduct committed in an earlier term. Thus, he has justified the impugned charge-sheet. 7. In rejoinder, Mr. Moreover, merely because the suspension order was revoked vide order dated 21.01.1993, it would not pre-empt the Government from re-opining the entire case. Furthermore, Section 63A of the Act empowers the government to hold an inquiry for any misconduct committed in an earlier term. Thus, he has justified the impugned charge-sheet. 7. In rejoinder, Mr. Gupta has contended that even if Section 63A of the Act empowers the government to inquire into an alleged misconduct of an earlier term, such a power has to be exercised within a reasonable period. Such a power cannot be invoked for resurrecting old, stale and obsolete cases. Furthermore, an inquiry is part of the “deterrent theory of the punishment”. However, a delayed response by the Government loses deterrence. Therefore, the Government is not justified in claiming that it has validly exercised its powers. 8. Heard the learned counsel for the parties and perused the record. 9. Due to judicial interpretation of Article 21 of the Constitution of India, Article 21 is like a vast canvass which protects and promotes various rights, which together comprise “personal liberty” or “life”. One of the essential elements of “personal liberty”, is the right to a fair trial. Although the word “fair trial” necessarily refers to a criminal trial, but the concepts of fair trial, being part of principles of natural justice, are equally applicable to an inquiry. Therefore, the principles which guide a criminal trial, can equally be applied to an inquiry. 10. The relationship between a citizen and the State is a relationship of a sacred trust. While a citizen gives up some of his liberties to strengthen the powers of the State, he expects certain amount of protection of his fundamental and civil rights from the State. He also expects that the State would not use its power arbitrarily either to create obstacle for him, or to smite him. The sacred trust is the heart of democracy. As long as the State acts reasonably, fairly and justly, the people continue to have faith in the State. If the converse happens, the people not only lose their faith in the functioning of the State, but most importantly lose their faith in the Rule of Law. Therefore, repeatedly the Hon'ble Supreme Court has stressed that every action of the State must be just, fair and reasonable. If the converse happens, the people not only lose their faith in the functioning of the State, but most importantly lose their faith in the Rule of Law. Therefore, repeatedly the Hon'ble Supreme Court has stressed that every action of the State must be just, fair and reasonable. Any Act which is unjust, unfair, or unreasonable is an anathema to the constitutional mandate and to the constitutional philosophy of this country. 11. While keeping these two principles in mind, let us analise the facts of this case. Admittedly, in 1992 a charge-sheet had been issued by the Government to the petitioner relating to his tenure as the Chairman of the Board between the years 1982 till 1986. According to the said charge-sheet (Annex-1), it was alleged that 47 Pattas were issued during the petitioner's tenure in contravention to the Circular issued by the Government. Similarly, according to the charge-sheet dated 10.05.2004, it was alleged that 49 Pattas were issued by the petitioner during his tenure from 1982 to 1986. Vide order dated 21.01.1993, which was duly published in the Rajasthan Gazette on 22.01.1993, the Government had taken a decision that the inquiry pending against the petitioner will not be effected. Thus, the Government had not only withdrawn the suspension order, but had also withdrawn the charge-sheet. Interestingly, in the report submitted by the SDO and the letter forwarded by the Collector, both of them claim that no document was produced by the petitioner showing the fact that the suspension order had been revoked. Since the order dated 21.01.1993 was duly published in Rajasthan Gazette, the stand taken by the SDO and the Collector is rather curious. Clearly the Collector had failed to apply his mind to the relevant facts of the case while sending his report to the government. Surprisingly, in the reply filed by the State, the State has admitted the fact that vide order dated 21.01.1993, the Government had, in fact, revoked the suspension order and had dropped the inquiry. Yet, the same Government has issued the charge-sheet dated 10.05.2004 ! Therefore, the Government is not justified in re-initiating the same inquiry that too after a lapse of twelve years. The issuance of the charge-sheet, clearly, suffers from the virus of non-application of mind. 12. Section 63 of the Act reads as under : 63. Yet, the same Government has issued the charge-sheet dated 10.05.2004 ! Therefore, the Government is not justified in re-initiating the same inquiry that too after a lapse of twelve years. The issuance of the charge-sheet, clearly, suffers from the virus of non-application of mind. 12. Section 63 of the Act 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, namely (a) that he has absented himself from the meetings of the board for more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period, without leave of the board: Provided that the period during which such member was in jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account. (b) that he has failed to comply with the provisions of section 61, (c) that after his election he has incurred any of the disqualification mentioned in section 18 or section 26 or has ceased to fulfil the requirement of section 24, (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 [XXX] abused in any manner his position as such member: Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State Level Services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. (1A) The power conferred by sub-section (1) may be exercised by the State Government of its own motion or upon the receipt of a report from the Board in that behalf or upon the facts otherwise coming to the knowledge of the State Government. (1A) The power conferred by sub-section (1) may be exercised by the State Government of its own motion or upon the receipt of a report from the Board in that behalf or upon the facts otherwise coming to the knowledge of the State Government. Provided that until a member is removed from office by an order of the State Government under this section, he shall not vacate his office and shall, subject to the provisions contained in sub-section (4), continue to act as, and to exercise all the powers and perform all the duties of a member and shall as such be entitled to all the rights, and be subject to all the liabilities, of a member under this Act. (2) 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 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. (3) The judicial officer so appointed shall proceed to inquire into the charge in the prescribed manner, hear the member concerned if he makes appearance, record his findings on each matter embodied in the statements as well as on every other matter he considers relevant to the charge and send the record along with 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. (4) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceedings have been commenced under this section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the board or otherwise perform the duties of a member thereof. (5) Every final order of the State Government passed under this section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any court. (5) Every final order of the State Government passed under this section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any court. Section 63A of the Act is as follows : 63-A. Inquiry into certain allegations after expiry of term of office- (1) In respect of any allegations of the nature specified in clause (d) of sub-section (1) of section 63 against any member or the Chairman or Vice-Chairman of a board, the inquiry referred to in the proviso to the said sub-section, and in sub-sections (2) and (3), of that section may be initiated against such Member, Chairman or Vice-Chairman even after the expiry of the term of office of that board or after he has ceased to be such Member, Chairman or Vice-Chairman or, if already initiated before such expiry or ceaser, may be continued thereafter and in each such case the State Government shall, by order in writing, only record its findings in conformity with those of the judicial officer recorded under sub-section (3) of section 63 (2) The provisions of sub-section (5) of section 63 shall apply to the findings of the State Government so recorded. 13. A bare perusal of both these provisions clearly reveals that while Section 63 empowers the Government to hold an inquiry with regard to the present term of a person, Section 63A empowers the Government to hold an inquiry with regard to any misconduct committed by a person for his earlier term. However, the power under Section 63A has to be exercised within a reasonable time. The said power cannot be invoked after an inordinate delay. In the present case, the Government has invoked its power after a lapse of twenty years from the alleged date of misconduct and after a lapse of twelve years from the date of service of the charge-sheet. Therefore, the Government has arbitrarily invoked its power after a delay of two decades. Moreover, the Government has not given any reason for invoking its power after such an inordinate delay. 14. The power to hold an inquiry has to be exercised within a reasonable time frame. It cannot be used to dig up old cases. For, the power cannot be used as a whip to frighten a citizen. Moreover, the Government has not given any reason for invoking its power after such an inordinate delay. 14. The power to hold an inquiry has to be exercised within a reasonable time frame. It cannot be used to dig up old cases. For, the power cannot be used as a whip to frighten a citizen. If the Government was, indeed, serious about routing out corruption, it should have exercised its power in the year 1992 itself. Therefore, the exercise of power, that too after twenty years, has been done for wreaking political vendetta, rather than as a bona fide action of cleaning the system of corruption. 15. The issuance of the charge-sheet dated 10.05.2004 seems to be a ploy by the Government to derail the petitioner from his political stature. Therefore, the issuance of the charge-sheet is an arbitrary exercise of power. Moreover, it is a colourable exercise of power. 16. The power to inquire, the power to remove an elected member should be exercised with care and caution. Such a power should not be utilizsed so as to undermine democracy at the grass route level. To do so, is not only to weaken the democratic process, but also to shake the faith of the people in the functioning of the Government and in the Rule of Law. While exercising the power, the State should have been alive to the constitutional mandate and constitutional philosophy. 17. The principles of natural justice demand and dictate that a fair hearing should be given to the delinquent. Therefore, ample opportunity should be given to the delinquent to gather the evidence in his defence. However, in case a charge-sheet is served after twenty years of the alleged incident, it is almost impossible for the petitioner to gather the witnesses and to collect the documentary evidence which might have been in his favour. Therefore, to subject him to such an inquiry would be to deny him his right under the principles of natural justice. Hence, the continuation of the inquiry is without any legal basis. 18. For the reasons stated above, the charge-sheet dated 10.05.2004 is quashed and set aside. There shall be no order as to costs.