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 Rules of 1996.

ORDER

Dinesh Mehta, J. - The petitioner an elected Sarpanch has called in question an order dated 11.06.2021, whereby he has been placed under suspension.

2. The facts relevant are few. The petitioner was elected Sarpanch of Gram Panchayat Kanodiyan Purohitan, Panchayat Samiti Sekhala, District Jodhpur. He was trapped red-handed by Anti-Corruption Bureau and hence, an FIR No.75/2021 came to be lodged against him on 12.03.2021.

3. On receiving the information about apprehension and registration of case, the Additional Commissioner and Joint Secretary (Enquiry) issued a notice dated 11.06.2021 to the petitioner, asking him to show cause why enquiry under Rule22(2) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996') not be initiated against him.

4. Along with the notice aforesaid, a copy of the charge as framed was also enclosed.

5. On the same date, i.e., 11.06.2021, the respondent-State decided to place the petitioner under suspension in exercise of its powers under section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994'). A separate order No. 1437 dated 11.06.2021 came to be passed.

6. The petitioner claims to have filed a reply to the said notice on 25.06.2021.

7. Mr. Ashok Chhangani, learned counsel for the petitioner has questioned the legality and propriety of above referred suspension order on two counts :-

(i) petitioner's suspension in exercise of powers under section 38(4) of the Act of 1994 is unsustainable as the petitioner has simply been apprehended as the trial has not yet commenced, as the charges have not been framed in the Court,

(ii) that till today, enquiry as contemplated under section 38(1) of the Act of 1994 has not been initiated and thus, the petitioner cannot be placed under suspension. Because, sub-section (4) of section 38 of the Act of 1994 clearly makes a reference of an enquiry envisaged under section 38(1).

8. In support of his contentions, Mr. Chhangani, learned counsel for the petitioner relied upon the case of Narayan Lai Birla Vs. State of Rajasthan & Ors. decided on 04.09.1997 SBCWP No.2259/1997 (reported in RLW1997(3)Raj1854).

9. Mr. Sunil Beniwal, learned AAG, on the other hand submitted that on 11.06.2021, along with issuing a notice (Annex.4) to the petitioner, a copy of the charge framed against the petitioner was also served and thus, enquiry as contemplated under section 38(1) of the Act of 1994 has been initiated.

10. Learned counsel submitted that the enquiry against the petitioner has been initiated under sub-rule (2) on the basis of information about petitioner's arrest. He added that enquiry under sub-rule (1) of Rule 22 is not mandatory while highlighting the difference between provisions contained in sub-rule (1) and sub-rule (2). He emphasised that it is not always necessary to first conduct a preliminary enquiry or factual inquiry and then resort to enquiry under Rule 22(2) of the Rules. If the State Government is made aware of certain facts/information which are not subservient to factual enquiry or preliminary enquiry, the State can directly initiate inquiry under sub-rule (2) of Rule 22 of the Rules of 1996.

11. He submitted that when the State Government came to know that the petitioner has been apprehended red-handed while accepting bribe on 11.03.2021 and remained behind bars between 12.03.2021 and 24.03.2021, it was thought appropriate to initiate enquiry against the petitioner for removing him from the post of Sarpanch.

12. Inviting Court's attention towards the provisions contained in sub-rule (2) of Rule 22, learned counsel argued that the expression *or otherwise' used in sub-rule (2) is very significant and a reading thereof goes to show that either on the basis of the preliminary enquiry conducted as per sub-rule (1) or otherwise, even without a preliminary enquiry, if relevant facts come to the notice of the State Government, it can directly proceed with the enquiry under Rule 22(2) of the Rules of 1996. He