Kailash Chand Sharma Vs State of Raj and Ors.

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.4715/07
Kailash Chand Sharma vs. State & Ors.

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Date of order : 4/2/2008.

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HON'BLE MR.JUSTICE MOHAMMAD RAFIQ

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Shri Sandeep Jain for the petitioner.
Shri Sanjay Srivastava, Dy. Govt. Counsel
for State.

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The matter is listed for vacation of the
stay order dated 6.7.2007, but the matter
was heard finally.

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The writ petition has been filed by the
petitioner who is elected Sarpanch of Gram
Panchayat Dangarthal. The petitioner has
challenged the order dated 5.5.2007

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(Annexure-2) whereby he was placed under
suspension pending enquiry against him under
Section 38(4) of the Rajasthan Panchayati
Raj Act, 1994 read with Rule 22 of the
Rajasthan Panchayati Raj Rules, 1996.

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Learned counsel for the petitioner has
argued that the charges against the
petitionerpertainstoqualityof

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construction of `nali' from the house of

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Mannalal Tiwari to Khalya (Bairwa Mohalla to
Ghana) which was started on 8.3.2005 and was

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completed on 31.3.2005. The concerned

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Engineer prepared the verification report on
9.4.2005. The Executive Engineer and the
Block Development Officer, Panchayat Samiti
Newai and Secretary of the Gram Panchayat
verified the work and duly put their
signatures on the verification report. The
Executive Engineer of the Panchayat Samiti
filled up the M.B. Report and the Gram
Panchayat which was represented by all the
Panches by resolution dated 6.8.2005,
approved all the work upon the Executive
Engineer issuing a completion certificate in
respect thereof. After more than one and a
half years thereof, on a complaint made by
political opponents of the petitioner, the
Additional Chief Engineer, Zila Parishad,
Tonk conducted a preliminary enquiry but out
of eight charges in respect of point no.1
and 8, the charges were found partly proved.
The respondents however illegally did not
accept the said report and decided to hold a
fresh enquiry. This time by order dated
5.5.2007, petitioner was placed under
suspension. Learned counsel for the

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petitioner argued that during the pendency
of the earlier enquiry, the petitioner was
not suspended. There was no reason to place
the petitioner under suspension when re-
enquiry is ordered. The exoneration of the
petitioner from the major charges should
have been in fact rebutted in reinstatement
of the petitioner. At that stage, when he
was not reinstated, he approached this
Court.

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This Court by its order dated 6.7.2007
while issuing notices to the respondents,
taking note of the fact that the petitioner
in spite of being exonerated of major
charges not been reinstated stayed the order
of suspension dated 5.5.2007.

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Learned Deputy Govt. Counsel opposed the
writ petition and argued that re-enquiry
into the allegations is in the final stage
and earlier report submitted by the
Additional Chief Engineer dated 14.6.07 was
not accepted by the Government and therefore
the Government by order dated 16.8.2007 has
now appointed Additional Collector, Tonk to
conduct a fresh enquiry in respect of the

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charges framed against the petitioner. He
drew attention of the Court towards charges
levelled. Learned Dy. Govt. Counsel argued
that in view of the seriousness of the
charges against the petitioner, keeping him
in office is likely to prejudice the
impartiality of the enquiry. It was
therefore prayed that this Court may not
interfere with the order and the writ
petition be dismissed.

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Upon hearing learned counsel for the
parties and perused the material on record,
I find that charges on which the enquiry is
ordered against the petitioner are inter
alia to the effect that quality of the work
was not upto the mark and the measurement
book though reflects 50 MM grit earth work,
but on ground that is not available.
Similarly, the drainage constructed from the
residence of Mannalal Tiwari to Khalya was
also not proper. It is indeed surprising
that in spite of the specific stand taken by
the petitioner that measurement book was
approved by the Executive Engineering as
also by the B.D.O., the orders passed by the

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respondents including the charge sheet

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issued to the petitioner are conspicuously
silent as to what action has been taken
against the Engineer who has filled up the
measurement book and issued the completion
certificate, but that is indeed a matter for
the respondents to consider.

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In view of the fact that earlier enquiry
did not found the charges proved solely
against the petitioner, the respondents may
have the liberty to proceed in the fresh
enquiry, but at the same time, no case is
made out as to why petitioner should be
compulsorily kept under suspension pending
such enquiry in which at the initial stage,
he was exonerated of the charges. Learned
Deputy Government Counsel submits that
enquiry is in the final stage and its report
is likely to receive any date. If that is
so, the respondents would in no case be free
to take any final view of the matter by
passing appropriate order as may be
warranted, if and when the enquiry report is
submitted. Keeping, however, the petitioner
under suspension is neither justified nor

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warranted in the circumstances.

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The writ petition is allowed. The order
Annexure-2 dated 5.5.2007 placing the
petitioner under suspension is set aside.

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 (MOHAMMAD RAFIQ), J.

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RS/

Kailash Chand Sharma v. State of Raj and Ors.

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Kailash Chand Sharma v. State of Raj and Ors.

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