Barkat Ali vs State of Rajasthan

Vineet Kothari, J.—These writ petitions involving common controversy, are being decided by this common order. The facts are illustratively taken from the SBCWP No. 5481/2014-Barkat Ali & Ors. Vs. State & Ors.

The petitioners were working in different positions in the respondent Panchayat Samiti-Bhopalgarh and they were responsible for execution of various works under the M-NREGA Scheme. Upon certain deficiencies and malpractice found in execution of various works in the respondent Panchayat Samiti-Bhopalgarh (Gram Panchayat-Khangta), the District Collector Jodhpur-cum-Coordinator of the said Scheme, issued charge sheets to the petitioners to initiate disciplinary action against them and called upon them to give their explanation within fifteen days. The petitioner, namely, Barkat Ali, who was working as ''Gram-Sevak'' at the relevant point of time, however, vide Annex. 9 sought some more time to furnish his explanation. But, in the meanwhile, since the respondent-District Collector, Jodhpur vide order (Annex. 8) dated 18.07.2014 directed filing of FIR in the concerned police station against S/Sh. Jhumararam, Ex-Sarpanch, Barkat Ali, the then Gram-Sevak and Mahipal Pichkia, LDC, the petitioners, therefore, have approached this Court by way of present writ petitions.

In the connected writ petition being SBCWP No. 4317/2014-Mahipal Pichkiya Vs. State & Ors., a coordinate bench of this Court granted an ad-interim order on 18.06.2014, during summer vacations, which however after hearing petitioner, Mahipal Pichkiya, who was present in person on 01.08.2014, was vacated by the following order passed by this Court. The order dated 01.08.2014 passed in CW No. 4317/2014-Mahipal Pichkiya Vs. State & Ors. is reproduced herein below:-

"The matter comes up for orders on an application (No. 3476/2014) seeking correction/modification of the interim order dated 18.06.2014 granted by this Court during summer vacations filed by the petitioner. The interim order dated 18.06.2014 can be reproduced herein below for ready reference to the following effect:-

"Heard.

Issue notice. Issue notice of the stay application also. Rule is made returnable on 14th July, 2014. Notices be given ''dasti'' to the learned counsel for the petitioner for service.

In the meanwhile and until next date, the respondents may not take any coercive action against the petitioner pursuant to charge-sheets-Annex. 11 & 12."

The prayer made in the present application (IA No. 3476/14) dated 17.07.2014 seeking the correction/modification of the said interim order is also reproduced herein below for ready reference to the following effect:-

"It is, therefore, respectfully prayed that Your Lordships may be pleased to allow this application and be pleased to modify the interim order directing the respondents not to take any coercive action pursuant to the impugned annexures. Any other appropriate interim order, which is deemed just and proper in the facts and circumstances of the case, may kindly be also passed."

The respondents are yet to file reply to the writ petition as it appears from the record that since after 18.06.2014, the petitioner has not effected the service on the respondents.

The Court perused the impugned charge-sheet issued to the petitioner, who was working as Gram Rozgar Sahayak and presently working as Lower Division Clerk in Gram Panchayat, Khangta, Panchayat Samiti Bhopalgarh, District Jodhpur. The allegation levelled against the petitioner is that though no gravel roads were constructed in the said Gram Panchayat but the bills were prepared and payments were made to the Contractors on the basis of the forged job cards issued under the MGNREGA Scheme.

After preliminary inquiry of the matter, the charge-sheet was served on the petitioner. The petitioner submits that he has submitted a reply/explanation to the said charge-sheet before the District Collector, who is co-ordinator of the MGNREGA Scheme but the copy of the same has not been placed on record.

Though the ad-interim stay order granted by this Court on 18.06.2014 by the co-ordinate bench is of a blanket nature restraining the respondents not to take any coercive action against the petitioner pursuant to the charge-sheets Annexures-11 and 12. As quoted hereinabove, no cogent reason has been furnished by the petitioner seeking any further correction/modification in the interim order. The petitioner has filed the application aforesaid on 16.07.2014. On perusal of the record, this Court finds that apparently there is no confusion or mistake in the interim order requiring any correction or modification. It appears that the petitioner has deliberately delayed the service of the notices upon the respondents in order to prolong the continuation of said interim order so that no coercive action can be taken against him including the enquiry proceedings, now sought to be undertaken by the respondent-Department against him as well as against the other responsible officials in the said Panchayat Samiti.

In the considered opinion of this Court, such an ad-interim order can cause serious prejudice to the respondents and they may even not able to initiate and undertake any further appropriate proceedings after the issuance of the charge-sheets though there is no such interim order restraining the respondents to continue with such an inquiry. Therefore, subject to the final decision of the writ petition after filing of the reply by the respondents once the notices of the writ petition are served on the respondents, the interim order dated 18.06.2014 is vacated.

Issue fresh notices to the respondents. Notices may be given ''Dasti'' to the petitioner/his counsel, returnable within three weeks. After filing of the reply by the respondents, the matter may be listed for final disposed at the admission stage on 27.08.2014."

Learned counsel for the petitioners have urged that a preliminary enquiry in the matter was held by the Social Auditor (Lokpal) of the M-NREGA Scheme, Jodhpur and the complaint against working of the present petitioners, was found to be incorrect and copy of such report in this regard has been placed on record as Annex. 6 (CW No. 5481/14) in Complaint Case No. 67/2013-Ram Narayan Choudhary Vs. Gram Panchayat Khangta, Panchayat Samiti-Bhopalgarh, Jodhpur.

The respondents have since filed a reply to the writ petition contesting the averments made in the writ petition along-with an application under Article 226(3) of the Constitution of India for vacating of stay order dated 18.06.2014, which as stated above, already stood vacated on 01.08.2014 in the case of Mahipal Pichkiya (CW No. 4317/2014).

Having heard the learned counsel for the parties, this Court is of the considered opinion that it would be absolutely premature for this Court to interfere in these matters or investigation by the respondents into the execution of M-NREGA Scheme by the respondent State against the present petitioners, who were working in different positions in the concerned Panchayat Samiti. If time given for furnishing of the explanation was felt to be short by the petitioners, they could always request the learned District Collector, Jodhpur for seeking some more time to furnish such explanation with the aid of proper evidence or their defence in the matter.

Merely because the learned District Collector, Jodhpur, directed filing of the FIR if according to him some criminal offence is made out in the matter, that investigation process cannot be stultified by invoking the writ jurisdiction under Article 226 of the Constitution of India. It is a matter of grave concern for this Court that in a flagship welfare scheme of the State, hugely funded by the Central Government, has resulted in several instances of corruption and misuse of funds, done by the ground level persons, who are responsible for the execution of these works. This Court itself has been flooded with several of these kind of litigations, where at different stages the erring and the responsible officials have sought the protection of this Court in extraordinary jurisdiction seeking to stall the investigation and disciplinary action at the commencement or at the threshold thereof. To say the least, it is a misuse and abuse of such powers of this Court.

The persons so approaching the Court may have their own defence or explanation in the matter, but it is for them to furnish such explanation before the concerned authorities, who are the fact finding authorities, and it needless to say that the concerned authorities are expected in law to look into such explanation and the evidence furnished by them in its true letter and spirit and in objective manner. But, this Court cannot and should not interject in the process and reverse that process merely on the askance and the so-called breach of principles of natural justice, which may appear to be attractive at the first instance but has no foundation to stand upon.

In the present case also, as argued by the learned counsel for the petitioners and sought to be submitted on the basis of some preliminary enquiry reports or audit reports already held in the matter, this Court is satisfied that this investigation or further enquiry process cannot be stopped merely because for some works executed in the said M-NREGA Scheme, some auditor gave a clean chit or ''nothing wrong'' reports. If the petitioners have worked honestly, they should not have anything to hide and should cooperate in the process of investigation and they should not thwart the same, at least not by invoking the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India, where only affidavits and counter affidavits are filed and the evidence to be led is neither proved nor admissible in the evidence as such and that process is yet to take place in the present case.

Therefore, this Court is of the considered opinion that in such cases, invoking of the writ jurisdiction will not be proper and cannot be said to be fair use of discretion vested in the writ court under Article 226 of the Constitution of India. The writ petitions, therefore, deserve dismissal and the same are, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties forthwith.