Andhra HC (Pre-Telangana)
S.M.D. Kiran Pasha vs The Secretary To Government Of Andhra ... on 25 June, 1991
Equivalent citations: 1991(2)ALT436
ORDER Parvatha Rao, J.
1. In this Writ Petition the petitioner seeks quashing of G.O. Ms. No. 244 M.A. dated 3-5-1991 issued by the Government of Andhra Pradesh in exercise of the powers conferred on it by Sub-section (1) of Section 60 of the Andhra Pradesh Municipalities Act, 1965 (hereinafter referred to as the Act') removing the petitioner from the office of Chairman, Municipal, Council, Cuddapah, with immediate effect.
2. The Petitioner questions the legality of the said G.O. and the Notification appended thereto on the ground, among, others, that it is not a speaking order and does not give reasons for taking the said action as required by Sub-section (2) of Section 60 of the Act. The learned counsel for the petitioner submits that there is no mention whatsoever in the said G.O. as to whether any of the charges or allegations against the petitioner were proved and that the statement therein that the explanation of the petitioner was found unsatisfactory does not satisfy the requirements of Sub-section (2) of Section 60. Section 60 of the Act is as follows : --
"Government's power to remove chairman or vice Chairman :--
(1) The Government may, by notification in the Andhra Pradesh Gazette, remove any chairman or vice chairman who, in their opinion wilfully omits or refuses to carry out or disobeys the provisions of this Act or any rules, bye-laws, regulations or lawful orders issued thereunder or abuses his position or the powers vested in him.
(2) The Government shall, when they propose to remove a chairman or vice-chairman under Sub-section (1), give the chairman or vice-chairman concerned an opportunity for explanation, and the notification issued under the said Sub-section shall for contain a statement of the reasons of the Government for the action taken.
(3) Any person removed under Sub-section (1) from the office of chairman or from the office of vice-chairman shall not be eligible for elect ion to either of the said offices until the date on which notice of the next ordinary elections to the council is published in prescribed manner."
Sub-section (2) of Section 679-B of the Hyderabad Municipal Corporations Act, 1955 and Sub-section (3) of Section 50 of the Andhra Pradesh Gram Panchayats Act, 1964 are similar to Sub-section (2) of Section 60 of the Act. The expression "a statement of the reasons for the action taken" occurs in those provisions also. An appeal to the Government is also provided under Sub-section (4) of Section 50 of the Andhra Pradesh Gram Panchayats Act, 1964.
3. A reading of Sub-section (1) of section 60 of the Act shows that the Government may remove any chairman or vice-chairman only if it forms an opinion as regards the matters specified therein. Several matters are specified -- it may be wilful omission by chairman or vice-chairman to carry out the provisions of the Act or any Rules, bye-laws, regulations or lawful orders issued thereunder ; it may be refusal by him to carry out or disobey the same ; it may be abuse of his position ; or it may be abuse of the powers vested in him. The opinion formed by the Government may be as regards one or more of these matters. As regards whatever specified matter the opinion is formed, the section contemplates a clear enunciation of the opinion formed making it clear in respect of what specified matter or matters the opinion is formed. That is the pre-condition for the exercise of the power under Sub-section (1) of Section 60 by the Government. Sub-section (2) of Section 60 requires that before an action is taken by the Government under Sub-section (1), the chairman or vice-chairman concerned should be given an opportunity for explanation. It is obvious that the opportunity contemplated should be real and reasonable. It is the Government which should give the opportunity and as it is the Govt. which should form on opinion and take action under Sub-section (1), the Govt. should consider the explanation given by the chairman or vice-chairman concerned and if the Govt. chooses to take action and issue the unsatification under Sub-section (1), the notification should contain "a statement of the reasons of the Government for the action taken". I am of the view that mere laconic statement that the explanation submitted by the chairman or the vice-chairman is unsatisfactory, by no stretch of imagination, can amount to the statement of the reasons contemplated by Sub-section (2) of Section 60. That explanation submitted by the chairman or vice-chairman is unsatisfactory can be given as a reason in a cyclostyled or parrot-wise way in every case and if that is what is contemplated by Sub-section (2) when it requires a statement of reasons for the action taken to be given, I am of the view that the requirement becomes otiose--it will not be satisfied in the real sense of it. Whatever the nature of the exercise of power by the Government under Sub-section (1) of Section 60--Whether quasi-judicial or administrative--the action of removal of chairman or vice-chairman is punitive in nature and undoubtedly results in serious consequences to and effects the reputation of the person removed especially when both chairman and vice-chairman are elected, the former directly and the latter by the elected councillors. Moreover, when a chairman or vice-chairman is removed under Sub-section (1) of Section 60, he is visited with disqualification for election by virtue of Sub-section (3) of Section 60. It is in this context that the requirement of a statement of reasons in Sub-section (2) has to be interpreted. I am of the view that interpreted in that light, the statement of reasons required by Sub-section (2) should spell out how the Government applied its own mind to the explanations given by the chairman or vice-chairman and should also spell out the specific reasons on the facts of the particular case for the action taken. I am also of the view that it should spell out the specific matter in respect of which the opinion was formed under Sub-section (1) of Section 60.
4. I am of the view that even in the absence of a specific statutory provision as regards the giving of reasons, in view of the fact that the order of removal of chairman or vice-chairman in Sub-section (1) of Section 60 undoubtedly results in serious consequences and also affects the reputation of the person removed as stated above, clear and specific reasons for taking such a serious action of removal have to be clearly stated in the order or notification of removal. A Constitution Bench of the Supreme Court in S.N. Mukherjee v. Union of India, after referring and discussing in detail a catena of cases, observed as follows :
"The decisions of this Court referred to above indicate that with . regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that requirement of recording reasons would (i) guarantee consideration by the authority ; (ii) introduce clarity in the decisions ; and (iii) minimise chances of arbitrariness in decision -- making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency.
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should de as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage."
The Constitution Bench in that case also observed that "the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities". The Supreme Court held long back that the line between administrative action and quasi-judicial action was very thin and rubbed out to a vanishing point and that principles of natural justice were also attracted to administrative actions resulting in civil consequences. (State of Orissa v. Dr. (Miss) Binapani Devi, A.K. Kraipak v. Union of India, Maneka Gandhi v. Union of Indian more recently in K.I. Shephard v. Union of India, . Viewed in this context also, the requirement of "statement of reasons" in Sub-section (2) will have to be interpreted in a wider sense so as to satisfy the requirements of the principles of natural justice or fair play.
5. Admittedly, in this case several charges or allegations were made against the petitioner and explanations were given by the petitioner in respect of each of the charges or allegations. The statement of reasons in the notification should clearly spell out how the Government applied its mind to the explanations given by the petitioner. A reading of the G.O. and the Notification appended thereto impugned in this Writ Petition does not bring out what reasons prompted the Government for taking action against the petitioner. On this ground alone, the Writ Petition will have to be allowed. As an express statutory requirement under Sub-section (2) of Section 60 of the Act that the notification under Sub-section (1) of the said section shall ''contain a statement of the reasons of the Government for the action taken" is not complied with and as there is no explanation whatsoever for not giving the reasons for the action taken, it is but just that costs should be awarded to the petitioner.
6. The Writ Petition is therefore allowed with costs. However, in view of the fact that the said G.O. No. 244 M.A. dated 3-5-1991 and the notification appended thereto are quashed for non-compliance of the statutory requirement of Sub-section (2) of Section 60 of the Act, it is made clear that it is open to the Government to initiate the action afresh against the petitioner under Section 60 of the Act in accordance with law. Advocate's fee Rs. 250/-.