P.P.NAOLEKAR, J. - (1.) BRIEF facts necessary for the disposal of this petition are that the petitioner was Sarpanch of Gram Panchayat, Khichan at the relevant time. After conducting a preliminary -inquiry resulting in adverse findings, a charge -sheet was issued to the petitioner. The petitioner submitted reply to the said charge -sheet -. Thereafter, an inquiry was conducted and a notice was issued calling his explanation as to why the finding be not recorded against him under proviso to Section 1 (4) of the Rajasthan Panchayat Act, 1953 (in short, to be called hereinafter as 'the Act') and order recording the finding against the petitioner was passed on 3.9.1994. The only submission made by learned Counsel for the petitioner is that the impugned order was passed by the State Government on the basis of the finding arrived at in the preliminary -inquiry under Rule 20 of the Rajasthan Panchayat (General) Rules, 1961 (in short, to be called hereinafter 'the Rules of 1961') and not based on consideration of the finding recorded under Sub -rule (4) of Rule 21 of Rules of 1961. The learned Counsel has made the submission on the basis of the fact that the charge was found proved in the preliminary -inquiry under Rule 20 of the Rules of 1961 but the petitioner was exonerated in the inquiry conducted under Sub -rule (4) of Rule 21 of the Rules of 1961. The notice issued to the petitioner dated 27.9.1993 for the proceedings for recording the finding against him under proviso to Section 1 (4) of the Act accompanied with the finding recorded in the preliminary -inquiry wherein the charge has been found proved against the petitioner and not the report o te inquiry conducted under Sub -rule (4) of Rule 21 of the Rules of 1961. Further, the order passed by the State Government dated 3.9.1994 also mentions that the State Government has relied upon the inquiry -report wherein the charge against the petitioner has been found proved.
(2.) IN paragraph 10 of the writ petition, it has been alleged by the petitioner that the show -cause notice issued to the petitioner under Section 1 (4) of the Act accompanies the Inquiry Officer's report dated 30.3.1991. A copy of the inquiry -report is placed on the record as Annex. -7. In paragraph 16 of the writ petition, it is further alleged that alongwith notice dated 27.9.1993 a copy of the preliminary -inquiry report has been forwarded to the petitioner and, on the basis of this report, the finding has been recorded against the petitioner. The petitioner had filed additional affidavit in this Court wherein it has been said by the petitioner that the inquiry was held against him by Shri R.C. Gupta and Shri R.C. Gupta has found that the charges levelled against him have not been proved. That, the petitioner has not been supplied with the report submitted by Shri R.C. Gupta. He filed a document which appears to be a report submitted to the Vikas Ayukta in pursuance of his order. The report indicates that the Inquiry Officer has not found the charge proved against the petitioner. The return submitted by the State does not specifically deny the fact that the petitioner was exonerated in the inquiry conducted under Sub -rule (4) of Rule 21 of the Rules of 1961 not the report of the Inquiry Officer was produced with the return, showing the facts to be otherwise, that the petitioner was not exonerated in the inquiry under Rule 21. From the aforesaid material it is clear that although in the preliminary -inquiry held under Rule 20 of the Rules of 1961, the petitioner was found guilty of the charge but in the inquiry conducted under Sub -rule (4) of Rule 21 he was not found guilty of the charge. The question, therefore, requires determination in this case is whether the State Government or the authority or the officer exercising powers under Rule 22 could rely on the report of the preliminary -inquiry while passing the order against the petitioner recording the finding. The scheme for removal of a Panch, or for recording the finding is provided under Rules 20 to 22 of the Rules of 1961. Rule 20 is in regard to the preliminary inquiry for removal which lays down that the Collector may, on his own motion or upon the requisition of the State Government, initiate a preliminary -inquiry under Sub -section (4) of Section 17 against any Panch, Sarpanch or Up -Sarpanch of a Panchayat or against any member of a Nyaya Up Samiti. Under Sub -rule (3) of Rule 20, such preliminary -inquiry against the Chairman or a member of a Nyaya Up -Samiti may also be initiated by the Munsif, or where there is no Munsif by the Civil Judge, or by the Magistrate of the First Class, having jurisdiction over the Nyaya Up -Samiti. We are not concerned with this provision. Sub -rule (4) of Rule 20 provides that if, as a result of such preliminary inquiry, the Collector is satisfied that any charges of the nature specified in Section 17 are prima facie made out against a Panch, Sarpanch or Up -Sarpanch, or against any member, as the case may be, the report thereof alongwith the recommendations shall be made to the State Government or to any officer or authority to whom the powers of the State Government under Sub -section (4) of Section 17 were delegated. Rule 21 lays down that the report of the preliminary inquiry so submitted be considered by the State Government or the officer or the authority referred to in Sub -rule (4) of Rule 20 and, after giving consideration thereto, the inquiry may be dropped or, if satisfied, may draw the statement of charge prima facie made out against the person against whom the preliminary -inquiry has been held specifying such details as may be sufficient for him to understand the nature thereof. A copy of the statement shall be sent to the person charged alongwith the notice calling upon him to show cause in writing why they should not be inquired into. The notice would be entitled to submit his representation and the State Government or the officer, or the authority referred to in Sub -rule (4) may again either drop the proceedings or may appoint an officer or authority to inquire into the charges. The Inquiry Officer under Sub -rule (4) shall issue a notice to the person charged to appear before him and, thereafter, after giving due opportunity to the person concerned, shall record his finding on each of the charges. The record of the inquiry together with the finding of the Inquiry Officer shall be forwarded by the Inquiry Officer to the State Government or the officer or authority referred to in Sub -rule (4) of Rule 20. Rule 22 thereafter provides that the State Government or the officer or the authority referred to in Sub -rule (4) of Rule 20 shall consider the finding of the Inquiry Officer and, after giving reasonable opportunity to the person charged, pass such order as it or he may consider proper in the circumstances of the case. Rule 22 postulates two things before passing of the order by the State Government, (i) it shall consider the finding of the Inquiry Officer and (ii) reasonable opportunity shall be given to the person charged. The finding of the Inquiry Officer referred to necessarily relates to the finding arrived at in the inquiry held under Sub -rule (4) of Rule 21 because Sub -rule (5) of Rule 21 requires the Inquiry Officer to forward the finding arrived at by him for consideration of the State Government or officer or authority under Rule 22 of the Rules of 1961. It does not refer to the finding arrived at under Rule 20 in the preliminary inquiry held. This is so because after preliminary inquiry being held under Rule 20 the proceedings could be dropped by the Collector himself under Sub -rule (4) of Rule 20. Further, under Sub -rule (1) of Rule 21, the State Government can again drop the proceedings on consideration of the report of the preliminary -inquiry. Sub -rule (3) of Rule 21 further provides for dropping of the proceedings after consideration of the representation made by the notices. Rule 22 does not in any manner refer to the report which was required to be considered to be the report of the preliminary inquiry. In the preliminary -inquiry the person is not entitled to be heard. It is only when the inquiry is held under Sub -rule (4) of Rule 21 that the person gets an opportunity to participate in the Inquiry. Thus the report which has been mentioned in Rule 22 has reference to the inquiry -report made under Sub -rule (4) of Rule 21 of the Rules of 1961.
(3.) ON the basis of the facts found it is clear that the State Government while passing the order has relied upon the inquiry -report given in the preliminary -inquiry and not the inquiry -report given in the final inquiry under Sub -rule (4) of Rule 22. As the State Government has not followed the mandatory provisions of law before passing of the order of considering the inquiry -report of the inquiry held under Sub -rule (4), the order passed recording the finding against the petitioner is against the provisions of law. Consequently, the writ petition is allowed. The order dated 3.2.1994 Annex. -9 is quashed. In the circumstances of the case, there shall, however, be no order as to costs.;