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2021 DIGILAW 583 (ALL)

Sanjay Kumar @ Jai Prakash v. UP Ziladhikari

2021-06-25

PRAKASH PADIA

body2021
JUDGMENT : PRAKASH PADIA, J. 1. Matter is taken up through video conferencing. 2. Heard Sri M.D. Singh "Shekhar" learned Senior Counsel assisted by Vaibhav Goswami, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1, 2 & 3 and Sri S.N. Singh, learned Senior Counsel assited by Sri Surya Bhan Singh, learned counsel for respondent No.4 namely Malti Devi. 3. The petitioner has preferred the present petition under Article 226 of the Constitution of India inter-alia with the prayer to quash the order dated 11.5.2021 passed by respondent No.1 namely Up Zila Adhikari Naugarh District Chandauli, copy of which is appended as Annexure No.9 to the writ petition. A further prayer has also been made to issue a mandamus directing the aforesaid respondents not to interfere in the right of the petitioner to discharge the duties of Gaon Pradhan of Gram Panchayat Bajaradiha, Block and Tehsil Naugarh, District Chandauli. 4. Facts in brief as contained in the writ petition are that the petitioner is an elected Pradhan of Gram Panchayat Bajaradiha, Block and Tehsil Naugarh, District Chandauli. After the petitioner was elected as Pradhan of the aforesaid Gram Panchayat, a certificate in this regard was duly provided in his favour on 2.5.2021. Thereafter an election petition No.266 of 2021 under Section 12-C of the U.P. Gram Panchayat Act, 1947 read with U.P. Panchayat Raj (Settlemnt of Election Dispute) Rules 1994 filed by the respondent No.4. Along with the petition, an application for grant of interim relief was also filed. The aforesaid election petition was taken up by the respondent No.1 on 11.05.2021. The respondent No.1 passed interim order on the aforesaid application on 11.05.2021 ceasing the administrative and financial power of the petitioner as Pradhan. Aggrieved against the aforesaid order, the petitioner has preferred the present petition before this Court. 5. It is argued by Sri M.D. Singh "Shekhar" learned Senior Counsel that the order dated 11.05.2021 by which interim order was granted by the respondent no.1 ceasing the administrative and finalcial power of the petitioner as Pradhan was passed ex-parte and without providing any opportunity of hearing to the petitioner. It is further argued that the aforesaid order was passed in mechanical manner and completely behind the back of the petitioner. It is further argued that the aforesaid order was passed in mechanical manner and completely behind the back of the petitioner. It is further argued that the order impugned has been passed by treating the allegations made in the election petition as universal truth and without hearing the petitioner about the correctness of the allegations. 6. On the other hand, it is argued by Sri S.N. Singh, learned Senior Counsel appearing on behalf of contesting respondents that after the order dated 11.05.2021 was passed, a recall application was filed by the petitioner before the respondent no.1. It is further argued that the aforesaid application has already been rejected by the respondent vide its order dated 25.6.2021. 7. When a pertinent quarry has been made by this Court from Sri S.N. Singh, learned Senior Counsel appearing for respondent no.4 whether any notice or opportunity of hearing was provided to the petitioner before passing the impugned order, it is argued that no notice or opportunity whatsoever has been given. 8. At this point of time, Sri S.N.Singh, learned Senior Counsel argued that the respondent No.4 has no objection, in case the petition is allowed by setting aside order dated 11.5.2021 and the respondent No.1 be directed to pass fresh order in accordance with law. 9. Heard learned counsel for the parties. With the consent of learned counsel for the parties, this petition is disposed of finally. 10. Cessation of financial and administrative powers of an elected Gram Pradhan is a matter of significance and is replete with serious consequences. The principles of natural justice, are required to be observed as a matter of first principle when a decision – administrative, quas-judicial or judicial – adversely affects the rights of the parties. 11. Counsel for the petitioner relied upon a decision delivered by a Five Judges Bench of this Court in the case of Paras Jain vs. State of U.P. and Others reported in 2016 (1) ADJ page 1. Paragraph 29 and 30 of the aforesaid judgment is reproduced below:- “29. The cessation of financial and administrative powers of an elected head of a municipality is a matter of significance and is replete with serious consequences. The effect of the financial and administrative powers, functions and duties being ceased, has a direct impact upon the authority of the elected head. The cessation of financial and administrative powers of an elected head of a municipality is a matter of significance and is replete with serious consequences. The effect of the financial and administrative powers, functions and duties being ceased, has a direct impact upon the authority of the elected head. It erodes authority and impacts upon the ability of the President to effectively discharge the functions of the office by preventing the discharge of financial and administrative authority. Bereft of financial and administrative powers, functions and duties, the office of the President of a municipality is reduced to a cipher. In fact, the proviso envisages that upon the powers being ceased, they shall be exercised by the District Magistrate or an officer nominated, not below the rank of a Deputy Collector. This consequence is serious enough to warrant the Court to read a compliance with the principles of natural justice into the provision so as to ensure a fair procedure and safeguard against an unfair recourse to its power by the State Government. The principles of natural justice, as we have noted above, are required to be observed as a matter of first principle when a decision - administrative, quas-judicial or judicial - adversely affects the rights of parties. The principle of reading into the statutory provision a requirement of complying with the principles of natural justice is a mandate of Article 14 because it would be an anathema to a fair procedure for the State Government to issue dictats that abrogate the financial and administrative powers of an elected head of a local self-governing institution without complying with the principles of natural justice. The requirement of observing the principles of natural justice, as a matter of first principle, must be weighed in together with the additional factors present in the proviso to Section 48(2) that lead to the conclusion that a decision to cease financial and administrative powers must be preceded by adherence to a fair procedure. The first of the three indicia in the proviso is the existence of a reason to believe on the part of the State that the allegations do not appear to be groundless. The second indicia is the requirement of the formation of the reason to believe that the President of a municipality is prima facie guilty on any of the grounds mentioned in the sub-section, resulting in the notice to show cause. The second indicia is the requirement of the formation of the reason to believe that the President of a municipality is prima facie guilty on any of the grounds mentioned in the sub-section, resulting in the notice to show cause. Arriving at a determination in regard to the prima facie guilt of a person, as the statute mandates, must be upon due observance of the principles of natural justice. The third indicia is that the notice to show cause has to contain the charges against the person. Hence, even though the proviso to sub-section (2) of Section 48 does not contain an explicit requirement of observing the principles of natural justice, nonetheless such a requirement must necessarily be read into the provision. 30. The rules of natural justice require that the person against whom action is proposed, must be made aware of the grounds of the proposed action and must have an opportunity to respond to the action proposed, by setting forth an explanation. Undoubtedly, the formation of the reason to believe under the proviso to sub-section (2) is not final having due regard to the fact that the enquiry is still to be concluded and the cessation of financial and administrative powers is to enure during the period when the proceedings in pursuance of the notice to show cause are still to be concluded. A personal hearing is not a necessary ingredient of complying with the principles of natural justice at every stage. The minimum requirement of the principle is that the President of a municipality should be made aware of the grounds on which the action against him is proposed in the formulation of the charges which are issued to him, as mandated by the proviso. The person who is sought to be proceeded against must be informed of the basis on which the State Government proposes to entertain a reason to believe that the allegations do not appear to be groundless and that he or she is prima facie guilty on any of the grounds of sub-section (2) resulting in the issuance of the notice to show cause and the proceedings in the subsection. The period which is allowed to the elected head to explain must be reasonable: what is a reasonable period being dependent upon the facts and circumstances of each case. The period which is allowed to the elected head to explain must be reasonable: what is a reasonable period being dependent upon the facts and circumstances of each case. In a case involving an element of urgency where there is a need for the State to take an expeditious decision, the period during which an explanation can be submitted, can be suitably tailored to meet the exigencies of the situation. No absolute rule can be laid down in the abstract on what constitutes a reasonable period to show cause. But the minimum requirements of fair procedure must be fulfilled. An opportunity has to be granted. Otherwise, the provision would be capable of grave misuse to derogate from the authority of an elected head on arbitrary and whimsical grounds. ” 12. The aforesaid view was reiterated by the Division Bench of this Court in the case of Anil Kumar Gerg vs. State of U.P. and others reported in 2016 (9) ADJ page 66. 13. Apart from the same, it reveals from perusal of the order which is under challenge in the present petition that the order is absolutely non-speaking. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. 14. In the cases where the Courts have not recorded reasons in the judgment, legality, propriety and correctness of the orders by the Court of competent jurisdiction are challenged in absence of proper discussion. The requirement of recording reasons is applicable with greater rigor to the judicial proceedings. The orders of the Court must reflect what weighed with the Court in granting or declining the relief claimed by the applicant. 15. Highlighting this rule, the Hon'ble Supreme Court, in the case of Assistant Commissioner, Commercial Tax Department, Works Contract & Leasing, Kota Vs. Shukla & Brothers, reported in (2010) 4 SCC 785 , has observed that Courts and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement. The relevant paragraphs of the aforesaid judgment are quoted as under:- "10. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. The relevant paragraphs of the aforesaid judgment are quoted as under:- "10. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad. 11. The Supreme Court in the case of S.N. Mukherjee v. Union of India [MANU/SC/0346/1990 : (1990) 4 SCC 594 ], while referring to the practice adopted and insistence placed by the Courts in United States, emphasized the importance of recording of reasons for decisions by the administrative authorities and tribunals. It said "administrative process will best be vindicated by clarity in its exercise". To enable the Courts to exercise the power of review in consonance with settled principles, the authorities are advised of the considerations underlining the action under review. This Court with approval stated:- "11. ...the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." 12. In exercise of the power of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastisement. Thus, it will not be far from absolute principle of law that the Courts should record reasons for its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. The administrative authority and tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastisement. Thus, it will not be far from absolute principle of law that the Courts should record reasons for its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. It is the reasoning alone, that can enable a higher or an appellate court to appreciate the controversy in issue in its correct perspective and to hold whether the reasoning recorded by the Court whose order is impugned, is sustainable in law and whether it has adopted the correct legal approach. To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing. 13. At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice. A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment. Now, we may refer to certain judgments of this Court as well as of the High Courts which have taken this view 14. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders.” 16. In the case of Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India and Anr reported in AIR 1976 SC 1785 , the Supreme Court held as under:- "6. ....If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law." 17. In the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd. and Ors. reported in (2006) SLT 345, the Supreme Court clarified the rationality behind providing of reasons and stated the principle as follows:- "56. ... In the case of Mc Dermott International Inc. v. Burn Standard Co. Ltd. and Ors. reported in (2006) SLT 345, the Supreme Court clarified the rationality behind providing of reasons and stated the principle as follows:- "56. ... Reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the Arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills' Arbitration in Re, 'proper adequate reasons'. Such reasons shall not only be intelligible but shall be a reason connected with the case which the Court can see is proper. Contradictory reasons are equal to lack of reasons...." 18. Considering the facts and circumstances of the case especially in view of the facts that order impugned is absolutely non-speaking and ex-parte order and passed behind back of the petitioner without providing any opportunity of hearing, therefore, the impugned order is set aside. 19. Writ petition is allowed. No order as to cost.