Rajasthan High Court - Jaipur
Sardar Meena Son Of Shri Ramjilal Meena vs The State Of Rajasthan on 15 July, 2021
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6800/2021
Sardar Meena Son Of Shri Ramjilal Meena, Aged About 23 Years,
Resident Of Village Gola Ka Bas, At Present Sarpanch Gram
Panchayat Gola Ka Bas, P.S. Tahla, District, Alwar.
----Defendants-Petitioner
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Department Of Rural Development And Panchayati Raj,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Additional Commissioner And Joint Secretary, Rural
Development And Panchayati Raj Department,
Government Of Rajasthan, Secretariat, Jaipur.
3. The Divisional Commissioner, Jaipur.
4. The Chief Executive Officer, Zila Parishad Alwar.
5. The Block Development Officer, Panchayat Samiti Rajgarh,
District, Alwar.
----Respondents
For Petitioner(s) : Mr. Banwari Lal Sharma, Advocate
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
REPORTABLE
15/07/2021
The present writ petition has been filed by the petitioner
challenging the order dated 16.06.2021 whereby the petitioner,
has been placed under suspension on the post of Sarpanch, Gram
Panchayat, Gola Ka Bas, Panchayat Samiti Rajgarh, District Alwar
and order 16.06.2021, whereby an inquiry has been initiated
against the petitioner under sub-rule (2) of Rule 22 of Rajasthan
Panchayati Raj Rules, 1996 (in short 'Rules of 1996').
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Counsel for the petitioner submitted that petitioner was
elected Sarpanch in the year 2020 and due to political rivalry, son
of the defeated candidate, lodged an FIR No.103/2021 at police
station Tahela, District Alwar under Sections 143, 454 and 307 IPC
& Section 3/25 of the Arms Act.
Counsel submitted that the said FIR was a counterblast, as
the family members of the petitioner had lodged an FIR
No.101/2021 at police station Tahela, District Alwar under
Sections 143, 323, 341 and 427 IPC.
Counsel submitted that the suspension order dated
16.06.2021 has illegally been passed by the respondents as
criminal proceeding, against the petitioner, is not pending trial in
any Court and only on the basis of lodging of an FIR &
investigation thereon, the power cannot be exercised by the
respondents, by placing the petitioner under suspension.
Counsel further submitted that the power of suspension, as
provided under sub-section (4) of the Section 38 of the Panchayati
Raj Act, 1994 (in short 'the Act of 1994') provides that if an
inquiry is initiated for removal of Sarpanch/Chairperson, the power
of suspension can be exercised by the State Government.
Counsel submitted that, in the present case, initiation of
inquiry against the petitioner for his removal under sub-section
(1) of Section 38 of the Act of 1994 is based only on an
explanation sought from the petitioner, by issuing him a letter
dated 16.06.2021 along with memo of charges relating to arrest
of the petitioner, in a criminal case and said act is not a disgraceful
act, as per Section 38 of the Act of 1994.
Counsel submitted that the suspension order, has wrongly
been passed by the State Government as the petitioner is not
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facing any trial nor any inquiry has been initiated for his removal
under sub-section (1) of Section 38 of the Act of 1994 as only an
explanation from the petitioner has been sought.
Counsel submitted that as far as the act of the petitioner in
the criminal case is concerned, same is not related to misconduct
in discharge of his duties and the very initiation of removal
proceedings and suspension, is contrary to the Rules and bad in
eyes of law.
While assailing the charge-sheet issued to the petitioner
dated 16.06.2021, counsel submitted that sub-rule (2) of Rule 22
of the Rules, 1996 requires that the State Government before
taking any action under sub-section (1) of Section 38 of the Act of
1994, either on complaint or otherwise, should get the preliminary
enquiry done and after receiving the report, the subsequent
proceedings, under sub-rule (2) of Rule 22 of the Rules, 1996, can
be undertaken by the State Government.
Counsel submitted that no preliminary inquiry has been
conducted in the instant case and as such the respondents could
not have proceeded under sub-rule (2) of Rule 22 of the Rules,
1996 and ask explanation from the petitioner by framing a definite
charge against the petitioner.
Counsel further argued that no power is available with the
State Government, without having preliminary enquiry to call for
the explanation of any elected chairperson. Assuming the power is
available to the State Government due to the word "otherwise",
there has to be application of mind by the State Government on
the total facts of the case.
Counsel further submitted that the notice asking explanation
from the petitioner, has already pre-determined the allegation
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against the petitioner, as definite charge has been framed, only on
account of the criminal case registered against him.
Counsel argued that the Full Bench of this Court in Bhura
Lal Vs. State of Rajasthan reported in 1988(1) RLR 945 has
considered pari-materia provision of the Rajasthan Panchayat Act,
1953 (for short 'the Act of 1953') and the Court after interpreting
the provisions contained under Section 17(4A) of the Act of 1953,
has come to the conclusion that inquiry is said to be started,
against a Sarpanch or Upsarpanch, when on the basis of the
material placed on record of preliminary enquiry, the State
Government issues a notice to the erring Sarpanch/Upsarpanch to
show cause in writing why the charge should not be inquired into
and such notice should be accompanied with a copy of the
statement of charges.
Counsel submitted that in the instant case, the entire
exercise undertaken by the State Government, is contrary to the
law laid down by the Full Bench of this Court and deserves to be
deprecated.
Counsel for the petitioner submitted that this Court has
already decided the controversy with regard to suspension of an
elected member of Municipality and considered the provisions
under Section 39(6) of the Rajasthan Municipalities Act, 2009 and
also laid down the law that only after preliminary enquiry and
explanation being called, the person can be placed under
suspension.
Mr. Banwari Lal Sharma, learned counsel for the petitioner
further submitted that an elected member of the Panchayati Raj institution is at better footing than any other government (Downloaded on 20/07/2021 at 09:34:54 PM) (5 of 10) [CW-6800/2021] employee and as such power of suspension has to be used sparingly and with full application of mind.
Counsel submitted that in the present case, due to political rivalry, the entire action has been initiated and as such the impugned order of suspension as well as the order asking explanation from the petitioner, while framing definite allegation deserve to be set aside.
I have heard learned counsel for the petitioner. The abstract of sub-rule (2) of Rule 22 of the Rules, 1996 and Section 38 of the Act of 1994, being relevant for the present purpose are quoted hereunder:-
"Rule 22. Procedure of enquiry- (1) Before taking any action under Sub-Section (1) of Section 38, where on its own motion or upon any complaint the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month.
(2) If, upon consideration of the report received as aforesaid or otherwise, the State Government is of the opinion that action under Sub-Section (1) of Section 38 is necessary, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson, Deputy Chairperson or Member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit a written statement within one month admitting or denying the allegations, giving his defence, if any and whether he desires to be heard in person."
38. Removal and suspension. - (1) The State Government may, by order in writing and after giving him an 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;(Downloaded on 20/07/2021 at 09:34:54 PM)
(6 of 10) [CW-6800/2021] 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-Section (1) may at the discretion of the State Government also be removed from the membership, of any of the Panchayati Raj Institution concerned.
(3) The member or the Chairperson or the Deputy Chairperson removed under Sub-Section (1) or against whom finding have been recorded under the proviso to that sub-section, 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 suspend any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub-Section (1) or against whom any criminal proceedings in regard to an offence 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 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 or two third of the members present and voting:] Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the 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 (Downloaded on 20/07/2021 at 09:34:54 PM) (7 of 10) [CW-6800/2021] order made under Section 97, be final and shall not be liable to be questioned in any Court of law. This Court finds that the order of suspension dated 16.06.2021 has been passed by the State Government on the basis that enquiry against the petitioner has been initiated under sub-section (1) of Section 38 of the Act of 1994.
This Court finds that the State Government has not exercised its power on the basis of the criminal proceeding, pending against the petitioner for trial, in the Court of law.
This Court finds that Section 38 sub-section (1)(b) of the Act of 1994 provides that if an elected person is guilty of misconduct in discharge of duties or any disgraceful conduct, the State Government can initiate the procedure of removal of such person.
This Court finds little substance in the submission of the learned counsel for the petitioner that since the allegation against the petitioner is not in respect of discharge of the duties and there is some private feud between the parties and as such the State Government has wrongly invoked the power of the suspension, this Court finds that the word 'disgraceful conduct' will take in its ambit, other misconduct of an elected person, if he commits even beyond discharge of the duties.
The submission of the learned counsel of the petitioner that the issuance of the charge-sheet and asking explanation from the petitioner is against sub-rule (2) of Rule 22 of the Rules, 1996, this Court finds that for the purpose of removal of any elected member under sub-section (1) of the Section 38 of the Act of 1994, the State Government on its motion or upon the complaint of any other person can get a preliminary enquiry done and after the said enquiry report is sent to the State Government and (Downloaded on 20/07/2021 at 09:34:54 PM) (8 of 10) [CW-6800/2021] further procedure provided under sub-rule (2) of Rule 22 of the Rules,1996 is required to be followed.
A bare perusal of sub-rule (2) of Rule 22 of the Rules,1996 provides that if the State Government after receipt of the report of a preliminary enquiry as prepared under Rule 22(1) of the Rules, 1996, or otherwise, finds the definite charges are required to be framed, then after framing the definite charges, the same is communicated to the elected members and then the written statement admitting or denying the allegations, is required from the person concerned.
The submissions of the counsel for the petitioner that in absence of the preliminary enquiry and report thereon, the State Government could not have proceeded under sub-rule (2) of Rule 22 of the Rules, 1996 is without substance.
The power which is given to the State Government is not on the basis of the preliminary report alone and if the State Government otherwise comes to the conclusion that an action is required for removal of an elected member, the procedure laid down under Rule 22 of the Rules, 1996 is required to be followed.
This Court finds that in the present case, the petitioner has been communicated with a definite charge and he has been given an adequate opportunity to explain his defence before the authorities and the State Government after receiving the response from the petitioner will frame its opinion whether they intend to proceed further or not.
The submission of the learned counsel that the Full Bench of this Court in the case of Bhura Lal Vs. State of Rajasthan (Supra) has taken a view that the enquiry is said to be started when on the basis of the material placed on record of preliminary (Downloaded on 20/07/2021 at 09:34:54 PM) (9 of 10) [CW-6800/2021] enquiry and report thereon, the notices are required to be issued to the erring person, this Court with full sense of responsibility finds that the clause which was interpreted by the Full Bench of this Court was in respect of Section 17(4A) of the Rajasthan Panchayat Act, 1953 and the words which have been used in the said Act are absolutely different and as such the scope of the interpretation in the present statute, contained in the Panchayati Raj Act, 1953, has to be done as per the provisions contained in the Act.
The reliance placed by counsel for the petitioner on the case of Rajaram Gurjar Vs. State of Rajasthan & Ors. reported in 2020(1) RLW 718 is also of little assistance to him. This Court in the case of Rajaram Gurjar(Supra), interpreted the provisions contained in Section 39 of the Rajasthan Municipalities Act, 2009 for removal and suspension of a Member of Municipalities.
This Court has held that the power of suspension may be invoked by the State Government, if the proceedings have been commenced for removal of a member as provided under sub- section (1) of Section 39 of the Act of 2009.
This Court further interpreted the provisions contained in sub-section (6) of Section 39 of the Act of 2009 and found that the said Section does not contemplate any show-cause notice or any explanation is required from the Member of Municipality before suspension. The Competent Authority, if receives inputs as per sub-section (2) of Section 39 of the Act of 2009, it may exercise the power of removal after application of mind and if the State decides to hold inquiry against the Member of Municipality and further statement of allegation setting out distinct charges are (Downloaded on 20/07/2021 at 09:34:54 PM) (10 of 10) [CW-6800/2021] issued to the Member, it cannot be said that proceedings are not commenced under Section 39 of the Act of 2009.
This Court finds that the present writ petition is without any substance and hence deserves to be dismissed.
The writ petition is accordingly, dismissed. The miscellaneous application for impleadment also stands disposed of.
(ASHOK KUMAR GAUR),J AARZOO ARORA/41 (Downloaded on 20/07/2021 at 09:34:54 PM) Powered by TCPDF (www.tcpdf.org)