S. S. BYAS, J. - (1.) BY this petition under Article 226 of the Constitution, the petitioner challenges the validity of order Annexure-1 dated 4-10-1985 passed by the Collector, Bharatpur under section 17 (4) of the Rajasthan Panchayat Act, 1953 (for short 'the Act') removing him from the office of Panch and declaring his seat vacant.
(2.) WE may recall the relevant facts in brief. The petitioner was elected as Panch from Ward No. 5 of village Panchayat Mei District Bharatpur in the elections which took place in 1981. It appears that some complaints were made against him and as result of which the Collector, Bharatpur passed the impugned order Annexure-1. It is alleged that order Annexure-1 was passed in utter violation of the provisions of sub-section (4) of Section 17 of the Act and Rules 20-21 and 22 of the Rajasthan Panchayat & Nyaya Panchayat (General) Rules, 1961 (here in after referred to as the 'rules' ). No notice was issued to him under the Rules nor any inquiry was conducted thereunder. The impugned order is, therefore, bad and unsustainable as it violated the mandates contained in section 17 of the Act and Rules 20, 21 and 22 of the Rules. In the return filed by the respondents, only evasive averments were made. It was stated that during inquiry the petitioner was examined and his statement is R-l. He thus participated in the inquiry which could be done by him only when notice was issued to him. We have heard the learned counsel for the parties at length. Section 17 (4) of the Act which speaks about the election of seats and removal of Panchas reads as under: "the State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch, Sarpanch or Up-Sarpanch who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct; (Provided that any such inquiry as is referred in this sub-section may be initiated even after the expiry of the term of a Panchayat or if already initiated before such expiry, may be continued thereafter & in any such case, the State Government shall, by order in writing record its finding on the charges levelled against a Panch, Sarpanch or Up-sarpanch of the Panchayat during its term of office ). " By virtue of the powers conferred by sub-section (1) of section 89 of the Act, the State Government made the Rajasthan Panchayat & Nyaya Panchayat (General) Rules, 1961. Chapter III in its part 4 lays down the procedure for removal of Panchas etc. It would be useful to read rules 21 and 22 occurring in this part. They runs as under: 21. "final inquiry - (1) The State Government or the officer or authority referred to in sub-rule (4) of rule 20 shall consider the report of the preliminary inquiry and may either drop the proceedings or get drawn up a statement of charges prima facie made out against the person against whom the preliminary inquiry has been made, specifying such details as may be deemed sufficient for him to understand the nature thereof. (2) A copy of such statement shall be sent to the person charged, along with a notice calling upon him and to show cause in writing why they should not be inquired into. (3) Upon reading the representation, if any, of the person charged, in response to the notice under sub-rule (2) the State Government or the officer or authority referred to in sub-rule (4) of rule 20 may either drop the proceedings or may appoint an officer or authority to inquire into the charges, here in after referred as to the inquiring officer, to whom the record of the preliminary inquiry, the statement or charges, the explanation of the person charged and all other relevant papers shall be forwarded. (4) The inquiry officer shall - (a) issue a notice to the person charged to appear before him on a date and at the time and place specified in the notice. (b) read out the person charged, when he so appears the charge or charges levelled against him, (c) hear the explanation, if any, (d) take and consider such evidence, oral or documentary, as may be produced in support or in rebuttal of the charge or charges, and (e) record his finding on each of them. (5) The record of the inquiry, together with his findings shall be forwarded by the inquiring officer of the State Government or the officer or authority referred to in sub-rule (4) of rule 20. 22. Orders by State Government or authority referred to in sub- rule (4) of rule 20 - The State Government or the officer or authority referred to in sub-rule (4) of rule 20 shall consider the findings of the inquiring officer, afford reasonable hearing to the person charged or thereafter pass such order as it or he may consider proper in the circumstances of the case. (2) If the State Government or such officer or authority finds upon such consideration that the charges have been established, it or he shall by order remove the Panch, Sarpanch, Up-sarpanch, Member or Chairman concerned from his office. (3) A copy of each of such order shall be forwarded to the Panchayat Officer and to the Collector. (4) The State Government or the officer or authority referred to in sub-rule (4) of rule 20 shall notify the fact of such removal in the official Gazette"
(3.) A combined reading of the aforesaid section and rules makes it amply clear that a Panch can be removed from office on the ground of misconduct only after a final inquiry is conducted against him as laid down in rule 21. Rule 21 embodies the principles of natural justice that one should not be condemned without giving him an opportunity of hearing. It is incumbent on the authority if a final inquiry is to be conducted against a Panch to draw up statement of charge, serve notice to the Panch calling upon him to show cause as to why the charges should not be inquired into. A notice under sub-rule (4) of rule 21 is to be issued on the Panch to appear before the inquiry officer at the time and place specified in the notice. If the Panch appears, charges are to be read to him and the inquiry officer is to hear his explanation. Thereafter evidence is to be recorded in support of or in rebuttal of the charges. Thereafter the inquiry officer is to record his findings. These are not only the basic requirements but are also essential safeguards against the delinquent. Reverting to the instant case, in our hands, the reply does not show that any charges were framed against the petitioner or any inquiry was at all conducted against him. It is true that his statement was recorded on 13-5-1985. It appears that this statement was recorded during preliminary inquiry conducted under rule 20 of the rules. We are unable to infer from the statement of the petitioner that any final inquiry as envisaged in rule 21 of the rules was ever conducted and an order was passed thereafter under rule 22. Section 17 (4) speaks about the inquiry and the procedure how the inquiry-is to be conducted is laid down in the Rules 20, 21 and 22. Any order of removal passed in violation of the aforesaid section and rules cannot be sustained. The provisions of the aforesaid section and rules are mandatory in command and admit no exception. ;