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.

JUDGMENT

Ashok Kumar Gaur, J. - 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