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Suresh Ghoshi v/s State & Others

    Civil Writ Petition No. 2962 of 1999

    Decided On, 07 July 1999

    At, High Court of Rajasthan Jaipur Bench


    For the Appellant: Naina Saraf, Advocate. For the Respondents: S.M. Mehta, General, Shailesh Prakash Sharma, Advocate.

Judgment Text

1. The petitioner who is elected Member of Municipal Board, Dausa and subsequently elected as Chairman of the said Municipal Board has moved this Court by way of instant writ petition challenging the order dated 20-5-1999 (Annexure-2) following the direction of the State Government consequent upon which the enquiry which was earlier being conducted by Joint LR (II) was entrusted to another enquiry officer who is of the equivalent competent rank of Joint LR (L), Legal Department, Secretariat, Jaipur.

2. The case of the petitioner in short is that he was elected as Ward Member of the Municipal Board, Dausa for short 'the Board' and subsequently elected as Chairman of the said Board. It is alleged that on the basis of some false and frivolous complaints received against the petitioner, preliminary enquiry was directed to be held against him and in pursuance thereof, the Director Local Bodies, Jaipur, (respondent No. 2) sent a show cause notice to the petitioner to which, he filed reply which was not found satisfactory by respondent No. 2 resulting in passing of order of suspension dated 16-1-1999.

3. Soon after passing of the suspension order as aforesaid, respondent No. 2 also forwarded the case of the petitioner for Initiation of regular enquiry to senior judicial officer of the rank of Joint L. R. (ii). Legal Department, Secretariat, Jaipur. The Board having resort

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ed to the provisions of Sections 63(2) and 63(3) of the Rajas than Municipalities Act, 1959 for short the "Act of 1959" and after drawing up a statement of the case setting out distinctly the charges against the petitioner, forwarded the same along with the preliminary enquiry report to the aforesaid judicial officer i.e. Joint LR (II), Legal Department, Secretariat. Jaipur who Js equivalent to the rank of a District Judge. This fact has not been disputed by the petitioner that the matter was referred to the Joint LR (II), Jaipur in accordance with law having resort to the provisions of the Act of 1959 and the Joint LR (II) commenced the proceedings to enquiry into the allegations levelled against the petitioner on the basis of the charges formulated against him and alter giving him due opportunity of hearing, recorded evidence of witnesses who were summoned to depose before the enquiry officer during the course of enquiry and pending the enquiry, the petitioner was placed under suspension on 16-1-1999 by having resort to the provisions of Section 63(4) of the Act which provides thus :-

"(4) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceedings have been commenced under this section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the board or otherwise perform the duties of a member thereof."

4. It is pertinent to mention that during the pendency of enquiry proceedings before the concerned judicial officer, an application was moved on behalf of the petitioner before the Enquiry Officer viz., Joint LR and Judicial Enquiry Officer. Legal Department, Secretariat, Jaipur to provide the certified copy of the statement of the witness in response to which, the said officer vide his letter dated 19-5-1999 (Annexure-1) informed the petitioner that the judicial enquiry was directed to be initiated against him in accordance with the provisions of Section 63(3) of the Act under the directions of the State Government which is confidential and for which neither the Secretariat has any concern with it nor there is any provision in the Secretariat regarding issuance of certified copies of the statements of witnesses and further, after recording the evidence of departmental witness, 11 witnesses of the delinquent have been examined while remaining evidence is yet to be concluded and the matter is fixed for 21-5-1999. Thereafter, on 20-5-1999 a communication was sent to Joint LR (II) Legal Department, Govt. Secretariat, Jaipur by Deputy Secretary, State Government, Secretariat, Jaipur that in pursuance of the decision taken by the State Govt., the enquiry which had earlier been entrusted to Joint LR (II) has now been entrusted to the Joint LR (L), Legal Department, Secretariat, Jv.aipur and as such petitioner was requested to send the relevant documents connected with the enquiry directly to the Joint LR (L).

5. Feeling aggrieved by the Order dated 20-5-1999 (Annexure-2) regarding change of enquiry officer in place of Joint LR (II) to Joint LR (L), the petitioner has come up before this Court by way of instant writ petition on the grounds inter alia that the State Govt. does not have any power to change the enquiry officer and it is beyond the scope and competence of its power to direct the transfer of enquiry proceedings from Joint LR (II) to Joint LR (L) and this change has resulted in effecting the petitioner's case adversely. It has further been contended by Mrs. Naina Saraf, learned counsel for the petitioner that once the enquiry is handed over to a judicial officer, the State Government looses Its right of dominating the enquiry proceedings since the transfer of enquiry proceedings clearly shows the interference of the State Govemment which makes the enquiry illegal and it ceases to be impartial. The learned counsel for the petitioner has further contended that State Government is unnecessarily trying to influence the inquiry proceedings and get the report as per its own wishes and hence, the impugned order dated 20-5-1999 is not sustainable in law being totally "non speaking. However, learned counsel for the petitioner has not disputed this fact that out of departmental witnesses examined so far, 11 witnesses of the petitioner have already been examined and last opportunity has been given for concluding the remaining evidence for which the date was fixed as 21-5-1999. By way of alternative argument, learned counsel for the petitioner contended that transferring the enquiry proceedings at this stage clearly shows that order (Annexure-2) has been passed with some ulterior motive to influence the enquiry report. It has further been contended that before passing the impugned -order dated 20-5-99 (Ann.-2), no notice or prior opportunity of hearing was afforded to the petitioner and it was essential far the competent authority to at least give opportunity of hearing to the petitioner.

6. In reply to show cause notice, Shri S. M. Mehta, learned Advocate General while controverting the aforesaid contention of the petitioner has contended that though, it is not disputed that the petitioner was elected as Ward Member and subsequently as Chairman of the Board, but it has been denied that it was on the basis of any false and frivolous complaint against the petitioner the notice was sent to the petitioner by respondent No. 2. It has been further been contended that it is only on the basis of the preliminary enquiry held against the petitioner earlier with regard to charges framed against him which were prima facie proved as a result of preliminary enquiry and it is on the basis of the same that decision was taken by the appropriate authority to place the petitioner under suspension vide order dated 16 1-1999. It is only thereafter that a judicial enquiry to the rank of a District Judge i.e. Joint LR (II) Legal Department, Secretariat, Jaipur was entrusted and he was appointed as Enquiry Officer to initiate enquiry proceedings against the petitioner. Mr. Mehta further contended that though this fact is not in dispute that enquiry proceedings were pending before Joint LR (II) and later on it was entrusted to Joint LR (L) but, it was on account of the administrative exigency and compelling circumstance of the State Government that the earlier Judicial officer (enquiry officer) was due to retire shortly and it is for the administrative reasons that it had become necessary to withdraw the proceedings pending before him and entrust the same to another judicial officer who is a member of Rajasthan Higher Judicial Officer and of equivalent competent rank for which the petitioner should have no reason to complain of. The allegation regarding the bias and mala fides were vehemently denied by the learned Advocate General stating that no motive can be attributed either to State Government or to the Judicial officer and it cannot be said that fair enquiry has been prejudiced in any manner.

7. Mrs. Naina Saraf, learned counsel for the petitioner in support of her contention has placed reliance upon the Judgment of this Court in the matter of Rameshwari Devi Mewarav. State of Rajasthan (1999) 1 WLC 420. J have examined the ratio of the aforesaid judgment and in my view, the same is neither applicable nor attracted to the Instant case since the legality and propriety of the said order of removal passed against the petitioner who was Chairperson of the Municipal Board consequent upon which, he was disqualified from contesting the election of the Board for a period of 5 years, was subject-matter of challenge before the learned single Judge of this Court at Jodhpur. The petitioner was debarred from contesting the election of the Board for 5 years on account of malpractices which have been proved against him, which is not the case here.

8. Learned counsel for the petitioner has further placed reliance upon the provisions of Section 18 of the General Clauses Act, 1955 for short 'the Act' which provides that where by any law, a power to make any appointment is conferred by an appropriate authority, then, unless a different intention appears. The authority having for the time being power to make the appointment shall also have power to suspend, remove or dismiss any person appointed by itself or any other authority in exercise of that power. As a corollary to it, the power of the State Government also includes power to initiation of enquiry by any Judicial officer of competent rank against the delinquent for reasons of administrative exigencies to entrust the same to another officer of equivalent rank If for some reasons the earlier officer is unable to proceed with the matter. The object of this provision is to enable the delinquent on the basis of natural Justice in all fairness that he should be given fair and proper opportunity of hearing before any order resulting in suspension, removal or dismissal is passed against him- Initiation of Departmental Enquiry in my considered view does not entail any civil consequences which may affect the rights of the delinquent in any manner whatsoever.

9. In my view, the competence of State Govt. is not open to challenge on this or any other grounds as advanced by the learned counsel for the petitioner, norany mala fides can be attributed to such decision of State Govt.

10. In my view, the State Government had adopted all possible modes as permissible under the law before effecting change of enquiry officer and it is only on the basis of Notification dt 11-11-1959 published in Rajasthan Gazette Part-IV C on 26-11-1959 by which the State Government has withdrawn the enquiry proceedings from one judicial officer to another and when such exercise has been carried out in accordance with law the former ceases to exercise jurisdiction therein, as having been succeeded by the latter within the scope and ambit of Sub-clause (a) of Clause (ix) of the aforesaid Gazette Notification. The relevant sub-Clauses (b) and (c) Clause (ix) of the aforesaid Notification, are reproduced hereinbelow for ready reference :--

"Clause (ix)(b). Where the Judicial Officer is prevented by death, transfer or other cause from conducting the enquiry, his successor may deal with any evidence or memorandum taken down or made by him or under his direction under these Rules and may proceed with the enquiry from the stage at which his predecessor left it.

Clause (ix)(c). When an enquiry is transferred from one Judicial Officer to another Judicial Officer, the former shall be deemed to cease to exercise Jurisdiction therein, and to be succeeded by the later within the meaning of sub-clause (a) above."

11. Consequently, I am of the view that petitioner has not at all any ground to challenge the impugned-order dated 20-5-1999 (Annexure-2) which in my view is just and proper and within the scope and competence of the State Government having been passed in accordance with law and relevant provisions of Notification dated 11 -11 -1959 which is not open to challenge.

12. In the instant case, the result of the enquiry is yet to be awaited and it is not the stage when the petitioner should have filed the writ petition and rather the petitioner has been ill advised to move this Court by way of instant writ petition which is misconceived and not tenable even on merits. It is clarified that the observations made hereinabove shall not prejudice the petitioner's case in the pending enquiry proceedings.

13. Forthereasonsstated above, I am of the view that no case is made out for Interference with the impugned order dt. 20-5-1999 (Annexure-2) and to stay the proceedings in the enquiry pending against the petitioner before the Enquiry Officer viz. Joint LRII, Government Secretariat, Jaipur i.e. respondent No. 3. Since the petitioner has already participated in the enquiry proceedings at the stage where it was left by the predecessor in Office who was equivalent to the rank of Joint LR II from whom respondent No. 3 took over the charge on 20-5-1999, I am of the view that the pending enquiry should almost achieve its logical conclusion from the stage from where it was left. I am informed by the learned Advocate General that the evidence of most of the witnesses has already been recorded and proceedings are at final stage.

14. The writ petition being devoid of any merit is consequently dismissed with cost assessed to Rs. 1000/-. In the interest of justice, I direct that the enquiry proceedings should be completed expeditiously.

Final Result : Dismissed.