ASHOK RANKA Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) Petitioner, an Ex -Chairperson of Municipal Board, Rajsamand has preferred this writ petition to challenge the impugned order dated 26.09.2011 (Annex.8) passed by the Dy. Secretary, Local Self Department, Rajasthan, Jaipur whereby he is declared ineligible for re -election of the Ward Member of the Municipality for six years from the date of the order. The order impugned against the petitioner is passed under Ss. 39, 40 and 41 of the Rajasthan Municipalities Act, 2009 (for short 'the Act of 2009').

(2.) Succinctly stated the factual matrix giving rise to this writ petition are that the petitioner was elected as Ward Member of Municipal Board, Rajsamand from Ward No. 18 in the year 2006. Later on, the petitioner was elected as Chairperson of the Municipal Board by lottery. Projecting very tall claims about his abilities and impartiality during the entire tenure, it is submitted by the petitioner in the writ petition that the tenure came to an end in February 2011. When the petitioner was in helm of affairs as Chairperson of Municipal Board, Rajsamand, leader of opposition Mr. Chunnilal Pancholi lodged many complaints against him alleging serious irregularities in disposal of his work as Chairperson. While categorising all these complaints as frivolous and vexatious, the petitioner has submitted in the writ petition that all the complaints were of no substance. Be that as it may, the fact remains that complaints of the leader of opposition were taken cognizance by the Dy. Director (Regional), Local Self Department, Udaipur and vide communication dated 02.07.2009 forwarded the inquiry report prepared by him to the Assistant Director (Vigilance), Local Self Department, Jaipur. It appears that Dy. Director (Regional), Local Self Department, Udaipur conducted an inquiry during his visit to Municipal Board, Rajsamand on 18/19 -06 -2009 and arrived at a conclusion that allegations levelled by the leader of opposition against the petitioner are prima facie proved. This sort of situation facilitated a charge -sheet and statement of charges and in all four charges were framed against the petitioner. The petitioner has mentioned with clarity and precision that during inquiry conducted by the Dy. Director (Regional), Local Self Department, Udaipur, no opportunity of hearing was afforded to him and for substantiating this assertion, the petitioner has laid emphasis on communication dated 02.07.2009 containing recitals that the Dy. Director has examined the record and heard Mr. Pancholi only. The report submitted by the Dy. Director (Regional), Local Self Department, Udaipur prompted the Dy. Secretary, Local Self Department to issue a notice dated 24.08.2009 to the petitioner in terms of Sec. 63 of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959'). By this notice, the petitioner was called upon to submit his explanation in relation to the charges levelled against him within a fortnight with a stipulation that if desired explanation is not furnished within stipulated period, proceedings under Sec. 63 of the Act of 1959 would be initiated against him. In the notice dated 24.08.2009, four charges were levelled against the petitioner. In response to the notice, the petitioner submitted his reply on 02.09.2009 (Annex.3). After considering reply/explanation of the petitioner, State Government was satisfied vis   -vis charge No. 2 and as such the said charge was dropped against the petitioner but for the remaining three charges i.e. charge Nos. 1, 3 & 4, a judicial inquiry was ordered and Special Secretary cum Joint Legal Remembrancer, Law Department was appointed as Enquiry Officer. Taking a dig at the stand of the respondents in mentioning the provisions of the Act of 1959, the petitioner has submitted that Sec. 63 of the Act of 1959 is replaced by Sec. 39 of the Act of 2009. During judicial inquiry under Sec. 39 of the Act of 2009, notices were issued to the petitioner accompanying the charge -sheet, list of witnesses and list of documents in regard to all the three charges on 16.12.2009. In response to Annex.4, the petitioner submitted his reply and also presented himself personally before the Enquiry Officer as desired by him on 03.02.2010. While proceeding with the inquiry, the Enquiry Officer called upon the department to produce the evidence but no evidence was tendered by the department after availing many opportunities and finally the Enquiry Officer closed the evidence of department on 04.01.2011. Although no evidence was tendered by the department to substantiate the charges, the Enquiry Officer by its inquiry report dated 05.08.2011 indicted the petitioner for charge Nos. 1 and 2 and recorded a finding that charge No. 3 is not proved against the petitioner. The inquiry report is submitted by the Enquiry Officer on 05.08.2011. Assailing the procedure adopted by the Enquiry Officer, the petitioner has pleaded in the writ petition that findings on charge Nos. 1 and 2 recorded in the report against him are contrary to settled law, prescribed cannons of justice, fair play and natural justice. The petitioner has made an attempt to categorise the judicial inquiry as an empty formality by submitting that as a matter of fact, in want of evidence, the proceedings ought to have been dropped. While referring to Sub -section (3) of Sec. 63 of the Act of 1959, the petitioner has submitted in the writ petition that it was expected of the Enquiry officer to send the record alongwith his finding to the State Government for passing the necessary orders. It is further submitted that the Enquiry Officer was obliged to record reasons for recording his finding on the statement of charges. It is specifically pleaded by the petitioner that even the inquiry report was not endorsed to him before sending it to the Government. The inquiry report was, thereafter, considered by the State Government and while concurring with the findings of the report, impugned order was passed whereby the petitioner was declared as disqualified for six years to contest the election.

(3.) In the writ petition, the petitioner has made an attempt to defend his action vis   -vis both the charges. As regards charge No. 1, the petitioner has submitted that land situated in Arazi No. 347 measuring 1 bigha and 15 biswas of village Tarsingda jointly owned by him and his partner Hemant Kumar was pending consideration before the Municipal Board in a proceedings under Sec. 90B of the Rajasthan Land Revenue Act, 1956 (for short 'the Act of 1956') and when the said file was put up before him in the capacity of Chairperson, he has simply put a remark . Therefore, according to him, he has not passed any affirmative order in respect of that file. It is also asserted by the petitioner that till date, the proceedings under Sec. 90B of the Act of 1956 have not completed and patta has not been issued by the Municipal Board, Rajsamand in this behalf. Therefore, as per version of the petitioner, regarding this charge, no culpability can be attributed to him. On the second charge, the petitioner submitted his explanation that tender was issued by the Municipal Board on 24.05.2008 of Rs. 2,72,000/ - for filling work of road at the places mentioned in the tender document. It is also averred that in front of Kawadia Hospital, a big pit was there which was hurdle in traffic causing danger to the public at large and, therefore, on a request being made by the Collector and other government officers, he has instructed the contractor Kanhaiyalal Tak to do filling work. In order to justify this action, the petitioner has also romped in involvement of the larger public interest for doing the said work. The approval of the Municipal Board in general meeting about the said work on 04.03.2009 is also cited as a plausible defence to repudiate charge No. 2.