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2011 DIGILAW 1176 (RAJ)

Ganesh Choudhary v. State of Rajasthan

2011-05-30

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—These two writ petitions raise identical questions of facts and law, therefore, they are being decided together. 2. Writ petition No. 10903/2009 has been filed by Ganesh Choudhary, who was elected as Sarpanch of Gram Panchayat Rammilia, Panchayat Samiti Bhinai, District Ajmer, in January, 2005, assailing show-cause-notice dated 21.7.2009 (Annexure-1) issued by respondent No. 2 Divisional Commissioner, Ajmer, vide which proceedings of his removal under Section 38 of the Rajasthan Panchayati Raj Act, 1994 (for short, `the Act of 1994') were initiated and enquiry-report dated 1.7.2009 of the Additional Chief Executive Officer, Zila Parishad, Ajmer, on which basis aforesaid show-cause notice was issued. 3. Writ petition No. 8011/2008 has been filed by Smt. Jadav Bharti, who was elected Sarpanch of Gram Panchayat Bhawani Kheda, Panchayat Samiti Pisangan, District Ajmer, assailing charge-sheet/notice dated 29.7.2008 (Annexure-1) under Section 38 of the Act of 1994, whereby she has been asked to submit explanation on various financial irregularities. 4. Shri S.K. Saksena, learned counsel appearing on behalf of petitioners, argued that aforesaid enquiry report and show cause-notice, issued to petitioner Ganesh Choudhary, are based on completely unfounded audit objections. In fact, all this has been done at the instance of his political rivals. Charge against petitioner Ganesh Choudhary is that he, despite reminder of Development Officer, Panchayat Samiti, failed to comply with objections pointed out by audit party for financial years 1995-96 and 1996-97, and that he misused the government money, are totally baseless. Petitioner submitted reply dated 17.8.2009 to show-cause-notice, to the Assistant Commissioner, wherein he clarified that the work executed during relevant period was entered in the measurement book, attendance of labour was recorded in the muster roll and payment of wages was also made by the Tehsildar. No specific allegation of supervisory negligence has been made against petitioner. Record and cash book of Gram Panchayat are maintained by its Secretary, who, as per Rules 177 and 331 of the Rajasthan Panchayati Raj Rules, 1996, is responsible for maintenance of its record. It is thus argued that Secretary of Gram Panchayat is responsible for maintenance of record, accounts, cash-books, payments, muster-roll and accounts of construction work, quality of work as per Rules 177 and 331 of the Rules of 1996 and not the Sarpanch. 5. It is thus argued that Secretary of Gram Panchayat is responsible for maintenance of record, accounts, cash-books, payments, muster-roll and accounts of construction work, quality of work as per Rules 177 and 331 of the Rules of 1996 and not the Sarpanch. 5. Shri S.K. Saksena, learned counsel argued that enquiry has not been conducted as per Rule 22 of the Rules of 1996, which in itself is a complete code. Learned counsel for petitioner further argued that according to Rule 22(1), the State Government may, before taking any action under sub-section (1) of Section 38, either on its own motion or upon any complaint, ask the Chief Executive Officer or any other officer to get a preliminary enquiry conducted and sent his report. In this case, it is the Divisional Commissioner who asked the Chief Executive Officer to hold enquiry, who in turn entrusted this task to Additional Chief Executive Officer, Zila Parishad. Preliminary enquiry has thus been conducted by Additional Chief Executive Officer, who had absolutely no jurisdiction and competence to do so. It is argued that powers of State Government under Section 38(1) may have been delegated to Divisional Commissioner but Divisional Commissioner, himself being a delegate, could not redelegate those powers to Chief Executive Officer and on the same analogy, Chief Executive Officer also could not further delegate those very powers to Additional Chief Executive officer. 6. Shri S.K. Saksena, learned counsel for petitioners, argued that in the case of petitioner Smt. Jadav Bharti, enquiry has been conducted by Panchayat Prasar Adhikari straightway on direction of Additional Chief Executive Officer, who had received a complaint against her. According to Rule 22(1) of the Rules of 1996, it is only the State Government, which can direct a preliminary enquiry to be conducted. 7. In both cases, therefore, enquiries under Rule 22 of the Rules of 1996 have not been legally conducted and, as such, same are illegal and incompetent. It is argued that power under Section 38 of the Rajasthan Panchayati Raj Act, 1994 has not been validly delegated to Divisional Commissioner and that notification delegating such power has not been published in government gazette. Proceedings held by Divisional Commissioner are thus non-est. Reliance in this connection has been placed on judgment of this Court in Ram Singh Rajpurohit vs. State of Rajasthan and others- 2008 (3) WLC 115 = 2008(2) RLW 1848. 8. Proceedings held by Divisional Commissioner are thus non-est. Reliance in this connection has been placed on judgment of this Court in Ram Singh Rajpurohit vs. State of Rajasthan and others- 2008 (3) WLC 115 = 2008(2) RLW 1848. 8. Shri S.K. Saksena, learned counsel for petitioner, further argued that it is well settled Proposition of law that when a particular thing is required to be done in a particular manner, then that has to be done in that particular manner only and none else. Impugned show-cause notices/charge- sheets should therefore be quashed and set aside. 9. Shri Jinesh Jain, learned Government Counsel appearing on behalf of respondents, opposed writ petitions and submitted that show-cause notice in the case of petitioner Ganesh Choudhary was issued by Divisional Commissioner on 21.7.2009 whereas in the case of petitioner Jadav Bharti it was issued on 29.7.2008. The lacunae pointed out by this court in Ram Singh Purohit's case (supra) was that the notification delegating the power to Divisional Commissioner was not published in gazette extraordinary. This lacunae has since been removed with publication of notification in the Rajasthan Gazette Extraordinary, Pt. IV-C(I), dated 23.2.1998. It cannot therefore be said that Divisional Commissioner was not competent to issue show-cause notice. 10. Shri Jinesh Jain, learned Government Counsel further argued that if objection about competence of officer holding preliminary enquiry is not raised during the said enquiry, such objection cannot be allowed to be raised for the first time in writ petition. In support of his argument, he relied on judgment of a coordinate of this court at Principal Seat Jodhpur in Inder Singh vs. State of Rajasthan - 2000(2) RLR 406 = RLW 2000(2) Raj. 885. It is argued that the matters are still at the stage of show-cause notice, petitioners would therefore have full opportunity to participate in the proceedings and adduce their evidence in the enquiry. 11. I have given my thoughtful consideration to rival submissions and perused the material on record. 12. This court in both these matters was persuaded to stay operation of show-cause notice on consideration of argument of petitioners that notification dated 28.9.1999, by which power of State Government for holding enquiry for removal of Sarpanch envisaged under Section 38 of the Act has been delegated to Divisional Commissioner, has not been published in gazette extraordinary. 12. This court in both these matters was persuaded to stay operation of show-cause notice on consideration of argument of petitioners that notification dated 28.9.1999, by which power of State Government for holding enquiry for removal of Sarpanch envisaged under Section 38 of the Act has been delegated to Divisional Commissioner, has not been published in gazette extraordinary. This argument has been dealt with and upheld by this court in Ram Singh Purohit's case, supra. Later on, however, this notification 28.9.1999 has been published in the Rajasthan Gazette Extraordinary dated 23.2.2008. This argument is therefore now no longer available to the petitioners. Argument to that effect is therefore liable to be rejected and it is accordingly rejected. 13. Coming now to argument that according to Rule 22 of the Rules of 1996, it was only the Chief Executive Officer and no one else, who was competent to hold preliminary enquiry. On the question of preliminary enquiry held by Additional Chief Executive Officer/Panchayat Prasar Adhikari, learned counsel for petitioners has argued that according to Rule 22(1) of the Rules of 1996, the State Government may either on its own motion or upon any complaint could get a preliminary enquiry done. According to sub-rule (2) of Rule 22, the State Government is competent to frame charges for holding full-fledged enquiry not only on consideration of the report of such preliminary enquiry but also `otherwise' on any other material. This issue has been set at rest by a division bench of this court in Chandra Prakash vs. The State of Rajasthan and Others - 2000(1) WLC (Raj.) 372 = RLW 2000(1) Raj. 499. The Division Bench of this court in that case held that enquiry known as preliminary enquiry is essentially a fact finding enquiry. Chief Executive Officer being officer-in-charge of Panchayati Raj Institution in the District, is according to Rule 320 empowered to take action for removal of a Sarpanch, which also include the power to conduct preliminary enquiry. Rule 22 therefore cannot be read in isolation of Rule 320 in a manner to confine preliminary enquiry only by an officer including Chief Executive Officer, and that preliminary enquiry can be held by Chief Executive Officer himself and none else if he has been asked by the State Government to do so. Rule 22 therefore cannot be read in isolation of Rule 320 in a manner to confine preliminary enquiry only by an officer including Chief Executive Officer, and that preliminary enquiry can be held by Chief Executive Officer himself and none else if he has been asked by the State Government to do so. The State Government can form requisite opinion for initiating full-fledged enquiry under Section 38(1) even on information `otherwise' than report of the preliminary enquiry. Relevant paras No. 6 and 7 of the judgment of Division Bench of this Court in Chandra Prakash, supra, are reproduced hereunder:- "6-7. A conjoint reading of the above extracted provisions will show that before a decision is take to initiate a regular enquiry under Sec. 38(1) for removal of Sarpanch, the State Government is required to collect necessary informations for which the Government may ask any officer including the Chief Executive Officer. The enquiry known as preliminary enquiry is essentially a fact finding enquiry. The Chief Executive Officer being officer incharge of the Panchayat Raj in the District, as described by Rule 320 is empowered to take action for removal of Sarpanch including conducting preliminary enquiry. The Rule 22 cannot be read in a manner to confine preliminary enquiry only by a officer including Chief Executive Officer, who has been asked to do so by the State Government. The procedure is meant to further the ends of justice and not to frustrate the same. It is significant to notice that State Government can form requisite opinion for initiating enquiry under Sec. 38(1) even on information `otherwise' than report of the preliminary enquiry. It is difficult to understand if action can be taken against a Sarpanch under Sec. 38(1) on the basis of information available otherwise, why a report of the Chief Executive Officer cannot be looked into simply because he was not asked by the State Government to do so. The Chief Executive Officer is empowered to conduct preliminary enquiry against a Sarpanch for his removal under Rule 22 (1) as well as under Rule 336(4). Thus, we find no fault with the stand taken by the State Government under Annex. R/10 dated 28.5.99 and Annex. R/11 dated 2.6.99 that Rule 336(4) empowers the Chief Executive Officer to hold a preliminary enquiry." 14. Thus, we find no fault with the stand taken by the State Government under Annex. R/10 dated 28.5.99 and Annex. R/11 dated 2.6.99 that Rule 336(4) empowers the Chief Executive Officer to hold a preliminary enquiry." 14. Sub-section (8) of Section 84 of the Rajasthan Panchayati Raj Act, 1994, ordains that Additional Chief Executive Officer of Zila Parishad shall assist Chief Executive Officer in preformance of his duties. Sub-rule (1) of Rule 335 of the Rules of 1996 also provides that State Government may appoint an officer of the appropriate service as Additional Chief Executive Officer in Zila Parishad to assist the Chief Executive Officer in due discharge of his duties under the Act. Sub-rule (4) of Rule 336 empowers Chief Executive Officer to take action for removal of a member and conduct preliminary enquiry in case of disqualification coming to his knowledge. In any case, therefore, Chief Executive Officer may either himself or by entrusting such task to any other officer, get preliminary enquiry done. Report of such preliminary enquiry, when received by State Government or Divisional Commissioner, may, according to sub-rule (2) of Rule 22, be considered within the category of material `otherwise' than the report of preliminary enquiry and can be acted upon by State Government and/or Divisional Commissioner to proceed under Section 38 of the Act for removal of chairperson or deputy chairperson of Panchayati Raj Institution. 15. In view of the above discussion, I do not find any merit in both these writ petitions and same are accordingly dismissed.