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2023 DIGILAW 1137 (RAJ)

Vijendra Kumar v. State of Rajasthan

2023-05-17

GANESH RAM MEENA

body2023
JUDGMENT : Ganesh Ram Meena, J. The petitioner has filed this writ petition challenging the order dated 01.01.2021 issued by the Addl. Commissioner & Joint Secretary-II (Enquiry), Government of Rajasthan, Rural Development & Panchayati Raj Department, whereby petitioner- Vijendra Kumar (Elected Member of Ward No.18, Panchayat Samiti Laxmangarh, District Sikar), has been removed from the post of Member, Panchayat Samiti, Laxmangarh, District Sikar and declared the post vacant under the provisions of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994') and further he has been declared permanently ineligible for contesting the elections to any Panchayati Raj Institutions. 2. Before dealing with the arguments of the counsels appearing for the respective parties it would be proper to mention the detailed facts which emerges for consideration of this Court on the basis of pleadings of the parties. 3. After due Notification for the general elections to the Panchayati Raj Institutions, the petitioner- Vijendra Kumar submitted his nomination form for Ward No.18 on 08.11.2020 for election as a Member of the Panchayat Samiti, Laxmangarh, District Sikar. Along-with the nomination form, the petitioner submitted the details about his living children. He mentioned that he has two children namely; Paridhi, born on 04.03.2015 and another Akshita, born on 10.02.2017. The petitioner submitted the nomination form as a candidate of the political party i.e. Bhartiya Janta Party. 4. After voting for the elections, the counting of votes took place on 08.12.2020 and thereafter, the result was declared on the same day and the petitioner was declared a 'returned candidate' as Member of Panchayat Samiti, Laxmangarh, District Sikar from Ward No.18 and on being declared as a returned candidate, a certificate of election was also issued by the Returning Officer. 5. After declaration of the result and the petitioner being declared as a returned candidate, a complaint on the very same day i.e. on 8.12.2020 was submitted by one Mr. Sarendra Kumar Meel, who was a defeated candidate in the election. In the complaint, which is Annex.4 in the writ petition, complainant Sarendra Kumar Meel has alleged that the petitioner- Vijendra Kumar at the time of filing of the nomination form was having two living children and on 20.11.2020 his wife has given birth to the third child. Sarendra Kumar Meel, who was a defeated candidate in the election. In the complaint, which is Annex.4 in the writ petition, complainant Sarendra Kumar Meel has alleged that the petitioner- Vijendra Kumar at the time of filing of the nomination form was having two living children and on 20.11.2020 his wife has given birth to the third child. In this manner, as on the date of election i.e. on 8.12.2020, he has more than two living children and has become ineligible for being Member of the Panchayati Raj Institution. It was specifically mentioned in the said complaint that the petitioner Vijendra Kumar be declared ineligible and he be restrained from participating in the election process for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and next day respectively. 6. On the basis of the complaint dated 08.12.2020 by complainant Mr. Sarendra Kumar Meel, making allegations against the petitioner, the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar, on 08.12.2020 issued a show cause notice to the petitioner stating that his wife has given birth to a child on 20.11.2020. It has also been mentioned in the show cause notice that on an inquiry being conducted by the Block Medical Officer, Laxmangarh, there is a confirmation of 'missing delivery' of his wife Smt. Anju Devi, which is her third child. Explanation to the show cause notice was to be submitted by 12:00 noon on 09.12.2020. On 09.12.2020 the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar) submitted its report/ recommendation to the Addl. District Collector, Sikar, for taking appropriate action in regard to the prayer in the complaint for declaring the petitioner ineligible and to restrain him from participating in the election for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and 11.12.2020 respectively. On 09.12.2020 the Block Chief Medical Officer, Laxmangarh, also submitted a letter stating that there were pre-delivery medical examinations of the wife of the petitioner giving out tentative delivery date as 03.12.2020. It has also been mentioned therein that since there is no information submitted to them in regard to the delivery, the same can be treated as 'missing delivery'. 7. It has also been mentioned therein that since there is no information submitted to them in regard to the delivery, the same can be treated as 'missing delivery'. 7. On 09.12.2020, the Tehsildar, Laxmangarh, District Sikar submitted to the Returning Officer (Sub Divisional Magistrate), Laxmangarh, District Sikar, that on the basis of the inquiry report of the Patwari and the Village Development Officer, Jasrasar, it has been found that the wife of the petitioner has given birth to a healthy child on 03.12.2020. 8. On 09.12.2020 the Additional Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, issued a letter seeking explanation of the petitioner to be submitted before 24.12.2020 along-with the evidence with a specific statement of charge that he has now got third child and has incurred disqualification in view of the provision of 19(l) of the Act of 1994 and, therefore, why the petitioner should not be removed from the Member, Panchayat Samiti. 9. On 23.12.2020 the petitioner submitted a detailed representation to the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, seeking one month's time for submitting his explanation and the evidence in response to the charges leveled against him. In the representation the reasons for seeking time were that the notice of charge dated 09.12.2020 was affixed on his house on 15.12.2020 in his absence and when he came to know about this notice on 16.12.2020, he found no statement of charge there and also because of ill-health and situation of pandemic Covid-19, he was under treatment. He also demanded the statement of charges levelled against him. 10. In response to the representation of the petitioner dated 23.12.2020 the Addl. Commissioner & Joint Secretary (Enquiry), Rural Development & Panchayati Raj Department, vide its letter dated 24.12.2020 allowed seven days time to submit his explanation in regard to the charges. 11. On 31.12.2020 the petitioner in response to the letter dated 24.12.2020 of the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, submitted a representation seeking some documents so that an appropriate explanation could be submitted by him. 12. On 01.01.2021, the Addl. 11. On 31.12.2020 the petitioner in response to the letter dated 24.12.2020 of the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, submitted a representation seeking some documents so that an appropriate explanation could be submitted by him. 12. On 01.01.2021, the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, removed the petitioner Vijendra Kumar (Elected Member of Ward No.18, Panchayat Samiti Laxmangarh, District Sikar), from the post of Member, Panchayat Samiti and declared the post vacant under the provisions of the Rajasthan Panchayati Raj Act, 1994 and further he has been declared permanently ineligible for contesting the elections to any Panchayati Raj Institutions. 13. In between the period of 08.12.2020 to 01.01.2021 the petitioner was placed under suspension vide order dated 09.12.2020 issued by the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, and ordered that during the suspension the petitioner will not be allowed to participate in any proceedings of the Panchayat Samiti. The Addl. Commissioner & Joint Secretary (III), Rural Development & Panchayati Raj Department also vide letter dated 15.12.2020 asked the District Collector to get a Medical Board constituted for having medical examination of Smt. Anju Devi- wife of the petitioner for report in regard to delivery of a child as confirmed by the report of the Tehsildar. In this regard, another letter was written by the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, to the District Collector on 24.12.2020. On 15.12.2020, the District Collector, Sikar directed the Chief Medical Officer, Government Kalyan Hospital, Sikar to constitute a Medical Board and submit a report in regard to the delivery of third child by Smt. Anju Devi. On 16.12.2020, the District Collector, Sikar, also wrote to the Chief Executive Officer, Zila Parishad, Sikar and the Chief Medical & Health Officer, Sikar for getting a Medical Board constituted and to submit a report in regard to the delivery of a third child by Smt. Anju Devi- wife of the petitioner for inquiry under section 38(4) of the Act of 1994. Letters were also written by the District Collector, Sikar to the Chief Medical & Health Officer, in this regard on 18.12.2020 and 25.12.2020. Letters were also written by the District Collector, Sikar to the Chief Medical & Health Officer, in this regard on 18.12.2020 and 25.12.2020. The Sub Divisional Officer, Laxmangarh, District Sikar on 18.12.2020 issued a letter to Smt. Anju Devi- wife of the Vijendra Kumar to appear for medical examination on 21.12.2020 at 11:00 AM. 14. The Chief Medical Officer vide letter dated 18.12.2020 submitted the inquiry report of the Medical Board and reported that for an impartial inquiry Smt. Anju Devi- wife of Vijendra Kumar is required to appear before the Medical Board for examination and in absence of that nothing can be suggested about the delivery. 15. On an apprehension to the petitioner that in view of the complaint against him, he may be deprived from participating in the election process for Pradhan and Up- Pradhan scheduled on 10.12.2020 and 11.12.2020, he filed a suit for specific performance in the Court of learned Addl. District Judge, Laxmangarh, Sikar, along-with an application under Order XXXIX Rules 1 & 2 read with section 151 CPC submitting that the petitioner /plaintiff is the duly elected candidate as a Member of the Panchayat Samiti. Vide interim order dated 10.12.2020 the Court of learned Addl. District & Sessions Judge, Laxmangarh, District Sikar, allowed the petitioner to participate and vote in the election process. However, it was observed that his vote will be kept in a sealed cover which shall be counted accordingly after completion of the inquiry by the District Collector. 16. This Court vide order dated 19.01.2021 directed that the vote which was already cast by the petitioner for election of Pradhan and Up-Pradhan, shall be kept in a sealed cover and the same shall not be destroyed by the respondents without prior permission of the Court. 17. Counsel appearing for the petitioner submitted that the impugned order dated 01.01.2021 has been passed by the respondents by invoking the powers under section 39(2) of the Act of 1994 and the entire process of removing the petitioner was submitted by the respondents by giving a notice under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996'). He further submitted that for giving the effect to the procedure which is prescribed under the Act of 1994, the authorities are required to follow Rule 23 of the Rules of 1996 but the respondents in a most arbitrary and illegal manner has proceeded to invoke the provision of section 38 of the Act of 1994 read with Rule 22 of the Rules of 1996. He has further submitted that the presumption in regard to the third child being born as per the order dated 01.01.2021, is wholly illegal and arbitrary and without any evidence and presumption of a birth of a child cannot be made by the respondents only on account of some reports summoned from the hospitals where the wife of the petitioner has gone on medical check-ups. It has also been submitted that the inquiry report of the Medical Board submitted along- with the letter dated 18.12.2020 clearly speaks that in absence of medical examination by the Medical Board of Smt. Anju Devi, noting can be said about the delivery of a child by Smt. Anju Devi. He has further submitted that no opportunity was afforded to the petitioner even as per the given procedure under Rule 22 of the Rules of 1996. He further submitted that as per the provisions of law, notice of inquiry under Rule 22 of the Rules of 1996 provides for one month time for submitting the explanation but in the present case, the petitioner was allowed only 15 days. The petitioner though submitted a representation on 23.12.2020 seeking extension and requested for the statement of charge. Though, the request of the petitioner for extension of time was allowed but that too only for seven days, whereas on supply the copy of statement of charge, one month time should have been allowed as per the requirement of law. He further submitted that the petitioner has been issued notice under section 38 of the Act of 1994, whereas removal of a Member of Panchayati Raj Institution is dealt with under the provision of Section 39 of the Act of 1994 and inquiry under Rule 23 of the Rules of 1996. He further submitted that the petitioner has been issued notice under section 38 of the Act of 1994, whereas removal of a Member of Panchayati Raj Institution is dealt with under the provision of Section 39 of the Act of 1994 and inquiry under Rule 23 of the Rules of 1996. He has submitted that the order of removal of the petitioner from Member of Panchayat Samiti is wholly illegal, arbitrary, malafide, unjustified and with oblique motive to deprive the petitioner from participating in the election to Pradhan & Up-Pradhan so as to favour a candidate of opposite political ideology. He also submitted that the petitioner has been blessed with a third living child and the manner in which the respondents-authorities have proceeded clearly speaks malafides and colourable exercise of powers under some political compulsions. It has also been argued that the respondents authorities while issuing the order of removal dated 01.01.2021 has relied upon the judgment delivered by the Hon'ble Apex Court in case of Javed & Anr. v. State of Haryana, reported in 2003 AIR (SC) 3057, whereas the Hon'ble Apex Court has not made any such observation in regard to presumption of a third child in absence of any specific conclusion after inquiry. He also stated that with an oblique motive to deprive the petitioner from participating in the election for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and 11.12.2020, the petitioner was placed under suspension vide order dated 09.12.2020 and restrained him from participating in the proceedings of Panchayat Samiti. The suspension could only be made in regard to the allegations against a person about his functioning on the post to which he is elected or holds. In the present case, the petitioner has been placed under suspension with an oblique motive, whereas the law says that in case any elected representative is to be removed after inquiry then he shall hold the office till the order of removal. 18. Dr. Ganesh Parihar, AAG appearing for the respondents-State submitted that the inquiry has been held against the petitioner following the due process of law. He also submitted that after issuance of show-cause notice when the petitioner made his representation for extension of time, the period was extended for seven days vide letter dated 24.12.2020 enclosing the statement of charge. 18. Dr. Ganesh Parihar, AAG appearing for the respondents-State submitted that the inquiry has been held against the petitioner following the due process of law. He also submitted that after issuance of show-cause notice when the petitioner made his representation for extension of time, the period was extended for seven days vide letter dated 24.12.2020 enclosing the statement of charge. It has also been argued by the State counsel that Auxiliary Nurse and Midwife (for short 'ANM') in her statement has specifically stated that she went to the house of the petitioner and came to know from the persons living in the surrounding area that Smt. Anju Devi has given birth to a living child on 03.12.2020. He further submitted that a Medical Board was constituted for medical examination of Smt. Anju Devi in regard to the fact of giving birth to a child and for that letters were issued to the petitioner and Smt. Anju Devi but Smt. Anju Devi did not appear for medical examination. In support of his submissions, State Counsel has also gave a reference to the order dated 20.1.2020 passed in SBCW P. No. 974/2010, Radhey Shyam Yogi v. State of Rajasthan & Ors., and submitted that in a case of third child a candidate is disqualified to continue as a Member or Chairperson or Deputy Chairperson of any Panchayati Raj Institution and the Court cannot possibly grant the relief prayed for by the petitioner that he should be declared as being qualified to contest the election or to hold the post to which he was elected. State Counsel in support of his submissions also relied upon the order dated 20.01.2010 passed by the Coordinate Bench of this Court in the case of Radhey Shyam Yogi v. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No.974/10). The operative portion of the said order is as under:- "19. Section 19 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act") does not make any exception. Section 19 of the Act debars a person from contesting the election in case he has more than two children after the cut off date. Admittedly, the third child of the petitioner was born after the cut off date. Therefore, this Court cannot possibly grant the relief prayed for by the petitioner that he should be declared as being qualified to contest the election. Admittedly, the third child of the petitioner was born after the cut off date. Therefore, this Court cannot possibly grant the relief prayed for by the petitioner that he should be declared as being qualified to contest the election. Hence, this writ petition is devoid of any merit; it is, hereby dismissed." The issue involved in the case of Radhey Shyam Yogi (supra) is quite different from the issue involved in the present writ petition. Therefore, the observations of the Court in the said case are not applicable to the present case. 19. Mr. R.K. Agarwal, Senior Advocate for Intervener assisted by Mr. Shubham Kumar Sharma, submitted that merely mentioning of wrong provision i.e. Section 38 of the Act of 1994 in place of Section 39 of the Act of 1994 during the proceedings, does not vitiate the complete proceedings. He further submitted that the petitioner was blessed with a third child and therefore, the petitioner was ineligible to contest the election. He further submitted that for proceedings under section 39 of the Act of 1994, the inquiry is being conducted under Rule 23 of the Rules of 1996 against a duly elected person where 15 days notice is required and not one month's notice. He also submitted that as per the provision of section 114 of the Indian Evidence Act, an adverse inference can be drawn in regard to the allegations against the petitioner as he failed to produce his wife for medical examination before the Medical Board even after repeated letters. In response to the arguments of the counsel appearing for the petitioner that the petitioner has not been afforded an appropriate opportunity for defending his case as he has not received the charge-sheet along-with the notice which was affixed at his house, has submitted that if the petitioner did not receive the copy of the charge-sheet along-with the show-cause notice dated 09.12.2020, the petitioner would have immediately rushed and said that he has not received the statement of charge. He further submitted that ample opportunities were allowed to the petitioner to submit extension but he failed and the inquiry report of the Medical Board is also against him, and therefore, the order of removal dated 01.01.2021 is just and proper in the facts and circumstances of the present case and the order dated 01.01.2021 does not require any interference under Article 226 of the Constitution of India. 20. Considered the rival submissions made by the counsels appearing for the respective parties. 21. So as to give observations and findings in the arguments made by the counsels appearing for the respective parties, this Court would like to quote the relevant provisions of the Act of 1994 and the Rules of 1996. The provision of Section 38 of the Act of 1994 deals with the removal and suspension in certain cases, which is as under:- "38. Removal and Suspension: (1) The State Government may, by order in writing and after giving him and 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 Chairperson removed under sub-Section (1) may at the discretion of the State Government also be removed from the membership, of 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-sec, 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 suspended any member including a Chairperson or a Deputy Chairperson 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 offense involving moral turpitude is pending trial in a Court of law and such person shall 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 wished 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-third of the members present and voting: Provided 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 28 in any Court of law." Before passing any order under the said provision, an inquiry is required to be conducted under Rule 22 of the Rules of 1996. Rule 22 of the Rules of 1996 is as under:- "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. 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. (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. (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." The provision of section 39 of the Act of 1994 deals with 'cessation of membership' of a person of Panchayati Raj Institution in certain situations. The provision of section 39 of the Act of 1994 is as under:- "39. Cessation of membership: (1) 1 [A] member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he- (a) is or becomes subject to any of the disqualification specified is Sec. 19; or (b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or (c) is removed from the membership; or (d) resigns from the membership; or (e) dies; or (f) fails to make the prescribed oath or affirmation of the office or membership within three months from the date of election or appointment. (2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-section (1), the competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member: (xxx) Provided [xxx] that until a declaration under this sub-Section is made he shall continue to hold his office." 22. Before passing any order under Section 39 of the Act of 1994, the inquiry is required to be conducted under Rule 23 of the Rules of 1996. Rule 23 of the Rules of 1996 is as under:- "23. Before passing any order under Section 39 of the Act of 1994, the inquiry is required to be conducted under Rule 23 of the Rules of 1996. Rule 23 of the Rules of 1996 is as under:- "23. Procedure for removal in case of disqualification: (1) Whenever it is represented to, or otherwise brought to the notice of the Chief Executive Officer in case of Panch/Sarpanch and to the State Government in case of Pradhan/Up- Pradhan, Pramukh /Up-Pramukh or Member of a Panchayati Raj Institution, who has been declared to be duly elected as such or who has been appointed as such under any provision of the Act, was not qualified, or was disqualified, for such election or appointment at the time when he was so elected or appointed or has thereafter become disqualified for continuing as such member, the competent authority shall draw up clearly and precisely the alleged disqualification or disqualifications forming the subject of the representation made to it, or otherwise brought to its notice, and shall forthwith issue a notice to such member, which shall: - (i) Set out the gist of the allegations against, him. (ii) Fix a date, not less than fifteen days after the date of issue of the notice, on which the inquiry shall be made. (iii) Require him to show cause, for personal appearance or in writing, why his seat should not be declared by the State Government to be or to have become vacant on the ground of his having been not qualified, or disqualified, as alleged. (iv) Call upon him to produce, in denial of the allegation, such documentary or other evidence as may be in his possession, and (v) Invite him to appear personally, if he so desires, on the date fixed by the notice, and a copy of the notice shall be sent also to the information, if any. (iv) Call upon him to produce, in denial of the allegation, such documentary or other evidence as may be in his possession, and (v) Invite him to appear personally, if he so desires, on the date fixed by the notice, and a copy of the notice shall be sent also to the information, if any. (2) On the date fixed by the notice, the Chief Executive Officer or the State Government as the case may be, shall hear the informant, if any, as well as the member if he appears before him and requests for a personal hearing shall consider the document and other evidence produced by them in proof or disproof of the allegation or allegations, shall make such further inquiry as he may think necessary, shall record a finding as to the alleged disqualification or disqualifications and shall either order the proceedings to be dropped or declare the seat of such Member to have become vacant or make such other order as may be proper in the circumstances of the case under Section 39 of the Act." 23. The first argument raised by the counsel appearing for the petitioner is that on a complaint made by the defeated candidate Mr. Sarendra Kumar Meel, a charge-sheet was issued to the petitioner on 09.12.2020 for initiating an inquiry under sub-rule (2) of Rule 22 of the Rules of 1996 in respect of declaring the petitioner ineligible to hold the post under the Panchayati Raj Institution. Counsel appearing for the petitioner has submitted that the inquiry under Rule 22 of the Rules of 1996 is in respect of orders passed under Section 38 of the Act of 1994 in a situation when any member including a Chairperson or Deputy Chairman of the Panchayati Raj Institution, who refused to act or became ineligible of acting as such or is guilty of misconduct in the discharge of duties or any disgraceful conduct. 24. Counsel appearing for the petitioner further submitted that in the present case there is no such allegation against the petitioner. The allegation against the petitioner is that he has been blessed with a third child and therefore, he has become ineligible to hold the post. 24. Counsel appearing for the petitioner further submitted that in the present case there is no such allegation against the petitioner. The allegation against the petitioner is that he has been blessed with a third child and therefore, he has become ineligible to hold the post. In view of the provision of section 19(1) of the Act of 1994, the inquiry in regard to declaring an elected person ineligible and removal is required to be conducted under Rule 23 of the Rules of 1996 in view of the provision of Section 39 of the Act of 1994, and therefore, the proceedings against the petitioner are vitiated and the impugned order deserves to be quashed and set aside. 25. State Counsel submitted that the inquiry has been conducted in accordance with law and there is no infirmity in the same. 26. Counsel appearing for the Intervener submitted and fairly stated that the inquiries for removal of a Member of Panchayati Raj Institution under Section 39 of the Act of 1994 on occurring of disqualification mentioned in Section 19(l) of the Act of 1994, are required to be conducted under Rule 23 of the Rules of 1996. He further submitted that merely mentioning a wrong provision in the proceedings does not vitiate the whole proceedings. 27. The Coordinate Bench of this Court in Bahujan Samaj Party & Anr. v. Hon'ble Speaker, Rajasthan Legislative Assembly & Ors. (S.B. Civil Writ Petition No.8056/2020 with one connected petition) decided on 24.08.2020 has observed in paragraphs No.61 and 62 as under:- "61. Much emphasis has been laid by the petitioners on the aspect that vide order impugned, the Speaker has accepted the claim of merger relying upon the provisions of paragraph 4 of the Tenth Schedule and therefore, the same is without jurisdiction, void ab initio and non est in the eye of law. In this regard, suffice is to say that mere mentioning of wrong statutory provision or its non-mentioning does not render an order illegal if the authority to pass the same can be traced to a statutory provision. In this regard, suffice is to say that mere mentioning of wrong statutory provision or its non-mentioning does not render an order illegal if the authority to pass the same can be traced to a statutory provision. The Hon'ble Apex Court has, in the case of P.K. Palanisamy v. N. Arumugham and Anr.- (2009)9 SCC 173 , held as under:- 27..."It is a well settled principle of law that mentioning of a wrong provision or non- mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor". Similarly, in the case of N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278 , it is stated: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 62. Since, validity of the order dated 18.09.2019 can be traced to the Rules of 1989; mere mentioning of provisions of paragraph 4 of the Tenth Schedule in it, would not render it void ab initio. In view of the above observations, mentioning of a wrong provision during the proceedings does not vitiate the complete proceedings. However, judicial review of the proceedings under challenge are to be scrutinized in the facts and circumstances of the case and in the light of the relevant provisions. 28. Rule 23 of the Rules of 1996 under which the inquiry in regard to the cessation of a membership of a person is conducted, provides for issue of such a notice to a Member which shall set out the gist of allegations against him and fix a date, not less than fifteen days after the date of issue of the notice, on which the inquiry shall be made. 29. It is borne out from the record that the notice dated 09.12.2020 was not served to the petitioner but the same was affixed at the house of the petitioner on 15.12.2020 when the petitioner was not at his house. 29. It is borne out from the record that the notice dated 09.12.2020 was not served to the petitioner but the same was affixed at the house of the petitioner on 15.12.2020 when the petitioner was not at his house. He came to know about the notice dated 09.12.2020 which was affixed at his house on 15.12.2020 on 16.12.2020 when he reached in his house and found a notice dated 09.12.2020 affixed there but there was no any statement of charge affixed there, meaning-thereby, that the petitioner was not served with the charge-sheet as required under Rule 23 of the Rules of 1996. The petitioner also made a representation dated 23.12.2020 to the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, stating that he came to know about the notice dated 09.12.2020 on 16.12.2020 but no statement of charge was affixed and requested that the copy of statement of charge be given to him and one month's time may be allowed to him to submit the explanation. In response to the representation of the petitioner, the Addl. Commissioner & Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, enclosing the copy of the charge-sheet sent a letter to the petitioner dated 24.12.2020 allowing only seven days time to submit his explanation. 30. It was argued by the counsel appearing for the Intervener that on the representation, the petitioner was allowed extra seven days time to submit his explanation but the petitioner has failed to do so. 31. Rule 23 of the Rules of 1996 clearly speaks that the authority competent to act under Section 39 of the Act of 1994 shall draw up clearly and precisely disqualify the alleged disqualification or disqualifications forming the subject of the representation made to it, or otherwise brought to its notice, and shall forthwith issue a notice to such Member, which shall set out the gist of allegations against him and fix a date not less than 15 days after the date of issue of the notice on which the inquiry shall be made. Rule 23 of the Rules of 1996 clearly speaks that 15 days time as provided is to commence from the date the notice with the gist of allegations is served to the person. It does not say that even a notice without gist of allegations will serve the purpose. Rule 23 of the Rules of 1996 clearly speaks that 15 days time as provided is to commence from the date the notice with the gist of allegations is served to the person. It does not say that even a notice without gist of allegations will serve the purpose. In the present case, the copy of gist of allegations i.e. the charge-sheet was sent to the petitioner along-with the letter dated 24.12.2020 allowing only seven days time to submit the explanation and the respondents soon after the completion of seven days from 24.12.2020 passed the order of removal of the petitioner and declared the post vacant vide order dated 01.01.2021. In view of the above, this Court is of the view that the respondents have not followed the mandate of Rule 23 of the Rules of 1996 as they did not allow proper opportunity to the petitioner owing to the fact that the petitioner has not been allowed 15 days time to submit his defence after providing him the statement of charge-sheet with letter dated 24.12.2020. 32. After filing of the nomination form on 08.11.2020 the voting took place on 05.12.2020 and the petitioner was declared elected after declaration of the result on 08.12.2020. The defeated candidate Mr. Sarendra Kumar Meel made a complaint on the very same day of declaration of result i.e. on 08.12.2020 that the petitioner has been blessed with a third living child on 20.11.2020, and therefore, he may be declared ineligible and he may be restrained from participating in the election process and voting for the post of Pradhan and Up-Pradhan scheduled on 10.12.2020 and 11.12.2020 respectively. On the complaint submitted by complainant Mr. Sarendra Kumar Meel, the respondent authorities issued a show cause-notice dated 08.12.2020 to the petitioner for his explanation to be submitted by 12:00 noon on 09.12.2020. As per the record the said show cause notice dated 08.12.2020 calling the explanation of the petitioner by 12:00 noon on 09.12.2020 was actually dispatched on 09.12.2020 bearing postal dispatch No.7227. In the meantime, the authorities also collected a fact finding inquiry report from the concerned Medical Office in regard to delivery of third child by the wife of the petitioner. On 09.12.2022 itself, the Tehsildar, Laxmangarh, District Sikar, intimated to the Returning Officer that the wife of the petitioner Smt. Anju Devi has given delivery to a living child on 03.12.2020. On 09.12.2022 itself, the Tehsildar, Laxmangarh, District Sikar, intimated to the Returning Officer that the wife of the petitioner Smt. Anju Devi has given delivery to a living child on 03.12.2020. The said conclusion of the inquiry was based on the report of the Patwari Halka and the Village Development Officer. The reports were thereafter sent to the Rural Development & Panchayati Raj Department and on the same day i.e. on 09.12.2020 the Addl. Collector & Joint Commissioner (Inquiry), placed the petitioner under suspension without even waiting for a single day. The gist of complaint dated 08.12.2020, the hasty and hurry manner in which the respondent authorities has proceeded on the same and placing the petitioner under suspension without there-being any ground for suspension as envisaged under Section 38 of the Act of 1994 and the scheduled dates of election of Pradhan and Up-Pradhan on 10.12.2022 and 11.12.2020, clearly speaks intention of the complainant and the authorities to keep away the petitioner from the election process and voting for Pradhan and Up- Pradhan. The facts narrated from above paragraphs No.5 to 15 and the manner in which the order under challenge has been passed against the petitioner without providing proper opportunity to defend him as observed in the above paragraph No.31, clearly reveals the ill intention and malafide of the respondent authorities, though there may not be specific pleadings and grounds of allegation of malafides against the respondent authorities but the manner in which the authorities have proceeded against the petitioner was with intention to keep him away from the voting of Pradhan and Up-Pradhan. The malafide is not required to be proved when the facts on record and the chain of events clearly speak for the same. 33. The Hon'ble Apex Court in State of Bihar & Anr. v. P.P. Sharma, IAS & Anr., reported in 1992 Supp (1) SCC 222 has observed in paragraphs No.50 and 51 as under:- "50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fiae manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fiae involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The action taken must, therefore, be proved to have been made mala fide for such considerations Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." The Hon'ble Apex Court in State of Punjab v. V.K. Khanna & Ors. & one connected matter, reported in (2001) 2 SCC 330 , has observed in paragraphs No.2, 11 and 37 as under:- "2. The concept of fairness in administrative action has been the subject matter of considerable judicial debate but there is total unanimity on the basic element of the concept to the effect that the same is dependant upon the facts and circumstances of each matter pending scrutiny before the Court and no straight jacket formula can be evolved therefor. As a matter of fact, fairness is synonymous with reasonableness: And on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as what is in contemplation of an ordinary man of prudence similarly placed - it is the appreciation of this common mans perception in its proper perspective which would prompt the Court to determine the situation as to whether the same is otherwise reasonable or not. 11. 11. It is at this juncture, therefore, the relevancy of the factual details is otherwise felt to assess the situation as to whether there is existing cogent evidence of improper conduct and motive resultantly a malafide move on the part of the appellants herein against respondent No.1 V.K. Khanna. The records depict that immediately before the departure of the earlier Ministry in the State of Punjab and Shri Khanna being the Chief Secretary of the State in terms of the specific orders of the then Chief Minister referred two cases to the Central Bureau of Investigation: The first being accumulation of assets in the hands of Shri Bikramjit Singh, IAS being disproportionate to the known source of income and secondly allotment of land and release of funds to the Punjab Cricket Association the Government, however, changed and soon thereafter the petitioner was chargesheeted inter alia for acting in a manner which cannot but be ascribed to be malafide and in gross violation of the established norms and procedure of the Government function contrary to the service rules and in any event, lack of fair play and lack of integrity with high moral as was expected of a senior civil servant. 37. As noticed above malafide intent or biased attitude cannot be put on a straight jacket formula but depend upon facts and circumstances of each case and in that perspective judicial precedents would not be of any assistance and as such we refrain from further dealing with various decisions cited from the Bar since facts are otherwise different in each of the decisions." The Hon'ble Apex Court in Parbodh Sagar v. Punjab State Electricity Board & Ors., reported in AIR 2000 SC 1684 , in para 13 has observed that "Incidentally, be it noted that the expression 'mala fide' is not a meaningless jargon and it had its proper connotation. Malice or mala fides can only be appreciated from from the records of the case in the facts of each case. There cannot possibly be any set of guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances." 34. Malice or mala fides can only be appreciated from from the records of the case in the facts of each case. There cannot possibly be any set of guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances." 34. The impugned order dated 01.01.2021 has been passed by the respondent authorities stating that for ascertaining the fact of delivery of third living child by Smt. Anju Devi- the wife of the petitioner, several notices were issued for producing Smt. Anju Devi before the Medical Board for examination. In the order under challenge, it has been stated that since the petitioner has not controverted the fact of delivery of third living child by his wife, the same is being treated as an admission of the delivery of third living child by the petitioner. Such finding of the respondent authorities is perverse and not sustainable. On 23.12.2020 the petitioner submitted a representation to the respondent authorities for seeking time to submit his defence in regard to the allegations against him and also for seeking copy of the statement of charge leveled against him. In response to the representation of the petitioner, the respondents vide letter dated 24.12.2020 sent a copy of the statement of charge to the petitioner allowing him seven days time for submitting his defence, though the provision of Rule 23 of the Rules of 1996 provides for 15 days time for submitting the representation and initiation of inquiry thereafter. In the present case, the statement of charge was given to the petitioner along-with letter dated 24.12.2020. The impugned order dated 01.01.2021 has been passed by the Addl. Commissioner & Joint Secretary (Inquiry) by which the petitioner has been removed from the post of Member, Panchayat Samiti, Laxmangarh, District Sikar and declared the post vacant under the provisions of the Act of 1994 and further he has been declared permanently ineligible for contesting the elections to any Panchayati Raj Institutions without there being any further inquiry as required under sub-rule (1)(ii) of Rule 23 of the Rules of 1996. The respondents while passing the order impugned relied upon the report of the Tehsildar which was forwarded by the District Collector to the Department. The respondents while passing the order impugned relied upon the report of the Tehsildar which was forwarded by the District Collector to the Department. The Tehsildar in his letter dated 09.12.2020 has stated that on the basis of the report of the Patwari and the Village Development Officer, it is concluded that the wife of the petitioner has given birth to a third living child on 03.12.2020. The respondents along-with the reply have also enclosed the report of the Block Chief Medical Officer, Laxmangarh, District Sikar dated 09.12.2020 and the statement of ANM Smt. Santara Devi, in support of the report that the wife of the petitioner has delivered third child. The statement of Smt. Sandara Devi dated 09.12.2020 is as under:- Jh fotsUnz dqekj iq= ukSjaxyky ds orZeku esa 2 ftfor larku gS ftudk tUe 04-03-2015 ,oa 10-02-2017 dks gqvk Fkk vatqnsoh iRuh fotsUnz dqekj ds 03-12-20 dks fnyhojh laHkkfor frfFk Fkh blfy, eSa muds ?kj 04-12-20 dks igqaph rc vatqnsoh ?kj ij ugha feyh vkl&ikl ds fuokfl;ksa ,oa xzkeh.kksa ls iwNrkN djus ij crk;k fd vatqnsoh us 03-12-20 dks ,d LoLF; thfor larku dks tUe fn;k gSA fjiksVZ Jheku mi[k.M vf/kdkjh egksn; th dks izlhr gSA lUrjk nsoh A.N.M 09-12-20 35. When the concerned ANM states that the tentative date of delivery was 03.12.2020 and she reached at the house of the petitioner on 04.12.2020, it has not been clarified by the concerned ANM and the respondent authorities that when the tentative date for delivery was 03.12.2020, why she went to the house of the petitioner on 04.12.2020, whereas she should have went there before delivery to take care of mother of child (Smt. Anju Devi-wife of the petitioner). The Chief Medical Officer also submitted a report of the Medical Board which was forwarded to the District Collector on 08.12.2020 stating that for an impartial inquiry personal presence of Smt. Anju Devi is required for medical examination. In absence of her presence and medical examination, nothing can be said about the delivery of child. The Chief Medical Officer also submitted a report of the Medical Board which was forwarded to the District Collector on 08.12.2020 stating that for an impartial inquiry personal presence of Smt. Anju Devi is required for medical examination. In absence of her presence and medical examination, nothing can be said about the delivery of child. The respondents in-stead of taking necessary and effective measures for presence and the medical examination of Smt. Anju Devi- the wife of the petitioner, proceeded with passing the order impugned presuming the delivery, as Smt. Anju Devi failed to appear before the Medical Board, whereas as per the report, six week's time was there with the respondents for her medical examination but the respondent authorities did not even wait for six weeks. In absence of proper opportunity to the petitioner, the presumption of delivery of third living child is not sustainable. The inquiry report of Patwari and the Village Development Officer having no sanctity as same lacks substantial material, cannot be the basis for presumption against the petitioner. 36. Counsels appearing from the both the sides relied upon the judgment delivered in the case of Javed & Anr. (supra). There is no dispute in regard to the validity of provisions in regard to disqualification on account of third living child after the cut-off date. The said judgment has no bearing in the facts and the circumstances of the present case, and, therefore, the impugned order dated 01.01.2021 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, considering the spirit of the said judgment is not sustainable as the said judgment is not applicable in the facts and the circumstances of the present case. 37. In view of the discussion made above, the writ petition deserves to be allowed and the impugned order dated 01.01.2021 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, deserves to be quashed and set aside being perverse, contrary to law and the same is with an oblique motive and malafide. 38. As a result, this writ petition is allowed and the impugned order dated 01.01.2021 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, is quashed and set aside. 39. 38. As a result, this writ petition is allowed and the impugned order dated 01.01.2021 passed by the Addl. Commissioner and Joint Secretary (Inquiry), Rural Development & Panchayati Raj Department, Government of Rajasthan, Jaipur, is quashed and set aside. 39. This Court vide interim order dated 19.01.2021 directed the respondents to keep in a sealed cover the vote cast by the petitioner for Pradhan and Up-Pradhan and not to destroy the same without permission of the Court. The petitioner was allowed to cast his vote in compliance of the interim order dated 10.12.2020 passed by the Civil Court in a civil suit filed by the petitioner. Lateron, the civil suit filed by the petitioner was withdrawn on 23.12.2020. After withdrawal of the civil suit, the petitioner cannot claim counting of vote he casted for Pradhan and Up- Pradhan and which kept in sealed cover, on the basis of the interim order passed in a suit which has been withdrawn by him.