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Rajasthan High Court · body

1999 DIGILAW 982 (RAJ)

Kanak Mal v. State

1999-08-05

B.J.SHETHNA

body1999
Honble SHETHNA, J.–By the consent and at the request of the learned counsels of the parties, the main petition itself is finally heard and disposed of today. (2). The petitioner remained Sarpanch of Gram Panchayat, Dungla from the year 1988 to 1991, till the Gram Panchayats of the State including the Dungla Gram Panchayat were dissolved by the State. Thereafter in 1995, the petitioner was elected as a Member from the Ward of Dungla Panchayat Samiti and also elected as a Pradhan of Panchayat Samiti by the elected members of the Samiti. By a notice dated 1.4.99 (Annex.1), the petitioner was asked to submit the reply regarding the allegations made against him for issusing the pattas during his tenure as Sarpanch. The same was replied immediately on the next date i.e. 2.4.1999 (Annex.2) by the petitioner stating that whatever pattas were issued by him were as per the order of Panchayat quorum and in accordance with the law. Not satisfied with the reply, the preliminary enquiry was initiated and as per the enquiry report dated 12.4.99 (Ex.R/1),it was found that the petitioner was prima facie involved in issuing pattas illegally. Accordingly, by an order dated 18.5.99 (Annex.3) passed by the respondent no.2, the petitioner was placed under suspension till a regular enquiry is completed against him. The same is challenged by the petitioner in this petition. (3). It appears from the order dated 25.5.99 passed by Honble Mr. N.N. Mathur, VJ. that there was an application filed by one Kundan Mal to implead him as a party respondent in the stay petition on the ground that he was complainant in the case and on his complaint, the impugned order of suspension came to be passed. On the objection raised by the learned counsel Mr. Bishnoi for the petitioner, this Court rejected the said application of Kundan Mal and the main writ petition was admitted and the notice was also ordered to be issued on the stay application returnable on 6.7.99. Meanwhile, the impugned order of suspension dated 18.5.99 (Annex.3) was stayed. Thus, the impunged order of suspension at Annex.3 has been stayed and the petitioner has continued as Pradhan. (4). Learned Counsel Mr. Bishnoi for the petitioner had raised three submis- sions but restricted his last submission namely that for a stale incidents, the petitio- ner could not have been placed under suspension. Learned counsel Mr. Thus, the impunged order of suspension at Annex.3 has been stayed and the petitioner has continued as Pradhan. (4). Learned Counsel Mr. Bishnoi for the petitioner had raised three submis- sions but restricted his last submission namely that for a stale incidents, the petitio- ner could not have been placed under suspension. Learned counsel Mr. Purohit appearing for the respondents submits that the respondent no. 2 had powers u/Sec. 38 (4) of the Rajasthan Panchayati Raj Act, 1994 (for short ``the Act) to place the petitioner under suspension and the suspension is a temporary measure till the re- gular enquiry is concluded against the petitioner. He, therefore, submits that this Court should not interfere with the suspension order when there are serious allegations the petitioner in his capacity as Ex-Sarpanch. He also submitted that merely because the allegations levelled against the petitioner are of 1991 or prior to that, that itself would not be a ground for this Court to quash the suspension or- der because according to him there was no delay on the part of the authority in initiating the enquiry and placing him under suspension on a prima facie case found against the petitioner on a complaint received against the petitioner for the mis-conduct which he committed prior to 1991 when he was Sarpanch. (5). Ordinarily, this Court does not interfere with the suspension order. The purpose of passing the order of suspension is to keep the person away from the office till the enquiry is concluded so that he may not tamper with the evidence during the enquiry. It is also true that under Sec. 38 (4) of the Act, the Government has powers to place a member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under sub-section (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in the court of law and such person shall stand debarred from taking part in any act or proceedings of the Panchayati Raj Institution concerned while being under such suspension. (6). However, in Sec. 38 (4), the word is used ``may and not must. That means that it is not necessary that in each and every case, where an enquiry is initiated against a person, he should be invariably placed under suspension. (6). However, in Sec. 38 (4), the word is used ``may and not must. That means that it is not necessary that in each and every case, where an enquiry is initiated against a person, he should be invariably placed under suspension. One can proceed by way of a regular enquiry against such person even without placing him or her under suspension. It depends upon the facts of each case. The main purpose of placing a person under suspension is that he should not indulge himself in simi- lar type of activities till the regular enquiry against him for the similar purpose is concluded. But there should be a reasonablen exus with the charges or the allegations levelled against the person. Ordinarily, suspension should be resorted as early as possible with the initiation of the enquiry for the reasoned charges and not for the stale charges after a period of almost eight years. In the given case, the petitioner is suspended for the charges and the allegations which he alleged to have committed eight years before when he was a Sarpanch. Presently, he is elected as a Pradhan and he is working as such since 1995. (7). It appears that one Kundan Mal complainant lodged a complaint against the petitioner about his misconduct or misdeed in his capacity as Ex- Sarpanch du- ring the period 1988 to 1991. The said Kundan Mal could have brought to the notice of the authority immediately about such misdeeds when the petitioner was Sarpanch or immediately after his election as Pradhan in 1995, which was not done. It is only in 1999 after eight years that the said Kundan Mal lodged complaint to the authority. In view of such gross delay, the petitioner can not be allowed to remain under suspension. (8). In view of the above discussion, this petition is allowed. the impugned order dated 18.5.99 is hereby quashed and set aside. (9). At this stage, learned counsel Mr. In view of such gross delay, the petitioner can not be allowed to remain under suspension. (8). In view of the above discussion, this petition is allowed. the impugned order dated 18.5.99 is hereby quashed and set aside. (9). At this stage, learned counsel Mr. Purohit for the respondents submits that the respondents want to complete the enquiry as early as possible preferably within one month from today so that such person should not be continued in the office of Pradhan if ultimately the charges levelled against him in regular enquiry are found to be proved against him in regular enquiry are found to be proved against him, but the petitioner after obtaining stay from this Court against his suspension, was not co- operating with the enquiry. However, learned counsel Mr. Vishnoi for the petitioner submits that it is not true that the petitioner was not cooperating with the regular enquiry and he assures that he will not do so in future also. Mr. Vishnoi further states that the petitioner will definitely defiantly cooperate with the regular enquiry and he will not unnecessarily delay the regular enquiry. (10). In view of this, it is made clear that if the respondent authority is satisfied that without any genuine reasons the petitioner is unnecessarily delaying the enquiry, then it will be open to the authority to proceed with the regular enquiry and conclude the same and pass appropriate order in accordance with law. (11). With these observations, this petition is allowed with no order as to costs.