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Chenaram Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1380 of 1972
Judge
Reported in1972WLN1025
AppellantChenaram
RespondentState of Rajasthan and anr.
DispositionPetition dismissed
Cases ReferredSovachand v. The Collector of Central Excise and
Excerpt:
rajasthan panchayat samitis & zila parishads act, 1959 - section 40 and rajasthan panchayat samitis & zila parishads (removal of pradhan & up-pradhan) rules, 1960--rules 5 & 6--enquiry report submitted to government--petitioner did not avail opportunity to lead evidence--held, no case of denial of reasonable opportunity.;these rules do not provide any procedure that after the receipt of the report of the enquiry officer the government shall record any defence evidence if the delinquent pradhan or up-pradhan wants to produce in support of his case. in spite of the fact that the petitioner had no right to produce his defence evidence after the enquiry report was submitted by the collector, the government was quite keen to afford him an opportunity to produce his defence.....v.p. tyagi, j.1. petitioner chenaram, who has been removed from the office of the pradhan of the panchayat sambu, didwana by the order of the government dated 21st of july, 1972 (ex 1), has filed this writ petition under article 226 of the constitution challenging the order of the government, inter alia, on the grounds that the impugned order suffers from the defect that it is not a speaking order and that proper opportunities were not given to the petitioner to defend himself before the said order was passed. it is, therefore, prayed that the order should be quashed the petitioners has also challenged the legality of the order on the question of malafides but that point has not been pressed during the course of arguments.2. the facts giving rise to this writ petition are, in a nutshell,.....
Judgment:

V.P. Tyagi, J.

1. Petitioner Chenaram, who has been removed from the office of the Pradhan of the Panchayat Sambu, Didwana by the order of the Government dated 21st of July, 1972 (Ex 1), has filed this writ petition under Article 226 of the Constitution challenging the order of the Government, inter alia, on the grounds that the impugned order suffers from the defect that it is not a speaking order and that proper opportunities were not given to the petitioner to defend himself before the said order was passed. It is, therefore, prayed that the order should be quashed The petitioners has also challenged the legality of the order on the question of malafides but that point has not been pressed during the course of arguments.

2. The facts giving rise to this writ petition are, in a nutshell, as follows, The petitioner was elected Pradhan of the Panchayat Samiti, Didwana in the year 1965 and since then he has been continuously working as Pradhan. A show cause notice under Section 40(1) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, was served on the petitioner on 8th of February, 1968, demanding his explanation to the charge sheet which was annexed to that notice. The charge was that the petitioner Chenaram asked Shri Chatra Ram, Officiating Vikas Adhikari, Panchayat Samiti, Didwana on 7th August, 1967, to inform the Sub-Divisional Officer, Didwana to stay recovery proceedings taken against some of the persons belonging to Chenararm's party & when Shri Chatra Ram refused to act against the provisions of the rules, Chenaram showered abuses on him & gave beating to Chararam. He was, therefore, required to explain his conduct within 15 days from the date of the receipt of the said notice. Petitioner Chenaram denied the charge Thereupon the District Magistrate (Collector). Nagaur was asked to make enquiry under Rule 5(1) of the Rajasthan Panchayat Samiti and Zila Parishads (Removal of Pradhan and Up-Pradhan) Rules, 1960 (hereinafter called the Rules of 1960) The petitioner was summoned by the Collector and various notices were sent to the petitioner to join the enquiry but the case of the State Government is that inspite of notices from the Collector, the petitioner did not choose to appear before him and the Collector was left with no alternative but to enquire into the charges ex parte. None witnesses were examined by the Collector After the enquiry, the Collector submitted his report to the Government recording his finding that Chenram was found guilty of showering abuses on Shri Chatraram, Agriculture Extension Officer and later on he also gave beating to Shri Chatraram in the presence of the employees of the Panchayat Samiti. Thereafter, a notice was given to petitioner Chenaram on 14th of March, 1969 by the State Government stating that the charge of showering abuses on Chatraram and then giving beating to him is established against the petitioner by the report of the Enquiry Officer and, therefore, he should show cause under Rule 6 of Rules of 1960 read with Section 40 of the Rajasthan Panchayat Samitis & Zila Parishads Act why he should not be removed from the office of Pradhan. The petitioner filed his reply, which has been quoted verbatim by the petitioner in his writ petition at page 24, denying the charges and at the end he stated that if the Government thinks it proper that the petitioner should produce his defence, than he is prepared to do so and he shall produce the lis of defence witnesses as and when demanded. Thereafter, from the record it appears that various dates were fixed for Chenaram to appear before the Minister but for one reason or other the dates were postponed. On 23rd of February, 1972 a note was put up by the office before the Minister incharge of the Department that the petitioner was somehow trying delay to the disposal of the enquiry, the Minister passed an order suspending the petitioner from the office of Pradhan on 15th of March, 1972. It appears from the record that thereafter the petitioner demanded the copy of the report of the Enquiry Officer (Collector) which was promptly supplied to him and then he filed a writ petition in this Court challenging the order of his suspension and obtained ad-interim order which was vacated by the Court after hearing both the parties. Petitioner Chenaram then filed an application dt. 25th of May, 1972, which has been reproduced by him in the petition at page 31, before the Minister requesting him to dispose of the matter after hearing him as early as possible. The petitioner was asked to appear before the Minister on 10th of July, 1972. and it is said that the petitioner personally appeared before the Minister. According to the Government, the petitioner again pressed for the expeditious disposal of the matter, whereas the petitioner states that he had made a request to the Minister to give him an opportunity to adduce the defence evidence before the Minister, but that opportunity was denied to him. However, the Minister passed the impugned order on 21st of July, 1972, removing the petitioner from the office of Pradhan and this order has been challenged by the petitioner mainly on the following grounds:

(1) That the Minister while passing the impugned order was acting in a quasi-judicial capacity and, therefore, he ought to have passed on order which should be a speaking order, and since the order passed by the Minister cannot by any stretch of imagination be said to be a speaking order, it cannot, therefore be sustained;

(2) that the petitioner was denied opportunity to produce the defence evidence and, therefore, the enquiry stands vitiated for the non-observance of the principles of natural justice;

(3) that the petitioner was not supplied, along with the show cause notice given after the enquiry, with a copy of the enquiry report and, therefore, he was denied proper opportunity to meet the case set up against him; and

(4) that the Enquiry Officer while recording his finding was led away by extraneous considerations as is apparent from the perusal of his report and, therefore, the State Government could not have proceeded to remove the petitioner on the basis of such enquiry report.

3. The State Government by filing a reply has supported the action taken by the Minister and stated that the Government, when requested by the petitioner on 1st of May, 1971. when the petitioner appeared before the Minister and requested for time to produce his defence evidence, immediately adjourned the date to 22nd of June, 1971, but inspite of various adjournments allowed by the State Government petitioner neither cared to appear before the Government, nor did he ever try to produce his evidence; on the contrary, on 25th of May, 1972, the petitioner himself submitted an application requesting the Minister to decide the matter which was pending for long and on account of which the petitioner was suspended by the Government. It has been specifically mentioned by the answering respondent that the petitioner did not make any request to the Minister even when he appeared on the last hearing before him in this connection to allow him an opportunity to adduce defence witnesses. On the contrary, it is alleged that he verbally requested the Minister to dispose of the matter immediately. The order passed by the Minister also shows that the petitioner not only did not make any request to afford him an opportunity to adduce evidence in his defence but he definitely asked the Minister to expeditiously dispose of the matter pending for such a long time before him. According to the reply filed by the respondent, it is averred that the charges have been established beyond all doubt against the petitioner and that the Minister after taking into consideration the entire circumstances, passed the order which, according to Mr. Raj Narain who represents the respondent, is a speaking order as it speaks about all such matters which can be looked in to by this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution.

4. It may be noted here that apart from the copy of the impugned order (Ex 1) which has been served on the petitioner, Mr. Raj Narain has produced the verbatim copy of the note of the Secretariat file from para 121 to para 129 which is said to have been the order passed by the Minister on the file. Except that the setting of the order Ex. 1 is somewhat different from what has been mentioned in the notes produced by the Minister on the file, there is not much of difference between these two orders. However, Mr. Raj Narain states that the order passed is the notes prepared by the Minister on the file of the Secretariat from para 121 to para 129, and in order to judge whether it is a speaking order or not, the Court should take into consideration the order actually passed by the Minister on the file of the Secretariat.

5. Before examining the question whether the impugned order passed by the Minister removing the petitioner from the office of the Pradhan is a speaking order or not, I would like to dispose of other grounds strenuously canvassed by learned Counsel for the petitioner.

6. From the perusal of the report of the Enquiry Officer, it is clear that the petitioner was asked to join the enquiry conducted by the Collector, Nagaur, but in spite of the notices served on the petitioner, he did not take care to represent his cause before the Collector and, therefore, ex parte proceedings were taken against him. At this stage, therefore, he cannot have any grievance that he was denied reasonable opportunity to prove his innocence before the Collector.

7. While submitting a reply to the show cause notice served on the petitioner under Rule 6-A of the 1960 Rules the petitioner even at that stage did not make a request to the Government to afford him an opportunity to produce his defence evidence On the contrary, the last sentence of his reply shows that he was not keen to produce any defence evidence as he mentioned that if the Government thought it proper to record any defence evidence then he would produce such evidence and would file the list of the witnesses on demand. This reply has been reproduced verbatim by the petitioner himself at page 24 of the writ petition. Thereafter, the petitioner for the first time appeared before the Minister on 1st of May, 1971 and it is said that he verbally made a prayer to produce the defence evidence, & the Minister immediately accepted this request and adjourned the case for that purpose to 22nd June, 1971. It is not the case of the petitioner that on 22nd of June, 1971 or thereafter he went to the Minister with his defence but it was not recorded. On the contrary, when after several adjournments sought by the petitioner and allowed by the State Government the matter came up before the Minister he suspected that the petitioner was interested in delaying the matter and therefore he passed an order on 15th March, 1972, suspending the petitioner from the office of Pradhan. Thereafter the petitioner challenged the order of suspension before this Court and filed an application before the Minister, copy whereof has also been reproduced verbatim at pages 31 and 32 of the petition, where in a special request was made by the petitioner that by fixing an early date the matter may be disposed of expeditiously. In this application also the petitioner did not express his intention to produce any defence evidence in support of his case. The petitioner was heard on the l0th of July, 1972, and the Minister passed the order removing the petitioner on 21st of July,1972. It is worthy of note that in the impugned order (Ex 1) the Minister has specifically mentioned that the petitioner refused to produce any documentary or oral evidence in support of his defence and expressed his desire to dispose of the matter expeditiously.

8. The petitioner now states that he wanted to produce the defence evidence and that he had requested the Minister to give him opportunity to examine defence evidence but that opportunity was denied to him. This stand taken by the petitioner at this stage cannot be accepted by this Court in the light of the circumstances mentioned above. If the petitioner were really keen to examine his defence witnesses before the Minister, then he could have very well mentioned that fact in his application dated 25th of May, 1972, which is conspicuously silent about this matter.

9. Moreover, if we look to the scheme of the Rules of 1960, then the petitioner had the opportunity to adduce his evidence before the Enquiry Officer. When the enquiry is finished under Rule 5 of the said rules, the right to adduce any evidence in support of his case no longer survives and the petitioner cannot thereafter claim that he should be given an opportunity to produce his defence evidence. After the receipt of the enquiry report if the State Government, having regard to the findings recorded by the Enquiry Officer on the charges, is of opinion that any action under Sub-section (1) of Section 40 of the Act is necessary, then Rule 6 of the 1960 Rules requires that a notice shall be given to the Pradhan or Up-Pradhan to show cause why he should not be removed from his office and he shall be asked to submit his representation within a specified time. Clause (b) of this rule further provides that after the receipt of the representation from the delinquent Pradhan or Up-pradhan. the matter shall be referred to the Zila Parishad for its opinion and on receipt. of the opinion of the Zila parishad, if sent within the specified time, the Government may either exonerate the Pradhan or the Up-pradhan or may remove him from his office These rules do not provide any such procedure that after the receipt of the report of the Enquiry Officer the Govt shall record any defence evidence if the delinquent Pradhan or Up-pradhan wants to produce in support of his case. In spite of the fact that the petitioner had no right to produce his defence evidence after the enquiry report was submitted by the Collector, the Government was quite keen to afford him an opportunity to produce evidence before the Minister and for that purpose an adjournment was allowed by the Government when the petitioner appeared before the Minister on 1st of May, 1971, but inspite of that facility allowed by the Government the petitioner did not care to produce any evidence. In these circumstances, 1 do not think that the petitioner can be justified to challenge the impugned order on this ground that he was denied a reasonable opportunity to produce his evidence.

10. The second point on which considerable stress has been laid by Mr. Mridul is that the petitioner was not served with a copy of the enquiry report when a show cause notice was given to him under Rule 6 of the 1960 Rules. This lacuna, according to Mr. Mridul, vitiates the entire proceedings taken against the petitioner and it has the effect of rendering the impugned order invalid.

11. The rules of 1960 provide a procedure for taking action against the Pradhan or Up-Pradhan under Section 40 of the Rajasthan Panchayat Samitis and Zila Parishads Act After making preliminary enquiry under Rule 3, the delinquent Pradhan or Up-Pradhan must be served with a charge sheet if an action is taken against him under the said Rules and after considering the explanation given by the Pradhan or Up-Pradhan, the Government may set up an enquiry under Rule 5 of the Rules of 1960. The enquiry is conducted by the Enquiry Officer in accordance with Rule 5 which in itself is a self-contained code of procedure for conducting the enquiry. After the enquiry report is made by the Enquiry Officer, the Government is required to proceed in accordance with the provisions of Rule 6 of the 1960 Rules which states that if the State Government having regard to its findings on the charges, is of the opinion that any action under Sub-section (1) of Section 40 is necessary, it shall give such Pradhan or Up-Pradhan, as the case may be, a notice asking him to show cause why he should not be removed from his office and calling upon him to submit within a specified time such representation as he may wish to make. It is not the requirement of this rule that while giving show cause notice under Rule 6 the delinquent Pradhan or Up-Pradhan must be served with a copy of enquiry report submitted by the Enquiry Officer. Rule 7 also does not require that after the receipt of the representation of the delinquent Pradhan or Up-Pradhan in pursuance of the show cause notice given u/rule 6 he shall be given a further hearing by the Minister. The Government after considering the representation and the opinion of the Zila Parishad received within 30 days from the date of the communication can pass an order to exonerate the Pradhan or Up Pradhan or to remove him from his office if he is found guilty for the charges levelled against him.

12. I have to examine the arguments advanced by Mr. Mridul in the light of the provisions of these rules and to find out as to whether the enquiry is vitiated because the enquiry report as submitted by the Enquiry Officer has not been made available to the delinquent Pradhan when a show cause notice u/rule 6 was served on him. In Suresh Koshy George v. University of Kerala and Ors. : [1969]1SCR317 this very contention was raised before the Supreme Court that the order passed by the Vice-Chancellor cannot sustain as the order was vitiated because of the fact that the report of the Enquiry Officer was not made available to the petitioner before he was called upon to make his representation against the provisional decision taken by the Vice-Chancellor and this defect relates to the breach of the principles of natural justice which goes to the very root of the matter and vitiates the entire proceedings. The learned Judges in this connection observed as follows:

No rule either statutory or otherwise was brought to our notice which required the Vice Chancellor to make available to the appellant a copy of the report submitted by the Inquiry Officer. It is not the case of the appellant that he asked for a copy of that report and that was denied to him. The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.

13. The learned Judges reproduced the observations of Tucker L.J. in Russel v. Duke of Norfolk 1929 1 AER 109 with approval which are as follows:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal, The requirements of natural justice must depend on the circumstances of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.

14. In another case in Union of India v. J.N. Sinha and Anr. : (1970)IILLJ284SC their Lordships of the Supreme Court laid down:

Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak v. Union of India : [1970]1SCR457 , 'the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice These rules can operate only in areas not covered by any law validity made. In other words they do not supplant the law but supplement it.' It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislature and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules or principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred, and the effect of the exercise of that Power.

15. In the present case, the impugned order was passed by the State Government on 21st of July, 1972, but before the final order of removal was issued the petitioner was suspended on 10th of March, 1972. The petitioner before he challenged the order of suspension in this Court had obtained the copy of the report of the Enquiry Officer. Thereafter he obtained an interim order from this Court suspending the operation of the order of suspension, but that order was vacated on 12th of May, 1972. After the vacation of the said order the petitioner rushed to the learned Minister on 25.5.72 and filed an application that his case may be disposed of by the Minister at an early date. In this application he did not make a grouse of the fact that a copy of the report of the Enquiry Officer was not made available to him, nor did he make any grievance of this fact at the time when a hearing was given to him by the Minister before passing the order of removal However, this fact is not denied by the petitioner that he was in possession of the report of the Enquiry Officer when a hearing was given to him by the Minister. In these circumstances, he cannot say that any prejudice has been caused to the petitioner for not supplying the copy of the report, of the Enquiry Officer to him. Moreover, the rules under which the enquiry has been conducted do not provide that a copy of the Enquiry Officer shall be sent to the petitioner with a show cause notice issued under Rule 6 of the Rule of 1960. The Legislature purposely did not provide that a delinquent Pradhan or Up Pradhan shall be supplied with a copy of the report of an Enquiry Officer as is a provision made under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules and, therefore, it cannot justifiably be urged before this Court that by not supplying the copy of the report of the Enquiry Officer the rules of natural justice have been violated. As pointed out by the Supreme Court, the Court cannot ignore the mandate of the Legislature while scrutinising the grievance of the petitioner and read into the rules something which the Legislature never wanted to provide. In the instant case, this ground is not available to the petitioner as he was in the possession of the report at the time when a hearing was given to him by the Minister before the final order of removal was passed by him In these circumstances, I find no life in the plea raised by Mr. Mridul that the enquiry suffers from a fundamental defect of the violation of the principles of natural justice.

16. Mr. Mridul urged that the report submitted by the Collector, Nagaur, cannot form the basis for taking further action against the petitioner under Rule 6 of the Rules of 1960 as the said report was the result of the consideration of certain extraneous matter which were weighing with the collector but were not brought on the record by the parties when the enquiry was made by the said officer, In this connection the learned Counsel drew my attention to that part of the report where the Collector discussed the evidence of those witnesses who did not fully support the case of complainant Channaram. The observations of the Enquiry Officer on which stress has been laid by Mr. Mridul are as follows:

The testimony of these 5 witnesses has been clearly given under the influence of the present Pradhan Shri Chena Ram, who was present when their testimony was being recorded. Looking to the reputation of Shri Chena Ram it was very unlikely that these witnesses would say anything against the Pradhan of the Panchayat Samiti, Didwana.

17. The argument of Mr. Mridul is that some bias was working in the mind of the Enquiry Officer against Shri Chenaram otherwise the learned Collector could not have taken into consideration the reputation of Shri Chenaram which was not the subject matter of enquiry before the Collector. He, therefore, contends that such a report of the Enquiry Officer cannot form the basis for taking further action by the Government under Rule 6 of the Rules of 1960. It may be mentioned here that the remark came from the Enquiry Officer while discussing the evidence of the five witnesses, namely, P.W 1 Kanwar Ram, P.W 2 Rameshwar Prasad, P W. 3 Moolaram, P.W. 4 Jagdish Prasad and P.W. 5 Vasudeo While appreciating their testimony, the learned Collector observed that these witnesses obliquely stated that some quarrel had taken place between the Pradhan and the A E O Chatra Ram. Nothing turns out on the testimony of these five witnesses as the Collector recorded his finding while relying on the other three witnesses who had supported the allegations made against petitioner Chenaram by complainant Chatraram. The appreciation of the evidence of the other witnesses has nothing to do with the remark of the Collector about the reputation of Shri Chenaram and, therefore, this part of the report cannot go to vitiate the entire report of the Enquiry Officer. In my opinion, this contention of Mr. Mridul cannot take us any further except that the appreciation of the evidence of the aforesaid five witnesses who have not whole-heartedly supported the case of the complainant before the Collector has not been properly made. This in no manner affects the finding of the Collector which is based on the appreciation of the evidence of other witnesses.

18. Mr. Mridul next argued that the impugned order is not a speaking order and since it has been passed by the Government while acting in a quasi- judicial manner, such an order which does not disclose reasons is an arbitrary order which cannot be sustained by the Court of law The principle on the basis of which this contention is raised is that the Indian Constitution ensures rule of law in the country and the necessary attribute of the rule of law is that the administrative authorities having a duty to act judicially or quasi-judicially cannot decide any matter an considerations of policy or expendiency. it must decide the matters solely on the facts of that particular case and must not be swayed away by any extraneous considerations. According to Mr. Mridul, the order passed by a quasi-judicial authority must be a well reasoned order. as it provides important safeguard to ensure observance of the duty to act judicially and minimise the arbitrariness of the authority in disposing of the matters in a quasi-judicial manner. In support of this argument, Mr. Mridul relied on the following Supreme Court cases; Bhagat Raja v. Union of India and Ors. : [1967]3SCR302 State of Gujarat v. Patel Raghav Natha and Ors. : [1970]1SCR335 M/s. Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. : [1971]1SCR201 , M/s. Travancore Rayons Ltd. v. The Union of India and Ors. : 1978(2)ELT378(SC) . The State of Punjab etc. v. Bakhtawar Singh and Ors. etc. : AIR1972SC2083 .

19. Besides these Supreme Court authorities, he placed reliance on a Full Bench authority of the Gujarat High Court in Testeels Ltd. v. N.M. Desai Conciliation Officer and Anr. : AIR1970Guj1 and also referred to the decisions of the Punjab and Haryana High Courts reported in Shri H.K. Khanna, Ex. SAS Accountant v. The Union of India, Ministry of Finance, New Delhi and Ors. 1971 (1) SLR 618, and Vijay Singh Yadava Ex-Stock Assistant, Sheep and Wool Extension Central Baja Khanna v. The State of Haryana and Ors. 1971 (1) SLR 720. He also placed reliance on the Andhra Pradesh judgment in M. Venugopala Chetty v. The Union of India and Ors. 1971 (1) SLR 853. The cases of Bakhtawar Singh and R.P. Abrol who were removed by the Punjab Government from the membership of the Punjab Electricity Board and decided by the Punjab and Haryana High Courts were taken to the Supreme Court and these judgments were approved by the Supreme Court in the State of Punjab etc. v. Bakhtawar Singh and Ors. etc : AIR1972SC2083 .

20. Mr. Raj Narain, on the other hand, contended that in the present case, the Government while passing the impugned order did not act as a tribunal and therefore the order was not amenable to the jurisdiction of this Court under Article 227 of the Constitution or of the Supreme Court under Article 136 of the Constitution. He contended that no doubt that while passing the orders in such matters the Government acts as a quasi-judicial body but it is not necessary that the Government should pass a speaking order much less a well reasoned order as is generally drawn out by the judicial authorities. In this connection, he also placed reliance on certain decisions of the Supreme Court in Radheshyam Khare and Anr. v. the Slate of Madhya Pradresh and Ors. : [1959]1SCR1440 . The State of Maharashtra v. Babulal Kripram Takkamore and Ors. : [1967]2SCR583 , Som Datt, Datta v. Union of India and Ors. AIR 1969 SC 411, State of Madras v. A.R. Srinivasan : AIR1966SC1827 , M/s. Nandram Hunatram, Calcutta v. Union of India and Anr. : AIR1966SC1922 and Commissioner of Income-Tax, Bangalore v. K.V. Pilliah and sons : [1967]63ITR411(SC) Mr. Raj Narain further urged that in the present case the State Government concurred with the findings recorded by the Enquiry Officer (Collector) and, therefore, it was not necessary for the Minister while passing he impugned order to reproduce all the arguments given by the Enquiry Officer to record his finding. Relying on the observations of the learned Chief Justice in Madhya Pradesh Industries Ltd. v. Union of India 0044/1965 : [1966]1SCR466 , learned Counsel strenuously urged that in such circumstances it was not incumbent on the State Government while passing the impugned order to give reasons According to him, the reasons given by the Collector while submitting his report after the enquiry shall be deemed to be the reasons adopted by the Government while drafting the impugned order. In the alternative, it was argued by Mr. Raj Narain that for reviewing the impugned order in the exercise of its jurisdiction under Article 226 of the Constitution, the impugned order contains all the material in v. which has got to be scrutinised by the Court while acting under Article 226 of the Constitution and therefore the order can safety be called 'speaking order' for exercising the jurisdiction under Article 226 of the Constitution.

21. I have very carefully gone through the judgments cited by learned Counsel for the parties and I find that the 'different opinions expressed by the Supreme Court in all these cases which largely depend upon the circumstances of each individual case create some difficulty for this Court to find out the settled law on this point. Mr. Mridul candidly conceded that the judgment of the Supreme Court in Som Datt Datta v. Union of India and Ors. AIR 1969 SC 411 puts him out of the Court because the law laid down therein clearly absolves the confirming authority or the Central Government while exercising its jurisdiction under Sections 164 and 165 of the Army Act, 1950, to burnout a reasoned order as there is no express obligation imposed by Sections 164 and 165 to give reasons in support of its decision to confirm the proceedings of the Court Martial. According to Mr. Mridul, the confirming authority or the Central Government while exercising jurisdiction under Sections 164 and 165 of the Army Act discharges the functions of a criminal court and if in such matters the Supreme Court thinks that reasons are not to be given in support of the decision given by the confirming authority or the Central Government, then he cannot justify his claim that the State Government while issuing the impugned order should have given reasons for arriving at the conclusions recorded by it. But he contends that subsequent judgments of the Supreme Court, however laid down a different law and, therefore, the Latest decisions given by the Supreme Court must be followed by this Court while examining the objections raised by him Mr. Mridul's argument is that the later decision of the Supreme Court more or less over rules the previous decision though the former decision may be of a Bench constituted of five Judges and the later decision is of a Division Bench only because he feels that under Article 141 of the Constitution of India the Supreme Court lays down the law for the land and while obeying that law the High Courts or other judicial courts are not to count the heads of the Judges but to see which is the latest decision of the Supreme Court and, therefore, he prays that this Court should not be swayed away by the number of Judges constituting a particular Bench but should only look to the latest judgment on a particular point delivered by the Supreme Court.

22. I need not discuss the Supreme Court authorities cited by learned Counsel for the parties in support of their respective stands because the opinion of the Supreme Court that an administrative body should pass an order supported by reasons while discharging its duties in a quasi judicial manner stands divided and I find it difficult to reconcile these different opinions on some rational basis. This Court undoubtedly is bound by the law laid down by the Supreme Court at different times is conflicting, then the only course left open to this Court is to follow the latest judgment of the Supreme Court.

23. In M/s Mahabir Prasad Santosh Kumar v. State of U.P. and Ors. : [1971]1SCR201 , an order passed under the provisions of the U.P. Sugar Dealers' Licensing Order, 1962. cancelling the licence of a sugar dealer came up for the scrutiny of the Supreme Court and their Lordships were of opinion that the order passed by the authority was of a quasi judicial nature and that while discharging such a function it was necessary for the authority to afford an opportunity to the party interested in the dispute to present his case on question of law as well as fact and facts must be ascertained by the authority from the materials before the Tribunal after disclosing that material to the party against whom it is intended to use them and adjudication must be made by turning out a reasoned judgment while recording the finding of facts in controversy and applying the law to the facts found because in the opinion of the learned Judges recording of reasons in support of a decision by quasi judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy of the authority or reached on the ground of policy or expediency. In the opinion of the learned Judges, the necessity of recording reasons is still greater if the order is subject to appeal. In the words of the learned Judges: 'Opportunity to a party interested in the dispute to present his case on question of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial function has reached a conclusion on the problem before him, it must appear that be has reached a conclusion which is according to law and justice and for ensuring that end he must record the ultimate mental process hiding from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were property ascertained, the relevant law was correctly applied and the decision was just '

24. These very principles were reiterated by their Lordships in M/s Travancore Rayons Ltd. v. The Union of India and Ors. : 1978(2)ELT378(SC) while examining the order passed by the Central Government under Section 36 of the Central Excise and Salt Act, 1944, in its revisional jurisdiction. Their Lordships observed:

Necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions, is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous consideration of policy or expediency, The Court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power.

25. While disposing of the appeal of Shri Rajinder Pal Abrol, who was removed from the office of the membership of the Punjab Electricity Board by the Government under the provisions of the Electricity (Supply) Act, 1948, their Lordships observed that the order passed by the Minister, which was reproduced verbatim in para 12 of the judgment in the State of Punjab etc v. Bakhtawar Singh and Ors., etc. : AIR1972SC2083 , was not a speaking order and was dubbed by their Lordships of the Supreme Court as arbitrary to its core. In that case certain charges were levelled against Shri Rajinder Pal Abrol which related to alleged acts and omission on the part of the petitioner prior to the date of his appointment as a member of the Electricity Board. The Minister who passed the order of removal simply observed:

I have gone through the charges and the explanation furnished by Shri R.P. Abrol. From the material on the file, I am definitely of the opinion that he is not a fit person to be retained as part time member of the Electricity Board. I, therefore, order that Shri Abrol may be removed from membership Under Sub-clause (iv) of Clause (e) of Sub-section (1) of Section 10 of the Electricity Supply Act, 1948.

26. This order was termed as an order arbitrary to its core because the learned Judges found that the Minister while passing the impugned order did not even clarify whether the charges which related to the actions of the petitioner prior to his appointment as member of the Board were also taken into consideration or not. This order, of course, does not speak of the charges and of any other material that came to before the Minister which led him to infer that Shri Abrol was not fit to remain a member of the Board and it was on that account that the Supreme Court declared the said order to be a non-speaking order.

27. The founding fathers have given us a system by framing the Constitution which ensures the liberties of the people as we are governed by the rule of law. The term 'rule of law' as is understood in the free countries means that the persons in power shall take decisions only in accordance with certain principles and rules and in general such decisions should be predictable and the citizens should know where they stand. If the administrative authorities start taking decisions without any principle or without the sanction of the rules, then the decisions become unpredictable and such a decision is an antithesis of a decision taken in accordance with rule of law

28. Dougles, J. in United States v. Munderlich (1951) 342 US 98 has observed that 'the rule of law has freed the man from the unlimited discretion of some ruler and where such a discretion is absolute, man has always suffered.' It is in this sense that the rule of law is said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (1770) 4 Burr 2528, at p, 2539, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vagus and fanciful.

29. In order to put a check on the exercise of arbitrary discretion by the executive authority acting in judicial capacity, the Supreme Court has laid considerable stress in various judgments cited above that the administrative authorities while acting in a quasi-judicial manner must turn out a speaking order so that such authorities may not only not act in an arbitrary manner but a check of the superior authorities that can review such orders may because effective and they may also know exactly as to how the mind of the authority has worked while turning out the order impugned.

30. In view of these latest observations of the Supreme Court, I am inclined to hold that an executive or an administrative authority while discharging its quasi-judicial function must turn out a speaking order. It is true that the Supreme Court has on many occasions did not feel the necessity of speaking orders in the cases relied upon by Mr. Raj Narain, but this Court is bound by the latest pronouncements of the Supreme Court which is the law of the land to he followed by the Courts in India. I am supported in this view by the two judgments one, of Calcutta High Court in M/s. Sovachand v. The Collector of Central Excise and land Customs and Ors. AIR 1968 Cal 176 and the other of the Allahabad High Court in state v. Kamlesh Hari and Anr. : AIR1960All458 . The reasons for turning out a speaking order as given by the Supreme Court are most convincing as this type of order puts a curb on the whim and caprice of the administrative authority while discharging its functions in a quasi-judicial manner end, therefore, 1 feel that speaking order is a must in the cases when matters are decided by the administrative or executive authority exercising its jurisdiction in a judicial or quasi-judicial manner under the provisions of some laws.

31. The next question that naturally falls for my consideration is whether the order impugned can be said to be a 'speaking order or not. I may make it clear that the Constitution confers two types of jurisdiction on this Court: one, Under Article 226 & the other Under Article 227 which is a supervisory jurisdiction. When the executive authority discharges a judicial function under the provisions of certain laws, then it acts as a Tribunal and in that capacity it is amenable to the jurisdiction of this Court under Article 227 of the Constitution but when the Government is clothed with a power to remove the members of certain bodies constituted under certain statutes and if that power is given with a view to keep vigilance over the functioning of that body, then that function is discharged by that body, not as a Tribunal but as a Government exercising its administrative control over such a functionary under the provisions of that law. If any order is passed in that capacity by the Government, then that order cannot be reviewed by the High Court in the exercise of its jurisdiction under Article 227 but undoubtedly such an order can be brought to scrutiny of the Court under the extraordinary jurisdiction under Article 226. It may also be mentioned hue that the Scope of the two jurisdictions, namely, under Article 227 (superintendence) and under Article 226 are not identical. While exercising certiorari jurisdiction, this Court is manly required to see whether the subordinate authority had passed the order impugned with jurisdiction and that the order was passed while observing the principles of natural justice and that ic(sic) did not commit any error which is apparent on the face of the record. If an administrative authority exercising its quasi-judicial function has remained within the bounds of its jurisdiction and is not guilty of violating the principles of natural justice and has not committed any error which may be apparent or the face of the record, then this Court refuses to exercise its certiorari jurisdiction. In these circumstances, it is, therefore, necessary to see whether for the purpose of scrutiny under Article 223 of the Constitution the order passed by the authority is a speaking order or not. The order when scrutinised under Article '226 of the Constitution for issuing a writ of certiorari must speak about following things: that it had jurisdiction to act upon and that it has not violated the principles of natural justice and that it has passed its verdict after taking in to consideration the material placed before it and while doing so it did not commit any error apparent on the face of the record. If all these facts can be found out within the order impugned, then for the purpose of the scrutiny of such order under the certiorari jurisdiction, it can conveniently be called a speaking order.

32. I, therefore, now proceed to examine the order passed by the Minister on the basis of the principles referred to above.

33. The petitioner has placed on record Ex. 1, which is said to be the order passed by the Minister to remove the petitioner from the office of the Pradhan. This order is signed by Secretary, Shri Rawat and is dated 21st of July, 1972. Mr. Raj Narain has placed on the record the minutes recorded by the Minister in paras 121 to 129 in the Secretariat file on the basis of which the impugned order was drawn by the Secretary. The nothing of the Minister are, therefore, the real order which has got to be scrutinised by this Court to resolve the controversy raised by the petitioner In passing it may also be observed that the order Ex. 1 is not different from the nothings of the Minister on the file.

34. The Minister recorded his order in paras 121 to 129 after hearing the petitioner. In para 121 he mentions that Shri Chenaram has not produced any evidence or witnesses in support of his case and reiterated his stand contained in his explanation. He further states that he had gone through the entire file before recording his finding. It is specifically mentioned by the Minister that he had carefully gone through the report of the Collector and from that material he recorded a positive finding that the charge of giving beating to Shri Chatra Ram and giving maltreatment to him by the petitioner is established. He has also mentioned in these nothing the charge that was levelled against the petitioner. From this order of the Minister, it is also apparent that a fair opportunity was given to the petitioner to produce his evidence before the Minister but inspite of the time allowed to the petitioner to produce his evidence before the Minister he did not avail of this opportunity. According to the Minister, petitioner Chenaram had adopted delaying tactics and, therefore, the case could not be disposed of expeditiously. Since Chenaram without producing any documentary or oral evidence in support of his defence expressed his desire to dispose of this mutter expeditiously; therefore, the Minister recorded his finding and came to the conclusion that looking to the gravity of the charge petitioner deserved to be removed from the office of Pradhan under Section 40(L) of the 1959 Act.

35. On careful scanning of this order, it is clear that the Minister had looked in to the entire record and had carefully perused the report submitted by the Collector after making; enquiry into the allegation made against the petitioner. The learned Minister appears to have agreed with the finding recorded by the Collector. It is true that the Minister has not recorded by the Collector. It is true that the Minister has not recorded reasons for arriving at the conclusion but it is clear that he recorded his finding after beating the petitioner and going through the record. This Court would have insisted for recording reasons if it were to exercise the supervisory jurisdiction under Article 227 of the Constitution or the appellate jurisdiction but Since the matter has come up before it in the exercise of its certiorari jurisdiction, it has simply to examine whether the order impugned is passed with jurisdiction observing the principles of natural justice and taking into consideration the entire material relevant for the purposes of disposing of the question in controversy. Ministers, who are drawn from public life, are not expected to be well versed in writing orders like judicial officers; therefore, if the well-reasoned order is not turned out by a Minister, then it carrot be thrown out on the ground that the order did not contain reasons to support the finding. While disposing of the matters of this nature, if the Minister records clearly the material that was placed before him for his consideration, and that he had taken that material into consideration then it would satisfy some of the requirements of a speaking order He is also expected to record the issue to be determined by him and then to record his finding thereon. The order must also make it clear that the procedure prescribed for disposing of such matters by the Minister has been followed and that the person against whom the impugned order is passed was afforded proper opportunity to meet the charges. In the present case, the jurisdiction of the Minister to dispose of the matter is not disputed. Thus, I find that the order does not lack any ingredient of a speaking order for the purpose of exercising the jurisdiction under Article 226 of the Constitution.

36. This argument of Mr. Mridul that the petitioner was denied opportunity to adduce evidence, does not find support from the record which speaks very clearly that opportunity was afforded to the petitioner to produce his evidence even at the stage when the hearing was given by the Minister though under the rules he was not entitled to make such a demand, but still he did not avail that chance inspite of the fact that adjournments were granted by the Minister to enable him to produce the defence evidence. His reply to the show cause notice itself shows that he never thought it necessary to produce evidence in support of his defence, but even then when he expressed his desire to examine defence witnesses, the Minister readily accepted that request. In these circumstances, it is difficult for the petitioner to urge that he was denied proper opportunity to meet the charges. In my opinion, for the purpose of reviewing the impugned order in the exercise of the certiorari jurisdiction under Article 226 of the Constitution, the order passed by the Minister can conveniently be termed as 'speaking order' as it deals with all the requirements which the Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution, has to look into.

37. For the reasons mentioned above, I do not find any life in the contentions raised by the petitioner. The writ petition is, therefore, dismissed with costs.


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