Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 2355 (RAJ)

Pankaj Mittal v. State of Rajasthan

2021-12-16

AKIL KURESHI, UMA SHANKER VYAS

body2021
JUDGMENT 1. This appeal is directed against the judgment of learned Single Judge 22.09.2021 passed in Civil Writ Petition No.13322/2020. Brief facts are that the appellant-original petitioner was holding a post of Sarpanch of Gram Panchayat Shahabad, District Baran. He was involved in a ACB trap case on 10.07.2020 where allegedly he was caught accepting bribe of Rs.10,000/-. On 18.09.2020 the Assistant Secretary (Vigilance) of Panchayati Raj had written to the petitioner informing him that information regarding his involvement in the said case has been received by the department. He should therefore appear in person before the authority on 27.11.2020 for the purpose of enquiry alongwith documents and evidence. On 09.10.2020 the petitioner was suspended from the post of Sarpanch. This order he had challenged before the learned Single Judge. By impugned judgment his petition was dismissed on the ground that the enquiry as envisaged under Section 38(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter to be referred as 'the said Act') has been initiated and therefore it cannot be stated that the order of suspension is in contravention of Section 38(4) of the said Act. 2. Having heard learned counsel for the appellant and having perused the documents on record we notice that under sub- section (1) of Section 38 the Government has power by passing an order in writing to remove a member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution after giving an opportunity of being heard and holding such enquiry as may be deemed necessary 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. Sub-section (4) of Section 38 provides that the State Government may suspend any member including a Chairperson or a Deputy Chairperson of 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. 3. The State Government has framed the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the said Rules'). Rule 22 of the said Rules pertains to procedure of enquiry. 3. The State Government has framed the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the said Rules'). Rule 22 of the said Rules pertains to procedure of enquiry. Sub-rule (1) of Rule 22 provides that before taking any action under sub- section (1) of Section 38 where on its own motion or upon any complaint the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month. Sub-rule (2) of Rule 22 further provides that if upon consideration of the report received as aforesaid or otherwise the State Government is of the opinion that action under sub-section (1) of Section 38 is necessary it shall frame definite charges and shall communicate them in writing to the concerned person to carry with such details as may be deemed necessary. Such person shall be required to submit a written statement within one month admitting or denying the allegations giving his defence if any and whether he desires to be heard in person. 4. In terms of sub-section (4) of Section 38 of the said Act the State Government has power to suspend a 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 for an offence involving moral turpitude is pending trial in a court of law. In this respect communication dated 18.09.2020 becomes significant. As noted under this communication the Secretary required the petitioner to remain present on 27.11.2020 in connection with the complaint received against him of being involved in a trap case. Thus the enquiry as envisaged under sub- section (1) of Section 38 had already been initiated. The 5. procedure for conducting the entire enquiry as laid down in Rule 22 of the Rules should not be concluded without initiation of enquiry as referred to in sub-section (4) of Section 38. Holding and conducting entire enquiry would require framing of formal charges against a person concerned and soliciting his response to such charges. Nevertheless when we are dealing with the situation of powers to suspend a person, the same are necessarily of interim measure and of urgent character. Holding and conducting entire enquiry would require framing of formal charges against a person concerned and soliciting his response to such charges. Nevertheless when we are dealing with the situation of powers to suspend a person, the same are necessarily of interim measure and of urgent character. Sub-section (4) of Section 38 of the said Act does not envisage conduct of the whole enquiry before power of suspension can be exercised. 6. Under the circumstances the learned Single Judge committed no error. The appeal is dismissed.