District Tonk Rajasthan. vs State Of Rajasthan, Through Principal Secretary Cum

Judgment

1. State Of Rajasthan, Through Principal Secretary Cum Commissioner, Panchayati Raj Department, Government

4. Of Rajasthan, Government Secretariat, Jaipur. District Collector, Tonk, District Tonk, Rajasthan. Zila Parishad, Tonk, Through Chief Executive Officer Development Officer, Panchayat Samiti Uniara, Mukam Aligarh, District Tonk Rajasthan. ----Respondents For Petitioner(s)

: Mr.Rajesh Sharma with Ms.Kamini Pareek, Mr.Jitendra Choudhary Mr.Dhanna Lal Meena For Respondent(s) : Mr.Kapil Prakash Mathur, AAG with Mr.Ashutosh Udawat, Mr.Sarthak Sharma & Mr.Sumit Purohit JUSTICE ANOOP KUMAR DHAND Order 20/08/2025

1. Learned counsels for the parties are in agreement that the issue involved in this writ petition has already been set at rest by this Court in a batch of writ petition with the lead case of Mahaveer Prasad Gautam Vs. State of Rajasthan & Ors. while deciding S.B. Civil Writ Petition No.3422/2025. Counsels submit that the instant writ petition be disposed of in the light of [2025:RJ-JP:32618] (2 of 9) [CW-11117/2025] the similar directions issued in the case of Mahaveer Prasad Gautam (supra).

2. Considering the joint submission made by counsel for the respective parties and looking to the fact that the issue involved in this writ petition has already been decided by this Court in the case of Mahaveer Prasad Gautam (supra) with the following observations and directions in Para Nos.27 to 42 as follows: “27. All of the petitioners have been removed under Section 38(1) of the Act of 1994. Section 38 of the Act of 1994 deals with the provisions of removal and suspension of any member of the Panchayati Raj Institution. Section 38 of the Act of 1994, being relevant in the present context, is reproduced as under:- “38. Removal and Suspension.- (1) The State Government may, by order in writing and after giving him and opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution, who- (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct : Provided that any enquiry under this sub- section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled. (2)The Chairperson or the Deputy Chairperson removed under Sub-sec. (1) may at the discretion of the State Government also be removed from the [2025:RJ-JP:32618] (3 of 9) [CW-11117/2025] membership, of any of the Panchayati Raj Institution concerned. (3)The member or the Chairperson or the Deputy Chairperson removed under Sub-sec. (1)or against whom finding have been recorded under the proviso to that sub-sec, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (4)The State Government may suspended any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-sec. (1) or against whom any criminal proceedings in regard to an offense involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension. Provided that the State Government may also suspend any Panch on the recommendation of the Ward Sabha or a Sarpanch on the recommendation of the Gram Sabha, but the State Government shall do so only when a resolution to that effect passed by a Ward Sabha, or a Gram Sabha, as the case may be, is referred by the State Government to the Collector for convening a special meeting of the Ward Sabha or the Gram Sabha, as the case may be, for finally ascertaining the wished of the members and the members present in the meeting so convened by the Collector and presided over by his nominee, reaffirm the resolution seeking suspension of the Panch or the Sarpanch, as the case may be, by a majority of two-third of the members present and voting. Providing further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the [2025:RJ-JP:32618] (4 of 9) [CW-11117/2025] completion of a tenure of two years by a Panch or a Sarpanch, as the case may be. (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Sec. 97, be final and shall not be liable to be questioned in any Court of law.”

28. Bare perusal of Section 38 of the Act of 1994 postulates that the State Government may remove any member of the Panchayati Raj Institution, after giving him an opportunity of being heard, who refuses to act or becomes incapable of acting as such; or who is guilty of misconduct in discharge of his duties or any disgraceful conduct.

29. Herein the instant cases, all the petitioners have been removed from their posts of the Administrators on the basis of various kinds of allegations/charges levelled against them, having been found prima facie guilty on the basis of fact- finding reports prepared by the concerned Authorities. In some cases, charge- sheets along with memorandum of charges have been served upon them, whereas in some cases, no charge-sheet has been given to them.

30. In the majority of cases, the charges pertain to misuse of the powers and the position during the petitioners’ tenure as Sarpanch. The petitioners have been found prima facie guilty of the charges/ allegations levelled against them and consequently, they have been removed from the post of Administrator.

31. The very opening of Section 38(1) of the Act says that any member of Panchayati Raj Institution may be removed if he is found guilt of misconduct or disgraceful act. But, herein the instant case, all the petitioners have been removed straightaway without granting them any opportunity of hearing. [2025:RJ-JP:32618] (5 of 9) [CW-11117/2025]

32. Counsel for the respondents submitted that the petitioners, being Administrators, have no right to continue on the post of Sarpanch, after completion of their tenure on the post of Sarpanch. He further submitted that the petitioners were appointed as Administrators merely as a stopgap arrangement till conducting of new & fresh elections, therefore, neither any notice was required to be issued to them nor it was necessary to afford them an opportunity of being heard. Counsel submitted that after removal of the petitioners from the post of Administrator, now appropriate enquiry will be conducted against them and in case, the charges are found to be proved against them, appropriate orders will be passed against them, including debarring them from contesting the future elections.

33. This implies that the respondents would conduct a Post-Decisional Hearing with closed mind and such a hearing would amount to a sheer formality, conducted with the pre-conceived intention to impose punishment, thereby rendering the Post-Decisional Hearing ineffective. The basic prospect of natural justice mandates a pre-decisional hearing and not a post-decisional hearing. If the authorities have already decided to take action prior to initiating any enquiry, then granting a post-decisional hearing would be an empty formality calling for violation of the principle of natural justice.

34. It is the settled proposition of law that any administrative or quasi-judicial order is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The Hon’ble Apex Court in the case of Man Singh v. State of Haryana reported in (2008) 12 SCC 331 has held in para 20 as under:- [2025:RJ-JP:32618] (6 of 9) [CW-11117/2025] “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair- minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the a accepted methodology of governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.”

35. It is a well-settled principle of law that gathering evidence by way of enquiry with an intention to support the pre-decisional punishment will just emphasize the matter and the same would be against the principle of Natural Justice. In the case of State of Punjab vs Davinder Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770, the Hon’ble Apex Court has held as under: “Since the foundation of initiation of the departmental proceeding and its conduct have been shown to be entirely illegal, the foundation has to be necessarily removed, as a result of which the structure/work of punishment given to this writ petitioner stood, is bound to fall.”

36. A similar methodology was employed by the Hon’ble Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. Union of India reported in (1981) 1 SCC 664 where a void administrative choice was [2025:RJ-JP:32618] (7 of 9) [CW-11117/2025] approved by way of post-decisional hearing. An order assuming control over the administration of an organization by the Government without earlier notice or hearing was held to be bad as it abused the audi alteram partem rule. Be that as it may, the Court approved the impugned order on the grounds that the Government had consented to give post- decisional hearing.

37. Considering the facts and circumstances of the present cases and the law laid down by the Hon’ble Apex Court, as referred in above paragraphs, this Court finds that the petitioners were proceeded in accordance with the provision of Section 38 of the Act of 1994, without being afforded any opportunity of hearing and all of them have been removed from the post of Administrator and thereafter, charge-sheets have been served upon them to conduct enquiry. In the opinion of this Court, the respondents have pre-determined to impose the order of removal on the petitioners and thereafter, proceeded to hold enquiry, giving only a post-decisional opportunity of hearing which does not subserve the rule of natural justice and is contrary to the principles of fair play. The respondents who embark upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation of the petitioners at such a post-decisional opportunity.

38. The issue involved in the instant cases can be understood with the following saying that “An accused person cannot be held guilty prior to the commencement of a trial against him.” It is settled proposition of law that every accused has a right to a fair trial to determine whether he is innocent or guilty. This is an internationally recognized human [2025:RJ-JP:32618] (8 of 9) [CW-11117/2025] right. If any charges have been levelled against the petitioners, they have right of fair opportunity of hearing and enquiry. Fair trial helps establish the truth and is vital for everyone involved in a case. This is a cornerstone of democracy, helping to ensure fair and just societies and limiting abuse by Government and the State authorities. A fundamental principle behind the right of fair trial or enquiry is that every person should be presumed innocent until proven guilty. But, in the instant case, the petitioners have been treated as guilty before they have had their day in enquiry. Hence, their right of fair enquiry has been undermined.

39. The Rule of law mandates that the State Authorities must act strictly in accordance with law and remain accountable for their actions. It also means that everyone within the State is subject to the same legal framework and laws. No individual, regardless of wealth or power, is above the law. The rule of law must be enforced uniformly and consistently. This may necessitate the adoption of special measures to ensure that individuals are afforded a fair chance to present their defence. Conclusion & Directions:

40. In the instant case, the respondents have failed to comply with the mandatory provisions contained under Section 38(1) of the Act of 1994, as no opportunity of hearing has been provided to the petitioners by the respondents prior to passing their orders of removal from the post of Administrator. Accordingly, this Court quashes and sets aside the impugned removal orders of the petitioners from the post of Administrator and grants liberty to the respondents to proceed against the petitioners by exercising the powers contained under Section 38 of [2025:RJ-JP:32618] (9 of 9) [CW-11117/2025] the Act of 1994 and Rules of 1996 framed thereunder.

41. The respondents are expected to initiate proceedings against the petitioners in accordance with Sections 38(1) and 38(4) of the Act of 1994, and conclude the same expeditiously as early as possible, preferably within a period of two months from today and pass fresh orders, after affording opportunity of hearing to the petitioners.

42. With the aforesaid observation and directions, all these petitions as well as the stay application and all pending, if any, also stand disposed of.”

3. This Court finds no valid reason to take a different view. Accordingly, this writ petition stands disposed of in the light of the similar directions issued in the case of Mahaveer Prasad Gautam (supra).

4. Stay application and all pending application(s), if any, also stand disposed of. Aayush Sharma /86 (ANOOP KUMAR DHAND),J