OM PRAKASH TIWARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition has been filed against the order dated 27. 04. 1991 in which respondent No. 2 Joint Legal Remembrancer II while conducting the enquiry in the matter of Kanhaiya Lal Jhanwar, Chairman of Municipal Board, Nokha has rejected the application of the petitioner that he has no locus standi and as such cannot be permitted to lead the evidence or impleading a party in the enquiry. It has also been found by the said enquiry officer that it cannot be said that the petitioner was responsible for initiation of the enquiry as on the basis of the record it was found that the deputation headed by. Shri Chuni Lal Ex. M. L. A. and Pradhan met the then Minister for initiating the enquiry. It has also been referred in the said order that the application of the petitioner for being impleaded as a party in writ petition No. 1393/93 has been rejected and no appeal Was filed against the said order. The appeal was filed by Kanhaiya Lal Jhanwar and the. Division Bench has referred that matter to the Larger Bench. That was a matter with regard to the suspension of the Chairman and subsequently revoking the order of suspension.

(2.) THE submission of the learned counsel for the petitioner is that the State Government in collusion with Kanhaiya Lal Jhanwar is not leading the proper evidence and the petitioner in the public interest had a due right and obligation to bring the actual facts on record and, therefore, a writ should be directed to non-petitioner No. 1 to produce proper evidence and relevant files and the evidence to prove allegations levelled against the non-petitioner No. 3 in the enquiry pending under Section 63 of the Municipalities Act before the non-petitioner No. 2 in relation to removal of non-petitioner No. 3 from the post of Chairman Municipal Board Nokha. A prayer has also been made to quash the order dated 27. 03. 1993.

(3.) I have considered over the matter. The finding of fact has been recorded by the enquiry officer that the petitioner was not the complainant on the basis of which the enquiry was initiated. Even if it would have been the position the question arises as to whether an outsider has the right to intervene in the proceedings. In accordance with the provisions of Section 63 (4) of the Rajasthan Municipalities Act, 1959 the State Government may place under suspension a member against whom proceedings have been commenced under this section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the board or otherwise perform the duties of a member hereof. Sub- section (3) of this Section provides that the judicial officer so appointed shall proceed to inquire in to the charge in the prescribed manner, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considered relevant to the charge and send the record along with such findings to the State Government, which shall thereupon pass orders in conformity with those findings. " The object of making a judicial officer to enquire into the charges itself is a provision by which, the finding has to be recorded by such authority judiciously, independently and reasonably without being influenced by either side on the basis of the record before it. It has to be kept in view that under sub-section (2) of Sec. 63 the State Government has to draw the statement setting out distinctly the charge against the member and shall send the same for inquiry and findings by judicial officer. The statement which is to be drawn by the State Government has to be on the basis of the report from the Municipal Board under sub-section (l) (a) or an enquiry which has already been conducted by the officer authorized in this behalf under sub-section (1) of Section 63. The charge and the statement on the basis of such enquiry/report is made are included in' the statement drawn under sub-section (2) and then it is sent to the judicial officer for enquiry and finding. So far as the enquiry from the judicial officer is concerned, he may take into consideration even the evidence which is not on record but it could be only from the either of the parties namely; the member or the State Government. The section nowhere contemplate intervening of a third party. If there was any material with the petitioner which he considers as a relevant then he should have sent it to State Government. If it is permitted that the third party will also have the right to intervene then it may result even delay in enquiry or harassment to the member or even one after the other person may at any stage approach the judicial officer for being impleaded. The petitioner cannot be considered to be a necessary or a proper party and when this very prayer made before the single flench the same was rejected. If a Division Bench of Full Bench comes to the conclusion in the matter pending before it then the position may be different but at this stage no relief can be granted to the petitioner. An order dated 22. 3. 1993 in S. B. Civil Writ Petition No 398/93 Ram Chandra Vs. State of Raj. & Ors. was submitted to show that Hon'ble Justice Kejriwal has referred the matter to the Larger Bench to examine as to whether the government has any power to recall a suspension order under the Act before the conclusion of final enquiry particularly when this suspension order has been upheld by this Court and as to whether the petitioner has any locus standi to file a writ petition. If the Larger Bench takes a decision that the petitioner has locus standi to file a writ petition or that the complainant or an outsider has a right to be impleaded as a party in the proceedings under Section 63 (4) of the Municipalities Act, 1959, in that case the petitioner would be entitled for the relief in accordance with the decision of the Full Bench but merely on the proposition that such a decision may be given in favour of the petitioner, no relief can be given at this stage when the judgment of Hon'ble Justice I. S. Israni is already against the petitioner and a single Bench is bound by the decision of another Collateral Bench. The relief also could not be given at this stage on the ground that neither the petitioner was a complainant nor the State Government has taken into consideration any document of the petitioner while suspending the Sarpanch nor at this stage when the enquiry has already been completed by the judicial officer it could be directed to be reopened. This is beside the point that the order of the learned Single Judge in rejecting the application of the petitioner for being impleaded as a party in the writ petition No. 1393/93 has already been rejected and he has not filed an appeal against it but has moved an application in the special appeal preferred by Kanhaiya Lal Jhanwar.