Disposed

Bhupendra Singh Gurjar v. the State of Rajasthan

Rajasthan HC8 Aug 2024CW/10429/2024

Case brief

AI extract

What is this about?

The Court upheld the suspension of a Sarpanch under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 despite no pre-suspension hearing. However, the departmental enquiry report and subsequent guilt order were quashed for denying the respondent a reasonable opportunity of hearing as directed by the Court. The respondent was allowed to continue as Chairman of the Municipal Board.

What did the court decide?

Quashed and set aside the order dated 12.07.2023 holding the respondent guilty; respondent permitted to continue as Chairperson of the Municipal Board.

Bhupendra Singh Gurjar Vs the State of Rajasthan — Landlord and Tenant | Rajasthan HC (2024)

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[2024:RJ-JD:32383]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 18334/2023

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Bhupendra Singh Gurjar S/o Shri Brij Lal Gurjar, Aged About 36 Years, Resident Of Udaipur Road, Mawli, District Udaipur.

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----Petitioner

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Versus

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

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The Additional Commissioner And Joint Secretary (Inquiry), Department Of Rural Development And Panchayati Raj, Secretariat, Rajasthan, Jaipur.

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The Divisional Commissioner, Udaipur.

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The Chief Executive Officer, Udaipiur, District Udaipur.

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Hemandra Jat @ Hemraj Jat S/o Shri Chuturbhuj Jat, Resident Of Naiyon Ka Mohalla, Mavli, District Udaipur.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 11717/2023

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Hemendra Jat @ Hemeaj Jat S/o Shri Chuturbhuj Jat, Aged About 46 Years, Naiyon Ka Mohalla Mavli, District Udaipur At Present Sarpanch, Gram Panchayat Mavli, District Udaipur (Raj.).

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Hemendra Jat, Aged About 46 Years, Naiyon Ka Mohalla

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----Petitioners

¶18

Versus

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

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The Additional Commissioner And Joint Secretary (Inquiry), Department Of Rural Development And Panchayati Raj, Secretariat, Rajasthan, Jaipur.

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The Divisional Commissioner, Udaipur.

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The Chief Executive Officer, Udaipur, District Udaipur.

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----Respondents

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And

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S.B. Civil Writ Petition No. 10429/2024

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Bhupendra Singh Gurjar S/o Shri Brij Lal Gurjar, Aged About 38 Years, Resident Of Udaipur Road, Mavli, District Udaipur (Raj.).

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----Petitioner

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Versus

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The State Of Rajasthan, Through The Secretary,

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Department Of Rural Development And Panchayat Raj, Secretariat, Rajasthan, Jaipur.

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The Additional Commissioner And Joint Secretary (Inquiry), Department Of Rural Development And Panchayat Raj, Secretariat, Rajasthan, Jaipur.

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The Director Cum Special Secretary, Directorate, Local Self Department, Jaipur.

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The Divisional Commissioner, Udaipur.

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The District Collector, Udaipur.

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The Deputy Director (Regional), Local Self Department, Udaipur.

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The Chief Executive Officer, Jila Parishad Udaipur, District Udaipur.

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Hemandra Jat @ Hemraj Jat S/o Shri Chuturbhuj Jat, Resident Of Naiyon Ka Mohalla, Mavli, District Udaipur.

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----Respondents

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For Petitioner(s)	:	Mr. Sanjay Nahar for Mr. Bhupendra Singh Gurjar
For Respondent(s)	:	Mr. Manish Patel, AAG with Ms. Neelam Sharma
		Mr. Monal Chugh for Mr. Rajesh Panwar, AAG
		Mr. J.S. Bhaleria for Mr. Hemendra Jat
		@ HemrajJat

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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08/08/2024

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The present three writ petitions arise out of the same cause of action and hence, were heard together and are being decided by this common order.

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The facts are that Mr. Hemendra Jat @ Hemraj Jat (petitioner in Writ Petition No.11717/2023, respondent No.5 in Writ Petition No.18334/2023 and respondent No.8 in Writ Petition No.10429/2024)[hereinafter referred to as ‘the respondent’] was elected as Sarpanch of Gram Panchayat Mavli, District Udaipur in

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the year 2020. In the year 2022, a complaint by one Shakeel Ahmed was filed against him, complaining of a demand of bribe for issuance of a patta in his name. On the said complaint, trap proceeding by the Anti Corruption Bureau, Udaipur was undertaken and FIR No.164/2022 was registered against him for the offence under Section 7 of the Prevention of Corruption Act, 1988 (‘the Act of 1988’). The respondent was arrested qua the said FIR and was released on bail on 11.05.2022. Because of the criminal case been registered against the respondent, he was suspended vide order dated 23.05.2022 and on the very next date, i.e. 24.05.2022, the charge of Sarpanch was handed over to Up-Sarpanch Bhupendra Singh Gurjar (petitioner in Writ Petitions No.18334/2023, 10429/2024 and respondent No.5 in Writ Petition No.11717/2023)[hereinafter referred to as ‘the petitioner’].

¶52

Respondent Mr. Hemendra Jat preferred a Writ Petition (S.B. Civil Writ Petition No.7964/2022) against the order dated 23.05.2022 whereby he was suspended. The said writ petition was disposed of vide order dated 30.05.2023 with the following directions:

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“13. Having regard to allegation involved, instead of interfering in the case and pronouncing upon the other arguments advanced by Mr. Kotwani, with the consent of both the counsel, instant writ petition is disposed of with the direction to the respondent – State to appoint enquiry officer, if not appointed till today, as early as possible, preferably within a period of two weeks from today with a corresponding direction to the enquiry officer to conclude the enquiry by 30.07.2023.

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14. The petitioner will be given due opportunity of hearing in accordance with law and he shall extend his full cooperation for ensuring that the enquiry is completed within the above time frame.

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15. In case the enquiry officer does not complete the enquiry by 30.07.2023, without there being a deliberate attempt to protract the proceedings by the petitioner, then, the suspension order dated 23.05.2022 shall stand revoked and petitioner’s position as Sarpanch shall be restored. The enquiry in question shall nevertheless continue and in the period interregnum the petitioner shall not take any decision unilaterally on any financial matter until he is exonerated.

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16. Stay petition also stands disposed of accordingly.”

¶60

In pursuance to the order dated 30.05.2023, an Enquiry Officer was appointed by the State Department who completed the enquiry within the stipulated period and submitted the Enquiry Report dated 03.07.2023 to the Divisional Commissioner, Udaipur. In pursuance to the said Enquiry Report, vide his order dated 12.07.2023, the Divisional Commissioner, while exercising his powers under Section 38 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act of 1994’) proceeded on to hold the respondent guilty of misconduct in discharge of his duties and also of disgraceful conduct.

¶61

The respondent challenged the order dated 12.07.2023 by way of present Writ Petition No.11717/2023. Vide interim order dated 05.10.2023 in the said writ petition, the effect and operation of the impugned order dated 23.05.2022 (whereby the respondent was suspended) was stayed.

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The order of suspension dated 23.05.2022 having been stayed, the respondent Department, vide order dated 10.11.2023 proceeded on to withdraw the execution of the suspension order dated 23.05.2022.

¶66

Aggrieved of the order dated 10.11.2023, petitioner Bhupendra Singh Gurjar who had been handed over the charge of Sarpanch, challenged the same vide present Writ Petition No.18334/2023. The petitioner also preferred an application for impleadment in Writ Petition No.11717/2023 preferred by the respondent, which came to be allowed and he was permitted to be impleaded as a party respondent in the said writ petition.

¶67

However, meanwhile, the State Government declared the Gram Panchayat, Mavli as Municipal Board, Mavli vide gazette notification dated 17.07.2023. The Gram Panchayat having been notified as a Municipal Board, the competent authority of the Local Self Department handed over the charge of the Chairman, Municipal Board, Mavli to the respondent vide order dated 20.06.2024. The petitioner, being aggrieved of the said order, challenged the same vide present Writ Petition No.10429/2024.

¶68

Mr. Sanjay Nahar, learned counsel for the petitioner (Bhupendra Singh Gurjar) submitted that firstly , the order dated 10.11.2023 whereby the respondent Department proceeded on to revoke the suspension of the respondent is totally illegal as vide the interim order dated 05.10.2023, the Court had only stayed the operation of the order dated 23.05.2022 and had nowhere directed to revoke/withdraw the order itself. Secondly, the order dated 12.07.2023 was passed after an enquiry been conducted

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against the respondent in compliance of the order dated 30.05.2023 passed by the Court and vide the said order dated 12.07.2023, the respondent was held guilty in terms of Section 38 of the Act of 1994. Therefore too, his suspension could not have been revoked.

¶73

Learned counsel further submitted that pendency of a criminal proceeding and charge-sheet having been filed against the respondent is not in dispute and hence, even otherwise, he stood disqualified. He submitted that subsequent order dated 20.06.2024 is in total contravention to Section 24(iii) of the Rajasthan Municipalities Act, 2009 (‘the Act of 2009’) which specifically provides that a person shall be disqualified for being chosen a member of a Municipality if he is under trial in a 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. Learned counsel submitted that Section 39(1)(c) of the Act of 2009 provides for removal of a member of a Municipality if after his election, he has incurred any of the disqualification mentioned in Section 24 of the Act of 2009. Admittedly, a charge-sheet having been filed against the respondent for an offence under Section 7 of the Act of 1988, he was under trial and hence, had evidently acquired disqualification in terms of Section 24 of the Act of 2009 and ought to have been removed in terms of Section 39 of the Act of 2009.

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Learned counsel for the petitioner further submitted that the interim order dated 05.10.2023 was also obtained by the respondent while concealing the specific fact of a charge-sheet

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having already been filed and cognizance having been taken against him in the criminal matter. Had the said facts been brought to the knowledge of the Court at that point of time, the interim order dated 05.10.2023 would not have been passed.

¶79

With the above submission, learned counsel submitted that the order dated 10.11.2023 passed in pursuance to the interim order dated 05.10.2023, having been obtained malafidely while concealing the facts, deserves to be quashed and set aside. 11. So far as the order dated 20.06.2024 is concerned, learned counsel submits that the same also deserves to be quashed in view of the disqualification in terms of Section 24 of the Act of 2009 having been acquired by the respondent. 12. Per contra, Mr. J.S. Bhaleria, learned counsel appearing for the respondent (Hemendra Jat) submitted that the order dated 10.11.2023 was rightly passed as firstly , suspension order dated 23.05.2022 was passed without affording any opportunity of hearing to the respondent. Secondly , the order dated 12.07.2023 whereby the respondent was held to be guilty in terms of Section 38 of the Act of 1994, was also bad in the eyes of law as despite specific directions of this Court to grant a reasonable opportunity of hearing to the respondent, he was not afforded the same. Further, in the enquiry proceedings, no document whatsoever, in evidence, was even furnished by the Department and the Enquiry was concluded only on the premise of criminal proceeding being pending against the respondent.

¶80

Learned counsel further submitted that evidently, the criminal proceedings as well as the departmental enquiry were

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both pertaining to the same charges and hence, the respondent could not have been subjected to double jeopardy.

¶85

So far as the pendency of the criminal proceedings is concerned, learned counsel submitted that the respondent had not been convicted in the same and was just under trial. Pendency of a criminal proceeding cannot be assumed to result into a definite conviction.

¶86

Learned counsel further submitted that once suspension order dated 23.05.2022 was stayed by the Court, the State Department was under an obligation to handover the charge to the respondent which it rightly did. The Gram Panchayat, Mavli having been declared to be the Municipal Board, would not change the situation in any manner as the respondent, who was required to be handed over the charge of Sarpanch, was now to be handed over the charge of the Chairman. The State Department, vide order dated 20.06.2024, handed over the charge of the Chairman of the Municipal Board to the respondent which was totally in consonance with law and hence, the said order does not deserve any interference by this Court.

¶87

Learned Additional Advocate General Mr. Manish Patel appearing on behalf of the respondent State submitted that the State Department proceeded on to comply with the orders of the Court as and when issued and hence, cannot be accused of any arbitrariness or malafides. Once the suspension order dated 23.05.2022 was stayed by the Court, the State was under an obligation to handover the charge of Sarpanch to the respondent and of Chairman of the Municipal Board, in the changed

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circumstances. Hence, the action of the State Department does not deserve any interference.

¶92

Heard the Counsels and perused the record.

¶93

First issue which arise in the present writ petitions isWhether the suspension order dated 23.05.2022 was legal

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and good in the eyes of law ?

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It is undisputed on record that FIR No.164/2022 was registered against the respondent Hemendra Jat for an offence under Section 7 of the Act of 1988. Section 38(4) of the Act of 1994 prescribes as under :

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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-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.”

¶97

A bare perusal of the above provision makes it clear that the State Government is within its 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.

¶98

Admittedly, a charge-sheet in terms of Section 38(1) of the Act of 1994 had been served on the respondent on the date of suspension, i.e. 23.05.2022. Meaning thereby, in the present

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matter, wherein an enquiry in terms of Section 38(1) of the Act of 1994 had been initiated against the respondent, he could very well have been suspended in terms of Section 38(4) of the Act of 1994. 19. So far as grant of opportunity of hearing before the suspension is concerned, as held in Ramswaroop Vs. State, 2000 DNJ [Raj.] 70 and AIR 2017 Rajasthan 109; Rajesh Devi Vs. State of Rajasthan (decided on 14.02.2017) it is not mandatory to give opportunity of hearing prior to passing of the suspension order under Section 38(4) of the Act of 1994.

¶103

Issue No.1 is hence answered in the manner that suspension order dated 23.05.2022 is good in the eyes of law.

¶104

The second issue which arise is -

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Whether the order dated 12.07.2023 is in consonance with law and with directions passed by the Court vide order dated 30.05.2023 ?

¶106

Vide order dated 30.05.2023 passed in Writ Petition No.7964/2022, a specific direction was given by this Court to appoint an Enquiry Officer and complete the enquiry till 30.07.2023. Vide the said order, a specific direction to afford an opportunity of hearing to the respondent was also given. However, a bare perusal of the Enquiry Report dated 03.07.2023 makes it clear that on 20.06.2023, a prayer was made by the respondent for grant of fifteen days time to file reply qua the charges, in the enquiry proceedings. But the said prayer was declined/refused by the Enquiry Officer on the premise that the respondent shall have an opportunity to be heard by the criminal Court wherein the proceedings are pending against him. The said observation of the

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Enquiry Officer clearly reveals that no reasonable opportunity of hearing was granted to the respondent in compliance of the order dated 30.05.2023 as passed by this Court. In view of the same, the order dated 12.07.2023 whereby the respondent was held guilty on basis of the enquiry report dated 03.07.2023 cannot be affirmed.

¶111

True it is that in Writ Petition No.11717/2023 preferred by the respondent on 14.08.2023, challenging the order dated 12.07.2023, the facts of the charge-sheet having been filed against him in the criminal proceedings and the cognizance having been taken against him by the criminal Court, were clearly concealed.

¶112

Admittedly, the charge-sheet in the criminal matter was filed against the respondent on 28.12.2022, that is, much prior to the passing of the order dated 12.07.2023 or the interim order dated 05.10.2023 by this Court.

¶113

But then, it is evident that the order dated 12.07.2023 was not passed on basis of the charge-sheet having been filed against the respondent. The enquiry proceedings only mentioned about the FIR having been filed against the respondent. It took no note of the charge-sheet having been filed or the cognizance having been taken against the respondent. Therefore too, the order dated 12.07.2023 cannot be affirmed.

¶114

The second issue is hence answered in the manner that order dated 12.07.2023 not being in conformity with the directions of this Court vide order dated 30.05.2023, is hereby quashed and set aside.

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[CW-18334/2023]

(12 of 15)

The third issue which now arise is -

¶119

Whether the suspension order dated 23.05.2022 could have been revoked/withdrawn by the State Government in light of interim order dated 05.10.2023 ?

¶120

Admittedly, vide interim order dated 05.10.2023, the suspension order dated 23.05.2022 had been stayed but it nowhere directed for revocation or withdrawal of the order dated 23.05.2022. Order dated 10.11.2023 as passed by the State Authority, read as under :

¶121

^^Lo;kÙk “kklu foHkkx dh vf/klwpuk fnukad 17-07-2023 ds }kjk xzke iapk;r ekoyh dks uxjikfydk ekoyh esa ifjofrZr gks tkus ,oa mDr fuyEcu vkns”k fnukad 23-05-2022 ds fo:) ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj esa nk;j ,l ch flfoy fjV fiVh”ku la[;k 11717@2023 gsesUnz tkV cuke jktLFkku jkT; o vU; esa ikfjr vkns”k fnukad 05-10-2023 dh ikyuk esa foHkkxh; fuyEcu vkns”k Øekad 2014 fnukad 23-05-2022 dh fØ;kfUofr dks izR;kgkfjr fd;k tkrk gSA

¶122

;g vkns”k l{ke Lrj ls vuqeksfnr gSA**

¶123

In the specific opinion of this Court, the order dated 10.11.2023 cannot be termed to be an order

¶124

revoking/withdrawing the suspension order dated 23.05.2022. What can be understood by a bare reading of the order dated 10.11.2023 is that, vide the said order, execution of the order dated 23.05.2022 had been withdrawn at that stage, in light of the interim order passed by this Court. The order dated 10.11.2023 nowhere speaks of withdrawal or revocation of the order itself but directs only for the withdrawal of execution of the said order dated 23.05.2022.

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Issue No.3 is hence, answered in the manner that the challenge of the petitioner to the order dated 10.11.2023 is fallacious as vide the said order, the order dated 23.05.2022 cannot be said to have been revoked or withdrawn.

¶129

In view of the above observations, as this Court has already held the order dated 23.05.2022 to be valid, it is further held that the said order having not been revoked or withdrawn, remains in effect.

¶130

Coming on to the fourth issue -

¶131

Whether the charge of the Chairman, Municipal Board could have been handed over to the respondent vide order dated 20.06.2024 ?

¶132

This Court is of the clear view that the same was in total consonance with the interim order dated 05.10.2023 passed by this Court. Vide order dated 05.10.2023, the effect and operation of the order dated 23.05.2022 had been stayed. Meaning thereby, the Department was under an obligation to put the order dated 23.05.2022 at a standby and handover the charge of the Sarpanch to the respondent. As meanwhile, the Gram Panchayat had been notified to be a Municipal Board, the necessary consequence ipso facto followed and the respondent was entitled to be handed over the charge of the Chairman of the Municipal Board.

¶133

Therefore, Issue No.4 is answered in the manner that order dated 20.06.2024 being perfectly valid, does not deserve any interference by this Court.

¶134

Coming on to the fifth and the last issue –

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Whether the respondent could have been suspended in terms of Section24(iii) of the Act of 2009, having allegedly acquired the subsequent disqualification ?

¶139

So far as the alleged subsequent disqualification in terms of Section 24(iii) of the Act of 2009 having been acquired by the respondent is concerned, admittedly, no inquiry indicating the charge in terms of Section 24(iii) has been conducted against the respondent. Section 39 of the Act of 2009 pertains to the removal of a member on the ground of his having incurred disqualification in terms of Section 24. Evidently, the said provision does not provide for suspension of a member. It pertains to removal of a member and that too, after an enquiry having been conducted in terms of proviso to Section 39 of the Act of 2009.

¶140

Admittedly, no charge-sheet in terms of Section 24 of the Act of 2009 was ever served on the respondent and no enquiry in terms of Section 39 was undertaken. Therefore, the ground as raised by the counsel for the petitioner, does not hold much water and the issue is decided in the manner that the respondent could not have been suspended in terms of the provisions of Act of 2009 because of the alleged subsequent disqualification, without any enquiry being held qua the said disqualification.

¶141

In view of the overall analysis, it is hereby held that the order dated 23.05.2022 whereby the respondent was put under suspension, was rightly passed at that point of time. But then, the order dated 12.07.2023 whereby the respondent was held guilty of misconduct, been passed without affording any opportunity of hearing to him, is hereby quashed and set aside. The subsequent

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orders dated 10.11.2023 & 20.06.2024 being in conformity with law does not deserve interference.

¶146

As a consequence, the respondent will continue to function as Chairperson of the Municipal Board. However, the State Government/competent authority shall be under a liberty to undertake an enquiry in terms of Section 39 of the Act of 2009 against the respondent, if it so desires.

¶147

With the above observations, the writ petitions are disposed

¶148

of .

¶149

Stay petitions and the pending applications, if any, also stand

¶150

disposed of .

¶151

(REKHA BORANA),J

¶152

52,53 &311-viji/-

Bhupendra Singh Gurjar v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

Bhupendra Singh Gurjar v. the State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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