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Krishna Bhatia v/s The State of Rajasthan & Another


Company & Directors' Information:- S N BHATIA AND CO PRIVATE LIMITED [Active] CIN = U99999DL1976PTC008293

Company & Directors' Information:- BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL1986PTC024822

Company & Directors' Information:- K. BHATIA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51420MH1960PTC011708

    S.B. Civil Writ Petition No. 4803 of 2004

    Decided On, 28 April 2015

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA

    For the Petitioner: Abhishek Mehta, Advocate. For the Respondent: Rishabh Tayal, Advocate.



Judgment Text

Sangeet Lodha, J.

1. By way of this writ petition, the petitioner has challenged memorandum of charges dated 4.10.04 and order dated 20.10.04, issued by the Deputy Secretary, Department of Local Self, Government of Rajasthan, whereby the petitioner has been removed from the post of Chairperson and Member of Municipal Board, Suratgarh and further she has been declared disqualified to contest the elections of Municipal Board, Suratgarh, for a period of six years.

2. The relevant facts are that the petitioner was elected as Member of Municipal Board, Suratgarh from the Ward No.11 in the elections held in the month of November, 1999. The election for the post of Chairperson of the Municipal Board was held wherein one Shri Purkha Ram was elected as Chairperson. However, a 'No Confidence Motion' was passed against Shri Purkha Ram and in his place, Hardev Sahai was elected as Chairperson, who was also removed from the office by way of 'No Confidence Motion' in the year 2002. Thereafter, the petitioner was elected as Chairperson of the Municipal Board, Suratgarh on 7.1.03.

3. On the basis of a complaint received, a preliminary inquiry was conducted into the allegations levelled against the petitioner. The petitioner was served with a notice dated 3.6.04 seeking explanation in respect of the allegations levelled, which was responded to by the petitioner by filing a reply thereto. Vide order dated 7.8.04, the petitioner was placed under suspension and vide yet another order dated 10.8.04 one Smt. Shanti Meghwal, a member of the Municipal Board was appointed as caretaker Chairperson. Aggrieved by the suspension order dated 7.8.04, the petitioner filed a writ petition before this court being S.B.C.Writ Petition No. 3433/04 wherein on 17.08.04 this court while issuing notices to the respondents, stayed the operation of the suspension order. However, after hearing both the parties, the writ petition was dismissed by this court vide order dated 28.9.04 and a direction was issued to the respondents to complete the inquiry against the petitioner within a period of two weeks. Aggrieved thereby, the petitioner preferred a special appeal being D.B.C. Special Appeal No. 657/04 before the Division Bench of this court, wherein, vide order dated 5.10.04, the operation of the suspension order was stayed. However, the State Government was permitted to complete the inquiry.

4. In the meantime, the petitioner was served with the notice dated 4.10.04 accompanied by the charge sheet and statement of allegations. The date of hearing was fixed as 6.10.04. The petitioner appeared through counsel before the Inquiry Officer and sought time to file reply. The petitioner was granted only a day's time to file the reply and the matter was posted on 7.10.04. The petitioner filed reply to the charge sheet and made an application for requisition of record relating to the various plots auctioned. The request made by the petitioner for requisition of the record was rejected by the Inquiry Officer and thereafter, the statements of Smt. Shanti Devi and one Shri Madan Singh Budania produced on behalf of department, were recorded. The departmental evidence was concluded and while recording that no evidence has been shown to be produced by the petitioner herein, the arguments were heard and the inquiry report was submitted by the Inquiry Officer to the Secretary, Department of Local Self Government on the same day. Thereafter, vide impugned order dated 20.10.04 the petitioner was removed from the Office of Chairperson and Member of Municipal Board, Suratgarh and further, she has been declared disqualified to contest the election for a period of six years. Hence, this petition.

5. Learned counsel appearing for the petitioner contended that order impugned dated 20.10.04 having been passed by the State Government in breach of principles of natural justice deserves to be quashed on this count alone. Learned counsel submitted that the inquiry conducted against the petitioner by the Inquiry Officer was a total farce inasmuch as, the inquiry was concluded by the Inquiry Officer within a period of four days without extending a reasonable opportunity to the petitioner to defend the allegations levelled against her. Learned counsel submitted that though the charge sheet is said to have been forwarded by the State Government to the Inquiry Officer on 10.9.04, no steps were taken by the Inquiry Officer till 4.10.04. It is submitted that on 4.10.04 the notice along with charge sheet and statement of allegations was issued and the petitioner was called upon to file reply to the charge sheet by 6.10.04. Learned counsel submitted that on the petitioner's prayer seeking time to file reply to the charge sheet, only a day's time was granted. It is submitted that the request made by the petitioner to requisition the record relating to the different plots in respect whereof the bid amount deposited belatedly was accepted, stood declined by the Inquiry Officer in perfunctory manner. Learned counsel submitted that on 7.10.04, the statements of the departmental witnesses were recorded by the Inquiry Officer and thereafter, the Inquiry Officer proceeded to record that no evidence is shown to be produced by the petitioner and accordingly, straight away arguments were heard and inquiry was concluded. Learned counsel submitted that no opportunity whatsoever was extended to the petitioner to lead the evidence in defence. Learned counsel submitted that the action of the Inquiry Officer in concluding the inquiry in hot haste manner and in flagrant violation of principle of natural justice vitiates the entire inquiry proceedings. Learned counsel submitted that before passing the order impugned, the State Government did not provide an opportunity to the petitioner to make a representation on the Inquiry Officer's report.

6. Learned counsel submitted that the Inquiry Officer has proceeded to record the finding that the action of the petitioner was not bona fide whereas, no such allegation was levelled against her in the charge sheet issued. Learned counsel submitted that no documentary evidence was produced on behalf of the department to show that any loss has been caused to the Municipal Board. Learned counsel submitted that the entire record was in possession of the respondents and production thereof could show the price realised by the auction conducted on 25.6.03 of the plots situated in nearby vicinity. Learned counsel submitted that by way of reply before the Inquiry Officer, the petitioner had categorically given out that the rates of some of the plots realised by auction conducted on 25.6.03 and the maximum rate realised in the vicinity of plot no.72 and 73 were far below than the one which were realised in respect of the plots in question by recovering th of the amount along with interest @ 24% per annum. Learned counsel submitted that the assertion of the petitioner has been disbelieved on absolute frivolous reasoning that the price of the land goes on changing as per the situation without there being any clear evidence in this regard. Learned counsel submitted that the Inquiry Officer has committed an error in holding that in absence of the evidence and facts, no comments could be made in respect of earlier regularisation made by the Executive Officer, whereas, the request made by the petitioner for requisition of the record relating to regularisation of the plots was declined by the Inquiry Officer. Learned counsel submitted that the order impugned passed by the State Government relying upon the findings of the Inquiry Officer which are ex facie perverse and based on no evidence, is not sustainable in the eyes of law.

7. Learned counsel submitted that from bare perusal of the order, it is manifestly clear that no finding worth the name has been recorded by the State Government on the charges levelled against the petitioner and thus, the order impugned suffers from the vice of non application of mind and it is being not a speaking order, deserves to be set aside for this reason also.

8. In support of the contentions raised as aforesaid, learned counsel has relied upon a decision of this court in the matter of"Rameshwari Devi v. State of Rajasthan & Ors.", AIR 1999 Raj. 47.

9. On the other hand, the counsel appearing for the respondents submitted that in terms of the directions issued by this court vide order dated 28.9.04 passed by this court in Writ Petition No.3433/04, the inquiry against the petitioner was required to be concluded within a period of two weeks and therefore, the Inquiry Officer has committed no error in concluding the inquiry within a period of four days. Learned counsel submitted that the petitioner had already filed a reply to the charge sheet and if she did not choose to produce evidence in defence, the Inquiry Officer cannot be blamed. Learned counsel submitted that the petitioner having declined to produce the evidence, the Inquiry Officer was justified in hearing the arguments and concluding the inquiry on the same day. Learned counsel submitted that the documents prayed to be summoned were not related to the allegations levelled against the petitioner and therefore, the Inquiry Officer was justified in declining the prayer made on behalf of the petitioner in this regard. However, it is not disputed by the learned counsel appearing for the respondents that the inquiry report was not supplied to the petitioner and no opportunity was extended to the petitioner to make a representation against the findings recorded by the Inquiry Officer. Learned counsel submitted that Section 63 of the Rajasthan Municipalities Act, 1959 (for short "the Act"), does not envisage supply of the inquiry report to the elected representative and the State Government is empowered to pass the final orders straight away on the basis of the findings recorded by the Inquiry Officer. Learned counsel submitted that the contention of the petitioner that the Inquiry Officer has travelled beyond the allegations levelled is also not tenable. It is submitted that even if something more has been said by the Inquiry Officer, the petitioner cannot claim any benefit because the charges levelled against the petitioner are found proved on the basis of material on record.

10. I have considered the rival submissions and perused the material on record.

11. Section 63 of the Act deals with removal of the member of the Board. Sub-section (1) of Section 63 enumerates four grounds in clauses (a) to (d) for removal of the members whereas, the Chairman or Vice Chairman of the Board can only be removed on the grounds mentioned in clause (d) of subsection (1). The grounds specified in clauses (a) to (d) read as under:

"(a) that he has absented himself from the meetings of the board from 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 requirements 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 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."

12. It is to be noticed that for the removal on the grounds specified under clauses (a ) & (b), an inquiry as mandated under proviso to Section 63(1) is sufficient but then, as provided for under sub-section (2) of Section 63 for removal on the grounds contained in clauses (c) & (d) after inquiry as referred to in proviso to sub-section (1), the State Government shall draw up a statement setting out distinctly the charge against the member and send the same for inquiry and finding by Judicial Officers of the rank of a District Judge to be appointed by the State Government for the purpose. Suffice it to say that for removal on the grounds specified under clauses (c) & (d) of sub-section (1) of Section 63, a regular inquiry into the allegations levelled against the member is mandatory.

13. Further, sub-section (3) of Section 63 mandates that the Judicial Officer so appointed shall proceed to inquiry into the charges in the prescribed manner, hear the member concerned, if he makes appearance, record his finding on each matter embodied in the statement as well as on every other matter he consider relevant to the charge and send the record along with such finding to State Government which shall pass thereupon final orders or order for re-inquiry by any such other officer as may be deemed proper.

14. A bare perusal of sub-section (3) of Section 63 makes it abundantly clear that the Judicial Officer holding the inquiry is under an obligation to extend fair opportunity to the member concerned during the inquiry to defend the allegations levelled against him, which includes the right to lead evidence in defence.

15. As noticed above, the Judicial Officer appointed to inquire into the charges against the member of the Board is required to record the findings on the charges embodied in the statement drawn by the State Government as well as on every other matter he consider relevant to the charge and submit such finding to the State Government, which shall thereupon pass final orders. Obviously, in terms of provisions of sub-section (3) of Section 63, the State Government is required to pass the final order, after due application of mind on the findings recorded by the Judicial Officer and therefore, it is absolutely necessary that before passing the final order, the copy of the inquiry report is supplied to the member concerned so that he may contradict the findings recorded by the Inquiry Officer by making an appropriate representation.

16. As observed by this court in Rameshwari Devi's case (supra), even if the provisions of Section 63 of the Act are given a literal meaning, the State Government is not empowered to pass final order without furnishing a copy of the inquiry report to the member concerned and affording him an opportunity to furnish the explanation, if any, inasmuch as, non supply of the copy of the inquiry report pre-judicially affects the right of the party to effectively contradict the findings and would tantamount to denial of reasonable opportunity of hearing.

17. In the matter of"Rewat Dan v. State of Rajasthan" 1975 RLW 116, this court while dealing with the matter under Section 17(4) of Rajasthan Panchayat Act, 1953 read with Rule 22 of Rajasthan Panchayat and Nyay Panchayat (General) Rules, 1961, held that to extend the reasonable hearing to the person charged, it is essential that the copy of the inquiry report on which the Government are to act is supplied to him.

18. In Rameshwari Devi's case (supra), this court while relying upon the earlier decisions in Rewat Dan's case (supra), observed that if the contention that there is no need to furnish the inquiry report to the delinquent official and give him opportunity to explain, is accepted, it would make the proviso to Section 63 (1) (d) redundant as it provides for passing of an order after the member concerned has been afforded an opportunity of furnishing explanation. The court further observed that the statutory provision has to be interpreted in view of the purposive construction and passing of the reason and speaking order, after application of the mind and application of principle of natural justice, are in-built and mandatorily required to be complied with to avoid any kind of arbitrariness and for compelling the authorities to have strict adherence to the procedural fairness.

19. Thus, in view of the position of law settled by this court as aforesaid, it could be safely concluded that no final order can be passed by the State Government on the findings of the Inquiry Officer without supplying the elected member the copy of the inquiry report and extending him an opportunity to furnish the explanation, if any. That apart, the State Government is under an obligation to pass speaking order after due application of the mind on findings recorded by the Inquiry Officer and the explanation, if any, furnished by the person charged, contradicting the findings recorded by the Inquiry Officer.

20. Adverting to the facts of the present case, it is to be noticed that the charge sheet framed against the petitioner, was forwarded by the State Government to the Inquiry Officer on 10.9.04, but no step whatsoever was taken by the Inquiry Officer to commence the inquiry, till 4.10.04. The petitioner was served with the charge sheet and statement of allegations on 4.10.04 and was called upon to file reply to the charge sheet by 6.10.04. The time as prayed for by the petitioner for filing the reply, was declined and he was granted only a day's time to file reply to the charge sheet, allegedly for the reason that in terms of the directions issued by this court, the inquiry was to be concluded within a period of two weeks. Strangely enough, the application made by the petitioner for the requisition of the record was also rejected observing that the records sought to be requisitioned were not related to the allegations levelled against the petitioner. It is pertinent to note that the allegation against the petitioner was that he caused wrongful loss to the Municipal Board by accepting the th of the bid amount along with interest . offered by the auction purchaser belatedly. It was the categorical stand of the petitioner before the Inquiry Officer that the bid amount was deposited belatedly was accepted in respect of other plots as well. That apart, the proceedings relating to plot no.72 and 73 was directly related to the charge levelled against the petitioner. In this view of the matter, the rejection of the application preferred by the petitioner for requisition of the records by the Inquiry Officer on the pretext that the same do not relate to the charges subject matter of inquiry, was absolutely unjustified and it tantamounts to denying fair opportunity to the petitioner.

21. It is really strange that after recording the statements of witnesses examined on behalf of the department, the evidence was closed on the same day, the arguments were heard and the inquiry was concluded, observing that no evidence is shown to be produced by the delinquent. There is nothing on record suggesting that the petitioner had declined to lead any evidence in defence.

22. Having gone through the inquiry proceedings produced by the learned Additional Advocate General for perusal, this court is firmly of the view that the Inquiry Officer has proceeded against the petitioner in hot haste manner inasmuch as, in terms

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of the directions issued by this court, the inquiry was to be concluded within a period of two weeks and the Inquiry Officer had failed to commence the proceedings despite the charge sheet being forwarded by the State Government on 10.9.04. Be that as it may, the inquiry conducted by the Inquiry Officer in perfunctory manner without giving a reasonable opportunity of hearing to the petitioner, in gross violation of the principles of natural justice, stands vitiated on this count alone. 23. Coming to the order impugned passed by the State Government, indisputably, before passing the order directing removal of the petitioner as member and Chairperson of the Municipal Board and debarring her from contesting the election of the Municipal Board for a period of six years, the copy of the inquiry report was not supplied to the petitioner and therefore, the petitioner had no opportunity to contradict the findings recorded by the Inquiry Officer, which also amounts to denying fair and reasonable opportunity to the petitioner. 24. A bare perusal of the order impugned reveals that the State Government has accepted the finding recorded by the Inquiry Officer by merely recording its ipse dixit, it reflect total non application of mind by the State Government on the findings recorded and the material available on record in support thereof, if any. In the considered opinion of this court, the non speaking order passed by the State Government in gross violation of the principle of natural justice, deserves to be quashed. 25. In the result, the petition succeeds, it is hereby allowed. The order impugned dated 20.10.04 passed by the State Government is quashed. The inquiry report submitted by the Inquiry Officer shall stand vitiated for denial of fair opportunity to the petitioner and non compliance of principle of natural justice. However, on account of quashing of the inquiry and the order passed pursuant thereto as aforesaid, the State Government shall not stand precluded from conducting the inquiry into the charges levelled against the petitioner afresh, in accordance with law. No order as to costs. Petition Allowed.
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