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2025 DIGILAW 30 (RAJ)

Sita Devi Gurjar v. State of Rajasthan

2025-01-06

REKHA BORANA

body2025
ORDER : REKHA BORANA, J. 1. An application under Order 1 Rule 10, CPC has been filed on behalf of the applicant Smt. Kaushal Sharma who has been handed over the charge of Pradhan after suspension of the present petitioner. It has been submitted that she took charge of the office on 08.7.2024 and if any order is passed in the present petition in favour of the petitioner, she would definitely be affected and hence, deserves to be impleaded as a party-respondent. 2. In the specific opinion of this Court, the applicant Smt. Kaushal Sharma cannot be termed to be a necessary or essential party to the present litigation. The applicant cannot be termed to have any vested right in her so as to continue as a Pradhan. Further, it is not the case where no effective order can be passed or that adjudication of the issue in question cannot be made in absence of the said applicant. 3. The application for impleadment, is hence rejected. 4. The present writ petition has been preferred aggrieved of the order dated 05.07.2024 (Annexure-16) whereby the petitioner i.e. the Pradhan of the Panchayat Samiti Jahajpur, District Shahpura (Bhilwara) had been put under suspension on the premise that the charges of she having not complied with the provisions of Section 33(a) and Section 46(1) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act of 1994’) were found to be proved in the preliminary enquiry report. On the same date i.e. 05.07.2024, the petitioner was served with a charge-sheet wherein two charges were framed against her. 5. The case of the petitioner is that on the complaints made by the Panchayat Samiti members regarding the non-formation of the requisite Committees and non-convening of the general/special meetings of the Panchayat Samiti, the Collector, Shahpura vide order dated 23.01.2024 (Annexure-7) directed the Additional Chief Executive Officer, Zila Parishad, Shahpura to conduct a preliminary enquiry in the matter and submit a factual report by 15.02.2024. The said Additional Chief Executive Officer submitted its factual report dated 14.02.2024 to the Collector, Shahpura who, finding the same to be an incomplete report, vide order dated 15.02.2024, directed him to conduct a detailed enquiry keeping into consideration the issues as pointed out in the said order. 6. The said Additional Chief Executive Officer submitted its factual report dated 14.02.2024 to the Collector, Shahpura who, finding the same to be an incomplete report, vide order dated 15.02.2024, directed him to conduct a detailed enquiry keeping into consideration the issues as pointed out in the said order. 6. The Collector, vide the said order, also observed that the statements of the then Development Officer as well as the Pradhan of the Panchayat Samiti (i.e. the petitioner) had not been recorded by the Enquiry Officer and hence, the same be also recorded. 7. In compliance of the order dated 15.02.2024, the Additional Chief Executive Officer served notice dated 05.05.2024 on the petitioner calling upon her to file her reply/defence/explanation by 16.05.2024. The petitioner, vide communication dated 16.05.2024, prayed for further time because of her medical condition at that point of time. After that no communication whatsoever was made by the Additional Chief Executive Officer nor was the petitioner informed of any subsequent date. 8. However, meanwhile an enquiry report dated 21.06.2024 was submitted by a Committee constituted by the Additional Commissioner and Deputy Secretary II (Enquiry) in the matter. No notice whatsoever was served by the said Committee on the petitioner before filing of the enquiry report. Meaning thereby, no opportunity of hearing was granted to her. 9. On basis of the enquiry report dated 21.06.2024 as submitted by the Committee constituted by the Additional Commissioner, the State Government proceeded on to pass the impugned order dated 05.07.2024 which is in total contravention to the basic principles of natural justice as well as in contravention to the provisions of the Act of 1994. 10. Mr. Vikas Balia, learned Senior Counsel appearing for the petitioner submitted that the order impugned dated 05.07.2024 being a total mechanical one and without any application of mind deserves to be quashed only on the said sole ground. He submitted that the said order does not record any satisfaction of the issuing authority to the effect that said suspension is imperative to conduct smooth enquiry and that such smooth enquiry would not be practicable if the petitioner is not put under suspension. 11. Learned Senior Counsel while relying upon the Division Bench judgment of this Court at Jaipur Bench in D.B. Special Appeal Writ No.252/2024; The State of Rajasthan & Ors. 11. Learned Senior Counsel while relying upon the Division Bench judgment of this Court at Jaipur Bench in D.B. Special Appeal Writ No.252/2024; The State of Rajasthan & Ors. vs. Himanshu (decided on 08.04.2024) submitted that an elected representative cannot be placed under suspension in a routine manner only for the reason of initiation of an enquiry against him/her without application of mind. 12. Learned Senior Counsel further submitted that even otherwise the charges framed against the petitioner as per the charge-sheet dated 05.07.2024 are only regarding the non- convening of the general/special meetings of the Panchayat Samiti. The said charges cannot be considered to be so grave so as to call for suspension of an elected Pradhan of a Panchayat Samiti. He submitted that non-convening of the meetings cannot be termed to be a misconduct in terms of Section 38(1) of the Act of 1994 so grave so as to call for suspension of an elected representative. 13. Relying upon the Hon’ble Apex Court judgment in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors.; (2012) 4 SCC 407 learned Senior Counsel submitted that non- calling of a meeting of a general body may be a mere technical misconduct committed inadvertently in ignorance of statutory requirements but the said technical misconduct cannot be termed to be a positive intentional misconduct so as to call for any action in terms of Section 38(4) of the Act of 1994. He submits that when once the Collector had found the report dated 14.02.2024 as submitted to him to be incomplete in absence of the statements of the Development Officer and the petitioner, the enquiry report dated 21.06.2024 (Annexure-R/1) submitted by the Committee could not have been termed to be complete and accepted by the State Department. Further, once notice was served on the petitioner, she ought to have been granted an opportunity to file her defence/reply. In absence thereof, the impugned order dated 05.07.2024 clearly is malafide. 14. Learned Senior Counsel further submitted that even otherwise, in terms of Section 46 of the Act of 1994, mandate to convene the meetings is not only of the Pradhan, the meetings can be called by the State too. Unlike the first meeting, the obligation to call the subsequent meetings is of the complete Samiti and not only of the Pradhan. 15. Unlike the first meeting, the obligation to call the subsequent meetings is of the complete Samiti and not only of the Pradhan. 15. Further, the allegation of the meetings of the Panchayat Samiti having never been convened is also clearly erroneous on the face of it as is revealed from the enquiry report dated 21.06.2024 itself. The said report specifically reveals that four general/special meetings of the Panchayat Samiti had been conducted. Two meetings of the Administrative and Establishment Committee were also conducted and further, the budget for all the three consecutive years i.e. 2021-22, 2022-23 and 2023-24 were sanctioned in the general meetings of the Panchayat Samiti. Therefore also, no misconduct whatsoever could be concluded in the matter. 16. Lastly, learned Senior Counsel submitted that even if it is assumed that no meetings in terms of Section 46 of the Act of 1994 were convened by the petitioner, no malafide intent or positive misconduct can be spelled out from the same as it is no one’s case that any financial irregularities or corrupt practices had been adopted by the petitioner for any wrongful gain. By all means, there was no ground available with the State Department to place the petitioner under suspension. 17. Per contra Mr. Rajesh Panwar, learned Additional Advocate General appearing on behalf of the State Department, while supporting the order impugned dated 05.07.2024, submitted that the said order was totally within the competence of the State Department in terms of Section 38(4) read with Section 38(1) of the Act of 1994. Evidently, a preliminary enquiry was conducted in the matter and the petitioner was found guilty as per the report of the said preliminary enquiry. The competent authority, only after being satisfied with the said enquiry report and after application of mind, proceeded on to pass the order impugned dated 05.07.2024. 18. Learned AAG submitted that it was crystal clear that in the complete tenure of three years, only four meetings were convened by the petitioner and three out of them were also only on the directions of the State Government pertaining to the schemes of the Government. Meaning thereby, only one meeting was convened by the petitioner of her own accord. Learned AAG submitted that it was crystal clear that in the complete tenure of three years, only four meetings were convened by the petitioner and three out of them were also only on the directions of the State Government pertaining to the schemes of the Government. Meaning thereby, only one meeting was convened by the petitioner of her own accord. As a matter of fact, the Panchayat Samiti remained totally defunct during the complete tenure and hence, the petitioner being found guilty prima facie in the enquiry report dated 21.06.2024, was rightly put under suspension in terms of Section 38(4) of the Act of 1994. 19. On the ground of grant of opportunity of hearing, learned AAG submitted that Rule 22(1) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’) does not talk of any prior notice or opportunity of hearing. The same only mandates of a preliminary enquiry which in the present matter has very well been conducted. Therefore, there being no mandate of an opportunity of hearing to be granted, the same cannot be a ground for quashing of the order impugned dated 05.07.2024. 20. Learned AAG submitted that as per Section 46 of the Act of 1994 it is the Pradhan who is under a mandate to convene/call for the meeting of a Panchayat Samiti. Further, it is mandatory that a meeting of a Panchayat Samiti be conducted at least once a month. The petitioner clearly was found guilty of the non- compliance of the above mandatory provisions and hence, was rightly put under suspension. 21. Heard learned counsel for the parties and perused the material available on record. 22. The issues which arise in the present petition are: “(i) Whether the petitioner could have been put under suspension on basis of the preliminary enquiry report dated 21.06.2024 without any opportunity of hearing being given in the said preliminary enquiry? (ii) Whether the impugned order of suspension dated 5.7.2024 can be termed to be an order passed after due application of mind? (iii) Whether the non-compliance of Section 33(a) and Section 46(1) of the Act of 1994 can be termed to be a misconduct so grave so as to call for suspension of an elected representative?” 23. (ii) Whether the impugned order of suspension dated 5.7.2024 can be termed to be an order passed after due application of mind? (iii) Whether the non-compliance of Section 33(a) and Section 46(1) of the Act of 1994 can be termed to be a misconduct so grave so as to call for suspension of an elected representative?” 23. Coming on the first issue, as is the settled position of law, a report of the preliminary enquiry can be acted upon by the State Government to proceed under Section 38 of the Act of 1994. Further, it is undisputed on record that a preliminary enquiry was conducted in the matter and a report thereof was submitted to the State Government by the Enquiry Officer wherein the petitioner was found guilty of non-compliance of Section 33(a) and Section 46(1) of the Act of 1994. Rule 22(1) & (2) of the Rules of 1996 provide as under: “(1) 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. (2) 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, the State Government shall frame definite charges and shall communicate them in writing to the Chairperson, Deputy Chairperson or Member of the Panchayati Raj Institution together with such details as may be deemed necessary. He shall be required to submit written statement within one month admitting or denying the allegations, giving his defence if any and whether he desires to be heard in person.” 24. He shall be required to submit written statement within one month admitting or denying the allegations, giving his defence if any and whether he desires to be heard in person.” 24. Section 38(1) & (4) of the Act of 1994 prescribes as under:- “(1) The State Government may, by order in writing and after giving him and 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 : Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled. (2)......... (3).......... (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-sec.(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:” 25. A bare perusal of the above provisions makes it clear that the State Government has jurisdiction to suspend any member of a Panchayat Samiti including the Chairperson, against whom an enquiry has been initiated under Sub-section (1) of Section 38 or against whom any criminal proceeding in regard to an offence involving moral turpitude is pending trial in a Court of law. 26. Admittedly, a charge-sheet in terms of Section 38(1) of the Act of 1994 had been served on the petitioner on the date of suspension, i.e. 05.07.2024. Meaning thereby, in the present matter, wherein an enquiry in terms of Section 38(1) of the Act of 1994 had been initiated against the petitioner, she could very well have been suspended in terms of Section 38(4) of the Act of 1994. 27. So far as grant of opportunity of hearing before the suspension is concerned, as held in Ramswaroop Vs. 27. So far as grant of opportunity of hearing before the suspension is concerned, as held in Ramswaroop Vs. State; 2000 DNJ [Raj.] 70 and Rajesh Devi Vs. State of Rajasthan; AIR 2017 Rajasthan 109 it is not mandatory to give opportunity of hearing prior to passing of the suspension order under Section38(4) of the Act of 1994. Issue No.1 is hence, answered in the manner that the State Government was competent to suspend the petitioner by serving a charge-sheet on her without giving any opportunity of hearing in the preliminary enquiry proceedings. 28. Coming on the second issue, a bare perusal of the order impugned dated 05.07.2024 (Annex.16) reflects that it has not been passed on the sole premise of a charge-sheet having been served on the petitioner. Therein, a specific finding has been recorded that the charges of non-compliance of the provisions of Section 33(a) and 46(1) of the Act of 1994 had been found proved against the petitioner in the preliminary enquiry and hence, the petitioner being the Pradhan of the Panchayat Samiti was liable for the said non-compliance. In view of the said specific finding, it cannot be termed that the order dated 05.07.2024 was passed without any application of mind. 29. So far as the judgment in the case of Himanshu (supra) as relied upon by the learned Senior counsel for the petitioner is concerned, the ratio therein would not apply in the present matter as herein, the order impugned specifically records the finding of a competent authority regarding the charges in the preliminary enquiry to be proved and further that enquiry in terms of Section 38(1) of the Act of 1994 is sought to be initiated against the petitioner. Therefore, it cannot be held that the suspension of the petitioner was in a routine manner. 30. It is not that the petitioner has been put under suspension just on the basis of complaints and without any prima facie fact finding enquiry been made in the matter. It is evident on record, after various complaints having been received regarding the non- constitution of the Standing Committees which are mandatorily to be constituted in terms of Section 55A of the Act of 1994 and regarding the non-convening of the meetings of the Panchayat Samiti, a preliminary enquiry was initiated. It is evident on record, after various complaints having been received regarding the non- constitution of the Standing Committees which are mandatorily to be constituted in terms of Section 55A of the Act of 1994 and regarding the non-convening of the meetings of the Panchayat Samiti, a preliminary enquiry was initiated. As per the enquiry report dated 21.06.2024, only two Committees out of five had been constituted and further, only six meetings had been called for in the complete tenure of three years of the petitioner. The two Committees were also constituted after a delay of more than one year and out of the six meetings, only three were actually held. Further, even the appointments of teachers (Third Grade), Junior Assistants, Village Development Officers were not recommended which was also a mandate. It is in view of the said fact finding report that the allegations against the petitioner were found to be prima facie proved so as to initiate enquiry in terms of Section 38(1) of the Act of 1994. The order dated 05.07.2024 hence, cannot be termed to be without application of mind. The second issue is hence, answered in the above terms. 31. Coming on the third issue, it is not merely a case of non- convening of the meetings of the Committees by the petitioner. The consequences of such meetings not being held are grave. What is clear on record is that against the mandate of a meeting being called and held once every month, only four general/special meetings of the concerned Panachayat Samiti had been held in the complete tenure of three years. The same clearly shows that the Panchayat Samiti remained almost defunct during the complete tenure which in the opinion of this Court, is totally unwarranted in the democratic set up wherein all the other elected representatives of the Panchayat Samiti were restrained from discharging their duties which they could have otherwise discharged had the meetings been held in accordance with law. Further, the said non-functioning of the Panchayat Samiti clearly hampered the welfare of the concerned village/panchayat. 32. It can therefore not be held that the non-convening of the meetings was just a technical misconduct and was not so grave as to suspend the petitioner. Third issue is hence, answered in the above terms. 33. Further, the said non-functioning of the Panchayat Samiti clearly hampered the welfare of the concerned village/panchayat. 32. It can therefore not be held that the non-convening of the meetings was just a technical misconduct and was not so grave as to suspend the petitioner. Third issue is hence, answered in the above terms. 33. In view of the above observations and analysis, this Court does not find any ground to interfere with the impugned order dated 05.07.2024 and the writ petition is hence, dismissed . The respondent-authorities shall be under a liberty to continue with the enquiry against the petitioner as contemplated in terms of Section 38(1) of the Act of 1994. However, the enquiry shall be completed within a period of three months from now after affording opportunity of hearing to the petitioner. The petitioner shall be under an obligation to participate diligently and not cause any delay in the enquiry proceedings. If the petitioner is found to cause any delay in the enquiry proceedings, the Enquiry Officer shall be under a liberty to proceed ex parte against the petitioner so as to conclude the enquiry within the stipulated period of three months. 34. It is made clear that any of the observations made in the present order shall not affect the enquiry proceeding and the Enquiry Officer shall be under an obligation to conduct the enquiry strictly in accordance with law and decide the same on its own merit. 35. Stay petition and all pending applications, if any, stand disposed of .