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2002 DIGILAW 1655 (RAJ)

Shyam Sunder v. State of Rajasthan

2002-09-25

SUNIL KUMAR GARG

body2002
JUDGMENT 1. 1. This writ petition under Article 226/227 of the Constitution of India has been filed by the petitioner against the respondents on 16.8.2002 with a prayer that by an appropriate writ, order or direction, the order dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Government of Rajasthan, Jaipur by which the petitioner who is sarpanch of Gram Panchayat Jasrasar, Panchayat Samiti, Nokha was suspended under the provisions of Section 38(4) of the Panchayati Raj Act, 1959 (sic 1994 ?) on the ground that against the order of acquittal dated 25.1.2002 (Annex.2) passed by the Special Judge, NDPS Cases, Bikaner, the State appeal has been admitted by the High Court, and notice dated 29.7.2002 (Annex.4) issued by Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur and Charge-sheet (Annex.5) issued against the petitioner, be quashed and set aside. 2. The facts of the case as put forward by the petitioner are as under:- i) That the petitioner was elected as Sarpanch of Gram Panchayat Jasrasar on 31.1.2000. ii) That a case under Sections 8/18 and 8/25 of the NDPS Act, 1985 was registered against the petitioner for possessing illicit opium and in that case, the petitioner was arrested on 23.2.2001 and remained in judicial custody. Thereafter he was suspended from the office of Sarpanch, Gram Panchayat Jasrasar through order dated 24.5.2001 (Annex.1) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur. iii) That in the said criminal case, charges were framed against the petitioners for offence under Section 8/18 and 8/25 of the NDPS Act and after the trial the learned Special Judge, NDPS Cases, Bikaner through its judgment and order dated 25. 002 (Annex.2) acquitted the petitioner of the charges framed against him. After passing of order of acquittal dated 25.1.2002 (Annex.2), the earlier order of suspension dated 23.5.2001 (Annex.1) was withdrawn and the petitioner was reinstated through order dated 18.3.2002 (Annex.3) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur. iv) Thereafter the petitioner received a notice dated 29.7.2002 (Annex.4) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur whereby the petitioner was asked to submit his explanation in respect of the charge mentioned in the charge-sheet (Annex.5). v) It may be stated here that the charge levelled against the petitioner was that the petitioner remained in judicial custody for long time on account of keeping illicit opium. v) It may be stated here that the charge levelled against the petitioner was that the petitioner remained in judicial custody for long time on account of keeping illicit opium. vi) That before the petitioner could submit his explanation, the petitioner received an order dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Government of Rajasthan, Jaipur by which he was put under suspension on the ground that against the judgment and order dated 25.1.2002 (Annex.2) a State appeal was preferred before this Court and the same was admitted by this Court and, therefore, the petitioner was placed under suspension. vii) In this writ petition, the petitioner has challenged the notice dated 29.7.2002 (Annex.4), charge-sheet (Annex.5) and order dated 13.8.2002 (Annex.6). 3. In this writ petition, the main submission of the learned counsel for the petitioner is that under Section 38(4) of the Act of 1994, a person could be suspended when any criminal proceedings is pending trial in a court of law or in other words, during the pendency of trial, a person could be suspended and since in the present case, the trial was over and the petitioner was acquitted, therefore, the order of suspension dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur is in violation of provisions of Section 38(4) of the Act of 1994 and should be set aside. 4. A reply to the writ petition was filed by the respondents and it has been submitted by them that the order of suspension dated 13.8.2002 (Annex.6) was rightly passed by the Additional Secretary, (Enquiry), Panchayati Raj Department, Jaipur and no interference is called for in the order dated 13.8.2002 (Annex.6) and hence this writ petition should be dismissed. 5. I have heard both and perused the record. 6. There is no dispute in this case that during pendency of trial, the petitioner bas first suspended through order dated 23.5.2001 (Annex.1) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur and that order was withdrawn through order dated 18.3.2002 (Annex.3), assed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur on the ground that the petitioner was acquitted of the charges framed against him through judgment and order dated 25.1.2002 (Annex.2) passed by the learned Special Judge, NDPS Cases, Bikaner. 7. 7. There is also no dispute on the point that after acquittal of the petitioner, again order of suspension dated 13.8.2002 (Annex. 6) was passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur on the ground that the State appeal filed against the order of acquittal dated 25.1.2002 (Annex.2) has been admitted by this Court and further more in respect of same charge, departmental enquiry was under process as is evident from the notice dated 29.7.2002 (Annex.4) and charge-sheet (Annex.5). 8. The question which arises for consideration is whether after the State appeal has been filed against the order of acquittal dated 25.1.2002 (Annex.2) and t e same has been admitted by this Court, a criminal trial can be said to be pending or not and whether in such circumstances, suspension order can be passed or not. 9. In my considered opinion, the trial continues till the judgment is delivered and after delivery of judgment, the trial comes to an end. 10. The Division Bench of Gujarat High Court in the case of (1) State of Gujarat V/s B.C. Dwivedi reported in 1983 LAB.LC. 1846 has observed that trial concludes with the judgment of acquittal or conviction. Merely because the acquittal appeal has been preferred, it cannot be said that the trial continues. 11. This Court is in full agreement with the observations made by Division Bench in Gujarat High Court in the case of State of Gujarat V/s B.C. Dwivedi (supra). Therefore, since the petitioner was acquitted through judgment dated 25.1.2002 (Annex.2) passed by the Special Judge, NDPS Cases, Bikaner and simply because against the order of acquittal, State appeal has been admitted by this Court, it cannot be said that trial against the petitioner is going on. Actually trial came to an end with the judggment of acquittal dated 25.1.2002 (Annex.2) passed by the Special Judge, Z PS Cases, Bikaner in favour of the petitioner. 12. The word used in Section 38(4) is "pending trial in a court of law". Therefore, since no trial was pending against the petitioner. therefore, power under Section 38(4) of the Act of 1994 could not be invoked and the impugned order dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur becomes bad in law and illegal. 13. Therefore, since no trial was pending against the petitioner. therefore, power under Section 38(4) of the Act of 1994 could not be invoked and the impugned order dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur becomes bad in law and illegal. 13. Therefore, in the above facts and circumstances suspension order dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry) cannot be sustained. 14. However, so far as continuity of charge-sheet and departmental enquiry is concerned, there is no prohibition for continuance of departmental enquiry even after acquittal in criminal proceedings. In other words, acquittal in criminal case would not affect the departmental enquiry. For that judgment of Hon'ble Supreme Court in the case of Secretary, Ministry of Home Affairs V/s Tahir Ali Khan Tyagi reported in JT 2002 (Supp.1) SC 520 may be referred to. Therefore, the notice dated 29.7.2002 (Annex.4) and the charge-sheet (Annex.5) do not warrant any interference by this Court under Article 226 of the Constitution of India. 15. For the reasons mentioned above, this writ petition deserves to be allowed in part and the order dated 13.8.2002 (Annex.6) passed by the Additi onal Secretary (Enquiry), Panchayati Raj Department, Jaipur is liable to be set aside. However, no interference is called for in the notice dated 29.7.2002 (Annex.4) issued by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur and the charge-sheet (Annex.5).Accordingly, this writ petition is allowed in part. The order of suspension dated 13.8.2002 (Annex.6) passed by the Additional Secretary (Enquiry), Panchayati Raj Department, Jaipur against the petitioner is set aside, but the prayer for setting aside the notice dated 29.7.2002 (Annex.4) and charge-sheet (Annex.5) stands rejected. However, the respondents are directed to complete the enquiry against the petitioner expeditiously.Cost made easy.Petition partly allowed. *******