IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. SB CIVIL WRIT PETITION NO.12464/2009 Ram Kumar Sharma Versus. State Commission and others. DATE OF ORDER : 21/04/2010 HON'BLE MR. JUSTICE AJAY RASTOGI ***
Mrs.Anita Agarwal for Mr. GK Garg, for petitioner.
Mr. Lokendra Singh for Mr. IR Saini, AAG, for respondents
The matter has come up on an application filed by the respondents under Article 226(3) of the Constitution of India for vacation of the interim order passed by the Court on 06/10/2009 but looking to the nature of controversy and with the consent of counsel for the parties, this Court considers it appropriate to dispose of the matter finally.
The petitioner, is a lawyer by profession, was appointed as Member, District Consumer Forum, Bharatpur vide order dated 24/01/2006 for a term of five years or upto the 65 years of age whichever is earlier.
It appears from the record that because of some alleged complaints of which reference has been made by the petitioner as well, an in-house enquiry was conducted by the Member, State Commission, who has also been impleaded as respondent No.4, who submitted its report (Anx.3) in regard to the allegations on which this Court would not like to express any opinion at this stage. However, taking note of the report furnished a notice was served upon the petitioner by the Registrar, State Commission, Jaipur dt. 15th September, 2009. At this stage, the petitioner has approached this Court with the grievance that as he was appointed as a Member of the District Consumer Form by the State Government and under Sub-section 1-A of Section 10 of the Consumer Protection Act, 1986 appointment of a member under sub-section (1) shall be made by the State Government on the recommendations of a Selection Committee constituted under Sub-Section 1-A of section 10 of the Act, 1986.
Taking note thereof, counsel for petitioner urged that the very notice served upon the petitioner by the Registrar, State Commission was without authority and competence and the action initiated needs to be set aside.
Counsel for petitioner has further urged that the FIRs, of which reference has been made, instituted against the petitioner, are with oblique motive and in one of the FIRs registered by the Reader of the District Consumer Forum, Final Report has been submitted by the Police Authorities after investigation and there is no material available on the basis of which any action could be taken against the petitioner.
Reply has been filed on behalf of respondents in which it has been averred that the State Government is the ultimate Authority which is competent. However, the State Commission, since holding administrative control, has examined the alleged misconduct but finally the matter has to be placed before the State Government for taking appropriate action permitted under law.
Counsel for the respondents submits that so far as the show cause notice served upon the petitioner Anx.4 is concerned, it cannot be said to be legally sustainable since after the enquiry being held by the State Commission, the matter has to be placed before the Appointing Authority i.e. the State Government to take final decision obviously after complying with the requirement as provided under law.
Counsel for respondents has brought to the notice of the Court the conduct of the petitioner which has been enquired upon by the Member of the State Commission but counsel submits that it is open for the State Government to take final decision based on material on record and no adverse order has been passed against the petitioner so far which may in any manner cause prejudice to him.
I have heard counsel for the parties and with their assistance examined the material on record.
Under the Act, 1986, the appointment of President and Members of the District Consumer Forum are made by the State Government under Section 10 in terms of the recommendations made by the Committee constituted under Sub-Section 1-A of Section 10 of the Act, 1986. The petitioner was appointed as Member of the District Consumer Forum by the State Government on the recommendations made by the Committee constituted under Section 10(1-A) of the Act, 1986 vide order dt. 24/01/2006 and the State Commission is holding administrative control over all the District Consumer Forums as provided under Section 24-B(2) of the Act, 1986.
In the instant case,the State Commission, while holding its administrative control over all the District Consumer Forums as provided under Section 24-B of the Act, 1986, examined the alleged misconduct by holding an in-house enquiry through the Member of the State Commission who has submitted its report (Anx.3) and the matter, has certainly to be examined by the State Government being the Authority competent for taking final decision which indisputably has not been taken so far.
Counsel for petitioner submits that the petitioner has not submitted any reply to the notice served in absence of which he will not be able to place his factual position and his defence before the State Government which may cause prejudice while the final decision is taken in the matter.
In the facts and circumstances, the petitioner is at liberty to submit his written explanation in reference to the notice being served within a period of fifteen days from today and the State Government will be free to take final decision in accordance with law and if the petitioner feels aggrieved by the final decision being communicated to him, he will be free to avail remedy available under law.
With these directions, the writ petition stands disposed of. No costs.
[AJAY RASTOGI], J.
Raghu/p.5/ 12464-CW-2009-final.doc