Dismissed

Smt. Narayani Devi v. State of Rajasthan and Ors.

Rajasthan HC28 Nov 2017CW/10754/2017

Case brief

AI extract

What is this about?

This judgment addresses three writ petitions concerning the suspension of elected Panchayati Raj representatives facing criminal charges for offences involving moral turpitude like forgery. The court held that suspension under Section 38(4) is valid upon framing of charges in a criminal trial for moral turpitude, rendering enquiry and prior hearing unnecessary for the suspension order itself.

What did the court decide?

Writ petitions against suspension orders of Oma Ram and Narayani Devi dismissed; direction to take action against Smt. Rohitash Kanwar in Het Ram's writ petition.

Smt. Narayani Devi Vs State of Rajasthan… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 13486 / 2017

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Oma Ram @ Om Prakash S/o Shri Pratap Ram Bheel, aged 46 years, resident of Village Moongra, Tehsil Pachpadra, District Barmer, at present Pradhan, Panchayat Samiti Balotra, District Barmer.

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----Petitioner

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Versus

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The State of Rajasthan through the Principal Secretary, Department of Rural Development and Panchayati Raj, Govt. of Rajasthan, Secretariat, Jaipur.

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The Deputy Secretary (Inquiry), Department of Rural Development and Panchayati Raj, Government of Rajasthan, Secretariat, Jaipur.

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The Chief Executive Officer, Zila Parishad, Barmer.

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The Block Development Officer, Panchayat Samiti, Balotra, District Barmer.

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----Respondent

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S.B. Civil Writ Petition No. 10754 / 2017

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Smt. Narayani Devi W/o Shri Roopa Ram, by caste Jat, aged about 56 years, R/o Gram Panchayat Chuntisara, Panchayat Samiti Nagaur, District Nagaur.

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----Petitioner

¶14

Versus

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The State of Rajasthan through the Secretary, Rural Development and Panchayati Raj. Department, Govt. of Rajasthan, Jaipur.

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The Secretary (Inquiry), Rural Development and Panchayati Raj Department, Jaipur.

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The Chief Executive Officer, Zila Parishad, Nagaur.

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The Block Development Officer, Panchayat Samiti, Nagaur District Nagaur.

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Shri Surendra Goyal, Minister of Rural Development and Panchayati Raj Department, Jaipur

----Respondent

(2 of 23)

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S.B. Civil Writ Petition No. 7618 / 2016

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Het RamS/o Shri Nand Ram, by caste Jat, aged about 55 years, resident of Village Bhojusar, Post Daidapura, Tehsil Suratgarh District Sri Ganganagar

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----Petitioner

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Versus

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The State of Rajasthan through Secretary, Department of Rural Development and Panchayati Raj, Govt. of Rajasthan, Secretariat, Jaipur.

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The Divisional Commissioner, Bikaner Division, Bikaner. 3. District Collector, Sri Ganganagar. 4. Chief Executive Officer, Zila Parishad, Sri Ganganagar. 5. Block Development Officer, Panchayat Samiti, Suratgarh District Sri Ganganagar.

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Smt. Rohitash Kanwar W/o Gyan Singh, by caste Rajput, resident of Village Kardu, Panchayat Samiti Suratgarh District Sri Ganganagar.

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----Respondent

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_____________________________________________________ For Petitioner(s) : Mr G.R.Punia - Sr. Advocate assisted by

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Mr Rajesh Punia Mr R.S.Choudhary Mr B.R.Chahar For Respondent(s) : Mr Manish Patel – AGC Mr Rakesh Matoria Mr Pappu Sangwa

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HON'BLE MR. JUSTICE VIJAY BISHNOI

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Judgment / Order

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28/11/2017

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All these writ petitions involve similarly controversy, therefore, they are being decided together by this common order.

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(3 of 23)

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Facts of SBCWP NO.13486/2017 – Oma Ram @ Om Prakash

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vs. State of Rajasthan & Ors.:

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Petitioner – Oma Ram alias Om Prakash contested the election of Member of Panchayat Samiti from Ward No.20 of Panchayat Samiti, Balotra and was declared elected as Member of Panchayat Samiti on 05.02.2015. Subsequently, he was also elected as Pradhan of Panchayat Samiti on 07.02.2015.

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One Lumba Ram filed an election petition challenging the election of the petitioner as Member of the Panchayat Samiti, Balotra under section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short ‘the Act of 1994’ hereinafter) read with Rule 80 of Rajasthan Panchayati Raj (Election) Rules, 1994 (for short ‘the Rules of 1994’ hereinafter) with the allegation that the petitioner was not having requisite qualification for contesting the election for the post of Member of Panchayat Samiti, Balotra as he was disqualified as per the provisions of section 19(r) of the Act of 1994. It is also alleged that the petitioner submitted a forged mark-sheet as his educational qualification along with his nomination form. The said election petition is pending adjudication.

¶43

In the meantime, one Peepa Ram also filed an election petition challenging the election of the petitioner as Pradhan of Panchayat Samiti, Balotra.

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One Chaina Ram, who is also an elected Member of Panchayat Samiti, Balotra and contested the election for the post of Pradhan against the petitioner, has filed an FIR No.96/2015 at

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(4 of 23)

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Police Station, Balotra against the petitioner for the offences punishable under sections 420, 467, 468, 471 and 120-B IPC alleging that the petitioner is guilty of commission of aforementioned offences by submitting forged mark-sheet along with his nomination paper submitted for contesting election of Member of Panchayat Samiti, Balotra. The police after thorough investigation has filed charge-sheet against the petitioner for the aforesaid offences.

¶48

At this stage, the Additional Commissioner, Panchayati Raj Department, Government of Rajasthan, Jaipur issued an order dated 15.09.2015 and suspended the petitioner from the post of Pradhan while exercising powers under section 38(4) of the Act of 1994. Being aggrieved with this, the petitioner preferred SBCWP No.11117/2015 before this Court challenging the said suspension order and this Court while issuing notices to the respondents stayed the said suspension order. The petitioner also filed SBCWP No.11361/2015 challenging the proceedings initiated against him under Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (for short ‘the Rules of 1996’ hereinafter).

¶49

However, in the criminal case, filed against the petitioner at the instance of Chaina Ram, the Additional Chief Judicial Magistrate, Balotra framed the charges against the petitioner for the offences punishable under sections 420, 467, 468, 471 and 120-B IPC on 11.07.2017.

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The above referred writ petitions being SBCWP Nos. 11117/2015 and 11361/2015 came to be allowed by this Court

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(5 of 23)

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vide order dated 06.09.2017 while relying on a decision of a Coordinate Bench of this Court at Jaipur dated 11.02.2016 rendered in SBCWP NO.16070/2015 – Bhupendra Singh

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Hada vs. State of Rajasthan & Ors. along with 38 other connected writ petitions and the impugned orders dated 15.09.2015 have been set aside, however, this Court kept it open for the State Government to take into consideration the fact that competent criminal court framed the charges against the petitioner on 11.07.2017 and to act strictly in accordance with

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law.

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Now the State Government issued an order dated 15.09.2017 and again suspended the petitioner while exercising powers under section 38(4) of the Act of 1994 on the ground that charges have been framed against the petitioner by the competent criminal court for the offences involving moral turpitude. Being aggrieved with the same, the petitioner has preferred the writ petition (SBCWP No.13486/2017).

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Facts of SBCWP No.10754/2017 – Smt. Narayani Devi vs. State of Rajasthan & Ors.

¶58

The petitioner was elected as a Sarpanch of Gram Panchayat, Chuntisara on 18.01.2015. One Smt. Sita wife of Jagdish Ram filed an election petition under section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994 on the ground that the petitioner was not having requisite educational qualification for contesting the election for the post of Sarpanch of Gram Panchayat and as such she was disqualified as per section 19(r) of

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(6 of 23)

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the Act of 1994. It was also alleged that the petitioner furnished forged documents regarding her educational qualification along with her nomination form. The said election petition is pending adjudication.

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Smt. Sita also lodged a criminal complaint No.29/2015 against the petitioner at Police Station Sadar, Nagaur alleging that the petitioner furnished forged documentary evidence regarding her educational qualification along with her nomination form and as such she has committed offences punishable under sections 420, 467, 468, 471 and 120-B IPC. The police after thorough investigation has filed charge-sheet against the petitioner for the offences punishable under sections 193, 418, 420, 471 IPC read with section 18 and 19 of the Act of 1994.

¶63

At this stage on the complaint filed by Smt. Sita, the respondents have initiated the enquiry against the petitioner regarding her educational qualification and notices were issued to her. The petitioner filed SBCWP No.2561/2016 challenging the action of the State Government of initiating enquiry against her and in that writ petition, this Court while issuing notices to the respondent-State had passed the interim order to the effect that the respondents shall not initiate any action under sections 38 and 39 of the Act of 1994 but has further ordered that the respondents would be free to take any other action permissible under the law against the petitioner.

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However, the State Government vide order dated 14.06.2016 suspended the petitioner from the post of Sarpanch of

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(7 of 23)

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Gram Panchayat, Chuntisara on the ground that charges have been framed against her by the competent criminal court. Being aggrieved with the same, the petitioner preferred SBCWP No.7385/2016 before this Court and this Court vide order dated 24.06.2016 stayed the execution of the said suspension order.

¶68

In the meantime, in the criminal complaint filed by Smt. Sita, wherein the police has filed charge-sheet, the Chief Judicial Magistrate, Nagaur vide order dated 12.02.2016 framed charges against the petitioner for the offences punishable under sections 420, 418, 471, 193 IPC read with section 18 and 19 of the Act of 1994 and taking into consideration this fact, the State Government again suspended the petitioner vide order dated 17.08.2017 while exercising powers under section 38(4) of the Act of 1994 on the ground that charges have been framed against the petitioner for the offence involving moral turpitude by the competent criminal court. Being aggrieved with this, the petitioner has filed the writ petition (SBCWP No.10754/2017).

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Facts of SBCWP No.7618/2016 – Het Ram vs. State of Rajasthan & Ors.

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Petitioner – Het Ram is praying that the State Government may be directed to take action against the respondent No.6 under section 38(4) of the Act of 1994 as the competent court has framed charges against her for the offences involving moral turpitude.

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Respondent No.6 was elected as Sarpanch of Gram Panchayat, Kardu, Tehsil Suratgarh, District Sri Ganganagar on

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(8 of 23)

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18.01.2015. The petitioner filed a complaint to the Judicial Magistrate, Suratgarh alleging that respondent No.6 was not having requisite qualification for contesting the election for the purpose of Sarpanch and as such she was disqualified as per section 19(r) of the Act of 1994 and she has filed forged transfer certificate along with her nomination form and, therefore, she has committed the offences punishable under sections 419, 420, 467, 468, 471 and 120-B IPC. On the directions of the Judicial Magistrate, Suratgarh, an FIR No.28/2015 was lodged against the respondent No.6 at Police Station, Rajiyasar on 09.02.2015, in which the police after thorough investigation has filed the chargesheet against respondent No.6 for the offences punishable under sections 420, 465, 468, 471, 198, 199, 200 IPC.

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The enquiry against respondent No.6 had been initiated by the Divisional Commissioner, Bikaner regarding her educational qualification and the same was going on. In the meantime, the Judicial Magistrate, Suratgarh framed charges against the respondent No.6 vide order dated 31.03.2016 for the offences punishable under sections 420, 465, 468, 471, 198, 199, 200 IPC.

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The petitioner is claiming that after framing of charges against the respondent No.6, he approached the respondent Nos.1 to 5 from time to time, however, they are not taking any action against respondent No.6 under section 38(4) of the Act of 1994. It is claimed that vide order dated 13.05.2016, the Divisional Commissioner, Bikaner kept in abeyance the proceedings against

(9 of 23)

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the respondent No.6.

ARGUMENTS BY RIVAL PARTIES:

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Learned Senior Counsel Mr G.R. Punia has vehemently argued that as the election petition challenging the election of the respondent No.6 is pending adjudication, wherein it is alleged that the respondent No.6 had submitted forged educational qualification certificate along with her nomination form, the State Government on the same ground cannot invoke the provisions of section 38(4) of the Act of 1994.

¶82

It is further submitted that the Full Bench of this Court in Sameera Bano’s case has specifically held that a pre-election disqualification can be adjudicated only in an election petition before the District Judge under section 43 of the Act of 1994 read with Rule 80 of the Rules of 1996 and it cannot be adjudicated by the authority under Rule 23 of the Rules of 1996.

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It is also argued that as per Article 243(f) and 243(o) of the Constitution of India, the elected representative cannot be removed from the office except by filing an election petition.

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In the alternative, Mr G.R.Punia has argued that as a matter of fact the State Government erred in invoking the provisions of section 38(4) of the Act of 1994 in the case of the petitioner because even if it is assumed that the allegation against petitioner – Oma Ram of furnishing forged educational qualification along with nomination form are true, then also action can only be taken against the petitioner under section 39 of the Act of 1994. It is submitted that as per the proviso to sub-section

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(10 of 23)

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(2) of section 39 of the Act of 1994 until a declaration regarding the cessation of membership of an elected representative of a Panchayati Raj Institution is made he or she is entitled to continue to hold the office.

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In support of the above contentions, Mr G.R.Punia has placed reliance on decision of Full Bench of this Court rendered in Sameera Bano (Smt.) & Ors. vs. State of Rajasthan & Ors. reported in 2007(2) DNJ (Raj.) (F.B.) 858 ; decision of Division Bench of this Court rendered in Mahendra Kumar vs. State & Ors., 2005 (3) WLC 422 and the decisions of Co-ordinate Benches of this Court rendered in Kana Ram vs. State of Rajasthan & Anr., 2002(5) WLN 677 and in Chhaganlal vs. State of Rajasthan & Ors., 2007(3) DNJ (Raj.) 1364.

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Learned counsel has also argued that the judgment passed by a Co-ordinate Bench of this Court in SBCWP No.1429/2017 – Rajesh Devi Vs. State of Rajasthan & Ors. decided on 14.02.2017 is per incuriam as in that judgment the judgments rendered by the Division Bench of this Court in Mahendra Kumar’s case (supra) as well as by learned Single Judge rendered in Kana Ram’s case (supra) have not been taken into consideration.

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Mr R.S.Choudhary counsel for petitioner – Smt. Narayani Devi has submitted that petitioner has illegally been suspended by the respondents though SBCWP Nos. 2561/2016 and 7385/2016 filed by the petitioner in respect of same controversy are pending adjudication before this Court, wherein

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(11 of 23)

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the stay orders have also been passed. However, learned counsel Mr R.S.Choudhary is not in a position to dispute the fact that a competent criminal court has already framed charges against the petitioner and Criminal proceedings in regard to an offence involving moral turpitude is pending trial against the petitioner in the court of law.

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Mr Manish Patel counsel appearing for the respondentState as also for the applicant, who has filed the application IA No.4535/2017 in SBCWP No.10754/2017 has argued that the controversy involved in these writ petitions are squarely covered by the decisions of Coordinate Benches of this Court rendered in SBCWP No.16070/2015 – Bhupendra Singh Hada vs. State of Rajasthan and 38 other connected writ petitions decided on 11.02.2016 and SBCWP No.1429/2017 – Rajesh Devi vs. State of Rajasthan decided on 14.02.2017.

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Mr Rakesh Matoria appearing on behalf of respondent No.6 in SBCWP No.7618/2016 has opposed the writ petition and submitted that even though the charges have been framed against the respondent No.6 for an offence involving moral turpitude or criminal proceedings in regard to offence involving moral turpitude is pending trial in the court of law against the respondent No.6, the State Government has rightly kept in abeyance the proceedings pending against her pursuant to the decision rendered by Full Bench of this Court in Sameera Bano’s case (supra). It is also argued that the petitioner – Het Ram being complainant has no locus standi to file this writ petition with a

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(12 of 23)

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prayer for issuance of directions to other respondents to take action against respondent No.6 under section 38(4) of the Act of 1994.

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Heard learned counsel for the parties.

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In all these cases, it is not in dispute that the charges have been framed against the elected Pradhan and Sarpanchas by the competent criminal court. The allegations against the petitioners Oma Ram @ Om Prakash, Smt. Narayani Devi and respondent No.6 – Smt. Rohitash Kanwar in SBCWP No.7618/2016 are to the effect that they have furnished forged documents regarding their educational qualification for the purpose of contesting elections of representatives of concerned Panchayati Raj Institutions.

¶101

It is true that petitioner Oma Ram @ Om Prakash and Smt. Narayani Devi were earlier suspended by the State Government while invoking powers under section 38(4) of the Act of 1994 and those suspension orders have been stayed, however, in the case of Oma Ram @ Om Prakash, this Court has found that neither enquiry was initiated against him under section 38(1) nor criminal proceedings involving moral turpitude is pending trial before the court of law against him, therefore, this Court on the basis of the statement of the counsel for the petitioner and the State has allowed the writ petition filed by the petitioner Om Ram and set aside the orders dated 15.09.2015 while relying on the judgment of a Co-ordinate Bench of this Court at Jaipur Bench rendered in Bhupendra Singh Hada’s case, however, this Court

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has observed that the State Government shall take into consideration the fact that the charges have been framed against him by the competent criminal court on 11.07.2017 and after taking into consideration the provisions of sub-section (4) of section 38 of the Act of 1994 may proceed further.

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In the case of petitioner – Narayani Devi, the fact is not in dispute that the charge against her have been framed by the competent criminal court for the offences punishable under sections 420, 418, 471, 193 IPC read with section 18 and 19 of the Act of 1994 and the State Government after taking into consideration the above fact has passed the impugned suspension orders.

¶106

Most of the arguments advanced by Mr G.R.Punia, Senior Advocate have sufficiently been answered in the judgment rendered by Co-ordinate Bench of this Court at Jaipur Bench in Rajesh Devi’s case. The relevant portion of the judgment is reproduced hereunder:

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“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 pre-election 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

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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...”.

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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

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(15 of 23)

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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-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

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(16 of 23)

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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 subsection (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

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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.”

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[Emphasis supplied]

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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.

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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-section (1) of Section 38 or subsection (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,

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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.

¶127

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 Up-sarpanch. 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:-

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“ 38. Removal and suspension. - (1) …..

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(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-section (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

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(19 of 23)

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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 twothird 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.

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…..”

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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-

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(a) refuses to act or becomes incapable of acting as such or

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(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 UpSarpanch of the Panchayat during its term of office.

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(4-A) The State Government may suspend any Panch, Sarpanch or Up-Sarpanch against whom an inquiry has been started under sub-section (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.”

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(20 of 23)

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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. 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.”

¶141

I am in perfect agreement with the position of law laid down in the above referred judgment.

¶142

The contention of Mr G.R.Punia – Senior Advocate to the effect that the judgment rendered in Rajesh Devi’s case is per incuriam in view of the judgment passed by the Division Bench in Mahendra Kumar’s case and the decision of the learned Single Judge in Kana Ram’s case is also bereft of any merit.

¶143

(21 of 23)

¶144

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¶145

In Mahendra Kumar’s case, the petitioner was suspended by the State Government while exercising powers under sub-section (4) of section 38 of the Act of 1994 while taking into consideration the fact that at the time of contesting the said election, he was disqualified on account of having more than two children after the cut off date i.e. 27.11.1995. The Division Bench of this Court after taking into consideration the provisions of sections 38 and 39 of the Act of 1994 has held that the enquiry against the petitioner was initiated under section 39 of the Act of 1994, however, as per the proviso to sub-section (2) of section 39 of the Act of 1994, a Member cannot be ousted from the office until a declaration regarding his cessation of membership is made.

¶146

In the present case, the State Government has suspended the petitioner – Oma Ram while invoking powers under sub-section (4) of section 38 of the Act of 1994 on the ground that a competent criminal court has framed charges against him and criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law.

¶147

Similarly in Kana Ram’s case also, the suspension order against the petitioner in the that case was issued by the State Government while exercising powers under sub-section (4) of section 38 of the Act of 1994 while taking into consideration the fact that he was disqualified to contest the election as he was having more than two children after the cut off date and the learned Single Judge has held that as per section 39 of the Act of 1994, the State Government has no power to suspend a Member

¶148

(22 of 23)

¶149

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¶150

or oust a Member from the office till the enquiry is culminated in the order of removal or cessation of membership of such Member, the order of suspension cannot be sustained. However, the situation is different in the case of Oma Ram as the State Government has suspended him as per sub-section (4) of section 38 of the Act of 1994 on the ground that criminal proceedings against him are pending trial in relation to the offence involving moral turpitude.

¶151

In the case of Chhagan Lal (supra), a Coordinate Bench of this Court has quashed the suspension order on the ground that the petitioner in this case was facing trial for the offences punishable under sections 186, 332 and 353 IPC and there is no satisfaction on the part of the State Government that the offences, for which the petitioner in that case was facing trial, involve moral turpitude.

¶152

In the cases in hand, it is clear that charges against petitioners – Oma Ram, Narayani Devi and respondent No.6 – Smt. Rohitash Kanwar in SBCWP No.7618/2016 are facing trial for the offences of forgery, cheating etc. and certainly those offences involve moral turpitude.

¶153

The another argument advanced by Mr Punia that an elected representative of Panchayati Raj Institution can only be removed through an election petition is fallacious. The proceedings initiated against the petitioner – Oma Ram are not for challenging his election but for suspending him for the reason that he is facing trial for the offences involving moral turpitude. The power

¶154

(23 of 23)

¶155

[CW-13486/2017]

¶156

of State Government of suspending a Member of Panchayati Raj Institution on the ground of pendency of trial for offences involving moral turpitude cannot be termed equivalent to cancellation of election of that Member for the said post.

¶157

In view of the above discussions and in view of the law laid down by the Co-ordinate Benches of this Court in the case of Bhupendra Singh Hada and Rajesh Devi no interference is called for in SBCWP No. 13486/2017 – Oma Ram @ Om Prakash vs. State & Ors. and in SBCWP No.10754/2017 – Smt. Narayani Devi vs. State of Rajasthan & Ors., hence, both these writ

¶158

petitions are dismissed.

¶159

However, SBCWP No.7618/2016 – Het Ram vs. State of Rajasthan & Ors. is disposed of with a direction to the respondents to take into consideration the fact that the charges have been framed against respondent No.6 by the competent criminal court and the criminal proceedings against her are pending trial in a court of law for the offence involving moral turpitude and thereafter to proceed in accordance with law laid down in the cases of Bhupendra Singh Hada (supra) and Rajesh Devi (supra) .

¶160

There shall be no order as to costs.

¶161

Stay Petitions are also dismissed.

¶162

(VIJAY BISHNOI)J.

¶163

m.asif/PS

Smt. Narayani Devi v. State of Rajasthan and Ors.

Case brief

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Smt. Narayani Devi v. State of Rajasthan and Ors.

Case brief

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