Jaidewa Ram vs State

Mohammad Rafiq, J.—This writ petition has been filed by the petitioner-Jaidewa Ram challenging the order dated 27.12.2012 by which he has been declared disqualified to hold the office of Gram Panchayat, Kayamasar, Panchayat Samiti Fatehpur and consequently removed and the said office has been declared vacant.

Shri R.P. Garg, learned counsel for the petitioner while assailing the validity of the impugned order has argued that impugned order was passed on the basis of enquiry report of Additional Chief Executive Officer, which is vague. Neither any charges have been framed, nor any definite finding has been given. Though the petitioner has proved the payment of nazarana as Nazir with the Government and proof of possession of land taken from Patwari, yet respondents have passed the impugned order on the premise that it has not been proved that the pattas of the alleged numbers have been issued. The record was not available with the Gram Panchayat. It is contended that the enquiry officer has blind foldedly believed the version of the complainant, who is none other than the political rival of the petitioner Om Prakash Rair, who became Sarpanch after him. In fact, this Om Prakash Rair was Sarpanch of the Gram Panchayat for the period from 2005 to 2010 and entire record was supposed to be in his possession. Petitioner was Sarpanch of the Gram Panchayat from 1997 to 2000 and thereafter again elected in 2012. It is owing to the political rivalry between the two groups of the Gram Panchayat that the petitioner has been falsely embroiled in this matter. Learned counsel submitted that the procedure provided for enquiry under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 has been given a complete go bye. Neither any document nor record was produced before the enquiry officer, nor any witness appeared. None of the documents, which have been relied on by respondents were not supplied to the petitioner. Learned counsel has referred to the impugned order and submitted that the Divisional Commissioner has also not given any definite finding as to whether the pattas were forged. He has dittoed the findings of the enquiry officer, that the pattas appears to be forged.

Shri Manu Bhargava, learned Government Counsel and Shri Anoop Dhand, learned counsel for the intervenor submitted that detailed enquiry was conducted by the Additional Chief Executive Officer, who submitted his report on 24.10.2011. In para 2 of which, reference is made to the patta bahi containing 23 names. Names of 5 persons, to whom the petitioner allegedly issued patta is missing from patta bahi. Learned counsel submitted that the land with regard to alleged patta was Charagah or Johad land and that unless there was valid conversion of the land by the competent authority, it could not become available for allotment for present purpose. Learned counsel even referred to the letter dated 24.10.2011 in which allottees themselves have stated that neither they have applied, nor they were issued pattas.

Having heard learned counsel for the parties and perusing the record, I find that the enquiry report, which has been, in fact, made basis for passing the impugned order dated 27.12.2012 is the report submitted by the enquiry officer i.e. Additional Chief Executive Officer on 24.7.2012. The so called report dated 24.10.2011 relied by learned counsel for the respondents is not an enquiry report, but a communication sent by the Additional Chief Executive Officer to Divisional Commissioner, Jaipur for taking appropriate action against the petitioner wherein he has reproduced the preliminary enquiry conducted by the Development Officer. No doubt the reference to patta bahi and the fact of the disputed land being Charagah or Johad land and the fact that some of the allottees have informed the Development Officer that neither they applied before the petitioner, nor they were issued pattas by the petitioner. None of those facts form charge of the show cause notice served upon the petitioner dated 3.2.2012. In fact, the appropriate charges were not framed. The enquiry was not conducted as per the requirement of Rule 22. The documents which are sought to be relied now before this Court, were not produced before the enquiry officer, nor were supplied to the petitioner. No witness appeared to prove those documents. Neither any witness appeared to prove those charges, nor petitioner was granted opportunity to cross examine them. Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 has provided a detailed and thorough procedure for making such enquiry. In order to appreciate the controversy, it is considered appropriate to reproduce the aforesaid Rule.

"Rule. 22. Procedure of enquiry. (1) Before taking any action under Sub-sec. (1) of Sec. 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-sec. (1) of Sec. 38 is necessary, the State Government shall frame definite charge 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.

(3) State Government may after expiry of prescribed period and considering such written statement, appoint an enquiry officer and also nominate any person to present the case before enquiry officer on behalf of the State.

(4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross-examination of witness shall be provided to the opposite side.

(5) Enquiry Officer shall prepare a report on conclusion of enquiry, record his findings on every charge as proved or not proved or partly proved along with the reasons therefor, and submit it to the State Government for final decision.

(6) The provision of the Rajasthan Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1959 and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Chairperson, the Deputy Chairperson or Member of Panchayati Raj Institution, as the case may be, under these Rules.

(7) State Government shall consider the findings of the enquiring officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders. In case of removal, it shall also be published in official gazette."

Perusal of the aforesaid Rule indicates that a thorough enquiry has been insisted upon only with a view to ensure true and faithful compliance of the principles of natural justice. This is evident form the fact that sub-rule (4) of the Rule 22 of the Rules enjoins upon the enquiry officer to consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross-examination of witness shall be provided to the opposite side. It was directed in sub-rule (5) that enquiry officer shall prepare a report on conclusion of enquiry, record his findings on every charge as proved or not proved or partly proved along with the reasons therefor, and submit it to the State Government for final decision. Sub-rule (6) provides that provisions of the Rajasthan Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1959 and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Chairperson, the Deputy Chairperson or Member of Panchayati Raj Institution. It is thereafter that sub-rule (7) provides that the State Government shall consider the findings of the enquiry officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders.

The enquiry report clearly shows that the procedure envisaged in Rule 22 was indeed not followed. The respondents are now seeking to improve their case by relying on the communication sent by the Additional Chief Executive Officer to Divisional Commissioner by describing it as an enquiry report, whereas merely it reproduced the preliminary enquiry submitted by the Development Officer. That enquiry report was relevant only for the purpose of deciding whether or not to hold the full fledged enquiry against the petitioner. That enquiry report cannot be said to be an enquiry report envisaged in Rule 22 of the Rules because even show cause notice issued to the petitioner on 3.2.2012 calling his explanation in the first instance by regular charge sheet containing the charges, does not appear to be issued to him. The impugned order has been passed in utter disregard to the principles of natural justice and breach of mandatory requirement of Rule 22 of the Rajasthan Panchayati Raj Rules of 1996. The impugned order has to be therefore held as arbitrary, capricious and unreasonable being violative of Article 14 of the Constitution of India.

The writ petition is therefore allowed. The impugned order dated 27.12.2012 is quashed and set aside. It would be however open to the respondents to proceed afresh if they are otherwise satisfied to proceed even now in the matter.

With the disposal of the writ petition, the stay applications also do not survive and are accordingly disposed of.