PANKAJ MITTAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The matter came up for orders on the second stay application, however, looking to the nature of controversy, the writ petition itself was heard finally on merits.

(2.) By way of instant writ petition, petitioner has averred that he was elected as a Sarpanch of Gram Panchayat Shahabad, Panchayat Samiti Shahabad, District Baran and an FIR under the Prevention of Corruption Act (Amendment) Act, 2018 was registered against the petitioner by the Anti Corruption Bureau, Rajasthan on the basis of a complaint filed by one Mr. Manoj Mali and the Anti Corruption Bureau caught the petitioner red-handed with a sum of Rs.10,000/- in the trap proceedings conducted on 10/07/2020. The Assistant Secretary (Enquiry), Rural Development and Panchayati Raj Department, Govt. of Rajasthanissued a notice to the petitioner on 18/09/2020 calling the petitioner to be present for personal hearing. It is submitted that before providing opportunity of personal hearing, the petitioner was suspended vide order dated 09/10/2020 under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994. By another letter dated 09/10/2020, the petitioner was issued show cause notice as to why enquiry be not commenced against him under Rule 22(2) of the Rajasthan Panchayati Raj Rules, 1996. Vide another order dated 14/10/2020, the charge of the post of Sarpanch was handed over to Up-Sarpanch of Gram Panchayat Shahabad. The petitioner, therefore, has preferred this writ petition assailing the orders dated 09/10/2020 and 14/10/2020.

(3.) Learned counsel for the petitioner submitted that the provisions of Section 38 of the Rajasthan Panchayati Raj Act, 1994 do not allow suspension of Chairperson of a Panchyati Raj Institution unless an enquiry has been initiated against him under sub-Section 1 of Section 38 of the Rajasthan Panchayati Raj Act, 1994 or against whom criminal proceedings with regard to the offence involving moral turpitude is pending trial in a competent court of law. Learned counsel further submitted that the enquiry under Rule 22(2) of the Rajasthan Panchayati Raj Rules, 1996 cannot be said to have been initiated and therefore, the suspension is illegal and unjustified. It is further submitted that the petitioner was called for personal hearing on 27/11/2020 but the petitioner has been suspended before personal hearing was provided to him. It is stated that the criminal proceedings registered against the petitioner are politically motivated and the complainant lodged a false FIR. As per Rule 22 of the Rajasthan Panchayati Raj Rules, 1996, before taking action under Section 38(1) of the Rajasthan Panchayati Raj Act, 1994, the State Government was required to conduct preliminary enquiry and after completion of preliminary enquiry, the report would be sent to the State Government and if it finds sufficient grounds available to initiate enquiry, the charge-sheet would be served upon defaulting person. In the criminal case, charges have not been framed as yet and therefore, it cannot be said that the criminal trial is pending against the petitioner.