Anant Ram Sharma v. The State Of Rajasthan And Another

P.P Naolekar, J.:— The petitioner was Sarpanch of Gram Panchayat Beda. The petitioner was issued a notice dated 22.1.87 alongwith charge sheet and the petitioner was called upon to show cause why an enquiry under rule 21 of the Rajasthan Panchayat and Nyay Panchayat (General) Rules, 1961 (for short ‘the Rules of 1961’) should not be initiated. The petitioner submitted a reply dated 4.2.87 with a request to the respondents to supply the material particulars and allow inspection of the relevant documents. Thereafter the enquiry was conducted against the petitioner under sub-rule (4) of rule 21 of the Rules of 1961. After the completion of the enquiry, under sub-rule (4) of rule 21, the petitioner was given notice for initiating the proceedings under Rule 22 of the Rules of 1961. The petitioner submitted a reply and by order dated 19.8.88 the charges against the petitioner were found proved and direction was issued to record the finding u/s. 17(4) proviso of the Rajasthan Panchayat Act, 1953 (for short ‘the Act’ hereinafter). The order of recording finding against the petitioner is challenged in this writ petition.

2. It is submitted by the counsel for the petitioner that after the enquiry being conducted as contemplated under sub-rule (4) of rule 21 and after the proceedings being taken up under rule 22, the petitioner has not been supplied with copy of the enquiry report and thus, no reasonable opportunity was given to the petitioner before the order was passed recording the finding u/s. 17(4) and further the order recording the finding does not in any way indicate application of mind of the authority as the order is a non-speaking order.

3. Rule 22 of the Rules of 1961 provides that the State Govt. or the officer or authority referred to in sub-rule (4) of Rule 20 shall consider the findings of the Enquiry Officer. Rule 22 of the Rules of 1961 postulates the position after the completion of the enquiry under sub-rule (4) of rule 21, wherein it has been provided that the State Govt. or the Officer or authority referred to in sub-rule (4) of Rule 20 shall consider the findings of the Enquiry Officer, afford reasonable opportunity to the person charged and thereafter pass a speaking order as it or he may consider proper in the circumstances of the case. ‘Affording reasonable hearing’ contemplates that the person should know the findings which have been recorded against him in the enquiry. Unless and until he knows about the findings, he cannot be expected to defend those findings effectively. Annex. 13 is the document whereby the petitioner has asked for the copy of the enquiry report. Annex. 14 is the document whereby it has been ordered that the petitioner may take the certified copy of the enquiry report. This alongwith the allegations made by the petitioner that no enquiry report was given to him of the enquiry conducted under sub-rule (4) of rule 21, which has not been contradicted, in the return, clearly indicates that the petitioner was not supplied with the copy of the enquiry report after the completion of the enquiry.

4. In a case reported in Rewat Dan v. State of Raj. (1) while considering the provisions of S. 17(4) of the Rajasthan Panchayat Act, 1953 and rule 22 of the Rules, it has been held that for a reasonable hearing, it is essential that a copy of the enquiry report on which the Govt. are to act has to be furnished to the Panch or Sarpanch, as the case may be. The duty to afford reasonable hearing is cast on the Govt. and, therefore, it implies that it is the Govt., who have to furnish the copy of the enquiry report to the Panch or Sarpanch, as the case may be.

5. Non-supply of the copy of the enquiry report prejudicially affects the right of the party to effectively contradict the findings. When the petitioner is afforded reasonable hearing under the statute itself, it should be a hearing in real sense and not the semblance of a hearing. Rule 22 in fact, provides a hearing to the petitioner against the finding arrived at by an enquiry officer under rule 21(4) of the Rules of 1961. Sub-rule (5) of rule 21 requires enquiry officer to forward all the record of the enquiry with his finding to the State Govt. or the officer mentioned therein. This is requirement of law, even when, the findings are recorded in favour of the person charged. Under Rule 22 the State Govt. or the officer mentioned in the rule, may, in a given case, record the findings adverse to the person charged, disagreeing with the finding of the enquiry officer. When Rule 22 arms the State or the authority to arrive at independent finding, irrespective of the findings arrived at by enquiry officer, after taking into consideration findings of the enquiry officer, it is incumbent on the State or authority to supply copy of the enquiry report to a person charged before any decision is arrived at under Rule 22 of the Rules of 1961. Non-supply of copy of the enquiry report would tantamount to denial of reasonable hearing and would result in vitiating the order passed under Rule 22 of the Rules of 1961, for duty to act fairly, just like the duty to act reasonably, was enforced as implied statutory requirement, so that failure to observe it meant that the administrative act or decision was outside the statutory power, unjustified by law and, therefore, void.

6. Rule 22 provides that the State Govt. or the officer or authority mentioned therein shall pass an order as it considers proper in the circumstances of the case, that includes passing of an order exonerating the petitioner from all the findings arrived at in an enquiry. If an adverse order is passed against the Panch or Up-Sarpanch, as the case may be, it will entail a punishment of debarring him from contesting the election for five years period u/s. 17(4)(B) of the Rajasthan Panchayat Act, 1953. The punishment provided is very serious and grave and, therefore, it is expected of the State Govt. or the officer concerned to pass a reasoned order, which will indicate the application of mind by the authority.

7. When the statute requires recording of reasons, there is no scope for further enquiry and it has to be recorded. Where requirement of recording reasons has been dispensed with expressly or by necessary implication, it may not be recorded by administrative authority. But even when the statute does not impose such an obligation, it is necessary for a quasi-judicial authority to record reasons, as it is the only visible safeguard against public injustice or arbitrariness, when the civil consequences of administrative action are grave and its effect is highly prejudicial to the interest and right of the parties, there is more a reason to record reason while passing an order. The reasons are the links between the material on which certain conclusions are based and the actual conclusion. They disclose how the mind is applied to the subject matter for arriving at a decision. Only by this way, it can be demonstrated that the decision arrived at is manifestly just and reasonable. This is the most valuable safeguard against any arbitrary exercise of power by adjudicating authority. When the order entails serious consequences of debarring a person to contest election, there is more a reason that order of the administrative authority is speaking order whereby Court can satisfy itself that order is passed after considering all the relevant facts. When the authority has not at all given any reason, this Court is at liberty to come to the conclusion that the authority had no good reason of reaching to the conclusion it had arrived at.

8. In the present case, the petitioner has filed his reply raising therein various questions that he was not liable for any adverse finding being recorded under the provisions of R. 22 of the Rules of 1961. The reading of the entire order passed by the State Govt. does not show that any of the points raised by the petitioner, was considered. A stereo typed order has been passed, which does not indicate the application of the mind by the authority to the facts of the case before the order was passed.

9. For the reasons stated above, I am of the view that the petitioner was not afforded reasonable opportunity to defend himself and that the order does not indicate application of mind by the authority before passing an order under Rule 22 of the Rules of 1961. The order impugned dated 19.8.88 does not stand the test of law and thus, is set aside. The petition is allowed. In the circumstances of the case, there shall be no order as to costs.