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2014 DIGILAW 1341 (RAJ)

Mani Ram Sihag v. State of Rajasthan

2014-07-04

P.K.LOHRA

body2014
JUDGMENT : - Hon'ble LOHRA, J.—Disdained by the impugned order dated 19th of May 2014 (Annex.10) passed by the Divisional Commissioner, Bikaner, petitioner a former Sarpanch, Gram Panchayat, Rambag/Sherpura, Panchayat Samiti Loonkaransar, has preferred this writ petition. 2. Vide order aforesaid, the second respondent while relying on the enquiry report of Chief Executive Officer, Zila Parishad, Bikaner, wherein petitioner was found guilty of charge No.5, 6, 8, 9 & 10, declared him disqualified to contest any election of Panchayati Raj Institution for next five years by resorting to Section 38(3) of the Rajasthan Panchayati Raj Act, 1994 (for short, ‘Act of 1994’). 3. Succinctly stated, the facts of the case are that at the threshold petitioner was elected as Sarpanch of Gram Panchayat Rambag in the month of February 1978 and continued to remain in helm of affairs in the said capacity upto year 1988. In the year 1988, State of Rajasthan reconstituted Gram Panchayats all over the State and as a consequence thereof Gram Panchayat Rambag was bifurcated in two parts as Gram Panchayat, Rambag and Gram Panchayat, Sherpura respectively. The petitioner, thereafter, again joined the electoral battle and was elected as Sarpanch of Gram Panchayat, Sherpura in the month of June 1988. While acting as Sarpanch, Gram Panchayat, Rambag, villagers lodged a complaint against the petitioner on 7th of October 1987 before the District Collector, Bikaner and the District Collector, Bikaner immediately ordered enquiry by appointing the Sub Divisional Officer, Bikaner as Enquiry Officer vide order dated 22nd of October 1987. The SDO, Bikaner, on completion of enquiry, found that charges made against the petitioner are not proved. 4. Yet again, one Shri Sita Ram Sharma made a complaint before second respondent attributing thirteen allegations against the petitioners during his tenure as Sarpanch from 1978 to 1990 with the specific allegation that petitioner has committed a fraud of Rupees three crores. The aforesaid complaint was filed on 27th of October 1999. Pursuant to the complaint, the second respondent addressed a communication dated 19th of October 2005 to the petitioner in the form of show cause notice/charge-sheet containing 10 charges for soliciting his response/explanation. Acknowledging the communication dated 19th of October 2005, petitioner submitted his reply and explained his entire position. The aforesaid complaint was filed on 27th of October 1999. Pursuant to the complaint, the second respondent addressed a communication dated 19th of October 2005 to the petitioner in the form of show cause notice/charge-sheet containing 10 charges for soliciting his response/explanation. Acknowledging the communication dated 19th of October 2005, petitioner submitted his reply and explained his entire position. It was also mentioned in the reply that as the matter is two decades old and he is not abreast with the relevant record of Gram Panchayat, he is unable to explain all the facts with clarity and precision. The said reply was submitted by the petitioner on 12th of July 2006. 5. On receipt of reply, second respondent appointed Chief Executive Officer, Zila Parishad, Bikaner as enquiry officer. The Chief Executive Officer, on completion of enquiry, indicted the petitioner for charge No.5, 6, 8, 9 and 10 and submitted its report. In the enquiry report, the enquiry officer has found petitioner guilty of charges of defalcation. While recording its finding with respect to charge No.8, it was mentioned that a sum of Rs.9,946 is recoverable from the petitioner and the petitioner is prepared to deposit the same. 6. After examining the enquiry report, the second respondent issued a notice dated 2nd of January 2013 to the petitioner for personal hearing and to produce documentary evidence as well as his written statement in defence. The said communication was further followed by yet another communication from the office of second respondent dated 12th of February 2013 asking the petitioner to submit requisite receipts showing deposits pertaining to charge No.5, 8 & 9 as agreed by him. In response to communication dated 3rd January 2013, no written explanation was tendered by the petitioner but in response to the communication dated 12th of February 2013, requisite documents i.e. receipts showing deposit of the amounts were submitted by the petitioner. Considering the enquiry report and the documents furnished by the petitioner, the second respondent examined the matter, and taking into account serious allegations of misappropriation passed the order impugned. 7. Learned counsel for the petitioner, Mr. R.S. Choudhary, has argued that the impugned order is absolutely arbitrary and unreasonable as the same is based on an enquiry which was conducted in an absolutely arbitrary and unjust manner. Mr. 7. Learned counsel for the petitioner, Mr. R.S. Choudhary, has argued that the impugned order is absolutely arbitrary and unreasonable as the same is based on an enquiry which was conducted in an absolutely arbitrary and unjust manner. Mr. Choudhary has contended that earlier for the same charges enquiry was conducted against the petitioner by the SDO, Bikaner in the year 1987 and nothing was found, no second enquiry was desirable against the petitioner at the behest of a political heavy weight Shreeram Sharma. Learned counsel has also argued that enquiry was not conducted in consonance and in conformity with Rule 22 of the Rajasthan Panchayat Raj Rules 1996 (for short, ‘Rules of 1996’) and therefore consequential punishment order cannot be sustained. Learned counsel for the petitioner would contend that the petitioner has been made scapegoat for certain allegations, which were almost two decades old and for that no proper enquiry was conducted and therefore punishment meted out to him is too harsh which cannot be sustained. 8. I have heard learned counsel for the petitioner and perused the materials on record. 9. Upon perusal of the material on record, more particularly, the enquiry report, it is crystal clear that the petitioner has participated in the enquiry and has also made his statement before the enquiry officer. The recitals contained in the enquiry report clearly and unequivocally reveal that enquiry has been conducted in a very fair and impartial manner in adherence of principles of natural justice. The enquiry officer in want of proof has exonerated the petitioner from some of the charges. As regards charge No.5, the enquiry officer has recorded a definite finding that while in helm of affairs as Sarpanch in the year 1987-88, the petitioner has retained a sum of Rs.1355.44 which was entrusted to him and interest on the said amount is liable to be recovered from him. On charge No.6, enquiry officer has found the petitioner guilty for purchasing construction material without issuing NIT. In respect of charge No.8, there is a categorical finding that petitioner has retained a sum of Rs.9,946 which was entrusted to him for construction of house for the teacher and for that he very candidly submitted before the enquiry officer that he is prepared to deposit the same. This admission of the petitioner completes the act of defalcation. In respect of charge No.8, there is a categorical finding that petitioner has retained a sum of Rs.9,946 which was entrusted to him for construction of house for the teacher and for that he very candidly submitted before the enquiry officer that he is prepared to deposit the same. This admission of the petitioner completes the act of defalcation. Similarly, charge No. 9 & 10 were also found proved against the petitioner. In totality, the indictment of the petitioner for charges No.5, 6, 8, 9 & 10 cannot be categorized as infirm from any stretch of imagination. Participation of the petitioner in the enquiry and making his statement before the enquiry officer further repels the contention of the petitioner that enquiry officer has violated Rule 22 of the Rules of 1996. 10. The contention of the learned counsel for the petitioner, that earlier enquiry was conducted by SDO, Bikaner and petitioner was exonerated, appears to be quite alluring but there is no semblance of proof that the said enquiry was conducted in accordance with the legal provisions which were in vogue for such enquiries at the relevant point of time. Moreover, so called enquiry report has also not been placed on record by the petitioner. One more redeeming fact is that the complaint (Annex.2) was laid subsequent to the alleged enquiry by SDO, Bikaner wherein requisite details have been furnished showing serious irregularities by the petitioner as Sarpanch, Gram Panchayat Rambag/Sherpura. Therefore, in my considered opinion, while objectively examining the said complaint, the second respondent has rightly resorted to conduct a thorough enquiry against the petitioner under Rule 22 of the Rules of 1996 to unearth the truth. Consequently, the argument of the learned counsel for the petitioner that after exoneration second enquiry was not desirable, is not tenable and is hereby rejected. 11. The petitioner has also assailed the impugned order by categorizing the same as arbitrary, unreasonable and unjust but in the facts and circumstances of the instant case, I am afraid, this argument cannot be sustained. 11. The petitioner has also assailed the impugned order by categorizing the same as arbitrary, unreasonable and unjust but in the facts and circumstances of the instant case, I am afraid, this argument cannot be sustained. Well it is true that after 73rd amendment of the Constitution, Panchayati Raj Institutions in India have been conferred with the Constitutional Status as the third stratum of governance to fulfill the Directive Principles of State Policy enshrined under Article 40 of the Constitution of India, this by itself cannot authorize the elected representatives of Panchayati Raj Institutions to squander public money and to indulge in gross acts of misconduct like misappropriation/defalcation of public funds. By virtue of Article 40 of the Constitution of India, the Panchayati Raj institutions are endowed with the requisite powers and authority to function as units of self government but such powers are to be exercised to farther the interests of the rural poor and the villagers. The elected representatives of Panchayati Raj institutions having constitutional status are expected to act with transparency while dealing with public money and to act with pragmatic approach for the development of the rural areas. If the enquiry report and the impugned order are examined in that background, then it will ipso facto reveal that the petitioner as Sarpanch i.e. elected representative of the third stream of governance with constitutional status has acted in an absolutely arbitrary and callous manner by indulging in acts of misappropriation. There is a candid admission of the petitioner about allegation of misappropriation and therefore in totality of circumstances looking to the conduct of the petitioner it is not desirable to take a benevolent and charitable view in the matter in exercise of extraordinary equitable jurisdiction enshrined under Article 226 of the Constitution of India. 12. Resultantly, I find no merit in this writ petition and the same is accordingly dismissed summarily.