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Judgment
Under challenge is the order dated 18.4.2017, whereby
the Dy. Secretary cum Dy. Commissioner, Enquiries in the
Department of Rural Development and Panchayati Raj on the
instructions of the jurisdictional Minister required the Divisional
Commissioner to send the files pertaining to enquiries into
complaints against the respondents no. 6 & 7 in view of the
objections at the delinquent''s instance pertaining to the
constitution of 4 member Committee for the enquiries and
directing that till further orders the four member Committee
constituted under the Commissioner''s order dated 31.1.2017 to
enquire into the complaints would remain in abeyance.
Mr. Lokesh Sharma, appearing for the petitioner
submitted that the impugned order dated 18.4.2017 is malafide
with the sole intent to obstruct expeditious enquiries against the
respondent no. 6 Murari Lal Sharma and his wife respondent no. 7
Smt. Lalita Devi pertaining to various misconduct attributed to
them while holding the post of Sarpanch at various times. He
prayed that for the aforesaid reason, the impugned order dated
18.4.2017 be quashed and set-aside and a direction be issued that
the 4 member committee constituted by the Divisional
Commissioner under his order dated 31.1.2017 to complete all
pending enquiries against the respondents no. 6 & 7 expeditiously
and in any event within 3 months inasmuch as the post of Sarpanch is for a fixed tenure of only 5 years and respondent no.
6 presently Sarpanch of Gram Panchayat Doodh Walon Ka Baas,
Tehsil Khandela has enjoyed over two and half years of the term.
Mr. Sharma further submitted that aside of stalling the several
enquiries against the respondent no. 6 Murari Lal Sharma and his
wife respondent no. 7 Smt. Lalita Devi, the Divisional
Commissioner in another independent enquiry already completed,
has found, under his order dated 17.4.2017 respondent no. 6
Murari Lal Sharma to be guilty of misconduct and held him liable
to be disqualified to contest elections for a period of 5 years under
Section 38(3) of the Rajathan Panchayati Raj Act, 1994 (for short,
''the Act of 1994''). Yet action on the finding dated 17.4.2017 is
not being taken and respondent no. 6 allowed to continue as
Sarpanch for reasons of political interference masquerading as
revising power under Section 97 of the Act of 1994.
Mr. Anurag Sharma, learned AAG for the State
appearing with Mr. Krishan Veer Singh submitted that the order
dated 18.4.2017 is one in the exercise of administrative powers of
the Minister in the Department of Rural Development and
Panchayati Raj. The allegation of malafide is bald and vacuous. He
submitted that pursuant to the order dated 18.4.2017, all pending
enquiries against respondents no. 6 & 7 have been entrusted to
one Alok Katariya, Executive Engineer (Project) (Headquarters)
Department of Panchayati Raj, Government of Rajasthan on
5.7.2017 who has been required to complete them by
15.11.2017. Mr. Anurag Sharma further submitted that in view of
the serious disputes between the complainant and the Sarpanch,
Gram Panchayat, Doodhwalon Ka Baas, Tehsil Khandela, the
enquiry proceedings become very contentious leading to delays.
The complainant/s and the respondents be directed to cooperate.
It was further submitted that as far as action on the report of the
Divisional Commissioner under his order dated 17.4.2017 is
concerned, the Government is seized of the matter and necessary
orders thereon shall be passed with reasonable expedition.
Heard. Considered.
The appointment of an enquiry officer under Section 38
of the Act of 1994 is in the nature of exercise of administrative
power by the State Government. It is no doubt true that the
Divisional Commissioner as deligatee of the State Government in
the first instance had earlier appointed a 4 member committee
vide his order dated 31.1.2017 for enquiry into various complaints
of misconduct against respondent no. 6 Murari Lal Sharma and his
wife respondent no. 7 Smt. Lalita Devi. However, on objections
having been raised by the delinquents with regard to the alleged
partisanship of the aforesaid committee, the Minister of the Rural
Development and Panchayati Raj Department directed as evident
from the impugned order dated 18.4.2017 that the enquiries by
the four member committee constituted by the Divisional
Commissioner be kept in abeyance and the record be called for.
Now it transpires that subsequently, another enquiry officer has
been appointed under order dated 5.7.2017 with a directive to
complete all enquiries against the respondent no. 6 Murari Lal
Sharma and his wife Smt. Lalita Devi, respondent no. 7, on or
before 15.11.2017. I am of the considered view that in the facts
as obtaining, there is no need to address the challenge to the
order dated 18.4.2017 as in pursuance thereof, another enquiry
officer has already been appointed. Nothing illegal is attributable
to the appointment of the new enquiry officer in view of objections
having been raised against the committee earlier constituted for
the purpose. It is however directed that taking into consideration
that the term of Sarpanch is only for a period of 5 years, the
enquiries into the several complaints against respondent no. 6
Murari Lal Sharma and his wife Smt. Lalita Devi, respondent no. 7,
be expedited and in all eventuality it be completed by 15.11.2017
as already mandataed by the Government. Non cooperation either
of the complainant or the delinquent shall entitle the enquiry
officer to proceed ex-parte and to come to a finding on the basis
of the record obtained from the Gram Panchayat Doodh Walon Ka
Baas, Tehsil Khandela and elsewhere in his discretion.
As far as action on the Divisional Commissioner letter
dated 17.4.2017 against respondent no. 6 Murari Lal Sharma is
concerned, it is directed that the Secretary and Commissioner,
Rural Development Panchayati Raj Department shall take a final
decision thereon within a period of 25 days from today in view of
the fact that over 4 months have already lapsed since the letter of
the Divisional Commissioner recording his findings and making
recommendation thereon. This is so as the delinquent against
whom finding of misconduct has been arrived at by the Divisional
Commissioner on an enquiry duly held under Section 38 of the Act
of 1994 cannot be allowed to continue and enjoy government''s
delays detrimental to public interest. This Court would reiterate
the oft repeated dictum that exercise of statutory discretion is not
a license to arbitrariness or inexplicable delays with reference to
the issue under consideration. The State Government is under an
obligation to exercise its discretion and act on the report
submitted by the Divisional Commissioner on 17.4.2017, in
accordance with law.
Petition stands disposed of accordingly.