RAJASTHAN HIGH COURT

                                          Nathu Lal Jangid

                                                  Vs.

                                         State of Rajasthan

           Civil Writ Petn. Nos. 2965 of 2000, 4631 of 1998 and 2348 of 2000
                                           (R.R. Yadav, J.)
                                             31.07.2000
                                               ORDER

R.R. Yadav, J.
1. Heard.

2. Perused the materials available on record in these three writ petitions, common ques
tions of law and facts are involved and as such these petitions can be disposed off by a
common judgment without narrating the facts in detail averred in each of the writ peti
tion.

3. As a matter of fact, in these writ petitions, pure question of interpretation of sub-
sections (2) and (3) of Section 63 of Rajasthan Municipal Act, 1959 (hereinafter referr
ed as Act No. 38 of 1959) and the rules framed there under relating to procedure in hol
ding inquiry into the charges against members/councilors or office bearers of a Munici
pal Board is involved.

4. As regards the case of Nathulal Jangid, it is posted today for admission but with the
consent of learned counsel for the parties. I propose to decide the aforesaid writ petitio
n today on merit at admission stage along with other two petitions which are posted for
final hearing.

5. In these three writ petitions, distinct charges were framed in exercise of power unde
r sub-
section (2) of Section 63 of Act No. 38 of 1959 by State Government and after framing
distinct charges. Judicial Inquiry Officers of the rank of District Judges were appointe
d to make enquiries and remit their findings on each charge embodied in the statement
as well as on every other matter they consider relevant to the charge.

6. The rules framed by State Government in exercise of its power under sub-
section (3) of Section 63 of Rajasthan Municipal Act, 1959 lay down procedure for ho
lding inquiry into the charges against a member/councilor or office bearer of a Board
which is published in Rajasthan Gazette (Extraordinary) Part IV (c) dated 26-11-
1959. In Rule 2 of the aforesaid rules it is provided that if the member/councilor admit
the charge in his written statement and shows no sufficient cause why he should not b
e removed form the post, Judicial Inquiry Officer shall record his findings on each mat
ter embodied in the statement of the charge after hearing him if he makes appearance
and send to the record to State Government for passing necessary orders. The aforesai
d procedure is also inferable from the language with which sub-
section (3) of Section 63 of Act No. 38 of 1959 is couched with.

7. Although in these three cases, distinct articles of charges were framed by the State
Government but in support of those charges no evidence was disclosed either oral or d
ocumentary which was intended to be adduced in proof of those distinct articles of cha
rges before the Judicial Enquiry Officers of the rank of District Judges appointed by St
ate Government. In all these petitions except in S.B.C. Writ Petition No. 2965/2000, th
e Judicial Inquiry Officers had shirked their responsibilities to record findings on each
articles of charge as envisaged under sub-
section (3) of Section 63 of Act No. 38 of 1959 and Rules framed thereunder for the re
ason best known to Judicial Inquiry Officers causing serious prejudice to the petitioner
s. It is true that Judicial Inquiry Officer in S.B.C. Writ Petition No. 2965/2000 has rec
orded findings on each charge but he failed to make reference about the explanation su
bmitted by the petitioner. The Judicial Inquiry Officer ignored the explanation submitt
ed by petitioner while recording finding of guilt against him causing serious prejudice
to him.

8. I record my appreciation for State Legislature for meticulously making just, reasona
ble and fair procedure under sub-
sections (2) and (3) of Section 63 of Act No. 38 of 1959 for holding inquiry into the ch
arge against member/councilor or office bearer of the Board relating to their removal,
suspension and debarring them from contesting re-
election for a period of five years from the date of order of their removal or recording
of adverse findings as the case may. I further record my appreciation for State Govern
ment for framing just, reasonable and fair procedure for removal, suspension and deba
rring a member of Board from re-
election for a period of five years in consonance with the principle of natural justice an
d fair play in exercise of its power under sub-
section (3) of Section 63 of Act No. 38 of 1959 published in Rajasthan Gazette (Extrao
rdinary) Part IV(c) of 26-11-59.

9. It is well to remember that if an order is amenable to writ jurisdiction, then, an aggri
eved person or institution as the case may be is entitled to know the reasons, which pe
rsuaded an administrative authority exercising judicial power to believe the case of his
adversary in order to enable him to demonstrate before this Court in judicial review th
at the reasons which persuaded the authority to believe the case of his adversary are ei
ther erroneous or based on non-
existent ground, or based on no evidence. It is now well settled law that the power of j
udicial review is basic feature of the Constitution and this Court being bulwark for the
protection of the rights of the citizens poor or rich has to evolve same objective criteria
in the light of sub-
sections (2) and (3) of Section 63 of Act No. 38 of 1959 and Rules framed there under
to check vagaries, negligence, mistakes or high handedness of the State and Judicial E
nquiry Officers relating to removal, suspension and debarring a member of Board for a
period of five years from contesting re- election of the Board.

10. Here, in these cases, quasi judicial power is invested upon a Judicial Enquiry Offic
er of a rank of District Judge, to make impartial enquiry under sub-
section (3) of Section 63 of Act No. 38 of 1959, against an elected person, and State L
egislature has expressed its implicit faith upon such Judicial Enquiry Officer's, finding
s and it mandated the State Government only to pass order in conformity with the findi
ngs sent by the Judicial Enquiry Officer under sub-
section (3) of Section 63 of Act No. 38 of 1959. Thus, while performing his duty as a J
udicial Enquiry Officer, he is required to disclose reasons, in support of his findings so
that the aggrieved party, in a proceeding before this Court, under Article 226 of the C
onstitution of India, may be able to demonstrate that the reasons, which persuaded the
Judicial Enquiry Officer to accept the case of State were either erroneous or based on
no ground, or based on no evidence. To my mind, to record reasons in support of findi
ngs, by Judicial Enquiry Officer, under sub-
section (3) of Section 63, will deter the Judicial Enquiry Officer, to record an arbitrary
finding and it will further work as deterrent to the State Government either, to remove
a member of Board or disqualify him from contesting election of Board, on a perfunct
ory enquiry report of a Judicial Enquiry Officer, in utter breach of faith, reposed by St
ate Legislature, on such judicial Enquiry Officer, to record impartial finding, judicious
ly. It is to be imbibed that from the perusal of the finding on each charge, sent by the J
udicial Enquiry Officer, to the State Government, under sub-
section (3) of Section 63 of Act No. 38 of 1959 must inspire confidence of this Court t
hat Judicial Enquiry Officer has analyzed the evidence adduced by the department, in
support of each charge and defense evidence adduced by the delinquent, in support of
his innocence, impartially and judiciously with reference to salient features of law and
procedure prescribed in this regard. It is well to remember that even though, charge is
admitted by the delinquent, even then, the Judiciary Enquiry Officer, is to follow the
procedure, prescribed under Rule 2 of the Rules framed under sub-
section (3) of Section 63 of Act No. 38 of 1959, by recording finding on each charge w
ith reference to evidence adduced in proof of each charge, what is true in case of admi
ssion of charges by a delinquent elected member of Board and his failure to prove his i
nnocence under Rule (2) of the Rules published on 26-11-
1959, the same principle is applicable in these cases where a delinquent elected memb
er of Board fails to appear on the date fixed before the Judicial Enquiry Officer and he
proceeded to record his findings on each charge ex parte.

11. A conjoint reading of proviso to sub-section (1)(d) of Section 63 read with sub-
section (2) and sub-
section (3) of aforesaid Section reveal that where a member is proposed to be removed
from his membership or he is proposed to be debarred to contest elections for five yea
rs from date of his removal or of recording adverse finding as the case may be, a preli
minary inquiry is to be held either by State Government itself or through such officer o
r authority as it may direct in this regard. The delinquent elected member is entitled to
submit his explanation at this stage of preliminary enquiry. To my mind, holding of pr
eliminary enquiry under sub-
section (1)(d) of Section 63 of Act No. 38 of 1959 by the State Government itself or th
rough such officer or authority as it directs is meant to collect definable evidence agai
nst delinquent member and after taking into account his explanation with reference to t
hose evidence collected during preliminary enquiry if the State Government still propo
sed to remove a member on any of the ground as specified in clause (c) or clause (d) o
f sub-
section (1) as result of the preliminary inquiry mentioned herein above after hearing e
xplanation of the member concerned it can drawn up a statement setting out distinctly
the charge against a member and shall send the same for inquiry and findings of Judici
al Officer of the rank of a District Judge to be appointed by the State Government for t
he purpose of holding inquiry under sub-
section (3) of Section 63 of the Act No. 38 of 1959.

12. A close scrutiny of the aforesaid provisions further lead me to believe that the Stat
e Government is not entitled to initiate a final judicial inquiry against a member of Bo
ard after conclusion of preliminary inquiry merely on basis of gossip, rumour and hun
ch but it has to initiate final judicial inquiry against a elected member of Board in whi
ch it is objectively satisfied with the definable evidence in support of the articles of ch
arges proposed to be framed against a delinquent member. The State Government is re
quired to disclose material evidence in support of each distinct charge, below each cha
rge which it intends to adduce before Judicial Enquiry Officer in proof of such charge.
Unless in support of each charge evidence is disclosed to the delinquent elected memb
er, he will not be able to defend himself effectively. It will not be possible for him to a
sk for inspection of document or a copy of evidence which is sought to be relied upon
against him. I am of the view that State Legislature has made its intention clear by usi
ng expression setting out distinctly the charge against the member which means that w
henever and wherever charges are leveled against a member of a Board by State Gove
rnment and it proposes a final inquiry by Judicial Enquiry Officer within the meaning
of sub-
section (3) of Section 63 of Act No. 38 of 1959, it must disclose oral or documentary e
vidence or both below each charge which it intends to adduce before Judicial Enquiry
Officer giving a reasonable opportunity to the delinquent member to defend himself ef
fectively. I have no hesitation to hold that discloser of oral or documentary evidence or
both below each charge leveled against a delinquent either in a judicial enquiry or un
der a disciplinary inquiry is an integral part of principal of natural justice and fair play
and an argument contrary to it is hereby repelled. It is held that delinquent is entitled t
o claim copies of oral and documentary evidence along with service of charge sheet up
on him.

13. All of us know that in criminal cases the evidence sought to be relied upon by pros
ecution in proof of the guilt of an accused is collated by investigating agency and thes
e evidence collected during investigation are disclosed in charge sheet and evidence in
support of those charges are made available to an accused. To my mind in the present
case holding of preliminary inquiry against a delinquent officer is akin to investigation
for collecting evidence against a delinquent member for holding full fledged judicial i
nquiry against him under sub-
section (3) of Section 63 of Act 38 of 1959 by a Judicial Officer of a rank of District J
udge. It is true that present proceedings are not criminal proceedings but these proceed
ings have civil consequences. The law must now be taken to be well settled that even i
n a administrative proceedings which involves civil consequences the doctrine of natur
al justice must be held to be applicable. Disclosure of evidence in support of each char
ge leveled against a delinquent elected member of Board seems to be an integral part o
f principle of natural justice. It is to be imbibed that the principles of natural justice ar
e in the process of evolution and its components are increasing day in and day out by j
udicial pronouncements to suit the social conditions prevailing in our democratic polit
y. Now, the principles of natural justice do not only include reasonable opportunity of
hearing to a delinquent person but it also casts a duty upon the inquiry officer to disclo
se the evidence and reasons in support of his findings of misconduct or guilt. The inqu
iry officers are also requires to analyze the oral and documentary evidence adduced by
the administration and delinquent in support of their respective claims consciendly wi
th reference to salient features of law. Reasons are link to the conclusions which indica
te application of mind of the inquiry officer to the facts and circumstances of the each
case with reference to the evidence adduced by the parties and salient features of law.

14. It is urged by the learned counsel for the petitioners that in these petitions not only
the principles of nature justice have been violated by the State Government at the time
of framing distinct article of charges but Judicial Enquiry Officer upon whom the Stat
e Legislature and State Government has reposed implicit faith to have fair, free and in
dependent impartial inquiry by recording findings have acted in a laconic manner with
out referring to what explanation have been given by the petitioners to the charges lev
eled against them. In these petitions except writ petition No. 2965/2000, the Judicial I
nquiry Officers have miserably failed to record finding on each charge leveled against
the petitioners against the mandatory provisions of sub-
section (3) of Section 63 and Rules framed there under. From the reading of the findin
gs recorded by Judicial Inquiry Officers in these cases do not inspire confidence of the
Court that the Judicial Inquiry Officers have applied their mind judiciously to the evid
ence before them. Suffice it to say in this regard that reasons are link to the conclusion
and Judicial Inquiry Officers in these cases while recording findings against the petiti
oners failed to give reasons as to how and on what material evidence charges leveled a
gainst the petitioners are found to be proved.

15. It is contended by Mr. M. Rafiq learned Additional Advocate General that that in a
ll the three writ petitions, sufficient opportunities were afforded to the petitioners but t
hey deliberately avoided to avail it before Judicial Inquiry Officers, therefore, the Judi
cial Inquiry Officers have no option, except to proceed ex parte against them. There is
no quarrel, with the arguments advanced by the learned Additional Advocate General
Mr. M. Rafiq but even if the Judicial Inquiry Officers were recording findings ex parte
, they were required to keep in mind mandatory provisions envisaged under sub-
section (3) of Section 63 of Rajasthan Municipal Act, 1959 which mandates to record f
inding on each distinct charge separately even in those cases where petitioners would
have admitted the charges levelled against them in their written statement and they aft
er giving their explanation failed to show sufficient cause as to why they should not be
removed even then the Judicial Inquiry Officers in these cases were required to record
their findings on each matter embodied in the statement of charges separately within t
he meaning of Rule 2 of the Rules framed under sub-
section (3) of Section 63 of the Act No. 38 of 1959. Thus, even in those cases where c
harges are admitted by delinquent even then Judicial Inquiry Officer is required to rec
ord findings on each charge with reference to the evidence adduced in support of each
charge, by Administration. Similarly, where Judicial Inquiry Officers have proceeded
ex parte, that were required to record findings on each charge disclosing the material e
vidence in support thereof. Judicial Enquiry Officers are to record reasons as the State
Government has to pass only consequential orders on the basis of findings remitted by
Judicial Enquiry Officer to State Government. The order passed by State Government
is amenable to writ jurisdiction, hence, the petitioners are entitled to know reasons and
evidence which persuaded the Judicial Enquiry Officer to hold the charges proved aga
inst them to demonstrate before this Court that reasons given in support of findings are
erroneous or based on no evidence. From the reading of the findings of the Judicial In
quiry Officer in these cases the petitioners have succeeded to establish that the Judicia
l Enquiry Officers have recorded finding of guilt against than against the principle of n
atural justice without applying their minds to the facts and circumstances of each case
and without disclosing evidence adduced in proof of each charge which had resulted i
n miscarriage of justice in their cases. The Judicial Inquiry Officers in these cases fail
to disclose on which evidence their findings are based and on what evidence charges l
eveled against the petitioners are found to be proved. The petitioners have succeeded t
o establish violation of principle of natural justice and violation of sub-
section (3) of Section 63 and Rules framed there under.

16. Lastly, it is urged by Mr. M. Rafiq learned Additional Advocate General that if the
Court arrived at a conclusion that principle of natural justice are violated and judicial i
nquiry initiated in these cases are found to be not completed in accordance with Rajast
han Municipal Act and rules framed there under then the case may be remanded to the
State Government to follow the procedure from the stage at which fault was pointed o
ut and to take action according to law. It is submitted by Sri Rafiq that suspension of t
he petitioners should be allowed to be continued till conclusion of enquiry afresh by Ju
dicial Inquiry Officers in support of his aforesaid contention, learned Additional Gener
al Mr. M. Rafiq placed reliance on a decision rendered in the case of State of Punjab v
. Dr. Harbhajan Singh Greasy reported in 1.
17. It is to be imbibed that suspension of a Government servant cannot be equated wit
h the petitioners who are elected members of Board. It goes without saying that suspen
sion in the case of Government servant is not a punishment. It is further true that if the
Government servant is exonerated in the disciplinary proceedings, he is entitled for al
l consequential benefits even without attending his works but in case of petitioners wh
o are elected members of the Board it will affect their reputation and their public life c
ausing irreparable injuries to them which cannot be compensated in terms of money, h
ence, their suspension can not be allowed to remain operative after setting aside the or
ders passed by State Government based on the findings remitted by Judicial Inquiry O
fficers without reference to any evidence in support of their findings. However, if the
State Government found material definable evidence in support of charges leveled aga
inst the petitioners after remand it would be free to place them under suspension by pa
ssing a fresh orders of suspension against them. As a result of aforementioned discussi
on, the instant writ petitions are allowed, orders removing the petitioners from member
ship of the Board and debarring them to contest re-
election of Municipal Board for a period of five years are hereby quashed with a direct
ion to the State Government to frame distinct charges against each of the petitioners di
sclosing the evidence sought to be relied upon in support of each article of charges lev
eled against each petitioner and then thereafter it would be free to appoint a Judicial In
quiry Officer to enquire into the matter in accordance with law. The State Government
will also be free to pass fresh orders of suspension in accordance with law after comm
encement of disciplinary inquiry as discussed in the body of this judgment.
Parties are directed to bear their own costs.

Petition allowed.

Cases Referred.

1. (1996) 9 SCC 322