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High Court Of Rajasthan
Judgename : S.C. Agrawal
Radhey Shyam Sharma - Appellant
Versus
State of Rajasthan - Respondent
Civil Writ Petition No. 784 of 1984
Decided On : 08/31/1984
PANCHAYAT - Suspension of Sarpanch - Order of suspension under Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953 - Interpretation - Principles of natural justice - Applicability - Mala fide - Consideration.
Fact of the Case:
Petitioner, Sarpanch of Gram Panchayat Mangiabas, was suspended from office under Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953, based on a preliminary inquiry report and a change-sheet served on him. He challenged the suspension order, arguing that it was passed without affording him an opportunity to be heard and was mala fide.
Finding of the Court:
1. The court held that an order of suspension under Sub-section (4A) of Section 17 can be passed after a preliminary inquiry and consideration of the report by the State Government, even before the Panch, Sarpanch, or Upsarpanch submits an explanation in response to the show-cause notice. 2. The court rejected the argument that principles of natural justice require a pre-decisional opportunity to be heard before suspension, as an order under Sub-section (4A) is an interim measure pending inquiry and post-decisional opportunity is sufficient. 3. The court emphasized the need for the State Government to reconsider the suspension order after receiving the Panch, Sarpanch, or Upsarpanch's explanation and to revoke it if the charges are unsubstantiated or the misconduct is not serious enough to warrant suspension. 4. The court dismissed the mala fide contention, stating that the mere fact that the inquiry was initiated at the instance of an opposition party member does not imply mala fide, especially when the petitioner belongs to the ruling party.
Issues: 1. Whether an order of suspension under Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953, can be passed before the Panch, Sarpanch, or Upsarpanch submits an explanation to the show-cause notice. 2. Whether principles of natural justice require a pre-decisional opportunity to be heard before suspension under Sub-section (4A) of Section 17. 3. Whether the State Government is obligated to reconsider the suspension order after receiving the Panch, Sarpanch, or Upsarpanch's explanation. 4. Whether the suspension order was passed mala fide.
Ratio Decidendi: 1. The court interpreted Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953, and held that an order of suspension can be passed after a preliminary inquiry and consideration of the report by the State Government, even before the Panch, Sarpanch, or Upsarpanch submits an explanation in response to the show-cause notice. 2. The court distinguished between suspension as punishment and suspension as an interim measure pending inquiry and held that principles of natural justice do not require a pre-decisional opportunity to be heard before suspension under Sub-section (4A) of Section 17, as it is an interim measure. However, the court emphasized the need for post-decisional opportunity to be heard. 3. The court held that the State Government is obligated to reconsider the suspension order after receiving the Panch, Sarpanch, or Upsarpanch's explanation and to revoke it if the charges are unsubstantiated or the misconduct is not serious enough to warrant suspension. 4. The court rejected the mala fide contention, stating that the mere fact that the inquiry was initiated at the instance of an opposition party member does not imply mala fide, especially when the petitioner belongs to the ruling party.
Final Decision: The writ petition challenging the suspension order was dismissed, but the court directed the State Government to reconsider the suspension order after receiving the petitioner's explanation and to revoke it if the charges are unsubstantiated or the misconduct is not serious enough to warrant suspension.
S.C. Agrawal, J.-Radhey Shyarn Sharma, the petitioner in this writ petition, is Sarpanch of Grarn Panchayat Mangiabas. Certain cornplaints were received against the petitioner and a preliminary enquiry was conduted into the said cornplaints by the Sub-Divisional Officer, District Jaipur. The said report was submitted by the Collector, Jaipur along with his recommendations to the State Government After considering the aforesaid report of preliminary enquiry, the State Government passed an order in the exercise of its powers under Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as ‘the Act’) on 16th July, 1984 whereby the petitioner was suspended from the office of Sarpanch, Grarn Panchayat Mangiabas, with immediate eifect. A change-sheet was also served on the petitioner and the petitioner was required to submit his explanation to the sarne. Feeling aggrieved by the aforesaid order of suspension passed by the State Government, the petitioner has filed this writ petition.
2. A notice was issued to the State Government, non-petitioner No. 1, requiring thern to show cause as to why the writ petition should not be admitted.
3. Caveat has been filed on behalf of respondent No. 6 who has also filed a reply to the writ petition.
4. 1 have heard Shri Jagdeep Dhankar, the learned Counsel for the petitioner and Shri G. G. Sharma, the
learned Counsel for non-petitioner No. 6.
5. Before dealing with the contentions urged by Shri Dhankar, it would be appropriate to set out the relevant provisions of the Act and the Rajasthan Panchayat & Nyaya Panchayat (General) Rules, 1961 9hereinafter referred to as ‘the Rules’). The relevant provisions of the Act are contained in Sub-sees. (4) and (4A) of Section 17 of the Act, which read as under :--“17(4) The Slate Government rnay, by order in writing and after giving him an opportunity of being heard and rnaking such inquiry as rnay be deerned necessary, rernove any Panch, Sarpanch or Upsarpanch who--
.(a) refuses to act or becornes 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 to 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 and in any (such) cases, the State Government shall, by order in writing record its finding on the charges levelled against a Panch, Sarpanch or Upsarpanch of the Panchayat during its term of office”. “(4A). The State Government may suspend any Panch, Sarpanch, or Upsarpanch against whom an enquiry has been started under Sub-section (4) of the proviso thereto, or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law, and debar him from taking part in any act or proceedings of the Panchayat while under suspension”. Rules 20 and 21 of the Rules which have a bearing on the question of removal of Panchas and Sarpanchas under Sub-section (4) of Section 17 of the Act provided that: “20. Preliminary inquiry for removal.--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 Upsarpanch of a Panchayat or against any member or Chairman of a Nyaya Panchayat.
.(2) For the purpose of Sub-rule (1) any officer subordinate to him may be deputed by the Collector to hold such preliminary inquiry and to make a report to him.
.(3) anyPreliminary inquiry against the Chairman or a member of a Nayaya Panchayat may also be initiated as aforesaid by the Munsif , or, where there is no Munsif by the Civil Judge, or the Magistrate of the First Class, having jurisdiction over the Nyaya Circle.
.(4) If , as a result of such preliminary inquiry, the Collector or the Munsiff or
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