Rajasthan High Court - Jaipur
Ram Singh Rajpurohit vs State Of Rajasthan And Ors. on 18 February, 2008
Equivalent citations: RLW2008(2)RAJ1848
Author: Sangeet Lodha
Bench: Sangeet Lodha
JUDGMENT Sangeet Lodha, J.
1. This writ petition is directed against order dated 30.4.2007 passed by the Division Commissioner, Jodhpur, whereby the petitioner, an elected Sarpanch of Gram Panchayat, Rupawas having been found guilty of misconduct in the discharge of his duties, has been declared disqualified to hold the office and approval of the proposed action was sought from the Department of Panchayati Raj, Government of Rajasthan. The petitioner has also assailed the validity of letter of approval dated 24.8.07 issued by the State Government and order dated 5.9.07 passed by the Divisional Commissioner, Jodhpur declaring the post of the Sarpanch, Gram Panchayat, Rupawas as vacant in pursuance of the approval granted by the State Government as aforesaid.
2. Briefly stated the facts relevant for the adjudication of the controversy involved in the present writ petition are that the petitioner was elected as Sarpanch of Gram Panchayat, Rupawas in the month of January, 05. During his tenure as Sarpanch, a work of construction of gravel road from Bhundaya Mata to Jodhpur was undertaken by the Gram Panchayat under the SGRY-30% Scheme. It is alleged that violating the norms laid down by the State Government for the construction of the work under the said Scheme, the petitioner got executed the work by using JCB machines and tractors. It was further alleged that the work was shown to be performed by the labourers by preparing fake muster roll. On receipt of a complaint alleging the irregularities committed by the petitioner, a preliminary inquiry was conducted by the Additional Executive Officer, Zila Parishad, Pali wherein he was found "prima facie guilty. The preliminary inquiry report alongwith charge sheet and statement of allegation was submitted by the Additional Executive Officer to the Divisional Commissioner, Jodhpur, who in his turn issued a notice under Rule 22 of Rajasthan Panchayati Raj Rules, 1996 (in short "the Rules of 1996" hereinafter) to the petitioner to show cause as to why in exercise of power conferred by Section 39(2) of Rajasthan Panchayati Raj Act, 1994 (in short "the Act of 1994" hereinafter), he may not be declared disqualified to hold the office of the Sarpanch, Gram Panchayat, Rupawas.
3. In response to the notice, the petitioner put in appearance and sought time for filing the reply. On 5.4.06, after hearing the counsel for the petitioner and representative of the Department of Panchayati Raj, the order was reserved by the Divisional Commissioner. It is stated that during the course of dictation of the order, it came to the notice of the Divisional Commissioner, Jodhpur that on the basis of preliminary inquiry report alone the charge against the petitioner has been held to be proved, accordingly, so as to extend opportunity of hearing to the petitioner in exercise of Rule 22(3) of the Rules of 1996, the Sub Divisional Officer, Sojat was appointed as an inquiry officer and was directed to submit the inquiry report after giving an opportunity of hearing to the petitioner.
4. After conclusion of the inquiry, the inquiry officer submitted the inquiry report wherein petitioner was found guilty of the charges of misconduct levelled against him. A copy of inquiry report was supplied to the petitioner and the notice for personal hearing was issued to him by the Divisional Commissioner, Jodhpur. After consideration of the material on record and hearing the petitioner, the Divisional Commissioner found the petitioner guilty of the charges of misconduct levelled against him and accordingly, while declaring him disqualified to hold the office of Sarpanch, ordered for reassessment of the construction work of the gravel road and to make recovery of the government dues alongwith penal interest. The approval of the State Government was sought and after receiving the requisite approval vide communication dated 24.8.07, in exercise of the power conferred by Section 39(2) of the Act of 1994, vide order dated 5.9.07 passed by the Divisional Commissioner, Jodhpur, the post of Sarpanch of Gram Panchayat, Rupawas was declared vacant.
5. It is contended on behalf of the petitioner that the Additional Executive Officer had no jurisdiction to hold preliminary inquiry on his own without there being any authorisation by the State Government in conformity with Rule 22 of the Rules of 1996. It is submitted that the subsequent proceedings taken against the petitioner on the basis of the report of the said preliminary inquiry stands vitiated on this count alone. It is submitted that from bare perusal of the proceedings, it is apparent that preliminary inquiry was conducted by Assistant Engineer who had no authority whatsoever to inter meddle in the matter of inquiry initiated against an elected Sarpanch under the provisions of the Act of 1994. It is submitted that the site inspection and entire preliminary inquiry was conducted in the back of the petitioner, therefore, the same could not have been relied upon for initiating proceeding against the petitioner Under Section 38 and 39 of the Act of 1994. It is submitted that even the Sub Divisional Officer has conducted the inquiry in gross violation of principle of natural justice inasmuch as the petitioner was not given an opportunity to cross examine the witnesses. It is submitted that while recording the finding of guilt against the petitioner, the statements of the defence witnesses have been altogether ignored/disbelieved without assigning any reason. It is submitted that the finding of guilt recorded by the Divisional Commissioner on the basis of the inquiry report submitted by the SDO and relying upon the statements of the witnesses who were not permitted to be cross examined by the petitioner is not sustainable in eye of law. it is further submitted that even the State Government has not considered the reply submitted by the petitioner and has granted the approval in a mechanical manner. Thus, according to the petitioner, the orders impugned have been passed in gross violation of principle of natural justice.
6. A reply to the writ petition has been filed on behalf of the respondents wherein it is denied that the preliminary inquiry was conducted by the Assistant Engineer, Zila Parishad, Pali. It is submitted that impugned order has been passed after affording full opportunity of hearing to the petitioner and while holding the inquiry, the procedure laid down under the Rules of 1996 has been followed.
7. During the course of argument in the matter, a question cropped up as to whether the notification dated 28.9.99 delegating the power to be exercised by the State Government under Section 38 and 39 of the Act of 1994 to the Divisional Commissioner, has been published in the official gazette or not? In these circumstances, vide order dated 27.11.07, the Dy. Government Advocate was directed to produce the copy of the notification published in the official gazette on record. In compliance of the order, the learned Additional Government Advocate has produced a communication dated 13.12.07 issued by the Dy. Legal Remembrancer, Department of Panchayati Raj, Government of Rajasthan, whereby Vikas Adhikari, Panchayat Samiti, Sojat has been informed that notification dated 28.9.99 was sent for publication in the official gazette (extra ordinary) to the Government Press, Rajasthan, Jaipur but, the copy of the notification after publication has not been made available till date. The learned Additional Government Advocate has also placed on record a communication dated 14.12.07 sent by the Superintendent, Government Press, Jaipur to Vikas Adhikari, Panchayat Samiti, Sojat informing that the copy of the notification dated 28.9.99 has not reached the Government Press, therefore, it is not possible to make available the copy of the gazette as desired. The Additional Government Counsel has produced a notification dated 11.8.03 published in the Rajasthan Gazette (extra ordinary) on September 18, 2003 whereby while amending the notification dated 28.9.99, it has been laid down that in the matters wherein after preliminary inquiry, an elected Sarpanch is found guilty and it is necessary to suspend him then, before passing the order of suspension, the Divisional Commissioner shall obtain approval of the State Government. However, it is not disputed before this Court that said notification dated 28.9.99, delegating the powers to be exercised by the State Government Under Sections 38 and 39 of the Act of 1994 to the Divisional Commissioner, has not been published in the official gazette till this date.
8. I have heard the learned Counsels for the parties, perused the record and considered the rival submissions.
9. It is contended by the learned Counsel appearing on behalf of the petitioner that admittedly, the notification dated 28.9.99 issued by the State Government in exercise of the power conferred by Section 98 of the Act of 1994 delegating its powers to be exercised Under Sections 38 and 39 of the Act of 1994, to the Divisional Commissioners, has not been published in the official gazette, therefore, the delegation has not come into force till this date and thus, the proceeding initiated against the petitioner by the Divisional Commissioner is absolutely without jurisdiction and stands vitiated on this count alone.
10. While reiterating the contentions raised in the writ petition noticed above, the learned Counsel submitted that the entire proceeding initiated against the petitioner is total farce inasmuch as the preliminary inquiry on the basis of which the petitioner has been charge sheeted was conducted by the Additional Executive Officer, Zila Parishad, Pali, without authority of law. The learned Counsel submitted that during the course of the inquiry conducted by the Sub Divisional Officer, Sojat under the directions of the Divisional Commissioner, Jodhpur, the petitioner was not afforded a reasonable opportunity of hearing inasmuch as, he was not permitted to cross examine the witnesses. The learned Counsel urged that the Sub Divisional Officer so also the Divisional Commissioner has not considered the evidence on record in correct perspective. It is submitted that the statements of the witnesses produced by the petitioner in his defence have been altogether ignored and whatever stated by the witnesses produced on behalf of the Department Panchayati Raj, who were not even permitted to be cross examined by the petitioner has been taken to be gospel truth. The learned Counsel submitted that there exists no nexus between the material on record and conclusion arrived at. The learned Counsel contended that even the State Government while granting approval has proceeded in mechanical manner without considering the reply submitted by the petitioner in response to the show cause notice. Accordingly, the learned Counsel submitted that the entire proceedings taken against the petitioner stands vitiated.
11. Per contra, the learned Dy. Government Advocate contended that the proceedings initiated against the petitioner is in accordance with law. It is submitted that since after issuance of the charge sheet, a proper inquiry has been held by the Sub Divisional Officer under the directions of the Divisional Commissioner therefore, any error in holding the preliminary inquiry by the Additional Executive Officer, Zila Parishad, Pali is of no consequences. The learned Counsel submitted that though the notification dated 28.9.99 has not been published in the official gazette but, it will not render the delegation made bad in law, particularly, in view of the fact, that notification dated 11.8.03 amending the earlier notification dated 28.9.99 has been duly published in the official gazette. The Dy. Government Advocate submitted that the full opportunity has been afforded to the petitioner during the course of inquiry in this regard, the material placed on record is self explanatory. The learned Counsel submitted that while granting approval concurring with the finding recorded by the Divisional Commissioner, Jodhpur, the State Government was not required to pass a reasoned order.
12. It is to be noticed that as per provisions of Sub-section (1) of Section 38 of the Act of 1994, if a member including Chairperson or a Dy. Chairperson of a Panchayati Raj Institution is found guilty of misconduct in discharge of duties or any disgraceful conduct, the State Government may remove him from the office after giving him an opportunity of being heard by order in writing. Sub-section (2) of Section 38 further provides that the Chairperson or Dy. Chairperson removed under Sub-section (1) may at the discretion of the State Government also be removed from membership of any of the Panchayati Raj Institution concerned. Thus, it cannot be disputed that the proceedings for removal of Sarpanch for the misconduct committed by him in discharge of his duties or for any disgraceful conduct can be initiated and concluded by the State Government. However, as per the provisions of Section 98 of the Act of 1994, the State Government is empowered to delegate all or any of its power under the Act of 1994 to any officer or authority subordinate to it by publication of the notification in the official gazette. Obviously, it is not possible for the State Government to exercise all the powers vested in it, therefore, in the interest of smooth and convenient administration, the delegation of the power to the subordinate authorities to the extent permissible under the relevant statute cannot be faulted with. But then, the delegation of such power has to be made in the manner laid down under the relevant statutory provision. It is settled law that if statute provides for an act to be performed in a particular manner then, that has to be performed in that manner alone, other modes of performance are necessarily forbidden. Reliance in this regard may be placed on the decisions of the Hon'ble Supreme Court in the matters of State of Uttar Pradesh v. Singhara Singh and Ors. , and A.K. Roy and Anr. v. State of Punjab and Ors. .
13. That apart, it goes without saying that the expression "notification in official gazette" used in Section 98 of the Act of 1994 means its publication within the meaning of the provisions of Rajasthan Gazette (Rajpatra) Act, 1956. It is pertinent to note that as per provisions of Section 25 of the Rajasthan General Clauses Act, 1955, wherein any Rajasthan Law or in any rule, regulation or bye-law made thereunder, it is directed that any rule, regulation, bye-law, notification, order, scheme, form or other matter shall be notified or published, then, such notification shall unless such law, rule, regulation or bye-law otherwise provides, be deemed to be duly made, if it is published in the Rajasthan Gazette. Thus, the official gazette which is an official document, published under the authority of the government is official confirmation of making of a rule regulation, bye-law, notification and order etc.
14. It is to be noticed that under the provisions of Section 98 of the Act of 1994, the delegation of the power can be made by the State Government only by notification in the official gazette, therefore, unless the notification is duly published in the Rajasthan Gazette, no delegation of power purported to be made, comes into existence. In the matter of Shambhoo Nath Jha v. Kedar Prasad Sinha , the Hon'ble Supreme Court observed that the requirement of publication in the gazette "is an imperative requirement and cannot be dispensed with". Similarly, in the matter of B.K. Srinivasan and Ors. v. State of Karnataka , the Hon'ble Supreme Court while dealing with the question of 'Outline Development Plan & Particulars' to be published by notification in the official gazette in terms of Section 13 of the Karnataka town and Country Planning Act observed as under:
But unlike Parliamentary legislation which is publicly made, dele gated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other (official dignitary. It is, therefore, necessary that subordinate legislation, in order to make effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from ^ the date of such publication or promulgation. Where the parent statue prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the official gazette or some other reasonable mode of publication.
15. Suffice, it to say that if a statute provides for publication of any rule, regulation, order or notification in the official gazette then, compliance of such requirement has to be treated mandatory and cannot be dispensed with.
16. Thus, unless, the notification delegating the power to be exercised by the State Government Under Section 38 and 39 of the Act of 1994 is delegated to the Divisional Commissioner in conformity with the provisions of Section 98 of the Act of 1994 by publication of the notification in the official gazette, such delegation cannot be said to be a valid delegation and shall not come into force till the notification is published in the official gazette as envisaged by the relevant provision. It is not in dispute that the notification dated 28.9.99 issued by the State Government in purported exercise of the power Under Section 98 of the Act of 1994 has not been published in the official gazette till this date. The publication of the subsequent notification dated 11.8.03 amending the earlier notification dated 28.9.99 in the official gazette cannot remove or obliterate the invalidity attached to the original notification delegating the power to the Divisional Commissioner. By no stretch of imagination, it can be inferred that on account of publication of the notification dated 11.8.03, the original notification dated 28.9.99 shall be deemed to have been published in the official gazette. The contention raised in this regard by the learned Dy. Government Advocate is devoid of any merit.
17. In this view of the matter, the entire proceedings taken by the Divisional Commissioner, Jodhpur which has culminated in passing of the impugned orders declaring the petitioner disqualified from holding the office of Sarpanch, Gram Panchayat, Rupawas is absolutely without jurisdiction and stands vitiated on this count alone.
18. Coming to the contention of the learned Counsel for the petitioner regarding the authority of the Additional Executive Officer, Zila Parishad, Pali to hold the preliminary enquiry, it is to be noticed that as per the provisions of Rule 22 of the Rules of 1996 which lays down the procedure of inquiry to be conducted under Sec. 38 of the Act of 1994, before taking an action under Sub-section (1) of Section 38 whereon its own motion or upon any complaint, the State Government may ask the Chief Executive Officer or any other officer to get a preliminary inquiry done and to send his report to the State Government within one month. Thus, it goes without saying that a preliminary inquiry before initiating an action under Section 38(1) can be conducted by the officer only when he has been authorised for the purpose by the State Government. Thus, the Additional Executive Officer, Zila Parishad, Pali had no jurisdiction whatsoever to conduct a preliminary inquiry on its own motion and even proceed to draw the proposed charge sheet. In this view of the matter, the Divisional Commissioner as a delegate of the State Government has seriously erred in initiated the proceedings against the petitioner on the basis of the report submitted by the Additional Executive Officer unauthiorisedly.
19. It is true that in exercise to the power conferred by Sub-rule (3) of Rule 22, the State Government may appoint an inquiry officer to conduct an inquiry into the charges of misconduct levelled against a member of Panchayati Raj institution including Chairperson and Dy. Chairperson. But then, such inquiry officer is under an obligation to conduct the inquiry strictly in accordance with the procedure laid down under Rule 22 of the Rules of 1994 and the principles of natural justice. A perusal of the material on record reveals that no opportunity has been afforded to the petitioner to cross examine the most of the witnesses namely, Smt. Manju Devi, Rekha, Phulki and other witnesses, who were shown to be the labourers employed for execution of the work. It is relevant to mention here that the specific averments made in this regard by the petitioner in the writ petition has not been specifically denied and no material has been placed on record to show that an opportunity was afforded to the petitioner to cross examine the witnesses but, he has not availed the opportunity. It is pertinent to note that in para No. 13, the petitioner has specifically averred that the statement of said witnesses were recorded in his absence and no opportunity to cross examine them was given to him. In reply to the para No. 13, all that has been stated by the respondents is that "the. contents of para 13 of the writ petition do not need any reply". In this view of the matter, it can safely a concluded that the inquiry officer has not afforded a fair and reasonable opportunity of hearing to the petitioner. Consequently, the inquiry conducted in gross violation of the principle of natural justice stands vitiated on this count also.
20. A perusal of the order passed by the Divisional Commissioner goes to show that he has not examined the material on record in its entirety and objectivity. The statement of the witnesses produced on behalf of the petitioner in his defence have not been examined by the learned Divisional Commissioner and regarding them all that has been said is that the inquiry officer has not found the witnesses produced on behalf of the petitioner as reliable in view of the similar language used by the witnesses in their affidavits and statements. Suffice it to say that non consideration of the relevant evidence on record by the Divisional Commissioner amounts to denial of fair hearing Jo the person affected.
21. Lastly, it is pertinent to note that the petitioner was charge sheeted for misconduct committed by him in discharge of his duties as Sarpanch, therefore, essentially the proceedings initiated was for his removal from the office in terms of Section 38(1) of the Act of 1994. As per provisions of Sub-section (3) of Section 38, if a member or Chairperson or Dy. Chairperson is removed under Sub-section (1) or against whom a finding is recorded under the proviso to Sub-section (1), after expiry of term of the Panchayati Raj institution concerned, shall not be eligible for being chosen under the Act of 1994 for a period of five years from the date of his removal. Thus, on removal from the office of misconduct being proved, a member or Chairperson or Dy. Chairperson of Panchayati Raj institution shall stand disqualified automatically by operation of law.
22. Section 39 of the Act of 1994 deals with cessation of the memberships. As per provisions of Section 39(1)(a) & (c) of the Act of 1994, a member of a Panchayati Raj institution shall not be eligible to continue to be such member if, he is or becomes subject to any of disqualification specified in Section 19 or he is removed from the membership. As per Sub-section (2), whenever it is made to appear to the competent authority that the member has become ineligible to continue to be a member of any of the reasons specified in Sub-section (1), the concerned authority may after giving him an opportunity of being heard declare him to have become so ineligible and thereupon, he shall vacate his office as such member. In this view of the matter, the order declaring the post to be vacant on account of disqualification said to have been incurred must precede by an order of removal. In the instant case, without passing an order of removal of the petitioner from the office of Chairperson of the Gram Panchayat, Rupawas in terms of Section 38 on the basis of charges of misconduct being proved against him, he has been declared disqualified and the post of the Sarpanch of Gram Panchayat, Rupawas has been declared vacant. Thus, the proceeding initiated and orders impugned passed by the respondent authority are not in consonance with the provisions of Sections 38 and 39 of the Act of 1994. Even, the State Government has granted the approval in mechanical manner without appreciating the correct factual and legal position.
23. Thus, viewed from any angle, the orders impugned passed by the respondent authority are ex facie illegal and without jurisdiction.
24. In the result, the writ petition succeeds, it is hereby allowed. The orders impugned Anpexure P/35 dated 1.5.07, Annexure P/37 dated 24.8.07 and Annexure P/38 dated 5.9.07 are quashed and set aside. The petitioner shall continue to be Sarpanch of the Gram Panchayat, Rupawas. The respondents are directed to hand over the charge of the office of Sarpanch to the petitioner forthwith. However, this will not preclude the respondents to hold a fresh inquiry into the charges of misconduct levelled against the petitioner in accordance with law. No order as to costs.