1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4715/07 Kailash Chand Sharma vs. State & Ors. Date of order : 4/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Jain for the petitioner. Shri Sanjay Srivastava, Dy. Govt. Counsel for State. The matter is listed for vacation of the stay order dated 6.7.2007, but the matter was heard finally. The writ petition has been filed by the petitioner who is elected Sarpanch of Gram Panchayat Dangarthal. The petitioner has challenged the order dated 5.5.2007 (Annexure-2) whereby he was placed under suspension pending enquiry against him under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 read with Rule 22 of the Rajasthan Panchayati Raj Rules, 1996. Learned counsel for the petitioner has argued that the charges against the petitioner pertains to quality of construction of `nali' from the house of Mannalal Tiwari to Khalya (Bairwa Mohalla to Ghana) which was started on 8.3.2005 and was 2 completed on 31.3.2005. The concerned Engineer prepared the verification report on 9.4.2005. The Executive Engineer and the Block Development Officer, Panchayat Samiti Newai and Secretary of the Gram Panchayat verified the work and duly put their signatures on the verification report. The Executive Engineer of the Panchayat Samiti filled up the M.B. Report and the Gram Panchayat which was represented by all the Panches by resolution dated 6.8.2005, approved all the work upon the Executive Engineer issuing a completion certificate in respect thereof. After more than one and a half years thereof, on a complaint made by political opponents of the petitioner, the Additional Chief Engineer, Zila Parishad, Tonk conducted a preliminary enquiry but out of eight charges in respect of point no.1 and 8, the charges were found partly proved. The respondents however illegally did not accept the said report and decided to hold a fresh enquiry. This time by order dated 5.5.2007, petitioner was placed under suspension. Learned counsel for the 3 petitioner argued that during the pendency of the earlier enquiry, the petitioner was not suspended. There was no reason to place the petitioner under suspension when re- enquiry is ordered. The exoneration of the petitioner from the major charges should have been in fact rebutted in reinstatement of the petitioner. At that stage, when he was not reinstated, he approached this Court. This Court by its order dated 6.7.2007 while issuing notices to the respondents, taking note of the fact that the petitioner in spite of being exonerated of major charges not been reinstated stayed the order of suspension dated 5.5.2007. Learned Deputy Govt. Counsel opposed the writ petition and argued that re-enquiry into the allegations is in the final stage and earlier report submitted by the Additional Chief Engineer dated 14.6.07 was not accepted by the Government and therefore the Government by order dated 16.8.2007 has now appointed Additional Collector, Tonk to conduct a fresh enquiry in respect of the 4 charges framed against the petitioner. He drew attention of the Court towards charges levelled. Learned Dy. Govt. Counsel argued that in view of the seriousness of the charges against the petitioner, keeping him in office is likely to prejudice the impartiality of the enquiry. It was therefore prayed that this Court may not interfere with the order and the writ petition be dismissed. Upon hearing learned counsel for the parties and perused the material on record, I find that charges on which the enquiry is ordered against the petitioner are inter alia to the effect that quality of the work was not upto the mark and the measurement book though reflects 50 MM grit earth work, but on ground that is not available. Similarly, the drainage constructed from the residence of Mannalal Tiwari to Khalya was also not proper. It is indeed surprising that in spite of the specific stand taken by the petitioner that measurement book was approved by the Executive Engineering as also by the B.D.O., the orders passed by the 5 respondents including the charge sheet issued to the petitioner are conspicuously silent as to what action has been taken against the Engineer who has filled up the measurement book and issued the completion certificate, but that is indeed a matter for the respondents to consider. In view of the fact that earlier enquiry did not found the charges proved solely against the petitioner, the respondents may have the liberty to proceed in the fresh enquiry, but at the same time, no case is made out as to why petitioner should be compulsorily kept under suspension pending such enquiry in which at the initial stage, he was exonerated of the charges. Learned Deputy Government Counsel submits that enquiry is in the final stage and its report is likely to receive any date. If that is so, the respondents would in no case be free to take any final view of the matter by passing appropriate order as may be warranted, if and when the enquiry report is submitted. Keeping, however, the petitioner under suspension is neither justified nor 6 warranted in the circumstances. The writ petition is allowed. The order Annexure-2 dated 5.5.2007 placing the petitioner under suspension is set aside. (MOHAMMAD RAFIQ), J. RS/