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2022 DIGILAW 251 (RAJ)

Sang Singh Rajpurohit v. State Of Rajasthan

2022-01-25

DINESH MEHTA

body2022
ORDER Dinesh Mehta, J. - The petitioner an elected Sarpanch has called in question an order dated 11.06.2021, whereby he has been placed under suspension. 2. The facts relevant are few. The petitioner was elected Sarpanch of Gram Panchayat Kanodiyan Purohitan, Panchayat Samiti Sekhala, District Jodhpur. He was trapped red-handed by Anti-Corruption Bureau and hence, an FIR No.75/2021 came to be lodged against him on 12.03.2021. 3. On receiving the information about apprehension and registration of case, the Additional Commissioner and Joint Secretary (Enquiry) issued a notice dated 11.06.2021 to the petitioner, asking him to show cause why enquiry under Rule22(2) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996') not be initiated against him. 4. Along with the notice aforesaid, a copy of the charge as framed was also enclosed. 5. On the same date, i.e., 11.06.2021, the respondent-State decided to place the petitioner under suspension in exercise of its powers under section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994'). A separate order No. 1437 dated 11.06.2021 came to be passed. 6. The petitioner claims to have filed a reply to the said notice on 25.06.2021. 7. Mr. Ashok Chhangani, learned counsel for the petitioner has questioned the legality and propriety of above referred suspension order on two counts :- (i) petitioner's suspension in exercise of powers under section 38(4) of the Act of 1994 is unsustainable as the petitioner has simply been apprehended as the trial has not yet commenced, as the charges have not been framed in the Court, (ii) that till today, enquiry as contemplated under section 38(1) of the Act of 1994 has not been initiated and thus, the petitioner cannot be placed under suspension. Because, sub-section (4) of section 38 of the Act of 1994 clearly makes a reference of an enquiry envisaged under section 38(1). 8. In support of his contentions, Mr. Chhangani, learned counsel for the petitioner relied upon the case of Narayan Lai Birla Vs. State of Rajasthan & Ors. decided on 04.09.1997 SBCWP No.2259/1997 (reported in RLW1997(3)Raj1854). 9. Mr. Because, sub-section (4) of section 38 of the Act of 1994 clearly makes a reference of an enquiry envisaged under section 38(1). 8. In support of his contentions, Mr. Chhangani, learned counsel for the petitioner relied upon the case of Narayan Lai Birla Vs. State of Rajasthan & Ors. decided on 04.09.1997 SBCWP No.2259/1997 (reported in RLW1997(3)Raj1854). 9. Mr. Sunil Beniwal, learned AAG, on the other hand submitted that on 11.06.2021, along with issuing a notice (Annex.4) to the petitioner, a copy of the charge framed against the petitioner was also served and thus, enquiry as contemplated under section 38(1) of the Act of 1994 has been initiated. 10. Learned counsel submitted that the enquiry against the petitioner has been initiated under sub-rule (2) on the basis of information about petitioner's arrest. He added that enquiry under sub-rule (1) of Rule 22 is not mandatory while highlighting the difference between provisions contained in sub-rule (1) and sub-rule (2). He emphasised that it is not always necessary to first conduct a preliminary enquiry or factual inquiry and then resort to enquiry under Rule 22(2) of the Rules. If the State Government is made aware of certain facts/information which are not subservient to factual enquiry or preliminary enquiry, the State can directly initiate inquiry under sub-rule (2) of Rule 22 of the Rules of 1996. 11. He submitted that when the State Government came to know that the petitioner has been apprehended red-handed while accepting bribe on 11.03.2021 and remained behind bars between 12.03.2021 and 24.03.2021, it was thought appropriate to initiate enquiry against the petitioner for removing him from the post of Sarpanch. 12. Inviting Court's attention towards the provisions contained in sub-rule (2) of Rule 22, learned counsel argued that the expression *or otherwise' used in sub-rule (2) is very significant and a reading thereof goes to show that either on the basis of the preliminary enquiry conducted as per sub-rule (1) or otherwise, even without a preliminary enquiry, if relevant facts come to the notice of the State Government, it can directly proceed with the enquiry under Rule 22(2) of the Rules of 1996. He added that such enquiry is the initiation of enquiry within the meaning of section 38(1) of the Act of 1994. 13. He added that such enquiry is the initiation of enquiry within the meaning of section 38(1) of the Act of 1994. 13. He summed up his arguments by urging that on issuance of notice dated 11.06.2021, the enquiry against the petitioner under section 38(1) of the Act of 1994 has been initiated, and such being the position, the State Government was legally justified in placing the petitioner under suspension. 14. In support of his arguments aforesaid, Mr. Beniwal relied upon following three judgments :- (i) Chandra Prakash Vs. State of Rajasthan & Ors. Spl. Appeal No.934/1999 (reported in AIR 2000 Raj 44 ); (ii) Ganesh Choudhary Vs. State of Rajasthan & Ors. SBC WP No. 10903/2009 & 8011/2008 (reported in RLW 2012 (l)Raj l67) and (iii) Bhanwar Lal Kumawat Vs. State of Rajasthan & Ors. SBCWP No.3620/2003 (reported in 2004 (l) WLC 656. 15. Mr. Chhangani, in rejoinder contended that the judgments that have been cited by Mr. Beniwal, learned AAG are not relevant and they only deal with the issue as to whether holding of preliminary enquiry under Rule 22(1) is necessary or not and therefore, the State cannot take any advantage of the adjudication or observation made in these judgments, because petitioner's case is that even inquiry preliminary or otherwise has not so far commenced. 16. Heard. 17. Precisely stated, the issue in hands is; whether information sent by the Anti-Corruption Bureau to the State Government that an elected representative has been apprehended red handed can be construed to be an information to the State Government so as to do away with the enquiry as envisaged under sub-rule (1) of Rule 22 and secondly, whether serving of the definite charges under Rule 22(2) amounts to initiation of proceedings under section 38(1) of the Act of 1994. 18. Before proceeding ahead, it would be profitable to have provisions of section 38 and Rule 22 handy, hence, they are being reproduced hereunder :- "Section 38. Removal and suspension. 18. Before proceeding ahead, it would be profitable to have provisions of section 38 and Rule 22 handy, hence, they are being reproduced hereunder :- "Section 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 or a deputy chairperson of a Panchayati Raj Institution, who (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of 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, be continued thereafter and in any such case the state Government shall by order in writing record its findings on the charges levelled. (2) The chairperson or the deputy chairpersons removed under Sub-Section (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned. (3) The member or the chairperson or the deputy chairperson removed under Sub-Section (1) or against whom finding have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (4) The State Government may suspend any member including a chairperson or a deputy chairpersons of a Panchayati Raj Institution against whom an enquiry has-been initiated under Sub-Section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution [stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension [;] [Provided that the State Government may also suspend any Panch on the recommendation of the Ward Sabha or a Sarpanch on the recommendation of the Gram Sabha, but the State Government shall do so only when a resolution to that effect passed by a Ward Sabha. or a Gram Sabha as the case may be, is referred by the State Government to the collector for convening a special meeting of the Ward Sabha or the Gram Sabha, as the case may be, for finally ascertaining the wishes of the members and the members present in the meeting so convened by the Collector and presided over by his nominee, reaffirm the resolution seeking suspension of the Panch or the Sarpanch, as the case may be, by a majority of two thirds of the members present and voting Provider further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be.] (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Section 97, be final and shall not be liable to be questioned in any Court of law. Rule 22. Procedure of enquiry. - (1) Before taking any action under Sub-Section (1) of Section 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 report received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-Section (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 written statement, appointment 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. (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 provisions 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 orders. In case of removal, it shall also be published in official gazetted : Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired." 19. A perusal of section 38 of the Act of 1994 leaves no room for ambiguity that the State can remove an elected representative after holding an enquiry under section 38(1). It is also apparent that for the purpose of holding enquiry under section 38(1), there are two separate provisions contemplated in the form of sub-rule(1) and sub-rule (2) of Rule 22 of the Rules of 1996. Sub-rule (1) provides for a preliminary enquiry to be done, whereas sub-rule (2) is a step subsequent to inquiry under sub-rule (1). They are two paths to commence disciplinary proceedings against a Member of Panchayat Raj Institution. 20. Having regard to the nature of allegation and complexity of facts, the State may get fact finding or preliminary enquiry conducted before initiation of inquiry under section 38(1). But the same is not necessary. In appropriate case, if the facts are telling or undisputed, the fact finding inquiry provided under sub-rule (1) can be dispensed with and a resort can be had to an enquiry under sub-rule (2) of Rule 22 of the Rules of 1996. 21. But the same is not necessary. In appropriate case, if the facts are telling or undisputed, the fact finding inquiry provided under sub-rule (1) can be dispensed with and a resort can be had to an enquiry under sub-rule (2) of Rule 22 of the Rules of 1996. 21. But if a preliminary enquiry has been chosen/ordered to be held, then, on receipt of the preliminary enquiry report, the competent authority has to apply its mind and issue a fresh notice initiating proceedings under sub-rule (2) of Rule 22 of the Rules of 1996. 22. Provisions contained in Rule 22(2) provides that either on the basis of a report of preliminary enquiry given under rule (1) 'or otherwise', if the State Government is of the opinion that the enquiry under sub-rule (1) is required, it can proceed against an elected representative. 23. In the opinion of this Court, any step taken under Rule 22(2) of the Rules of 1996 represents a stage, when an enquiry can be said to have been initiated against an elected representative. It begins from a point, at which upon consideration of the preliminary enquiry report either, the State can drop the proceedings or can proceed in furtherance of the enquiry and reach the stage of cognizance of the fact known to it and kick-start the enquiry. 24. In the opinion of this Court, enquiry under 22(1) is rather directory. In appropriate case, it can be done away with, if the allegations per-se are not subsurvient to factual inquiry, as has been done in the extant facts. 25. In the instant case, notice dated 11.06.2021 along with a definite charge was served upon the petitioner and simultaneous to the issuance of the notice, the petitioner has been placed under suspension on 11.06.2021 itself. 26. The expression used in sub-section (4) of section 38 is, 'initiation of enquiry' and therefore, once a notice under Rule 22(2) of the Rules of 1996 has been issued, the initiation of enquiry takes place. 27. This Court is, therefore, of the considered view that on issuance of the notice to the petitioner on 11.06.2021 (Annex.3), inquiry under section 38(1) has been initiated and once such enquiry has been initiated, the State Government was justified in placing the petitioner under suspension. 28. 27. This Court is, therefore, of the considered view that on issuance of the notice to the petitioner on 11.06.2021 (Annex.3), inquiry under section 38(1) has been initiated and once such enquiry has been initiated, the State Government was justified in placing the petitioner under suspension. 28. My aforesaid view is fully fortified by para No.7 & 8 of the judgment of Division Bench rendered in case of Chandra Prakash (supra) :- "7. A conjoint reading of the above extracted provisions will show that before a decision is taken to initiate a regular enquiry under Section 38 (l)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 Section 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 Section 38(1) on the basis of informations available other wise, 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 4 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 Annexure R 10 dated 28-5-1999 and Annexure R/ll dated 2-6-1999 that Rule 336(4) empowers the Chief Executive Officer to hold a preliminary enquiry. 8. We are also in agreement with the view of the learned single Judge that even other wise, the report/documents filed by the Chief Executive Officer would fall in the category report received "otherwise". 8. We are also in agreement with the view of the learned single Judge that even other wise, the report/documents filed by the Chief Executive Officer would fall in the category report received "otherwise". The learned single Judge has dealt with this aspect in great detail. If such material is not permitted to be used, the very purpose of using the word "otherwise" by the legislature shall be defeated. If the State Government can consider the material received from any other source, we fail to understand why the material received from the Chief Executive Officer can not be considered?" 29. So is the situation in the case of Bhanwar Lal Kumawat (supra), wherein this Court has held as under :- "10. The first question which comes up for consideration is that, can there be an initiation of enquiry under Rule 22 (2) of the Rules without there being a preliminary enquiry? There was no preliminary enquiry conducted. Learned counsel for the petitioner has laid stress on the language of Rule 22(1). It has provided in this provision that the preliminary enquiry has to be initiated first and thereafter, under Sub-rule 2 of Rule 22, an opinion is required to be framed after considering that report by the State Government. According to the learned counsel for the petitioner, the opinion could only be framed after consideration of the preliminary enquiry. Learned Additional Advocate General has contended that this is otherwise possible. 12. Rule 22 as quoted hereinabove is perused. There are two expression available. One relates to the consideration of the preliminary report and other expression is or "otherwise." Both these expressions are separated by or. Thus, given a grammatical meaning to the word 'or', this clearly comes out that either the first condition or the second condition should be satisfied. It is admitted that State has not conducted any preliminary enquiry. It has considered circumstances otherwise available. The circumstances were considered sufficient to order an enquiry as envisaged under Sub-Rule 2 of the Rule 22. The petitioner has been accused of accepting a bribe in a trap laid by Anti- Corruption Department. Such conduct of an elected representative lowers down the image of democratically elected institution. If such persons are permitted to remain in office, when they are prima facie found guilty of accepting bribe, then this does not reflect a good health of the democracy. 13. Such conduct of an elected representative lowers down the image of democratically elected institution. If such persons are permitted to remain in office, when they are prima facie found guilty of accepting bribe, then this does not reflect a good health of the democracy. 13. I am prepared to lean in favour of the learned counsel for the State that without there being a preliminary enquiry, if there was otherwise material available to the State then it was possible to initiate an enquiry. Thus, the first argument of the learned counsel for the petitioner that there being no preliminary enquiry available to frame an opinion, no enquiry could have been initiated against the petitioner, is rejected. Consequently, it cannot be said that on this ground, the initiation of enquiry by the State can not be held to be bad in the eye of law." 30. In the case of Ganesh Choudhary (supra) also, this Court has taken identical view while observing this :- "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. In view of the above discussion, I do not find any merit in both these writ petitions and same are accordingly dismissed." 31. The argument of Mr. Ashok Chhangani that in all the cases, enquiry under Rule 22(1) is mandatory and it is only after crossing the stage of preliminary enquiry under Rule 22(1), the stage of issuing notice under Rule 22(2) arrives does not hold much water. 32. At the cost of repetition, it can be summarised that sub-rule (1) & (2) of Rule 22 of the Rules of 1996 speak of two entirely different types of enquiries. 32. At the cost of repetition, it can be summarised that sub-rule (1) & (2) of Rule 22 of the Rules of 1996 speak of two entirely different types of enquiries. Sub-rule (1) speaks of preliminary enquiry which in a given case, if deemed appropriate, may be got conducted by the authorities empowered, whereas sub-rule (2) prescribes an enquiry on the basis of preliminary enquiry conducted in sub-rule (1) or simply on the basis of information otherwise available with the State Government. Such enquiry is the enquiry for the purpose of section 38(1) of the Act of 1994. 33. As an upshot of discussion foregoing, this Court does not find any merit and substance in the present writ petition, for which, it is hereby dismissed. 34. Stay petition also stands dismissed accordingly.