TYAGI, J. - (1.) PETITIONER Chenaram, who has been removed from the office of the Pradhan of the Panchayat Samiti, Didwana by the order of the Government dated 21st of July, 1972 (Ex. 1), has filed this writ petition under Art. 226 of the Constitution challenging the order of the Government, inter alia, on the grounds that the impugned Order suffers from the defect that it is not a speaking order and that proper opportunities were not given to the petitioner to defend himself before the said order was passed. It is, therefore, prayed that the order should be quashed. The petitioner has also challenged the legality of the order on the question of malafides but that point has not been pressed during the course of arguments.
(2.) THE facts giving rise to this writ petition are, in a nutshell, as follows: THE petitioner was elected Pradhan of the Panchayat Samiti, Didwana in the year 1965 and since then he has been continuously working as Pradhan. A show cause notice under sec. 40 (1) of the Rajasthan Panchayat Samites and Zila Parishads Act, 1959, was served on the petitioner on 8th of February, 1968, demanding his explanation to the charge sheet which was annexed to that notice. THE charge was that the petitioner Chenaram asked Shri Chatraram, Officiating Vikas Adhikari, Panchayat Samiti, Didwana on 7th August, 1967, to inform the Sub-Divisional Officer, Didwana to stay recovery proceedings taken against some of the persons belonging to Chenaram's party and when Shri Chatraram refused to act against the provisions of the rules, Chenaram showered abuses on him and gave beating to Chatraram. He was, therefore, required to explain his conduct within 15 days from the date of the receipt of the said notice. Petitioner Chenaram denied the charge. THEreupon the District Magistrate (Collector), Nagaur was asked to make enquiry under rule 5 (1) of the Rajasthan Panchayat Samites and Zila Parishads (Removal of Pradhan and Up-Pradhan) Rules, 1960 (hereinafter called the Rules of 1960 ). THE petitioner was summoned by the Collector and various notices were sent to the petitioner to join the enquiry but the case of the State Government is that in spite of notices from the Collector, the petitioner did not choose to appear before him and the Collector was left with no alternative but to proceed to enquire into the charges exparte. Nine witnesses were examined by the Collector. After the enquiry, the Collector submitted his report to the Government recording his finding that Chenaram was found guilty of showering abuses on Shri Chatraram, Agriculture Extension Officer and later on he also gave beating to Shri Chatraram in the presence of the employees of the Panchayat Samiti. THEreafter, a notice was given to petitioner Chenaram on 14th of March, 1968, by the State Government stating that the charge of showering abuses on Chatraram and then giving beating to him is established against the petitioner by the report of the Enquiry Officer and, therefore, he should show cause under rule 6 of the Rules of 1960 read with sec. 40 of the Rajasthan Panchayat Samites and Zila Parishads Act why he should not be removed from the office of Pradhan. THE petitioner filed his reply, which has been quoted verbatim by the petitioner in his writ petition at page 24, denying the charges and at the end he stated that if the Government thinks it proper that the petitioner should produce his defence, then he is prepared to do so and he shall produce the list of defence witnesses as and when demanded. THEreafter, from the record it appears that various dates were fixed for Chenaram to appear before the Minister but for one reason or other the dates were postponed. On 23rd of February, 1972 when a note was put up by the office before the Minister in charge of the Department that the petitioner was some how trying to delay the disposal of the enquiry, the Minister passed an order suspending the petitioner from the office of Pradhan on 15th of March, 1972. It appears from the record that thereafter the petitioner demanded the copy of the report of the Enquiry Officer (Collector) which was promptly supplied to him and then he filed a writ petition in this Court challenging the order of his suspension and obtained ad-interim order which was vacated by the Court after hearing both the parties. Petitioner Chenaram then filed an application Dt. 25th of May, 1972, which has been reproduced by him in the petition at page 31, before the Minister requesting him to dispose of the matter after hearing him as early as possible. THE petitioner was asked to appear before the Minister on 10th of July, 1972, and it is said that the petitioner personally appeared before the Minister. According to the Government, the petitioner again pressed for the expeditious disposal of the matter, whereas the petitioner states that he had made a request to the Minister to give him an opportunity to adduce the defence evidence before the Minister, but that opportunity was denied to him. However, the Minister passed the impugned order on 21st of July, 1972, removing the petitioner from the office of Pradhan and this order has been challenged by the petitioner mainly on the following grounds : (1) That the Minister while passing the impugned order was acting in a quasi-judicial capacity and, therefore, he ought to have passed an order which should be a speaking order, and since the order passed by the Minister cannot by any stretch of imagination be said to be a speaking order, it cannot, therefore, be sustained; (2) that the petitioner was denied opportunity to produce the defence evidence and, therefore, the enquiry stands vitiated for the nonobservance of the principles of natural justice; (3) that the petitioner was not supplied, along with the show cause notice given after the enquiry, with a copy of the enquiry report and, therefore, he was denied proper opportunity to meet the case set up against him; and (4) that the Enquiry Officer while recording his finding was led away by extraneous considerations as is apparent from the perusal of his report and, therefore, the State Government could not have proceeded to remove the petitioner on the basis of such enquiry report. The State Government by filing a reply has supported the action taken by the Minister and stated that the Government, when requested by the petitioner on 1st of May, 1971 when the petitioner appeared before the Minister and requested for time to produce his defence evidence, immediately adjourned the date to 22nd of June, 1971, but in spite of various adjournments allowed by the State Government petitioner neither cared to appear before the Government, nor did he ever try to produce his evidence; on the contrary, on 25th of May, 1972, the petitioner himself submitted an application requesting the Minister to decide the matter which was pending for long and on account of which the petitioner was suspended by the Government. It has been specifically mentioned by the answering respondent that the petitioner did not make any request to the Minister even when he appeared on the last hearing before him in this connection to allow him an opportunity to adduce defence witnesses. On the contrary, it is alleged that he verbally requested the Minister to dispose of the matter immediately. The order passed by the Minister also shows that the petitioner not only did not make any request to afford him an opportunity to adduce evidence in his defence but he definitely asked the Minister to expeditiously dispose of the matter pending for such a long time before him. According to the reply filed by the respondent, it is averred that the charges have been established beyond all doubt against the petitioner and that the Minister after taking into consideration the entire circumstances, passed the order which, according to Mr. Raj Narain who represents the respondent, is a speaking order as it speaks about all such matters which can be looked into by this Court while exercising its extraordinary jurisdiction under Art. 226 of the Constitution. It may be noted here that apart from the copy of the impugned order (Ex. 1) which has been served on the petitioner, Mr. Raj Narain has produced the verbatim copy of the note of the Secretariat file from para 121 to para 129 which is said to have been the order passed by the Minister on the file. Except that the setting of the order Ex. 1 is somewhat different from what has been mentioned in the notes produced by the Minister on the file, there is not much of difference between these two orders. However, Mr. Raj Narain states that the order passed is the notes prepared by the Minister on the file of the Secretariat from para 121 to para 129, and in order to judge whether it is a speaking order or not, the Court should take into consideration the order actually passed by the Minister on the file of the Secretariat. Before examining the question whether the impugned order passed by the Minister removing the petitioner from the office of the Pradhan is a speaking order or not, I would like to dispose of other grounds strenuously canvassed by learned Counsel for the petitioner. From the perusal of the report of the Enquiry Officer, it is clear that the petitioner was asked to join the enquiry conducted by the Collector, Nagaur, but in spite of the notices served on the petitioner, he did not take care to represent his cause before the Collector and, therefore, ex parte proceedings were taken against him. At this stage, therefore, he cannot have any grievance that he was denied reasonable opportunity to prove his innocence before the Collector.
(3.) WHILE submitting a reply to the show cause notice served on the petitioner under rule 6-A of the 1960 Rules the petitioner even at that stage did not make a request to the Government to afford him an opportunity to produce his defence evidence. On the contrary, the last sentence of his reply shows that he was not keen to produce any defence evidence as he mentioned that if the Government thought it proper to record any defence evidence then he would produce such evidence and would file the list of the witnessess on demand. This reply has been re-produced verbatim by the petitioner himself at page 24 of the writ petition. Thereafter, the petitioner for the first time appeared before the Minister on 1st of May, 1971 and it is said that he verbally made a prayer to produce the defence evidence, and the Minister immediately accepted this request and adjourned the case for that purpose to 22-6-1971. It is not the care of the petitioner that on 22-6-1971 or thereafter he went to the Minister with his defence evidence but it was not recorded. On the contrary, when after several adjournments sought by the petitioner and allowed by the State Government the matter came up before the Minister he suspected that the petitioner was interested in delaying the matter and therefore he passed an order on 15th March, 1972, suspending the petitioner from the office of Pradhan. Thereafter the petitioner challenged the order of suspension before this Court and filed an application before the Minister, copy whereof has also been reproduced verbatim at pages 31 and 32 of the petition, wherein a special request was made by the petitioner that by fixing an early date the matter may be disposed of expeditiously. In this application also the petitioner did not express his intention to produce any defence evidence in support of his case The petitioner was heard on the 10-7-1972, and the Minister passed the order removing the petitioner on 21st of July, 1972. It is worthy of note that in the impugned order (Ex. 1) the Minister has specifically mentioned that the petitioner refused to produce any documentary or oral evidence in support of his defence and expressed his desire to dispose of the matter expeditiously. The petitioner now states on oath that he wanted to produce the defence evidence and that he had requested the Minister to give him opportunity to examine defence evidence but: that opportunity was denied to him. This stand taken by the petitioner at this stage cannot be accepted by this Court in the light of the circumstances mentioned above. If the petitioner were really keen to examine his defence witnesses before the Minister, then he could have very well mentioned that fact in his application dated 25th of May, 1972, which is conspicuously silent about this matter. Moreover, if we look to the scheme of the Rules of 1960, then the petitioner had the opportunity to adduce his evidence before the Enquiry Officer. When the enquiry is finished under rule 5 of the said rules, the right to adduce any evidence in support of his case no longer survives and the petitioner cannot thereafter claim that he should be given an opportunity to produce his defence evidence. After the receipt of the enquiry report if the State Government, having regard to the findings recorded by the Enquiry Officer on the charges, is of opinion that any action under sub-sec. (1) of sec. 40 of the Act is necessary, then rule 6 of the 1960 Rules requires that a notice shall be given to the Pradhan or Up-Pradhan to show cause why he should not be removed from his office and he shall be asked to submit his representation within a specified time. Clause (b) of this rule further provides that after the receipt of the representation from the delinquent Pradhan or Up-Pradhan, the matter shall be referred to the Zila Parishad for its opinion and on receipt of the opinion of the Zila Parishad, if sent within the specified time, the Government may either exonerate the Pradhan or the Up-Pradhan or may remove him from his office. These rules do not provide any such procedure that after the receipt of the report of the Enquiry Officer the Government shall record any defence evidence if the delinquent Pradhan or Up-Pradhan wants to produce in support of his case. In spite of the fact that the petitioner had no right to produce his defence evidence after the enquiry report was submitted by the Collector, the Government was quite keen to afford him an opportunity to produce his defence evidence before the Minister and for that purpose an adjournment was allowed by the Government when the petitioner appeared before the Minister on 1st of May, 1971, but in spite of that facility allowed by the Government the petitioner did not care to produce any evidence. In these circumstances, I do not think that the petitioner can be justified to challenge the impugned order on this ground that he was denied a reasonable opportunity to produce his evidence. ;