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2018 DIGILAW 1868 (RAJ)

Mamta Devi Valmiki v. State of Rajasthan

2018-09-07

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. - Both these writ petitions involve common questions of facts and law and are thus being decided together by this single order. 2. The petitioner Shakuntala is the Sarpanch of the Gram Panchayat Beharwala Kalan, Panchayat Samiti Tibbi whereas, the petitioner Mamta is the Sarpanch of the Gram Panchayat Salemgarh masani, Panchayat Samiti, Tibbi. Both were elected as in the election year 2015. The petitioner Shakuntala was placed under suspension by the Divisional Commissioner, Bikaner vide order dated 15.2.2018 and the petitioner Mamta was placed under suspension by the same authority vide order dated 10.1.2018 respectively. Both these orders were passed on the ground that the competent Court had framed charges against the petitioners in the criminal cases instituted with the allegations of having contested the elections on the basis of fake educational testimonials. 3. The impugned orders are challenged principally on the ground that the Divisional Commissioner does not have jurisdiction to place an elected Sarpanch under suspension by resorting to the State Government's notification dated 28.9.1999 as modified by notification dated 23.2.2008. 4. It is contended by Shri Bhaleria learned counsel representing the petitioners that the notification dated 28.9.1999, only empowers the Divisional Commissioners, in cases where preliminary inquiry has resulted into finding of guilt against the elected representative of the Panchayati Raj Institution, to recommend suspension/removal of such elected representative to the State Government and to act further only upon receiving approval of the State Government. He urged that no independent power is vested in the Divisional Commissioner to directly place such representative under suspension without approval of the State Government. The notifications only confer recommendatory jurisdiction upon the Divisional Commissioner and thus, the impugned orders whereby the petitioners were placed under suspension by the Divisional Commissioner, Bikaner, are bad in the eye of law. He further urged that the election petition filed against Smt.Shakuntala with the very allegations which form the foundation of the suspension order stands rejected by the Election Tribunal whereas, the order framing charge against the petitioner Mamta has been challenged in revision and thus, as per Shri Bhaleria, there exists no plausible reason or ground so as to justify the orders of suspension issued against the petitioners. He relies upon Laxman Singh vs. State of Rajasthan & Ors. reported in 2008(1) WLN 214 (Raj.) in support of his contentions and craves acceptance of the writ petitions. 5. He relies upon Laxman Singh vs. State of Rajasthan & Ors. reported in 2008(1) WLN 214 (Raj.) in support of his contentions and craves acceptance of the writ petitions. 5. Per contra, Shri Kuldeep Singh Advocate appearing for Shri Manish Patel, AGC for the Rajasthan Panchayati Raj Department and Shri Rakesh Matoria Advocate representing the complainant vehemently and fervently opposed the submissions advanced by the petitioners' counsel. They relied upon the judgment rendered by Hon'ble Division Bench of this Court in the case of Mool Chand vs. State of Rajasthan & Ors. reported in 2004(5) WLC (Raj.) 172 and a Single Bench decision rendered in the case of Rajesh Devi vs. State of Rajasthan reported in 2017(3) WLC (Raj.) 332 and urged that the Hon'ble Division has already affirmed the validity of the notification conferring powers of suspension on the Divisional Commissioners and that no different view is permissible. They further urged that minor ambiguity in the language of the notification would not be sufficient to infer restriction on the powers of the Divisional Commissioner. They urged that the notification has been engrafted so as to give emergent powers to the Divisional Commissioners to take appropriate action against the members of the Panchayati Raj Institution found indulged in grave misconduct and if the cumbersome procedure of seeking approval from the State Government in every case is insisted upon, the very purpose of delegation of powers upon the Divisional Commissioner would be frustrated. They contended that framing of charges against the petitioners by the criminal court for grave offences pertaining to contest of election by use of fake educational testimonials tantamounts to a grave misconduct and must result into the inevitable consequence of suspension of the elected representative and thus, in such situations, there is no requirement to seek approval from the State Government before proceeding against the Sarpanch concerned under Section 38(4) of the Rajathan Panchayati Raj Act. They thus craved dismissal of the writ petitions on these grounds. 6. They thus craved dismissal of the writ petitions on these grounds. 6. As regards the Division Bench Judgment relied upon by Shri Singh in the case of Mool Chand (supra), Shri Baleria, vehemently urged that the language of the notification was not properly considered by the Hon'ble Division Bench and thus, this Court even sitting in the single Bench can examine the notification and decide as to whether or not, it confers any independent power upon the Divisional Commissioner to place the elected representative under suspension without prior approval of the State Government. He thus again reiterated that the impugned orders should be struck down. 7. I have given my thoughtful consideration to the arguments advanced at the Bar and perused the material available on record. 8. The notification dated 28.9.1999 as amended by notification dated 23.2.2008 whereby, the powers under Section 38(4) of the Act were delegated upon the Divisional Commissioner was considered albeit briefly in the case of Mool Chand (supra) para No.5 thereof which is reproduced hereinbelow: "5. Section 98 of the Act of 1994 specifically envisaged that the State Government may by notification in the official gazette delegates its powers to any subordinate authority. It is not in dispute that in exercise of this power, notification has been issued conferring power of Sub-section (4) on the Divisional Commissioner. Therefore, the Divisional Commissioner exercises the power of the State Government under Section 38(4) as a delegat. If the State Government can revoke its order of suspension, its delegate too has the power to revoke the orders of suspension made by it. As per counsel for the appellant, the State Government does passes power to revoke or suspend its order suspending any person from his office under Section 38(4). Therefore, as delegate of State to exercise its power under Section 38(4) the Divisional Commissioner too has the same power to revoke or keep in abeyance the order of suspension passed by it." 9. Thus, manifestly, the Hon'ble Division Bench has clearly interpreted that all powers vested in the State Government under Section 38 of the Act can be exercised by the Divisional Commissioner being the delegat authority. Thus, manifestly, the Hon'ble Division Bench has clearly interpreted that all powers vested in the State Government under Section 38 of the Act can be exercised by the Divisional Commissioner being the delegat authority. Furthermore, in the case in of Rajesh Devi (supra) learned Single Bench of this Court, considered the issue regarding suspension of the Sarpanch in cases where criminal charges on allegations pertaining to preelection disqualifications have been framed against an elected representative of the Panchayati Raj Institution. The Court went on to hold as below :- "9.Core question that arises for determination is whether Section 38(4) of the Act of 1994 could be invoked by the respondents for placing the petitioner under suspension on allegations, which pertain to preelection disqualification, wherefor charges in a criminal trial have been framed against him. Subsection (4) of Section 38 of the Act of 1994, for this purpose, can be divided into two parts. While first part provides that the government may place any member of a Panchayati Raj Institution under suspension against whom an enquiry has been initiated under sub-section (1) but the second part would be attracted in a situation when criminal proceedings with regard to offence of moral turpitude is pending trial in a court of law against her. So far as earlier order of suspension is concerned, the respondents invoked the above referred to first part of sub-section (4), as the administrative enquiry initiated for her removal was pending, which was quashed by this court relying on full bench decision of this court in Smt. Sameera Bano, supra, holding that no member of a Panchayati Raj Institution can be proceeded against for removal in an administrative enquiry on allegations of pre-election disqualification, but order impugned herein has been passed singularly on the basis of fact that charges for offence under Sections 420, 466, 468 and 471 of the IPC involving moral turpitude have been framed against the petitioner and the matter is pending trial in the court of law. Thus, in the present case, what has been invoked by the respondents is second part of sub-section (4) of Section 38 of the Act of 1994, which is that any member of a Panchayati Raj Institution including Chairperson/Deputy Chairperson, can be placed under suspension, "against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law...". 10. 10. Contention of learned counsel for petitioner that even in regard to second part, where order of suspension has been passed on the basis of charges having been framed in a criminal trial, enquiry ought to have been conducted in accordance with the provisions contained in Rule 23 of the Rules of 1996, and that requisite declaration under Section 39(2) should have been recorded in such an enquiry and since no such declaration has been recorded so far, the petitioner by virtue of proviso to subsection (2) of Section 38 of the Act of 1994 would be entitled to continue to hold her office, is noted to be rejected for stated reasons. Further contention that declaration under sub-section (2) of Section 39 that petitioner has become ineligible to continue to be a member for any of the reasons specified in Section 39(1)(a), which includes the disqualification specified in Section 19 and that the competent authority before placing her under suspension should have served upon the petitioner show cause notice and provided opportunity of being heard, also cannot be countenanced. Sections 38 and 39 for the present purpose have to be read disjointly to make the scheme of the legislation workable. While it is true that sub-section (1) of Section 38 envisages an enquiry before an order of removal is passed, for which enquiry provisions of Rule 23, supra, are attracted but as is evident from caption of Section 38 "Removal and suspension", this provision does not speak about removal alone but also contains provision with regard to suspension. Sub-sections (1) and (2) of Section 38 contains provision with regard to removal and sub( 8 of 15) [CW-920/2018 & 2734/2018] section (3) of Section 38 stipulates that any member including chairperson or deputy chairperson of a Panchayati Raj Institution against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under the Act of 1994 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. But subsection (4) of Section 38 is an independent provision of the then sub-sections (1) and (2) thereof, as suspension order of the members of the Panchayati Raj Institution under this provision could be passed not only against whom an administrative enquiry has been initiated but it also covers the cases of members against whom any criminal proceedings in regard to offence involving moral turpitude is pending trial in a court of law. The order of suspension passed invoking latter part of sub-section (4) of Section 38 read with Section 39(2) therefore need not be preceded either by an enquiry or a show cause notice. While the competent authority may be under an obligation to give an opportunity of being heard before recording a declaration that a member of Panchayati Raj Institution has become ineligible to be continued as such, but no such show cause notice or opportunity of being heard can be insisted upon in a case where a member of Panchayati Raj Institution is placed under suspension against whom criminal proceedings in regard to offence involving moral turpitude is pending trial in a court of law. Sections 38 and 39 of the Act of 1994 thus operate in different spheres; while Section 39 covers different situations in which a member of Panchayati Raj Institution shall not be eligible to continue to be such member and if any of such situations are attracted, it would result in cessation of his membership, Section 38 has only one component of many such situations, included in Section 39, which is that the State Government may, after an opportunity of being heard and making an enquiry, remove such any member, who refuses to act or has become incapable of acting as such or is guilty of his misconduct in discharge of duties or any other misconduct. Such an enquiry can be held as per proviso to sub-section (1) of Section 38 of the Act of 1994 or can be continued if already instituted before such suspension. But sub-section (4) of Section 38 is an independent provision, latter part of which can be invoked by the State Government for placing a member of Panchayati Raj Institution under suspension only on the basis of criminal proceedings for offence involving moral turpitude is pending trial in a court of law against him. 11. But sub-section (4) of Section 38 is an independent provision, latter part of which can be invoked by the State Government for placing a member of Panchayati Raj Institution under suspension only on the basis of criminal proceedings for offence involving moral turpitude is pending trial in a court of law against him. 11. The Supreme Court in Ratilal Bhanji Mithani vs. State of Maharashtra - (1979) 2 SCC 179 , held that the trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an enquiry. A division bench of this court in Bhagwan Singh vs. State of Rajasthan and Another - D.B. Civil Writ Petition No.166/1986, decided on 22.04.1987, while interpreting pari-materia provision contained in predecessor Act i.e. Section 17(4A) of the Rajasthan Panchayat Act, 1953, interpreted the words 'pending trial' and held that "...the intention behind Section 17(4A) seems to be that a Sarpanch of a Panchayat may be suspended when the trial court applies its mind to the merits of the case regarding framing of the charge." That judgment was cited with approval in subsequent division bench judgment in Bansidhar Saini vs. State of Rajasthan and Another - 1988 (1) WLN 270 . 12. That having been said with regard to phraseology 'pending trial', it must be held that neither show cause notice is required to be given nor any enquiry is required to be conducted either with reference to sub( 10 of 15) [CW-920/2018 & 2734/2018] section (1) of Section 38 or sub-section (2) of Section 39 of the Act before placing a member of Panchayati Raj Institution "against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law". If upon conclusion of trial, the petitioner is eventually convicted and the State Government proposes to remove her from the office of Sarpanch, the judicial determination, having already been recorded with regard to his/her guilt, would obviate the need for an enquiry and at that stage, limited show cause notice on such factual aspect may be required to be served upon him/her before passing the order of removal from the office of Sarpanch. 13. 13. A full bench of this court in Bhura Lal vs. State of Rajasthan and Others - 1988 (1) RLR 945 , was dealing with the question as to what would be proper stage when the order of suspension under Section 17(4A) of the Rajasthan Panchayat Act, 1953 can be passed by the Government and whether opportunity of hearing is necessary to be given before passing the order of suspension against Panch, Sarpanch, or Upsarpanch. The provisions of Section 38(4) of the Act of 1994 and Section 17(4A) of the Rajasthan Panchayat Act, 1953 are in pari materia with each other, as is clear from the reading thereof, which read as under:- "38. Removal and suspension.- (1) ............... (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 subsection (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. [Provided that the State Government may also suspend any Panch on the recommendation of the Ward Sabha or a Sarpanch on the recommendation of the Gram Sabha, but the State Government shall do so only when a resolution to that effect passed by a Ward Sabha, or a Gram Sabha, as the case may be, is referred by the State Government to the Collector for convening a special meeting of the Ward Sabha or the Gram Sabha, as the case may be, for finally ascertaining the wished of the members and the members present in the meeting so convened by the Collector and presided over by his nominee, reaffirm the resolution seeking suspension of the Panch or the Sarpanch, as the case may be, by a majority of two-third of the members present and voting. Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be. 14. Section 17(4) of the Rajasthan Panchayat Act, 1953, reads thus:- "17(4). Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be. 14. Section 17(4) of the Rajasthan Panchayat Act, 1953, reads thus:- "17(4). The State Government may, by order in writing and after giving him an opportunity of being heard and making such Inquiry as may be deemed necessary, remove any Panch, Sarpanch or Up-Sarpanch who- (a) refuses to act or becomes incapable of acting as such or (b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct: Provided that any such enquiry as is referred to in this sub-section may be initiated or if already initiated before such expiry, may be continued thereafter and in any such case, the State Government shall, by order in writing, record its finding on the charges levelled against a Panch, Sarpanch or Up-Sarpanch of the Panchayat during its term of office. (4-A) The State Government may suspend any Panch, Sarpanch or Up-Sarpanch against whom an inquiry has been started under subsection (4) or the proviso thereto, or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law, and debar him from taking part in any act or proceedings of the Panchayat while under suspension." 15. The full bench therein held that the suspension of a Panch, Sarpanch or Up-sarpanch is necessary to be brought about in order to prevent him from continuing to commit serious acts of misconduct, misappropriation of funds, falsification of accounts, tempering with the records or misusing his official position and the like. In such cases, the normal presumption that a hearing must be given is rebutted by the urgency of the situation. Even in cases not involving urgency, when it is necessary to prevent a person from doing any mischief or continuing to indulge in acts harmful to the society or a section thereof or where prior warning would frustrate the very object, action may be taken without a predecisional hearing. Even in cases not involving urgency, when it is necessary to prevent a person from doing any mischief or continuing to indulge in acts harmful to the society or a section thereof or where prior warning would frustrate the very object, action may be taken without a predecisional hearing. The order of suspension under Section 17(4A) is an order of interim nature and it could be passed only after an active application of mind by the State Government to the question as to whether an emergent or immediate action is called for on the basis of the preliminary enquiry report and its decision to send a charge-sheet and show cause notice to the Panch or Sarpanch concerned. It is then that opportunity of hearing would be afforded to him in the sense that he will have an opportunity to submit his representation in answer to the charges." [Emphasis supplied] 10. The learned Single Bench relied upon the Full Bench decision in the case of Bhura Lal vs. State of Rajasthan & Ors. reported in 1988 (1) RLR 945 wherein, it was held that suspension of a delinquent Sarpanch or Up-sarpanch charged with allegations of grave misconduct is necessary to be brought around in order to prevent him from committing serious acts of misconduct etc. and the like. 11. In the background of this factual and legal position, this Court is of the firm opinion that even assuming for arguments sake that there was some irregularity in exercise of powers by the Divisional Commissioner, manifestly, the impugned orders cannot be interfered with for the simple reason that both the petitioners have been charged for the offences of having used fake educational testimonials for contesting the elections and thus, they have to be placed under suspension so as to prevent them from holding the office albeit temporarily for which they are no longer entitled and to prevent further mischief. The argument of Shri Bhaleria that the election petition filed against the petitioner Shakuntala has been rejected is also of no consequence because law is well settled that the findings recorded in a civil case are not necessarily binding on a criminal court. It is quite possible that the election petitioner might have failed to lead appropriate evidence to establish the allegations of disqualification against the Sarpanch elect owing to lack of resources etc. It is quite possible that the election petitioner might have failed to lead appropriate evidence to establish the allegations of disqualification against the Sarpanch elect owing to lack of resources etc. or even possibly she might have been won over but the State Government, which is the prosecuting agency of the criminal case would definitely have better resources available at its disposal to establish the charges against the delinquent. Furthermore, as has been observed by the Hon'ble Division Bench in the case of Mool Chand (supra) and learned Single Bench in the case of Rajesh Devi (supra), suspension is purely temporary in nature and the representative concerned would have an appropriate opportunity to defend oneself in the proceedings of the regular inquiry. Thus, manifestly, no prejudice can be claimed by any of the petitioners merely because they were placed under suspension by the Divisional Commissioner albeit without prior approval of the State Government because the admitted factual scenario warrants their suspension. 12. As observed by Full Bench of this Court in the case of Bhura Lal (supra), the consequence of suspension is inevitable once the competent court passes an order framing charge against the elected Sarpanch. 13. In view of the discussion made herein above, I find no merit in these writ petitions. However, it is directed that the proceedings of the inquiry initiated against the petitioners shall be expedited. Furthermore, the petitioners are given liberty to seek revocation of the suspension order in case of any favourable order being passed in the criminal case. 14. With these observations and directions, the writ petitions are rejected. Stay applications are rejected. 15. A copy of this order be placed in both the files.