TYAGI, J. - (1.) THANARAM, Pradhan of the Panchayat Samiti, Luni, has filed this writ petition under Art. 226 of the Constitution against the State of Rajasthan and the Assistant Secretary (Inquiries), Block Development and Panchayat Department of the Government of Rajasthan, praying that the order passed by the State Government on 15th of March, 1972 suspending the petitioner from the office of Pradhan be quashed.
(2.) THE petitioner has challenged the validity of the impugned order mainly on the ground that Shri Parasram Maderna, who was the Minister incharge, has passed the impugned order with a mala fide intention as the petitioner was suspected by him of having opposed during the general election the official candidate of the Congress from the Luni Assembly Constituency and, therefore, to wreak vengeance the impugned order was passed by the Minister on the eve of his laying down the office of Minister holding the charge of the Panchayat Department. Shri Parasram Maderna was not a party to this writ petition. The petitioner, however, by his application dated 5th of Auguat, 1972, prayed that Shri Maderna be impleaded as a party but that application was rejected on 14th of August, 1972 as the case was ripe for hearing. After the arguments were "heard at length, learned Additional Advocate-General made a request to the Court to allow him to file the affidavit of Shri Maderna to deny the charges of mala fides levelled against him. Permission was, however, given by the Court to file Shri Maderna's affidavit and consequently he filed an affidavit on 4th of November, 1972. Thereafter, certain additional facts were alleged by the petitioner in support of the charge of mala fides against Shri Maderna and these facts were also controverted by Shri Maderna by filing additional affidavits which were also taken on the record. Before entering on a discussion about the merits of the allegations of the petitioner against Shri Parasram Maderna, I would like to observe that I am not unaware of the fact that allegations of malafides and improper motives on the part of those who are in power are frequently made and their frequency has increased in recent times. It is unfortunate that sometimes allegations of the nature which have no foundation in fact are lightly made in the writ petitions, but when serious allegations of malafides are made against a person of the position of a Minister it becomes the duty of the Court to examine them carefully. While examining these charges levelled against Shri Parasram Maderna, I have borne in mind that charges of personal hostility are easily and very often made by persons who are subjected penal or quasi-penal proceedings against those who initiate them and, therefore, I have made full allowance for these factors while examining and weighing the allegations made by the petitioner. I am also not unaware of the high position which Shri Parasram Maderna holds in the State which exposes him to all kinds of wild allegations by those who could not get their interests served through him and, therefore, every care has been taken by me to weigh the evidence carefully. It is in this light that I now proceed to examine the case, of the petitioner. It appears that in the year 1968 a complaint was lodged with Shri Parasram Maderna against petitioner Thanaram by the three Sar-panchas of the Panchayats within the Panchayat Samiti, Luni making very serious allegations of misuse of power as Pradhan and misuse of the public funds of the Panchayat Samiti. This complaint is dated 6th of April, 1968, and has been placed on record as Ex. Al. The Minister forwarded this application to the Development Commissioner for action. The Development Commissioner, in turn, sent this complaint for enquiry to the Deputy District Development Officer, Pali. After enquiry, the Deputy District Development Officer submitted his report recording a finding that most of the allegations made therein were correct. The enquiry report made by the Deputy District Development Officer has also been placed on record as Ex. A-3. This report is dated 24th of December, 1968. The Assistant Secretary (Inquiries) of the Government of Rajasthan on receipt of the Government of Rajasthan on receipt of the said report held the view that instead of the Deputy District Development Officer holding the preliminary enquiry, Collector, Jodhpur, should have made this enquiry under rule 3 of the Rajasthan Panchayat Samitis & Zila Parishads (Removal of Pradhan and Up-Pradhan) Rules, 1960 (hereinafter called the Rules). The matter was, therefore, referred to the Collector, Jodhpur, who, in turn, appointed the Additional Collector, Jodhpur, to hold the preliminary enquiry in the matter of the complaint lodged against the petitioner. It is in the affidavit of Shri Parasram Maderna that the Collector, Jodhpur, before he asked the Additional Collector on 4th April, 1969, to hold a preliminary enquiry in the matter had sent a copy of the report of the Deputy District Development Officer to the Deputy Inspector-General of Police, Anti-Corruption, Jaipur on which a case was registered by the Deputy Superintendent of Police, Anti-Corruption, Jodhpur against the petitioner and the copy of the first information report registered was forwarded for information to the Assistant Secretary (Inquiries), Panchayat and Development Department of the Government of Rajasthan. It is alleged by the petitioner that the Deputy Superintendent of Police, Anti-Corruption, who conducted the investigation, found the charges levelled against the petitioner baseless and, therefore, a final report was submitted by him in the court of the Sessions Judge, Jodhpur. This final report was however, presented to the Sessions Judge, Jodhpur after the impugned order was passed by the Govt. but it is alleged that it was soon recalled with a view to have further probe in the matter and according to the petitioner it was done with a definite purpose to deprive the petitioner of the evidence of his innocence which could be made use of him before this Court. The petitioner's case is that in the general elections held for the Rajasthan Legislative Assembly in the year 1972, petitioner supported the cause of Shri Poonam-chand Bishnoi to get the Congress ticket from the Luni Assembly Constituency and for that purpose telegrams were sent on behalf of the petitioner and the other Sarpan-chas of that area to the Prime Minister, All-India Congress Committee President, New Delhi, Chief Minister of Rajasthan, Smt. Laxmi Kumari Chundawat, President of the Rajasthan Prant Congress Committee, Shri Swaran Singh Foreign Minister, New Delhi and Shri Nathuram Mirdha, New Delhi. According to the petitioner, Shri Poonm Chand Bishnoi's candidature from the Luni Assembly Constituency was not liked by Shri Parasram Maderna and he wanted Shri Ramsingh Bishnoi, who had opposed him in the last general election of 1967 from Bhopalgarh Assembly Constituency, to be set up a Congress candidate from the Luni Assembly Constituency. This attitude of the petitioner, according to him, enraged Shri Parasram Maderna and soon after the elec-tions were over, Shri Parasram Maderna in order to wreak vengeance against the petitioner got a note prepared on the file which was pending before the Government about the complaint lodged against the petitioner in the year 1968 and suspended the petitioner on the day when he was to hand over charge of the portfolio of Panchayats held by him in the outgoing ministry. This order has been challenged by the petitioner mainly on the ground that the power vested in the Government to take action against the Pradhan was misused by Shri Maderna with an ulterior motive and since it has been used with a malafide intention, the order is vitiated and it should, therefore, be set aside. The State Government have refuted the charge levelled against Shri Maderna and in support of their stand an affidavit of Shri Maderna dated 4th of November, 1972, has been filed. In this affidavit Shri Maderna has denied the allegation that he was in any manner opposed to the candidature of Shri Poonmchand Bishnoi. On the contrary, it was averred that he was a person who had proposed the candidature of Shri Poonmchand Bishnoi from the Luni Assembly Constituency. He also denied to have harboured any illwill against the petitioner. The case of the respondent Government is that after the complaint was enquired into by the Deputy District Development Officer and his report was received against the petitioner, it was thought necessary under the Rules that before taking any action against the delinquent Pradhan a preliminary enquiry in such matters must be made by the Collector and it was from that point of view that the matter was referred in April, 1969 to the Collector the matter unduly remained pending for a considerably long time because the Anti Corruption Department did not promptly discharge its duties and, therefore, the Government could not take any action against the petitioner. It is contended that in the case of the Ex Pradhan, Panchayat Samiti, Bhadra, a question whether the Government could initiate enquiry under rule 4 without a preliminary enquiry being made by the Collector under rule 3 was re-examined by the Law Department, and it gave its opinion that it was not necessary that the Collector in every case should make a preliminary enquiry before ordering a regular enquiry under rule 4. The Law Department was of opinion that even without such a preliminary enquiry made by the Collector, the Government had an authority to serve the charge sheet under rule 4 of the Rules on the delinquent Pradhan. It was on this advice of the Law Department that a note was prepared by the Assistant Secretary (Inquiries) on 15th of March, 1972, expressing that without waiting for the report from the Collector the Government had the authority to take action against the petitioner, and as the Government was satisfied by going through the report of the Deputy District Development Officer dated 24-12-1961 that a prima facie case was made out against the petitioner, an order was passed by Shri Maderna to hold a regular enquiry and till the matter was finally disposed of it was further ordered that the petitioner shall remain suspended from his office. It is further averred that having due regard to all the facts and circumstances of this case, the order of suspension passed by the Minister was quite justified. During the course of the hearing of this petition, petitioner Thanaram filed another affidavit on 17-11-1972, that on an application made him to get himself registered as an effective member of the Congress, he was informed by the president of the Dehat Zila Congress Committee, Jodhpur, that he was expelled from the Congress for six years for having worked against the official candidate of the Congress in the general election. This letter dated 28-9-1972, has been filed by Shri Thanaram. In this affidavit he has also mentioned that Shri Parasram Maderna was the member of the Dehat Zila Congress Committee which had taken this action of expelling him from the organization. During the course of arguments, Mr. Rajnarain categorically stated that no doubt Shri Parasram Maderna was the member of Dehat Zila Congress Committee, but he did not attend the meeting of the Dehat Zila Congress Committee wherein the decision for expelling the petitioner from the Congress was taken. Mr. Mridul says that Shri Maderna has filed an affidavit to verify this fact that he was not present in the meeting of the Dehat Zila Congress in which the decision for expelling the petitioner from the Congress was taken but that affidavit is not traceable on the file though the copy of such an affidavit was given to Mr. Mridul by Mr. Rajnarain.
(3.) IT maybe mentioned here that one Shri Sultan Singh, who was incharge of the investigation, informed the petitioner that the charges against him were found baseless and that the final report had been submitted in the court of Session, but Sultan Singh, who was then in service, filed an affidavit stating that he never informed the petitioner about the final report having been filed by the Anti-Corruption Department. However, later on Sultan Singh was made to retire prematurely and then he filed an affidavit in this Court on 7th February 1973 making certain wild allegations against Shri Parasram Maderna that he met Shri Maderna on 26th of August, 1971, at the Circuit House, Jodhpur, where Shri Maderna first rebuked him and then made enquiries about the progress in Thanaram's case to which the deponent (Sultan Singh) said that the investigation was going on and the result thereof shall be conveyed to the Deputy Inspector-General of Police who is proper authority to decide the matter. In this affidavit Shri Sultan Singh has also levelled a charge that he was compulsorily retired under rule 244 of the Rajasthan Service Rules on 2nd of February, 1973, because he did not toe the line of the Minister to implicate Shri Thanaram, but these allegations which have been controverted by Shri Parasram Maderna by his affidavit dated 12th of March, 1973, seem to be quite baseless and unfounded. Shri Maderna in his affidavit of 12th March, 1973, has stated that on 26th of August, 1971, he was at Delhi attending a conference which was convened on 22nd of August, 1971 and continued upto 27th of August, 1971. According to him, he left Delhi on 27th of August, 1971, at 3 p.m. In support of this averment, two certificates have been filed by Shri Maderna, one of the Chief Superintendent of the Motor Garage stating that from 22nd of August, 1971 to 27th of August, 1971, a vehicle No. RRL 31 was detailed in the duty of Shri Parasram Maderna which took him to Delhi with Shri Durgasingh driver. The copy of the T. A. bill filed along with this affidavit also shows that Shri Maderna was at Delhi on 26th of August, 1971 and, therefore, the averment made by Shri Sultan Singh that he met Shri Maderna at the Circuit house, Jodhpur, on 26th of August, 1971, appears to be a piece of imagination. In this view of the matter, I am not prepared to place any reliance on the affidavit of Shri Sultan Singh by which a suggestion has been made by the petitioner that Shri Parasram Maderna was interested in getting him involved in the criminal charges which were being investigated against him by the Anti-Corruption Department by exercising his influence as a Minister. Mr. Rajnarain, appearing on behalf of the State Government, has taken a preliminary objection that no finding of malafides can be recorded against the State Government or Shri Maderna without impleading him as a party to the writ petition and even if this Court feels that the allegations made against Shri Maderna have a grain of truth in them, it should not set aside the impugned order declaring it to be vitiated by malafides unless Shri Maderna is made a party to the petition. I do not find any force in this argument because in this case whatever the charges have been levelled against Shri Maderna have been met by him by filing counter-affidavits. Shri Maderna has not filed only one affidavit but as and when occasion arose he controverted the charges levelled against him by the petitioner and, therefore, it cannot be pleaded with any justification that even if this Court arrives at the conclusion that the impugned order was passed with malafide intention, this Court cannot set aside the order in the absence of Shri Maderna who has not been impleaded as a formal party to the petition. It was next urged that under rule 4 of the rules, even if the report of the preliminary enquiry has not been received from the Collector under rule 3 by the State Government, the Government has a power to proceed with the enquiry under r. 5 after framing charge against the delinquent officer under rule 4. The opening portion of rule 4 reads : "If upon consideration of the report received as aforesaid, or otherwise the State Government is of the opinion that action under sub-sec. (1) of sec. 40 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Pradhan or the Up-Pradhan, as the case may be, together with such details as may be deemed sufficient for him to understand the nature thereof and require him to submit within such time as may be specified, a written statement......., ." Sec. 40 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, deals with the power of the Government to remove the Pradhan and it lays down that if in the opinion of the State Government the Pradhan or Up-Pradhan of a Panchayat Samiti wilfully omits or refuses to carry out the order of the State Government for the proper working of the Panchayat Samiti or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, or if any disgraceful conduct, the State Government, after giving the Pradhan or Up-Pradhan, as the case may be, a reasonable opportunity for explanation and after consulting the Zila Parishad in the matter and taking into consideration its opinion if received within thirty days from the date of the despatch of the communication for such consultation, may by order remove such Pradhan or Up-Pradhan, as the case may be, from office. Sub-sec. (2) further empowers the Government to suspend such a Pradhan or Up-Pradhan against whom an enquiry has started under sub-sec. (1) of this section. According to Mr. Rajnarain, when sec. 40 is read with rules 3 and 4 of the rules, then it becomes clear that it is not necessary in all circumstances to get a preliminary enquiry done through the agency of the Collector. The use of the word "otherwise" in rule 4, in his opinion, suggests that even without getting the preliminary enquiry done by a Collector, the Government can charge sheet the Pradhan if otherwise it is convinced that the Pradhan is guilty of any of the actions mentioned in sub-sec. (1) of sec. 40 which entails his dismissal from the membership of the Panchayat Samiti. He, therefore, urged that if the Collector to whom a preliminary enquiry was entrusted in the month of April, 1969, failed to submit his report to the Government, the Government could, on the basis of the report of the Deputy Distt. Development Officer, satisfy itself about the prima facie nature of the charges levelled against the Pradhan and order the enquiry under rule 5 of the rules after framing charges and inviting explanations from the delinquent Pradhan under r. 4. In the instant case, the State Government ordered to frame charge against the petitioner on the strength of the satisfaction of the Government derived from the report of the Deputy District Development Officer which was submitted to it in the year 1968 and initiated the enquiry against the petitioner and while exercising its power under sub-sec. (2) of sec. 40 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959, the petitioner was suspended. Mr. Rajnarain in these circumstances strenuously argues that no illegality has been committed by the State Government in taking the action against the petitioner. Mr. Mridul, on the other hand, urged that if the State Government has two alternatives to satisfy itself about the correctness of the charges levelled against the Pradhan and if one of the alternative has been resorted to by the State Government then it cannot switch on to another alternative and cannot initiate the enquiry without receiving the support of the Collector if called under rule 3 of the said rules. ;