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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
ASHOK KUMAR GAUR, J.
Sardar Meena Son Of Shri Ramjilal Meena - Appellant
Vs.
The State Of Rajasthan, Through The Principal Secretary, Department Of Rural Development And Panchayati Raj, Government Of Rajasthan, Secretariat, Jaipur - Respondent
S.B. Civil Writ Petition No. 6800/2021
Decided On : 15-07-2021
Indian Penal Code,1860 - Sections 143, 323, 341 , 427 , 454 and 307 - Arms Act- Section 3/25 - Panchayati Raj Act, 1994 - Sub-section (4) of 38 - Rajasthan Panchayat Act, 1953 - Section 17(4A) - Rajasthan Municipalities Act, 2009 - Section 39(6) and 38 sub-section (1)(b) - Rajasthan Municipalities Act, 2009 - Section 39 - FIR - Lurking house-trespass or house breaking in order to commit crime - Attempt to murder - Sought from petitioner - Petitioner has been placed under suspension on the post of Sarpanch, Gram Panchayat, - District Alwar and order - Petitioner was elected Sarpanch in the year 2020 and due to political rivalry, son of defeated candidate, lodged an FIR at police station Tahela, District Alwar under Sections 143, 454 and 307 IPC & Section 3/25 of the Arms Act - Respondents as criminal proceeding, against petitioner, is not pending trial in any Court and only on the basis of lodging of an FIR & investigation thereon - power of suspension, as provided under sub-section (4) of Section 38 of Panchayati Raj Act, 1994 provides that if an inquiry is initiated for removal of Sarpanch/Chairperson - Removal under sub-section (1) of Section 38 of Act of 1994 is based only on an explanation sought from petitioner, by issuing him a letter –
Finding of the Court:
Enquiry is said to be started when on basis of material placed on record of preliminary enquiry and report notices are required to be issued to erring person - Court with full sense of responsibility finds that clause which was interpreted by Full Bench of this Court was in respect of Section 17(4A) of Rajasthan Panchayat Act, 1953 - contained in sub-section (6) of Section 39 of the Act of 2009 and found that said Section does not contemplate any show-cause notice or any explanation is required from Member of Municipality before suspension - Competent Authority, if receives inputs as per sub-section (2) of Section 39 of the Act of 2009 - 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 issued to the Member, it cannot be said that proceedings are not commenced under Section 39 of the Act of 2009 –
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 issued to the Member, it cannot be said that proceedings are not commenced under Section 39 of the Act of 2009
Result: Writ petition is dismissed
ORDER :
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’).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. Counsel submitted that the suspension order, has wrongly been passed by the State Government as the petitioner is not 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Counsel further submitted that the notice asking explanation from the petitioner, has already pre-determined the allegation against the petitioner, as definite charge has been framed, only on account of the criminal case registered against him.
13. Counsel argued that the Full
Point of law: power of suspension may be invoked by the State Government, if the proceedings have been commenced for removal of a member as provided under subsection (1) of Section 39 of the Act of 2....
The court affirmed that the State Government can suspend a Sarpanch based on inquiry initiation, even without a preliminary report, provided the member is given an opportunity to explain.
The court established that suspension of a Sarpanch is permissible when an inquiry is initiated under the relevant provisions of the Rajasthan Panchayati Raj Act and Rules.
The court established that the suspension under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994, was justified when the petitioner was found involved in a corruption case and the procedural r....
The initiation of an enquiry under section 38(1) of the Act of 1994 can occur based on a preliminary enquiry or on information otherwise available with the State Government, as per Rule 22(2) of the ....
The court ruled that the suspension of an elected Sarpanch was unjustified as the conditions for suspension were not met, emphasizing the distinction between elected representatives and public servan....
Suspension of an elected representative is valid when misconduct is established, with the suspension being justified under relevant statutory provisions, ensuring accountability and public confidence....
The court established that suspension of a municipal member can occur without prior notice if proceedings have commenced, interpreting the relevant sections of the Rajasthan Municipalities Act, 2009.
The court affirmed that suspension of an elected representative can occur based on a preliminary enquiry report without prior hearing, provided the charges are grave enough to warrant such action.
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