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2015 DIGILAW 1398 (RAJ)

Bedi v. State of Rajasthan

2015-07-27

ARUN BHANSALI

body2015
JUDGMENT 1. - Learned counsels for the applicants, at this stage, seek permission to withdraw the applications for impleadment as party respondent. 2. Accordingly, the applications for impleadment as party respondent are dismissed as withdrawn at this stage. 3. Mr. Manish Patel, learned Addl. Govt. Counsel is directed to accept notices on behalf of the respondent-State in the matters where the notices are still awaited. 4. These writ petitions have been filed by the petitioners- Sarpanchs aggrieved against the action of the respondents, whereby, they have been placed under suspension invoking provisions of Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 ('the Act'). 5. The principal challenge laid by counsels for the petitioners has been that for invoking provisions of Section 38(4) of the Act it is sine qua non that either on inquiry under Section 38(1) of the Act has been initiated or a criminal proceeding in regard to an offence involving moral turpitude is pending trial in a Court of law. However, in none of the cases, neither any inquiry has been initiated nor presently charges have been framed against the petitioners and, therefore, the provisions under Section 38 (4) of the Act cannot be invoked. 6. It is not in dispute that inquiry as envisaged under Section 38(1) of the Act has not been initiated in any of the cases. Further, the issue with regard to the fact as to when a criminal trial can be said to be pending against a person is no more res integra as held by this Court in Narayan Lal Birla v. The State of Rajasthan & Ors.: (1997) 3 WLC 75 , wherein it has been held that it is only on framing of the charges it can be said that a trial is pending against a person and in none of the cases charges have been framed. 7. Learned counsel for the respondents has brought to the notice of this Court an order passed by a Co-ordinate Bench of this Court in Vikas Chouhan v. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.9089/2015 decided on 22.07.2015 at Jaipur Bench, wherein, in similar circumstances, after dealing with the judgments in the case of Hansraj Gujar v. State & Ors. : S.B. Civil Writ Petition No.12698/2012 decided on 13.02.2013 , Narayan Lal Birla v. The State of Rajasthan & Ors. : S.B. Civil Writ Petition No.9089/2015 decided on 22.07.2015 at Jaipur Bench, wherein, in similar circumstances, after dealing with the judgments in the case of Hansraj Gujar v. State & Ors. : S.B. Civil Writ Petition No.12698/2012 decided on 13.02.2013 , Narayan Lal Birla v. The State of Rajasthan & Ors. (supra) and Ganesh Ram v. State of Rajasthan & Ors. : 2014 (2) WLC (Raj.) 217 it has been held as under:- "5. Having regard to the submissions made by learned counsel for the parties, and to the documents on record, it appears that the petitioner was placed under suspension in view of the provisions contained in Section 38(4) of the said Act on the ground that the criminal proceedings in regard to the offence involving moral turpitude was pending, and that he was in the police custody from 19/1/2015 to 25/2/2015. Now, as per the provisions contained in Section 38(4) of the said Act, the State Government could suspend any member including Chairperson or Deputy Chairperson of the Panchayat Raj Institution, against whom an enquiry has been initiated or against whom any criminal proceedings in regard to the offence involved in moral turpitude are pending trial in a Court of law. Hence, the two conditions requisite would be that either the enquiry should have been initiated prior to passing of the suspension order, or the criminal proceedings with regard to the offence involving moral turpitude should be pending for trial in the Court of law at the time of passing the suspension order. In the instant case, it appears that the respondents had not initiated any enquiry prior to passing of the impugned order, however, the petitioner has been placed under suspension on the ground that criminal proceedings with regard to the offence involving moral turpitude were pending. Admittedly, at the time of passing the impugned order, even the charge-sheet was not filed in respect of the said FIR registered against the petitioner, and therefore it could not be said that the criminal proceedings were pending trial in the court of law. The learned Government Counsel appearing for the respondents has failed to substantiate as to how the petitioner could have been placed under suspension when no trial was pending in respect of the FIR registered against the petitioner." Whereafter, the Court has directed as under:- "6. The learned Government Counsel appearing for the respondents has failed to substantiate as to how the petitioner could have been placed under suspension when no trial was pending in respect of the FIR registered against the petitioner." Whereafter, the Court has directed as under:- "6. In that view of the matter, the impugned order passed by the respondent No.2 being not in consonance with the provisions contained in Section 38(4) of the said Act, the same deserves to be quashed and set aside. However, now since the learned Govt. Counsel has stated that the enquiry has already been initiated against the petitioner, it is clarified that the respondent shall be at liberty to take action against the petitioner including placing him under suspension in accordance with law." 8. In view of the law laid down by this Court and judgment in the case of Vikas Chouhan (supra) the impugned orders passed by the respondents cannot be sustained and the same deserve to be quashed and set aside. However, it is left open for the respondents to act in accordance with the provisions of Section 38(4) of the Act, in case, occasion arises.Consequently, the writ petitions are allowed. The impugned orders, passed in respective writ petitions, suspending the petitioners as Sarpanch are quashed and set aside with all consequential effects. No order as to costs.Petitions allowed. *******