SHETHNA, J. - (1.) THE petitioner, who is Up-Sarpanch, has challenged in this petition the impugned order dated 1. 11. 1997 (Annex. 12) passed by the respondent State Govt. removing him from the office of Up-Sarpanch.
(2.) LEARNED counsel Shri Singhvi for the petitioner submitted that in the impugned notice dated 28. 8. 97 which was received by the petitioner on 8. 9. 97 (Annex. 7-B), it is clearly stated that the petitioner has submitted his reply within 30 days from the receipt thereof. But, in the impugned order of removal dated 1. 11. 97 (Annex. 12) it is stated that 15 days time was given to file reply and though the said notice was served upon the Up-Sarpanch no reply was filed by him. He submitted that without considering the reply to the notice the impugned notice of removal came to be passed which is in clear violation of principle of natural justice and, therefore, same is liable to be set aside. Mr. Singhvi further pointed out that petitioner submitted his reply on 1. 10. 1997, which was received by the other side on 8. 10. 1997. He, thus, submitted that the petitioner received the notice on 8. 9. 97 and his reply was reached within 30 days i. e. on 8. 10. 1997 and still in the impugned order or removal it is stated that no reply was submitted. He therefore, submitted that the impugned order of removal at Annex. 12 be quashed and set aside. It may be stated that in para No. 12 of the petition, the petitioner has stated that notice dated 28. 8. 97 was received by the petitioner on 8. 9. 97. This statement is made on oath. Whereas, in the reply to the show cause notice Annex. 8 it is stated that the notice was received by the petitioner on 6. 9. 97. Thus, there is a clear variance between the days of receipt of notice. Under the circumstances, Mr. Singhvi was asked to show the cover in which the said notice was received by him, but he had no documents with him. The reply to the show cause notice at Annex. 8 is earlier in point of time, wherein, it has been stated by the petitioner that the said notice was received by him on 6. 9. 97. It may be that the reply might have been received on 8. 10. 1997 i. e. after the period of 30 days, therefore, in the petition stand is changed and it is stated that he has received the notice on 8. 9. 97. In absence of any authenticated document, earliest application of the petitioner has to be preferred by this Court and it must be held that the petitioner had received the notice on 6. 9. 97. However, reply to it is received by the respondent on 8. 10. 1997 i. e. after the prescribed period of 30 days then statement made in the impugned order at Annex. 12 that no such reply to the notice was received within 15 days looses its significance. If the requirement is that one has to sent reply to the notice within 30 days and it is sent after 30 days then it is not incumbent upon the respondents to consider the same and it may be treated as reply not received. It may be stated that a common charge sheet dated 18. 11. 1996 was issued against the petitioner-Up-Sarpanch as well as Sarpanch Shri Jetha Ram under Rule 21 of the Rajasthan Panchayat Nyay General Rules, 1961. There are several allegations against the Sarpanch, but charge No. 1 was against the Sarpanch as well as Up-sarpanch-present petitioner. Considering the gravity of charge levelled against the Sarpanch and Up-Sarpanch-present petitioner, the impugned common order of removal at Annex. 12 came to be passed against both Sarpanch as well as Up-Sarpanch. Learned counsel Shri Singhvi then submitted that in this case inquiry itself was vitiated because Shri Swarankar, who was the Chief Executive Officer has conducted the preliminary enquiry against the petitioner and Sarpanch and that very officer conducted regular enquiry also. He, therefore, submitted that one cannot be a Judge in his own cause, therefore, the impugned order of removal which is based on the report of such enquiry officer has to be quashed and set aside. However, Ms. Rao for the respondents submitted that there was no illegality committed by Mr. Swarankar, who was the enquiry officer at the time of regular enquiry. She also submitted that Mr. Swarankar, being the Chief Executive Officer had independently conducted the preliminary enquiry and when he was appointed as enquiry officer no such objection was raised by the petitioner and such objection is raised for the first time before this Court. She, therefore, submitted that in absence of malafide alleged against Mr. Swarankar while conducting the enquiry this Court should reject the submission of Mr. Singhvi. It is true that Mr. J. P. Swarankar, Chief Executive Officer himself had conducted the preliminary enquiry against the petitioner and same officer was appointed as an enquiry officer in regular enquiry. If the petitioner was aggrieved then he should have raised that objection initially that he had no faith in Mr. Swarankar, who had conducted the preliminary enquiry and submitted report against him. But having not done so, in my opinion, now it will not be open to the petitioner to urge that regular enquiry conducted by Mr. Swarankar was vitiated only on the ground that he himself conducted the preliminary enquiry. Infact, the petitioner participated in the regular enquiry and never made any grievance, therefore, it will not be open to the petitioner to raise this contention before this Court that enquiry was vitiated because of Shri Swarankar holding regular enquiry and submitted his report against him. It may also be stated that before passing the impugned order of removal proper notice with the statement of allegations was served upon the petitioner and after considering the report of the enquiry officer the Govt. passed the impugned order of removal. In that view of the matter the second submission made by Mr. Singhvi has to be rejected and it is rejected. Mr. Singhvi then tried to submit on merits that enquiry officer committed an error in holding first charge proved against the petitioner. He tried to take me through the merits of the case which in my opinion is not permissible because this Court is exercising its powers under Article 226 of the Constitution of India and not sitting in appeal over the decision taken by the State Govt. of removing the petitioner from the post of Up-Sarpanch, which is based on the report of enquiry officer.
(3.) IN view of the above discussion, this petition fails and is hereby dismissed. As the main petition is dismissed, the application submitted by Mr. Laxman Ram through learned counsel Shri Vinay Jain for Mr. M. R. Singhvi for impleading him as party respondent in this petition does not survive and accordingly, it is also dismissed. .;