- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Gopal Giri vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO.3743/2007 DATE OF ORDER : 21/2/2008 P R E S E N T HON'BLE JUSTICE SHRI GOPAL KRISHAN VYAS Mr.Vijay Rajpurohit, for the petitioner. Mr.Alkesh Agarwal, Dy.Government Counsel. By this petition, the petitioner has prayed for quashing the order of suspension dated 6th June, 2007 (Annex.3) passed by the Secretary cum Commissioner, Rural Development and Panchayati Raj Department, Jaipur. According to the facts narrated in the writ petition, the petitioner is an elected Sarpanch of Gram Panchayat Sardarnagar Tehsil Banera. The petitioner was placed under suspension in connection with FIR filed against him and on the ground that inquiry under Section 38(1) is proposed against him. The petitioner is challenging the said impugned order of suspension on the ground that under Section 38(4) of the Panchayati Raj Act, an elected Sarpanch can be placed under suspension after initiating inquiry under Section 38(1) of the Act of 1994. - 2 - In this case, upon perusal of the order impugned, it is clear that till today no inquiry under Section 38(1) is initiated and only proposal was made. It is also obvious from the provisions of law that before taking action under Section 38(1), the respondents are under obligation to conduct preliminary inquiry under Rule 22(1) of the Rules of 1996. Rule 22 (1) of the Rules,1996 reads as under: “Rule 22 (1).Before taking any action under Sub- sec.(1) of Sec.38, where on its own motion or upon any complaint the State Government may ask the Chief Executive Officer or any other officer to get a preliminary enquiry done and to send his report to the State Government within one month.” Upon perusal of aforesaid rule it is apparently clear that before taking action under sub-section (1) of Section 38, whether on its own motion or upon any complaint, a preliminary inquiry is required to be made. In the present case, petitioner was served with notice (Annex.2), whereby, inquiry was initiated under Rule 22 (2) of the Rules. Meaning thereby, till today no inquiry under Section 38(1) has been initiated by the State Government. So also, for the purpose of placing any elected Sarpanch under suspension in the event of registration of criminal case against him, he cannot be placed under - 3 - suspension till framing of charge by the trial court. In these circumstances, both the grounds which are contemplated under Section 38(4) of the Act are absent. Therefore, the order passed by the Secretary cum Commissioner, Panchayati Raj Department is per se illegal and in contravention of the provisions of law. In view of the above, this writ petition is allowed. The order of suspension dated 6th June, 2007 (Annex.3) is set aside. It is made clear that respondents are at liberty to pass fresh order of suspension in the event of framing of charges by the criminal Court so also in the event of initiating any inquiry under Section 38(1) of the Act. (GOPAL KRISHAN VYAS), J. Pankaj Baweja