Smt. Bhawna @APPELLANT@Hash State And Ors

By way of this writ petition filed under Article 226 of the Constitution of India, petitioner Smt. Bhawna, being the returned Sarpanch of the Gram

Panchayat Sawantsar, has approached this court for assailing the order Annex.6 dated 29.09.2016 passed by the Under Secretary (Enquiry), Rural

Development and Panchayati Raj Department, Government of Rajasthan, exercising powers under Section 38 (1) of the Panchayati Raj Act, 1994

(for short, ‘the Act of 1994’), and placing the petitioner under suspension on the ground that enquiry had been instituted against her under

Section 38(1) of the Act of 1994 and that sanction to prosecute her had been issued in connection with FIR No.7/2016 registered at the Police Station

Padampur for the offences under Sections 420, 166, 167 and 197 IPC.

Mr. Mahaveer Bishnoi, learned counsel representing the petitioner, vehemently urged that no enquiry as contemplated under Section 38 of the Act of

1994 has been initiated against the petitioner till date. The enquiry, which is referred to in the show cause notice and the statement of allegations

supplied to the petitioner collectively as Annex.5, refers to Rule 22 (2) of the Rajasthan Panchayati Raj Rules, 1996 (for short, ‘the Rules of

1996’). He urged that under the said provision, the competent authority can at best hold a preliminary enquiry against the Sarpanch, after which, if

the material so collected during the preliminary enquiry is considered sufficient, a regular enquiry under Section 38(1) of the Act of 1994 can be

initiated. He urged that the impugned order of suspension has no foundation whatsoever in the eyes of law and hence, the same deserves to be struck

down. Per contra, Mr. Manish Patel, learned AGC, relied upon this court’s judgments in the cases of Smt. Mooli Devi Vs. The State of Rajasthan

& Ors. [S.B. Civil Writ Petition No.11260/2012 decided on 07.08.2012] and Smt. Kali Bai Vs. The State of Rajasthan & Ors. [S.B. Civil Writ Petition

No.14998/2016 decided on 21.12.2016] and urged that mere wrong quoting of a provision of law in the executive order cannot absolve the petitioner

from the responsibility to face the enquiry more so when prosecution sanction has been accorded against her by the State Government. He further

submitted that in the cases of Kali Bai and Mooli Devi (supra), this court categorically dealt with the aspect of enquiry under Rule 22 of the Rules of

1996 followed by a charge-sheet and held that a charge-sheet issued in pursuance to such enquiry can assume the foundation of a suspension order.

He, craved dismissal of the writ petition on these grounds.

I have given my thoughtful consideration to the arguments advanced at bar and perused the material available on record. Admitted facts as available

on record indicate that the petitioner is being prosecuted in relation to the FIR No.7/2016 registered at Police Station Padampur for the above referred

offences. Sanction to prosecute her under Section 197 CrPC had been issued by the competent authority. It is not disputed that the competent

authority, while relying upon the said sanction letter initiated enquiry in reference to Rule 22 (2) of the Rules of 1996 and simultaneously issued a

charge-sheet to the petitioner by referring to the same provision. Law is well-settled that mere wrong quoting of a provision of law would not take the

“pith and substance†out of an executive order, if it is otherwise sustainable in the eye of law. Manifestly, charge-sheet can only be issued to an

elected member or chairperson of a Panchayati Raj Institution under Section 38 (1) of the Panchayati Raj Act and thus, to that extent, the impugned

order does suffer from an inadvertent clerical error, but the entire proceedings cannot be vitiated on that account. The provision of law has to be read

as Section 38 (1) of the Act of 1994 in the impugned order. The issue of enquiry under Rule 22 (2) of the Rules of 1996 followed by a charge-sheet

under Section 38 (1) of the Act of 1994 preceding the suspension order was considered in detail in the judgments relied by Mr. Manish Patel, learned

AGC, wherein under almost identical circumstances, the impugned action of suspension of the Sarpanch concerned was held to be valid.

In this background and since a proper enquiry had been initiated against the petitioner, as noted above, before placing her under suspension, the

impugned order Annex.6 dated 29.09.2016 cannot be termed to be illegal, arbitrary or perverse warranting interference therein in exercise of this

Court’s extra ordinary writ jurisdiction. Hence, the writ petition is devoid of merit and is dismissed as such. The stay application is also dismissed.

No costs.