Chandra Prakash vs State of Rajasthan and Others

Mathur, J.—This appeal Is directed against the judgment of the learned single Judge dated 23-6-1999 dismissing the writ petition seeking direction to quash article of charges dated 16-4-1999 and the order of suspension of the same date.

The admitted facts are that the appellant-writ petitioner (hereinafter referred to as ''petitioner'') was elected as Sarpanch of the Gram Panchayat, Tinwari, District Jodhpur, in the year 1995. The Ward Panchas of the said Gram Panchayat viz. S/Shrl Nemlchand Parihar, Ramswaroop Sonl and others lodged the complaint dated 1 -5-1998 before the Chief Executive Officer. Zila Parishad, Jodhpur against the conduct of the petitioner. Another complaint was filed by the Ward Panchas S/Shri Ramswaroop and Ganesh Ram on 2-5-1998. Petitioner also filed a complaint on 4-5-1998. On receipt of the said complaints, the Chief Executive Officer by order dated 11-5-1998 directed Shri Chhotu Singh, Panchayat Extension Officer, to enquire into the complaints. The Extension Officer summoned the entire record of the Gram Panchayat and recorded the statements of various persons including the petitioner. The petitioner participated in the enquiry and submitted number of documents in his defence and cross-examined the witnesses. The Enquiry Officer submitted a detailed report to the Chief Executive Officer. He found the petitioner prima facie guilty of serious financial irregularities causing, immense loss to the tune of lacs of rupees to the Gram Panchayat. The Chief Executive Officer after considering the report under Communication dated 12-4-1999 recommended the State Government to initiate the process for removal and suspension of the petitioner. The State Government on receipt of letter and report of the preliminary enquiry, formed an opinion that action under Sub-section (1) of Section 38 of the Rajasthan Panchayati Raj. Act, 1994, hereinafter referred to as ''the Act.'', is necessary and, therefore, framed definite charges and communicated the same to petitioner under memo dated 16-4-1999 (Annexure 1). The petitioner was asked to submit his reply on or before 30th April, 1999. On the same day, by order dated 16-4-1999 (Annexure 5), he was put under suspension.

It appears from the order of the learned single Judge that petitioner gave up the case against the order dated 16-4-1999 (Annexure 1) i.e. framing of charges and he restricted his submissions only for quashing the suspension order dated 16-4-1999 (Annexure 5). Dealing with the contention of the petitioner that the Executive Officer had no Jurisdiction to hold a preliminary enquiry as there is no order delegating any authority to him to hold a preliminary enquiry, the learned single Judge expressed that it was not necessary to go into the question for the reason that even if the Chief Executive Officer under Rule 336 (4) of the Rajasthan Panchayati Raj Rules, 1996, hereinafter referred to as ''the Rules'', was not competent to hold preliminary enquiry, the report/ documents filed by him, would fall in the category of having information ''otherwise''. The learned single Judge relying on the Full Bench decision of this Court in Bhura Lal v. State of Rajasthan reported in (1988) 1 RL R 945, held that in a matter of suspension as an interim measure considering the administrative exigency, the requirement to follow the principles of natural justice is not attracted. On facts, the learned Judge held that before passing the order of suspension, it cannot be said that the State Government had not followed the procedure or not acted in a manner as provided under the statutory provisions. Inview of the finding, the learned single Judge rejected the writ petition, however, directed the respondents to conclude the enquiry and pass an appropriate order strictly in accordance with law within a period of two months from the date of the order.

It is contended by Mr. U.P. Joshi, learned counsel for the petitioner, that the learned single Judge has committed serious error of law in not appreciating that for taking action u/s 38(4) of the Act, preliminary enquiry is a sine qua non. It is further submitted that undisputedly, the State Government did not pass any order as envisaged under Sub-rule (1) of Rule 22 of the Rules authorising the Chief Executive Officer or any other person to hold a preliminary enquiry under Sub-rule (1) of Rule 22 of the Rules.

In order to appreciate the contention of the learned counsel for the petitioner, it will be convenient to read Section 38 of the Act and Rules 22, 320 and 336 of the Rules, which are reproduced as follows :

Rajasthan Panchayatt Raj Act. 1994

Removal and suspension.-- (1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of Panchayati Raj Institution.

xxxx xxxx xxxx xxxx (4) The State Government may suspend any member including a chairperson or a deputy chairman of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceedings of the Panchayati Raj Institution concerned while being under such suspension."

Rajasthan Panchayati Raj Rules. 1996.

Procedure of enquiry. -- (11 Before taking any action under sub-section (1) of Section 38, where on its own motion or upon any complaint the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month.

(2) If, upon consideration of the report received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-section (1) of Section 38 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson, Deputy Chairperson or member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit a written statement within one month admitting or denying the allegations, giving his defence, if any and whether he desires to be heard in person."

Rule 320.-- Officer Incharge of Panchayati Raj. -- (11 Chief Executive Officer shall act as Office Incharge Panchayati Raj at the district level for general superintendence, guideline and direction of all Panchayati Raj Institutions in the district.

Rule 336. -- Other powers and functions of the Chief Executive Officer. -- In addition to the powers and duties laid down in Section 84 of the Act, the Chief Executive Officer shall assist the Pramukh in discharge of functions specified in Rule 36 and perform additional duties and exercise powers as under:--

(1) He shall act as Officer Incharge Panchayati Raj for the district and shall provide a necessary guidance and advice in the implementation of rural developmental schemes and programmes in the district.

xxxx xxxx xxxx xxxx (4) Take action for removal of member or conduct preliminary enquiry in case of disqualification coming to his knowledge and conduct special meeting when no confidence motion is received against Panch/Sarpanch, Pradhan/ Up -Pradhan."

It will thus be seen that Sub-section (4) of Section 38 empowers the State Government to suspend a Sarpanch at the stage when enquity for removal has been initiated I.e. definite charges have been framed and communicated. Sub-rules (1) and (2) of Rule 22 envisage formation of opinion for action u/s 38(1) on the basis of report of the preliminary enquiry. Obviously, the preliminary report provides the foundation and the material for framing charges. Sub-rule (1) provides that State Government may ask the Chief Executive Officer or any other officer to conduct the enquiry. In the instant case, though the report of the preliminary enquiry has been submitted by the Chief Executive Officer but as it has been framed without asking by the State Government. Thus, the contention has been raised that such report is not a preliminary report as contemplated by Sub-rules (1) and (2) of Rule 22 consequently the charges framed are non est, being without legal foundation and so the order of suspension is illegal and void. The contention appears to be attractive at the first blush, but on careful consideration, we are of the view that it is of no substance.

A conjoint reading of the above extracted provisions will show that before a decision is taken to initiate a regular enquiry u/s 38 (l)for removal of Sarpanch, the State Government is required to collect necessary informations for which the Government may ask any officer including the Chief Executive Officer, The enquiry known as preliminary enquiry is essentially a fact finding enquiry. The Chief Executive Officer being officer incharge of the Panchayat Raj in the District, as described by Rule 320 is empowered to take action for removal of Sarpanch including conducting preliminary enquiry. The Rule 22 cannot be read in a manner to confine preliminary enquiry only by a officer including Chief Executive Officer, who has been asked to do so by the State Government. The procedure is meant to further the ends of justice and not to frustrate the same. It is significant to notice that State Government can form requisite opinion for initiating enquiry u/s 38(1) even on information "otherwise" than report of the preliminary enquiry. It is difficult to understand if action can be taken against a Sarpanch u/s 38(1) on the basis of informations available other wise, why a report of the Chief Executive Officer cannotbe looked into simply because he was not asked by the State Government to do so. The Chief Executive Officer 4 empowered to conduct preliminary enquiry against a Sarpanch for his removal under Rule 22 (1) as well as under Rule 336(4) Thus, we find no fault with the stand taken by the State Government under Annexure R 10 dated 28-5-1999 and Annexure R/11 dated 2-6-1999 that Rule 336(4) empowers the Chief Executive Officer to hold a prellminary enquiry.

We are also in agreement with the view of the learned single Judge that even other wise, the report/documents filed by the Chief Executive Officer would fall in the category report received "otherwise". The learned single Judge has dealt with this aspect in great detail. If such material is not permitted to be used, the very purpose of using the word "otherwise" by the legislature shall be defeated. If the State Government can consider the material received from any other source, we fail to understand why the material received from the Chief Executive Officer can? not be considered.

We are also in agreement with the view expressed by the learned single Judge that looking to the gravity of the charges, it is not warranted that the writ jurisdiction should be resorted to in the aid and assistance of the petitioner.

In view of the aforesaid, we find no merit in the special appeal and the same is dismissed in limine.