Rajasthan High Court
Pankaj Mittal S/O Shri Shivcharan ... vs State Of Rajasthan on 16 December, 2021
Bench: Akil Kureshi, Uma Shanker Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 962/2021
Pankaj Mittal S/o Shri Shivcharan Lal Mittal, Aged About 42
Years, R/o Shahabad District Baran, Sarpanch (Under
Suspension) Gram Panchayat Shahabad, Panchayat Shahabad
District Baran (Raj.)
----Appellant
Versus
1. State Of Rajasthan, Through Secretary, And
Commissioner, Rural Development And Panchayati Raj
Department, Govt. Of Rajasthan, Secretariat, Jaipur
2. Additional Commissioner And Joint Secretary (Ii), Rural
Development And Panchayati Raj Department, Baran
3. Zila Parishad, Baran, Through Its Chief Executive Officer,
Baran
4. Vikas Adhikari, Panchayat Samiti Shahabad, District
Baran
----Respondents
For Appellant(s) : Mr. Mukesh Chauhan on behalf of
Mr. Abdul Kalam Khan
For Respondent(s) :
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE UMA SHANKER VYAS
Judgment
16/12/2021
This appeal is directed against the judgment of learned
Single Judge 22.09.2021 passed in Civil Writ Petition
No.13322/2020. Brief facts are that the appellant-original
petitioner was holding a post of Sarpanch of Gram Panchayat
Shahabad, District Baran. He was involved in a ACB trap case on
10.07.2020 where allegedly he was caught accepting bribe of
Rs.10,000/-. On 18.09.2020 the Assistant Secretary (Vigilance) of
(2 of 4) [SAW-962/2021]
Panchayati Raj had written to the petitioner informing him that
information regarding his involvement in the said case has been
received by the department. He should therefore appear in person
before the authority on 27.11.2020 for the purpose of enquiry
alongwith documents and evidence. On 09.10.2020 the petitioner
was suspended from the post of Sarpanch. This order he had
challenged before the learned Single Judge. By impugned
judgment his petition was dismissed on the ground that the
enquiry as envisaged under Section 38(1) of the Rajasthan
Panchayati Raj Act, 1994 (hereinafter to be referred as 'the said
Act') has been initiated and therefore it cannot be stated that the
order of suspension is in contravention of Section 38(4) of the said
Act.
Having heard learned counsel for the appellant and having
perused the documents on record we notice that under sub-
section (1) of Section 38 the Government has power by passing
an order in writing to remove a member including a Chairperson
or a Deputy Chairperson of a Panchayati Raj Institution after
giving an opportunity of being heard and holding such enquiry as
may be deemed necessary who, (a) refuses to act or becomes
incapable of acting as such or (b) is guilty of misconduct in the
discharge of duties or any disgraceful conduct. Sub-section (4) of
Section 38 provides that the State Government may suspend any
member including a Chairperson or a Deputy Chairperson of
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.
(3 of 4) [SAW-962/2021]
The State Government has framed the Rajasthan Panchayati
Raj Rules, 1996 (hereinafter referred to as 'the said Rules'). Rule
22 of the said Rules pertains to procedure of enquiry. Sub-rule
(1) of Rule 22 provides that 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.
Sub-rule (2) of Rule 22 further provides that 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 it shall frame definite charges and shall
communicate them in writing to the concerned person to carry
with such details as may be deemed necessary. Such person 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.
In terms of sub-section (4) of Section 38 of the said Act the
State Government has power to suspend a 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 for an
offence involving moral turpitude is pending trial in a court of law.
In this respect communication dated 18.09.2020 becomes
significant. As noted under this communication the Secretary
required the petitioner to remain present on 27.11.2020 in
connection with the complaint received against him of being
involved in a trap case. Thus the enquiry as envisaged under sub-
section (1) of Section 38 had already been initiated. The
(4 of 4) [SAW-962/2021]
procedure for conducting the entire enquiry as laid down in Rule
22 of the Rules should not be concluded without initiation of
enquiry as referred to in sub-section (4) of Section 38. Holding
and conducting entire enquiry would require framing of formal
charges against a person concerned and soliciting his response to
such charges. Nevertheless when we are dealing with the situation
of powers to suspend a person, the same are necessarily of
interim measure and of urgent character. Sub-section (4) of
Section 38 of the said Act does not envisage conduct of the whole
enquiry before power of suspension can be exercised.
Under the circumstances the learned Single Judge committed
no error. The appeal is dismissed.
(UMA SHANKER VYAS),J (AKIL KURESHI),CJ
KAMLESH KUMAR/N.GANDHI/2
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