Allowed

Bakhori Prasad v. the State of Bihar and Ors.

Patna HC7 Mar 2011CWJC/3269/2011

Case brief

AI extract

What is this about?

The High Court allowed the writ petition challenging the unseating of a Mukhiya. It held that the impugned order was a non-reasoned intimation by the Principal Secretary acting merely as a post office for the District Magistrate. The court set aside the order for violating natural justice and failing to independently apply mind to the charge.

What did the court decide?

The writ application stands allowed and the impugned order dated 3.1.2011 is set aside.

Bakhori Prasad Vs the State of Bihar and Ors. — Service and Employment | Patna HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3269 of 2011 BAKHORI PRASAD . Versus

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THE STATE OF BIHAR & ORS . ----------For the Petitioner:Mr. Svaraj Kr. Ghose, Sr. Adv. Mr. Arup Kr. Chongdar, Adv. For the State:Mr. Tejendra Sinha, Adv.

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07.03.2011 Heard learned counsel for the petitioner and the State.

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The petitioner is the elected Mukhiya of Jaitpur Panchayat, District-Nalanda, aggrieved by the order dated 3.1.2011 passed by the Principal Secretary, Panchayati Raj under Section 18(5) of the Panchayat Raj

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Act (hereinafter referred to as the „Act‟) unseating him from that post.

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Counsel for the petitioner submits that there

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were four charges against the petitioner. The first relates to illegal recovery of money for damaged crops, destruction of official records with regard to the same, irregularities in Diesel subsidy and working at his will

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threatening the Panchayat Secretary and Panchayat Teacher. The petitioner was asked to show cause. He denied the allegations. The comments were called for from the District Magistrate on the cause shown by the petitioner and after considering which by a nonreasoned, non-speaking order abdicating statutory

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powers in favour of the District Magistrate, the impugned order has been passed.

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Counsel for the State prays for time to file counter affidavit. The Court does not consider the same necessary. He next submits that during the police investigation the allegation have been found correct. The law stands settled that a statutory order passed in exercise of public authority, exercising public power, has to be tested on basis of recitals contained in the order. It is not open to the statutory authority to support or explain the order by statements in a counter affidavit of what they meant and why they took a particular view. The law in this regard stands long and well settled far back as (1978) 1 SCC 405Mohinder

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Singh Gill v. Chief Election Commr., , at page 417 :

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“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji :

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“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are

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intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

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Orders are not like old wine becoming better as they grow older.”

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That an F.I.R. may have been lodged and allegations may have been found true, during investigations, are only a prima facie expression of opinion and not a confirmation of the allegation which can come only after a trial. Therefore, if the petitioner denies the allegations, the “reasonable opportunity” Clause provided under Section 18(5) of the Act required

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the Principal Secretary exercising his statutory powers to consider the allegations, the defence, by his own independent application of mind, a brief discussion of the materials against the petitioner, and after analyzing the same by a process of reasoning arrive at his own independent conclusion. That is completely wanting in the order. The necessity for an administrative order to be reasoned has been emphasized by the Supreme Court in (2010) 3 SCC 732, ( Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity ) , more particularly as it is amenable to judicial review holding at paragraph 40 and 41 as follows :-

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“40. It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue,

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the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. “ The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind. ” (Vide State of Orissa v. Dhaniram Luha r⁸ and State of Rajasthan v. Sohan Lal⁹ )

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41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum.”

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There is no discussion or analysis, finding in the impugned order with regard to the allegations in the independent opinion of the statutory authority.

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From the recitals contained in the order, the Court has no hesitation in holding that the statutory authority has completely abdicated his statutory power to act at the dictates of the District Magistrate who furnished his comments upon the defence of the petitioner. This action of the statutory authority is unsustainable completely covered by the decision of the Supreme Court in A.I.R. 1952 SCR ( Commr. of Police v.

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Gordhandas Bhanji) p age-16 as follow:-

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“10. It will be necessary at this stage to determine whether this was a cancellation by the Commissioner on his own authority acting in the exercise of some power which was either vested in him or of which he bona fide believed himself to be possessed, or whether he merely acted as a post office in forwarding orders issued by some other authority. We have no hesitation in reaching the conclusion that this is not an order of cancellation by the Commissioner but merely intimation by him of an order passed and made by another authority, namely, the Government of Bombay.

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11. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

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The order dated 3.1.2011 is not sustainable in law. It is accordingly set aside.

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The writ application stands allowed.

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P. Kumar ( Navin Sinha, J.)

Bakhori Prasad v. the State of Bihar and Ors.

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Bakhori Prasad v. the State of Bihar and Ors.

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