1985 Supreme(Raj) 850
RAJASTHAN HIGH COURT
N.M.Kasliwal, J.
T.C. Jain - Appellant
Versus
State of Rajasthan and ors. - Respondent
S.B.C.W.P.No. 2084 of 1985.
Decided On : 20-12-1985
A case under Section 3/7 of the Essential Commodities Act, 1955, cannot be considered as involving moral turpitude for the purpose of suspension under Section 17(4A) of the Rajasthan Panchayat Act, 1953.
Headnote:
SUSPENSION OF SARPANCH - SECTION 17(4A) OF THE RAJASTHAN PANCHAYAT ACT, 1953 - ESSENTIAL COMMODITIES ACT, 1955 - SECTION 3/7 - MORAL TURPITUDE - NOTICE AND OPPORTUNITY OF HEARING - PRINCIPLES OF NATURAL JUSTICE - FULL BENCH DECISION IN BHOORA LAL V. STATE - SCOPE OF JUDICIAL REVIEW UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
Petitioner, elected as Sarpanch in December 1981, was suspended in January 1983 under Section 17(4) of the Rajasthan Panchayat Act, 1953, but the order was withdrawn. In November 1985, he was again suspended under Section 17(4A) due to a pending case under Section 3/7 of the Essential Commodities Act, 1955. The petitioner challenged the suspension, arguing that the case did not involve moral turpitude and that he was not given notice or an opportunity to be heard.
Finding of the Court:
The court held that the impugned order suspending the petitioner was illegal and quashed it. The court found that the incident in question occurred in 1978, a challan was filed in 1980, and no charge had been framed till date. The court also noted that the petitioner was elected as Sarpanch in December 1981, after the incident, and that the State Government had not applied its mind to the peculiar facts and circumstances of the case.
Issues: 1. Whether a case under Section 3/7 of the Essential Commodities Act, 1955, can be considered as involving moral turpitude for the purpose of suspension under Section 17(4A) of the Rajasthan Panchayat Act, 1953? 2. Whether notice and an opportunity of hearing are required before suspending a Sarpanch under Section 17(4A) of the Rajasthan Panchayat Act, 1953? 3. Whether the State Government applied its mind to the peculiar facts and circumstances of the case before suspending the petitioner?
Ratio Decidendi: 1. The court held that a case under Section 3/7 of the Essential Commodities Act, 1955, cannot be considered as involving moral turpitude for the purpose of suspension under Section 17(4A) of the Rajasthan Panchayat Act, 1953. The court reasoned that the offence is punishable up to 7 years, but the trial court had not applied its mind to the merits of the case and no charge had been framed against the petitioner. 2. The court held that notice and an opportunity of hearing are not required before suspending a Sarpanch under Section 17(4A) of the Rajasthan Panchayat Act, 1953, relying on the Full Bench decision in Bhoora Lal v. State. However, the court observed that it was not proper to grant adjournments for a period of nearly 4 years to the Assistant Public Prosecutor for producing any record. 3. The court held that the State Government did not apply its mind to the peculiar facts and circumstances of the case before suspending the petitioner. The court noted that the incident in question occurred in 1978, a challan was filed in 1980, and no charge had been framed till date. The court also noted that the petitioner was elected as Sarpanch in December 1981, after the incident.
Final Decision: The court allowed the petition, set aside the impugned order suspending the petitioner, and directed the trial court to dispose of the criminal case expeditiously.
JUDGMENT
1. - The case of the petitioner is that he was elected as Sarpanch of Gram Panchayat, Phagi District Jaipur in the elections held in the month of December, 1981. After the election of the petitioner as Sarpanch in December, 1981, he was continuously holding the said post of Sarpanch. The case of the petitioner further is that he belongs to Bhartiya Janta Patty and the ruling party in Rajasthan belongs to Congress T. In the month of January, 1983, the petitioner was suspended on some illegal charges under Section 17(4) of the Rajasthan Panchayat Act, 1953 (here in after referred to as 'the Act'). The petitioner filed a writ petition No. 175/83 and challenged the above order of suspension and on a stay petition moved in that case a stay order was also granted in favour of the petitioner. Subsequently, the order of suspending the petitioner was withdrawn by the State Government itself and as such the said writ petition was also withdrawn by the petitioner. The petitioner thereafter came to know that the Under Secretary (Inquiry) Village Development and Panchayat Rajasthan, Jaipur, (respondent No. 2) was going to pass an order under Section 17(4) of the Act suspending the petitioner again. On further inquiry the petitioner came to know that on November 19, 1985, the respondent No. 2 has passed on order suspending the petitioner on the ground that a case under Section 3/7 of the Essential Commodities Act, 1955 (here in after referred to as 'the EC Act') is pending against the petitioner in the court of Chief Judicial Magistrate, Jaipur District, Jaipur. According to the petitioner, the said order had not been served on the petitioner till the filing of the present writ petition on November 21, 1985. A certified copy of the order dated Nov. 19, 1985 has been filed as Annexure 1. The petitioner has thus challenged the order dated Nov. 19, 1985 (Annexure 1) by filing the present writ petition.
2. The contention of the petitioner is that no case under the EC Act can be said to be a case involving moral turpitude and as such if any case under Section 3/7 of the EC Act is pending against him then it cannot be considered as a ground for suspending the petitioner under Section 17(4) of the Act. It has been further submitted that a challan had been filed in the year 1980 against the petitioner with regard incident relating to year 1978 and no charge has still been framed in the aforesaid case and as such that case cannot be taken as a ground that any trial is pending against the petitioner. It is submitted that in the above case, the allegation against the petitioner is that he was having 73 bags of cement without licence. Even arguments regarding framing of charge have not been heard in that case and the last date in the above case was November 19, 1985 and the case has now been adjourned to January 16, 1986. That case is to be tried as a warrant case and before framing any charge in the case it cannot be considered that any trial is pending against him. It has been further submitted that even looking to the allegation made in the above case, no case involving moral turpitude can be made out against the petitioner and in these circumstances, the petitioner could not have been suspended under Sub-section (4A) of Section 17 of the Act. It has also been argued that the incident in the above case relates to the year 1978 and thereafter the petitioner has been elected in December, 1981 and he was not debarred from contesting the election and the voters having elected the petitioner in December, 1981, no action could have been taken against him for an act relating to he period of 1978. It has also been submitted that neither any notice was given nor any opportunity of hearing was given co the petitioner before passing the impugned order and as such the impugned order is also violative of the principles of natural justice.
3. A reply has been filed to the writ petition on behalf of the respondents. It has been submitted in the reply that a
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