Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1289 (MP)

Jaipal Singh v. State of M. P.

2013-10-25

G.D.SAXENA, S.K.GANGELE

body2013
Judgment: 1. Although the learned counsel appeared on behalf of the respondents and the intervener on advance notice, but the arguments were advanced at length and with the consent of the parties, Writ Appeal is heard and disposed of finally. This Writ Appeal has been filed by the appellant against the order dt. 9.10.2013 passed by the learned Writ Court in W.P. No. 7047/2013. By the aforesaid order, the Writ Court, rejected the application filed by the appellant/petitioner for stay of the impugned order dt. 16.9.2013 passed by the High Level Caste Scrutiny Committee. 2. The Committed considered the case of the appellant in regard to issuance of Schedule Caste Certificate in favour of the appellant mentioning his cast as 'Nat'. Hon'ble State Minister, Commerce and Industries made a complaint in regard to caste of the appellant. The complaint was forwarded for enquiry to the Collector and S.P. Ashok Nagar. The Collector forwarded the finding that the appellant had received caste certificate by submitting false and forged documents and he was not a member of Schedule Caste Committee. Same finding was recorded by the S.P. As per the order passed by the Committee dt. 16.9.2013, a show cause notice was issued to the appellant on 6.8.2013 and he was directed to remain present before the Committee alongwith reply on 12.8.2013. The appellant did not appear before the Committee on the aforesaid date. Thereafter, another show cause notice was issued on 16.9.2013 through Collector Ashok Nagar and the appellant was directed to remain present, appear before the Committee on 16.9.2013. The concerned SDO forwarded report of service of notice. It is mentioned by the SDO that the appellant was not present in the house or his office. The notice was read over to the family members of the appellant. It was also affixed at the house and thereafter the massage was sent at the mobile number of the appellant and information was also submitted on face book and notice was also published in the news paper. The appellant did not appear before the Committee. Thereafter, the Committee recorded its finding that there were no documents to the effect that the appellant belongs to Scheduled Caste community, hence, certificate issued to the appellant was cancelled and forfeited. The appellant did not appear before the Committee. Thereafter, the Committee recorded its finding that there were no documents to the effect that the appellant belongs to Scheduled Caste community, hence, certificate issued to the appellant was cancelled and forfeited. The Committee further observed that a criminal case be registered against the appellant for participating in the elections of Municipal Council on the basis of Caste Certificate of Scheduled Caste. 3. Learned Senior Counsel appearing on behalf of the appellant has contended that in accordance with the procedure fixed of enquiry, atleast it is necessary to give 15 days time to a person for filing reply after receipt of notice and the time could be further extended for a period of 30 days. It is further submitted that in accordance with the aforesaid procedure, after receiving the reply Director shall convene the meeting of the Committee and thereafter the Committee shall pass the order. That mandatory procedure has not been followed in the present case. Learned senior counsel further submitted that four persons were present in the hearing, however, the order has been signed by three persons and Dr. G.P. Patel, did not sign the impugned order, hence, the order is bad in law. It is further submitted by the learned senior counsel that the petitioner was not afforded proper opportunity to put forward his case. Hence, the order is against the law. In support of his contentions, learned counsel relied on the judgment of the Hon'ble Supreme Court in Nirma Industries ltd. Vs. SEBI reported in (2013) 8 SCC 20 and Oryx Fisheries (P) Ltd. Vs. Union of India reported in (2010) 13 SCC 427 . 4. Learned Dy. Advocate General has contended that the Writ Appeal filed by the appellant is not maintainable because it has been filed against an interlocutory order. He has further submitted that subsequently fourth member had accorded his approval in regard to passing of the order. It is further submitted that there are allegations against the appellant, hence, the caste certificate was rightly cancelled. 5. Learned Senior Counsel appearing on behalf of the Intervener has strongly argued that the appeal is not maintainable and there are no grounds to stay the proceedings of the Committee. In support of his contents, he relied on the judgment of the Hon'ble Supreme Court in Shah Babulal Khimji Vs. Jayaben reported in AIR 1981 SC 1786 . 5. Learned Senior Counsel appearing on behalf of the Intervener has strongly argued that the appeal is not maintainable and there are no grounds to stay the proceedings of the Committee. In support of his contents, he relied on the judgment of the Hon'ble Supreme Court in Shah Babulal Khimji Vs. Jayaben reported in AIR 1981 SC 1786 . 6. In regard to maintainability of the Writ Appeal against an interlocutory order under the provisions of Section 2(1) of M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2006, Full Bench of this Court in Arvind Kumar Jain Vs. State of M.P. and others reported in 2007 (3) MPHT 376 (FB) has considered the aforesaid aspect and held that under certain circumstances, an appeal against interlocutory order is maintainable. The findings of the Full Bench are as under:- 26. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite the fact they are interlocutory in nature they can be put into the compartment of judgment if it affects the merits of the case between the parties by determining some rights or liabilities. There can be three categories of judgments, final judgment, preliminary judgment and intermediary judgment or interlocutory judgment. If the order finally decided the question and directly affects the decision in the main case or an order which decides the collateral issue or the question which is not the subject matter of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable. 7. In the present case, the Committee quashed the caste certificate issued to the appellant. The appellant presently working as President of the Municipal Council, Ashok Nagar. The Committee further issued a direction that a criminal case be also registered against the appellant. Learned Single Judge has considered the contentions primarily and held that there was a notice to the appellant and the appellant did not appear before the Committee. Learned Single Judge further observed that if a person, who was present in the meeting did not sign the proceeding, then there is no illegality in the order. In such circumstances, in our opinion, by the impugned order, some rights and liability of the appellant have been decided. Learned Single Judge further observed that if a person, who was present in the meeting did not sign the proceeding, then there is no illegality in the order. In such circumstances, in our opinion, by the impugned order, some rights and liability of the appellant have been decided. It is also a fact that if the order be continued as it is, the appellant would be affected adversely. Hence, the present appeal is maintainable in view of the judgment passed by the Full Bench in Arvind Kumar Jain (supra). 8. Although in Madhuri Patil's case (1994) 6 SCC 241 , it has been held that no further appeal would be maintainable against the order passed by Caste Scrutiny Committee but subsequently the Hon'ble Supreme Court in Dayaram Vs. Sudhir Batham reported in (2012) 1 SCC 333 has held that a Writ Appeal is maintainable against the order passed by the Writ Court if there is a provision a appeal. Hence, Writ Appeal is maintainable against the impugned order. 9. In regard to merits of the case, it is well settled principle of law that the court has to consider three aspects of the case while granting an interim order i.e. prima facie case, balance of convenience and the irreparable loss. In the present case, the procedure which is to be adopted by the Caste Scrutiny Committee is fixed by the General Administrative Committee vide circular dt. 8.9.1997. A copy of the said circular was field before the writ court as Annexure P/1(A). Following procedure has been mentioned by the Government in regard to giving notice:- 10. From the aforesaid circular, it is clear that a show cause notice shall be issued to the person and he has to be given 15 days time to show cause of the notice and the time could further be extended of 30 days. In the present case, as per the order passed by the Caste Scrutiny Committee, initially a notice was issued on 6.8.2013 and meeting of the Committee was held on 12.8.2013. In the aforesaid meeting, it was decided to issue another notice, thereafter a second notice was issued on 7.9.2013. Letter was issued to the Collector on the same date and it was directed that the Collector shall serve the notice on the appellant and the meeting of the Committee was held on 16.9.2013. In the aforesaid meeting, it was decided to issue another notice, thereafter a second notice was issued on 7.9.2013. Letter was issued to the Collector on the same date and it was directed that the Collector shall serve the notice on the appellant and the meeting of the Committee was held on 16.9.2013. It means that the Committee itself had given opportunity to the appellant by way of issuing a notice through Collector on 7.9.2013 and the meeting of the Committee was held on 16.9.2013 after a period of 9 days. As per the procedure prescribed by the Government, it was obligatory to give at least 15 days time to the appellant to file reply and the time could be extended to 30 days. Assuming as that the notice dt. 7.9.2013 was served on the appellant, then it was obligatory to give 15 days time to the appellant to submit reply and that time could be extended upto 30 days. The Committee did not mention in the impugned order that why the time fixed by the government was not accorded to the appellant and why further time of 15 days was not extended and what was the necessity in this regard. Prima facie it appears that the committee did not follow the mandatory provisions in this regard. 11. Hon'ble Supreme Court in the case of Oryx Fisheries (supra) has held as under in regard to observance of rule of natural justice in quasi judicial matter and concept of reasonable opportunity: 25. Expressions like "a reasonable opportunity of making objection" or "a reasonable opportunity of defence" have come up for consideration before this Court in the context of several statutes. A Constitution Bench of this Court in Khem Chand v. Union of India, of course in the contest of service jurisprudence, reiterated certain principles which are applicable in the present case also. 26. S.R. Das, C.J. speaking for the unanimous Constitution Bench in Khem Chand held that the concept of "reasonable opportunity" includes various safeguards and one of them, in the words of the learned Chief Justice, is: (AIR 307 19) (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are bases; 27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony. 28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeding against. 12. From the perusal of the order passed by the Committee, it is clear that the matter was heard by four members, however, the order was signed by three members. Dr. G.P. Patel, Joint Director did not sign the order, which is clear from the certified copy of the order. State in its return filed copy of the Annexures R/10 and R/11. In accordance with the aforesaid documents, Mr. Patel was present in the meeting and, however, it is mentioned subsequently that he was on leave, hence he did not sign the order. Subsequently, he submitted his consent. 13. In our opinion, the procedure is contrary to law. It is an admitted fact that the Scrutiny committee performs quasi judicial function. One person may submit a note of decent, but signatures of all the persons, who had heard the matter, is necessary. Hon'ble Supreme Court in para 28 of the judgment in Orxy Fisheries (supra) quoted above has specifically observed that functioning of a quasi-judicial authority has to be inspire confidence in the minds of those subjected to its jurisdiction and the authority must act with utmost satisfaction. 14. From the facts, in our opinion, prima facie the Committee did not act fairly. In such circumstances, in our opinion, prima facie case and balance of convenience lie in favour of the appellant. 14. From the facts, in our opinion, prima facie the Committee did not act fairly. In such circumstances, in our opinion, prima facie case and balance of convenience lie in favour of the appellant. If the order impugned be not stayed, appellant shall be prosecuted for offence and he shall also be disqualified to continue as President of the Municipal Council, hence, the appellant will suffer irreparable loss. Hence, in such circumstances, in our opinion, it would be in the interest of justice that the order passed by the Caste Scrutiny Committee be stayed upto the final decision of the Writ Petition. Learned Writ Court has already listed the case for final disposal and the return has also been filed by the State before the writ court. Hence, the Writ Appeal is allowed. The order passed by the Writ Court dt. 9.10.2013 is hereby quashed. The impugned order dt. 16.9.2013 passed by the High Level Caste Scrutiny Committee shall remain stayed upto the final decision of the Writ Petition. It is further observed that the observations made by this Court in this order are prima facie observations and the Writ Court is at liberty to decide the case on its own reasoning without influencing by the observations made by this court in the order. No order as to costs.