Himachal Pradesh High Court
Jagat Singh vs State Of H.P. & Ors on 21 July, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2205 of 2015 .
Judgment reserved on: 16.07.2015 Date of decision: July 21, 2015.
Jagat Singh ...... Petitioner
Vs.
State of H.P. & ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1 For the petitioner : Ms. Jyotsna Rewal Dua, Senior Advocate with Ms. Amrita Massey, Advocate.
For the respondents : Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals with Ms. Parul Negi, Deputy Advocate General.
Tarlok Singh Chauhan, Judge By medium of this writ petition, the following relief has been claimed:-
(i) For issuing a writ of certiorari or any other appropriate writ for quashing the annexure P-4 dated 26.3.2015 and annexure P-2 dated 18.2.2015 having been issued in violation of principles of natural justice.
2. The facts, in brief, are that the petitioner in December, 2010 was elected unopposed as Pradhan of Gram Panchayat, Dahan, Block Rajgarh, District Sirmaur and his term was to come to an end in December, 2015. On the basis of some complaints, the petitioner was served with a show cause notice dated 18.2.2015 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...2...
which in turn appears to be based upon some preliminary inquiry initiated by the respondents. A detailed reply was filed to the same on .
18.3.2015. However, vide order dated 26.3.2015 the petitioner was ordered to be placed under suspension.
3. The petitioner has taken exception to the suspension order and challenged the same mainly on the ground that the respondents have not applied their mind to the reply filed to the show cause notice and, therefore, the entire action stands vitiated.
4. The respondents have contested the petition by filing reply wherein it has been averred that the petitioner was duly associated in the preliminary inquiry and even the copy of the inquiry report and other documents were supplied to him. He was further afforded an opportunity of being heard and was properly associated in the inquiry and it is only after receipt of the reply to the show cause notice that he was placed under suspension as the reply was not found satisfactory.
I have heard learned counsel for the parties and have gone through the records of the case carefully.
5. What factors should be considered before placing a Pradhan under suspension and what weight should be attached to the reply filed to the show cause notice issued under the Panchayati Raj Act, has been subject matter of discussion in number of judgments delivered by this Court, some of which are discussed herein below -
(i) In Sarv Dayal vs. State of Himachal Pradesh and others, ILR 1989 (HP) 163, this Court held that the order of ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...3...
suspension should disclose, ex-facie, application of mind on the part of the authority, directing the suspension of a Pradhan .
to the facts of the case on the basis whereof the conclusion of placing the Pradhan under suspension is arrived at. It is apt to reproduce paras 3 to 6 of the judgment, which reads thus:
"3. Section 54(1) of the Act enables the Deputy Commissioner to place a Pradhan under suspension during an inquiry for any reason to be recorded in writing. We had an occasion to deal with this provision in Civil Writ Petition No. 84 of 1989, Parkash Chand vs. State of Himachal Pradesh and another. We have explained the scope of the provision by saying that an order of suspension must contain 'reasons' as known to law. Our decision lays down that the order should disclose, ex-facie, application of mind on the part of the authority, directing the suspension of a Pradhan to the facts of the case on the basis whereof the conclusion of placing the Pradhan under suspension is arrived at.
4. As in the case of Parkash Chand, so also in the present case, all that has been said in the impugned order, by way of recording reasons, is that the explanation offered by the Pradhan was not found satisfactory. This is nothing more than recording of the conclusion by the Deputy Commissioner.
5. In addition to what we have already said in our judgment in Parkash Chand's case, we would like to say that when an explanation is called for from the Pradhan, and is offered by him, the order of suspension should disclose, ex-facie, that the authority directing the suspension of the Pradhan had applied its mind to the circumstances pointed out by the Pradhan against an order of proposed suspension. There need not be an elaborate discussion in the order of the various points raised by the Pradhan, who is given notice to show cause why he should not be placed under suspension. However, some discussion should be there about the defence taken by the Pradhan so as to show that the facts brought by him to the notice of the authority had received consideration at the hands of the authority. The order need not as it were, come in close quarters with the various defences put forward by the Pradhan, yet, it should indicate that the relevant defences were kept in mind by the authority before directing the suspension of the Pradhan.::: Downloaded on - 15/04/2017 18:36:36 :::HCHP
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6. The order dated April 26, 1988 (Annexure P-5) is liable to be quashed on the ground that it does not contain any reason for placing the petitioner, Sarv Dayal, under suspension and we quash .
the same. The writ petition shall stand allowed though we would leave the parties to bear their own costs."
(ii). In Prakash Chand vs. State of Himachal Pradesh and others AIR 1990 Himachal Pradesh 88, it was held that when the Pradhan of a Gram Panchayat was served with a show cause notice for alleged irregularities in his functioning as a Pradhan to which a reply had been given by him by way of an explanation, the suspension order passed by the Deputy Commissioner without giving any reasons to be recorded in writing and without application of mind in considering the explanation offered by him is in contravention of mandatory provisions of the Himachal Pradesh Panchayati Raj Act and hence such a suspension order is invalid. It is apt to reproduce paras 3, 5 and 7 of the judgment, which reads thus:
"3. The first fourteen paragraphs of the office order of January 19, 1989 are just a reproduction of the corresponding paragraphs of the show cause notice. By way of consideration of the explanation, we find the sentence, extracted above, in the impugned office order dated January 19, 1989, in paragraph 15 thereof. It is quite clear that the order dated January 19, 1989 does not disclose any application of mind on the part of the Deputy Commissioner when he purports to have considered the explanation of the petitioner. The order of suspension, to our mind, was passed mechanically without any consideration of the explanation offered by the petitioner. Such an order cannot be upheld.
5. Section 54 (1) contains a mandate for recording reasons before a Panch can be placed under suspension. Failure to record reasons, as known to law, would make it difficult for a Court to find out whether the discretionary power given under S. 54 (1) has been exercised properly or not. As observed by D. Smith in Judicial Review of Administratie Action (4th Edition at page 149):::: Downloaded on - 15/04/2017 18:36:36 :::HCHP
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"......In the absence of reasons, however, it will often be difficult to establish a prima facie case that a wide discretionary power has been improperly exercised."
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7. We are not inclined to uphold the order dated January 19, 1989 (Annexure PD), in so far as it places the petitioner under suspension. For the reasons mentioned earlier, we quash it to that extent, though we leave it open to the appropriate authority to proceed against the petitioner in accordance with law."
(iii). In Avinash Chand vs. The State of Himachal Pradesh ILR 1990 (HP) 995, while dealing with a case regarding removal of the Pradhan it was held that unless the State Government concludes, on the basis of the material before it and giving reasons therefor, that any of the grounds envisaged by the various clauses of Section 54(2) of the Himachal Pradesh Panchayati Raj Act, 1968 is found established against a Pradhan, it cannot pass an order of his removal under that provision. It is apt to reproduce paras 6 to 10 of the judgment which reads thus:
"6. Unless the State Government concludes, on the basis of the material before it and giving reasons therefor, that any of the grounds envisaged by the various clauses of Section 54(2) of the Himachal Pradesh Panchayati Raj Act, 1968 is found established against a Pradhan, it cannot pass an order of his removal under that provision.
7. The fact that the State Government has found one or more of the factors envisaged by Clause (a) to (d) established in a case should appear from the order which it passes. The order, therefore, should not only contain enumeration of the accusation against the Pradhan but should also contain reasons, as known to law, for the conclusion arrived at by the State Government on the basis of the material on the record of the case before it.
8. 'Reasons', to borrow the words of the Supreme Court in Union of India vs. M.L. Kapoor and others (AIR 1974 S.C. 87):
"....are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...6...
decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be .
manifestly just and reasonable..."
9. The requirement for giving of reasons by the State Government, for an order of removal under Section 54 (2), becomes all the more necessary because the order can visit the Pradhan not only with the penalty of losing his elective office for the term for which he is elected but may also visit him with a more drastic consequence of being disqualified for re-election for such period, not exceeding five years, as the Government may fix as is evident from Section 54 (3).
10. Where, as in the case of an order under Section 54(2), the exercise of power is made dependent upon existence of certain exigencies alone, it is all the more necessary that the order should disclose application of mind on the part of the authority concerned to the relevant factors, ex-facie. The principle in this regard is hardly in doubt. Reference need only be made to the decisions of the Supreme Court in R.P. Bhatt vs. Union of India and others (AIR 1986 SC 1040) and Ram Chander vs. Union of India and others (AIR 1986 SC 1173)."
No doubt, in Avinash Chand case (supra), the Court was dealing with the provisions of the Himachal Pradesh Panchayati Raj Act, 1968, which have now been substituted by 1994, but the principles of law as applied yet remain the same.
(iv) A Division Bench of this Court in Jaram Singh vs. The State of Himachal Pradesh and others, Latest HLJ 2006(1) 28, was dealing with the matter under the Himachal Pradesh Panchayati Raj Act, 1994 and while testing the order passed by the competent authority under Section 146(1) and (2) of the Act dealing with the removal of the Pradhan, it was held that the same was bad in law as there was no objective consideration ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...7...
to the reply filed by the petitioner therein. It shall be apt to reproduce para-5 o the judgment, which reads thus:
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"5. A perusal of the order noticed above, clearly shows that there is no discussion regarding the submissions made by the petitioner in his reply. There is nothing in the order which may indicate that there was any objective consideration of the reply filed by the petitioner. What the order noticed is that the reply filed by the petitioner was not satisfactory as it was not based upon facts. There is no indication as to which facts, relied upon by the petitioner in his reply were incorrect. The order being bereft of reasons, is not sustainable in law."
(v).
In Baldev Singh vs. State of Himachal Pradesh and Others, CWP No. 100 of 2013, decided on April 9, 2013, a Division Bench of this Court was dealing with a case where the petitioner therein had been called upon to offer explanation by issuance of show cause notice as to why he should not be placed under suspension with regard to the matters, referred to in the show cause notice. But despite having filed a detailed reply and annexing voluminous documents the petitioner was placed under suspension and no reference was found in the suspension order to those documents nor to the defence taken by the petitioner in the reply filed to the show cause notice and it was held :
"3. The principal grievance of the petitioner, is that, the petitioner was called upon to offer explanation by issuance of show cause notice as to why the petitioner should not be placed under suspension with regard to the matters, referred to in the show cause notice. In response thereto, the petitioner filed his reply. Notably, the copy of the complaint nor the inquiry report of the Audit Accounts Officer (Panchayat), on the basis of which the action was initiated by the Competent Authority, was furnished to the petitioner. Further, no reference is found in the suspension order to those documents nor to the defence taken by the ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...8...
petitioner in the reply-affidavit. It is the case of the petitioner that the inquiry has been initiated as a consequence of suspension order dated 6.12.2012 and for that reason even the said inquiry .
proceeding should suffer the same consequence upon setting aside of the suspension order dated 6.12.2012.
4. The respondents have filed reply-affidavit. We find that a curious stand has been taken in the reply-affidavit. In that, the petitioner was shown complaint along with documents against him during the preliminary inquiry. Further, the petitioner was aware about the contents of the said documents. In other words, the fact that the copy of the complaint as well as the inquiry report, referred to above, was not furnished to the petitioner along with the show cause notice is indisputable. In that case, it would necessarily follow that process of consideration of response of the petitioner and including the show cause notice itself is vitiated. Section 145(2)(A) of the Himachal Pradesh Panchayati Raj Act, 1994 postulates that no office bearer shall be placed under suspension unless he has been given an opportunity of being heard. That opportunity would have been meaningful only if the petitioner was to be furnished with copy of the complaint and the inquiry report, on which, reliance has been placed by the department and being the fulcrum of the proceedings initiated by the department. As a result, we are inclined to set aside the order of suspension while making it clear that this order would not come in the way of the department to consider the reply of the petitioner already filed in response to the show cause notice and giving him liberty to file further reply after copy of the complaint and the inquiry report is furnished to him. After considering all those documents and including the further reply to be filed by the petitioner, the department is free to take appropriate decision, as may be advised, in accordance with law to issue fresh order of suspension."
6. Now reverting to the facts of this case, it would be seen that the petitioner had been served with a show cause notice spelling out six separate and distinct charges which were duly replied to in detail by the petitioner by elaborating and offering explanation to each of the charges independently. However, in the order of suspension, ::: Downloaded on - 15/04/2017 18:36:36 :::HCHP ...9...
save and except for reproducing the charge and thereafter making reference to the preliminary inquiry, it has been held that the reply .
was not satisfactory.
7. A further perusal of the impugned order would reveal that the same is non-speaking in the sense that it does not at all deal with the contentions raised by the petitioner. The self contained reply submitted by the petitioner has virtually not been considered and, therefore, the impugned order can definitely be held to have been passed as a result of non-application of mind.
8. On the basis of the aforesaid observations, it can safely be concluded that the show cause notice in the instant case has been issued only to show that principles of natural justice were complied with, but as a matter of fact, that proved to be a farce and an empty formality, because the reply filed by the petitioner was neither considered nor appreciated. There is no discussion, even brief, to reflect consideration of the cause shown.
9. The necessity of assigning reason has been repeatedly emphasized by the Hon'ble Supreme Court and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Kranti Associates Private Limited and another vs. Masood Ahmed Khan and others (2010) 9 SCC 496 wherein it was held as under:
"47.(a). In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b). A quasi-judicial authority must record reasons in support of its conclusions.
(c ).. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
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(d). Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
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(e). Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f). Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g). Reasons facilitate the process of judicial review by superior Courts.
(h). The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
(i). Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered.
This is important for sustaining the litigants' faith in the justice delivery system.
(j). Insistence on reason is a requirement for both judicial accountability and transparency.
(k). If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l). Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m). It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).
(n). Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o). In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".
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10. Judged in the light of the aforesaid discussion, the .
impugned order cannot be permitted to stand. The decision making process and the decision is totally vitiated and cannot withstand judicial scrutiny. It is settled law that reasons are heartbeat of conclusion. Therefore, in absence of reasons, even the conclusion cannot be permitted to stand.
11. Resultantly, the writ petition is allowed and the impugned order is set-aside. However, liberty is reserved to the respondents to pass an appropriate order after dealing with the reply of the petitioner in accordance with law. Pending application, if any, stands disposed of.
July 21, 2015. ( Tarlok Singh Chauhan ),
(GR) Judge
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