RASIDA KHATOON Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Since, these writ petitions involve common questions of law and facts, therefore, with consent of the counsel for the parties, arguments have been heard together in all these matters and the same are being decided by this common order.

(2.) The petitioner has submitted three different writ petitions by way of (i) challenging the suspension order dtd. 15/7/2024 passed by the respondents; (ii) challenging the judicial enquiry conducted against the petitioner under Sec. 39 of the Rajasthan Municipalities Act, 2009 (for short, 'the Act of 2009'); (iii) challenging the enquiry report, submitted by the Enquiry Officer, on the ground that the enquiry was not conducted by the Enquiry Officer, so appointed for this purpose, but instead the powers were delegated to the subordinate authorities. Submissions on behalf of the petitioner:-

(3.) Counsel for the petitioner submits that the petitioner was elected as Chairperson, Nagar Parishad, Karauli and certain complaints were submitted against her with regard to issuance of pattas. Counsel submits that as per the proviso attach to Sec. 39(1) of the Act of 2009, the State Government was supposed to conduct an enquiry through existing or retired officer not below the rank of State Level Services. Counsel submits that in the instant case, the Additional Collector, Karauli was appointed as the Enquiry Officer to conduct an enquiry against the petitioner, but he did not conduct any enquiry himself rather delegated his powers to the subordinate Officers viz., the Tehsildar, Karauli as well as to the Commissioner, Municipal Council, Karauli and collected the report with regard to the allegations from them. Counsel submits that on the basis of the report, received from the aforesaid Officers, the order dtd. 5/6/2024, incorporating the said report, was sent by the Additional Collector, Karauli to the Director, Local Bodies, without any enquiry being conducted by him. Counsel submits that relying upon the aforesaid order/report dtd. 5/6/2024, a show cause notice under Sec. 39(1) of the Act of 2009 was issued and served upon the petitioner and she was placed under suspension vide impugned order dtd. 15/7/2024 and an order was also passed for conducting judicial enquiry against her. Counsel submits that as per the proviso attached to Sec. 39 (1) of the Act of 2009, it was incumbent upon the Enquiry Officer i.e. the Additional Collector, Karauli to hold and conduct the enquiry himself and could not have delegating his power to the subordinate officers i.e. the Commissioner, Municipal Council, Karauli and Tehsildar, Karauli. Counsel submits that under these circumstances, all the subsequent orders which were passed, based upon the report furnished by the Additional Collector have no bearing to the case and the same are not sustainable in the eyes of law and are liable to be quashed and set aside. Counsel submits that the general rule, whatever a person has power to do himself, he may do the same by means of an agent, has been limited by the operation of the principle that a delegated authority/power cannot be further delegated i.e. delegatus non protest delegare. Counsel further submits that if the order/report dtd. 5/6/2024 goes, the subsequent orders arising out of the aforesaid order will automatically fall. In such a factual situation the latin maxim sublato fundamento cadit opus comes into play which means that when the foundation is removed, the structure falls. Counsel further submits that the entire action against the petitioner is initiated on the allegation that pattas were illegally issued in favour of certain known persons by her. Counsel submits that the petitioner was simply a co-signatory of the pattas and the another signatory was the Commissioner, Municipal Council, Karauli against whom neither any action has been taken nor he has been placed under suspension or any inquiry has been initiated against him. Counsel submits that the aforesaid selective action of the respondents is nothing but adopting a pick and choose approach in the matter, inasmuch as when both the persons were at fault then certainly, the action was also required to be taken against both of them i.e. against the said Commissioner as well as the petitioner. In support of his contentions, he has placed reliance upon the judgment passed by this Court in the cases of Satish Kumar Duhariya Vs. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 11706/2023, decided on 23/1/2024) and Vimla Devi (Smt.) Vs. State of Rajasthan and Ors., reported in 2007 SCC Online Raj. 458.