Kalawati @APPELLANT@Hash State of Rajasthan & Ors.

Heard.

By way of the instant writ petition, the petitioner, being the elected Sarpanch of the Gram Panchayat Somsisar, Panchayat Samiti Taranagar, District

Churu, has approached this court for challenging the order (Annexure-P/5) dated 04.04.2018 passed by the Joint Secretary-cum- Additional

Commissioner (Inquiry), Panchayati Raj Department, Government of Rajasthan placing the petitioner under suspension in reference to the order

framing charge passed by the competent court against her for the offence under Section 199, 200, 420, 465, 467, 468 and 471 IPC by taking aid of the

procedure provided under Section 38 (4) of the Rajasthan Panchayati Raj Act, 1994 (for short, ‘the Act of 1994’).

Mr. Bhawla contented that the alleged delinquency relates to a pre-election dispute as defined in Section 19(gg) of the Act of 1994. The enquiry

initiated by the respondents against the petitioner was dropped because the petitioner did not conceal anything while filing the nomination form. He

further submits that the charge, which was framed against the petitioner by the competent court, did not relate to any incident pertaining to discharge

of the petitioner’s official duties and as such, the said order framing charge could not have been used to the petitioner’s detriment and for

placing her under suspension. Learned counsel vehemently urged that the petitioner is an elected Sarpanch, who is restrained from functioning on

the basis of a criminal case and thus, it would unjustly deprive her from the right to hold a public office, which has been conferred upon her through a

democratic election process. He placed reliance on an order dated 25.01.2018 passed by a Division Bench of this court in the case of Oma Ram @

Om Prakash Vs. The State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.98/2018) and contends that in similar matter, the Division

Bench has stayed the suspension orders passed against the Sarpanch concerned.Â

I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record. It is the firm opinion

of this court that the fields of operation of Section 19(gg) and Section 38(4) of the Act of 1994 are entirely different. Section 19(gg) purely deals

with preelection disqualifications and covers the situation, where a person proposing to contest the election stands charged for an offence punishable

with imprisonment of 5 years or more. Such a person is barred from contesting the election. Per contra, Section 38(4) of the Act of 1994 empowers

the Government to direct suspension of a Member, Chairperson or Deputy Chairperson of a Panchayati Raj institution against whom an enquiry has

been initiated or against whom any criminal proceeding in regard to an offence involving moral turpitude is pending in trial in a court of law. The

Section provides that such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj institution concerned by placing

him/her under under suspension. Criminal trial has been interpreted as having commenced on the date, the competent court frame charges against

the person concerned. Admittedly, the petitioner had not been charged with any offence of moral turpitude on the date of contesting the election. In

this background and considering the unambiguous language of Section 19(gg) of the Act of 1994, the State Government rightly dropped the enquiry

initiated against the petitioner. However, after being elected as an Sarpanch, the petitioner has been charged by the competent court for the

offences under Sections 199, 200, 420, 465, 467, 468 and 471 IPC, which is undoubtedly an offence involving moral turpitude and as such, in view of

the clear language of the Second Part of Section 38 (4) of the Act of 1994, the petitioner was rightly placed under suspension. A co-ordinate

Bench of this court in the case of Smt. Jeena (Devi) Regar Vs. The State of Rajasthan & Ors. (S.B. Civil Writ Petition No.223/2017 decided on

26.02.2018 has considered an almost identical controversy after taking into account the Division Bench judgment of the case of Satish Valmiki Vs.

State of Rajasthan & Ors. (D.B. Civil Special Appeal (Writ) No.955/2017) as well as the Division Bench order in the case of Oma Ram (supra) has

held that passing of an order framing charge for an offence of moral turpitude against the elected Chairperson/Deputy Chairperson/Member of a

Panchayati Raj institution while he holds such office makes him liable to be placed under suspension as per Section 38 (4) of the Act of 1994.

Thus, manifestly, Section 38 (4) of the Act of 1994 provides a mechanism to ensure that a public representative, who has been charged during the

tenure of his office for an offence involving moral turpitude, should not be allowed to function in his office, lest it shakes the public confidence. Such

a situation has no relevancy or connection with the time when the offence was committed. In case of a pre-election dispute, as per Section 19 of

the Act of 1994, manifestly, the person concerned would not even be able to contest the election. Thus, the distinction in situations as stipulated

under both the provisions is clear and unambiguous.

In this view of the matter, I find no reason to entertain the instant writ petition as the impugned order, ex facie does not suffer from any illegality,

irregularity or perversity whatsoever. Hence, the writ petition is dismissed summarily. Stay application is also dismissed.

No order as to costs.