Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 979 (RAJ)

Jagdish Prasad Yadav v. State of Rajasthan

2009-04-08

M.N.BHANDARI

body2009
Judgment Hon'ble BHANDARI, J.— The matter was heard finally with the consent of the parties. 2. The petitioner was elected as "Sarpanch" of Gram Panchayat, Lisadia of Panchayat Samiti Sri Madhopur, District Sikar. He was served with the charge sheet to take action as per Section 38 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act of 1994"). In the charge sheet, it was alleged that he raised construction of Panchayat Building in a land recorded as "Gair Mumkin Naid", thus proper place was not selected and it may cause damage to the record and building. Respondents conducted enquiry as per the Rule 22 of Rajasthan Panchayati Raj Rules, 1996 (for short "the rules of 1996"). The Enquiry Officer thereafter submitted enquiry report vides Annex. 11 to the writ petition dated 22.04.2008, holding charges as not proved. After recording said finding in the enquiry, it seems that matter travelled to other government authorities and in that respect, firstly order was passed on 20th October 2008 vide Annex. 15. In the aforesaid order, it has been recorded that charge against the petitioner is found to be proved therefore, before passing any order, petitioner should be given opportunity of hearing in view of the Rule 22 (7) of the Rules of 1996. The respondent Divisional Commissioner thereafter passed the impugned order dated 09.02.2009 (Annex. 16) after calling for the report from Collector. Vide impugned order, petitioner is declared to be disqualified to hold the post of "Sarpanch" and accordingly, a direction was given to the petitioner for handing over the charge to "Up-Sarpanch/ Wardpanch." 3. Learned counsel for the petitioner submits that once enquiry report was submitted holding charge as not proved, the Divisional Commissioner was having no authority to refer the matter to call for the report from the District Collector in respect of the issue, which was subject matter of the charge against the petitioner. Referring to the impugned order, it is stated that comment was called from the District Collector behind the back of the petitioner and based on that, the impugned order has been passed. Referring to the impugned order, it is stated that comment was called from the District Collector behind the back of the petitioner and based on that, the impugned order has been passed. It is urged that there is a clear violation of Rule 22 of the Rules of 1996 inasmuch as the report so submitted by the District Collector and relied by the Divisional commissioner is not the subject matter of the enquiry, wherein the petitioner was exonerated and there is no provision under Rules of 1996 or the Act of 1994, authorizing the Divisional commissioner to call for the report from the District Collector after submission of the enquiry report by the Enquiry Officer. It is further stated that the Divisional commissioner exceeded to his authority while passing the impugned order, thus it is prayed that the impugned order dated 09.02.2009 (Annex. 16) may be quashed. 4. Learned Additional Advocate General, appearing for the State, on the other hand, submits that the order dated 09.02.2009 (Annex. 16) is perfectly legal inasmuch as the petitioner is guilty of raising construction in a land, which is shown to be "Gair Mumkin Nadi". In view of the Section 16 of the Rajasthan Tenancy Act, no construction can be made in such land, thus the petitioner has committed misconduct and taking note of this aspect, the Divisional Commissioner has rightly passed the order. 5. Learned counsel appearing for the private respondent, who was impleaded as respondent on an application submits that charge against the petitioner was found proved and for that purposes, a reference of the order dated 15.10.2008 at Annex. - R5/3 has been made. It is contended that the authority, who has given enquiry report therein passed contrary order then his own order dated 15.10.2008 therefore, the finding recorded in the enquiry report should not be accepted and otherwise, the Divisional Commissioner was having power to exercise its jurisdiction after calling for the report from the District collector. It is stated that the Divisional Commissioner is superior authority then the authority, who has enquired the charges against the petitioner, thus in those circumstances, the order passed on 09.02.2009 cannot be said to be illegal. It is further stated that vide Annex. R5/1, Tehsildar of the area concern, passed an order restraining construction, yet the construction of the building was raised in violation of the direction of Tehsildar. It is further stated that vide Annex. R5/1, Tehsildar of the area concern, passed an order restraining construction, yet the construction of the building was raised in violation of the direction of Tehsildar. Thus, in these circumstances, it cannot be said that the charge against the petitioner is not proved. A reference of the order passed by the Divisional Commissioner at Annex. R5/2 has also been made to show that therein also, it has been stated that the building has not been constructed at the right place as Khasra No. 1352 has been recorded as "Gair Mumkin Nadi", thus not only it was observed that "Sarpanch" has defaulted in carrying out his duties but a further direction was given to recover the entire amount from him. 6. I have considered the rival submissions made by the learned counsel for the parties and scanned the matter carefully. 7. It is not in dispute that the petitioner was elected on the post of "Sarpanch", he was discharging his duties. It is also not in dispute that the petitioner was served with the charge sheet and thereupon, as per the Rule 22 of the Rules of 1996, an enquiry was conducted against him and the enquiry report was submitted by the Enquiry Officer on 22.04.2009 at Annex. 11. The perusal of the enquiry report shows that the Enquiry Officer has made comments on various aspects but the final conclusion therein is to hold that the charges as not proved. Now contrary to what has been recorded by the Enquiry Officer, a letter vide Annex. 15 dated 20.10.2008 was issued stating that in the enquiry report, charge against the petitioner is found to be proved therefore, as per the Rule 22(7) of the Rules of 1996, the petitioner was given opportunity of hearing though it is a fact that charges are not found proved in the enquiry report. This becomes clear from the fact that while impugned order dated 09.02.2009 (Annex. 16) was passed, it was recorded that the charge against the petitioner is not found proved in the final enquiry. After recording this it has been observed that there exists contradiction in preliminary enquiry and final enquiry therefore, vide letter dated 07.08.2008 (Annex. 12), the District Collector was asked to send his comments. 16) was passed, it was recorded that the charge against the petitioner is not found proved in the final enquiry. After recording this it has been observed that there exists contradiction in preliminary enquiry and final enquiry therefore, vide letter dated 07.08.2008 (Annex. 12), the District Collector was asked to send his comments. Pursuant to the comment, it was found that construction has been made in "Gair Mumkin Nadi" and after considering the aforesaid comment of the District Collector, the Divisional commissioner came to the conclusion that the charge against the petitioner is found to be proved and accordingly, impugned order was passed. 8. Learned Additional Advocate General was asked to show the authority of the Divisional Commissioner to call for the comments from the District Collector after submission of the enquiry report. It was fairly conceded that under the Act of 1994 and Rules of 1996, the Divisional Commissioner has no such authority however, it was argued that the Divisional Commissioner acted pursuant to the order dated 20.10.2008 (Annex. 15). In reference to the aforesaid order, it was stated that Deputy Secretary (Enquiry) recorded its finding that charge against the petitioner is found proved. In reference to the order dated 20.10.2008 (Annex. 15), the Dy. Secretary (Enquiry) was called in the Court to explain as to on what basis, it has been recorded that the charge is found proved against the petitioner. The said officer fairly conceded that the fact has wrongly been recorded in order dated 20.10.2008 inasmuch as enquiry report exonerates the petitioner in view of the finding that the charge is not found proved, thus mistake aforesaid was realized. 9. The issue remains now as to whether an order can be passed disqualifying petitioner from the post of "Sarpanch" based on report at Annex.R5/1-3 so produced by the private respondent. Perusal of the document does not show that before recording finding therein, the petitioner was given an opportunity of hearing and this position could not be proved by the learned counsel appearing for the private respondent. In view of the above, the fact remains as to whether respondent Division Commissioner acted in accordance to the provision of Section 38(1) of the Act of 1994 and Rule 22 of the Rules of 1996 for not? For ready reference, Section 38(1) of the Act of 1994 and Rule 22 of the Rules of 1996 are reproduced hereunder: "38. In view of the above, the fact remains as to whether respondent Division Commissioner acted in accordance to the provision of Section 38(1) of the Act of 1994 and Rule 22 of the Rules of 1996 for not? For ready reference, Section 38(1) of the Act of 1994 and Rule 22 of the Rules of 1996 are reproduced hereunder: "38. 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 of a Panchayati Raj Institution, who- (a) refuses to act or becomes incapable of acting as such; or (b) is guilty or misconduct in the discharge of duties or any disgraceful conduct. Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled. 10. Rule 22 of the Rules of 1996 is also relevant to this case, hence same is also quoted hereunder: Rule 22. Procedure of equity. -(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 repot received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-sec. (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 statement, appoint an Enquiry Officer and also nominate any person to present the case before Enquiry Officer on behalf of the State. (3) State Government may after expiry of prescribed period and considering such 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, 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 provision 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 order. 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. Perusal of Section 38(1) of the Act of 1994 shows that the State Government by an order in writing and after giving opportunity of hearing and making such enquiry as may be necessary, remove a member including Chairperson or Deputy Chairperson, who becomes incapable of acting as such or it guilty of misconduct in discharging its duties. The requirement of Section 38 of the Act of 1994 is not only to provide an opportunity of hearing to the elected member of Panchayati Raj Institution but to further make an enquiry as deemed necessary. Rule 22 of the Rules of 1996 provides as to how enquiry is to be conducted. Perusal of rule provides that after getting a preliminary enquiry a copy thereof be sent to the State Government so that definite charges are framed and communicated to the Chairperson of Panchayati Raj Institution. Sub-rule 4 of Rule 22 provides for consideration of evidence, which includes oral and documentary evidences both. Perusal of rule provides that after getting a preliminary enquiry a copy thereof be sent to the State Government so that definite charges are framed and communicated to the Chairperson of Panchayati Raj Institution. Sub-rule 4 of Rule 22 provides for consideration of evidence, which includes oral and documentary evidences both. The person charged so to be given opportunity of cross-examination to the witnesses so examined by the Enquiry Officer. As per Sub-rule 5, the Enquiry Officer has to record his finding on every charge as proved or not or even partly proved along with the reasons. The enquiry report is then sent to the State Government for final decision. Sub-rule 7 of Rule 22 provides authority of the State to consider the finding of the Enquiry Officer and after giving an opportunity of hearing, may exonerate or remove the charged person. In the case in hand, the Enquiry Officer conducted enquiry and thereupon vide Annex. 11, an enquiry report was given. The conclusion of the enquiry are quoted hereunder for ready reference: <span class=”Hfont”> ^^gkykafd iapk;r Hkou dk fuekZ.k fd;s tkus ls iwoZ lacaf/kr fjdkMZ dh nq:Lrh djokbZ tkuh vko';d Fkh fdUrq i=koyh esa 'kqekj lHkh rF;ksa ij euu djus ls Jh txnh'k izlkn ;kno] ljiap xzke iapk;r fylkfM;k ds fo:) yxk;k x;k vkjksi fl) ugha gksrk gSA** 12. Perusal of the enquiry report reveals that the charge was not found proved against the petitioner but in reference to Rule 22(7) of the Rules, a show cause notice was given to the petitioner, which is Annex. 15. Perusal of the aforesaid document shows that aforesaid notice was given stating that the charge against the petitioner is found proved whereas the quoted portion of the finding shows that the Enquiry Officer had not recorded its finding holding charge as proved, thus by making incorrect statement of fact, notice at Annex.15 were given, which otherwise has been admitted by the Officer, who issued the order while he was directed to be present in the Court to explain as to on what basis the order at Annex. 15 was drawn stating that charge is found to be proved. The Officer fairly conceded that order at Annex. 15 were wrongly drawn. 13. Now comes to impugned order at Annex. 15 was drawn stating that charge is found to be proved. The Officer fairly conceded that order at Annex. 15 were wrongly drawn. 13. Now comes to impugned order at Annex. 16 dated 09.02.2009 perusal of the aforesaid order shows that the authority concern had carefully taken note of the fact that though in the preliminary enquiry, prima facie charge was found to be proved against the petitioner but in the final report of the enquiry so conducted under Rule 22 of the Rules, the charge was not found to be proved. The relevant portion of the order is quoted hereunder: <span class=”Hfont”> ^^gky tekcanh 2060&63 [k-u-a 1351] 1352 xS-eq- unh vafdr gSA iapk;r Hkou dk fuekZ.k djkus ls iwoZ lacaf/kr fjdkMZ dh nq:Lrh djokbZ tkuh vko';d FkhA ljiap ds fo:) yxk;k x;k vkjksi fl) ugha gksrk gSA izkFkfed tkap o foLr`r tkap fjiksVZ esa fojks/kkHkkl gksus ij izdj.k esa ftyk dysDVj] lhdj ls rF;kRed fVIi.kh yh xbZ tks muds i=kad 480 fnukad 7-8-2008 }kjk izkIr gqbZA ftyk dysDVj lhdj us fVIi.kh esa vafdr fd;k gS fd iwoZ esa mDr Hkwfe vkcknh Hkwfe Fkh ckn esa mDr Hkwfe fcuk fdlh vkns'k ds xSj eqefdu unh ntZ gks xbZA** 14. Perusal of the aforesaid order reveals that even the authority was knowing that the charge in the final enquiry was not found to be proved and it is for that reason only, the comment of the Collector was called and as per the comment so received and for other reasons given in the impugned order, the petitioner was declared disqualified. The main issue for consideration is as to whether after recording a finding by the Enquiry Officer, the State Government can record contrary finding or not and if it can be done then as to whether a notice before recording disagreement to the finding of the Enquiry Officer is required to be given to the petitioner or not. Perusal of the Section 38 of the Act of 1994 provides that an opportunity of hearing is required to be given to the charged person and after making such enquiry as deemed necessary, final order can be passed. In the present matter, so far as holding of the enquiry and the conclusion drawn thereupon are not in dispute. Perusal of the Section 38 of the Act of 1994 provides that an opportunity of hearing is required to be given to the charged person and after making such enquiry as deemed necessary, final order can be passed. In the present matter, so far as holding of the enquiry and the conclusion drawn thereupon are not in dispute. The only fact, which is relevant and crucial is that if for whatever reason, even right or wrong, the conclusions have been recorded by the Enquiry Officer then the authority passing the impugned order is not given power to call for report from the Collector or if at all it is presumed that such an authority exists with the government in view of the Sub-rule 7 of the Rule 22 then the question comes whether such report material can be used behind the back of the charged person. Since, Sub-rule 7 of Rule 22 is not very clear on the aforesaid issue but taking note of Provision of Section 38 of the Act of 1994, it can safely be concluded that even if the competent authority disagrees with the finding of the Enquiry Officer, either it should have given notice to the charged person giving issues of disagreement and calling for his comments thereupon so as to complete the requirement of hearing of the Chairperson as per the Act or in the alternate, matter could have been sent back to the Enquiry Officer for holding de novo enquiry. Since the aforesaid issue has not come up for consideration before this court or before the Apex Court in reference of the provision of Panchayati Raj Laws, therefore, ratio of certain judgments of Hon'ble Apex Court in reference to disciplinary enquiry against the employees was taken note off. The Hon'ble Apex Court dealing with the similar situation held that while contrary finding is to be recorded by the Disciplinary Authority then what has been given by the Enquiry Officer, a show cause notice specifying issues of disagreement is to be given to the employees to comply with the principle of natural justice. Reference of judgment in the case of Punjab National Bank & Ors. vs. Kunj Bihari Misra reported in AIR 1998 SC 2713 is relevant. Reference of judgment in the case of Punjab National Bank & Ors. vs. Kunj Bihari Misra reported in AIR 1998 SC 2713 is relevant. In Para 19, final conclusions have been given, which is quoted hereunder for ready reference: "The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer." 15. The aforesaid judgment provides some assistance on the issue and it this matter is looked into while enlarging the scope of sub-Rule 7 of Rule 22 then what was minimum required for the authority concern is to issue a show cause notice under Rule 22 (7) giving out reasons of disagreement from the finding of the Enquiry Officer and for relying on the comments of the Collector and after calling upon the charged person so as to comply with the requirement of hearing, necessary order could have been drawn. There are judgments of the Hon'ble Apex Court and of this Court that if at all, the competent authority does not agree with the finding of the Enquiry Officer then it can remand the matter to the Enquiry Officer for holding a fresh enquiry. 16. It is necessary to point out that even comment so called from the collector and mentioned in the impugned order is nothing but using a material without knowledge to the charged person and even without giving him opportunity of hearing to make his comment after calling for the report from the Collector. 16. It is necessary to point out that even comment so called from the collector and mentioned in the impugned order is nothing but using a material without knowledge to the charged person and even without giving him opportunity of hearing to make his comment after calling for the report from the Collector. Thus, the authority herein has used the material without making it known to the charged person, which then goes not only contrary to the Section 38 of the Act but even Rule 22 of the Rules of 1994. 17. Learned counsel for the private respondents has tired to emphasis that on the face of record, charge is found proved and in that regard, reference of various documents filed along with reply was referred more specifically documents R5/1, R5/2 and R5/3. However, learned counsel for the private respondents fairly conceded that all those documents were neither part of the enquiry nor have been issued after hearing the petitioner. Thus, it comes out again as to whether placing it before Enquiry Officer so bring it to the notice of the charged person. Reference of the documents along with reply by the learned counsel for the private respondents may be useful to prove the charge but then it was necessary to produce those documents before Enquiry Officer in view of the requirement of Sub-rule 4 of Rule 22 of the Rules of 1994. Learned counsel for the private respondents prayed that now this Court should draw its conclusions on the charges. 18. The aforesaid request cannot be accepted as this Court exercising jurisdiction under Article 226 of the Constitution of India cannot be turned into an Enquiry Officer for elected Chairperson of Panchayati Raj Institution. Thus, if at all the finding of the enquiry Officer was erroneous or incorrect, at least it was necessary for competent authority to record its finding after applying the procedure indicated in this judgment, which otherwise is supported by the judgment of Hon'ble Supreme Court. It is, however, necessary to make a remark that in the present case, the petitioner was served with the notice under Rule 22(7) of the Rules but then the perusal of the aforesaid notice at Annex. It is, however, necessary to make a remark that in the present case, the petitioner was served with the notice under Rule 22(7) of the Rules but then the perusal of the aforesaid notice at Annex. 15 shows that it was under mistaken belief that charges has been proved, therefore, it cannot be said to be compliance of rule and also principle of natural justice by the competent authority disagreeing with the finding of the Enquiry Officer. In fact, the matter should have been either remanded back to the enquiry Officer to get its afresh conclusion or in the alternate, to issue notice to the charged person showing the issues, on which the competent authority wants to record its disagreement with the finding of Enquiry Officer. Aforesaid exercise would have complied the requirement of hearing as provided under Section 38 of the Act. Thus, notice at Annex. 15 cannot be said to be a compliance for recording contrary finding then recorded by the Enquiry Officer. 19. In view of the above, I am left with no option but to set aside the impugned order dated 09.02.2009 and accordingly, it is set aside. It is, however, made clear that the judgment herein would not preclude the State Government to take actions against the petitioner after complying with the requirement of hearing as otherwise indicated in this judgment. It is also made clear that if the State Government takes corrective action in the present matter then this judgment will not come in their way. 20. With the aforesaid observations, the present petition is allowed with no order as to cost.