Roshani Devi vs State of Rajasthan and Others

Vijay Bishnoi, J.—The petitioner was Sarpanch of Gram Panchayat Dhaba Jhalar, Panchayat Samiti-Suratgarh, District Sri Ganganagar from the year January 2005 to 2010. An enquiry was initiated by the State Government against the petitioner in relation to construction works done in the Gram Panchayat Dhaba Jhalar, Panchayat Samiti-Suratgarh for the period when the petitioner was Sarpanch. The State Government vide order dt. 21.06.2011 has passed an order and has recorded finding against the petitioner while exercising powers under Sec. 38(1)(b) of Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act of 1994" for short). The petitioner has challenged the order dt. 21.06.2011 on various grounds in this writ petition.

A reply to the writ petition has been filed on behalf of the respondents and it is contended that in the facts and circumstances of the case, there is no illegality in passing the order dt. 21.06.2011.

Learned counsel for petitioner has contended that the order dt. 21.06.2011 has been passed without following the procedure laid down under the Rules for conducting enquiry under Sec. 38 of the Act of 1994 and, therefore, same is bad in the eye of law and liable to be quashed and set aside.

Learned counsel for the respondents argued that the charges levelled against the petitioner are serious and, therefore, this Court should not interfere and the writ petition is liable to be dismissed.

I have considered the rival submissions and also taken into consideration the material available on record.

From the perusal of the order dt. 21.06.2011 (Annex.4), it is clear that the State Government has passed the order while exercising powers under Sec. 38(1) of the Act of 1994. Rule 22 of the Panchayat Raj Rules prescribes procedure for conducting enquiry under Sub-Section (1) of Section 38 of the Act. The Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 is reproduced herein below:-

Procedure of enquiry.-(1) 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 office 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.

(3) State Government may after expiry of prescribed period and considering such written statement, appointment an enquiry Officer and also nominate any person to present the case before Enquire 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, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefore, and submit it to the State Government for final decision.

(6) The provisions of the Rajasthan Disciplinary Proceedings (Summoning of witnesses and production of documents) Act, 1959 (Rajasthan Act No. 28 of 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 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.

Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired.

The provisions contained in Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 are mandatory in nature. It is fairly conceded by the counsel for the respondents that before passing of the order dt. 21.06.2011 (Annex.4), the procedure as provided under Rule 22 has not been followed.

In view of the fact that before passing of the order dt. 21.06.2011 (Annex.4) while exercising power under Sec. 38(1) of the Act of 1994, the procedure for enquiry laid down under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 has not been followed, thus, the order dt. 21.06.2011 (Annex.4) is not liable to be sustained and is hereby quashed. However, it is made clear that the respondents are free to proceed against the petitioner under Sec. 38 of the Act of 1994 after following the procedure laid down under Rule 22 of the Rules of 1996 and it is also directed to the petitioner that she may cooperate in the enquiry, if such enquiry is initiated against her.

With these observations, this writ petition is disposed of.