Dinesh Paliwal @APPELLANT@Hash State of Rajasthan & Ors.

Heard learned counsel for the parties. Perused the material available on record.

Through this writ petition under Article 226 of the Constitution of India, the petitioner being the elected Sarpanch of the Gram Panchayat Delwara,

Panchayat Samiti Khamnor, has approached this Court for assailing the order dated 21.08.2018 passed by the Government of Rajasthan, Rural

Development and Panchayati Raj Department placing the petitioner under suspension while exercising powers under Section 38(4) of the Panchayati

Raj Act.

Shri Kuldeep Mathur, learned counsel representing the petitioner vehemently and fervently urged that the impugned order was passed without initiating

inquiry under Section 38 of the Panchayati Raj Act. He further urged that the petitioner is not even remotely connected with the transaction of bribe

which is referred in the impugned order because the FIR was filed against the Shri Madho Singh Solanki, SHO, Police Station Delwara and the

petitioner has been roped into the matter without any justification. He thus urged that it is a fit case wherein, the Court should exercise its powers

under Article 226 of the Constitution of India and quash the impugned order which is grossly illegal and arbitrary.

I have given my thoughtful consideration to the arguments advanced by the petitioner’s counsel and have gone through the impugned order.

The impugned order which reads as below explicitly refers to the initiation of an inquiry under Section 38 of the Panchayati Raj Act and the issuance

of a charge-sheet to the petitioner:

“Jh fnusâ€k ikyhoky ljiap xzke iapk;r nsyokM+k iapk;r lfefr [keuksj] ftyk jktlean ds fo:) Hkz’Vkpkj fujks/kd C;wjksa jktlean esa vijk/k la[;k

76@2018 vUrxZr /kkjk 7] 8] 13¼1½ ¼Mh½ 13¼2½ /kkjk 147] 148] ,oa 120ch esa iathc) dj vuqla/kku djk;k x;k Jh fnusâ€k ikyhoky ljiap

xzke iapk;r nsyokM+k iapk;r lfefr [keuksj ftyk jktlean dks ifjoknh Jh nsohyky Mkxh fuoklh lkeykbZ iqfyl Fkkuk ?kklk ftyk mn;iqj esa Jh ek/kksflag

lksyadh Fkkukf/kdkjh iqfyl Fkkuk nsyokM+k ds 20]000@& :i;s fj'or ekaxj izkIr djrs gq, Hkz’Vkpkj fujks/kd C;wjksa }kjk jaxs gkFkksa idM+s

tkdj fxj¶rkj fd;k x;k gS mDr in ij jgus ;ksX; ugha gS mDr ljiap dks foHkkxh; vknsâ€k Øekad 36x o Øekad 21-8-18 }kjk vkjksi i= Hkh tkjh fd;k x;k

gSA Jh fnusâ€​k ikyhoky ljiap xzke iapk;r lfefr [keuksj ftyk jktlean dk mDr d`R; vidhfrZdj vkpj.k dh Js.kh esa vkrk gSA

vr% jkT; ljdkj jktLFkku iapk;rh jkt vf/kÅ' 1994 dh /kkjk 38¼4½ ds rgr iznRr “kfDr;ksa dk iz;ksx djrs gq, ,rr }kjk Jh fnusâ€k ikyhoky ljiap xzke

iapk;r nsyokM+k iapk;r lfefr [keuksj ftyk jktlean dks ljiap xzke iapk;r nsyokM+k ds in ls fuyfEcr djrh gS rFkk vknsâ€k iznku djrh gS ftUgsa fuyEcj dky

esa iapk;r ds fdlh dk;Z ,oa dk;Zokgh esa Hkkx ugha ysxsaAâ€​

As per the FIR dated 04.04.2018 placed on record, the petitioner was apprehended while acting as a conduit for acceptance of bribe on behalf of the

SHO, Police Station Delwara. He was trapped red-handed with a sum of Rs.20,000/-. When the hands of the petitioner were washed in solution of

Sodium Carbohydrate, the wash turned pink. Thus, the petitioner actively conspired with another public servant in the crime of accepting illegal

gratification. On a perusal of the FIR, it is further clear that the petitioner’s voice was recorded in the voice recorder being carried by the

complainant and the petitioner refused to give his voice sample for comparison when asked to do so.

In view of these admitted facts, manifestly, the situation at hand is clearly covered by the following observations made by Hon’ble the Division

Bench in the case of Ganesha Ram vs. State of Rajasthan (D.B. Civil Special Appeal (Writ) No.1038/2013) decided on 09.05.2014:-

“The learned counsel for the appellant, while assailing the validity of the impugned order, has argued that when no criminal proceeding in regard to

an offence involving moral turpitude is pending in a competent court of law against any member of a Panchayat Raj Institution, the State Government

has no jurisdiction to suspend him or her while invoking the provisions of section 38(4) of the Act of 1994. It is contended that only FIR has been

registered against the appellant and till date, no charges have been framed against the appellant, therefore, the State Government has no jurisdiction to

exercise powers under section 38(4) of the Act of 1994 and, therefore, the impugned order dated 05.09.2013 is without jurisdiction, however, the

learned Single Judge, without taking into consideration this aspect of the matter, has illegally dismissed the writ filed by the appellant.

Heard learned counsel for the appellant and perused the impugned order as well as the material placed on record.

It is not in dispute that the State Government vide letter No. F3(15) Enquiry/PRV/75BNB/Nagaur/13/2865 Jaipur dated 05.09.2013 (Annexure-1)

issued show cause notice to the appellant with a charge-sheet asking him to submit his explanation. Thereafter vide another order dated 05.09.2013

(Annexure-2), the State Government has placed the appellant under suspension, while exercising powers under section 38(4) of the Act of 1994. With

the issuance of the letter dated 05.09.2013 (Annexure-1), the proceedings against the appellant under section 38(1) of the Act of 1994 have been

initiated and at this stage, the State Government is fully competent to exercise the powers under section 38(4) of the Act of 1994. The learned Single

Judge has discussed the provisions of section 38 of the Act of 1994 and Rule 22 of the Rules of 1996 in detail and also taken into consideration various

decisions of this Court including Full Bench decision of this Court rendered in Bhura Lal vs. State of Rajasthan & ors., 1988(1) RLR 945 and held that

enquiry stood initiated against the appellant with the issuance of the notice dated 05.09.2013 (Annexure-1) and, therefore, there is no illegality in the

action of the State Government in suspending the appellant while exercising powers under section 38(4) of the Act of 1994.â€​

As a consequence of the above discussion, this Court while exercising powers under Section 226 of the Constitution of India, is least convinced to

interfere in the impugned suspension order which does not suffer from any illegality, infirmity or irregularity whatsoever.

Hence, the writ petition as well as stay application are rejected as being devoid of merit.