1. - In this writ petition the petitioner is aggrieved against the order of punishment dated 10.9.1999 Annexure-10 by which the petitioner has been found guilty of the charges under Section 38 of the Rajasthan Panchayati Raj Act, 1994 and has been directed to deposit the amount of Rs. 15,154/- which is found to have been embezzled. The petitioner has also been removed from the post of Sarpanch after being found guilty in the inquiry.

2. The submission of the learned counsel for the petitioner is that in the first instance the petitioner was served with a charge sheet and an enquiry was held and as per the enquiry report Annexure-5 dated 12.3.1999 the petitioner was exonerated of the charges. Thereafter it appears that the Government did not agree with the findings of the Enquiry Officer as contained in the enquiry report Annexure-5 dated 12.3.1999 and ordered a fresh enquiry. The submission of the learned counsel for the petitioner is that in the enquiry which was held afresh no notice of the enquiry was given to the petitioner. The petitioner was served with a notice by the Government Annexure-6 dated 23.7.1999 after the second enquiry was completed to show cause against the finding of the second enquiry report. It is contended that in the proceedings of the second enquiry leading to the issuance of the show cause notice after completion of the enquiry dated 23.7.1999 are contrary to the principles of natural justice.

3. Learned counsel for the petitioner has drawn the attention of the Court to the averments made in this behalf in para 6 of the writ petition wherein the petitioner has clearly stated that the second enquiry officer did not give any notice of the holding of the enquiry afresh and as such the enquiry as well as the second show cause notice issued by the Government dated 23.7.1999 leading to the passing of the order dated 20.9.1999 is vitiated and deserves to be quashed.

4. The learned counsel appearing on behalf of the respondents has submitted that no fresh enquiry has been ordered but on the appreciation of the material on record the Government did not accept the enquiry report and appointed a new enquiry officer to consider the material which had come on record and given his findings as per law. It is submitted that the provisions of Rule 22(5) of the Panchayat Rules, 1996 only requires the enquiry officer to given his findings on the basis of the material available. It is submitted that no new material was collected by the enquiry officer, who has only given his report on the basis of the material on record.

5. During the course of hearing it was not disputed by the learned counsel for the petitioner that the enquiry report submitted is based upon the material which had been collected in the enquiry in the presence of the petitioner and that no new material was placed on record of the enquiry officer.

6. I have heard learned counsel for the parties and perused the record in response to the averments made in para 16 of the writ petition the respondents have stated in para 16 that the Government took a decision not to accept first enquiry report and the Government was competent not to accept the same. It is also submitted that there were complaints against the petitioner and several criminal cases have also been filed against the petitioner and as such the enquiry report was not accepted and an enquiry officer was appointed to submit a fresh report. After submission of the enquiry report the notice dated 23.7.1999 was given to the petitioner and thereafter after considering the explanation submitted by the petitioner the impugned order dated 20.9.1999 has been passed.

7. The petitioner has submitted the rejoinder and in para 16 the averments made in the writ petition have been reiterated that the petitioner was not given any opportunity of participation in the second enquiry by the enquiry officer and, that the second enquiry has proceeded ex parte against the petitioner.

8. I have considered the rival submi