IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5725/1995. : : Chhotulal Vs. State of Rajasthan & Ors. : : Date of Order 2.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. Mahendra Shah for the petitioner. Mr. Subhash Jain for the respondents.
Reportable
1. This writ petition seeks to challenge order dated 22.6.1994 by which Chairman, Municipal Board, Nawa dismissed the petitioner from service.
2. Petitioner was serving on the post of Naka Guard at Municipal Board, Nawa having been appointed as such in 1974. A charge-sheet under Rule 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short CCA Rules) was served upon the petitioner on four charges and Executive Officer of the Municipal Board was appointed as Enquiry Officer. He submitted his report to Chairman, Municipal Board, Nawa and the same was considered by the Administrative Committee on 14.6.1994. The Committee resolved to dismiss the petitioner from service and accordingly the aforesaid order was passed by Chairman of Municipal Board, Nawa. Subsequently however, on appeal preferred by petitioner the matter was placed before Full House of Municipal Board, which unanimously by resolution dated 13.7.1994 allowed the appeal of petitioner on the ground that petitioner was not afforded full opportunity of hearing and was not granted opportunity to defend himself inasmuch as the charges against petitioner did not warrant dismissal from service. The order of dismissal, therefore, was set aside and petitioner was directed to be treated as continuous in service and the intervening period was ordered to be regularized as earned leave. The matter was thus remanded to Administrative Committee. Consequential order of reinstating the petitioner in service was passed by Chairman of the Board on 5.8.1994. It appears that a note of dissent was put by Executive Officer, Municipal Board under Section 68 (2) of Rajasthan Municipalities Act, 1959 and the matter was forwarded to Government. The Government in purported exercise of its power under Section 65 of the Act by its order dated 15.12.1994 rescinded the resolution of the Board dated 13.7.1994. The Chairman of the Board then passed a fresh order of dismissal of petitioner on 4.7.1994. Petitioner has assailed validity of the subsequent order of Government dated 15.12.1994 and the order of Chairman dated 4.7.1995 and has also additionally challenged validity of dismissal order dated 22.6.1994.
3. I have heard learned counsel for the petitioner and learned counsel for the respondents.
4. Shri Mahendra Shah, learned counsel for the petitioner has argued that charge-sheet was served upon the petitioner, but enquiry was never conducted by the Enquiry Officer as per procedure contained in Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958. Copies of documents were not supplied to him nor was list of witnesses was supplied. No witness was examined in presence of petitioner inasmuch as he was not given any opportunity of cross examining them. Petitioner was never given any opportunity to lead evidence in defence. The Enquiry Officer on his own scrutinized the record and referred to certain statements recorded behind the back of petitioner and then recorded findings. Even though charge-sheet was served upon the petitioner, but proceedings were hastily concluded by Enquiry Officer and on 8.4.1994 he submitted his report. Petitioner was never supplied copy of enquiry report. Learned counsel submitted that entire action of terminating services of petitioner was politically motivated by reason of fact that petitioners wife Rameshwari Devi was elected Ward Member of Municipal Board, Nawa. Chairman of Board passed order of petitioners dismissal to pressurize petitioners wife, because majority of members of Board were against the Chairman and no confidence motion was moved against the Chairman of the Board in the first week of June, 1994. With a view to building undue pressure upon petitioners wife to extend her support, the Executive Officer, acting at the instances of Chairman, conducted disciplinary enquiry against the petitioner and submitted an adverse enquiry report as a pressure tactics. Petitioners wife was one of the signatories of no confidence motion, which would be evident from notice dated 20.6.1994 given by Collector to wife of petitioner, to participate in the meeting on 30.6.1994, the date fixed for voting on no confidence motion against the Chairman. It is submitted that subsequently petitioners wife being a Municipal Councilor from Congress Party also voted in favour of no confidence motion against the then Chairman. Non-supply of enquiry report is flagrant violation of Rule 16 of CCA Rules.
Shri Mahendra Shah, learned counsel invited attention of Court towards resolution passed by Administrative Committee dated 14.6.1994 and submitted that the Committee took into consideration several such facts, which did not form part of charge-sheet, such as the alleged absence of petitioner on 6.6.1994 and charge of recovery of three seals from the firm, M/s Shree Ram Industries. The only allegation against petitioner was that he while on duty on 18.3.1994, 26.5.1988 and on 1.10.1988 was found sleeping. The Administrative Committee also referred to certain notices for three dates on which petitioner was allegedly found absent from duties. On the allegation of being found asleep on duty, petitioner could not be dismissed from service and this is one of the considerations, which is why the Appellate Authority remanded the matter. Learned counsel lastly submitted that State Government has not prior to passing the order rescinding the resolution of Municipal Board provided any opportunity of hearing to petitioner inasmuch as the State Government under Section 285 of the Rajasthan Municipalities Act, 1959 (for short the Act of 1959) has no power to rescind the resolution. It can only suspend the resolution and not rescind. Action of respondents, therefore, is wholly arbitrary, unreasonable inasmuch as the same is violative of Article 14 & 16 of Constitution of India and also violative of Rule 16 of CCA Rules. It is, therefore, prayed that writ petition be allowed in terms prayed for.
5. Shri Subhash Jain, learned counsel for the respondents opposed the writ petition and submitted that enquiry was conducted against the petitioner under Rule 16 of CCA Rules in which charges against him were found proved. Allegation that action against the petitioner was taken for reason of malafide because the Chairman of the Board at the relevant time was facing no confidence motion, is totally baseless and unfounded. It is contended that charge-sheet was served upon petitioner much earlier on 24.3.1994 and the enquiry report was submitted much earlier on 8.4.1994. They cannot, therefore, be linked with the alleged no confidence motion. It is submitted that petitioner participated in the enquiry and was given full opportunity of hearing of attending proceedings. Evidence was recorded in his presence. Petitioner deliberately did not file reply to the charge-sheet and did not produce his defence in evidence. Allegation that Enquiry Officer had on his own scrutinized the record and prepared the report is totally baseless. Learned counsel submitted that even after resolution was passed by the Municipal Board, the Government under Section 285 of the Act has the power to rescind the resolution. Allegation of malafide is liable to be rejected because the petitioner has not impleaded the Chairman of Board as party by name. No prejudice was caused to the petitioner by mere non-supply of enquiry report. Unless petitioner is able to show that he is prejudiced thereby, the order of penalty can not be faulted. It is, therefore, prayed that this writ petition be dismissed.
6. I have given my anxious consideration to the rival submissions and perused the material on record.
7. Contention that Government did not have power under Section 285 of the Act to rescind the resolution, although may, at the first look appear to be attractive, but in substance, it does not carry much weight because Section 285 of the Act provides that :
285 Powers of suspending execution of order etc. of board (1) If in the opinion of any such officer as may be appointed or authorized by the State Government in this behalf the execution of any order or resolution of a board of the doing of anything which is about to be done or is being done by or on behalf of a board, is causing or is likely to cause injury or annoyance to the public or a breach of the peace or is unlawful, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.
Sub-section (2) of Section 285 of the Act provides that :
(2) When any such officer makes any order under this section, he shall forthwith forward to the State Government and to the board affected thereby a copy of the order, with a statement of the reasons for making it, and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit.
The proviso to sub-section (2) of Section 285 further states that :
No order of such officer passed under this section shall be confirmed, revised or modified by the State Government without giving the board reasonable opportunity of showing cause against the said order.
What the petitioner is contending is that orders passed by officer appointed in this behalf in the first instance and referred to in sub-section (1) of Section 285, are the once which can be suspended, but in substance, the Government under sub-section (2) has also the power to make the initial order of suspending the execution of resolution of a Board or prohibit the doing of something proposed to be done thereby, absolute. This would be evident from reading of sub-section (2) wherein it has been provided that when an officer makes such order, he shall forthwith forward to the State Government and the Board affected thereby a copy of such order with a statement of the reasons for making it, and it shall be in the discretion of the State Government to rescind the order or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit. Use of the word permanently of sub-section (2) indicates the intention of Legislature that an order of suspension of resolution in the first instance may be made by Government without any restriction of time limit, which is subsequently provided by use of the word permanently which the Government may enforce such order passed in the first instance to authorities for specified period. If the Government is conferred with the power making initial order permanent, consequences would be just the same as that of rescinding the resolution.
8. Coming now to the question whether the Government was required to provide an opportunity of hearing to petitioner before passing the impugned order rescinding the resolution. I find that proviso to sub-section (2) of Section 285 of the Act states that State Government prior to passing the order envisaged under sub-section (2) either confirming or revising or modifying such order shall give reasonable opportunity of hearing or showing cause against proposed order, to Municipal Board concerned. This obviously was said qua the Municipal Board only because the resolution, which is sought to be rescinded is that of the Municipal Board. But special feature of this case is that the resolution, which has been passed has the effect of reversing dismissal order of the petitioner. Since it had a severe adverse effect on service career of the petitioner, who had been serving the respondents since 1984 and by the aforesaid rescinded resolution, his dismissal order was set aside by the Municipal Board acting as Appellate Authority under Section 310 of the Municipalities Act for the reasons, which are logical. Firstly, the Government could not lightly interfere with such an order and; secondly even if it wanted to exercise its power under Section 285 (2) of the Act, it was required to provide opportunity of hearing to petitioner because it was he who was directly affected by the order rescinding the resolution passed by the Municipal Board and thirdly, it was in law required to meet with reasons assigned by Municipal Board in its resolution by which dismissal order of petitioner was set aside and the matter was remanded back to Administrative Committee. Merely because the Government has power under Section 285 (2) of the Act of rescinding the resolution does not mean that Government at any time at the whim or fancy of any officer and without assigning any reason, can resined such resolution. Every public authority has to act in conformity with the principles of natural justice and as per defined parameters after due application of mind, which should be reflected on record as to why it has exercised such power in favour or against one or other party.
9. Reference in this connection may be made to the Division Bench judgment of this Court in Jaisa Ram Mali vs. The Assistant Registrar, Cooperative Societies, Sirohi & Anr.(D.B.C. Special Appeal No.901/95) decided on 3.1.1996 and another Single Bench decision of this Court in Bhanwar Singh vs. State of Rajashan & Ors., reported in WLR 1992(S) Raj. p.567. In these two matters, this Court examined whether the Registrar of Cooperative Societies while exercising the jurisdiction u/s 32 of the Rajasthan Cooperative Societies Act of 1965 was required to hear employees of the societies, whose resolutions are sought to be rescinded, if rescinding such resolution adversely effect the employees and cause serious and grave prejudice to them. Learned Single Judge of this Court in Bhanwar Singh vs. State(supra) while examining this issue, held as under :-
This is true that Joint Registrar, Cooperative Societies, Bikaner purported to act in exercise powers vested in him by Section 32, Rajasthan Cooperative Societies Act, 1965, yet an important aspect of the case is that Annex. 14 was to affect the petitioner prejudicially. It is settled principle of law that no order can be passed affecting rights of a person unless he has been given an opportunity of being heard in the matter. Ours is a society governed by rule of law and all actions of administrative authority must be governed by basic legal doctrines. This is true that Section 32 of the Cooperative Societies Act does not speak of any opportunity of hearing to an employees to be affected by order passed with this Section by the Registrar, Cooperative Societies. But as state above, the order Annex.14 seriously and gravely prejudices the rights of the petitioner.
The aforesaid judgment came up for consideration before the Division Bench in Jaisa Ram Mali vs. The Assistant Registrar(supra) and the Division Bench while approving the ratio thereof, reiterated the same view in the following terms :-
In Section 32 of the Act specific provision is made that an opportunity of being heard be given to the society concerned, but that does not mean that the legislature intended that the rules of natural justice be dispensed with in cases where the party to be affected by the decision that may be taken by the Assistant Registrar is other than the society. There is nothing to indicate in the entire scheme of Section 32 or in the scheme of the Act that the legislature intended to exclude the observance of principle of natural justice when the Assistant Registrar exercises power under section 32 of the Act and his decision is likely to affect other parties.
When the provision of a statute is silent as regards observance of principle of natural justice it is to be assumed that the principles of natural justice are to be observed by the authority concerned on whom the power to take decision is conferred. In substance the principles of natural justice are nothing but action in fair play. The legislature assumes that the authority on whom the power to take impartial decision is conferred shall act in just, fair and reasonable manner. There need not be commanded from the legislature to the authority concerned that it shall act fairly. To act fairly is an implied duty of all the authorities on whom the power to take just and impartial decision is conferred. Therefore, simply because there is no mention about an opportunity of being heard to the persons likely to be adversely affected by the decision that may be taken by the Assistant Registrar, it cannot be said that the observance of principles of natural justice by the Assistant Registrar while exercising powers under section 32 of the Act have been excluded by the legislature.
In this connection reference may also be made to a decision of learned Single Judge of this Court in Bhanwar Singh (supra). In that case, Joint Registrar, Cooperative Society, Bikaner had passed an order rescinding resolution of the Board of Directors of the Society concerned by which it was decided to absorb the petitioner employee. The petitioner employee challenged the legality and validity of the order passed by the Joint Registrar, Cooperative Societies, Bikaner by filing a writ petition. It was contended before the court that the order was passed by the Joint Registrar, Cooperative Societies without affording an opportunity of being heard to him and therefore the order was illegal and void. In this connection in Para 8 of the reported decision it was observed as follows:-
It is settled principle of law that no order can be passed affecting rights of a person unless he has been given an opportunity of being heard in the matter. Ours is a society governed by rule of law and all actions of administrative authority must be governed by basic legal doctrines. This is true that Section 32 of the Cooperative Societies Act does not speak of any opportunity of hearing to an employee to be affected by order passed with this section by the Registrar, Cooperative Societies. But as stated above, the order Annex.14 seriously and gravely prejudices the rights of the petitioner. This is true that the petitioner was inducted against a temporary post, which was to last during the course of the Antyoday Project. But this is equally true that the Registrar Cooperatives Department, Rajasthan by letter Annex.2 dated 11.3.83 directed absorption of the staff serving under the Antyoday Scheme in the regular cadre of Bank. This order conferred a valuable right upon the petitioner, it conferred a right on him to be absorbed under the Bank. The resolution of the Board of Directors of the bank recommended appointment of the petitioner to the post of Assistant Executive Officer. This resolution also further conferred a valuable right upon the petitioner. By Annex.14, the Joint Registrar, Cooperative Societies purported to set at naught the twin valuable rights which had accrued obligatory and mandatory for the Joint Registrar, Cooperative Societies, Bikaner to hear the petitioner before passing order Annex.14.
Above referred to two judgments were followed in Dr. Alok Chaturvedi & Ors. Vs. State of Rajasthan & Ors. and with another writ petition Udaipur Dugdh Utpadak Sahkari Sangh Karmchari Union, Udaipur Vs. State of Rajasthan & Ors. : RLR 2007 (1), 608 wherein also the resolution of Board of Directors of Udaipur Dugdh Utpadak Sangh Ltd., was rescinded by Institutional Development Officer (IDO) exercising analogous power conferred upon him under Section 32 of Rajasthan Cooperative Societies Act, 1965. The order passed by IDO was quashed and set aside and the matter was remanded to him for deciding afresh after providing opportunity to the petitioner.
10. Adverting now to the lacuna in the disciplinary enquiry, I find that petitioner has raised very many such grounds, which the respondents have not been able to rebut. Copies of documents were not supplied to him. He was not supplied with list of witnesses, which the respondents produced against him. No witness was allowed to be cross-examined by petitioner. Not even his reply to charge-sheet was obtained and no evidence of petitioner was recorded. Also copy of enquiry report was not supplied to him. All these allegations support petitioners contention that Enquiry Officer, who is Executive Officer, prepared the report at his own level by only examining the record so much so the enquiry report, copy of which is produced by learned counsel for the respondents for perusal of the Court, also appears to have been prepared in utter violation of the procedure contained in Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958. Contention that non-supply of documents did not prejudice the petitioner, is liable to be rejected because petitioner has been successful in exposing illegalities of the entire disciplinary proceeding, which was conducted in a hasty manner only at the behest of Chairman, who was facing no confidence motion and the wife of the petitioner happened to be member of Municipal Board. Even otherwise, resolution passed by Municipal Board only was to the effect that dismissal of petitioner was set aside and the matter was remanded to Administrative Committee, which, at the maximum was then required to provide an opportunity of hearing to petitioner and examine all such arguments, which he would have made before it. There was hardly any justification for the State Government to make interference with the resolution of this nature.
In view of what has been discussed above, this writ petition deserves to be allowed, and is accordingly allowed. The impugned orders dated 22.6.1994 (Annex.3), dated 15.12.1994 (Annex.6) and dated 4.7.1995 (Annex.7) are quashed and set aside. Petitioner is held to be entitled to reinstatement in service with all consequential benefits and continuity in service. He shall also be entitled to interest @ 6% per annum on all consequential benefits.
Compliance of this judgment be made within a period of three months from the date its copy is produced before the respondents.
(MOHAMMAD RAFIQ)J.
A.Arora/-
Item No.H/12.