Dismissed

Chandrshekhar v. State and Ors.

Rajasthan HC23 Oct 2018CW/4226/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the suspension of a Ward Panch under Section 38(4) of the Panchayati Raj Act. The Court held that suspension was legally justified as charges punishable with imprisonment over 5 years were framed against the petitioner for offences involving moral turpitude, invalidating the claim of non-application of mind.

What did the court decide?

The writ petition and stay application were dismissed as being devoid of merit.

Chandrshekhar Vs State and Ors. — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 4226/2018

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Chandrashekhar S/o Sh. Chhaganlal, By Caste Mewara Kalal, Resident Of Near Police Chowki, Village Ghanerao, Tehsil Desuri, District Pali Raj.

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----Petitioner

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Versus

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State Of Rajasthan Through Secretary To The Government, Rural Development And Panchayati Raj Department, Jaipur.

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Joint Secretary-Cum-Deputy Commissioner Enquiry, Rural Development And Panchayati Raj Department, Jaipur.

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Vikas Adhikari, Panchayat Samiti, Desuri, District Pali.

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----Respondents

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For Petitioner(s) : Mr. Sandeep Shah. For Respondent(s) : Mr. Manish Patel, AGC. Mr. Bharat Shrimali.

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Judgment

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Date of Judgment: 23/10/2018

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Heard learned counsel for the parties. Perused the material available on record.

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By way of this writ petition, the petitioner Chandra Shekhar has approached this Court for assailing the order (Annexure-4) dated 07.03.2018 passed by the Joint Secretary, Panchayati Raj Department placing the petitioner being a Ward Panch in the Gram Panchayat Ghanerao, under suspension while exercising powers under Section 38(4) of the Panchayati Raj Act, 1994.

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(2 of 6)

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[CW-4226/2018]

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Shri Sandeep Shah, learned counsel representing the petitioner vehemently and fervently urged that the impugned order reflects absolute non-application of mind inasmuch as the same reads that the criminal case is registered against the petitioner for contesting the election by using fabricated documents. He urged that as a matter of fact, the allegation of contesting the election by using forged documents is against the wife of the petitioner namely Smt. Santosh Kumari. She too was placed under suspension for the very same allegation. He thus contended that the impugned order is absolutely laconic and should be struck down because the same suffers from total nonapplication of mind to material facts.

¶19

Per contra, Shri Manish Patel, learned AGC representing the respondents vehemently and fervently opposed the submissions advanced by Shri Shah. He urged that trivial and insignificant errors in the impugned order have to be overlooked. The substance of the matter is that the competent Court has framed charges against the petitioner for the offences under Sections 420, 467, 468 and 471 read with Section 120B IPC which is the basis of the suspension order. Section 38(4) of the Panchayati Raj Act postulates that a Chairperson or a Member of the Gram Panchayat against whom the competent criminal court has framed charge for offence punishable with imprisonment of 5 years or more can be placed under suspension. He relied upon the following observations made in Division Bench Judgment of this Court in a bunch of special appeals led by D.B. Civil Special Appeal (Writ) No.592/2018 -Smt. Santosh (being the petitioner’s wife) vs. State of Rajasthan & Ors. decided on 12.07.2018:-

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(3 of 6)

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[CW-4226/2018]

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“27. As noted hereinabove, the power of suspension relates to not the date when the act constituting the offence was committed. It relates to criminal proceedings in regard to an offence involving moral turpitude pending trial in a Court of law. Thus, irrespective of the date when the act constituting offence was committed, if the charge sheet is filed after a person is elected as a Panch or a Sarpanch and the Court takes cognizance thereof, it would be a case where it can be said that the criminal proceedings regarding an offence are pending trial in a Court. If the offence has an element of moral turpitude the power of suspension can be invoked.

¶23

The straight line reasoning of the Division Bench judgment in Satish Valmiki’s case is not only correct but is even otherwise binding upon us.

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From a perusal of Section 19 it is apparent that every person registered as a voter in the list of voters of a Panchayati Raj Institution is qualified for election as a Panch or a member of such Panchayati Raj Institution unless such person is covered by the clauses enumerated in the Section. As per Clause (gg) if a person is under trial before a competent Court which has taken cognizance of an offence and framed charges for an offence punishable with imprisonment for five years or more, disqualification is attracted to offer candidature to be elected as a Panch or Sarpanch. Relevance of noting said provision is that if at the pre-election stage charge has been framed against a person he/she becomes ineligible to offer candidature as a Panch or Sarpanch. Sub-section (4) of Section 38 mirrors this by requiring suspension if after being elected as a Panch or Sarpanch criminal proceedings in regard to an offence involving moral turpitude are initiated and are pending trial in a Court of law. Meaning thereby, the Court has taken cognizance of the offence.”

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and contended that the criminal court has framed charges against the petitioner as a conspirator who facilitated procurement of the fabricated educational testimonials of his wife Smt. Santosh to contest the election on the post of Sarpanch and thus, he has rightly been suspended. The petitioner’s wife Smt. Santosh was also placed under suspension and the challenge given by her to the suspension order has failed with the dismissal of the above mentioned special appeal. He thus urged that the impugned order of suspension does not warrant any interference whatsoever.

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(4 of 6)

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[CW-4226/2018]

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I have given my thoughtful consideration to the arguments advanced at bar and have gone through the impugned order and the other material available on record.

¶29

The thrust of arguments advanced by Shri Shah for assailing the impugned order was that the same was passed with total nonapplication of mind to the material facts. His stress was on the opening lines of the order impugned wherein, it is mentioned that the criminal case is pending against the petitioner for contesting the election by using fabricated documents whereas the fact remains that the charge for contesting the election by using fabricated documents has been framed against the petitioner’s wife. Smt. Santosh.

¶30

I have carefully considered the said submission and have perused the impugned order threadbare. True it is that the order reads in a cursory manner that a case for contesting election by using fabricated documents is pending against the petitioner whereas, the fact is that the case for contesting the election by use of fabricated educational testimonials has been registered against the petitioner’s wife Smt. Santosh and the petitioner has been charged in the said case as a conspirator. However, the substance of the matter is that the suspension of the petitioner has been effected on account of the order dated 10.01.2018 passed by the Judicial Magistrate, Desuri in the Criminal Case No.756/2015 framing charges against the petitioner for the offences under Sections 420, 467, 468, 471 and 120B IPC. The foundation of the impugned order whereby, the competent authority exercised power under Section 38(4) of the Panchayati Raj Act and directed the petitioner’s suspension does not reflect

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(5 of 6)

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[CW-4226/2018]

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any non-application of mind or misreading of facts whatsoever.

¶34

The relevant part of the order reads thus:

¶35

“Jh pUnz’ks[kj esokMk] okMZ iap] xzke iapk;r] ?kk.ksjko] iapk;r lfefr nslwjh ftyk ikyh ds fo:) QthZ 'kS{kf.kd ;ksX;rk ds nLrkostksa ds vk/kkj ij ftyk ifj"kn dk pquko thrus ckcr~ izdj.k orZeku esa yfEcr gSA

¶36

Jh pUnz’ks[kj esokMk] okMZ iap] xzke iapk;r] ?kk.ksjko] iapk;r lfefr nslwjh ftyk ikyh ds fo:) vfHk;ksx la[;k 756@2015 vUrxZr /kkjk 420]467]468]471 o 120 Hkk-n-l- esa ekuuh; U;k;ky; U;kf;d eftLVªsV nslwjh] ftyk ikyh }kjk fnuakd 10-1-2018 dks izlaKku fy;k tkdj vkjksi fojfpr dj fn;s x;s gSA

¶37

foHkkxh; ifji= Øekad 1466 fnuakd 11-3-16 ds fcUnq la[;k 1 ij funsZ’k fn;s gS fd pquko iwoZ dh vof/k ds uSfrd v|erk ls lacaf/kr vijk/kksa ds ekeys esa fopkjk/khu dk;Zokgh dks l{ke vijkf/kd U;k;ky; esa vkjksi fojfpr gksus rd yfEcr j[kk tkosA uSfrd v|erk ls lacaf/kr vijk/kksa ds ekeyksa esa vkjksi fojfpr gksus ds i’pkr /kkjk 39 dks iquZLFkkfir djrs gq;s 38 ¼4½ ds rgr fuyEcu dh dk;Zokgh dh tkosA

¶38

Jh pUnz’ks[kj esokMk] okMZ iap] xzke iapk;r] ?kk.ksjko] iapk;r lfefr nslwjh ftyk ikyh ds fo:) l{ke U;k;ky; }kjk vkjksi fojfpr gksus ds QyLo:i vkjksih okMZ iap dk mDr d`R; jktLFkku iapk;rh jkt vf/kfu;e 1994 dh /kkjk 38 ¼4½ ds rgr drZO;ksa ds fuoZgu esa vopkj o vidhfrZdj vkpj.k dh Js.kh esa vkrk gSaA

¶39

vr% jkT; ljdkj jktLFkku iapk;rh jkt vf/kfu;e 1994 dh /kkjk 38 ¼4½ ds rgr iznÙk 'kfDr;ksa dk iz;ksx djrs gq, ,rn~ }kjk mDr Jh pUnz’ks[kj esokMk] okMZ iap] xzke iapk;r] ?kk.ksjko] iapk;r lfefr nslwjh ftyk ikyh ds in ls rqjUr izHkko ls fuyfEcr djrh gS] rFkk vkns’k iznku djrh gS fd os fuyEcu dky esa ftyk ifj"kn ikyh ds fdlh dk;Z ,oa dk;Zokgh esa Hkkx ugha ysaxsA”

¶40

Hence, this Court is of the firm opinion that as a competent court has framed charges against the petitioner for offences punishable with imprisonment of more than 5 years, the consequence of placing the petitioner under suspension as warranted by Section 38(4) of the Panchayati Raj Act was imminent and inevitable and the competent authority justifiably exercised powers conferred by Section 38(4) of the Rajasthan Panchayati Raj Act so as to place the petitioner under suspension,. It is firm opinion of this Court that the impugned order (Annexure4) dated 07.03.2018 does not suffer from any such grave or manifest illegality or irregularity so as to interfere therein while exercising the extraordinary writ jurisdiction conferred upon this Court by Article 226 of the Constitution of India.

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(6 of 6)

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[CW-4226/2018]

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Hence, the writ petition as well as stay application are dismissed as being devoid of merit.

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No order as to costs.

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(SANDEEP MEHTA),J

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Tikam/22

Chandrshekhar v. State and Ors.

Case brief

What is this about?

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Chandrshekhar v. State and Ors.

Case brief

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