Dismissed

Smt. Santosh Kumari v. State of Rajasthan and Ors.

Rajasthan HC12 Jul 2018SAW/592/2018

Case brief

AI extract

What is this about?

This judgment addresses challenges by elected Panchayati Raj representatives regarding their suspension following the filing of charge sheets for offences like cheating and forgery. The Court held that suspension under Section 38(4) is valid when criminal proceedings for offences involving moral turpitude are pending post-election, distinguishing it from pre-election disqualification disputes.

What did the court decide?

Appeals and writ petition dismissed. Suspension orders held valid pending outcome of criminal trials.

Smt. Santosh Kumari Vs State of Rajasthan… — Pension and Retirement Benefits | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN JODHPUR

¶2

D.B. Spl. Appl. Writ No. 592/2018

¶3

Smt. Santosh Kumari W/o Shri Chandra Shekhar, Aged about 40 years, R/o Near Police Chowki, Village Ghaneraw, Tehsil Desuri, District Pali, Rajasthan.

¶4

----Appellant

¶5

Versus

¶6

State Of Rajasthan through its Principal Secretary, Rural Development and Panchayati Raj Department, Government of Rajasthan, Secretariat, Jaipur.

¶7

The Deputy Secretary-cum-Commissioner (Enquiry), Department of Rural Development and Panchayati Raj, Government of Rajasthan, Jaipur.

¶8

The Chief Executive Officer, Zila Parishad, Pali.

¶9

The Vikas Adhikari, Panchayat Samiti, Desuri (Pali).

¶10

----Respondents

¶11

Connected With

¶12

D.B. Spl. Appl. Writ No. 98/2018

Oma Ram @ Om Prakash

----Appellant

Versus

State And Ors

----Respondent

D.B. Spl. Appl. Writ No. 565/2018

Smt.Jeena Devi Regar

----Appellant

Versus

State Of Rajasthan And Ors.

¶23

----Respondent

¶24

D.B. Spl. Appl. Writ No. 599/2018

Ram Dayal

----Appellant

Versus

State Of Rajasthan And Ors.

¶29

----Respondent

¶30

D.B. Spl. Appl. Writ No. 608/2018

Champa Devi

----Appellant

Versus

State Of Rajasthan And Ors.

----Respondent

[SAW-592/2018 Bunch]

(2 of 14)

D.B. Spl. Appl. Writ No. 624/2018

Girdhari Ram

----Appellant

Versus

State Of Rajasthan And Ors.

¶43

----Respondent

¶44

Pyara Singh

¶45

State Of Rajasthan And Ors.

¶46

----Appellant Versus ----Respondent

Kheema Ram Choudhary

----Appellant

Versus

State Of Rajasthan And Anr.

----Respondent

Nand Lal Meena

----Appellant

Versus

State Of Rajasthan And Ors.

----Respondent

Smt. Ratani Bai

----Appellant

Versus

State And Ors

----Respondent

Kalawati

----Appellant

Versus

State Of Rajasthan And Ors.

----Respondent

[SAW-592/2018 Bunch]

(3 of 14)

D.B. Civil Writ No. 9467/2017

Smt. Nisha Meena

----Petitioner

Versus

State Of Rajasthan And Ors.

¶74

----Respondent

¶75

D.B. Spl. Appl. Writ No. 854/2018

¶76

Smt. Saroj

¶77

----Appellant Versus ----Respondent D.B. Spl. Appl. Writ No. 902/2018 ----Appellant Versus ----Respondent

¶78

State Of Rajasthan And Ors.

¶79

Tara Chand

¶80

State And Ors

¶81

D.B. Spl. Appl. Writ No. 272/2018

¶82

Smt. Narayani Devi

¶83

State Of Rajasthan	----Appellant Versus And Ors. ----Respondent
For Appellant(s)	: Mr.G.R.Punia, Sr.Advocate assisted by Mr.Rajesh Punia Mr.Anand Purohit, Sr.Advocate with Mr.Kapil Purohit, Mr.Ashish Somani Mr.Kuldeep Mathur, Mr.Lokesh Mathur, Mr.J.S.Bhaleria, Mr.Sanjay Nahar Mr.H.S.Sidhu, Mr.Sunil Joshi, Mr.S.P.Joshi, Mr.Prateek Charan
For Respondent(s)	: Mr.Rajesh Panwar, A.A.G. with Mr.Ayush Gehlot Mr.Manish Patel, A.G.C. Mr.K.K.Bissa Mr.Kshamendra Mathur, Mr.Moti Singh

¶84

[SAW-592/2018 Bunch]

¶85

(4 of 14)

¶86

HON'BLE THE CHIEF JUSTICE MR. PRADEEP NANDRAJOG HON'BLE MR. JUSTICE DINESH MEHTA

¶87

Judgment

¶88

Reserved on 10/07/2018 Pronounced on 12/07/2018

¶89

Per Hon’ble the Chief Justice

¶90

At the outset we record that at the hearing held on 10.7.2018 Mr.Anand Purohit, Senior Counsel made a statement that challenge to the vires of Sub-section(4) of Section 38 of the Rajasthan Panchayati Raj Act, 1994 laid in D.B.Civil Writ Petition No.9467/2017 is given up and he adopted the arguments advanced by Mr.G.R.Punia, Senior Counsel in the connected appeals.

¶91

In the captioned appeals the appellants were elected as Panch or Sarpanch of different Gram Panchayats or member of Zila Parishad in the State of Rajasthan in the elections conducted in February, 2015. Required by Clause (a) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 to have attained the age of 21 years and as per Clause (r) and (t), to have passed Secondary school examination or passed Class-VIII (depending upon whether the person was to become a member of a Zila Parisahd or a Panchayat Samiti or a Sarpanch or a Panch), the appellants submitted documents in proof of they being eligible to contest elections. They were successful and were elected as Panch or Sarpanch.

¶92

Complaints were made to the police authorities regarding the certificates produced by the appellants. These complaints were made after the elections were held and results were declared. After investigation the police filed charge-sheets

¶93

[SAW-592/2018 Bunch]

¶94

(5 of 14)

¶95

alleging, amongst others, offences punishable under Sections 420/468/471 IPC being committed by the appellants. Cognizance was taken and charges have been framed.

¶96

The appellants were placed under suspension. They challenged the orders suspending them. The writ petitions filed have been dismissed.

¶97

We note the statutory provisions applicable before settling the question of law which was argued before this Bench on 10.7.2018.

¶98

Section 19 of the Rajasthan Panchayati Raj Act, 1994 prescribes the qualifications for election as a Panch or a member of a Panchayati Raj Institution. Clauses (a) (gg), (r) and (t) being relevant (denuding reproduction of the other clauses) Section 19 reads as under:-

¶99

“ 19. Qualifications for election as a Panch or a member.- Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person-

¶100

(a) is disqualified by or under any law for the time being in force for the purposes of election to the Legislature of the State of Rajasthan:

¶101

Provided that no person shall be disqualified on the ground that he is less than 25 years of age if he has attained the age of 21 years:

¶102

(gg) is under trial in the competent Court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more.

¶103

(r) in case of a member of a Zila Parishad or a Panchayat Samiti, has not passed Secondary school examination of the Board of Secondary Education, Rajasthan or of an equivalent Board.

¶104

(t) in case of a Sarpanch of a Panchayat other than in a Scheduled Area, has not passed Class VIII from a School.”

¶105

[SAW-592/2018 Bunch]

¶106

(6 of 14)

¶107

Section 38 under the caption: “ Removal and Suspension ”

¶108

reads as under:-

¶109

“ 38. Removal and Suspension.- (1) The State Government may, by order in writing and after giving him an 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-

¶110

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

¶111

(b) is guilty of misconduct in the discharge of duties or any disgraceful conduct :

¶112

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.

¶113

(2) The Chairperson or the Deputy Chairperson removed under Sub-sec. (1) may at the discretion of the State Government also be removed from the membership, of any of the Panchayati Raj Institution concerned.

¶114

(3) The member or the Chairperson or the Deputy Chairperson removed under Sub-sec. (1) or against whom finding have been recorded under the proviso to that sub-sec, shall not be eligible for being chosen under this Act 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.

¶115

(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.

¶116

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 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 two-third of the members present and voting:

¶117

Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the

¶118

[SAW-592/2018 Bunch]

¶119

(7 of 14)

¶120

completion of a tenure of two years by a Panch or a Sarpanch, as the case may be.

¶121

(5) The decision of the State Government on any matter arising under this section shall, subject to any order made under Sec. 97, be final and shall not be liable to be questioned in any Court of law.”

¶122

Section 39 under the caption: “ Cessation of membership ” reads as under:-

¶123

“ 39. Cessation of membership.- (1) A member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he-

¶124

(a) is or becomes subject to any of the disqualification specified is Sec. 19; or

¶125

(b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or

¶126

(c) is removed from the membership; or

¶127

(d) resigns from the membership; or

¶128

(e) dies; or

¶129

(f) fails to make the prescribed oath or affirmation of the office or membership within three months from the date of election or appointment.

¶130

(2) Whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-sec. (1), the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member.

¶131

[xxx] Provided deleted.

¶132

Provided [xxx] that until a declaration under this sub-section is made he shall continue to hold his office.”

¶133

Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 reads

¶134

as under:-

¶135

“Rule 22. Procedure of enquiry. - (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.

¶136

[SAW-592/2018 Bunch]

¶137

(8 of 14)

¶138

(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 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.

¶139

(3) State Government may after expiry of prescribed period and considering such written statement, appoint an Enquiry Officer and also nominate any person to present the case before Enquiry Officer on behalf of the State.

¶140

(4) Enquiry Officer shall consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. Opportunity of cross examination of witness shall be provided to the opposite side.

¶141

(5) Enquiry Officer shall prepare a report on conclusion of enquiry, recording his findings on every charge as proved or not proved or partly proved along with the reasons therefor, and submit it to the State Government for final decision.

¶142

(6) The provisions of the Rajasthan Disciplinary Proceedings (Summoning of witnesses and production of documents) Act, 1959 (Rajasthan Act No. 28 of 1959) and the rules made thereunder shall also apply mutatis mutandis to enquiries being conducted against the Chairperson, the Deputy Chairperson or Member of Panchayati Raj Institution as the case may be, under these rules.

¶143

(7) State Government shall consider the findings of enquiring Officer and after giving him opportunity of hearing, may either exonerate, or remove such Chairperson, Deputy Chairperson or Member from the Office or pass appropriate orders. In case of removal, it shall also be published in official gazette

¶144

Provided that findings shall be recorded against them if term of election of such Panchayati Raj Institution has already expired.”

¶145

With reference to the aforesaid statutory provisions the legal issue which was urged was that if an act constituting an offence related to qualification to be elected as a Panch or a member of the Panchayati Raj Institution was committed prior to the date of offering candidature at the ensuing election, it being a preelection dispute, would require the same to be decided by way of

¶146

[SAW-592/2018 Bunch]

¶147

(9 of 14)

¶148

an election petition and could not form the subject matter of action under Section 38 of the Act.

¶149

Learned counsel for the appellants relied upon the majority view taken by the Full Bench of this Court in the decision reported as 2007(2) DNJ (Raj.) 858 Sameera Bano (Smt.) & ors. V/s State of Rajasthan & ors.

¶150

The stand of the respondents was that the issue is squarely covered by a Division Bench judgment dated 11st August, 2017 in D.B.Special Appeal Writ No.955/2017 Satish Valmiki V/s State of Rajasthan & ors.

¶151

Before we discuss the case law, the statutory provisions which we have noted hereinabove need to be interpreted and the first rule of interpretation is that if the language of a statute is clear and admits of no two meaning or interpretations, the plain language has to be given effect to.

¶152

Eligibility to contest election as a Panch or Sarpanch requires the attaining of the age of 21 years and in case of member of a Zila Parishad or a Panchayat Samiti to have passed the Secondary school examination and in case of a Sarpanch or a Panch to have passed Class VIII. In other words a document recognized by law would have to be submitted by the proposed candidate in proof of age and educational qualifications.

¶153

Since in the instant case the dispute arises out of these documents, it is apparent that the act constituting the offence if the document being procured or fabricated. This would obviously be before the date of the election.

¶154

The substantive power of removal and suspension is under Section 38 and concerning removal it is sub-section (1) of Section 38 which is attracted; and suffice it to state would embrace an

¶155

[SAW-592/2018 Bunch]

¶156

(10 of 14)

¶157

allegation that the person has refused to act or has become incapable of acting as a member of a Panchayati Raj Institution or is guilty of misconduct in the discharge of duties as a member of a Panchayati Raj Institution or has committed any other act which would be a disgraceful conduct.

¶158

The power of suspension is under sub-section(4) of Section 38 and has two distinct source of power to suspend. The first is where an enquiry is initiated under sub-section(1) and the second is when any criminal proceedings for an offence involving moral turpitude are pending trial in a Court of law.

¶159

Rule 22 lays down the procedure for an enquiry to be conducted where action is proposed under sub-section (1) of Section 38.

¶160

The Division Bench judgment in Satish Valmiki’s case proceeds on a straight line reasoning as aforesaid and holds that a plain reading of sub-section (4) of Section 38 makes it very clear and power of suspension flows from the fact that a criminal proceeding in regard to an offence involving moral turpitude is pending trial in a Court of law against a person who is elected as a Panch or a Sarpanch when the order of suspension is passed.

¶161

The binding ratio of the Division Bench judgment was sought to be diluted, as noted above, by placing reliance upon the majority view taken by the Full Bench of this Court.

¶162

The decision is in Sameera Bano’s case. In the State of Rajasthan a cut off date 27.11.1995 was prescribed as a disqualification if after said date a person had more than two children. Sameera Bano had contested election of Sarpanch of Gram Panchayat Bheemsar and the Chief Executive Officer, Zila Parishad, Jhunjhunu served her with a notice proposing to hold

¶163

[SAW-592/2018 Bunch]

¶164

(11 of 14)

¶165

an enquiry whether she had more than two children born after 27.11.1995. She questioned the initiation of the enquiry. The Division Bench noted the then existing relevant provisions of Section 19 of the Act as under:-

¶166

“19. Qualifications for election as a Panch or a member:- Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person -

¶167

(1) has more than two children; …..... …....... …......... Provided that -

¶168

(iv) the birth during the period from the date of commencement of this Act, hereinafter in this proviso referred to as the date of such commencement, to 27th November, 1995, of an additional child shall hot be taken into consideration for the purpose of the disqualification mentioned in Clause (1) and a person having more than two children (excluding the child, if any, born during the period from the date of such commencement to 27th November, 1995) shall not be disqualified under that clause for so long as the number of children he had on the date of commencement of this Act does not increase;

¶169

Explanation.-For the purpose of Clause (1) of Section 19, where the couple has only one child from the earlier delivery or deliveries on the date of commencement of this Act and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one entity.”

¶170

The Division Bench thereafter noted Section 39 as it existed

¶171

in the statute book concerning cessation of membership. It reads as under:-

¶172

“39.Cessation of membership.-(1) A member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he-

¶173

(a) is or becomes subject to any of the disqualifications specified in Section 19; or

¶174

(b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or

¶175

(c) is removed from the membership; or

¶176

[SAW-592/2018 Bunch]

¶177

(12 of 14)

¶178

(d) resigns from the membership; or

¶179

(e) dies; or

¶180

(f) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment.

¶181

(2) Whenever it is made to appear to the Competent Authority that a member has become ineligible to continue to be a member for any of the reasons specified in Sub-section (1), the Competent Authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member:

¶182

Provided that until a declaration under this sub-section is made, he shall continue to hold his office.”

¶183

The Division Bench noted the arguments of the respondent that the use of the words “ is or becomes” in Clause (a) of Section 39 mean that the issue of eligibility or ineligibility to contest election could be decided in exercise of power under Section 39.

¶184

The majority held that a pre-election disqualification could be adjudicated only by way of an election petition and not by way of an enquiry as per Rule 23 relatable to Section 39. 25. Now, the disqualification concerning number of children born after 27.11.1995 related to a fact and not an offence, much less an act cognizance whereof had to be taken by a Court. In Sameera Bano’s case the issue was entirely different and a different provision came up for interpretation.

¶185

Thus, the law declared in Sameera Bano’s case has no precedential value.

¶186

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

¶187

[SAW-592/2018 Bunch]

¶188

(13 of 14)

¶189

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.

¶190

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.

¶191

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.

¶192

Thus, we find no merit in the appeals and the writ petition which are liable to be dismissed, but with a caveat. In such cases where the charge framed by the Court of competent jurisdiction has been set aside by the superior Court, the ground for

¶193

[SAW-592/2018 Bunch]

¶194

(14 of 14)

¶195

suspension being removed the competent authority is directed to withdraw the suspension order and for which the candidate placed under suspension would file a representation.

¶196

The appeals and the writ petition are dismissed.

¶197

(DINESH MEHTA),J

¶198

(PRADEEP NANDRAJOG),CJ

¶199

Parmar

Smt. Santosh Kumari v. State of Rajasthan and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Santosh Kumari v. State of Rajasthan and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Man.Committee, Sh. Hanwant Sr.S.S.and Ors. Vs Raj. Non-Government Edu.Inst. Tri.and Ors.

Gopal Tripathy and Anr. Vs the Urban Improvement Trust,Udaipur Andanr

Julfkar and Anr. Vs Manuzura and Anr.

State and Anr. Vs Om Prakash

Oma Ram @ Om Prakash Vs State of Rajasthan and Ors.

Ram Dayal Vs State of Rajasthan and Ors.