^j/-/^ra IN THE HIGH COURT OF CHHATTISGAKH AT BILASPUR W.P. (j^No.jA^ 72007 ^^•<^- ^•'•••l'^-y-""-....- Dong ..,/$@^""" {ca- .&w" .y' Safir Ahmed Khan, S/o Shri Kabir Ahmed Khan, Aged about 39 years, R/o Taj Medical Stores, Behind Old Bus Stand, Dongargaon, Distt. Rajnandgaon :.) ^^9'",.-' R^pondents VERSUS 1) 2) 3) State of CHhattisgarh - Through theSecretary, Law & Legislative Affairs, D.K.S. Bhavan, Raipur (C.G.) The Deputy Secretary, Law & Legislative Affairs, D.K.S. Bhavan, Raipur (C.G.) The Collector, Rajnandgaon, Distt. Rajnandgaon (C.G.) Thc Distri6t—&—Sessioa—fadg@?- R3jBandgaon-(&G^T WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH : BILASPUR S.B, : HON'BLB SHRI MANINDRA MOHAN SHRIVASTAVA^ J, WritPetition (Cl No. 149 of 2007 PETITIONER RESPONDBNTS Safir Ahmed Khan Versus State of Chhattisgarh & Ors. Petition u/Article 226 of the Constitution of India Appearance: Shri Sanjay S. Agrawal, counsel for fhe pefitioner. Shri Ajay Dwivedi, Dy. Govt. Advocate for fhe State/respondents. ORAL- ORDBR (Passedon 22.3.2011) Heard. 2. By fhis petition, the petitioner has called in question correctness, legality and validity of order dated 6th January, 2007 (Annexi.ire P-14), by which fhe petitioner has been removed from the office of Notary on proved allegation of misconduct, under the provision of Section 10 (d) ofthe Notaries Act, 1952 (heretnafter referred to as "theActofl952nj. 3. Case of the petitioner is that fhe petitioner was enrolled as an Advocate on the roll of the State Bar Council on 15.2.1996 and he started practicing at Jagdalpur since 24.2.1996 after obtainmg ^SScafiFtes^S-T-^^--,''. X -2- membership of Jagdalpur Bar Association. Thereafter, he shifted to bis hometow7n- Dongargarh in the year 1999 and obtained the membership of Rajnandgaon District Bar Association on 18.8.1999. Accordmg to the petitioner, at fhe time of obtainm^ the membership ofDistrict Bar Association, Rajnandgaon, he had submitted a "No Objection Certificate" in the form of no dues issued by District Bar Association Jagdalpur, dated 26.7.1999. After shtfting to Rajnandagaon, the petitioner applied for change ofhis address ofpractice to tfae then State Bar Coiincil ofM.P.at Jabalpur and a communication dated 27.1.2000 (Annexure P-2) was received, by which the petitioner was informed that his new address has been recorded by the State Bar Council with ettect from 27.1.2000. 4. In the year 2003, fhe petitioner raade an application for appointment of Notary and he was appointed vide order dated 16.10.2003 (Annexure P-3) for a period of 5 years. 5; On 14.4.2005, the petitioner received a letter, in which, certatn queries were made and the petitioner was required to submlt infonnation, which he subnaitted vide his reply Annexure P-5 along wifh experience certtficate issued by the Bar Association Jagdalpur as Annexure P-6. Thereafter, the petitioner received anofher letter dated 6.7.2005 (Annexure P-7), which disclosed that the complaint was made against the petitioner on which fhe 1st Additional District and Sessions Judge had made an enquiry ^H^^^f-i^mswT ^^;^^-'^^^^ /y'y4b. '%. "•«!. I, / & ^.^ I I 1 -3- and submitted enquiry report to the State Govt. By the said letter, the petitioner was required to give explanation on three issues. The petitioner submitted his reply vide Annexure P-8. The petitioner also made application on 20th July, 2005 (Annexure P- 9), requiring supply of enquiry report. The prayer was repeated vide anofher letter dated 30th August, 2005 (Annexure P-10). 6. Thereafter, another notice dated 3rd January, 2006 (Annexure P- 11) was issued to fhe petitioner requiring the petitioner to explatn on tfae fhree issues which were already commnnicated to him vide memo dated 6th July, 2005 (Annexure P-7). The petitioner again submitted his reply on 7.2.2006 (Annexure P-12) and repeated his reply submitted earlier. The petitioner again submitted an application on 20th Februaiy, 2006 (Annexure P-13), repeatinghis prayer for supply of copy of enquuy report. FinaUy, vide impugned order dated 6th Januaiy, 2007 (Annexure P-14), fhe petitioner has been removed froia the olfice of Notary. 7. Leamed counsel for the petitioner assailed the correctness of the order on the submissions that the petitioner's removal under Section 10 (d) of the Act of 1952 is not only in violation of fhe provision contained tn the Notaries Riiles, 1956 (hereinafter referred to as "the Rules of 195ff^ but also in violation of fhe principles of natural justice. Leamed counsel for the petitioner contended fhat fhe enquiry report which was made a basis for proving the alleged charges of misconduct against the petitioner • ^^^^i%t^ ^ .^ ^'t.^ss'"" -4- was never supplied to fhe petitioner winch adversely affected his defence. It is next submitted fhat fhe petitioner was also not supplied copy of fhe complaint which was made a basis for initiating enquiry against hun. According to leamed counsel for the petitioner, the petitioner fulfilled eligibUity criteria for appointment to fhe post of Notary and, fherefore, fhe petitioner was entitled to continue, unless removed on charges of misconduct in an enqulr\r held, in accordance with fhe provision contained in the Rules of 1956. 8. On fhe other hand, leamed counsel for fhe respondents submitted fhat a complaint (Annexure R-l) was received against the petitioner, upon which, an enquiry was conducted fhrough 1st Additional District and Session Judge, Rajnandgaon. In the enquiry, it was found fhat fhe petitioner had not com.pleted 10 years of practice, which is niandatory condition for appointment as Notaiy, as provided iinder Rule 3 of the Rules of 1956. It was also found that the petitioner was also engaged in other bustness and profession, at fhe same tirae practicing as an Advocate. Therefore, his licence has been cancelled. Leamed counsel for the respondents further submitted fhat the decision taken by the Qovt. to remove fhe petitioner from fhe office of Notary on tfae aUegation of misconduct is supported by the report of 1st Addl. District & Sessions Judge, Rajnandaon (Annexure R-2) and copy of letter dated 28.12.2005 received from the office of Nagar Panchayat, Dongargaon (Annexure R-3). Leamed counsel further -5- submitted that in any case, the petitioner had not completed 10 years of mmimum practice reqnirement-and, therefore, fhe petltioner is not entiUed to any relief. His anofher submission is that the manner in which the petitioner had obtained the membership of the District Bar Association, Rajnandgaon, without there being any "No Dues Certificate" from District Bar Association, Jagdalpur, made the petitioner liable for action of removal from ofiice ofthe Notary. It is lastly submitted fhat in any case, during the pendency of the petitioner, the period of tenure of 5 years has already come to and end and fherefore, fhe petitioner is not entifled to any ofher relief. 9. A Notary can be removed from his office and his name may be struck-ofl' from fhe register if he has been fonnd, upon enquiry held ui fhe prescribed manner, to be giulty of such professional or ofher misconduct as, in fhe opinion of Govt., renders him unfit to practice as Notary as provided under Section 10 (d) of the Act of 1952. Rule 13 of the Rules of 1956, prescribed detail procedure required to be adopted in fhe matter of enquiry into the allegation of professional or other misconduct of a Notary. Therefore, before a Notary is removed, fhe procedz.ire prescribed under Rule 13 of the Rule of 1956 is required to be followed. 10. The 1st notice which was issued to fhe petitioner on 12.4.2005 (Annexure P-4), states fhat certain objections have been made against fhe appointment of tfae petitioner and ftie petilioner is ^.^fcriA^; -6- E reqiured to submit certain information. The 2nd notice dated » 6.7.2005 (Annexure P-7) fhen required the petitioner to give an explanation on the enquiiy report submitted by fhe 1st Additional District 8s, Sessions Judge in the matter of comploint against fhe petitioner. The 3rd notice dated 3rd January, 2006 (Annexure P- 11) was raerely repetition ofthe earlier notice dated 6.7.2005. 11. From fhe repty of the respondents, it is revealed fhat the enquiry against the petitioner was initiated on certain coiuplaint. Rule 13 (4) of fhe Rules of 1956 mandatorily requires the appropriate Govt. to send a copy ofthe com.platnt to ftie Notary at his address as entered in fhe Register of Notaries. The petitioner has raised spectfic groiind in the writ petition alleging that copy of complaint was not fumished to him as requtred under Section 13 (4) of fhe Rules of 1956. There is no denial offhds aUegation. 12. The provlsion contained m Rule 13 (9) of the Rules of 1956 p^o^7ide that a Notary who is proceeded against shall have ri^it to defend himself before the competent authority either in person or through a legal practitioner or any other notaxy. A copy of report (Annexure R-2) shows that the competent aufhority held enquiry, \ recorded statements and also obtained various documents to come to fhe conclusion that fhe allegations against fhe petitioner are proved. The said enquiiy report constituted an adverse material against the petitioner. Moreover, ftiougt-i fhe petitioner has very speciflcally raised a ground in the petition that he was a"".^-'i-» ^. f i,...,;aSte. '>. v "vy "'"'—<&•!''-'••" -7- R not given an opportunity of hearing by fhe enqiiiring authority, resulting in denial of right of defence as provided iinder Rule 13 (9) of tfae Riiles of 1956, the respondents in their reply have vaguely stated fhat sufficient opportunity of hearing was afforded to fhe petitioner by the 1st Additional District &Sessions Judge, Rajnandgaon. A perusal of the report (Annexure R-2) does not disclose that the petitioner was also allowed to participate in the enquiry by the competent authority. In fhe entire report, there is no whisper regarding petitioner taking part in the enquiry, allowed to cross-examtne or allowed to lead his defence witness or documents. Therefore, it is diflElcult to accept the version of the respondents that the petitioner was given a ri^it to defend himself before the competent authority as mandatorily required under Rule 13 (9) offhe Riiles of 1956. 13. Therefore, there ai'e fhree vitiating factors, which vitiate the whole enqiiiry, they are: (a) Copy of the complaint as required under Rule 13 (4) of the Rules of 1956 was not supplied to the petitioner. (b) Petitioner's right of defence as provided under Rule 13(9) ofthe Rules of 1956 was violated. jc) Enquiry report which was repeatedly demanded by the petitioner was not supplied to htra. 14. There is once more aspect of fhe matter which needs to be highlighted. In none of fhe three notices fhere was any allegation !? fl ..' AK^>- * •:. -,*-'^'<"--' against the petitioner of havmg indulged in any misconduct while working as Notary. In the retiim filed by fhe respondents, it has been stated that one of fhe groiind for removal of the petitioner was that the petitioner engaged himself in some business. It is thus clear that one of fhe major grounds to hold the petitioner guitty of misconduct was never communicated to fhe petitioner; he was never put to notice; neitfaer any copy of notice given to him, nor his reply was obtained on fhis aspect. 15. As far as the submission of leamed counsel for fhe respondents that as (he petitioner had not completed 10 years of practice, he was not entifled to be appointed and the mipugned order is, ia effect, canceUatlon of appotntment, cannot be accepted. Whether the petitioner was appointed as a general category candidate or a candidate belonging to other backward classes, as asserted by leamed coiinsel for the petitioner, itself is a matter of enqiiiry and at fhis stage, it cajonot be said to be a forgone conclusion so as to apply "unless foriualily" theory as propounded by the Supreme Court in the case of AUgarh Muslim University Sa Ors. Vs. Mansoor All Khan1. 16. In the conclusion, I find fhat the enquiiy is vitiated on account of the violation of mandatory provision contatned m Rule 13 (4) 8s Rule 13 (9) of fhe Rules of 1956, as also violation of pmieiples of natural justice on account of non-fumishing of enquiry report to (2000) 7 SCC 529 ^'^•-a-.» "l^ I '®'^'' 19 lla-y "t'9HCT^"~ -9- the petitioner. The impugned order ofremoval dated 6th January, 2007 (Aiuiexure P-14), therefore, is declared iUegal and is hereby set aside. As fhe petitioner's teniire has come to an end, the stigma shaU not come ui the way offhe petitioner in consideration of his candidature for renewal/appointment as Notary in accordance with the provision of the Act 8s Rules. 17. The petition is accordingly allowed. sN Praveea Sd/- Manindra Mohan Shrivastava Judge ?.^^^^^-3^^^^^^^^^^^^^^^^^^^^^^^^^u, -^^^ fi~~~