Judgment:
1. The petitioner in this art.226 petition dated June 23, 2011 is questioning an order dated June 19, 2011 (at p.60) issued by the Registrar General of Marriages, West Bengal evidently under r.41 of the West Bengal Special Marriage Rules, 2010 and r.35 of the West Bengal Hindu Marriage Registration Rules, 2010.
2. By the order the Registrar General has directed the petitioner not to function as a non-official Marriage Officer and non-official Hindu Marriage Registrar for six months with immediate effect and to submit all pending notices and applications to the office of the Registrar General immediately.
3. Counsel appearing for the petitioner submits as follows. June 19, 2011 when the order was issued was a Sunday. The Registrar General harbouring a grudge against the petitioner who previously moved this Court and has also moved a case questioning the validity of the rules issued the order on a Sunday without stating the urgency. In any case, without first cautioning the petitioner in terms of r.39 and giving the petitioner opportunity of showing cause the Registrar General could not issue the restraining order. The provisions of r.41 of the West Bengal Special Marriage Rules, 2010 and r.35 of the West Bengal Hindu Marriage Registration Rules, 2010 empowered the Registrar General to issue an order directing the petitioner, a non-official Marriage Officer and non-official Hindu Marriage Registrar, to stop the work immediately and to report the matter to the State Government for initiating departmental proceedings.
4. The Registrar General could issue the order if he received credible information that in the capacity of non-official Marriage Officer and non-official Hindu Marriage Registrar the petitioner had committed a misconduct or gross misconduct and had reason to believe that the petitioner had been committing misconduct or gross misconduct, and if there was urgent need to stop such illegal activities.
5. Rule 39 of the West Bengal Special Marriage Rules, 2010 provides for penalties for misconduct or gross misconduct. A non-official Marriage Officer committing misconduct is liable to the penalties mentioned in the rule and one of the penalties is caution.
6. It is evident from the impugned order that it has been issued with a view to initiating departmental proceedings on the grounds that the petitioner has been committing misconduct. Hence the question of giving a caution before issuing the order just could not arise. The petitioner could be cautioned only if in the departmental proceedings he had been found guilty of committing misconduct.
7. The provisions empowering the Registrar General to issue the restraining order do not provide for a show cause notice. The Registrar General was empowered to issue the restraining order without giving the petitioner an opportunity of showing cause. Opportunity of showing cause will be given at subsequent stage if the departmental proceedings are initiated. In the order serious allegations have been made against the petitioner that the petitioner has been issuing certificates without making the entries in the register concerned. Specific cases have been mentioned in the impugned order.
8. Hence it cannot be said that there was no reason for the Registrar to believe that the petitioner had been committing misconduct. Whether the petitioner has actually committed any misconduct will be decided in the departmental proceedings, if initiated. In contemplation of the departmental proceedings and on the grounds stated in the order the Registrar General was competent to restrain the petitioner from working.
9. I find no reason to go by the allegation that the Registrar General issuing the order has issued it for settling a score with the petitioner. On the basis of such a wild allegation proceedings initiated under the rules are not to be stalled in exercise of power under art.226. The order does not suffer from any jurisdictional error, and, in my view, in the face of the serious allegations made in the order the petitioner must face the proceedings initiated against him.
10. For these reasons, the petition is dismissed.
11. No costs. Certified xerox.