Can't Expect State To Immediately Inquire Into Removal Of Municipality's Members, Without Looking At Facts: Rajasthan High Court
The Jodhpur bench of the Rajasthan High Court recently observed that when several complaints are filed against elected representatives, then State cant be expected to immediately commence inquiry to remove members of a municipal authority under the Rajasthan Municipalities Act without ascertaining the facts first.
In observing so, the high court said that the "fact finding exercise" conducted by the Deputy Director (Regional) in a matter pertaining to allegations of irregularities by the members of Municipal Board, Sagwara, cannot be termed as void.
A single judge bench of Justice Dinesh Mehta in its order said, "According to this Court, in the present day scenario, when a host of complaints are being filed against elected representatives, State cannot be expected to straightaway launch an inquiry under section 39(1) of the Act of 2009 and engage its officers for conducting the inquiry without first ascertaining the facts. In order to avert unnecessary exercise and to ward off frivolous complaints, if the State Government has got done a fact finding exercise through the respondent No.3-Deputy Director, it cannot be said that the same is void or without authority of law".
For context, Section 39(1) of the Rajasthan Municipalities Act lays down the procedure of removal of member of a municipality and provides that before such order of removal is passed by the State Government it should conduct a preliminary enquiry and afford the concerned person an opportunity of explanation.
Background
The order was passed in a plea moved by the elected Chairman of Municipal Board, Sagwara against the state government's order issuing show cause notice to him. The notice was issued after Assistant Director (Vigilance) asked Deputy Director (Regional), Udaipur to inquire into a complaint against the board members.
The Deputy Director had in turn constituted a four member committee on June 5 asking them to furnish a report on the complaint. After receiving the report the Deputy Director forwarded it to the Assistant Director along with a memorandum of charges and Articles of charges. Thereafter a show cause notice was issued.
Pointing to the principle of 'Delegatus Non Potest Delegare' the senior counsel for the petitioner chairman argued that the inquiry was to be conducted by Deputy Director himself and therefore, not only the inquiry report prepared by the committee but even the show cause notice issued by the State was illegal and contrary to law. The principle means that a person to whom something has been delegated cannot delegate further.
Opposing Additional Advocate General (AAG) appearing for the State said that what was delegated by the Deputy Director (Regional) to the committee was not the inquiry under Section 39(1) of the Act, but a fact finding exercise. The inquiry under Section 39(1) of the Act was initiated only by issuing show cause notice to the petitioner.
The AAG argued that if the State found it proper to ascertain the facts of the complaint first, then the same was not illegal since it did not cause any prejudice to the petitioner.
Findings
The court said that since the delegated act was a fact finding exercise, it could not be termed as an infirmity.
“Practical necessity or exigency of the administration requires that the decision making authority who has been conferred with statutory power, be able to ascertain the foundational facts first, before initiating the actual proceedings or inquiry. Such exercise would as a matter of fact, avoid unnecessary harassment to none other than the elected representatives. Delegation to some extent becomes inevitable and an administrative necessity," it said.
The Court further held that the principle of 'delegatus non potest delegare' could not be applied to administrative actions or ministerial acts and it was limited to statutory judicial and quasi-judicial functions. It said that even otherwise, since the inquiry contemplated under Section 39(1) of the Act was not delegated, the process could not be held to be vitiated.
It thereafter dismissed the plea. The court however said that the petitioner is free to file a reply with respect to all the allegations made against him before the competent authority, including the contention that similar inquiry was dropped two years ago. The court further said that in case the petitioner files his response to the show cause notice within 15 days from the high court order then Director-cum-Joint Secretary shall consider it as per law, "before passing any final order".
Title: Narendra Kumar Khodaniya v State of Rajasthan & Ors.
Citation: 2024 LiveLaw (Raj) 277