Abhay Kumar Meena @APPELLANT@Hash State of Rajasthan & Ors.

In the ordinary course, although the petitioner himself or counsel is allowed only to argue his case, however taking into consideration that the

petitioner’s brother is an MLA and is a representative of the people, he is allowed to represent case of the petitioner in absence of his counsel.

It is stated by the representative Ramesh Meena that his brother’s certificates show that his name is Abhay Kumar Meena, however on

account of political vengeance occasioned due to initiating certain proceedings in the Vidhan Sabha by him against the Minister, proceedings were

undertaken against his brother alleging that the petitioner’s actual name is Raghuveer Meena and not Abhay Kumar Meena. In this regard, an FIR

was registered against the petitioner. Charge sheet has also been filed under Section 173 Cr.P.C. However, cognizance has not been taken nor

charges have been framed, and therefore in terms of Section 38(4) of the Panchayati Raj Act, 1994 (hereinafter referred to as ‘the Act of

1994’) it is submitted that trial cannot be said to have been pending against the petitioner which could be said to be of nature involving moral

turpitude. However, the petitioner has been suspended. The representative prays that the order passed by the respondents be quashed and set-aside.

Mr. Vishnu Kumar Goyal, Joint Secretary, Rural Development & Panchayati Raj, is present in person. Before allowing him to argue the case, he

was cautioned that once the arguments are put up, he would not be allowed to withdraw and put up an excuse that Advocates are on strike.Â

Whereafter the Joint Secretary, has proceeded to make his submissions.

It is stated that Divisional Commissioner has conducted an enquiry on the basis of a complaint received relating to the identity of the petitioner and it

was revealed in the report submitted by the Divisional Commissioner that the petitioner actual name was Raghuveer Meena and he had falsely

represented himself to be Abhay Kumar Meena and was holding the post of Zila Pramukh of District Karauli. On the basis of such report, FIR was

registered wherein the Police Officials have submitted the challan. 4. In the circumstances, the department had taken up action under Section 38 and

while issuing charge sheet to the petitioner, they have suspended the petitioner.

On a query raised by this Court whether there was any person named Abhay Kumar Meena in the Village, it is stated that there is no other person

by the said name. It is also stated that the charge sheet has been issued only on the basis of the allegations made in the FIR and there is no other

charge as against the petitioner.

Taking into consideration the aforesaid facts, this Court finds that the petitioner is yet to face trial relating to the allegations. So far as the

departmental charge sheet issued to him is concerned, the same is solely based on the charges which are to be examined by the competent court on

the basis of challan filed by the Police. The documents which have come on record, show that the petitioner’s date of birth is available as well as

his name is shown as Abhay Kumar Meena son of Shankar Meena in the mark sheet of Class X. In view thereof, the contention of the petitioner that

there has been certain forgery done relating to his record at the behest of politically motivated persons cannot be ruled out. The issue has to be,

however, examined by the competent Court at its level and this Court will not make any comments on this aspect. The petitioner would be free to

defend himself if necessary before the competent Court.

The question before the Court is only with regard to the whether the petitioner could be suspended in terms of Section 38 of the Act of 1994. A

look at the Section 38 would show as under:-

“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-

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

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

Provided that any enquiry under this subsection 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) The chairperson or the deputychairperson removed under sub-section (1) may at the discretion of the State Government also be removed from the

membership, if any of the Panchayati Raj Institution concerned.

(3) The member or the chairperson or thedeputy chairperson removed under sub-section (1) or against whom findings have been recorded under the

proviso to that sub-section, 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.

(4) The State Government may suspend anymember including a chairperson or a deputy chairperson of a Panchayati Raj Institution against whom an

enquiry has been initiated under Subsec. (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 suspension1[:]

[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 :]

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

years by a Panch or a Sarpanch, as the case may be.

(5) The decision of the State Government on any matter arising under this section shall, subject to any order made under section 97, be final and shall

not be liable to be questioned in any court of law.â€​

The Full Bench of this Court has examined the said provision in the case of Smt. Sameera Bano & Etc. Versus State of Rajasthan & Ors. reported

in AIR 2007 Rajasthan 168.

Apparently, the facts of the said case related to disqualification before election.

A Coordinate Bench of this Court in the case of Bhupendra Singh Hada (S.B.C.W.P. No.16070/2015) & 38 other petitions, decided commonly vide

its order dated 11th February, 2016, has held as under:-

“…….The separation of powers under the Constitution cannot countenance parallel proceedings on the same cause of action before both the

judicial branch and the executing branch. Disputes as to qualification to contest an election being conferred by Section 43 of the Act of 1994 read with

Rule 80 of the Rules of 1996 on the Election Tribunal by way of an election petition, the power to decide similar disputes cannot be conferred on the

executive by an enquiry under Section 39 of the Act of 1994 read with Rule 23 of the Rules of 1996. The AAG's argument of representative elected

on forged eligibility criterion is emotive and attractive but has to be balanced with the potential mischief of the Government of the day targeting the

Sarpanch's unpalatable for extraneous reasons. Where a statute provides for judicial determination of a pre-election dispute, it cannot be eclipsed by

the side-wind of executive determination. The executive is not without remedy and can invoke both a writ of quo warranto and criminal proceedings

whereon in the event of framing of a charge the elected representative can be suspended where the offence be one of moral turpitude. In this view of

the matter, I am of the considered view that there is no plausible ground/reason to overlook the authoritative pronouncement of the Full Bench in the

case of Smt. Sameera Bano (Supra). Consequently, the writ petitions are liable to succeed.

…….It is however clarified that the State Government however would be free, if warranted in specific cases, to conduct only a fact finding enquiry

for taking other proceedings in accordance with law including that of lodging a FIR. It is also made clear that for post election misconduct, the State

Government will be entitled to take proceedings for removal of the delinquents and suspend the Chairpersons / Members of the Panchayati Raj

Institutions by resort to Sections 39 and 38(4) of the Act of 1994. Finally in the event of elected Chairpersons / Members being charged for an offence

involving moral turpitude even in respect of the period prior to the elections, the State Government would be free to suspend such Chairpersons /

Members of Panchayati Raj Institutions under Section 38(4) of the Act of 1994.â€​

Thus viewed, the respondents could have only conducted fact finding enquiry and could not have proceeded further and suspended the petitioner

on the basis of an FIR and charge sheet which is yet to be examined by a competent court of law.

Even otherwise, matters relating to persons who have been duly elected, should be left to be examined by a competent court alone as culpability of

offence is not a subject which could be examined at the departmental level and elections of a person can either be challenged by way of filing an

election petition wherein grounds of such nature can be taken up or where the criminal case is registered the trial is conducted and a competent Court

passes an order relating to the same. Question relating to criminal action on part of the elected person, should be thus left to be decided by a

competent Court alone.

The fact finding enquiry which the respondents have started, would not be considered as sufficient in terms of Section 38(1) to suspend the

petitioner, as elected Chairman need not be suspended on such fact finding enquiry.

In view of the same, the question of suspending a Chair Person or Deputy Chair Person of a Panchayati Raj Institution as per Section 38(4) of

Act of 1994 would only arise after the charges are framed by the competent Court i.e. trial has already begun. Before such a decision has been taken

by a competent criminal court the action of the State Government in suspending such a Chair Person or Deputy Chair Person would be illegal.

In view of the aforesaid observations, the writ petition is allowed. The order dated 15.05.2018 is quashed and set-aside. The petitioner would be

entitled to hold the charge and the respondents are directed to hand over the charge of Chairman to the petitioner. The respondents would be free to

take recourse to Section 38(4) only after the charges are framed as against the petitioner and trial begins in the competent Court. No costs.