VED PRAKASH SINGH Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present writ petition has been filed for quashing the notification as contained in memo No. 4038 dtd. 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 Ss. 18(2), 543(1) and 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 27/4/2018. He received a notice bearing letter No. 2850 dtd. 1/6/2018 from the Urban Development and Housing Department, Government of Jharkhand annexing a copy of complaint dtd. 8/5/2018 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 27/6/2018 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 dtd. 20/1/2020, however, again remitted the matter to the Urban Development and Housing Department keeping in view the amendment made in Sec. 18(2) of the Jharkhand Municipal Act, 2011, amended vide Jharkhand Municipal (Amendment) Act, 2017 whereby the power to adjudicate the complaint filed under Sec. 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 dtd. 28/10/2020 issued under the signature of the respondent No.3 enclosing a copy of the supplementary complaint dtd. 8/6/2020 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 dtd. 31/3/2021 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 5/4/2021 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 12/4/2021 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 dtd. 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 dtd. 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 dtd. 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 Sec. 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.