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Om Prakash Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1474 of 1979
Judge
Reported in1981()WLN26
ActsRajasthan Panchayat Act, 1953 - Sections 17(4), 17(5) and 70B; Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 - Rules 20 and 21
AppellantOm Prakash
RespondentState of Rajasthan and anr.
Appellant Advocate K.N. Joshi, Adv.
Respondent Advocate M.D. Purohit, Addl. Govt. Adv. and; M.M. Singhvi, Adv.
Excerpt:
.....3 it is evident that a disciplinary enquiry against ram prasad sarpanch was initiated by the state government in respect of charges of embezzlement and falsification of accounts and negligence in the discharge of his duties as a sarpanch. if there is any illegality or infirmity in initiating the enquiry against ram prasad, sarpanch, the latter may take appropriate steps to get the enquiry dropped or quashed, as the case may be. there is no material on the record to show that the enquiry under sub-section (4) of section 17 of the act was started against ram prasad in violation of the provisions contained in the rules. hence, i do not feel persuaded to hold that the order of suspension passed against ram prasad was a nullity in the eye of law and was rightly revoked by the state..........reasons as a result of which ram prasad, sarpanch, was reinstated. aggrieved by the order of the state government dated september 21, 1979, revoking the suspension order of non-petitioner no. 2, the petitioner has invoked extraordinary jurisdiction of this court by way of this writ petition on the following grounds:--1. that once an inquiry is instituted against a sarpanch and he is suspended pending inquiry under section 17 (4) (a) of the act, the state government has no jurisdiction or power to revoke the suspension unconditionally without any reason or justification;2. that the impugned order passed by the stale government on september 21, 1979, is not a speaking order and as such is liable to be quashed;3. that section 17 (4) (a) of the act does not empower the state government to.....
Judgment:
ORDER

1. This is a petition under Article 226 of the Constitution of India by one Om Prakash against the Slate of Rajasthan and Shri Ram Prasad, Sarpanch, Gram Panchayat, Jogiwala, District Sri Ganganagar, for issuance of a writ of certiorari or any other appropriate order or direction for quashing the order dated September 21, 1979, by which the suspension order passed against Ram Prasad, Sarpanch, non-petitioner No. 2, was revoked, while keeping intact the inquiry pending against him, and for issuing a writ, order or direction declaring Section 17(4) (A) of the Rajasthan Panchayat Act, hereinafter referred to as the Act, ultra vires to the extent of passing orders for reinstatement or revoking suspension order.

2. The relevant facts giving rise to this petition are narrated, in brief, as follows:--

Ram Prasad, non-petitioner No. 2, is the Sarpanch of Gram Panchayat, Jogiwala, District Sri Ganganagar. Criminal cases and enquiries under the Rajasthan Panchayat Act were instituted and made against him in several matters. Investigation is going on in a case of embezzlement against him and he is said to have been guilty of so many types of omissions and commissions of acts in the capacity of a Sarpanch of the Gram Panchayat, Jogiwala. The State of Rajasthan vide its order dated April 27, 1979, suspended Ram Prasad, non-petitioner under Section 17 (4) (A) of the Act on the ground that a disciplinary inquiry has been started against him under sub-section (4) on the charges of embezzlement and falsification of accounts etc. After suspending Ram Prasad, Sarpanch, non-petitioner No. 2, the State of Rajasthan, vide its order dated September 21, 1979, revoked the suspension order without any justification and without recording reasons as a result of which Ram Prasad, Sarpanch, was reinstated. Aggrieved by the order of the State Government dated September 21, 1979, revoking the suspension order of non-petitioner No. 2, the petitioner has invoked extraordinary jurisdiction of this Court by way of this writ petition on the following grounds:--

1. that once an inquiry is instituted against a Sarpanch and he is suspended pending inquiry under Section 17 (4) (A) of the Act, the State Government has no jurisdiction or power to revoke the suspension unconditionally without any reason or justification;

2. that the impugned order passed by the Stale Government on September 21, 1979, is not a speaking order and as such is liable to be quashed;

3. that Section 17 (4) (A) of the Act does not empower the State Government to act arbitrarily and it is ultra vires to the extent that no order for revoking suspension of a Panch, Sarpanch or Up-Sarpanch, and for his reinstatement can legally be passed under it, because if such unfettered and unbridled powers are presumed to be given to the State Government under Section 17 (4) (A) of the Act, it will amount to mockery of the law and the State Government will misuse the same whenever it likes as it has been done in the present case.

3. In support of his writ petition, the petitioner put in his affidavit and produced several documents. The writ petition was admitted by this Court on January 25, 1980, and notices were issued to the non-petitioners Nos. 1 and 2. In response to the notices, a reply was filed on behalf of the State of Rajasthan, wherein it was stated that Ram Prasad, Sarpanch, non-petitioner No. 2, was no doubt suspended by the State Government on the ground that an enquiry has been started against him under Sub-section (4) of Section 17 of the Act, but, on representation by him, the State Government deemed it proper under Section 70 (B) of the Act to revoke the suspension order after taking into consideration all the material on the record. It was further stated in the reply filed on behalf of the State Government that although no reasons are given for revoking the suspension order, but from the notes written on the file it is obvious that the suspension order was revoked on two grounds, the first one being that the cases instituted against the Sarpanch were about 9 or 10 years old and the charges related to his previous term of office of the Sarpanch and the second was that he was suspended because of political vendetta. In short, the stand taken by the State Government in its reply is that it has not recalled the order of enquiry against non-petitioner No. 2 and has merely revoked the suspension order as there was no justification for continuing in the circumstances of the case and that the State Government had ample powers under Section 70 (B) and Section 17 (4) (B) of the Act and also inherent powers to review the order of suspension which has become final under Sub-section (5) of Section 17 of the Act. In support of the reply to the writ petition filed by the State Government, Shri Sohan Lal Bothra, Additional District Development Officer, Sri Ganganagar, put in his affidavit and produced some documents.

4, I have carefully perused the record and heard Mr. K. N. Joshi, learned counsel for the petitioner, Mr. M. D. Purohit, Additional Government Advocate, for the State, and Mr. M. M. Singhvi, learned counsel for non-petitioner No. 2. At the outset, I may observe that the contention of the Additional Government Advocate that the State Government is empowered to revoke, the suspension order under Section 70B of the Act is not well founded, because from a bare perusal of the provisions of Section 70B of the Act it is quite obvious that the State Government may of its own motion at any time or on an application received from any person affected within 90 days of the passing of the order under Sub-section (4) of Section 17 of the proviso thereto, as the case may be, may review any such order, if it was passed under any mistake whether of law or of fact or in ignorance of any material fact. Under Section 70B of the Act, the State Government is not empowered to review its order passed under Sub-section (4) (A) of Section 17 of the Act. In the instant case, Ram Prasad Sarpanch, non-petitioner No. 2 was suspended by an order of the State Government passed under Sub-section (4) (A) of Section 17 of the Act, on the ground that an enquiry has been started against him under Sub-section (4) thereof. If the Legislature intended that the order of suspension passed by the State Government under Sub-section (4) (A) of Section 17 of the Act can also be reviewed by it under Section 70B of the Act, it would have clearly mentioned in Section 70B that an order under Sub-section (4) (A) of the Act would also be reviewed. Consequently, I am of the view that the State Government has no power or jurisdiction to review an order passed by it under Sub-section (4) (A) of Section 17 of the Act in exercise of its powers of review under Section 70B of the Act.

5. Looked from another angle also, it. appears that the decision of the State Government on any matter arising under Section 17 of the Act, shall, subject to any order made under Section 70B, be final and shall not be liable to be questioned in any court of law as laid down in Sub-section (5) of Section 17 of the Act. Sub-section (4) (A) of Section 17 of the Act empowers the State Government to suspend any Panch, Sarpanch. or Up-Sarpanch against whom an enquiry has been started under Sub-section (4) or the proviso thereto or against whom any criminal proceeding in regard to an offence involving moral turpitude is pending trial in a court of law. But Sub-section (4) (A) doeF not empower the State Government to cancel the order of suspension once passed by it against any Panch, Sarpanch or Up-Sarpanch. Hence, by virtue of Subsection (5) of Section 17 any order of suspension passed by the State Government under Sub-section (4) of Section 17 of the Act becomes final, because it cannot be reviewed by the State Government under Section 70B of the Act, as indicated above.

6. Mr. M. D. Purohit, Additional Government Advocate, strenuously urged before me that the State Government has inherent powers to revoke suspension order passed by it against any Panch, Sarpanch or Up-Sarpanch under Subsection (4) (A) of Section 17 of the Act, because, according to his submission, the authority which can suspend any Panch, Sarpanch or Up-Sarpanch, may revoke the order of his suspension if it is satisfied that there is no justification for continuing thereof in the peculiar circumstances of a particular case.

7. I have carefully considered the above contention. It is no doubt true that under Sec. 23 of the Rajasthan General Clauses Act, 1955 (Act no. 8 of 1955), where by any Rajasthan law a power to make or issue orders, rules, regulations, etc. is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any order, rule regulation etc. so made or issued. But assuming that the State Government has inherent powers to revoke the suspension order passed by it against any Panch, Sarpanch or UpSarpanch, I may observe that such inherent power cannot be exercised in an arbitrary or capricious manner without any justification, as it is exercisable in the like manner and subject to like sanction and conditions, if any. In the instant case, the State Government revoked the order of suspension without recording any reasons therefor. It merely stated that suspension order passed against Ram Prasad is revoked immediately and he is reinstated to the office of Sarpanch and that the enquiry pending against him shall continue. Hence, it may be safely held that the order passed by the State Government on September 21, 1979, revoking suspension order is not a speaking order at all. In my opinion, the State Government could revoke the order of suspension if the enquiry started against Ram Prasad Sarpanch under sub-section (4) of Section 17 of the Act had been dropped or if he had been exonerated of the charges framed against him in the enquiry. The State Government made an express order while revoking the suspension that the enquiry against Ram Prasad, Sarpanch, shall continue. There is no material on the record to show that Ram Prasad. Sarpanch, was suspended by the State Government on account of political vendetta or otherwise out of any ulterior motive. If, in the opinion, of the State Government, the charges were levelled against Ram Prasad Sarpanch on account of political rivalry or any other ulterior motive and if he was suspended on that score, the State Government could very well drop the enquiry and reinstate Ram Prasad, non-petitioner No. 2, to the office of the Sarpanch. But, curiously enough, this has not been done and the enquiry against him is ordered to continue. The mere fact that the charges are about 9 or 10 years old and relate to the previous term of his office as Sar-panch is no good ground for revoking his suspension, because Sub-section (4) (A) of Section 17 of the Act leaves no doubt that the Stale Government can suspend any Sarpanch against whom an enquiry has been started either under Sub-section (4) or the proviso thereto. It will not be out of place to mention that the proviso to Sub-section (4) of Section 17 of the Act clearly lays down that the enquiry may be initiated against the Sarpanch even after the expiry of the term of the Panchayat or, if already initiated before such expiry, may be continued thereafter. Consequently, I am of the view that the State Government while revoking the suspension order of Ram Prasad, Sarpanch, acted in an arbitrary and capricious manner and revoked the order of suspension without recording reasons therefor and without having any sufficient cause for doing so.

8. Mr. M. M. Singhvi, learned counsel for Ram Prasad, Sarpanch, non-petitioner No. 2, also raised a contention before me that the enquiry against Ram Prasad, Sarpanch has been initiated without complying with the mandatory provisions of Rules 20 and 21 of the Rajasthan Panchyat and Nyaya Panchayat (General) Rules, 1961, hereinafter referred to as the Rules, and so the suspension order was bad in law which was rightly revoked by the State Government upon representation made before it by the Sarpanch. The above contention has no force, because from a bare reading of the order at suspension dated April 27, 1979 marked Annexure 3 it is evident that a disciplinary enquiry against Ram Prasad Sarpanch was initiated by the State Government in respect of the charges of embezzlement and falsification of accounts and negligence in the discharge of his duties as a Sarpanch. If there is any illegality or infirmity in initiating the enquiry against Ram Prasad, Sarpanch, the latter may take appropriate steps to get the enquiry dropped or quashed, as the case may be. There is no material on the record to show that the enquiry under sub-section (4) of Section 17 of the Act was started against Ram Prasad in violation of the provisions contained in the Rules. Hence, I do not feel persuaded to hold that the order of suspension passed against Ram Prasad was a nullity in the eye of law and was rightly revoked by the State Government.

9. The result of the above discussion is that the writ petition filed by Om Prakash is accepted and the order revoking suspension of Ram Prasad, non-petitioner No. 2 dated September 21, 1979 (Annexure 4) is quashed. However, it will be open for the State Government to satisfy itself after applying its mind to the nature of the accusation and the charges and to other materials that may be produced before it, if any, as to whether or not there is justification for continuance of the suspension order passed against the Sarpanch. If the State Government after applying its mind to the materials before it is satisfied that the suspension order passed against Ram Prasad Sarpanch should be revoked, and he should be reinstated to the office of the Sarpanch, it may pass a speaking order to this effect after recording reasons therefor. In the circumstances of the case, no order as to costs.


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