1
`IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
<>
:: O R D E R ::
S.B. Civil Writ Petition No.99/2008.
Smt. Vimla Vyas
Vs.
State of Rajasthan & Others
Date of Order ::::: 3rd March 2009.
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. P.S. Bhati )
Ms. Nupur Bhati )
Mr. Nikhil Dungawat )
Mr. Vishal Sharma ) for the petitioner.
Mr. R.L. Jangid, Addl. Advocate General for the respondents.
Mr. M.R. Singhvi , for the applicant.
...
Reportable BY THE COURT :
The petitioner Smt.Vimla Vyas, having been elected as
Member of the Municipal Board, Merta City and then as
Chairperson of the said Municipal Board; but having been
removed from the Office of Chairperson and as Member of the
Board after a judicial enquiry and having also been debarred
from contesting the elections for next six years, challenges
such action of the State Government by way of this writ
petition.
Briefly put, the background facts and aspects of the
2
matter are that the petitioner Smt. Vimla Vyas, after being
elected as a Member of the Municipal Board, Merta City, came
to be elected to the office of the Chairperson of the said
Municipal Board. The petitioner was, however, put under
suspension by an order made by the State Government on
15.11.2006 (Annex.1) in contemplation of enquiry under
Section 63 of the Rajasthan Municipalities Act, 1959 (‘the Act
of 1959’). Aggrieved of such suspension order, the petitioner
preferred a writ petition to this Court, being CWP No.
6647/2006, wherein an interim was passed on 29.11.2006
(Annex.3) staying the operation of the impugned order.
Thereafter, the petitioner was served with a charge-sheet
(Annex.4) levelling the allegation that she failed to call for a
requisite meeting and in the meeting as convened on
27.02.2006, failed to incorporate in the agenda items a
representation made by certain councillors. It is the case of
the petitioner that the enquiry pursuant to the said charge
sheet is still pending.
However, the State Government again placed the
petitioner under suspension by the order dated 11.06.2007
(Annex.5) with the observations that in view of the preliminary
enquiry on other allegations, it was decided to put the matter
to judicial enquiry; and for the likelihood of interference with
the enquiry proceedings, she was required to be placed under
3
suspension.
It appears that the petitioner was served with another
charge-sheet with 7 charges, essentially on the allegations of
financial irregularities and causing substantial loss to the funds
of the Board in the matters relating to: (1) purchase of road-
lights; (2) purchase of timer-switches; (3) contract for
maintenance of road-lights; (4) contract for erection of
welcome boards; (5) purchase of garbage boxes; (6) purchase
of iron tree-guards; and (7) publication of various
advertisements in newspapers.
So far the suspension order as passed by the State
Government on 11.06.2007 was concerned, the same was
put to challenge by the petitioner by way of another writ
petition, being CWP No.3729/2007, that came to be allowed
on 17.08.2007 (Annex.6). This Court disapproved the
suspension of the petitioner, the respondents were directed to
conclude the enquiry expeditiously, and the Government was
also required to pass appropriate orders on the enquiry report
expeditiously; and the entire process of enquiry including
consideration of enquiry report and action thereon was to be
completed within a period of four months. This Court said,-
“Accordingly, this petition for writ is allowed. The order
impugned dated 11.6.2007 is quashed to the extent it
4relates to suspension of the petitioner from the office of
Chairperson, Municipal Board, Merta City. Consequent
thereto the petitioner stands restored as Chairperson of
the Municipal Board, Merta City. The respondents as well
as the inquiry officer are directed to conclude the inquiry
expeditiously, as far as possible within a period of three
months from today. The petitioner is directed to cooperate
with the respondents and the inquiry officer for expeditious
conclusion of the inquiry. In the event, the petitioner do
not cooperate with the inquiry, the inquiry officer may
record the reasons and proceed exparte strictly in
accordance with law and submit his report to the
Government. The Government shall also pass appropriate
order on the said report expeditiously. The entire process
of inquiry including the consideration of inquiry report and
action thereon is expected to be concluded within a period
of four months from today.”The petitioner has pointed out that after the decision of
this Court, she was asked to and did appear before the
Enquiry Officer wherein the record was called and statements
of three witnesses, Bhagwati Prasad, Member of the Municipal
Board; Jassa Ram, Executive Officer of the Municipal Board;
and Abdul Aziz Pathan, an Independent Member of the
Municipal Board were recorded as PW-1, PW-2 and PW-3
respectively. It is pointed out that in order to controvert the
charges levelled, the petitioner got examined herself and
further examined the witness Moti Lal as DW-2. The learned
Enquiry Officer proceeded to record his findings on the
charges levelled against the petitioner in the enquiry report
dated 04.12.2007, a copy whereof has been placed on record
as Annexure-10.
In view of the grounds urged and to be considered in
5this writ petition, dilatation on all the findings on the charges
aforesaid does not appear necessary; and suffice is to notice
that the Enquiry Officer found that the department had been
able to substantiate charges Nos. 1 to 4 against the
delinquent but had failed to establish charges Nos. 5 to 7.
It is the case of the petitioner that after conclusion of the
enquiry and preparation of the enquiry report, she was not
supplied with a copy of the enquiry report by the Enquiry
Officer and in those circumstances, she submitted an
application under the provisions of Right to Information Act
while depositing a fees of Rs. 10/- under the receipt dated
07.12.2007 (Annex.11). It is further the case of the petitioner
that she neither received the copy of the enquiry report nor
any notice from the Government seeking her explanation on
the findings recorded by the Enquiry Officer; and directly an
order came to be issued on 26.12.2007 (Annex.12) removing
her from the office of Chairperson, Municipal Board, Merta
City. In fact, by the order dated 26.12.2007 (Annex.12), the
petitioner was not only removed from the office of the
Chairperson but was also removed as a Member of the
Municipal Board and was further declared disqualified to
contest elections for next six years. The impugned order dated
26.12.2007 (Annex. 12) reads as under;-
6
“श मत व मल व स अध क नगर प ललक
मडत लसट क व रद ल क त प प ह न पर उप
ननद क (प सन) ननद ल स% न ननक व भ ग,
ज प(र स प रर*भक ज+च कर ग । ज+च
ररप ट. म/ श मत व मल व स, अध क नगर प ललक
मडत लसट क व रद आर प प%म दष स ब4त प
ज न पर र जस% न नगर प ललक अध6नन म 1959 क7
6 र 63 क अनतग.त ननलम*4त करत ह(ए पकरण क7
न न क ज+च कर ज न क ननण. लल ग ।न न क ज+च अध6क र न ददन =क 04.12.2007 क
न न क ज+च ररप ट. इस व भ ग क पव?त क7 ह@,
मजसम/ श मत व मल व स अध क नगर प ललक
मडत लसट क व रद व भ ग द र लग ग स त
आर पC म/ स च र आर प पम णणत प ह@ ।अत: र जस% न नगर प ललक अध6नन म 1959
क7 6 र 63 64 क अनतग.त पदत कG C क प ग
करत ह(ए र ज सरक र श मत व मल व स अध क
नगर प ललक मडत लसट क अध क ए = सदस पद
स हट त ह(ए आग म छ: ?. क7 क ल ध6 तक क
लल चन ( लडन क लल अ ग घ व?त करत हL ।”The petitioner has averred that in the aforesaid
circumstances, she approached the office of the Joint Legal
Remembrancer, Drafting & Enquiry Officer, Law Department,
Jaipur again, seeking a copy of the enquiry report and then, a
copy of the enquiry report was made available to her on
28.12.2007 upon payment of fees of Rs. 58/- under the
receipt dated 28.12.2007 (Annex.13). Noteworthy it is that the
photo copy of the enquiry report (placed on the record of this
writ petition as Annexure-10) was indeed certified to be a true
copy only on 27.12.2007.
In continuity of the order dated 26.12.2007 (Annex.12)
removing the petitioner from the office of the Chairperson and
as a Member of the said Municipal Board, the State
7Government proceeded to issue another order (Annex.14) of
the even date, i.e. 26.12.2007, in exercise of its powers under
Section 69-A of the Act of 1959 directing the charge of the
office of Chairperson to be held for a period of one month by
Smt. Shakuntala wife of Navratan Mal, Member of the said
Municipal Board from Ward No.19.
Stating herself aggrieved of the charge-sheet (Annex.4),
of the findings recorded by the Enquiry Officer in the report
(Annex.10), and of the orders passed by the State
Government on 26.12.2007 (Annexs. 12 & 14), removing her
and appointing Smt. Shakuntala Singhvi as Officiating
Chairperson, the petitioner filed this writ petition on
03.01.2008. It has essentially been contended in this writ
petition that the impugned order as passed by the State
Government removing the petitioner from the office remain
highly arbitrary and illegal; that before taking any action on the
report submitted by the Enquiry Officer, neither the copy of the
enquiry report was supplied to the petitioner nor was she
given the opportunity to make a representation against such
report; that the Government failed to pass a speaking order
after due application of mind on the enquiry report; that the
findings and the conclusions as reached by the Enquiry Officer
remain baseless where the relevant provisions of the Rules
and the fact situation of the case have not been considered.
8However, in view of the limited submissions made during the
course of arguments, the grounds as urged in relation to the
merits of the charges and the findings thereupon are not being
dilated in this order.
This writ petition was considered on 07.01.2008; and a
caveat having been entered by the Additional Advocate
General, this Court directed a copy of the petition to be
supplied and ordered the matter to be placed on 14.01.2008.
After a few adjournments, on 15.02.2008, an application (IA
No. 1821/2008) was considered by this Court as made by the
applicants Bhagwati Prasad Pareek and Shahid Akhtar
seeking their impleadment in this writ petition essentially on
the grounds that they had been the complainants and the
enquiry was held and the petitioner was removed from the
office upon their complaint; and that the respondents may not
bring all the facts before the Court. This Court expressed the
opinion that the said applicants were not to be impleaded but
could be allowed to intervene in the matter and the application
was accordingly disposed of.
After a few more adjournments, when the matter came
up before the Court on 24.04.2008, yet another application (IA
No. 3988/2008) was considered wherein two applicants,
Motilal Mali and Motiram Meghwal, said to be the Members of
the said Municipal Board from Ward No. 4 and Ward No.1
9respectively sought impleadment in this writ petition while
again levelling the allegations that there had been serious
charges of misuse of public funds against the petitioner and
that the applicants entertained an apprehension that due to
pressure and approach, the officers-in-charge would not bring
true and correct facts to the notice of the Court. The said
application came to be rejected by this Court on 24.04.2008
while finding that the Members of the Municipal Board have no
right to intermeddle. After a few further adjournments, the
matter was considered on 12.11.2008 and this Court
proceeded to admit this writ petition after hearing the counsel
for the petitioner and the learned Additional Advocate General
appearing for the respondents Nos. 1 to 3. However, the
prayer for interim relief was declined particularly after noticing
the fact that the impugned order was passed as back as on
26.12.2007 and there had not been in operation any interim
order until then; but looking to the subject matter, it was
directed that the matter be placed for final hearing at orders
stage after the respondent No.4 was served and the Additional
Advocate General was required to keep available before the
Court the entire record relating to the enquiry proceedings
against the petitioner at the time of final hearing.
Thereafter, another application (IA No. 15552/2008), as
moved on 11.11.2008, was dealt with by the office; and when
10placed for consideration on 15.01.2009, this Court directed
that the same be kept pending to be heard at the time of final
hearing of the writ petition. Thereafter, learned counsel for
the parties were heard on 26.02.2009 on the merits of the writ
petition and so also on the said application (IA No.
15552/2008).
After narrating the factual background, learned counsel
Mr. P.S. Bhati appearing for the petitioner has essentially put
forward the contentions that the impugned order dated
26.12.2007 removing the petitioner from the office remains
entirely illegal and deserves to be quashed particularly for
being contrary to the requirements of law and being in denial
of adequate opportunity of hearing. Learned counsel
elaborated on the submissions that by the decision of this
Court as rendered in the case of Rameshwari Devi Vs. State
of Rajasthan & Ors. : AIR 1999 Rajasthan 47, Ram Niwas
Saini Vs. State of Rajasthan & Anr. : 2000 (2) RLR 10 and the
recent one in the case of Mahendra Kumar Vs. State of
Rajasthan & Ors. : S.B. Civil Writ Petition No. 6067/2008,
decided on 04.02.2009, the law is settled that in such matters,
the copy of the enquiry report is mandatorily required to be
supplied to the delinquent before passing of any order by the
State Government; and the delinquent is required to be
afforded an opportunity to make representation against such
11enquiry report. Learned counsel submitted that requirement of
supplying a copy of the enquiry report is not only inbuilt in the
scheme of the proceedings to be undertaken by the Enquiry
Officer and the orders to be passed by the State Government
but remains settled as a mandatory requirement as per
decisions of this Court and so also under the Notification dated
11.11.1959 as amended by the other Notification dated
30.09.2000 whereby the State Government has prescribed a
procedure for enquiry under Section 63 (2) and (3) of the Act
of 1959. Learned counsel particularly referred to the second
paragraph of Clause (8) of the said Notification dated
11.11.1959 to point out that not only the Enquiry Officer is
required to give a reasoned and speaking order upon
conclusion of the enquiry but is required to serve upon the
delinquent Member/Councillor, a copy of the enquiry report
simultaneously while sending it to the State Government.
Learned counsel further submitted with reference to the
decisions of this Court in the case of Ramesh Kumar Tibra
Vs. State of Rajasthan & Ors. : 2005 (3) WLC (Raj.) 644,
Chimna Ram Vs. State of Rajasthan & Ors. : 2000 (3) WLC
(Raj.) 619 and Nathulal Jangid Vs. State of Rajasthan & Ors.:
2000 (3) RLR 66 that the order under Section 63 (3) of the Act
of 1959 has to be a reasoned and speaking order as the
Government cannot pass the order of removal of elected
12representative in a mechanical manner.
Learned counsel contended that the impugned order
dated 26.12.2007 (Annex.12) being a totally non-speaking and
unreasoned one; and having been passed without supplying
a copy of the enquiry report to the petitioner remains illegal for
being squarely contrary to the statutory requirements as
contained in Section 63 of the Act of 1959, for being contrary
to the requirements of the Notification issued by the State
Government prescribing a procedure for such enquiry, and for
being contrary to the principles of law enunciated and settled
by this Court in repeated pronouncements.
Learned counsel, however, submitted that the petitioner
has a strong case to contest the charges as levelled against
her and so also the findings of the Enquiry Officer but then, the
impugned order deserves to be quashed for the reasons
aforesaid and thus, for the present purpose, the petitioner
stands advised not to raise the issues relating to the charges
and the findings of the Enquiry Officer thereupon.
The learned Additional Advocate General Mr. R.L.
Jangid has contended that the submissions as made on behalf
of the petitioner remain more of the matter of form rather than
of substance; that there was no mandatory statutory
requirement of supplying the copy of enquiry report
particularly when the entire enquiry was conducted in the
13presence of the petitioner; that, in any case, the petitioner had
indeed obtained a copy of the enquiry report by making an
application and it cannot be said that any prejudice has been
caused to her; that even if the copy of enquiry report was
supplied later, it does not affect the enquiry proceedings or the
order of the Government. The learned Additional Advocate
General further submitted that there was no such statutory
requirement of passing a detailed reasoned order by the
State Government; and more particularly when the
Government agreed with the findings of the Enquiry Officer
and passed the order only in conformity with such findings, no
further detailed order was required to be passed. The learned
Additional Advocate General urged that the petitioner has
been found guilty on serious charges of misuse of public funds
and is not entitled to continue in the office.
The learned counsel Mr. M.R. Singhvi appearing for the
applicant Smt. Shankuntala Singhvi was also heard on the
application for impleadment (IA No. 15552/2008) as moved in
the case. The learned counsel for the applicant referred to
relief clause (iv) in this petition wherein the petitioner has
sought quashing of the order dated 26.12.2007 (Annex.14) as
made in favour of the applicant whereby the applicant was
nominated as the Chairperson of the Municipal Board and
submitted that such a relief cannot be granted without hearing
14the applicant. The learned counsel emphasised that in view of
the subject matter of this litigation, the applicant has got a
direct interest in the questions involved. Alongwith the
application aforesaid, a resolution dated 24.01.2008 as
adopted by the Members of the Municipal Board has also been
placed on record as Annexure-A wherein, according to the
applicant, majority of the Members have reposed confidence in
her. Upon this Court expressing reservations that the dispute
in the writ petition essentially seems to be between the
petitioner and the State Government wherein and whereto the
applicant does not appear to be a necessary or proper party
particularly when the impugned order of removal of the
petitioner is sought to be questioned for violation of mandatory
requirements, the learned counsel for the applicant responded
with the contentions that the applicant could definitely make
submissions in relation to the writ petition and make out a case
before the Court that the impugned orders call for no
interference and that could be done by the applicant only on
being permitted to join the writ petition and to file her reply.
The learned counsel for the petitioner opposed the application
so moved on behalf of the said applicant and submitted that
the matter essentially relates to the petitioner and the State
Government; that looking to the nature of dispute, even a
complainant is not considered having a right to join the petition
15and so far the applicant is concerned, she was not even a
complainant nor participated in the enquiry proceedings in any
manner and, therefore, she has no locus standi whatsoever to
join this litigation.
Submissions of the learned counsel for the parties have
been given a thoughtful consideration and the record has been
examined with reference to the law applicable.
Appropriate it shall be to deal at the first with the
application (IA No. 15552/2008) as moved in this case on
behalf of the applicant Smt. Shakuntala Singhvi. A
comprehension of the fact situation of the case and the
grounds urged on behalf of the petitioner makes it clear that
the essential and substantial issue in this writ petition remains
about the legality and validity of the order dated 26.12.2007
(Annex.12) as passed by the State Government under Section
63 (3) of the Act of 1959 removing the petitioner from the
office of Chairperson and so also from the Membership of the
Municipal Board, Merta City and debarring her from
participating in the elections for next six years. The order
aforesaid has been passed on the basis of the enquiry
conducted against the petitioner wherein, after recording
evidence, the learned Enquiry Officer made his report dated
04.12.2007 (Annex.10).
Noticeable it is that per Section 69-A of the Act of 1959,
16whenever a Chairperson resigns or ceases to be so or is
removed from the office or is placed under suspension, or his
election, whether as a Member or as the Chairperson, is
declared void, such Chairperson is required to hand over the
charge of the office including all the papers and properties
pertaining to such office in the prescribed manner to such
Member as the State Government may direct; and such
Member to whom charge is handed over, would hold such
charge for not more than a period of one month or until taking
over charge by the Chairperson whichever be the earlier. The
order dated 26.12.2007 (Annex.14) as passed by the State
Government under Section 69-A(1)(iv)(a) and proviso thereto
had been nothing but a consequential order that was passed
in view of the principal order dated 26.12.2007 (Annex.12)
whereby the petitioner was removed from the office of
Chairperson. Such an order was required to be made so as
to adhere to the requirements of law that upon removal of the
petitioner from the office of Chairperson, the charge was to be
handed over to a Member as directed by the State
Government. The applicant has otherwise no direct lis against
the petitioner nor the order dated 26.12.2007 (Annex.14) came
to be issued because of any vested right of the applicant or
because of pronouncement on any of her rights vis-a-vis, or
corresponding to, the rights of the petitioner.
17The charge of the office of the Chairperson of the said
Municipal Board came in the hands of the applicant Smt.
Shakuntala Singhvi for the fortuitous circumstances that the
State Government chose to remove the petitioner from such
office and then, chose to nominate the applicant as the
person to hold such charge as per the requirements of Section
69-A of the Act of 1959. There was no legal right otherwise
existing in the applicant to hold the charge of the office of the
Chairperson of the said Municipal Board nor any additional
right came vesting in her because of being nominated by the
State Government to hold the charge. The said applicant, not
having any direct right so as to litigate against the petitioner so
far subject matter of this writ petition is concerned, cannot be
acceded a right to join this writ petition.
The prayer for quashing of the order dated 26.12.2007
(Annex.14), whereby the applicant was nominated to hold the
charge, is only a consequential relief that seems to have been
incorporated so as to complete the frame of the petition and
else, this Court is clearly of opinion that even if the said order
Annexure-14 is not challenged nor anything is pronounced
thereupon, the petitioner is very much entitled yet to question
the legality of the order Annexure-12 as passed against her.
The basic and the core questions in this writ petition are
related to the validity and legality of the order of removal of the
18petitioner; and that is essentially a matter between the
petitioner and the State Government. The presence of the
applicant does not appear necessary for effectual and
complete adjudication of the questions involved in this writ
petition and she cannot be said to be a necessary party at all.
As pointed out above, the applicant came to be handed over
the charge only for the reason that the petitioner was ordered
to be removed from the office and the applicant was
nominated by the State Government to be the person to
whom the charge was to be handed over. However, for these
reasons and circumstances, the applicant does not become
even a proper party in this writ petition because the matter
directly and substantially in issue is to be determined only with
reference to the submissions of the petitioner and the State
Government.
As noticed above, even on the application as earlier
made in this writ petition by the complainants, this Court did
not find them necessary parties but by way of indulgence
permitted them to intervene. However, no submissions have
been made on their behalf. Thereafter, when other Members
of the Municipal Board came forward to join this writ petition,
this Court specifically declined their application by the order
dated 24.04.2008. The position of the applicant is no better
than a Member of the Municipal Board concerned and she
19could least be held having a direct interest in the subject
matter of this writ petition so as to be joined as a party herein.
A suggestion has been made in the application about
the resolution adopted by the majority of the Members of the
Municipal Board on 24.01.2008 reposing confidence in the
applicant. This Court is unable to find such resolution
investing the applicant with any additional right so as to join
this litigation. The order as made by the State Government for
handing over the charge to the applicant (Annex.14) was itself
consequential to the removal of the petitioner and such
resolution, even if adopted within such period of one month
when the applicant was holding the charge, the same cannot
be taken to be that of election of the applicant as Chairperson.
All such proceedings would obviously remain subject to the
question as to whether the impugned order dated 26.12.2007
(Annex.12) as passed against the petitioner could at all be
maintained.
Having regard to the facts and circumstances of the
case, this Court does not find a wee bit of justification that the
applicant be allowed to join this writ petition or even to
intervene in the matter. The application (IA No. 15552/2008)
stands rejected.
So far the merits of the case are concerned, this Court
20is clearly of opinion that the impugned order dated 26.12.2007
(Annex.12) cannot be sustained.
The relevant portions of Section 63 of the Act of 1959
read as under:–
“63. Removal of Members (1) The State Government may,
subject to the provisions of sub-section (2) & (3), remove a
member of a board on any of the following grounds,
namely(a)……..
(b)………
(c) ………..
(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 mem-
ber, 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 con-
cerned has been afforded an opportunity of explanation.(1-A) ……….
(2) Notwithstanding anything contained in sub-section (1)
where it is proposed to remove a member on any of the
21grounds specified in clause (c) or clause (d) of sub- sec-
tion (1), as a result of the inquiry referred to in the proviso
to that sub-section and after hearing the explanation of the
member concerned, the State Government shall draw up a
statement setting out distinctly the charge against the
member and shall send the same for inquiry and findings
by judicial officer of the rank of a District Judge to be ap-
pointed by the State Government for the purpose.(3) The Judicial Officer so appointed shall proceed to
inquiry 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 alongwith such findings to
State Government, which shall thereupon pass final orders
or order for re-enquiry by any such other officer as may be
deemed proper.(4)…………..
(5)……………”
For the purpose of the grounds urged in this writ
petition, it may at once be pointed out that for true and lawful
proceedings under Section 63 of the Act of 1959 and validity of
an order of removal, the provision itself is clear that such
removal, particularly in relation to the charges of misconduct
or abuse, cannot be brought about without sending the matter
for inquiry by a Judicial Officer and without affording an
opportunity of explanation to the member concerned. It
inheres in the scheme of the said provisions that not only a
copy of enquiry report is required to be supplied to the
member concerned, s/he has further to be afforded an oppor-
tunity to meet with such enquiry report and then, as a neces-
sary corollary, the order to be passed by the State Govern-
22ment under sub-section (3) of Section 63 has to be a rea-
soned and speaking order after the State Government has ap-
plied its mind to the enquiry report and to the submissions of
the delinquent. This aspect of the matter has been repeated-
ly clarified and law has been laid down in explicit terms by this
Court in consistent decisions as referred by learned counsel
for the petitioner. In the case Rameshwari Devi (supra), this
Court, while emphasizing on the need of supplying the copy of
enquiry report said,-
“20. If the submission of Mr. Jasmatiya is accepted that
there is no need to furnish the enquiry report to the delin-
quent official and give her opportunity to explain, it would
make the proviso to Section 63(1)(d) redundant as it pro-
vides for passing an order after the Member concerned
has been afforded an opportunity of explanation.”Further, this Court emphasized the need of passing of a
reasoned order by the Sate Government and rather deprecat-
ed the practice of passing of mechanical order in strong terms
thus:
“24. In the instant case, the respondents have not passed
a speaking/reasoned order. It is astonishing to note and
what can be more disgraceful for the State that in a
democratic set-up, it removed the duly elected official of
the Municipal Board by issuing the order on a cyclostyled
paper by filling the blanks as is evident from the impugned
order dated 7-10-98 (Annexure P-18). The submissions
made by Mr. Jasmatia that the State Government can
neither apply its mind nor pass a reasoned order as in
view of the provisions of sub-section (3) of Section 63,
which provides that after conclusion of enquiry, the
Enquiry Officer shall send the record to the State
Government and the State Government shall pass the
23orders in “conformity of those findings” for the reason that
if the State Government is not required to apply its mind
and pass the speaking/reasoned order, what was the
occasion for sending the record alongwith the enquiry
report. The Enquiry Officer would have been authorised to
pass the order of removal and disqualification or could
have simply communicated the findings. The statutory
provisions have to be interpreted in view of the purposive
construction. Moreover, in passing the reasoned and
speaking order, after application of mind and application of
principles 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.(Underlining supplied for emphasis)
While disapproving a non-reasoned and mechanical
order passed by the State Government under Section 63 of
the Act of 1959, in the case of Ramesh Kumar Tibra (supra),
this Court again said,
“From perusal of the provisions of Sub-section (3) of
Section 63 of the Act of 1959, it is crystal clear that the
State Government is required to apply its mind of the
basis of available record and the inquiry report submitted
by the Inquiry Officer before passing final order. It is wrong
to say that the State Government is having no power but
to pass an order in conformity with the findings given by
the Inquiry Officer. This Court while examining the powers
of the State Government under Sub-section 3 of the
Section 63 of the Act of 1959, in the case of Chimna Ram
vs. State of Rajasthan and Ors. Reported in 2000(3) WLC
page 619 (Raj.), observed as under: –“The State Government has not applied its
mind at all to the inquiry report submitted by
the Judicial Officer. The statutory provision of
Section 63 of the Act imposes an obligation on
the State Government to consider the report
thoroughly and not to pass an order mechani-
cally for the reason that report may be based
on no evidence or the Enquiry Officer might
have made the report in flagrant violation of the
principles of natural justice or statutory
provision.”24
13. In view of above there is not doubt that the Govern-
ment is required to pass a reasoned order while exercising
the powers under Sub-section (3) of Section 63 of the Act
of 1959. It is also well-settled that the proceedings under
Section 63 are quasi-judicial by nature, therefore, an order
with reasons is essential.”(Underlining supplied for emphasis)
In Ramesh Kumar (supra), this Court also relied on
Rameshwari Devi (supra) and said,-
“16. This Court had an occasion to deal with the argument
of the counsel for the respondents that the State
Government is required to pass an order in conformity with
the findings given by the Inquiry Officer, therefore, the
State Government is not required to give reasons, in the
case of Rameshwari Devi Vs. State of Rajasthan, reported
in AIR 1999 Raj. 47. This Court held that the passing of
speaking and reasoned order after application of mind and
application of principles of natural justice are inbuilt.”Recently, in the case of Mahendra Kumar (supra) this
Court has again, while following the decision in Rameshwari
Devi (supra), disapproved such an order passed without
supplying the copy of enquiry report and said,-
“In this case also, the contention of the learned counsel for
the respondents that what prejudice has been caused is
not explained by the petitioner cannot be a ground for
denial of an opportunity of hearing by the competent
authority before passing the order for disqualifying the
petitioner. It is the duty of the competent authority to pass
order after providing opportunity of hearing; but, in this
case, although the Enquiry Officer has provided
opportunity to prove the innocence but, before passing the
order by the competent authority, at least, the incumbent is
required to be heard. But, in this case, without supplying
the copy of the enquiry report, straight away, the order
impugned has been passed which is not proper. More so,
it is against the principles of natural justice. The petitioner
is only claiming opportunity of being heard before passing
of the adverse order against him which cannot be denied
because the order impugned casts stigma upon the
petitioner’s career. Therefore, in my opinion, although the
25facts of Rameshwari Devi’s case (supra) are slightly
different than the present case, but the fact remains that it
was held in that case after considering the judgments of
the Hon’ble apex Court that before passing the order
against the incumbent on the basis of enquiry report, at
least, he is required to be given opportunity of hearing.
Therefore, while accepting the adjudication made in
Rameshwari Devi’s case, impugned order is held contrary
to law having not been passed after providing copy of the
enquiry report and giving opportunity of hearing to the
incumbent.”(Underlining supplied for emphasis)
Learned counsel for the petitioner has referred to the
relevant clause No.(8) of the Notification dated 11.11.1959 as
amended by the Notification dated 30.09.2000 that reads as
under:-
”8. The Judicial Officer after completing the enquiry shall
send the record along with his findings to the State
Government for passing necessary orders.
The Judicial Enquiry Officer shall give a reasoned and
speaking report and record his finding on each matter
embodied in the statement of charges. The Judicial
Enquiry officer upon conclusion of enquiry Shall serve
upon the delinquent member/Councillor copy of enquiry
report simultaneously while it is sent to the State
Government.”
(Underlining supplied for emphasis)The statutory requirement is clear that removal of a
member on the grounds as contained in clause (d) of sub-
section (1) of Section 63 could only be ordered after due
inquiry and after the member concerned has been afforded
opportunity of explanation. The statutory requirement is also
clear that after the Enquiry Officer records his finding on each
26
relevant matter and sends the record along with findings, the
State Government is to pass thereupon final order or the order
for re-enquiry and it inheres in such requirements that it has to
the objective consideration of the matter by the State
Government and that could happen only when the delinquent
is permitted to make submissions in relation to the enquiry
report and a speaking order is made thereafter.
Then, the procedure of enquiry as laid down by the
State Government itself in clear terms requires that upon
conclusion of the inquiry, the Enquiry Officer has to serve
upon the delinquent a copy of the enquiry report
simultaneously while sending it to the State Government.
Moreover, for repeated pronouncements of this Court in no
uncertain terms, supplying of copy of the enquiry report to the
delinquent in these matters before passing of the final order
by the State Government is a requirement unexceptionable.
In the present case, the State Government chose to pass the
impugned order Annexure-12 against the petitioner on
26.12.2007 despite the fact that the copy of the enquiry report
had not been supplied to the petitioner.
The petitioner has categorically stated in the writ
petition that the copy of the enquiry report was not supplied by
the Enquiry Officer and she could obtain a copy thereof only
on 28.12.2007. The respondents could dare not deny such
27
averments and rather submitted that the procedure as per law
was followed; and that the petitioner herself admittedly
obtained the copy of the enquiry report after making payment
of copying charges. The submissions as made on behalf of
the respondents that the petitioner obtained a copy of the
enquiry report stand directly at conflict with the requirements of
law and even contrary to the law explained by this Court in no
uncertain terms in repeated pronouncements. The copy of the
enquiry report was required to be supplied to the petitioner
while the same was forwarded to the State Government.
It is noticed that the enquiry report was drawn on
04.12.2007 and the Government proceeded to pass the
impugned order on 26.12.2007. It is not the case of the
respondents that before passing of the impugned order, copy
of the enquiry report was supplied to the petitioner. The State
Government has never bothered to extend an opportunity to
the petitioner to make submissions in relation to the enquiry
report before drawing its order dated 26.12.2007. Merely
because the petitioner applied for and obtained the copy of the
enquiry report on 28.12.2007, the fundamental flaw in the
order dated 26.12.2007 is not wiped out and rather, on the
admitted fact situation, the impugned order could only be set
aside.
28
The learned Additional Advocate General submitted that
the statute does not require passing of a reasoned order by
the State Government while agreeing with the enquiry report
and while passing an order in conformity thereof. Such an
argument has repeatedly been made before this Court and
negatived in the earlier decisions as referred hereinabove
while this Court clearly stated the law that the State
Government upon receiving a copy of the enquiry report has to
pass a reasoned and speaking order. The submissions as
made on behalf of the respondents despite consistent
decisions of this Court to the contrary, are difficult to be
appreciated. It is needless to reiterate that passing of
mechanical order of the present nature has been pronounced
by this Court as rather disgraceful in Rameshwari Devi’s case
(supra). It beats imagination that a particular illegality that has
been held to be rather of disgrace to the democratic system
has yet been repeated by the State Government in this case.
The submission that for passing an order in conformity with the
finding of the Enquiry Officer, the Government was not
required to pass a speaking order remains baseless and is
required to be rejected.
Noteworthy it is that in the scheme of the provisions of
Section 63 of the Act of 1959, the Enquiry Officer merely
makes an inquiry on behalf of the State Government and
29
sends his findings to the State Government. It inheres in the
said provision that after the report is received by the State
Government, an opportunity is given to the delinquent to
contest the findings as recorded by the Enquiry Officer and it is
ultimately for the State Government to pass a reasoned
speaking order in the matter. Passing of reasoned speaking
order is not a matter of form but is directly of substance for the
purpose of Section 63 (3) of the Act of 1959. It cannot be
forgotten that such an order has the serious consequences of
removing an elected representative from the office. Moreover,
the order of the present nature, debarring the petitioner from
participating in the elections for next six years, has a direct
effect on all her democratic rights; and such an order cannot
be passed without due and complete adherence to the
requirements of law and following the fundamental principles
of natural justice.
It was definitely required of the State Government to
have ensured that a copy of the enquiry report was supplied to
the petitioner; it was further required of the State Government
to have extended adequate opportunity to the petitioner of
making submissions against the findings of the Enquiry
Officer; and it was yet further required of the State
Government to have thereafter passed a considered and
reasoned speaking order. None of these requirements having
30
been met, the impugned order could only be quashed and set
aside.
It has been noticed that for about a decade, this Court
has repeatedly passed several of the orders in no uncertain
terms that supplying of the enquiry report to the delinquent and
passing of reasoned speaking order in such matters is
necessary. The State Government having yet chosen to
ignore its own Notification laying down the procedure; and
having chosen to ignore the repeated pronouncements of this
Court; and having passed an entirely illegal order dated
26.12.2007 that had resulted in removal of the petitioner, an
elected representative, this Court is clearly of opinion that the
writ petition deserves to be allowed with costs to the petitioner.
However, having regard to the overall facts and
circumstances, it need be made clear that this Court has
otherwise not dealt with the merits of the case relating to the
charges against the petitioner and otherwise to leave the
matter open for appropriate proceedings in accordance with
law subject to the observations herein.
In view of the aforesaid, this writ petition succeeds and
is allowed to the extent indicated above; the impugned order
dated 26.12.2007 (Annex. 12) is quashed and set aside.
However, if at all the State Government proposes to pass an
order against the petitioner in terms of Section 63 (3) of the
31
Act of 1959, it shall notify its intention of doing so by serving a
specific notice on the petitioner within 15 days from today. If
any such notice is served, it shall be permissible for the
petitioner to make submissions/representation in relation to
the enquiry report within 30 days of the receipt of the notice.
There shall now be no need to supply a copy of the enquiry
report as the same has been obtained by the petitioner. After
receiving the representation of the petitioner, it shall be open
for the State Government to pass appropriate order but strictly
in accordance with law.
To avoid any ambiguity, it is also clarified that with
quashing of the order dated 26.12.2007 (Annex.12), the
position of the petitioner shall stand restored as the Member of
the Municipal Board, Merta City and so also as the
Chairperson of the said Municipal Board.
The petitioner shall also be entitled to costs of this writ
petition quantified at Rs. 11,000/-[Eleven thousand].
(DINESH MAHESHWARI), J.
//Mohan//
32