Rajasthan High Court – Jodhpur
Smt. Sita Devi Gurjar vs State Of Rajasthan (2025:Rj-Jd:473) on 6 January, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:473]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 11135/2024
Smt. Sita Devi Gurjar W/o Shri Udailal Gurjar, Aged About 65
Years, R/o 166, Bihada Pander, District Bhilwara, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Rural Development And Panchayati Raj,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Additional Commissioner And Deputy Secretary - Ii
(Enquiry), Department Of Rural Development And
Panchayati Raj, Government Of Rajasthan, Secretariat,
Jaipur.
3. The District Collector, Shahpura.
4. The Additional Chief Executive Officer, Zila Parishad,
Shahpura.
5. The Chief Executive Officer, Zila Parishad, Bhilwara.
6. The District Collector, Bhilwara.
7. The Block Development Officer, Panchayat Samiti,
Jahajpur, District Bhilwara (Shahpura).
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate assisted
by Mr. Lokesh Mathur with
Mr. Suresh Khadav.
For Respondent(s) : Mr. Rajesh Panwar, AAG assisted by
Mr. Monal Chugh.
Mr. Sheetal Kumbhat for applicant
Smt. Kaushal Sharma.
HON'BLE MS. JUSTICE REKHA BORANA
Order
06/01/2025
1. An application under Order 1 Rule 10, CPC has been filed on
behalf of the applicant Smt. Kaushal Sharma who has been
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handed over the charge of Pradhan after suspension of the
present petitioner. It has been submitted that she took charge of
the office on 08.7.2024 and if any order is passed in the present
petition in favour of the petitioner, she would definitely be affected
and hence, deserves to be impleaded as a party-respondent.
2. In the specific opinion of this Court, the applicant Smt.
Kaushal Sharma cannot be termed to be a necessary or essential
party to the present litigation. The applicant cannot be termed to
have any vested right in her so as to continue as a Pradhan.
Further, it is not the case where no effective order can be passed
or that adjudication of the issue in question cannot be made in
absence of the said applicant.
3. The application for impleadment, is hence rejected.
4. The present writ petition has been preferred aggrieved of the
order dated 05.07.2024 (Annexure-16) whereby the petitioner i.e.
the Pradhan of the Panchayat Samiti Jahajpur, District Shahpura
(Bhilwara) had been put under suspension on the premise that the
charges of she having not complied with the provisions of Section
33(a) and Section 46(1) of the Rajasthan Panchayati Raj Act, 1994
(hereinafter referred to as ‘the Act of 1994’) were found to be
proved in the preliminary enquiry report.
On the same date i.e. 05.07.2024, the petitioner was served
with a charge-sheet wherein two charges were framed against her.
5. The case of the petitioner is that on the complaints made by
the Panchayat Samiti members regarding the non-formation of the
requisite Committees and non-convening of the general/special
meetings of the Panchayat Samiti, the Collector, Shahpura vide
order dated 23.01.2024 (Annexure-7) directed the Additional
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Chief Executive Officer, Zila Parishad, Shahpura to conduct a
preliminary enquiry in the matter and submit a factual report by
15.02.2024. The said Additional Chief Executive Officer submitted
its factual report dated 14.02.2024 to the Collector, Shahpura
who, finding the same to be an incomplete report, vide order
dated 15.02.2024, directed him to conduct a detailed enquiry
keeping into consideration the issues as pointed out in the said
order.
6. The Collector, vide the said order, also observed that the
statements of the then Development Officer as well as the
Pradhan of the Panchayat Samiti (i.e. the petitioner) had not been
recorded by the Enquiry Officer and hence, the same be also
recorded.
7. In compliance of the order dated 15.02.2024, the Additional
Chief Executive Officer served notice dated 05.05.2024 on the
petitioner calling upon her to file her reply/defence/explanation by
16.05.2024. The petitioner, vide communication dated
16.05.2024, prayed for further time because of her medical
condition at that point of time. After that no communication
whatsoever was made by the Additional Chief Executive Officer
nor was the petitioner informed of any subsequent date.
8. However, meanwhile an enquiry report dated 21.06.2024
was submitted by a Committee constituted by the Additional
Commissioner and Deputy Secretary II (Enquiry) in the matter. No
notice whatsoever was served by the said Committee on the
petitioner before filing of the enquiry report. Meaning thereby, no
opportunity of hearing was granted to her.
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9. On basis of the enquiry report dated 21.06.2024 as
submitted by the Committee constituted by the Additional
Commissioner, the State Government proceeded on to pass the
impugned order dated 05.07.2024 which is in total contravention
to the basic principles of natural justice as well as in contravention
to the provisions of the Act of 1994.
10. Mr. Vikas Balia, learned Senior Counsel appearing for the
petitioner submitted that the order impugned dated 05.07.2024
being a total mechanical one and without any application of mind
deserves to be quashed only on the said sole ground. He
submitted that the said order does not record any satisfaction of
the issuing authority to the effect that said suspension is
imperative to conduct smooth enquiry and that such smooth
enquiry would not be practicable if the petitioner is not put under
suspension.
11. Learned Senior Counsel while relying upon the Division
Bench judgment of this Court at Jaipur Bench in D.B. Special
Appeal Writ No.252/2024; The State of Rajasthan & Ors.
vs. Himanshu (decided on 08.04.2024) submitted that an elected
representative cannot be placed under suspension in a routine
manner only for the reason of initiation of an enquiry against him/
her without application of mind.
12. Learned Senior Counsel further submitted that even
otherwise the charges framed against the petitioner as per the
charge-sheet dated 05.07.2024 are only regarding the non-
convening of the general/special meetings of the Panchayat
Samiti. The said charges cannot be considered to be so grave so
as to call for suspension of an elected Pradhan of a Panchayat
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Samiti. He submitted that non-convening of the meetings cannot
be termed to be a misconduct in terms of Section 38(1) of the Act
of 1994 so grave so as to call for suspension of an elected
representative.
13. Relying upon the Hon’ble Apex Court judgment in the case of
Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors.;
(2012) 4 SCC 407 learned Senior Counsel submitted that non-
calling of a meeting of a general body may be a mere technical
misconduct committed inadvertently in ignorance of statutory
requirements but the said technical misconduct cannot be termed
to be a positive intentional misconduct so as to call for any action
in terms of Section 38(4) of the Act of 1994. He submits that
when once the Collector had found the report dated 14.02.2024 as
submitted to him to be incomplete in absence of the statements of
the Development Officer and the petitioner, the enquiry report
dated 21.06.2024 (Annexure-R/1) submitted by the Committee
could not have been termed to be complete and accepted by the
State Department.
Further, once notice was served on the petitioner, she ought
to have been granted an opportunity to file her defence/reply. In
absence thereof, the impugned order dated 05.07.2024 clearly is
malafide.
14. Learned Senior Counsel further submitted that even
otherwise, in terms of Section 46 of the Act of 1994, mandate to
convene the meetings is not only of the Pradhan, the meetings
can be called by the State too. Unlike the first meeting, the
obligation to call the subsequent meetings is of the complete
Samiti and not only of the Pradhan.
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15. Further, the allegation of the meetings of the Panchayat
Samiti having never been convened is also clearly erroneous on
the face of it as is revealed from the enquiry report dated
21.06.2024 itself. The said report specifically reveals that four
general/special meetings of the Panchayat Samiti had been
conducted. Two meetings of the Administrative and Establishment
Committee were also conducted and further, the budget for all the
three consecutive years i.e. 2021-22, 2022-23 and 2023-24 were
sanctioned in the general meetings of the Panchayat Samiti.
Therefore also, no misconduct whatsoever could be concluded in
the matter.
16. Lastly, learned Senior Counsel submitted that even if it is
assumed that no meetings in terms of Section 46 of the Act of
1994 were convened by the petitioner, no malafide intent or
positive misconduct can be spelled out from the same as it is no
one’s case that any financial irregularities or corrupt practices had
been adopted by the petitioner for any wrongful gain.
By all means, there was no ground available with the State
Department to place the petitioner under suspension.
17. Per contra Mr. Rajesh Panwar, learned Additional Advocate
General appearing on behalf of the State Department, while
supporting the order impugned dated 05.07.2024, submitted that
the said order was totally within the competence of the State
Department in terms of Section 38(4) read with Section 38(1) of
the Act of 1994. Evidently, a preliminary enquiry was conducted in
the matter and the petitioner was found guilty as per the report of
the said preliminary enquiry. The competent authority, only after
being satisfied with the said enquiry report and after application of
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mind, proceeded on to pass the order impugned dated
05.07.2024.
18. Learned AAG submitted that it was crystal clear that in the
complete tenure of three years, only four meetings were convened
by the petitioner and three out of them were also only on the
directions of the State Government pertaining to the schemes of
the Government. Meaning thereby, only one meeting was
convened by the petitioner of her own accord. As a matter of fact,
the Panchayat Samiti remained totally defunct during the
complete tenure and hence, the petitioner being found guilty
prima facie in the enquiry report dated 21.06.2024, was rightly
put under suspension in terms of Section 38(4) of the Act of 1994.
19. On the ground of grant of opportunity of hearing, learned
AAG submitted that Rule 22(1) of the Rajasthan Panchayati Raj
Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’) does
not talk of any prior notice or opportunity of hearing. The same
only mandates of a preliminary enquiry which in the present
matter has very well been conducted. Therefore, there being no
mandate of an opportunity of hearing to be granted, the same
cannot be a ground for quashing of the order impugned dated
05.07.2024.
20. Learned AAG submitted that as per Section 46 of the Act of
1994 it is the Pradhan who is under a mandate to convene/call for
the meeting of a Panchayat Samiti. Further, it is mandatory that a
meeting of a Panchayat Samiti be conducted at least once a
month. The petitioner clearly was found guilty of the non-
compliance of the above mandatory provisions and hence, was
rightly put under suspension.
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21. Heard learned counsel for the parties and perused the
material available on record.
22. The issues which arise in the present petition are:
“(i) Whether the petitioner could have been put under
suspension on basis of the preliminary enquiry report
dated 21.06.2024 without any opportunity of hearing
being given in the said preliminary enquiry?
(ii) Whether the impugned order of suspension dated
5.7.2024 can be termed to be an order passed after
due application of mind?
(iii) Whether the non-compliance of Section 33(a) and
Section 46(1) of the Act of 1994 can be termed to be a
misconduct so grave so as to call for suspension of an
elected representative?”
23. Coming on the first issue, as is the settled position of law, a
report of the preliminary enquiry can be acted upon by the State
Government to proceed under Section 38 of the Act of 1994.
Further, it is undisputed on record that a preliminary enquiry was
conducted in the matter and a report thereof was submitted to the
State Government by the Enquiry Officer wherein the petitioner
was found guilty of non-compliance of Section 33(a) and Section
46(1) of the Act of 1994. Rule 22(1) & (2) of the Rules of 1996
provide as under:
“(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.
(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
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[2025:RJ-JD:473] (9 of 13) [CW-11135/2024]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 written statement within one month admitting or
denying the allegations, giving his defence if any and
whether he desires to be heard in person.”
24. Section 38(1) & (4) of the Act of 1994 prescribes as under:-
“(1) The State Government may, by order in writing
and after giving him and 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-
(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 :
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.
(2)………
(3)……….
(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:”
25. A bare perusal of the above provisions makes it clear that
the State Government has 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.
26. Admittedly, a charge-sheet in terms of Section 38(1) of the
Act of 1994 had been served on the petitioner on the date of
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suspension, i.e. 05.07.2024. Meaning thereby, in the present
matter, wherein an enquiry in terms of Section 38(1) of the Act of
1994 had been initiated against the petitioner, she could very well
have been suspended in terms of Section 38(4) of the Act of 1994.
27. So far as grant of opportunity of hearing before the
suspension is concerned, as held in Ramswaroop Vs. State;
2000 DNJ [Raj.] 70 and Rajesh Devi Vs. State of Rajasthan;
AIR 2017 Rajasthan 109 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.
Issue No.1 is hence, answered in the manner that the State
Government was competent to suspend the petitioner by serving a
charge-sheet on her without giving any opportunity of hearing in
the preliminary enquiry proceedings.
28. Coming on the second issue, a bare perusal of the order
impugned dated 05.07.2024 (Annex.16) reflects that it has not
been passed on the sole premise of a charge-sheet having been
served on the petitioner. Therein, a specific finding has been
recorded that the charges of non-compliance of the provisions of
Section 33(a) and 46(1) of the Act of 1994 had been found proved
against the petitioner in the preliminary enquiry and hence, the
petitioner being the Pradhan of the Panchayat Samiti was liable for
the said non-compliance. In view of the said specific finding, it
cannot be termed that the order dated 05.07.2024 was passed
without any application of mind.
29. So far as the judgment in the case of Himanshu (supra) as
relied upon by the learned Senior counsel for the petitioner is
concerned, the ratio therein would not apply in the present matter
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as herein, the order impugned specifically records the finding of a
competent authority regarding the charges in the preliminary
enquiry to be proved and further that enquiry in terms of Section
38(1) of the Act of 1994 is sought to be initiated against the
petitioner. Therefore, it cannot be held that the suspension of the
petitioner was in a routine manner.
30. It is not that the petitioner has been put under suspension
just on the basis of complaints and without any prima facie fact
finding enquiry been made in the matter. It is evident on record,
after various complaints having been received regarding the non-
constitution of the Standing Committees which are mandatorily to
be constituted in terms of Section 55A of the Act of 1994 and
regarding the non-convening of the meetings of the Panchayat
Samiti, a preliminary enquiry was initiated. As per the enquiry
report dated 21.06.2024, only two Committees out of five had
been constituted and further, only six meetings had been called for
in the complete tenure of three years of the petitioner. The two
Committees were also constituted after a delay of more than one
year and out of the six meetings, only three were actually held.
Further, even the appointments of teachers (Third Grade), Junior
Assistants, Village Development Officers were not recommended
which was also a mandate. It is in view of the said fact finding
report that the allegations against the petitioner were found to be
prima facie proved so as to initiate enquiry in terms of Section
38(1) of the Act of 1994. The order dated 05.07.2024 hence,
cannot be termed to be without application of mind.
The second issue is hence, answered in the above terms.
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31. Coming on the third issue, it is not merely a case of non-
convening of the meetings of the Committees by the petitioner.
The consequences of such meetings not being held are grave.
What is clear on record is that against the mandate of a meeting
being called and held once every month, only four general/special
meetings of the concerned Panachayat Samiti had been held in the
complete tenure of three years. The same clearly shows that the
Panchayat Samiti remained almost defunct during the complete
tenure which in the opinion of this Court, is totally unwarranted in
the democratic set up wherein all the other elected
representatives of the Panchayat Samiti were restrained from
discharging their duties which they could have otherwise
discharged had the meetings been held in accordance with law.
Further, the said non-functioning of the Panchayat Samiti clearly
hampered the welfare of the concerned village/panchayat.
32. It can therefore not be held that the non-convening of the
meetings was just a technical misconduct and was not so grave as
to suspend the petitioner.
Third issue is hence, answered in the above terms.
33. In view of the above observations and analysis, this Court
does not find any ground to interfere with the impugned order
dated 05.07.2024 and the writ petition is hence, dismissed. The
respondent-authorities shall be under a liberty to continue with
the enquiry against the petitioner as contemplated in terms of
Section 38(1) of the Act of 1994. However, the enquiry shall be
completed within a period of three months from now after
affording opportunity of hearing to the petitioner. The petitioner
shall be under an obligation to participate diligently and not cause
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any delay in the enquiry proceedings. If the petitioner is found to
cause any delay in the enquiry proceedings, the Enquiry Officer
shall be under a liberty to proceed ex parte against the petitioner
so as to conclude the enquiry within the stipulated period of three
months.
34. It is made clear that any of the observations made in the
present order shall not affect the enquiry proceeding and the
Enquiry Officer shall be under an obligation to conduct the enquiry
strictly in accordance with law and decide the same on its own
merit.
35. Stay petition and all pending applications, if any, stand
disposed of.
(REKHA BORANA),J
345-KashishS/praveen/-
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