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2015 DIGILAW 1685 (RAJ)

Sugna Devi Regar v. State of Rajasthan

2015-09-18

BELA M.TRIVEDI

body2015
JUDGMENT 1. Though the facts of all the petitions are different, the common question of law that arises before this Court is, whether the petitioners, who had allegedly incurred disqualification prior to the election of Sarpanch held in their respective Panchayat Samitis, could be permitted to plead bar against holding of lawful inquiry by the competent authority on the ground that the only remedy available to the aggrieved person is the filing of election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the said Act'). 2. The short facts of each of the petitions may be stated as under :- 2(I) S.B. Civil Writ Petition No.7573/2015: The present petition has been filed by the petitioner challenging the proceedings initiated by the respondent Nos.4 and 5 under the provisions contained in the said Act, by issuing the notice dated 6/4/2015(Annex.3), and the notice dated 4/5/2015(Annexure-4). As per the case of the petitioner, she was elected as the Sarpanch, Gram Panchayat Pagara, Panchayat Samiti Hindoli, District Bundi in the election conducted on 24/1/2015. The said election was challenged by one Shri Durgalal by filing an election petition under Section 43 of the said Act alleging that the petitioner had suppressed material fact while filing the nomination form that she had only two children though she had three children, and that her second and third children were born after the curtail date 27/11/1995. The said Durgalal also made the complaint in the office of the respondent No.4, who issued the notice dated 6/4/2015 to the petitioner calling upon her to produce the relevant documents with regard to the allegations made against her. The respondent No.5 also issued the notice dated 4/5/2015 calling upon her to appear on 8/5/2015 to explain the allegations made against her. It appears that said Durgalal had also filed the criminal complaint in the Court of Judicial Magistrate against the petitioner for the offence under Sections 420, 467, 468 and 471 of IPC in respect of which the FIR being No.194/2015 has been registered against her. The respondents have resisted the petition by filing the reply contending interalia that the inquiry being at the preliminary stage and no effective order having been passed against the petitioner, the petition was premature. The respondents have resisted the petition by filing the reply contending interalia that the inquiry being at the preliminary stage and no effective order having been passed against the petitioner, the petition was premature. It is further contended that the petitioner had suppressed the material facts from the returning officer at the time of filing the nomination form, as she did not possess the requisite educational qualification and had more than two children after the date 27/11/1995. 2(II) S.B. Civil Writ Petition No.10410/2015 The petitioner has filed the present petition challenging the notices dated 1/5/2015, and 28/5/2015(Annexure-3 and 4) issued by the respondent Nos.3 and 4 respectively. As per the case of the petitioner, she having contested the election for the post of Sarpanch, Gram Panchayat Bijari, Panchayat Samiti Chouth Ka Barwada conducted on 20/1/2015, she was elected as such, defeating one candidate, named, Smt. Beena. The said defeated candidate filed election petition under Section 43 of the said Act before the District Judge, Sawai Madhopur, which was transferred to the Additional Civil Judge, Sawai Madhopur. The said election petition was filed on the ground that the petitioner had submitted forged and fabricated mark sheet at the time of filing the nomination form and that she was not educationally qualified. It appears that thereafter the respondent No.3 issued the notice dated 1/5/2015, calling upon the petitioner to produce the evidence in the inquiry fixed on 6/5/2015. It appears that the respondent No.4 also vide the letter dated 28/5/2015, called upon the petitioner to produce the mark sheet before the Additional District Education Officer Cum Block Primary Education Officer, Sawai Madhopur. The said notices have been challenged by the petitioner in the present petition. The respondents have filed the reply contending interalia that there was no effective order passed by the respondents against the petitioner and that she was called upon to produce the documents only with regard to the allegation of her being not educationally qualified vide the impugned notices, and therefore, the petition was premature. It is also contended interalia that the State Government has power to initiate the inquiry under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the said Rules). 2(III). S.B. Civil Writ Petition No.10854/2015 The petitioner has filed the present petition challenging the notice dated 26/6/2015-Annexure-1 and the letter dated 28/7/2015-Annexure-2 issued by the respondent No.2-Divisional Commissioner, Jaipur. 2(III). S.B. Civil Writ Petition No.10854/2015 The petitioner has filed the present petition challenging the notice dated 26/6/2015-Annexure-1 and the letter dated 28/7/2015-Annexure-2 issued by the respondent No.2-Divisional Commissioner, Jaipur. As per the case of the petitioner, he was elected as Sarpanch of the Gram Panchayat, Dundlod, for the tenure of 1995-2000 and 2005-2010. The petitioner thereafter filled his nomination form for the post of Sarpanch on 31/1/2015 for contesting the election to be held on 1/2/2015, and he was elected by defeating candidate Shri Sumer Singh. Thereafter a complaint came to be filed against the petitioner to the effect that the petitioner had produced false and fabricated “no due certificate” in respect of the recovery of amount, he was liable to pay as per the audit report for the year 2006-07 in respect of the illegalities committed by him in the construction work during his tenure as Sarpanch in 2005-2010. The copy of the said complaint was also forwarded by the complainant to the Divisional Commissioner, Jaipur and the Awar Sachiv (Inquiry), Rural Development and Panchayati Raj Department, Jaipur and also to the chief Executive Officer, Jhunjhunu. The respondent No.3-Awar Sachiv wrote a letter dated 21/5/2015 to the respondent No.2-the Divisional Commissioner for conducting Inquiry into the matter. The respondent No.5- Block Development Officer also vide letter dated 28/5/2015 issued a letter to the petitioner calling upon him to explain as to why the order dated 3/5/2010 passed by the respondent No.2 declaring the petitioner as disqualified for five years and directing him to pay the amount as directed in the said order, was not complied with. The petitioner appears to have submitted the explanation as per the letter dated 4/6/2015. According to the petitioner, the respondent No.2-the Divisional Commissioner without considering the explanation of the petitioner issued the notice dated 26/6/2015 along with the charge sheet. The respondent No.2 also vide the impugned letter dated 28th July, 2015 recommended the Secretary and Commissioner, Rural Development and Panchayati Raj Department to suspend the petitioner for the alleged fabrication of documents. The petitioner therefore has challenged the said notice dated 26/6/2015 and the letter dated 28/7/2015 of the respondent No.2. The respondent No.2 also vide the impugned letter dated 28th July, 2015 recommended the Secretary and Commissioner, Rural Development and Panchayati Raj Department to suspend the petitioner for the alleged fabrication of documents. The petitioner therefore has challenged the said notice dated 26/6/2015 and the letter dated 28/7/2015 of the respondent No.2. The petition has been resisted by the respondents by filing the reply contending interalia that the petitioner had committed irregularities in his earlier tenure as Sarpanch as evident from the order dated 3/5/2010 (Annex.3), and that he was found guilty of having violated Section 38(1)(Kha) of the said Act. It is further contended that the petitioner had not deposited the amount as per the order dated 3/5/2010-Annexure-3, in which he was recorded as disqualified to be the Sarpanch, he having committed financial illegalities and irregularities during his earlier tenure as Sarpanch. According to the respondents, the inquiry having been initiated under Rule 22 of the said Rules, the charge sheet was issued. The petitioner in the rejoinder has stated that he had deposited the entire amount as per the said order-Annexure-3, and the charge sheet was issued against him for malafide and malice reasons. 2(IV) S.B. Civil Writ Petition No.11075/2015 & S.B. Civil Writ Petition No.11142/2015 Both the petitions have been filed by the same petitioner against the same respondents in respect of the proceedings initiated against him under the said Act read with the said Rules. The writ petition being No.10075 of 2015 has been filed by the petitioner, challenging the notice dated 17/6/2015 (Annex.7) calling upon him to show cause as to why the post of Sarpanch held by him should not be treated as vacant under Section 39 of the said Act, on he having become disqualified as a Member of the Panchayati Raj Institution. The petition being No.11142 of 2015 has been filed by the same petitioner, challenging the order dated 28/7/2015 (Annexure-8) placing the petitioner under suspension in exercise of the powers conferred under Section 38(4) of the said Act. As per the case of the petitioner, he having contested the election for the post of Sarpanch from the Gram Panchayat, Chiplata Panchayat Samiti Neem Ka Thana, District Sikar in the election conducted on 18/1/2015, was declared elected as Sarpanch for the said Gram Panchayat. As per the case of the petitioner, he having contested the election for the post of Sarpanch from the Gram Panchayat, Chiplata Panchayat Samiti Neem Ka Thana, District Sikar in the election conducted on 18/1/2015, was declared elected as Sarpanch for the said Gram Panchayat. Thereafter some Villagers, namely, Kishan Singh and Chhaju Ram made a complaint to the Divisional Commissioner, Jaipur on 3/3/2015 alleging interalia that the petitioner had submitted all forged documents at the time of filing the nomination form and had also submitted false details about his children. It was also alleged that the petitioner had more than two children after the cut of date 27/11/1975. It appears that the office of the Divisional Commissioner, Jaipur vide letter dated 16/3/2015 directed the Sub Divisional Officer, Neem Ka Thana, District Sikar to inquire into the matter after providing opportunity of hearing to the petitioner. The complainant had also made complaint in the office of Commissioner, Panchayati Raj. As a result of the said complaints, the Sub Divisional Officer, Neem Ka Thana directed the Additional Block Elementary Education Officer, Neem Ka Thana to conduct the inquiry, who submitted the inquiry report dated 5/5/2015(Annex.4). On the basis of the said report the Divisional Commissioner, Jaipur issued the notice dated 17/6/2015 to the petitioner calling upon him to show cause as to why his post should not be declared as vacant in view of Section 39 of the said Act he having incurred disqualification to continue as the member of Panchayati Raj Institution. The said notice was challenged by filing writ petition being No.10075 of 2015. It further appears that pursuant to the FIR lodged against the petitioner for the offence under Sections 420, 467, 471, 120B IP being No.72 of 2015 in respect of the said allegations, he was also arrested by the police, however subsequently was released on bail by the concerned Court. Subsequently, the petitioner was placed under suspension by the respondent No.2-Additional Secretary (Inquiry), Rural Development and Panchayati Raj Department exercising the powers conferred under Section 38(4) of the said Act. The said order dated 28/7/2015 has been challenged by the petitioner in the petition being No.11142 of 2015. Subsequently, the petitioner was placed under suspension by the respondent No.2-Additional Secretary (Inquiry), Rural Development and Panchayati Raj Department exercising the powers conferred under Section 38(4) of the said Act. The said order dated 28/7/2015 has been challenged by the petitioner in the petition being No.11142 of 2015. The said petitions have been resisted by the respondents by filing the replies contending interalia that the petitioner had suppressed material facts from the Returning Officer at the time of filing the nomination form, as the petitioner had five children, out of whom two were born after the cut of date i.e. 27/11/1995. According to the respondents, the Divisional Commissioner after receiving the report of preliminary inquiry, had called upon the petitioner to submit his explanation vide notice dated 17/6/2015, however the petitioner did not reply to the said show cause notice dated 17/6/2015. Since the inquiry was pending and since the petitioner was arrested in the criminal case, for the offence involving moral turpitude, he was placed under suspension vide the order dated 28/7/2015 in exercise of the powers conferred under Section 38(4) of the said Act. 3. The learned counsels for the petitioners placing heavy reliance on the decision of Full Bench (majority view) of this Court in case of Smt. Sameera Bano vs. State of Rajasthan & Ors, AIR 2997 Raj 168 vehemently submitted that the pre election disqualification can be adjudicated only in an election petition before the District Judge under Section 43 of the said Act, and cannot be adjudicated by any authority under Rule 22 or Rule 23 of the said Rules. They have also relied upon other decisions of this Court in case of Narayan Lal Birla vs. The State of Rajasthan & Ors, RLW 1997(3) Raj. 1854, in case of Kana Ram vs. State of Rajasthan & Anr, 2002(5) WLN 677 & in case of Jagram vs. State of Rajasthan, 2002(2) WLN 149 to submit that the petitioners could not be placed under suspension on the alleged pre election disqualification nor any action could be taken under Section 39 of the said Act. However, the learned counsel Mr. However, the learned counsel Mr. Manu Bhargava for the respondents has submitted that in all the petitions except Writ Petition No.11142/2015, the petitioners have challenged the show cause notice or the letter issued by the concerned respondents calling upon them to explain the allegations levelled against them and to produce the necessary documents in that regard, and since no action has been taken so far against them, no cause of action to file the petitions had arisen. Relying upon the decision of this Court in case of Prithvi Raj Meena vs. State of Rajasthan, 2003(3) CDR 1907 (Raj.), he submitted for the Writ Petition No.11142/15 that the inquiry under Rule 22 of the said Rules was an inquiry under sub-section (1) of Section 38 of the said Act, and therefore, the concerned respondent had power to suspend the petitioner, as his case fell under sub section (4) of Section 38 of the said Act. 4. Now, in order to appreciate the rival contentions raised by the learned counsels for the parties, it would be beneficial to refer to the relevant provisions of the said Act and the Rules. Section 19 of the said Act pertains to the qualification for election as a Panch or a Member of Panchayati Raj Institution. The relevant part of the said provision reads as under :- “19. Qualifications for election as a Panch or a member.- Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person- “(a).... to (g)....... (h) is for the time being ineligible for election under section 38; (i) to(k)......... (l) has more than two children.......” 5. Section 38 of the said Act pertains to the removal and suspension of the Member of the Panchayati Raj Institution. The relevant part of the said provision reads as under :- “38. to (g)....... (h) is for the time being ineligible for election under section 38; (i) to(k)......... (l) has more than two children.......” 5. Section 38 of the said Act pertains to the removal and suspension of the Member of the Panchayati Raj Institution. The relevant part of the said provision reads as under :- “38. Removal and suspension.- (1) The State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution, who- (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct: (2) --------- (3) The member or the chairperson or the deputy chairperson removed under sub-section (1) or against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (4) The State Government may suspend any 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 a court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension (5) The decision of the State Government on any matter arising under this section shall, subject to any order made under section 97, be final and shall not be liable to be questioned in any court of law” 6. Section 39 of the said Act deals with the provision for cessation of membership, the relevant part thereof reads as under :- “39. Section 39 of the said Act deals with the provision for cessation of membership, the relevant part thereof reads as under :- “39. Cessation of membership.- (1)[A] A member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he - (a) is or becomes subject to any of the disqualifications specified in section 19; or (b) to (f) (2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-section (1), the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member.” 7. Section 43 of the said Act pertains to the determination of disputes as to the elections by the District Judge having jurisdiction which reads as under :- “43. Determination of dispute as to elections.- (1) An election under this Act or the rules made thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction, a petition in this behalf on the prescribed grounds and within the prescribed period:.... (2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final.” 8. So far as the relevant provisions of the Rules are concerned, Rule 22 of the said Rules pertains to the procedure to be followed before taking any action under sub-section (1) of Section 38 of the said Act and Rule 23 pertains to the procedure to be followed before taking action under Section 39 of the said Act. 9. It is to be noted that Part IX of the Constitution of India relating to 'the Panchayats' was inserted by the Constitution 73rd Amendment Act, 1992, with effect from 24/4/1993.The relevant provisions thereof read as under :- “243F. 9. It is to be noted that Part IX of the Constitution of India relating to 'the Panchayats' was inserted by the Constitution 73rd Amendment Act, 1992, with effect from 24/4/1993.The relevant provisions thereof read as under :- “243F. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that be is less than twenty five years of age, if he has attained the age of twenty one years; (b) if he is so disqualified by or under any law made by the Legislature of the State (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide 243O. Bar to interference by courts in electoral matters Notwithstanding anything in this Constitution (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State.” 10. From the bare reading of the aforestated provisions, it appears that the provisions contained in Sections 19, 38, 39 and 43 were ingrafted in the said Act, in furtherance of the aforestated provisions contained in the Constitution of India. Since there was divergence of opinions as to whether the dispute relating to any pre election qualification can be adjudicated only in an election petition before the District Judge under Section 43 of the said Act or it can also be adjudicated by the authority under Rule 23 of the said Rules, read with Section 39(2) of the said Act, the said issue was referred to the Full Bench in case of Sameera Bano & Ors. (supra). (supra). As per the majority view of the said Full Bench, the pre election qualification can be adjudicated only in an election petition before the District Judge under Section 43 of the said Act and cannot be adjudicated by the authority under Rule 23 of the said Rules, whereas the minority view was that if election petition is considered to be only remedy available to the contesting candidate under Section 43 of the said Act even if the elected candidate misrepresented the fact of he having been disqualified on the date of filing of the nomination form, the entire legislative object would stand frustrated, as the process of election petitions takes its own time and in certain cases, the defeating candidate may or may not file the election petition. It is further required to be noted that the said decision of the Full Bench was challenged by the State before the Supreme Court by filing SLP(C) being No.15527-15528 of 2007, in which the Supreme Court passed the following order :- “All these petitions have become infructuous because of the end of the term of the elected office. Therefore, we dispose of these petitions as having become infructuous leaving the question of law open”. 11. In view of the aforestated order, it appears that the Supreme Court while disposing of the petitions on having become infructuous had left the question of law involved in the said petitions open. The question of law decided by the Full Bench (majority view) therefore, could not be said to have been confirmed by the Supreme Court. It would be relevant at this juncture to mention that the Supreme Court in case of Rabindra Kumar Nayak Vs. Collector, Mayurbhanj, Orrisa & Ors . 1999 2 SCC 627 , while interpretating the provisions with regard to the disqualifications for becoming or continuing as a member of a Panchayat Samiti as contained in the Orrisa Pancahyat Samiti Act, 1959 had held interalia that the remedy of filing election petition is no bar to file application for inviting a decision on question of disqualification. 1999 2 SCC 627 , while interpretating the provisions with regard to the disqualifications for becoming or continuing as a member of a Panchayat Samiti as contained in the Orrisa Pancahyat Samiti Act, 1959 had held interalia that the remedy of filing election petition is no bar to file application for inviting a decision on question of disqualification. The Supreme Court in case of K. Venkatachalam vs. A Swamickan and Another, 1999 (4) SCC 526 , while examining the issue as to whether the jurisdiction of the High Court under Article 226 of the Constitution of India was barred for challenging the pre-election disqualification and whether filing of the election petition was the only remedy available to the aggrieved person, the Supreme Court considering all the relevant constitutional provisions and other earlier decisions, observed interalia that Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court, its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions, and when recourse cannot be had to the provisions of the Act for the appropriate relief. This Court also in case of Harpal Singh vs. State of Rajasthan, 2008(3) WLN 58, following the said decision of the Apex Court as also the decision of Full Bench in Sameera Bano held that to test the validity of election to a public office, where the alternative remedy to challenge such election has become time barred or such alternative remedy has lost its efficiency, the writ of quo warranto in suitable cases may be issued. 12. In one another decision in case of Bahadur Nath vs. State of Rajasthan & Ors, 2001(4) WLC 289, while examining the issue whether it was open to the State Government to hold inquiry under the provisions of Section 39(1)(a) read with Section 19(1) of the said Act, with regard to the pre election disqualification of the Sarpanch, it has been held that the State Government cannot be restrained to hold an inquiry on the alleged pre election disqualification merely because the election petition was pending. In the said case, the Court had relied upon the earlier decision in case of Rakesh Ghatiwal vs. State of Rajasthan, 2000(2) WLN 1, in which the petitioner had challenged the suspension order issued by the Municipal Corporation, Jodhpur on the ground that once the petitioner had stood elected and the once statute provided a particular mode of challenging the election by filing an election petition, the proceedings of judicial inquiry and suspension order were null and void being without jurisdiction, and on the ground that the only mode of removing the petitioner from the Membership was by way of election petition under Section 34 of the Act and no other mode was permissible. The Single Bench following the ratio laid down by the Apex Court in various cases to the effect that dishonesty should not be permitted to bear the fruit and to benefit the persons who played fraud or made mis-representations, and in such circumstances the Court should not perpetuate the fraud by entertaining the petitions on their behalf, dismissed the said petition and held that the election petition is not the only remedy and that a person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful inquiry by the competent authority. The said decision of the Single Bench in case of Rakesh Ghatiwal (supra) was affirmed by the Division Bench reported in 2001(2) WLN 40 in which the Court while dismissing the contention that issue of pre election disqualification can be raised only in election petition and no inquiry could be conducted by the competent authority, held interalia that if the petitioner had incurred disqualification, it was not proper for him to plead that the respondents can not proceed against him under the relevant Act. The Special Leave petition being SLP (Civil ) No.1797/2001 filed against the said judgment of Division Bench has also been rejected by the Supreme Court vide the order dated 9.2.2001. 13. The Special Leave petition being SLP (Civil ) No.1797/2001 filed against the said judgment of Division Bench has also been rejected by the Supreme Court vide the order dated 9.2.2001. 13. In view of the aforestated legal position exposited by the Supreme Court the Court has no hesitation in holding that the filing of election petition could not be said to be the only remedy to challenge the pre-election disqualification of the member of the Panchayat Samiti and that the person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful inquiry by the competent authority. It cannot be gainsaid that the competent authority is empowered to hold the preliminary inquiry or regular inquiry and issue show cause notice to the member of the Panchayati Raj Institution as per the procedure laid down in Rule-22 or Rule-23 as the case may be before passing the orders under Section 38 or Section 39 of the Act. Hence, if such authority issues show cause notice to such member or calls upon him to explain the allegations levelled against him, such authority could not be said to have acted arbitrarily or without any authority of law. If the member or the Sarpanch has succeeded in election by making misrepresentation or by submitting forged documents, he can not be permitted to take advantage of his own wrong and to plead bar of holding any lawful inquiry by the competent authority. It is true that before taking action against the elected member, the competent authority should act with great care and caution, and should act in accordance with law, however, the person who has made a misrepresentation or committed fraud at the time of filing the nomination form, can not be permitted to raise the plea that the competent authority can not make even a lawful inquiry into the allegations of disqualifications levelled against him. 14. At this juncture, it may be stated that as per the legal position settled by the Apex Court in catena of the decisions, the High Court normally should not interfere at the stage of show cause notice. Mere issuance of show cause notice does not give rise to any cause of action because it does not amount to an adverse order which would affect the rights of the party. Mere issuance of show cause notice does not give rise to any cause of action because it does not amount to an adverse order which would affect the rights of the party. In case of Union of India vs. Kunisetty Satyanarayana, 2006(12) SCC 28 , it has been held as under :- “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors. AIR 1996 SC 691 , Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. 2004 (164) ELT 141 (SC) , Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. JT 2000 (10) SC 206 , State of U.P. v. Brahm Datt Sharma and Anr. [1987] 2 SCR 444 etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere showcause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.” 15. So far as CWP No.7573/15, CWP No.10410/15, and CWP No.10854/15 are concerned, the petitioners have challenged the show cause notices or the charge sheet issued by the concerned respondents, calling upon them to explain the allegations levelled against them or to produce the documents in support of their defence. So far as CWP No.7573/15, CWP No.10410/15, and CWP No.10854/15 are concerned, the petitioners have challenged the show cause notices or the charge sheet issued by the concerned respondents, calling upon them to explain the allegations levelled against them or to produce the documents in support of their defence. Such petitions having been filed at the stage of issuance of the show cause notice or the charge sheet, no cause of action could be said to have arisen, as there is no order passed by the authority affecting their rights. Hence, the Court is not inclined to interfere with the same, in view of the ratio of judgment laid down in case of U.O.I. vs. Kunisetty (supra). 16. So far as the petitioner Birbal Ram Gurjar is concerned, he had initially filed the writ petition being No.10075/2015, challenging the notice dated 17/6/2015 calling upon him to show cause as to why his post should not be declared as vacant, as it had transpired in the inquiry that he was disqualified as the member of the Panchayati Raj institution. The said petitioner thereafter filed the writ petition being No.11142 of 2015, challenging the order dated 28/7/2015 placing him under the suspension in exercise of the powers conferred under Section 38(4) of the said Act on the ground that he was arrested and kept in judicial custody in respect of the criminal complaint registered against him under Sections 420, 467, 471 and 120B of IPC. It is true that the powers under Section 38(4) could be exercised under two eventualities only, namely, that the inquiry 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 of the suspension order. It is also true that the Member could not be placed under suspension merely on the ground that he was arrested in respect of the criminal complaint registered against him. It is also true that the Member could not be placed under suspension merely on the ground that he was arrested in respect of the criminal complaint registered against him. It is also true that the impugned suspension order does not speak about the pendency of the inquiry proceedings and speaks about his arrest in the criminal case, however merely because there is no mention about the inquiry in the impugned order of suspension, it could not be said that no inquiry was initiated or was pending against him, when he himself had challenged the said proceedings in the CWP No.10075/2015. Mere non mentioning of the said inquiry proceeding in the suspension order would not vitiate the said order, when the facts on record suggest that such inquiry was initiated by the respondents and was also challenged by the petitioner. The Court therefore does not find any illegality in the impugned order of suspension passed by the respondents. 17. In the aforestated premises, all the petitions being devoid of merits deserve to be dismissed and are dismissed. However, it is clarified that the Court has not expressed any opinion on the merits of any of the petitions. By this order, the stay application and other pending application, if any also stand dismissed. A copy of this order be placed in each connected file.