Deepika Sharma vs State Of Rajasthan And Ors

The petitioner was elected as Sarpanch of Gram Panchayat Shahar, Panchayat Samiti Nadoti, District Karauli in the election held in the year 2015 with the 5 year tenure which ends in January 2020. A chargesheet came to be issued to her by the Divisional Officer Bharatpur on 10.8.2018 under Rule 22 (2) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter 'Rules of 1996') alleging that she had committed misconduct in discharge of her duties. The petitioner submitted her reply to the chargesheet on 5.9.2018 and the matter rested there. Neither an Inquiry Officer was appointed nor the petitioner suspended by resort to Section 38 (4) of the Panchayati Raj Act, 1994 (hereinafter 'the Act of 1994').

Eight months of the issue of chargesheet vide order dated 9.7.2019 passed by the Divisional Commissioner the petitioner was suspended. Hence this petition.

Mr.S.K. Gupta appearing for the petitioner submitted that aside of the petitioner and three officers of the State Government i.e. Panchayat Secretary of Gram Panchayat Shahar-one Damodar Lal Sharma, Assistant Engineer of Panchayat Samiti Nadoti-one Vikram Singh Meena and Junior Engineer-Hariom Sharma are alleged by the respondents to have been involved in the alleged misconduct. He submitted that in fact vide notice dated 25.7.2018 under the hand of the Chief Executive Officer, Zila Parishad Karauli it was recorded that in respect of the work allegedly got done for a sum of Rs.2,49,997/- by the Gram Panchayat, Shahar measurement thereof had indicated that the work only for an amount of Rs.1,54,628/- was executed consequent to which a sum of Rs.95,369/- was apparently overpaid. It was thus proportionably recoverable from each of the four purportedly responsible for the over payment. The petitioner alongwith the three others aforesaid were required to deposit a sum of Rs.23,933/- each with the Panchayat Samiti Nadoti. Mr.S.K. Gupta submitted that the notice dated 25.7.2018 makes it evident that aside of the petitioner the elected Sarpanch of the three others allegedly responsible two were engineers with technical knowledge on issues of civil work done and measurement thereof. Yet the petitioner an elected representative alone has been belatedly singled out and suspended on 9.7.2019 even while the others officers responsible for the actual constructions and measurements thereof for payment were not suspended by resort to Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter 'the Rules of 1958')- as relevant to them. Mr.S.K. Gupta submitted that oddity and the arbitrariness of the Government's action against the petitioner tantamounting to the abuse of its power under Section 38 (4) of the Act of 1994 is thus loud and clear. Mr.S.K. Gupta submitted that the petitioner is a non-technical who can at worst can be charged for supervisory negligence. No allegation of financial impropriety has been levelled against him. Yet despite being an elected representative the petitioner has been unfairly suspended in a mechanical manner-which he could not be.

Mr.S.K. Gupta referred to the various judgments of this court in the case of Prema Versus State of Rajasthan, 2008 (1) WLC 291, Geeta Devi Narooka Versus State of Rajasthan & Others, 2008 (2) WLC 261 and Jan Mohd. Versus The State of Rajasthan & Others, 1992 (2) WLC 463 to submit that their conjoint reading entails the state of law being that an elected representative even though vulnerable to suspension under the statutory provisions cannot be so mechanically and casually suspended as she cannot be equated with government servants-if at all they can be mechanically and casually suspended. Mr.S.K. Gupta submitted that the settled law is that due application of mind should precede and the competent authority satisfied that the continuation of the elected representative in the office she was elected to during the period of the statutory inquiry would be prejudicial to the inquiry before an elected represented is suspended. Further decided cases also make it pellucid that the mere commencement of a statutory inquiry against the elected representative cannot by itself entail, without any pressing need, her suspension as a matter of course. And the view that, have the power: will exercise it cannot sustain Mr.S.K. Gupta submitted that hence the impugned order of suspension be set aside as there is nothing on record that the respondent-State applied its mind to the facts of charges against the petitioner, her role in the alleged overpayment of the construction, the necessity to suspend her even while officers with technical knowledge relevant to the work were not suspended but only subject of a departmental inquiry for a minor penalty under Rule 17 of the Rules of 1958 and whether her continuation on the post would prejudice the inquiry. Mr.S.K. Gupta submitted that in these facts, the petitioner's suspension is wholly without application of mind and a colourable exercise of power under Section 38(4) of the Act of 1994.

Ms.Sheetal Mirdha, AAG with Mr.Rohil Bansal appearing for the respondents submitted that statutory departmental inquiry having been initiated against the petitioner by resort to Rule 22 (2) of the Rules of 1996 and Section 38 (1) of the Act of 1994 the competent authority had the power to suspend the petitioner under Section 38 (4) of the Act of 1994. She submitted that there has been a delay in the suspension of the petitioner with reference to when she was issued charge-sheet i.e. on 5.9.2018 but that was apparently for the reason that the petitioner was at the relevant time enjoying the patronage of the then State Government. Ms.Sheetal Mirdha submitted that no sooner the misconduct of the petitioner and the statutory inquiry initiated against her came to knowledge of the present State Government, to keep the streams of public administration pure, the petitioner has been suspended and inquiry officer appointed soon thereafter.

Heard. Considered.

The state of law with regard to exercise of statutory powers for suspension of an elected representative has been welldelineated by this court in the cases of Prema Versus State of Rajasthan, 2008 (1) WLC 291, Geeta Devi Narooka Versus State of Rajasthan & Others, 2008 (2) WLC 261 and Jan Mohd. Versus The State of Rajasthan & Others, 1992 (2) WLC 463. Therefrom, it is apparent that albeit the power of suspension indeed vests in the competent authority an elected representative including a Sarpanch cannot be suspended mechanically only for reason of initiation of a statutory inquiry. The suspension of elected representative such as Sarpanch requires due application of mind and the conclusion of an imperative need for suspension for reason of the Government's satisfaction that the continuation of the elected representative in office meantime would prejudice the statutory inquiry or be contrary to public interest. In the instant case, there is nothing on record to even prima facie establish that the State Government either applied its minds to the facts of the case and the notice charges against the petitioner and the role attributed to her in the alleged misconduct and then reached a satisfaction that the continuation of the petitioner as Sarpanch during the inquiry would be contrary to public interest, or be prejudicial to the statutory inquiry against her. Aside of the aforesaid, I am also of the considered view that the petitioner having continued in the office for several months till 8.7.2019 subsequent to the issue of chargesheet on 10.8.2018 and no other allegation of misconduct in the meantime having been made against her, there appears to be no foundation for the petitioner's suspension. In fact the order of suspension belatedly passed on 9.7.2019 was even prior to the appointment of an inquiry officer vide order dated 6.8.2019 to go into the charges against the petitioner.

I also find no force in the contention of Ms.Sheetal Mirdha, that the petitioner was a beneficiary of the patronage of the previous Government. The allegation is bald and without any material to establish the political nexus of the petitioner. Further despite the new Government having entered into office in the month of January 2019 over 6 months lapsed before the order of suspension dated 9.7.2019 was passed and the inquiry officer thereafter appointed on 6.8.2019. It is also noteworthy that the allegations in the chargesheet relate to an alleged over payment for construction work. The petitioner is a poorly educated layman in respect of these works. Those in-charge of the said works with engineering backgrounds responsible for its execution and measurements with approval were not suspended. Only a departmental inquiry for a minor misconduct under Rule 17 of the Rules of 1958 is stated by Ms.Sheetal Mirdha to have been initiated against them. The heavy hand of law for what is presently an allegation of supervisory negligence by invoking Section 38 (4) of the Act of 1994 being exercised against the petitioner is thus apparent. That tantamounts to colourable exercise of power and/ or non application of mind by the respondents, which cannot be countenanced by this court.

Consequently, I would quash and set aside the order dated 9.7.2019 and direct that the petitioner be allowed to continue to hold the post as Sarpanch Gram Panchayat Shahar, Panchayat Samiti Nadoti, District Karauli till the end of her tenure no doubt subject to relevant laws. It is however made clear that the petitioner shall be under an obligation to co-operate in the inquiry initiated against him which Ms.Sheetal Mirdha, AAG stated will be completed within a period of one month from receipt of a certified copy of this order. Let it be so done.

The petition stands accordingly allowed.