MULTANA RAM Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner challenges the order by which be has been removed as a Sarpanch and also the order of respondent No. 3 by which a meeting was called of the Panchayat Samiti, Baap in which respondent No. 4 was elected as temporary Pradhan of the Panchayat Samiti. The petitioner was elected as a Sarpanch of the Panchayat Samiti Kanasar in 1965 By virtue of Sec. 8(1)(i) of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 thereinafter, called "the 1959 Act"), the Sarpanch is an ex officio member of the Panchayat Samiti. The petitioner was subsequently elected as a Up Pradhan of the Panchayat Samiti.

(2.) It appears complaints were made against the petitioner that be had mis -used his position as a Sarpanch and had also mis -utilised the grant made by be State Government to the Panchayat and had thus mis -conducted himself, The Deputy District Development Officer, Jodhpur asked the Panchayat Assistant to enquire and report under Sec. 17(4) of the Rajasthan Panchayat Act, 1953 thereinafter called as "the 1953 Act") After holding a preliminary enquiry and finding charges prima facie proved a notice was issued to the petitioner. Subsequently the State Government passed an order under Sec. 17(4) of the Act dated 29 -7 -75 removing the petitioner from the Sarpanch ship. By the same order it was also directed that steps should be taken to recover from be petitioner the amount which he had mis -utilised on which the charges had been proved Thereafter the impugned notice dated 6 -8 -75 was issued by respondent No. 3 in which it was stated that the petitioner had ceased to be a Sarpanch under Sec. 17(4) of the 1953 Act and consequently bad ceased to be a Up Pradhan and therefore a meeting of the Panchayat Samiti was being called on 12 8 75 to elected a new Pradhan in place of the petitioner This led the petitioner to file the present writ petition challenging both his removal as a Sarpanch and also the action of respondent No. 3 in holding a meeting for election of Pradhan and the consequent election of respondent 4 as Up Pradhan.

(3.) The first grievance of the counsel for the petitioner Mr. Parekh is that the finding of the Government is vitiated because of the non -compliance with the fundamental principles of natural justice inasmuch as no opportunity was given to the petitioner and also further that no enquiry report on the basis of which the ultimate decision to remove the petitioner was taken by the State Government was made available to him This plea has been contested by the respondents in their reply in which it has been specifically stated that on receipt of the complaint against the petitioner the Panchayat Assistant was asked to enquire and report under Sec. 17(4) of the 1953 Act. After Mr. Mohan Singh, the Panchayat Assistant made an enquiry in presence of the petitioner a report was submitted to the Collector and there upon a notice for explanation was issued to the petitioner. Thereafter the Collector held a preliminary enquiry and the petitioner was served the allegations The reply of the petitioner having been found unsatisfactory State Government appointed Sub Divisional Officer, Phalodi as Enquiry Officer under Rules, The petitioner and his witnesses appeared before the Inquiry Officer on 25 -3 -71 and 17 -6 -71. I find that the notices were issued to the petitioner asking him to participate in the proceedings. Not only that, the proceedings before the Inquiry Officer clearly show that the witnesses were examined in the presence of the petitioner and that the petitioner fully participated in the enquiry. Mr. Parekh however joins issue and maintains that it may the that the petitioner had joined the proceedings before the Inquiry Officer but nevertheless the order of the State Government is vitiated because no report of the Inquiry Officer was sent to the petitioner with the result that be could not give his explanation properly. This plea is contested in the reply affidavit filed by respondents Nos. 1 to 3 in which it is stated that the Sap Government on receipt of the enquiry report from the Sub Divisional Officer, Phalodi served a notice on the petitioner along with a copy of the charge sheet end enquiry report of the Sub Divisional Officer, Phalodi for reply and personal bearing. Ex R/18 and Ex. R/19 said to be the notice and the acknowledgment said to have been refused by the petitioner have been attached. A reference to Ex. R/18 clearly shows that it is a show cause notice sent under Sec. 17(4) of the 1953 Act to the petitioner in which it is mentioned that the charges against the petitioner have been proved. It also says that a charge sheet was being enclosed and also further intimating to him that whatever papers or documents or record be wants to produce in his defence may be done by him. However this letter was said to have been refused by the petitioner as per registered acknowledgment due (Ex. R/19). Mr. Parekh sought to make much of the fact that in Para 11(a) of the reply the respondents have mentioned the date for a personal hearing as being 9 -1 -75. Mr. Calla Deputy Government Advocate has however made it clear that the 1975 has wrongly been mentioned for 1973; that appears to be so because in the letter Ex. R/18 dated 29.11.72 the date of hearing mentioned in the body of letter is 9 -1 -73 That apart, the decision of removing the petitioner was not taken by that date and the matter seems to have been adjourned. The petitioner himself has admitted that he was asked to appear before the Minister of Community Development and Panchayat on 15 -7 -75 by notice -attached as Ex. D. In this notice also the petitioner has been asked to produce any record or any other document in his defence which he likes. The petitioner also admits in the writ petition that similar notices have been previously received by him from the State Government to that same effect. It is relevant to note that the petitioner has not either stated in the petition or filed any letter by which he might have asked from the respondents that a copy of the report of the Inquiry Officer be supplied to him and that the tame was refused to him. The argument of Mr. Parekh that the non supply or the enquiry report vitiates the order of the State Government cannot be accepted as it is based on mistaken assumption that the enquiry report was not supplied to the petitioner. On the other hand the respondents have taken the categorical stand that the report of the Inquiry Officer was sent to the petitioner and also further it is clear that at no stage was ever a complaint or a demand made by the petitioner to the State Government for supply of the enquiry report. I could have understood the grievance if the petitioner had asked for the report of the Inquiry Officer and the same had been denied. But the petitioner having never asked for the same, it must be taken that he at no time felt prejudiced in his defence and it is now therefore futile for Mr. Parekh to raise this ground for invalidating the State Government's order.