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Ram Niwas Saini v/s State

    Civil Writ Petn. No. 5862 of 1999

    Decided On, 02 March 2000

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE R.R. YADAV

    For the Petitioner: Himmat Singh, Advocate. For the Respondent: V.D. Gathala, Advocate.



Judgment Text

1. By filing the instant writ petition, the petitioner questions the legality of his suspension from the office of Chairman of Municipal Board, Todaraisingh, District Tonk, passed by State Government on 6-3-1998, Annexure-1 to the writ petition and further prays to reinstate him on the aforesaid office with immediate effect, in conformity with the findings dated 15-4-1998, submitted by a Judicial Enquiry Officer of the rank of District Judge under sub-section (3) of Section 63 of Rajasthan Municipalities Act, 1959 (hereinafter referred as "Act No. 38 of 1959") appointed by State Government under sub-section (2) of the said Section.

2. The brief facts leading to filing of the instant writ petition which are necessary to dispose it off are that the petitioner was elected as Chairman of Municipal Board, Todaraisingh, District Tonk, for a fixed statutory period and was functioning as such. It is borne out from the perusal of the averments made in the writ petition that vide Order dated 6-3-98, the petitioner was placed under suspension, on the charge of having one more child on 20-10-97. The main charge against the petitioner was that he has incurred disqualification under sub-clause (e) of Clause (xiv) of Section 26 of Act No. 38 of 1959 wherein, it is clearly provided that the birth within three years from the date of commencement of the Rajasthan Municipalities (Second Amendment) Act, 1992, hereinafter in this clause referred to as the date of such commencement, of an additional child shall not be taken into consideration for the purpose of the disqualification mentioned in clause (xiv) and a person having more than two children excluding child, if any, born within three years from the date of such commencement, shall not be disqualified under that clause for so long as the number of children he had on the date of commencement does not increase.

3. To enquire into the aforesaid disqualification, a Judicial Enquiry Officer under sub-section (2) of Section 63 of Act No. 38 of 1959, is required to be appointed by the State Government, after preliminary enquiry. The State Government had appointed Joint Legal Remembrancer (II), as the Judicial Enquiry Officer, who, in turn, served a charge-sheet upon the petitioner on 17-3-98, a copy whereof is filed and marked as Annexure-2 to the writ petition. It is further evident from the perusal of the averments made in paragraph-5 of the writ petition that the Enquiry Officer, in his report dated 15-4-98, found that the charge against the petitioner is not proved. Accordingly he sent the record along with his a

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foresaid findings to the State Government, as envisaged under sub-section (3) of the aforesaid section.

4. It is apparent on the face of record that the State Government did not agree with the findings of the Judicial Enquiry Officer and decided to order a re-enquiry vide its order dated 29-7-98, a copy whereof is filed and marked as Annexure-3 to the writ petition. In second time, the State Government appointed Joint Legal Remembrancer (I), as the Judicial Enquiry Officer, to enquire into the same charge, about the disqualification of the petitioner, within the meaning of sub-clause (e) of Clause (xiv) of Section 26 of Act No. 38 of 1959 which was already enquired by a Judicial Enquiry Officer of the rank of a District Judge as stated hereinabove. It is borne out from the perusal of the record that the Joint Legal Remembrancer (I), after examining the witnesses, named in paragraph-7 of the writ petition, again exonerated the petitioner from the charge levelled against him. The second time Joint Legal Remembrancer (I) sent the record, along with his findings, to the State Government, and the State Government, instead of passing an order in conformity with those findings, again ordered for re-enquiry and appointed Joint Legal Remembrancer (II) as the Enquiry Officer, vide its order dated 19-8-99, a copy whereof is filed and marked as Annexure-4 to the writ petition.

5. After coming to know that third time the Joint Legal Remembrancer (II) has been appointed as the Judicial Enquiry Officer by the State Government on 19-8-99 to enquire into the same charge levelled against the petitioner, he filed the instant writ petition on the ground inter alia that an enquiry contemplated under Section 63 of Act No. 38 of 1959 against him and the resultant order is required to be passed within six months. On the day six months are completed the suspension order under Section 63(4) of Act No. 38 of 1959 shall come to an end. Secondly, the order of re-inquiry passed by State Government in the present case is arbitrary and lastly, Section 63(3) of Act No. 38 of 1959, passed by State Legislature clearly mandates to the State Government to pass an order in conformity with the findings of first Judicial Enquiry Officer, appointed by it who served a charge-sheet to him on 17-3-98 and submitted his finding on 15-4-1998.

6. Looking into the nature of outstanding question of paramount consideration, curtailing the tenure of an elected office bearer of Municipal Board, the respondents were directed to file a reply to the writ petition and petitioner was directed to file rejoinder to the reply, if so advised. From the perusal of circumlocutory reply filed on behalf of respondents, it is crystal clear that respondents in pith and substance have admitted the averments made in the writ petition with oral disclosure during the course of argument that Judicial Enquiry Officer, appointed by State Government on 19-8-99 had declined to enquire into the same charge against the petitioner which was enquired into twice by two Judicial Enquiry Officers. Therefore, State Government appointed fourth time another Judicial Enquiry Officer to enquire into the same charge against the petitioner but the fourth time appointed Judicial Enquiry Officer followed the suit adopted by third Judicial Enquiry Officer and declined to enquire into the same charge levelled against the petitioner, which had been already enquired into by two Judicial Enquiry Officers. I am constrained to observe that the disclosure which is made by learned Counsel appearing on behalf of respondents during course of his argument, was required to be averred in the reply filed on behalf of respondents. The respondents were required, at least, to disclose the subsequent events after filing of the writ petition, in their reply, for which time was granted to them by this Court.

7. I have heard the learned Counsel for the parties. Perused the averments made in the writ petition and return filed on behalf of respondents with the assistance of the learned Counsel for the parties.

8. It is urged by the learned Counsel for the petitioner, Shri Himmat Singh, that the petitioner is under suspension since 6-3-98, for nearly one year and eight months on the date of filing of the instant petition. It is submitted by the learned Counsel for the petitioner that the petitioner cannot be placed under suspension for more than six months from the date of suspension order dated 6-3-1998, passed by State Government in exercise of its power under sub-section (4) of Section 63 of Act No. 38 of 1959. In support of his aforesaid contention, he placed reliance on a decision rendered by the learned single Judge of this Court in case of Anil Kumar v. State of Rajasthan (SB Civil Writ Petition No. 1819/97, decided on 20-2-98) and another decision rendered by Single Bench in case of Parmanand Paliwal v. State of Rajasthan and others (SB Civil Writ Petition No. 2839/97, decided on 1-10-97 (reported in 1997 (3) Raj LW 2076)).

9. The learned Counsel, Shri V. D. Gathala, appearing on behalf of the respondents, opposed the aforesaid argument advanced by the learned Counsel for the petitioner and urged before me that decision rendered in case of Anil Kumar (supra) and Permanand (supra) interpreting sub-section (4) of Section 63 of Act No. 38 of 1959, do not hold water in view of decision rendered by Division Bench in case of Gega Ram v. State of Rajasthan and others (D.B. Civil Writ Petition No. 355/1999 decided on 28-7-1999).

10. A close scrutiny of the decision rendered in case of Anil Kumar (supra), placing reliance on the case of Parmanand Paliwal (1997 (3) Raj LW 2076) (supra) reveals that it was held by the learned single Judge of the power of suspension of a member would be held to be valid, if it is for a limited period, or some machinery is provided for review of the matter and extension thereafter of the suspension period of the member. Considering the fixed tenure of office of members of Board, reasonable period of suspension was held to be for six months from the date of suspension. It was held that enquiry contemplated under sub-section (2) of Section 63 of Act No. 38 of 1959 and the resultant order is required to be passed within the period of six months from the date of suspension of a member. If for some reason or the other, the enquiry is not completed or order under sub-section (3) of Section 63 is not passed, in that event the suspension order will come to an end immediately after the expiry of the period of six months. It was held by the learned single Judge that on the day, six months are completed from the date of suspension order, the suspension order of a member under sub-section (4) of Section 63 of the Act No. 38 of 1959 shall come to an end.

11. From perusal of decision rendered by learned Judges constituting Division Bench in case of Gega Ram (supra), it is crystal clear that the Division Bench did not approve the interpretation of sub-section (4) of Section 63 of Act No. 38 of 1959, taken in case of Parmanand Paliwal (1997 (3) Raj LW 2076) (supra), upon which, the ratio of decision in case of Anil Kumar (supra) is based. It is held by the learned Judges constituting the Division Bench that the validity of sub-section (4) of Section 63 could not have been challenged before the learned single Judge and it was, therefore, not in question before the learned single Judge, in case of Parmanand Paliwal (supra). Therefore, the learned Judges, constituting the Division Bench, held that there was no occasion to examine the validity or efficacy of sub-section (4) of Section 63 of Act No. 38 of 1959, by the learned single Judge, in the case of Parmanand Paliwal (supra). It is held in case of Gega Ram (supra) that what the Court could not have done directly, cannot be allowed to achieve indirectly, in the garb of interpretation. A Court cannot be permitted to legislate upon in garb of interpretation. On the aforesaid principle, the learned Judges constituting the Division Bench, held that to limit the period of suspension to six months, is clearly legislating on the topic and not interpreting provisions of sub-section (4) of Section 63 of Act No. 38 of 1959.

12. A close scrutiny of the decision, rendered in case of Gega Ram (supra), leads towards an irresistible conclusion that according to the ratio of the aforesaid case, instead of limiting the period of suspension to six months from the date of suspension, individual cases of suspension are to be examined, and it would depend on the facts and circumstances of each individual case, whether suspension order can be held to be arbitrary, unjust or illegal, in that case. It is held by the learned Judges constituting the Division Bench, in case of Gega Ram (supra) that in a given case, suspension for two months may be held to be arbitrary in the circumstances of a case, and in another case, suspension for even two years, would not be arbitrary. The decision taken by the learned single Judge, in case of Parmanand Paliwal (1997 (3) Raj LW 2076) (supra), was not approved and it was declared by the Division Bench, in Gega Ram's case (supra) that interpretation of sub-section (4) of Section 63 of Act No. 38 of 1959, holding suspension order to be illegal and ineffective after expiry of six months from the date of passing of suspension order, does not hold good. Thus, the decision in case of Parmanand Paliwal (supra), was overruled by the Division Bench. I respectfully concur with the interpretation of sub-section (4) of Section 63 of Act No. 38 of 1959 taken by learned Judges constituting Division Bench in case of Gega Ram (supra).

13. Let us apply the ratio of the decision, rendered by the learned Judges constituting the Division Bench, in case of Gega Ram (supra), to the facts and circumstances of the case on hand. Here, it is to be examined whether after applying the acid-test of ratio of the decision, rendered in case of Gega Ram (supra), the suspension order of the petitioner dated 6-3-98, can be held to be arbitrary, unjust and illegal.

14. It is to be imbibed that in the present case, in exercise of its power under sub-section (2) of Section 63 of Act No. 38 of 1959, the State Government appointed the Joint Legal Remembrancer (II), who served a charge-sheet to the petitioner on 17-3-98. Indisputably, the Joint Legal Remembrancer (II), a Judicial Officer of the rank of District Judge, enquired into the matter and sent his findings on 15-4-1998 to the effect that the petitioner did not incur disqualification under sub-clause (e) of clause (xiv) of Section 26 of Act No. 38 of 1959. In the present case, the State Government, instead of passing order in conformity with the finding recorded by the Joint Legal Remembrancer-II, decided to re-enquire into the matter, by appointing another Judicial Officer of the rank of District Judge. The act of the State Government in appointing a second Judicial Officer of the rank of District Judge, to enquire into the same charge, from which the petitioner was exonerated, leads me to believe that the suspension of the petitioner is based on non-existent grounds. Reasons are not far to seek. Once, the Joint Legal Remembrancer (II) recorded a finding that the petitioner did not incur disqualification, for which a charge-sheet was given to him on 17-3-98, then, the State Government had no option, except to pass an order in conformity with the aforesaid finding, as envisaged under sub-section (3) of Section 63 of Act No. 38 of 1959. The appointment of a second Judicial Officer, of the rank of District Judge, by the State Government, to re-enquire into the same charge against the petitioner, for which, already a Judicial Officer of the rank of District Judge, appointed by it, had exonerated him, is arbitrary, unjust and illegal. The aforesaid arbitrary, unjust and illegal ruse was adopted by the State Government, simply to continue suspension of the petitioner for an indefinite period on non-existent grounds. As a matter of fact, in the present case on hand, after receipt of findings from Judicial Officer of the rank of District Judge on 15-4-1998, appointed by State Government, it has no legal authority to continue the suspension of the petitioner for indefinite period. The act of State Government in the present case on reappointing Judicial Officer one after other to re-enquire the same charge against the petitioner makes the suspension order dated 6-3-98, arbitrary, unjust and illegal.

15. It is next contended by the learned Counsel for the petitioner that after receiving the finding, exonerating the petitioner, from the charge by the Joint Legal Remembrancer (II), who served the charge-sheet to the petitioner on 17-3-98, the State Government had no option, except to pass order in conformity with the finding, recorded by the Joint Legal Remembrancer (II). It is submitted by the learned Counsel for the petitioner that appointment of a second Judicial Enquiry Officer, of the rank of District Judge, in the present case, by the State Government, is per se illegal and against the mandatory provisions envisaged under sub-section (3) of Section 63 of Act No. 38 of 1959.

16. After hearing the rival contentions of the learned Counsel for the parties, I am of the view that in the present case, interpretation of sub-section (3) of Section 63 of Act No. 38 of 1959, is involved, which reads thus :-

"(1) and (2) ..... ... ......

...... ... ......

(3) The Judicial Officer so appointed shall proceed to inquire into the charge in the prescribed manner, hear the member concerned if he makes appearance, record his findings on each matter, embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to State Government, which shall thereupon pass orders in conformity with those findings."

17. Before dwelling upon the interpretation of sub-section (3) of Section 63 of Act No. 38 of 1959, I would like to observe that a person, who holds an elected statutory office, is entitled to continue to hold his office, for a fixed statutory period as prescribed in the statute under which he is elected. The statutory tenure of a member or an office bearer cannot be curtailed otherwise than the procedure prescribed under the statute. The procedure, prescribed by law, for curtailing the tenure of a elected member or office-bearer must be fair, just and reasonable. Just as a mala fide act has no existence in the eye of law, so is the case, with unfair procedure. It is, therefore, essential that the procedure prescribed by law for curtailing the period of an elected member or office-bearer of a Municipal Board must conform to the norms of justice and fair play and action taken by the State Government under Act No. 38 of 1959, is to be tested by application of two standards : the action must be within the scope of the authority conferred by law and, secondly, it must be reasonable.

18. I am of the view that the State Legislature, keeping the aforesaid principle in mind, enacted sub-section (2) of Section 63, making provisions for preliminary enquiry prior to commencement of judicial enquiry by a Judicial Officer of the rank of District Judge. Suspension order against an elected member or office-bearer also tantamounts to curtailing the statutory tenure of elected member or office-bearer of Board hence, it should also be viewed seriously by Courts of law. State Government cannot be permitted to curtail the tenure of the office of elected member or office-bearer of Board by placing him under suspension, for indefinite period by adopting unjust, arbitrary and unfair procedure. In a democratic country like ours, the party in power representing State Government is to learn to develop political ethics to tolerate and respect the elected members and office-bearers of Board. Whenever and wherever the State Government decides to remove or suspend a elected member or office-bearer of Board, it is incumbent upon it to follow just, reasonable and fair procedure enacted by the State Legislature under Section 63 of Act No. 38 of 1959. In a democratic polity supremacy of rule of law is required to be adhered to by all including State Government.

19. With the aforesaid introspection, now time is ripe to interpret the expression "shall thereupon pass orders in conformity with those findings" used under sub-section (3) of Section 63 of Act No. 38 of 1959, quoted hereinabove in the preceding paragraph of this order. Here the word "shall" used by State Legislature under sub-section (3) of Section 63 of the Act No. 38 of 1959 whether has compulsive force, is to be determined with the reference to the context in which it is used. I am of the view that where "shall" word is used as an enabling word, it is to be construed having compulsive force. In the case on hand, the word "shall" used under sub-section (3) of Section 63 of Act No. 38 of 1959 by State Legislature, mean a command by State Legislature to State Government with an obligation to pass orders in conformity with findings received from Judicial Enquiry Officer against a member or office-bearer of the Board. Under the aforesaid section the State Legislature clearly and strongly by using imperative word "shall" expressed its intent which is sufficient to hold the provisions envisaged under sub-section (3) of Section 63 of Act No. 38 of 1959 to be mandatory and it is not necessary to pursue the inquiry further.

20. The controversy involved in the present petition can be viewed from another angle. It is well-settled principle of law that if legislature while enacted a statute making provision to act in a particular manner to effectuate a legal right, then, it is to be presumed that Legislature has prohibited to act in any other manner to effectuate the same legal right. Under sub-section (3) of Section 63 of Act No. 38 of 1959, the State Legislature commanded the State Government to pass orders in conformity with findings received from Judicial Enquiry Officer of a rank of District Judge appointed by it under sub-section (2) of the said section, then, it is not possible to hold that State Government is entitled to defy the mandate of State Legislature contemplated under aforesaid sub-section (3) of the said Act.

21. An identical question came up for consideration way back in 1875, in case of Taylor v. Taylor, reported in (1875) 1 Ch D 426, wherein, it is held that when power is given by a statute to do certain thing, in a certain manner, the thing must be done in that way. Here, in the present case, if the State Legislature has commanded the State Government to pass an order, after receipt of the record, along with the finding recorded by the Judicial Enquiry Officer, then, the State Government had no option except to pass an order in conformity with the findings submitted by the Judicial Officer, appointed under sub-section (2) of Section 63 by State Government.

22. An identical question again came up for consideration, before the Supreme Court, in case of State of Gujarat v. Shantilal Mangaldas, reported in AIR 1969 SC 634, wherein, in para-54, it is ruled by Their Lordships, which reads thus :-

"................... it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all : Taylor v. Taylor, (1875) 1 Ch D 426. ... ..."

23. It is well to remember in this regard that the proposition of law, propounded by Chancery Division, way back in 1875, in case of Taylor v. Taylor (1875 (1) Ch D 426) (supra), was approved by their Lordships of the Supreme Court, in the year 1969, in case of Shantilal Mangaldas (AIR 1969 SC 634) (supra).

24. It is submitted by the learned Counsel for the petitioner that findings recorded by Judicial Enquiry Officers are not given by such Judicial Enquiry Officers to delinquent members or office-bearers of Municipal Boards and they are also not made available by the State Government, to them, to assail the same by filing a writ petition under Article 226 of the Constitution of India. It is urged by the learned Counsel for the respondents that findings of Judicial Enquiry Officers, submitted to the State Government under sub-section (3) of Section 63 of Act No. 38 of 1959, are made available only to those delinquent members or office-bearers, who make a demand to the State Government, for such findings. In the interest of justice, it is hereby directed that whenever a Judicial Enquiry Officer is appointed under sub-section (2) of Section 63, by the State Government, to enquire into charges under sub-section (3) of the aforesaid section, then, after conclusion of the enquiry, the Judicial Enquiry Officer, appointed, while sending the record, along with his finding, to the State Government, within the meaning of sub-section (3) of Section 63, he is to make available a copy of his findings, to the member or office-bearer, against whom he was appointed to conduct enquiry, in the interest of justice and fair play, to enable him to defend himself effectively and also to enable him to assail the consequential order passed by State Government in conformity of such findings in writ jurisdiction. It is not disputed before me that the consequential order passed by the State Government, in conformity with the findings recorded by Judicial Enquiry Officer, under sub-section (3) of Section 63 is amenable to writ jurisdiction.

25. It is true that there are no positive words under sub-section (3) of Section 63 of Act No. 38 of 1959, to make a copy of finding available to a member or office-bearer of Board, against whom an enquiry is conducted by a Judicial Enquiry Officer of the rank of District Judge, appointed by the State Government under sub-section (2) of Section 63 of the aforesaid Act, yet, the justice of common law will supply the omission of State Legislature, under the aforesaid section. I am of the view that fairness in action demands that a copy of findings recorded by a Judicial Enquiry Officer, must be made available by him, at the time while he is sending the record, along with his findings, to the State Government to the delinquent member or office-bearer against whom an enquiry is conducted under sub-section (3) of the aforesaid Act. It is held that making the findings available is integral part of doctrine of natural justice. Unless findings recorded by Judicial Enquiry Officer is made available to a member or office-bearer against whom the enquiry is held, after conclusion of enquiry, by the Judicial Enquiry Officer himself, the delinquent member would be deprived to demonstrate before this Court that the finding recorded by the Judicial Enquiry Officer, is either erroneous or based on non-existent grounds and as such consequential order passed by State Government in conformity of such findings is bad in law and not sustainable.

As a result of aforesaid discussion the instant writ petition is allowed with cost and suspension order dated 6-3-1998 is hereby set aside with a direction to respondents to reinstate the petitioner as Chairman of Municipal Board, Todaraising, District Tonk, forthwith.

Petition Allowed.
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