2009 Supreme(Raj) 2155
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Ajay Rastogi, J.
Nana Devi - Appellant
Versus
State of Others - Respondent
S.B. Civil Writ Petition Nos. 6273 of 2007, 12235 of 2008.
Decided On : 4-08-2009
For the Petitioners:Ratan Kumar Agrawal, Kamlesh Pareek and Rajendra Prasad, Advocates.
For the Respondent/State: Jinesh Jain, Govt. Counsel.
For the Respondent - 4 and 5-CW-6273/07 Babulal & Rameshwar:J.K. Yadav, Advocate.
The power to suspend an elected representative under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994, must be exercised sparingly and with due care. The suspension cannot be arbitrary or indefinite and should not curtail the elected representative's term.
Headnote:
PANCHAYATI RAJ - Suspension of Elected Representative - Rajasthan Panchayati Raj Act, 1994 - Section 38(4) - Suspension of Sarpanch - Inquiry Delay - Petitioner's Fault - Discretionary Power - Judicial Review.
Fact of the Case:
Petitioner, an elected Sarpanch, faced multiple inquiries and suspension attempts. Initially, an inquiry was initiated under Section 39 of the Act for alleged disqualification due to having more than two children. However, it was dropped following a Full Bench decision. A fresh charge sheet was served, and an inquiry officer was appointed. The Divisional Commissioner recommended the petitioner's suspension due to the delay in the inquiry. The petitioner challenged the suspension and the disqualification recommendation.
Finding of the Court:
The Court found that the petitioner was not at fault for the delay in the inquiry. The Presenting Officer was seeking adjournments to produce the list of witnesses and documents. The petitioner cooperated with the inquiry and appeared on most dates. The Court also noted that the suspension was imposed after nine months of the initial suspension, curtailing the petitioner's term as an elected representative.
Issues: 1. Whether the petitioner was at fault for the delay in the inquiry, leading to her suspension under Section 38(4) of the Act? 2. Whether the Divisional Commissioner's recommendation for disqualification under Section 38(1)(b) of the Act was legally sustainable? 3. Whether the suspension of the petitioner was arbitrary and violative of her rights as an elected representative?
Ratio Decidendi: 1. The Court held that the petitioner was not at fault for the delay in the inquiry. The Presenting Officer was responsible for the adjournments, and the petitioner appeared on most dates. 2. The Court found that the Divisional Commissioner's recommendation for disqualification under Section 38(1)(b) of the Act was not legally sustainable. The provisions of Section 38(1)(b) and Rule 22 of the Rules were violated. 3. The Court held that the suspension of the petitioner was arbitrary and violative of her rights as an elected representative. The suspension was imposed after nine months, curtailing her term and depriving her of her duties as a public representative.
Final Decision: The Court allowed both writ petitions. The recommendations for disqualification and suspension were quashed and set aside. The petitioner was reinstated as Sarpanch, and the respondents were directed to conclude the inquiry expeditiously and take action in accordance with the law.
JUDGMENT
1. - Since both the petitions filed by self-same petitioner raising common issue, hence at request, were finally heard together for its disposal by this order at admission stage.
2. Petitioner who is a resident of village Amarpura was elected as Sarpanch of Gram Panchayat, Guwadi-Panchayat Samiti Phagi (Jaipur) in January, 2005. As alleged, she contested election of Sarpanch as a candidate of Indian National Congress party which is not a ruling party in the State; thus a conspiracy was hatched by members of party in power to remove her from office of Sarpanch for one reason or the other. As alleged, initially action was taken U/S. 39 of Rajasthan Panchayatiraj Act, 1994. ("Act, 1994") for cessation of her membership of a Panchayati Raj institution on the premise that she has more than two children; and for which, inquiry was initiated U/S. 39 of the Act and was placed under suspension which was revoked and enquiry could not be proceeded further in view of judgment of this Court in Smt. Sameera Bano v. State of Rajasthan, 2007 (2) WLC (Raj.) 526 .
3. At the same time, a complaint was made by one Rameshwar S/o Laxman Meena, on which preliminary inquiry was conducted by Sub-Divisional Officer, Phagi, District Jaipur who sent report to the Deputy Collector on 11.10.06 (Ann. 5-CWP-6273/07) holding that on most of issues allegations were not correct and left the matter further to be inquired by a technical person, which was forwarded vide letter dated 20.10.06 (Ann. 6) to the Divisional Commissioner despite the fact that there was no adverse report, rather allegations were found to be of minor in nature. But, for a alleged misconduct committed as Sarpanch of Panchayatiraj Institution, petitioner was served a notice U/S. 38(1) (b) of the Act alongwith charge sheet & statement of allegations issued on 30.04.07 (Ann. 1), to which she submitted her reply.
4. However, without holding inquiry & appointing inquiry officer, as provided U/r 22 (3) of Rajasthan Panchayati Raj Rules, 1996 ("Rules, 1996"), Divisional Commissioner sent its recommendation to State Govt. on 06.07.07 (Ann. 3-CWP-12235/08) to declare the petitioner as disqualified U/S. 38 (1) (b) of the Act.
5. It is relevant to mention that section 38 relates to removal or suspension and as regards disqualification, section 39 has to be invoked and in fact, recommendations were not made for disqualification but for her removal U/S. 38(1)(b) of the Act - as a consequence whereof, she was placed under suspension in exercise of powers U/S. 38(4) of the Act, vide order dated 10.08.07 (Ann. 2-CWP-12235/08 & Ann. 4-CWP- 6273/07) which was assailed by her in CWP-6273/07, after hearing complainant, operation of recommendation dated 06.07.07 (Ann. 3) was stayed. As a consequence thereof, order of suspension dated 10.08.07 was revoked vide order dated 28.09.07.
6. Thereafter a separate preliminary inquiry was conducted by SDO, Phagi and sent a report vide letter dated 01.10.07 (Ann. R/1) to the Divisional Commissioner - on the basis whereof, charge sheet was served vide notice dated 26.11.07 (Ann. R/2) to which she submitted her reply and Addl. Chief Executive Officer, Zila Parishad, Jaipur was appointed as Inquiry Officer U/r 22(3) of Rules, 1996 vide order dated 19.02.08 (Ann. 5) with the direction to conclude inquiry within thirty days.
7. It appears from the record that Addl. Chief Executive Officer, Zila Parishad, Jaipur submitted inquiry status report dated 30.04.09 which petitioner obtained under Right of Information Act, as per which allegations levelled against her were not found to be proved and it was observed that allegation appears to be politically motivated; copy of note sheet has been placed by her on record.
8. However, petitioner throughout co-operated with inquiry officer and when inquiry could not have been concluded within one month, despite direction of Divisional Commissioner while appointing inquiry officer in exercise of powers U/S. 22(3) of Rules, 1996 taking not
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