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2018 DIGILAW 1991 (RAJ)

Prakash Kumar v. State of Rajasthan, Through Additional Chief Secretary, Department of Rural Development and Panchayati Raj

2018-09-28

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. By way of this writ petition, the petitioner Prakash Kumar, being the returned Sarpanch of Gram Panchayat Punasa, Panchayat Samiti Bheenmal, District Jalore, has approached this court for assailing the order dated 18.09.2018 passed by the respondent Joint Secretary and Deputy Commissioner (Enquiry), Department of Rural Development and Panchayati Raj, Government of Rajasthan, whereby the petitioner was placed under suspension while exercising powers UNDER Section 38 of the Panchayati Raj Act. For the sake of reference, the substratum of the order dated 18.09.2018 is reproduced hereinbelow : ^^Jh izdk'k dqekj] ljiap xzke iapk;r iwuklk] iapk;r lfefr Hkhueky] ftyk tkyksj ds fo:) iapk;rh jkt vf/kfu;e@fu;e ds rgr tkap yfEcr gSA Jh izdk'k dqekj] ljiap xkze iapk;r iwuklk] iapk;r lfefr Hkhueky ftyk tkyksj ds fo:) izdj.k la[;k 21@2018 esa ekuuh; U;k;ky; vij lS'ku U;k;k/kh'k Hkhueky] jktLFkku }kjk vkjksi fojfpr dj fn;s x;s gSA bl lac/ka esa vkjksih ljiap dk vkjksi i= fnukad 18-09-18 tkjh fd;k tk pqdk gSA Jh izdk'k dqekj] ljiap xkze iapk;r iwuklk] iapk;r lfefr Hkhueky] ftyk tkyksj ds fo:) l{ke U;k;ky; ls vkjksi fojfpr gksus ds QyLo:i vkjksih ljiap dk mDr d`R; iapk;rh jkt vf/kfu;e 1994 dh /kkjk 38 ds rgr drZO;ksa ds fuoZgu esa vopkj o vodhfrZdj vkpj.k dh Js.kh esa vkrk gSA vr% jkT; ljdkj jktLFkku iapk;rh jkt vf/kfu;e 1994 dh /kkjk 38¼4½ ds rgr iznRr 'kfDr;ksa dk iz;ksx djrs gq, ,rn}kjk Jh izdk'k dqekj ljiap xkze iapk;r iwuklk] iapk;r lfefr Hkhueky] ftyk tkyksj dks ljiap xzke iapk;r iwuklk ds in ls fuyfEcr djrh gS rFkk vkns'k iznku djrh gS fd os fuyEcu dky esa iapk;r ds fdlh dk;Z ,oa dk;Zokgh esa Hkk ugha ysaxsa rFkk ljiap in dk pktZ fdlh vU; dks fn;k tkosA^^ 2. The principal contention of Mr. Mahesh Bora, learned Senior Advocate, assisted by Mr. Nishant Bora, for assailing the impugned order was that the trial court has framed charges against the petitioner for the offences under Sections 147, 148, 332, 353, 307, 224, 225, 427 and 149 IPC, none of which falls within the category of an offence involving moral turpitude. He, thus urges that as the competent court has not framed charge against the petitioner for any offence involving moral turpitude, the competent authority wrongly exercised jurisdiction conferred upon it by Section 38 of the Panchayati Raj Act for placing the petitioner under suspension and that the impugned order has no foundation in eyes of law. 3. He, thus urges that as the competent court has not framed charge against the petitioner for any offence involving moral turpitude, the competent authority wrongly exercised jurisdiction conferred upon it by Section 38 of the Panchayati Raj Act for placing the petitioner under suspension and that the impugned order has no foundation in eyes of law. 3. He relied upon the notification/statutory order issued by the State Government under the provisions of the Municipalities Act, wherein certain offences have been classified as being offences involving moral turpitude. He, thus, urges that none of the offences attributed to the petitioner in the order framing charge is covered by the offences listed in the said notification, apparently, the embargo against holding the post of Sarpanch as provided by Section 38 of the Act does not operate against the petitioner. 4. In support of his contention, Mr. Bora relied upon this court's decision in the case of Ramesh Bishnoi Vs. Union of India and Others., (2018) 2 WLN(Raj) 273 and urged that even as per the policy guidelines formulated by the Central Government, the offences alleged against the petitioner cannot be branded as involving moral turpitude. 5. On these grounds, he urged that the impugned order is liable to be struck down. 6. Mr. Manish Patel, learned AGC, appearing on behalf of the respondents, vehemently and fervently opposed the submissions advanced by Mr. Bora. He urged that the impugned order is not founded solely on the order framing charge against the petitioner in the criminal case, but also refers to initiation of enquiry against the petitioner under Section 38 (1) of the Panchayati Raj Act. He relied upon the judgments in the cases of Ganesha Ram Vs. The State of Rajasthan and Others. (D.B. Civil Special Appeal (Writ) No.1038/2013 decided on 09.05.2014) and Smt. Santosh Kumari Vs. State of Rajasthan and Others. (D.B. Civil Special Appeal (Writ) No.592/2018 decided on 12.07.2018) and sought dismissal of the writ petition. He contended that the charge against the petitioner is of assaulting the police party after forming an unlawful assembly with his companions and of obstructing public servants from discharging their official duties and of attempting to commit murder of such public servants. He, thus, urges that by no stretch of imagination can the argument of Mr. Bora that the offences alleged do not involve moral turpitude can be accepted. He, thus, urges that by no stretch of imagination can the argument of Mr. Bora that the offences alleged do not involve moral turpitude can be accepted. On these submissions, he craved dismissal of the writ petition. 7. I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record. 8. The first and foremost contention of Mr. Mahesh Bora, learned Senior Advocate, was that the charges which have been framed against the petitioner do not involve any offence of moral turpitude. For this purpose, Mr. Bora has relied upon the notification dated 24.05.1961 issued by the Government of Rajasthan under the Municipalities Act. The language of the notification is noted hereinbelow for the sake of ready reference : NOTIFICATION No. F.8(129)LSG/60 dated May 24, 1961 - In pursuance of clause (i) of section 26 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959) the State Government hereby declares the offences specified in the schedules hereto imply such moral turpitude as to render a person unfit to be a member of a Municipality :- SCHEDULE "A" Under the Indian Penal Code Chapter XI - Section 193, 194 and 196. Chapter XII - All offences punishable under this chapter. Chapter XVI - Section 302, 304, 312, 313, 315, 354, 366, 372, 373 and 377. Chapter XVII - Section 379, 380, 381, 382, 384, 385, 386, 387, 388, 389, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 406, 407, 408, 409, 417, 419 & 420. Chapter XVIII - Section 465, 482, 489 A, 489 B, 489 C, 489 D and 489 E. Chapter XX - Section 497 and 498. SCHEDULE "B" Other Offences All offences under the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954)." 9. Manifestly, on a plain reading, it is clear that the notification is not exhaustive in nature. It just implies that the offences specified therein shall be deemed as offences of moral turpitude. Merely because the offences under Sections 307, 224, 225 and 332 IPC have not been included in the said notification as offences involving moral turpitude, this court would be least persuaded to hold that these offences do not involve moral turpitude. A life-threatening assault made on a public servant while he is discharging his official duties is definitely an offence of moral turpitude. A life-threatening assault made on a public servant while he is discharging his official duties is definitely an offence of moral turpitude. In this background, this court has no hesitation in holding that the petitioner, who has been charged by a competent criminal court for numerous offences, to be specific offences under Sections 307, 332, 224 and 225 IPC in a case involving formation of an unlawful assembly and attempt on life of public servants, can definitely be said to be facing trial for offences involving moral turpitude. The order of suspension was passed after the competent criminal court had framed charges against the petitioner. Furthermore, bare perusal of the impugned order of suspension Annex.P/3 clearly reveals that the same was not passed solely on basis of the order framing charge by the criminal court, but also refers to the initiation of an enquiry against the petitioner under Section 38 (1) of the Panchayati Raj Act, which clearly postulates that a Chairperson of Gram Panchayat can be placed under suspension in both the circumstances, viz. (1) initiation of an enquiry against such person (2) framing of charge by the criminal court for an offence involving moral turpitude against such person. 10. The judgment relied upon by Mr. Bora in the case of Ramesh Bishnoi is of no help to the petitioner because therein, certain guidelines issued by the MHA were relied upon, which enlist certain categories of offences to be of moral turpitude. However, the guidelines are not exhaustive and do not include all offences, which can be graded as involving moral turpitude. This court is of the firm opinion that the offences alleged against the petitioner can definitely be considered to be those involving moral turpitude. Thus, the order of suspension passed against the petitioner deserves to be affirmed on both the counts as the same was issued pursuant to initiation of enquiry against the petitioner under Section 38 of the Panchayati Raj Act and so also because the competent criminal court has framed charges against the petitioner for offences involving moral turpitude. 11. Thus, I find no reason to interfere in the impugned order while exercising this court's extraordinary writ jurisdiction. As a consequence, the writ petition as well as the stay petition are dismissed as being devoid of merit.