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2006 DIGILAW 2949 (RAJ)

Ram Pyari v. State of Rajasthan

2006-10-31

DALIP SINGH

body2006
JUDGMENT 1. - In this writ petition the petitioner is aggrieved against the order of punishment dated 10.9.1999 Annexure-10 by which the petitioner has been found guilty of the charges under Section 38 of the Rajasthan Panchayati Raj Act, 1994 and has been directed to deposit the amount of Rs. 15,154/- which is found to have been embezzled. The petitioner has also been removed from the post of Sarpanch after being found guilty in the inquiry. 2. The submission of the learned counsel for the petitioner is that in the first instance the petitioner was served with a charge sheet and an enquiry was held and as per the enquiry report Annexure-5 dated 12.3.1999 the petitioner was exonerated of the charges. Thereafter it appears that the Government did not agree with the findings of the Enquiry Officer as contained in the enquiry report Annexure-5 dated 12.3.1999 and ordered a fresh enquiry. The submission of the learned counsel for the petitioner is that in the enquiry which was held afresh no notice of the enquiry was given to the petitioner. The petitioner was served with a notice by the Government Annexure-6 dated 23.7.1999 after the second enquiry was completed to show cause against the finding of the second enquiry report. It is contended that in the proceedings of the second enquiry leading to the issuance of the show cause notice after completion of the enquiry dated 23.7.1999 are contrary to the principles of natural justice. 3. Learned counsel for the petitioner has drawn the attention of the Court to the averments made in this behalf in para 6 of the writ petition wherein the petitioner has clearly stated that the second enquiry officer did not give any notice of the holding of the enquiry afresh and as such the enquiry as well as the second show cause notice issued by the Government dated 23.7.1999 leading to the passing of the order dated 20.9.1999 is vitiated and deserves to be quashed. 4. The learned counsel appearing on behalf of the respondents has submitted that no fresh enquiry has been ordered but on the appreciation of the material on record the Government did not accept the enquiry report and appointed a new enquiry officer to consider the material which had come on record and given his findings as per law. 4. The learned counsel appearing on behalf of the respondents has submitted that no fresh enquiry has been ordered but on the appreciation of the material on record the Government did not accept the enquiry report and appointed a new enquiry officer to consider the material which had come on record and given his findings as per law. It is submitted that the provisions of Rule 22(5) of the Panchayat Rules, 1996 only requires the enquiry officer to given his findings on the basis of the material available. It is submitted that no new material was collected by the enquiry officer, who has only given his report on the basis of the material on record. 5. During the course of hearing it was not disputed by the learned counsel for the petitioner that the enquiry report submitted is based upon the material which had been collected in the enquiry in the presence of the petitioner and that no new material was placed on record of the enquiry officer. 6. I have heard learned counsel for the parties and perused the record in response to the averments made in para 16 of the writ petition the respondents have stated in para 16 that the Government took a decision not to accept first enquiry report and the Government was competent not to accept the same. It is also submitted that there were complaints against the petitioner and several criminal cases have also been filed against the petitioner and as such the enquiry report was not accepted and an enquiry officer was appointed to submit a fresh report. After submission of the enquiry report the notice dated 23.7.1999 was given to the petitioner and thereafter after considering the explanation submitted by the petitioner the impugned order dated 20.9.1999 has been passed. 7. The petitioner has submitted the rejoinder and in para 16 the averments made in the writ petition have been reiterated that the petitioner was not given any opportunity of participation in the second enquiry by the enquiry officer and, that the second enquiry has proceeded ex parte against the petitioner. 8. I have considered the rival submission and perused the record. Rule 22 of the Rajasthan Panchayati Raj Rules of 1966 lays down the procedure for conducting the enquiry under Section 28. 8. I have considered the rival submission and perused the record. Rule 22 of the Rajasthan Panchayati Raj Rules of 1966 lays down the procedure for conducting the enquiry under Section 28. The first enquiry office after considering the material on record including the evidence of the petitioner exonerated the petitioner and submitted the report to the Government. The Government under sub-rule (7) of Rule 22 has the jurisdiction and competence to accept the finding of the enquiry officer or not to accept the same. Learned counsel for the petitioner has also relied upon the judgment of this Court reported in 1975 RLW 116 Rewat Dan v. State of Rajasthan wherein para 23 of the report this Court dealing with the earlier rule, under the repealed Act of 1953 has laid down as under:- "........The Government had to consider the findings of the Enquiry Officer and therefore in the notice they should have further indicated whether they were inclined to accept the findings of the Enquiry Officer on each charge or not. If they were to take a different opinion then it was necessary to indicate the reasons why they were taking opinion different from the Enquiry Officer. It is only after affording reasonable hearing to the person charged that an order for removal can be passed.........." 9. A look at the above' judgment goes to show that the same does not apply in the facts and circumstances of the present case inasmuch as the Government did not take the decision of passing the impugned order dated 20.9.1999 on the earlier enquiry report by disagreeing with the same but instead decided to appoint a new enquiry officer to consider the material and submit the report. It is only after receipt of the second enquiry report and affording an opportunity to the petitioner to show cause against the second enquiry report vide note date 23.7.1999 that the decision has been taken by the Government. In view of the above, the above judgment in Rewat Dan v. State of Rajasthan in my view is not attracted in the facts and circumstances of the present case. 10. In view of the above, the above judgment in Rewat Dan v. State of Rajasthan in my view is not attracted in the facts and circumstances of the present case. 10. In the present case after remand the case by the Government for submitting the enquiry report afresh the enquiry officer has given the finding on the charges but before giving his finding the petitioner was not afforded an opportunity of being heard by the enquiry report as has been seen above. The relevant provisions of the Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 read as under:- "Rule 22(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 party. Rule 22(5) : Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charges as proved or not proved or partly proved alongwith the reasons therefore, and submit it to the State Government for final decision. Rule 22(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." 11. Sub-rule (4) of Rule 22 provides that the enquiry officer shall consider the documentary evidence and also take such oral evidence as may be relevant in regard to the charges and an opportunity for cross-examination of the witnesses would be provided to the opposite side. It is not disputed that the above procedure had been followed by the enquiry officer who conducted the enquiry and submitted his enquiry.report Annexure-5 dated 12.3.1999 to the Government which was not accepted. The second enquiry officer did not admittedly record any :resh evidence but merely submitted his report on the basis of the material already available on record. 12. Sub-rule (5) of the Rules 22 provides that the enquiry officer shall prepare a report on the conclusion of the enquiry recording his finding on every charge whether it has been proved or not or partly proved giving his reasons for the same. 12. Sub-rule (5) of the Rules 22 provides that the enquiry officer shall prepare a report on the conclusion of the enquiry recording his finding on every charge whether it has been proved or not or partly proved giving his reasons for the same. It may be noticed that sub-rule (5) of the Rule 22 does not require any hearing to be given to the delinquent by the enquiry officer at the time of the preparation of the enquiry report. Since it is not disputed that any fresh material was collected by the enquiry officer before submitting the second enquiry report for which the show cause notice was issued by the Government on 23.7.1999 and in view of the provisions of Rule 22 and more particularly the sub-rule (5), in the facts and circumstances there does not appear to be any violation of the procedure as provided under rule 22 of the Rules of 1996 while submitting the second enquiry report to the Government by the enquiry officer. In that view of the matter no exception can be taken by the petitioner to the second enquiry report on the ground that the petitioner was not associated in the enquiry leading to the submission of the enquiry report and second show cause notice issued on 23.7.1999 leading of the passing of the impugned order by the Government on 20.9.1999 after considering the explanation submitted by, the petitioner. 13. As per the provisions of sub-rule (7) after receipt of the enquiry report the State Government also issued notice to the petitioner to show cause against the findings recorded by the enquiry officer as per the notice dated 23.7.1999. In that view of the matter the procedure as provided under the rules has been followed and there was no error or jurisdiction or of procedure by the respondents in passing the impugned order dated 20.9.1999. In response to the second show cause notice the petitioner submitted his reply and the same has been considered by the Government before the impugned order against the petitioner was passed. There is, therefore, no merit in the submission of the learned counsel for the petitioner and the same is rejected. 14. In the facts and circumstances of the present case therefore I do not find any good ground to interfere with the impugned order. There is, therefore, no merit in the submission of the learned counsel for the petitioner and the same is rejected. 14. In the facts and circumstances of the present case therefore I do not find any good ground to interfere with the impugned order. The writ petition as well as the stay application are consequently dismissed.Writ Petition Dismissed. *******