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2012 DIGILAW 488 (GUJ)

Pankaj B. Patel v. State of Gujarat

2012-07-02

P.B.MAJMUDAR, PARESH UPADHYAY

body2012
Judgment P.B. Majmudar, J.—This appeal is directed against order of the learned Single Judge dated 25.50.2010 in Special Civil Application No. 6472 of 2010. By the impugned order, the learned Single Judge dismissed the writ petition filed by the present appellants. 2. It is the case of the appellants that they were elected Directors of the Respondent No. 3 – Unjha Nagrik Sahakari Bank Ltd. The appellant No. 1 was the Chairman of the Bank and the appellant No. 2 was Managing Director of the said Bank. The Managing Committee of the Bank resolved to appoint and recruit certain clerks and peons. The Selection Committee send names of eligible candidates possessing requisite qualification from Employment Exchange. It is the case of the appellants that the Employment Exchange did not sent names of eligible candidates. Thereafter, advertisement was given for recruitment and subsequently 133 persons were called for interview and subsequently 14 candidates were appointed as Clerks and 1 candidate was appointed as Peon. Accordingly, 15 appointment orders were issued by the Bank. It was alleged that since the term of the Body was to expire in June 2010, appointments should not have been made and on that basis, a show cause notice was issued by the Respondent No. 2, calling upon the appellants to show cause as to why action under Section 76(B) should not be taken against the appellants and as to why the appellant should not be removed from the post of Chairman and Managing Director of the Respondent No. 3 Bank. In the meanwhile, the appellants also submitted their resignations from the post of Chairman and Managing Director. Subsequently, the Registrar, Co-operative Societies passed an order, by which the appellants were removed from the post of Chairman and Managing Director respectively and were also disqualified to contest election in any Cooperative Society for a period of 4 years. The present appellants challenged the said order by way of writ petition being Special Civil Application No. 6472 of 2010. The said writ petition came up for admission before the learned Single Judge on 25.05.2010. The learned Single Judge dismissed the petition by passing the following order:— “Heard Mr. Dipen Desai, learned advocate for the petitioners. No substance is found in the petition. Hence, it is dismissed.” 3. The said writ petition came up for admission before the learned Single Judge on 25.05.2010. The learned Single Judge dismissed the petition by passing the following order:— “Heard Mr. Dipen Desai, learned advocate for the petitioners. No substance is found in the petition. Hence, it is dismissed.” 3. Looking to the order, it cannot be disputed that it is a non-speaking order and none of the contentions of the appellants raised in the petition or at the time of arguing the matter has been taken into consideration. Learned Counsel Mr. Desai submits that he had argued all available points, but none of the points is reflected in the judgment. 4. Learned Counsel Mr. Unwala appearing for Respondent No. 4-original complainant could not dispute that it is a non-speaking order, as no reasons are given. He stated that however, it is for the Court to decide whether the order is non-speaking order or not. 5. Petition under Article 226 is in the nature of original jurisdiction of this Court. While deciding such petition, appropriate reasons are required to be given so that if the matter is taken in appeal, the Appellate Court may have benefit of the reasoning of the learned Single Judge. In order to see that a litigant who approaches the Court may not have a feeling that his arguments are not taken into consideration, if not in a lengthy manner, but atleast by passing a short order, a reasoned order is required to be passed. In the instant case, since the order in question can be said to be a non-speaking order as no reasons are given in the order in any manner nor any of the contentions are dealt with in the order, we deem it proper to remand the matter to the learned Single Judge so that the learned Single Judge after hearing both the sides may pass appropriate, reasoned order, as the impugned order is not a speaking order nor can it be said to be a reasoned order. 5.1 At this stage, a reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Notified Area Committee vs. Additional Director, Consolidation and Ors., reported in (2002) 10 SCC 87 . In the aforesaid case, a writ petition which was filed under Article 226 was dismissed in limine. 5.1 At this stage, a reference is required to be made to the decision of the Hon’ble Supreme Court in the case of Notified Area Committee vs. Additional Director, Consolidation and Ors., reported in (2002) 10 SCC 87 . In the aforesaid case, a writ petition which was filed under Article 226 was dismissed in limine. The Hon’ble Supreme Court has held that reasons are the flesh and blood of judicial adjudication and such reasons must be shown in the orders which are liable to be challenged in the superior Court. The Hon’ble Supreme Court has, in Para.3 and 4, held as under : “3. The writ petition has been disposed of by the High Court without stating any reason whatsoever. Time and again this Court has pointed out that reasons are the flesh and blood of judicial adjudication and such reasons must be shown in the orders which are liable to be challenged in the superior Court. That applies to the High Court also. The impugned order reads thus : “We have heard the learned counsel on merits. We find no merit in this petition. Dismissed.” 4. It is not a reasoned order. We, therefore, set aside the impugned order and remand the matter back to the High Court for disposal of the writ petition afresh in accordance with law.” 5.2 Considering the same, the impugned order of the learned Single Judge is required to be set aside and the matter is required to be sent back to the learned Single Judge for deciding de novo. It is clarified that the contentions of both the sides are kept open and since the writ petition was dismissed without even issuing notice to the other side, it will be open for the respondent to file appropriate reply before the learned Single Judge. The learned Single Judge, after considering the submissions of both the sides as well as after considering the reply of the respondent, may pass appropriate orders in accordance with law and as deemed fit. 6. The appeal is accordingly allowed. The impugned order is set aside. The learned Single Judge may proceed with hearing of the Special Civil Application de-novo. The same may be placed for admission before the concerned Court on 23.07.2012. 6. The appeal is accordingly allowed. The impugned order is set aside. The learned Single Judge may proceed with hearing of the Special Civil Application de-novo. The same may be placed for admission before the concerned Court on 23.07.2012. Interim relief granted in this appeal to continue and it will be open for the respondents to apply for vacating of the interim relief before the learned Single Judge. If such a request is made, the concerned Court may decide the same after hearing both the sides as deemed fit. 7. At this stage, learned Counsel Mr. Unwala submits that there is an alternative remedy of appeal available to the appellants to challenge the impugned order. 8. It will be open for the respondents to argue the same before the learned Single Judge and it is for the learned Single Judge to consider the said aspect, after hearing both the sides. Appeal is allowed. No costs.