1. The instant writ petition has been filed for quashing the order dated 20-1-2000 (Annex. 6), by which petitioner has been removed from the post of Chairman, Municipal Board, Pipar City, District Jodhpur.
2. The facts and circumstances giving rise to this case are that elections of Municipal Board, Pipar City were held in August, 1995, in which petitioner was elected as a Ward Member from Ward No. 21 and subsequently he was duly elected as the Chairman of the said Board, on 29-8-1995. In 1997, there had been litigation regarding "No Confidence Motion" and the Division Bench judgment of this Court, in D. B. Civil Special Appeal No. 365/1998 (reported in AIR 1999 Raj 93), passed certain order in favour of the petitioner and in view of the same, he was reinstated. Petitioner was put under suspension after issuing a show cause notice in contemplation of an action under Section 26 of the Rajasthan Municipalities Act, 1959 (for short, "the Act"). Petitioner filed Writ Petition No. 616/1999 and the Division Bench of this Court, vide order dated 9-3-99, stayed the operation of suspension order and petitioner was allowed to work as the Chairman of the said Municipal Board. Petitioner was served with a show cause notice dated 15-5-99 (Annx. 1) for the purpose of holding a judicial inquiry under Section 63(3) of the Act and a charge-sheet as well as statement of allegations were enclosed therewith (Annexs. 2 and 3 respectively). Petitioner filed reply to the said charges (Annx. 4). Ultimately, judicial inquiry report (Annx. 5) was submitted, according to which the charges against petitioner stood proved and, thus, it was recommended that he be declared to have incurred disqualification. In pursuance of the said judicial inquiry report, the State Government, vide impugned order dated 20-1-2000, removed the petitioner from the membership of the said Municipal Board and declared him disqualified for contesting election for next five years. Hence this writ petition.
3. As per the charge-sheet served upon the petitioner, it was alleged that as the Chairman of the said Municipal Board, he had granted contracts for construction of the following parts of the roads to his brother Mr. Jawari Lal Tak and, thus, misused his position :-
(a) Pipar City hospital to Gole Piou;
(b) Ram Piou, Sadar Bazar to Ramdeora;
(c) Kaweri Gate to hospital; and
(d) Unchi Adapeda School to Aamaliyawala well.
4. In the statement of allegations, it was alleged that whatever work petitioner's brother Jawari Lal Tak had completed, he had been made payments of the same. In his reply, petitioner explained that so far as construction of road from Pipar City Hospital to Gole Piou was concerned, a Resolution had been passed by the Board on 11-9-95 and in response of the same, tenders were invited by issuing notice on 4-10-95, which were published in the local newspapers and a large number of contractors had applied for it; when the tenders were opened on 18-10-95, the work was assigned to Gafoor Khan Alladeen Khan Malar being the lowest tenderer but he did not start the work in spite of several notices and when the time was over, the Executive Officer, vide order dated 20-11-95, cancelled the work order in his favour; tenders were invited again vide notice dated 7-6-96 in response of which only three contractors submitted the tenders and when teh same were opened, Jawari Lal Tak's tender was found to be the lowest and, thus, the Executive Officer made a recommendation in his favour; as his brother did not start the work within the time stipulated in the tender, the work-order in his favour was cancelled vide order dated 20-3-97 and the work-order was subsequently issued in favour of another contractor, who completed it; therefore, on the first charge, ultimately nothing turned up even in favour of his brother and petitioner was no-where involved.
5. So far as second charge for constructing road from Ram Piou, Sadar Bazar to Ramdeora is concerned, tenders were invited on 22-2-96. Jawari Lal Tak-the brother of the petitioner submitted the lowest tender, thus, the work order was issued in his favour, but the contract in his favour was cancelled vide order dated 22-5-96; tenders were invited further to get the said work completed; whatever had been done, it was done by the Executive Officer and petitioner was no-where involved.
6. On the third charge for construction of road from Kawari Pole to hospital, the case of the petitioner was that tenders were invited on 22-2-96 as per the Resolution of the Board and as the tender submitted by Jawari Lal Tak was the lowest, the work order was issued in his favour, but the contract in his favour was cancelled vide order dated 22-5-96; tenders were again invited on 6-1-98 and the work was assigned to Teja Ram Arja Ram Sankhala, but as he did not complete the work within the stipulated time, the work order in his favour was also cancelled and as per the Board's Resolution, tenders were invited again on 27-5-99; thus, petitioner was no-where involved in it.
7. On the fourth charge for constructing the road from Unchi Adapeda School to Aamaliyawala Well, petitioner's case was that as per the Board's Resolution, tenders were invited on 26-2-96 and as petitioner's brother Jawari Lal Tak had submitted the lowest tender, the work order was issued in his favour; he could not complete the whole work in time and, therefore, contract in his favour was cancelled vide order dated 22-5-96 and, thus, the work had not been completed further even by other contractors.
8. In view of the above, petitioner asked the Authorities to drop the inquiry.
9. In the Inquiry Report, the learned Judicial Enquiry Officer referred to the aforesaid four contracts and ultimately recorded the following findings of facts :-
(1) The delinquent himself has admitted in his reply that the Executive Officer had issued the work order in favour of his brother as he had submitted the tender at the lowest rate and the work had also been started. Thus, the delinquent himself admitted that the contract was given to Jawari Lal, Contractor. Ex. P/1 is the complaint filed by the Office-bearer of the District Congress Committee and it also fortified the said allegation.
(2) Ex. P/2 is the order of the Municipal Board showing that the contract issued in favour of Jawari Lal Tak was cancelled. This contract was for constructing the road from Ram Piou, Sadar Bazar to Ramdeora.
(3) Ex. P/3 shows that the contract of constructing road from Unchi Adapeda to Aamaliyawala well was issued in favour of Jawari Lal Tak and the same was cancelled by Ex. P/3.
(4) Ex. P/4 and Ex. P/5 are the documents showing that the contract in favour of Jawari Lal Tak had been cancelled and the reference to these contracts also finds place in the statement of allegations.
(5) Shri Baxa Ram Kacchhawaha had submitted a complaint Ex. P. 1 making the same allegations.
(6) Jawari Lal Tak was the real brother of delinquent - petitioner.
(7) Petitioner got his brother registered as a Contractor after being elected as the Chairman to give him financial benefit.
(8) In support of the aforesaid allegations, Ratan Lal Jawa has clearly stated that the name of father of the contractor and the delinquent was Shri Balu Ram Tak.
(9) The contracts were given to Jawari Lal Tak to give him financial benefit and the same were cancelled subsequently. Where work had been done by him partly, payment was made to him for the same.
10. In view of the aforesaid findings recorded by the learned Judicial Enquiry Officer, he ultimately reached the conclusion that as per the provisions of Clauses (i) and (xii) of Section 26 of the Act, if any member of the Board has any share or interest directly or indirectly with the work done by the Board, he shall incur disqualification and on being prosecuted in a criminal court, he can be punished. Moreso, the provisions of Section 63 of the Act provide that if a member incurs disqualification under Section 26, the Government is competent to remove him after holding an inquiry. In view of the deposition made by the witnesses and the documentary evidence, it was proved that petitioner had incurred disqualification by granting the work contracts in four cases to his real brother Jawari Lal, so he be declared disqualified as the charges levelled against him stood proved.
11. On the basis of the aforesaid report of the Judicial Enquiry Officer, the consequential order of removal as well as declaring the petitioner disqualified has been passed by the State Government.
12. The case requires to be considered in the aforesaid back-drop in the light of the provisions of the Act referred to by the learned Judicial Enquiry Officer, who indicted the petitioner under the provisions of Clauses (i) and (xii) of Section 26 of the Act. The said Clauses read as under :-
"General disqualifications for members :-
A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as (or for being) a member of a
(i) who has been sentenced by a criminal Court to imprisonment for a term exceeding six months for an offence which is declared by the State Government to imply such moral turpitude as to render him unfit to be a member, such sentence not having been subsequently reversed or remitted, or the offender pardoned, or
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(xii) who, save as hereinafter provided, has directly or indirectly by himself or his partner, employer or employee, any share or interest in any work done by order of such board or in any contract or employment with or under or by or on behalf of such board.
13. I am at complete loss to understand how the learned Judicial Enquiry Officer has reached the conclusion of incurring disqualification by virtue of the provisions of Clause (i) of Section 26 of the Act, as neither there was any charge in this respect nor there had been even whisper that petitioner ever stood convicted by any criminal court and in what context, the Enquiry Officer has made reference to this Clause. A removal of any duly elected member in a democratic set-up has always been considered to be a very serious matter and it is not like a Government employee who can be removed after holding mere disciplinary proceedings. (Vide Rewat Dan v. State of Rajasthan, 1975 Raj LW 116; and Smt. Rameshwari Devi Mewara v. State, AIR 1999 Raj 47). Considering the sanctity of the election in a democratic set-up, the legislature, in its wisdom, thought it proper to assign the work of inquiry to the Judicial Officers in case of allegations against the members of the Municipal Boards. It is unfortunate that the learned Judicial Enquiry Officer could not realise the seriousness of the role assigned to him. He has proceeded in a most casual and caviller manner and referred to Clause (i) of Section 26 in his report, which shows complete non-application of mind on his part.
14. Be that as it may, Clause (xii) of Section 26 of the Act refers to interest of a Member directly or indirectly in a work done by himself or his partner, employer or employee. The legislature, in its wisdom, has not provided for the interest of any other person and if it had omitted the interest of other family members, I am at complete loss to understand as how the petitioner has been dragged where there might have been some interest or financial gain in favour of his brother. There was no charge against the petitioner that he had directly or indirectly gained any financial interest, share etc. in the work done, even if any, by his brother. In fact, there had been no charge against the petitioner connecting him with the disqualification which could have been incurred under the provisions of Clause (xii) of Section 26 and in absence of any charge in this regard, it is strange that petitioner has been declared disqualified. The entire inquiry was misdirected, misconceived and without any charge relating to the provisions of Clause (xii) of Section 26 of the Act. Clause (xii) has to be given a literal, plain and simple meaning and it provides that the member, directly or indirectly, must have some share or interest in the work done by himself, his partner, employer or employee. There is no dispute to the fact that Jawari Lal Tak is the real brother of the petitioner, but he does not qualify either of these four terms used by the legislature and there is no direct or indirect evidence that petitioner had gained something directly or indirectly out of these contracts. While construing a statutory provision, it is not permissible for the Court to add to or substract from it. (Vide Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678).
15. In Gulam Yasin Khan v. Sahebrao Yeshwantrao Walaskar, AIR 1966 SC 1339, the Constitution Bench of the Hon'ble Supreme Court, while dealing with a similar situation, has held as under (paras 7, 8 and 12) :-
"In order to incur disqualification, what the Clause requires is interest or share in any contract : it may either be a share or interest; and if it is an interest, the interest may be direct or indirect. But it is plain that the interest to which the Clause refers, cannot mean mere sentimental or friendly interest; it must mean interest which is pecuniary or material, or of a similar nature. If the interest is to this latter category, it would suffice to incur disqualification even if it is indirect. But it is noticeable that the Clause also requires that the person, who incurs disqualification by such interest, must "own such share or interest." . . . . . . . . . . We cannot over-look the fact that the inquiry is not as to whether the appellant is interested in the son, but the inquiry is whether the appellant is interested in the employment of his son. The distinction between the two inquiries may appear to be subtle, but, unfortunately, for the purpose of construing the Clause, it is very relevant. Considered from this point of view, on the facts proved in this case, we find it difficult to hold that by mere relationship with his son, the appellant can be said to be either directly or indirectly interested in his employment. . . . . . . . . . . . . . . . . It would, we think, be unreasonable to hold that mere relationship of a person with an employee of the Municipal Committee justifies the inference that such a person has interest, direct or indirect, in the employment under the Municipal Committee. In the circumstances of this case, what is proved is the mere relationship between the appellant and his son and as the employee of the Municipal Committee; and on that relationship, the High Court has based its conclusion that the appellant is disqualified under Section 15(1) of the Act. We are satisfied that this conclusion is erroneous in law."
16. In case a contract is entered into by a partnership firm, all the partners have an interest jointly and one of the partners, if holds the post, may incur disqualification. (Vide Konappa Rudrappa Nadgouda v. Vishwanath Reddy, AIR 1969 SC 447). In the instant case, there is no allegation nor is there any whisper that the petitioner was having any partnership with his brother Jawari Lal Tak.
17. In Rustamji Nasarvanji Dangor v. Jeram Kunverji Ganatra, AIR 1977 SC 82, the Hon'ble Supreme Court was confronted with a similar issue of incurring disqualification under the provisions of Gujarat Municipalities Act, 1964, wherein the appellant therein had been declared disqualified on the ground that his application for allotment of a land had been allowed by the Chief Officer. The Hon'ble Supreme Court quashed the said order by observing as under (at p. 85 of AIR) :-
"The legality of the Chief Officer's order is not, however, an issue in this case and the question whether or not the intended use of plot by the appellant was beyond the scope of bye-law (4) need not detain us. According to the High Court, it was only because the appellant held the Office of the President of the Municipality that the Chief Officer allowed his application. This may or may not be true, but it is not a matter relevant to the real question that arises for consideration in this case. Section 38(1)(b)(i) disables a Councillor to continue as such if he acts as a Councillor in the matter of allotment of any land to himself . . . . . . . . . . . There is nothing on the record in this case to show that the appellant had acted as a Councillor to have the plot allotted to himself. Even if the Chief Officer was influenced by the fact that applicant before him was the President of the Municipality, that would not attract Section 38(1)(b)(i). It is true that Section 45 confers a general power of supervision and control on the President over the acts of all officers of the Municipality and Section 49, which enumerates the powers and duties of the Chief Officer, also makes him subject to general control of the President in the discharge of its powers, but the general power of supervision conferred on the President, does not, in our opinion, imply that in every case where he applies for lease which he is entitled to do as Section 11(3)(A)(i) indicates, he should be deemed to have acted within the meaning of Section 38(1)(b). . . . . . In view of the clear provisions of Section 38(1)(b)(i), we do not find it possible to support the impugned judgment."
18. A similar view has been reiterated under the provisions of Companies Act in Needle Industries (India) Ltd. v. Needle Industries, Newey (India) Holdings Ltd., AIR 1981 SC 1298.
19. In Firoz Jal Moti Shaw v. Jagdish Prasad, 1975 Raj LW 15, this Court has dealt with a similar issue regarding incurring disqualification under Clause (xii) of Section 26 of the Act. It made a comparative study of analogous provisions under the Acts of different States, i.e. the Court considered the provisions of Bengal Municipalities Act, 1942, Bombay Municipality Borough's Act, 1925, and also the Municipality Corporation Act of 1882. After placing reliance upon the judgments in Cox v. Truscott (1907) 92 LT 650; England v. Inglis, (1920) 2 KB 636; Rammayya Venkat Narsu Bura v. State of Bombay, AIR 1960 Bom 46; and Promodelal Moitra v. Addl. District Magistrate, AIR 1957 Cal 164, the Court reached the conclusion that interest, referred to in Clause (xii) of Section 26 of the Act must be directly in terms of the contract itself and it cannot be merely sympathy or sentimental interest.
20. Mr. Rajendra Vyas, learned Additional Government Advocate, had been fair enough to produce the original record of Judicial Inquiry as well as of the case before the Court and I have gone through it. There is no iota of evidence to show any interest, directly or indirectly of the petitioner in those alleged contracts. The record consists mostly the complaints of persons representing the political parties to the Authorities that petitioner was favouring his brother. Moreso, it contains large number of documents containing allegations of making bogus allotments illegally in favour of some persons or regularisation of such allotments. Moreso, large number of complaints regarding filling-up the vacancies of Sweepers and some dispute regarding the compromise reached in the Court in case of one Smt. Sarla Devi in respect of some property but that can have no bearing on the instant case. Of course, certain documents are on record which show that some payments had been made in favour of the brother of the petitioner but if he had worked, he should have been entitled to receive the amount and he has received it. The record of the Municipal Board contains the document dated 26-3-96, which shows that not a single tender had been received in pursuance of the tender-inviting-notice up to 26-3-96 and direction was sought by the Executive Officer from the petitioner and on that petitioner issued a direction to extend the date but that also does not involve the petitioner in the real controversy of incurring disqualification under clause (xii) of Section 26 of the Act.
21. One Baxa Ram Kacchhawaha deposed against the petitioner before the Judicial Enquiry Officer by stating that petitioner's brother got registration as a contractor after his election as the Chairman of the Board and during his tenure as the Chairman, he had been awarded the work orders; Jawari Lal Tak is the real brother of the petitioner and petitioner has misused the office to give benefit to his brother. In his cross-examination, he has stated that registration of the contractors was being done by the Public Works Department and not by the Municipal Board. He also admitted that he had contested the election against the petitioner as a Member of the Ward and stood defeated. The record also contains the deposition of one Ratan Lal Jawa, who was working as the Secretary in the Municipal Corporation, Jodhpur, and was holding the additional charge of the Municipal Board, Pipar City. He tried to prove that the contractor was the real brother of t
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he petitioner as their father's name was the same. He deposed that work orders were issued in favour of the brother of petitioner during petitioner's tenure as the Chairman of the Municipal Board and the same work orders were given to his brother to give him financial benefits. 22. Thus, it is clear that none of the witnesses, who had been examined before the learned Judicial Enquiry Officer, has stated, even vaguely, that petitioner himself or through his partner, employer or employee, directly or indirectly, had been benefiting out of the said work orders. Neither there is any finding to this effect nor it could have been as there has been no such charge. The inquiry had, in fact, been on the issues : whether Jawari Lal Tak was the real brother of the petitioner and whether the said brother was given the work orders. These issues do not relate to the requirement of the provisions of clause (xii) of Section 26 of the Act. Moreso, these facts had never been in dispute, thus, there was no need to hold inquiry for the same. 23. Thus, in view of the above, I reach the inescapable conclusion that the so-called judicial inquiry held in this case was a mockery and a slur on the democratic set up in any civilised society. The State Government has not applied its mind at all to the inquiry report submitted by the Judicial Officer. The statutory provision of Section 63 of the Act imposes an obligation on the State Government to consider the report thoroughly and not to pass an order mechanically for the reason that report may be based on no evidence or the Enquiry Officer might have made the report in flagrant violation of the principles of natural justice or statutory provision. The submission that sub-section (3) of Section 63 of the Act provides to pass the order in conformity with the inquiry report and, thus, the Government cannot examine the correctness of the report, has already been rejected by this Court in Smt. Rameshwari Devi Mewara v. State of Rajasthan, AIR 1999 Raj 47. This not only shows the non-application of mind by the authorities/State and the Enquiry Officer but also amounts to colourable exercise of power. 24. The petition succeeds and is allowed. The impugned order dated 20-1-2000 (Annex. 6) is hereby quashed. In the facts and circumstances of the case, there shall be no order as to costs.