KAMLA DEVI ALIAS KAMLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HON'ble PARIHAR, J Petitioner having contested the election of Sarpanch of Mandawar Panchayat, Panchayat Samiti, Tonk, was declared elected as Sarpanch on 31. 01. 2000. Subsequently, the petitioner was served with a charge sheet dated 24. 1. 2001. The petitioner was directed to submit her explanation within one month. The charge-sheet dated 24. 1. 2001 is under challenge in the present writ petition.

(2.) THE action of the respondent State has been assailed mainly on the ground that the charge sheet under Rule 22 (2) could not have been issued to the petitioner since most of the charges are in regard to the disqualification of the petitioner for holding the Office of Sarpanch at the time of election. Since no act as alleged in the charge sheet has been done during discharging the duties of a Sarpanch, the petitioner could not have been removed from the Office of Sarpanch. It has further been contended by the learned counsel for the petitioner that it is only by way of filing as Election Petition and a judicial pronouncement been made on the same, that the petitioner could be removed from the Officer of the Sarpanch.

(3.) THE procedure for enquiry has been provided in Rule 22 of the Rajasthan Panchayati Raj Rules of 1996. Rule 22 of the above Rules is reproduced here as under:- ``22. Procedure of enquiry.- (1) Before taking any action under sub-sec. (1) of Sec. 38, where on its own motion or upon any compliant, 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-sec. (1) of Sec. 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 consideration such written statement, appoint an Enquiry Officer and also nominate any person to present the case before Enquiry Officer on behalf of the State. (4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross- examination of witnesses shall be provided to the opposite side. (5) Enquiry Officer shall be prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved alongwith the reason 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 Gazette. Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired. '