Ved Prakash Singh vs The State Of Jharkhand
2022 Latest Caselaw 2875 Jhar

                                                    1

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   W.P.(C) No. 5616 of 2021
            Ved Prakash Singh                                           ..... Petitioner
                                              Versus
            1. The State of Jharkhand
            2. The Principal Secretary, Urban Development and Housing Department,
            Government of Jharkhand, Ranchi
            3. The Additional Secretary-cum-Enquiry Officer, Urban Development and
            Housing Department, Government of Jharkhand, Ranchi
            4. Mr. Abhishek Kumar
            5. The State Election Commission, Jharkhand, Ranchi         ..... Respondents
                                               -----

CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR

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            For the Petitioner:         Mr. A. K. Sinha, Sr. Advocate
                                        Mr. Krishna Murari, Advocate

For Respondent Nos.1-3: Mr. Mohan Kumar Dubey, A.C to A.G For Respondent No.4: Mr. Akash Deep, Advocate For Respondent No.5: Mr. Sachin Kumar, Advocate

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12/27.07.2022 The present writ petition has been filed for quashing the notification as

contained in memo No. 4038 dated 17.12.2021 issued by the respondent No.2

whereby the petitioner has been removed from the post of Ward Councilor of

Ward No. 39 of Ranchi Municipal Corporation declaring him unfit for the same in

view of so called enquiry report and recommendation of the enquiry officer (the

respondent No.3) finding him guilty under Sections 18(2), 543(1) & 584(1) of

the Jharkhand Municipal Act, 2011 (hereinafter referred to as 'the Act, 2011')

and Rule 3.11 of the Jharkhand Municipality Elected Representative (Discipline

and Appeal) Rules, 2020 [hereinafter referred to as 'the Rules, 2020']. Further

prayer has been made to quash the entire enquiry proceeding conducted by the

respondent No.3 in connection with Complaint Case No. 02/2020.

2. The brief facts of the case, as stated in the writ petition, is that the

petitioner was elected as a Ward Councilor of Ward No. 39 (Dhurwa) of Ranchi

Municipal Corporation and he took oath of the said post on 27.04.2018. He

received a notice bearing letter No. 2850 dated 01.06.2018 from the Urban

Development and Housing Department, Government of Jharkhand annexing a

copy of complaint dated 08.05.2018 filed by the respondent No.4 seeking

cancellation of his election against which he was asked to file para wise reply of

allegation made against him. The petitioner filed reply to the said letter on

27.06.2018 denying the allegation levelled in the same and also questioning the

identity of the complainant. Thereafter, the Urban Development and Housing

Department transferred the matter to the State Election Commission, Jharkhand

to exercise power conferred under Rule 112 of the Jharkhand Municipal Election

and Election Petition Rules, 2012 [hereinafter referred to as 'the Rules, 2012'].

The State Election Commission accordingly issued notice to the petitioner vide

memo No. 50 dated 20.01.2020, however, again remitted the matter to the

Urban Development and Housing Department keeping in view the amendment

made in Section 18(2) of the Jharkhand Municipal Act, 2011, amended vide

Jharkhand Municipal (Amendment) Act, 2017 whereby the power to adjudicate

the complaint filed under Section 18(1) was entrusted to the Urban

Development and Housing Department, Government of Jharkhand. The

petitioner again received notice as contained in letter No. 2662 dated

28.10.2020 issued under the signature of the respondent No.3 enclosing a copy

of the supplementary complaint dated 08.06.2020 filed before the State Election

Commission under Rule 112 of the Rules, 2012. Thereafter, the petitioner

appeared before the respondent No.3 and denied the allegation levelled against

him. The petitioner again received notice bearing letter No. 1339 dated

31.03.2021 issued under the signature of the respondent No.3 acting as an

Enquiry Officer within the meaning of the Rules, 2020 directing him to appear

before the enquiry committee on 05.04.2021 at 11.30 A.M. The petitioner

accordingly appeared and filed reply/preliminary objection to the same denying

the allegation and challenging the validity of entire proceeding, however, the

respondent No.3 did not consider the same. The petitioner also filed

representation before the respondent No.2 on 12.04.2021 regarding the

irregularities being committed by the respondent No.3 in conducting so called

enquiry under the Rules, 2020, however, the same was not responded.

Thereafter, due to outbreak of second wave of Covid-19 pandemic, the matter

was adjourned from time to time and suddenly the impugned order was passed

on 16.12.2021 (communicated vide memo No. 4038 dated 17.12.2021)

cancelling the election of the petitioner as the Ward Councilor of Ward No. 39 of

the Ranchi Municipal Corporation. Hence, the present writ petition.

3. Mr. A. K. Sinha, learned Sr. counsel for the petitioner, submits that neither

the enquiry report submitted by the Enquiry Officer-the respondent No.3 was

provided to the petitioner nor any show cause notice was issued to him and as

such the impugned order dated 17.12.2021 is vitiated due to violation of the

principles of natural justice. Since there is no finding that the petitioner has

been found guilty of any of the charges for disqualification, as postulated under

Rules 3.1 to 3.16 of the Rules, 2020 on the basis of the evidence led in this

regard, the impugned order dated 17.12.2021 is liable to be quashed. The

complainant had not filed proper complaint with affidavit as mandated under

Rule 4.3 of the Rules, 2020. The respondent No.3 had no power to pass any

order, rather his role was only to make an enquiry in accordance with law and to

submit the enquiry report giving a specific finding on one or the other charges.

The present issue relates to election held in the year 2018 i.e. before

promulgation of the Rules, 2020. The said action of the respondents is

otherwise wholly without jurisdiction since under Rule 112 of the Rules, 2012,

the power to disqualify any Ward Councillor still lies with the State Election

Commission. The grounds of disqualification as contained in Section 584(1) of

the Act, 2011 are not pari-materia to those as postulated under Rules 3.1 to

3.16 of the Rules, 2020. The petitioner had not furnished wrong information in

different paragraphs of Form No. 24 of the nomination form and the

complainant had lodged false complaint against him wherein neither oral nor

documentary evidence was led as per Rule 4.8 of the Rules, 2020 by the

departmental representative rendering the entire proceeding as perfunctory and

hence it patently suffers from the vice of 'No Evidence'. The Principal Secretary,

Urban Development and Housing Department, Government of Jharkhand,

Ranchi (the respondent No.2) has also not applied his independent mind and

has mechanically acted on the basis of the enquiry report. The identity of the

complainant is doubtful as no person was residing at the address provided in the

complaint which was admitted by the enquiry officer in his enquiry report.

4. Mr. Sachin Kumar, learned counsel for the respondent No.5, submits that

the respondent No.2 has passed the order under Section 18(2) of the Act, 2011

finding the petitioner guilty of wilful concealment or suppression of fact and

non-disclosure of criminal antecedent at the time of filing of the nomination

form. Non-disclosure of the offences comes under the corrupt practices as per

Section 18(1) of the Act, 2011. The State of Jharkhand has amended Section

18(2) under Chapter 3 of the Act, 2011 on 19.01.2018 and the power of the

respondent No.5 to disqualify an elected member finding him guilty of corrupt

practices has been curtailed. As per the said amendment, the respondent No.5

does not have jurisdiction to decide the issue of disqualification of the elected

members of the Municipalities, rather the role of the respondent No.5 is advisory

in nature only. Accordingly, in the light of the amendment made in Section 18(2)

of the Act, 2011, the respondent No.5 sent the complaint to the respondent

No.3 for further needful.

5. Learned counsel for the State-respondents (the respondent Nos. 1 to 3)

submits that complaint was filed by one Abhishek Kumar against the petitioner

alleging that wrong information in different paragraphs of Form No. 24 was

given while submitting the nomination form for election of Ward Councillor of

Ward No. 39 of the Ranchi Municipal Corporation and thereafter the notice was

issued to the petitioner which was replied by him. In view of letter No. 2161

dated 04.09.2020 issued by the respondent No.3, all records relating to

Complaint No. 02/2020 filed by the respondent No.4 were sent by the State

Election Commission, Jharkhand to the respondent No.3 vide letter No. 841

dated 11.09.2020 for initiation of proceeding against the petitioner and hence

the respondent No.3 issued notice vide letter No. 2662 dated 28.10.2020 to the

petitioner to appear before the enquiry committee and to submit his defence

statement. After considering the defence statement, the respondent No.3 found

the petitioner guilty of corrupt practice which comes under Rule 3.11 of the

Rules, 2020 and thereafter sent the report to the respondent No.2.

Subsequently, in view of the findings and recommendation of the enquiry officer

i.e. the respondent No.3, the impugned notification dated 17.12.2021 was

issued. The Urban Development and Housing Department constituted two-

member-enquiry committee for hearing the complaint against the petitioner as

well as his defence statement in which the respondent No.3 was nominated as

Enquiry Officer and Jyoti Kumar Singh, Assistant Municipal Commissioner,

Ranchi was nominated as Presenting Officer. The impugned order dated

17.12.2021 has been passed in exercise of power under Section 3.11 of the

Rules, 2020 as well as keeping in view the provisions of Sections 18(2), 543(1)

& 584(1) of the Act, 2011. The respondent No.5 was empowered under Rule

112 of the Rules, 2012 to decide the issue of termination of membership of a

Ward Councillor in the case he was found guilty under Section 18(2) of the Act,

2011, however, vide notification dated 28.07.2020, the Urban Development and

Housing Department, Government of Jharkhand abrogated the said Rule.

6. Mr. Akash Deep, learned counsel appearing on behalf of the respondent

No.4, submits that the respondent No.4 had himself appeared before the

enquiry committee and had produced his Aadhar Card which was duly verified

by the committee. Thus, it is wrong to say that the complainant is a fictitious

person. The respondent No.4 had specifically stated before the enquiry

committee that during the said period he was residing at Delhi and Kanpur and

the said fact was duly recorded in the enquiry report itself. The allegation

levelled against the petitioner is true and there is no infirmity in the impugned

order of his removal from the post of Ward Councillor.

7. Heard learned counsel for the parties and perused the relevant materials

available on record. The petitioner is aggrieved with the enquiry conducted by

the respondent No.3 in connection with Complaint Case No. 02/2020 and his

recommendation made for removal of the petitioner from the post of Ward

Councillor of Ward No. 39 vide order dated 28.09.2021. The petitioner is also

aggrieved with the final decision taken by the respondent No.2 vide impugned

notification dated 17.12.2021 whereby he has been removed from the post of

Ward Councilor of Ward No. 39 of Ranchi Municipal Corporation.

8. Learned counsel for the State-respondents raises a preliminary objection

with regard to maintainability of the present writ petition on the ground that the

petitioner has got alternative/statutory/efficacious remedy of preferring an

appeal before the Secretary/Principal Secretary/Additional Chief Secretary of the

Urban Development and Housing Department, Government of Jharkhand, as

provided under Rule 5 of the Rules, 2020.

9. On the other hand, according to learned Sr. counsel for the petitioner, it is

a well settled principal of law that if the proceeding including passing of an

order has been undertaken in violation of the principles of natural justice or the

decision making process itself is without jurisdiction, the provision of alternative

remedy cannot come in the way to exercise the power and jurisdiction conferred

to the High Court under Article 226 of the Constitution of India.

10. In support of the said submission, learned Sr. counsel for the petitioner

puts reliance on a judgment of the Hon'ble Supreme Court rendered in the case

of Radha Krishan Industries Vs. State of Himachal Pradesh & Ors.

reported in (2021) 6 SCC 771 wherein it has been held as under:-

"27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for

enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

11. In the case of Whirlpool Corporation Vs. Registrar of Trade Marks

& Ors. reported in (1998) 8 SCC 1, the Hon'ble Supreme Court has held as

under:-

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

12. In the aforesaid cases, it has been specifically held that the availability of

alternative remedy does not absolutely bars the exercise of writ jurisdiction

where (a) there is violation of the principles of natural justice (b) when the writ

petition is filed for enforcement of fundamental rights (c) the orders or

proceedings are wholly without jurisdiction (d) the vires of a legislation is

challenged.

13. In the case in hand, the petitioner claims violation of the principles of

natural justice while issuing the impugned notification. The petitioner also

claims that his election can only be challenged by filing an election petition

before the Sub-Judge, Ranchi as has been provided under Section 580 of the

Act, 2011 and as such the impugned notification dated 17.12.2021 issued for

disqualification of the petitioner is vitiated for want of jurisdiction. Learned Sr.

counsel for the petitioner submits that in terms with the ratio laid down in the

case of Radha Krishan Industries (Supra), the present writ petition may be

entertained on aforesaid two grounds in spite of availability of alternative/

statutory/efficacious remedy of preferring an appeal.

14. Reverting back to the present case to analyze as to whether the present

case is a fit one to exercise discretionary jurisdiction under Article 226 of the

Constitution of India.

15. So far as the argument of learned Sr. counsel for the petitioner to the

extent that the entire proceeding for disqualification of the petitioner is vitiated

for want of jurisdiction, this Court finds that a complaint was filed before the

Urban Development and Housing Department, Government of Jharkhand

alleging that the petitioner had knowingly not disclosed his criminal antecedent

as well as the details of movable and immoveable properties at the time of

submitting the nomination form in the election for the post of Ward Councillor of

Ward No. 39, Ranchi Municipal Corporation. The said complaint was

subsequently transferred to the State Election Commission as per Rule 112 of

the Rules, 2012. However, it was again referred to the Urban Development and

Housing Department, Government of Jharkhand in view of the Jharkhand

Municipal (Amendment) Act, 2017 whereby the power conferred under Section

18(2) of the Act, 2011 to adjudicate the complaint made under Section 18(1)

was vested to the said department of the State Government. The allegation so

levelled against the petitioner was treated as 'corrupt practice' and thereafter an

enquiry was conducted against him and the impugned notification dated

17.12.2021 was issued.

16. Earlier also, this Court had an occasion to deal with the provisions of

Section 18(2) vis-a-vis Section 580 as well as other related provisions of the Act,

2011 in Md. Aftab Ansari Vs. The State Election Commission, Jharkhand

reported in 2018 (2) JBCJ 453 wherein the matter of disqualification of a

Ward Councilor on the ground of alleged corrupt practices was in question. This

Court, after considering the aforesaid provisions, has held as under:-

"13. Both Section 18 and 584 of the Act, 2011 speak that if it is found that the elected member is guilty of corrupt practice, then he may be declared disqualified but for the disqualification enumerated in Section 18, the power has been conferred to the State Election Commission under sub-section 2 of section 18 itself which contains non-obstante clause. Thus, it cannot be said that question as to the disqualification can only be determined by the Munsif or Sub-Judge as the case may be. The basic distinction between Section 580 and section 18(2) of the Act, 2011 is that the State Election Commission while exercising power under Section 18(2) of the Act, 2011 can declare a person, before or after the election is conducted, as disqualified on the conditions enumerated in sub-section(1) of Section 18 of the Act, 2011, whereas Section 580 of the Act, 2011 confers power to the appropriate court to declare the election of a candidate null and void on the conditions mentioned in the relevant provisions. The power conferred under Section 18(2) of the Act, 2011 to the State Election Commission and the power to try an election petition by the appropriate Court under Section 580 of the Act, 2011 operate parallel and independent of each other. However, if the State Election Commission assumes power under Section 18(2) of the Act, 2011 with regard to the question of disqualification of a Councilor, the same cannot be put to question merely because some of the said powers of the State Election Commission declaring a member to be disqualified as a Councilor is also one of the grounds for declaring the election to be null and void by way of an election petition."

17. In the aforesaid case, this Court has specifically held that the power

conferred under Section 18(2) of the Act, 2011 to the State Election Commission

and the power to try an election petition by the appropriate Court under Section

580 of the Act, 2011 operate parallel and independent to each other. After

pronouncement of the aforesaid judgment, Section 18(2) of Chapter 3 of the

Act, 2011 has been amended vide notification dated 19.01.2018 and the power

of disqualification earlier given to the State Election Commission relating to the

allegations as mentioned under Section 18(1) has been conferred to the Urban

Development and Housing Department, Government of Jharkhand.

18. The judgment of this Court rendered in the case of Aftab Ansari (Supra)

has been affirmed by the Division Bench of this Court in the case of Md. Aftab

Ansari Vs. State Election Commission & Ors. (L.P.A No. 377 of 2018)

and as such the argument of learned Sr. counsel for the petitioner to the extent

that the Urban Development and Housing Department, Government of

Jharkhand had no authority to pass the order of disqualification against the

petitioner on the alleged non-disclosure of criminal antecedent and other

information in the nomination form, which was treated as a corrupt practice

under Rule 3.11 of the Rules, 2020, is not acceptable.

19. Another argument of learned Sr. counsel for the petitioner that 'corrupt

practice', as defined in Rule 2.8 of the Rules, 2020, itself speaks that those

persons shall be deemed to have committed 'corrupt practice', who do not have

full integrity, devotion of duty and behave in such a manner which is indecent

for a public servant. Learned Sr. counsel for the petitioner assiduously argues

that the allegation against the petitioner does not come under any of the

situations mentioned in Rule 2.8 of the Rules, 2020 and thus the entire

disqualification proceeding initiated against the petitioner for the alleged

'corrupt practice' is not tenable.

20. I do not find any substance in the said argument of learned Sr. counsel

for the petitioner as the definition of 'corrupt practice' given in Rule 2.8 of the

Rules, 2020 is not an exhaustive definition, rather it is to be read with the

definition of 'corrupt practice' given under Section 586 of the Act, 2011 which is

said to be applicable for the purpose of the entire Act. Clause (i) of Section 586

empowers the State Government that it may specify any other practice as

corrupt practice by making rule in this regard. The State Government in exercise

of the said power has defined the 'corrupt practice' in Rule 2.8 of the Rules,

2020. Thus, the same cannot be read in isolation, rather is required to be

considered along with the definition of 'corrupt practice' given under Section

586 of the Act, 2011.

21. Now the next submission of learned Sr. counsel for the petitioner is with

regard to procedural irregularity and violation of the principles of natural justice

committed by the respondents while passing the order of disqualification of the

petitioner.

22. Before coming to the merit of the rival contentions of the parties, it would

be appropriate to refer some of the relevant provisions of the Rules, 2020 which

describe the manner in which the proceeding for disqualification of elected

public representative of urban local bodies has to be initiated and final order is

to be passed.

23. Rule 4.3 of the Rules, 2020 provides that if any complaint is filed against

elected public representative, the allegation made in the complaint petition shall

be verified by the complainant swearing an affidavit and if during enquiry, it is

found that the allegation levelled against the concerned elected public

representative is false, the entire cost of inquiry shall be recovered from the

complainant. Rule 4.4 provides that the merit of the information given in the

complaint shall be verified at the department level. Rule 4.5 provides that if

after departmental review, the concerned public representative is prima facie

found guilty, he shall be given opportunity to submit his defence statement

applying the principles of natural justice. As per Rule 4.6, if after departmental

review of the defence statement, it is found that the allegation levelled against

the concerned elected public representative is grave in nature or comes under

any provision of Rule 3 and such elected public representative is not fit to hold

the post, the matter shall be brought to an enquiry committee constituted by

the Urban Development and Housing Department. Rule 4.7 provides that to

examine the charge against the concerned elected public representative and to

hear his defence statement, two-member-enquiry committee shall be

constituted in which one member shall be the enquiry officer and the other will

be the presenting officer. Rule 4.8 provides that the enquiry committee shall

serve notice to the concerned elected public representative alongwith the

charge and the list of evidence. Rule 4.12 stipulates that after receiving the

inquiry report, the department shall review the inquiry report and take final

decision in the matter. As per Rule 4.13, if the matter is related to

disqualification of any public representative, as per need, the matter shall be

handed over to the State Election Commission for its opinion on the same and

the Election Commission shall give opinion within fifteen days.

24. Now it is to be examined as to whether in case of disqualification of the

petitioner, the procedures, as referred above, have been duly followed.

25. It appears that initial complaint filed against the petitioner before the

Secretary, Urban Development and Housing Department on 08.05.2018 was not

on affidavit, however, the same was entertained and the reply to the same was

called from the petitioner on the allegation levelled against him which was not in

accordance with law. After receiving the reply of the petitioner on 27.06.2018,

the matter was transferred to the State Election Commission as per Rule 112 of

the Rules, 2012, however, by that time, Section 18(2) of the Act, 2011 was

amended vide Jharkhand Municipal (Amendment) Act, 2017, notified on

19.01.2018, and the power to adjudicate any complaint made under Section

18(1) of the Act, 2011 was vested with the Urban Development and Housing

Department. The complainant then filed another complaint on affidavit under

Rule 112 of the Rules, 2012 before the State Election Commission, Jharkhand,

which also issued notice to the petitioner with respect to the allegation made in

the said complaint and on this occasion also, he appeared before the State

Election Commission and denied the allegation. Thereafter, on demand of Arun

Kumar Ratan, Additional Secretary, Urban Development and Housing

Department, Government of Jharkhand, Ranchi, the record was transferred to

the said department by the State Election Commission, Jharkhand and

thereafter the notice dated 28.10.2020 alongwith the complaint petition was

served to the petitioner stating that the record relating to Complaint No.

02/2020 received from the State Election Commission was considered by the

Urban Development and Housing Department and accordingly he was called

upon to file his defence statement.

26. It seems that the said notice was issued in purported exercise of Rule 4.5

of the Rules, 2020 whereupon the petitioner appeared before the said authority

and reiterated his earlier reply dated 27.06.2018. No order as was required to be

passed under Rule 4.6 has been brought on record to the effect that the

defence statement of the petitioner was duly considered and he was prima facie

found guilty of the alleged allegation. The notice dated 31.03.2021 was again

served on the petitioner by Arun Kumar Ratan, Additional Secretary, Urban

Development and Housing Department, Government of Jharkhand, Ranchi and

this time also, he issued notice as an enquiry officer. The respondents have also

not placed before this Court any order of Urban Development and Housing

Department to suggest that the matter of the petitioner was transferred to the

enquiry committee. Surprisingly the same officer i.e. Arun Kumar Ratan, who

had served the notice dated 31.03.2021 to the petitioner under Rule 4.5 of the

Rules, 2020 on behalf of the department, was appointed as the enquiry officer.

This Court further finds that neither charge was framed against the petitioner

nor any opportunity was given to him to produce evidence so as to deny the

allegation levelled in the complaint. The complainant neither produced any

evidence nor examined himself as witness with an opportunity to the petitioner

to cross-examine him before the enquiry officer on the allegation made in the

complaint. The petitioner had raised a preliminary objection with regard to

maintainability of the proceeding before the enquiry officer, who passed the

order dated 28.09.2021 making recommendation for disqualification of the

petitioner for the post of Ward Councillor of Ward No. 39, Ranchi Municipal

Corporation. The petitioner has asserted in the writ petition that the enquiry

report was not served to him and the said averment has not specifically been

denied by the respondents, which indicates another irregularity committed by

the respondent-department. I have gone through the enquiry report which is in

the form of order and thus the enquiry officer has in fact exceeded his

jurisdiction by deciding the issue of disqualification of the petitioner. Being an

enquiry officer, the respondent No.3 was duty bound to confine himself only to

inquire into the matter, take evidence from both the sides and place his report

with a recommendation to the department so as to take an independent and

impartial decision taking into account the inquiry report as well as the evidence

produced during the enquiry.

27. Moreover, after receipt of the enquiry report by the department, the

respondent No.2 passed the final order of disqualification of the petitioner vide

the impugned notification dated 17.12.2021, however, without getting opinion

from the State Election Commission as required under Section 18(2) of the Act,

2011 and Rule 4.13 of the Rules, 2020. No reason has been assigned in the

impugned notification dated 17.12.2021 as to why the department did not find

it necessary to take opinion from the State Election Commission. Interestingly,

the enquiry officer in his report, which is in the shape of an order, has observed

that since the matter was already referred by the State Election Commission,

there was no need to again refer the matter to the State Election Commission

for opinion. The said observation made in the inquiry report/order has no

relevance in the case of the petitioner since there was no provision to refer the

matter to the State Election Commission at the enquiry stage. Moreover, the first

proviso to Section 18(2) of the Act, 2011 explicitly provides that the opinion of

State Election Commission has to be taken before issuing any notification of

disqualification of any member of the Municipality. The 2nd proviso to Section

18(2) makes it clear that if the State Election Commission fails to give its opinion

about the said issue within fifteen days, it shall be deemed that it has no

objection in the matter. Thus, the 1st proviso leaves no scope for the department

but to place the matter before the State Election Commission before issuing the

notification. I am of the considered view that the word 'as per need' mentioned

in Rule 4.13 of the Rules, 2020 does not make it discretionary for the

department either to refer the matter for opinion of the State Election

Commission or not to do so. Rule 4.13 of the Rules, 2020 has to be read along

with Section 18(2) of the Act, 2011 and if any controversy arises in this regard,

the provision of the Act would prevail over the Rule. Moreover, it is a trite that a

purposive construction is to be given while interpreting the provisions of the Act

and Rule. It appears to this Court that the legislature while amending Section

18(2) of the Act, 2011, thought it appropriate that since the power of

disqualification was earlier given to the State Election Commission which was

being conferred to the department, before taking final decision of

disqualification, it should consult the State Election Commission for opinion. Any

deviation therefrom will necessarily be not fulfilling the actual intent of the

legislature.

28. In view of the aforesaid facts and law, it is found that several

irregularities were committed at different stages of the enquiry proceeding

which ultimately ended in disqualification of the petitioner. Thus, I am of the

considered view that the present case is a fit one to exercise the extra ordinary

writ jurisdiction under Article 226 of the Constitution of India.

29. Now the question before this Court is as to whether remanding the

matter to the Urban Development and Housing Department, Government of

Jharkhand for fresh decision will serve any purpose.

30. I am of the considered view that since the manner in which entire

proceeding was drawn by the Urban Development and Housing Department

manifestly suggests a prejudiced mind against the petitioner, remanding the

matter to the said department will not be in the interest of fair justice.

31. The Hon'ble Supreme Court in the case of Shekhar Ghosh Vs. Union

of India reported in (2007) 1 SCC 331, has held as under:-

"14. A post-decisional hearing was not called for as the disciplinary authority had already made up its mind before giving an opportunity of hearing. Such a post-decisional hearing in a case of this nature is not contemplated in law. The result of such hearing was a foregone conclusion.

15. In K.I. Shephard v. Union of India [(1987) 4 SCC 431] this Court opined: (SCC p. 449, para 16) "It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful

purpose."

(See also V.C., Banaras Hindu University v. Shrikant [(2006) 11 SCC 42] .)

16. We are, however, not oblivious of the fact that there is some shift in the concept of principles of natural justice which has been noticed by this Court in P.D. Agrawal v. State Bank of India [(2006) 8 SCC 776] in the following terms: (SCC p. 794, para 39) "... The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula..."

32. It is well settled that the post decisional opportunity of hearing does not

serve the principles of natural justice in given situation. The authority, who

embarks upon a post decisional hearing, will naturally proceed with closed mind

and there is hardly any chance of getting proper consideration of the matter at

such a post decisional opportunity. In the case in hand, it appears from the

conduct of the respondent-department that it acted with the prejudiced mind

while dealing with the petitioner's case which led to his disqualification.

Moreover, there are number of irregularities in the proceedings undertaken by

the respondent-department and thus no useful purpose will be served in

remanding the matter.

33. Under the aforesaid facts and circumstance, the impugned notification

bearing memo No. 4038 dated 17.12.2021 issued by the respondent No.2

cannot be sustained in law and the same is hereby quashed.

34. The present writ petition is accordingly allowed.

35. Consequently, I.A. No. 2810/2022 also stands disposed of.

Satish/AFR                                                         (RAJESH SHANKAR, J)