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2006 DIGILAW 1089 (RAJ)

Ram Dayal Das v. The State of Rajasthan

2006-04-05

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa, J.-By this writ petition the petitioner as a former Sarpanch of village Panchayat-Hindupura, Panchayat Samiti Boli, District Sawai Madhopur, (Rajasthan) has challenged the orders Annexures 7 and 8 dated 22.08.1994 and 15.09.1994, whereby a finding has been recorded against him under Section 38 (1) of the Panchayati Raj Act, 1994 (for short "the Act") with a direction to recover the misappropriated amount with penal interest and in consequence of which recovery order dated 19.09.1994 was issued. 2. Briefly stated the relevant facts of the case are that the petitioner held the office of Sarpanch of village Panchayat-Hindupura, Panchayat Samiti Boli district Sawai Madhopur (Rajasthan) from 09.06.1988 to 19.06.1991. On 20.06.1991, the village Panchayat was dissolved and an Administrator was appointed. A complaint was filed against the petitioner alleging certain financial and other irregularities in the matter of construction and allotment of land and in respect of which a notice was issued to him by Panchayat Extension Officer. The petitioner submitted reply to the said complaint on 14.09.1992. The Respondent No. 1 issued a charge-sheet to the petitioner on 22.04.1993 and on receipt of the same the petitioner submitted reply on 25.06.1993 to the said charge-sheet mentioning therein at the beginning that the desired record from the Panchayat Samiti and Gram Panchayat has not been made available to him, therefore, some time be given to him. The petitioner has denied the said charges and has submitted that steps taken by him were as per financial sanctions and resolution of the Panchayat Samiti, therefore, the charges be dropped. It has been further stated by the petitioner that without considering the reply filed by him, the Respondent No. 1 has appointed the Respondent No. 3 - the Chief Executive Officer and Secretary Zila Parishad, Sawai Madhopur, as an Inquiry Officer who concluded the inquiry ex parte and submitted the report to the State Government. The said reply to the charge-sheet has not been examined by the Inquiry Officer while giving the ex parte inquiry report. There is a simple reference of the said reply dated 25.06.1993 in Charge No. l but there is no examination of the same with regard to the merit and demerit of the charge. However, a notice of 15 days was given to him but despite service he has not filed any reply. There is a simple reference of the said reply dated 25.06.1993 in Charge No. l but there is no examination of the same with regard to the merit and demerit of the charge. However, a notice of 15 days was given to him but despite service he has not filed any reply. Ultimately the order Annexure 7 dated 22.08.1994 was passed whereby the petitioner was held guilty of all the charges and a finding was recorded against him with a further direction to recover the misappropriated amount with penal interest. In consequence to which the recovery notice was issued on 15.09.1994 which is Annexure-8 on record. Since the petitioner has not appeared before the State Government but the reply to the charge-sheet was available to the State Government still the same has not been examined at all by the State Government. 3. The respondents have filed reply and submitted therein that it is not obligatory on their part to give the copy of the preliminary inquiry report and further in Para No. 7 the respondents have submitted that the petitioner has never made any request for inspection of the relevant record and the record could have been inspected by the petitioner which was available in the office of Panchayat. The respondents have also submitted that the Inquiry Officer was appointed after consideration of the reply of the petitioner and the Inquiry Officer has given an opportunity but the petitioner has not availed that opportunity to submit his defence. After consideration of the inquiry report, the impugned order Annexure-7 recording the finding against the petitioner was passed. The consequential order Annexure-8 dated 15.09.1994 is the recovery order of the misappropriated amount. 4. The submission of the Counsel for the petitioner is that the entire proceedings are violative of principle of natural justice. Neither the inspection was allowed nor copy of the preliminary inquiry report was given. Further submission of the Counsel for the petitioner is that there was no legal evidence on record and there was also no oral statement of the presenting officer in support of the documents. Neither the inspection was allowed nor copy of the preliminary inquiry report was given. Further submission of the Counsel for the petitioner is that there was no legal evidence on record and there was also no oral statement of the presenting officer in support of the documents. Otherwise also the Inquiry Officer could have called the entire record of the Panchayat Samiti pertaining to the charges in order to examine the reply submitted by the petitioner for the reason that in the reply itself it has been mentioned that the same is as per the information available with him as the record was not shown to him. In support of his submissions, Counsel for the petitioner has placed reliance on a Judgment reported in Rewat Dan vs. State of Rajasthan, 1975 RLW 116. 5. The Counsel for the petitioner has also submitted that the record was available with the respondents and that too was also not examined since he has not been given proper opportunity to inspect the same, therefore, he has annexed some of the documents with the writ petition which are now available. The documents annexed by the petitioner from Annexures-9 to 14 are the documents relating to Charge Nos. 1,2 and 3. 6. The Charge No. 1 relating to "Nigo Pulia", construction of which was totaling to Rs. 58,000/-. The utilization certificate of the same is of Rs. 30,660/-but the wrong utilization certificate has been relied and rest of the material was handed-over to the Administration on dissolution of Panchayat and an entry in this regard has been made in the stock register. 7. As regards the Charge No. 2 relating to construction of Village Extension Workers Bhavan, Hindupura, the same was constructed as per the order of the Development Officer dated 30.12.1989, who recommended the construction of the same building at Hindupura and Gotore, which is Annexure 13 on record. Therefore, the said charge is also not sustainable. The Charge No. 3 of allotment of land was for regularization of long possession and that too after resolution of Village Panchayat, therefore, no charge is made out and the entire proceedings alongwith the impugned orders are liable to be quashed. 8. Therefore, the said charge is also not sustainable. The Charge No. 3 of allotment of land was for regularization of long possession and that too after resolution of Village Panchayat, therefore, no charge is made out and the entire proceedings alongwith the impugned orders are liable to be quashed. 8. The submission of the respondents is that notices were issued to the petitioner right from the preliminary inquiry till the final conclusion of the inquiry but some time the petitioner appeared and some time he did not avail the opportunity. The reply submitted by him was considered before the appointment of the Inquiry Officer and before the Inquiry Officer and the State Government which has passed the final order the petitioner did not appear. A bare perusal of the charges and final inquiry report would reveal that the same are made out and no illegality has been committed in passing the impugned order. 9. I have considered the submissions of both the parties, further perused the record of the writ petition. 10. The first submission of the petitioner that copy of the preliminary Inquiry Report was not given, has no substance as the said report was not relied upon during the regular inquiry. The next submission of the petitioner that there was no legal evidence before the Inquiry Officer, itself deserves to be rejected as the petitioner did not appear before the Inquiry Officer and there was no such objection with regard to the admission or denial of the document. The further submission of the petitioner that the finding on charges on merit be re-examined by this Court with reference to Annexures-9 to 14 is also not liable to be accepted in view of the fact that there was no occasion before the Inquiry Officer to examine the said document and this Court while sitting in writ jurisdiction under writ of certiorari cannot examine the documents which are not before the authority below. The submission of violation of natural justice is being dealt with separately. 11. In Para No. 7 as well as in Annexure-4, there is a reference that the reply to the charge-sheet is being given in absence of relevant record and further time was sought for inspection of the record, therefore, the submission of the respondents in reply to Para No. 7 that the petitioner has not made any request for inspection is incorrect. I am of the view that after receipt of the reply the respondents ought to have issued a letter to the petitioner to inspect the relevant record and submit the final reply but no such letter has been issued. Relevant portion of the reply to the charge-sheet Annexure-4 dated 25.06.1993 reads as under:- 12. Annexure-3 is the notice alongwith which the charge-sheet was served. From the inquiry report Annexure-6, it appears that neither the reply filed in the preliminary report dated 14.09.1992 was considered at the time of issuance of the charge-sheet nor the reply to the charge-sheet dated 25.06.1993 was considered in the inquiry report Annexure-6 and final order Annexure-7 dated 22.08.1994 was passed by the Inquiry Officer and the Govt. respectively. Simply, making a reference of the reply to the charge-sheet in the inquiry report while dealing with the Charge No. 1 cannot be said to be the proper consideration. Therefore, the present case is of not supplying the relevant document and non-consideration of the reply filed in absence of the document and the same is violative of Rule 21 (4) (c) of the Rajasthan Panchayat (General) Rules 1961. Rule 21 (4) and 22 is reproduced hereunder for ready reference:- "21(4) The inquiring officer shall- .(a) issue a notice to the person charged to appear before him on a date and at the time and place specified in the notice, .(b) read out to the person charged, when he so appears, the charge or charges levelled against him, .(c) hear his explanation, if any, .(d) takeand consider such evidence, oral or documentary, as may be produced in support or in rebuttal of the charge or charges, and .(e) record his finding on each of them. Rule.22. (1) Orders by State Government or officer or authority referred to in Sub-rule (4) of Rs. 20-The State Government or the officer or authority referred to in Sub-rule 4 of Rule-20 shall consider the findings of the inquiring officer, afford reasonable hearing to the person charged or thereafter pass such order as it or he may consider proper in the circumstances of the case. (2). If the State Government or such officer or authority finds upon such consideration that the charges have been established, it or he shall by order remove the Panch, Sarpanch, Up-Sarpanch, member or Chairman concerned from his office. (2). If the State Government or such officer or authority finds upon such consideration that the charges have been established, it or he shall by order remove the Panch, Sarpanch, Up-Sarpanch, member or Chairman concerned from his office. .(3) A copy of each of such order shall be forwarded to the Panchayat Officer and to the Collector. .(4) TheState Government or the officer or authority referred to in Sub-rule 4 of Rule 20 shall notify the fact of such removal in the official Gazette. The Judgment cited by Counsel for the petitioner and reported in the case of Rewat Dan (Supra) mainly relates to non-supply of the copy of inquiry report which vitiates the inquiry after incorporating the words "afford reasonable hearing to the person charged". But in my view the principles of natural justice are applicable in the case of inquiry also on account of Rule 21 (4) (c) and (d) relating to the hearing of the explanation/reply to the charge-sheet or hear his explanation if any. 13. Although the present case is of ex parte inquiry but still the authorities should either allow the petitioner to inspect the record or refuse the same on the request made by him and further bound to consider the replies of the petitioner available on record in order to afford reasonable hearing to the person charged. Therefore, the impugned orders Annexure-7 and 8 are not sustainable. 14. Besides this, the Respondent No. 1 has concluded that the deficit amount mentioned in charges be taken as misappropriated amount whereas there is no such charge of misappropriation in the charge-sheet. 15. In view of the above, the contention of the petitioner with regard to violation of principles of natural justice as envisages under Rule 21 (4) and Rule 22 of the Rules of 1961 are accepted and all other submissions are rejected. 16. The submission of the respondents are not accepted with regard to the compliance of Rules 21 (4) and 22 of Rules of 1961. 17. In the result the writ petition is partly allowed. The impugned orders Annexure-7 and 8 dated 22.08.1994 and 15.09.1994, are quashed. 16. The submission of the respondents are not accepted with regard to the compliance of Rules 21 (4) and 22 of Rules of 1961. 17. In the result the writ petition is partly allowed. The impugned orders Annexure-7 and 8 dated 22.08.1994 and 15.09.1994, are quashed. The matter is remitted back to the Inquiry Officer to afford the petitioner an opportunity to inspect the record and either produce or make an application to call for the record, which will be examined by the Inquiry Officer and then submit the report to the Government. On receipt of the report the Government is free to pass the appropriate order.