CW 6273/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1- Civil Writ Petition No.6273/2007 Nana Devi Versus State & Ors. 2- Civil Writ Petition No.12235/2008 Nana Devi Versus State & Ors. Date of Order ::: 04/08/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Ratan Kumar Agrawal) Mr. Kamlesh Pareek & Rajendra Prasad), for petitioners Mr. Jinesh Jain Govt. Counsel, for respondents State Mr. JK Yadav, for respondent-4 & 5-CW-6273/07Babulal & Rameshwar Since both the petitions filed by self-same petitioner raising common issue, hence at request, were finally heard together for its disposal by this order at admission stage. Petitioner who is a resident of village Amarpura was elected as Sarpanch of Gram Panchayat, Guwadi-Panchayat Samiti Phagi (Jaipur) in January, 2005. As alleged, she contested election of Sapranch as a candidate of Indian National Congress party which is not a ruling party in the State; thus a conspiracy was hatched by members of party in power to remove her from office of Sarpanch for one reason or the other. As alleged, initially action was taken U/s 39 of Rajasthan Panchayatiraj Act, 1994 (“Act, 1994”) for cessation of her membership of a Panchayati CW 6273/07 //2// Raj institution on the premise that she has more than two children; and for which, inquiry was initiated U/s 39 of the Act and was placed under suspension which was revoked and enquiry could not be proceeded further in view of judgment of this Court in Smt.Sameera Bano Vs. State of Rajasthan (2007(2) WLC (Raj.) 526). At the same time, a complaint was made by one Rameshwar S/o Laxman Meena, on which preliminary inquiry was conducted by Sub- Divisional Officer, Phagi, District Jaipur who sent report to the Deputy Collector on 11/10/06 (Ann.5-CWP-6273/07) holding that on most of issues allegations were not correct and left the matter further to be inquired by a technical person, which was forwarded vide letter dt.20/10/06 (Ann.6) to the Divisional Commissioner despite the fact that there was no adverse report, rather allegations were found to be of minor in nature. But, for a alleged misconduct committed as Sarpanch of Panchayatiraj Institution, petitioner was served a notice U/s 38(1)(b) of the Act along with charge sheet & statement of allegations issued on 30/04/07 (Ann.1), to which she submitted her reply. However, without holding inquiry & appointing inquiry officer, as provided U/r 22 CW 6273/07 //3// (3) of Rajasthan Panchayati Raj Rules, 1996 (“Rules, 1996”), Divisional Commissioner sent its recommendation to State Govt on 06/07/07 (Ann.3-CWP-12235/08) to declare the petitioner as disqualified U/s 38(1)(b) of the Act. It is relevant to mention that S.38 relates to removal or suspension and as regards disqualification, S.39 has to be invoked and in fact, recommendations were not made for disqualification but for her removal U/s 38(1)(b) of the Act – as a consequence whereof, she was placed under suspension in exercise of powers U/s 38(4) of the Act, vide order dt.10/08/07 (Ann.2-CWP-12235/08 & Ann.4- CWP-6273/07) which was assailed by her in CWP- 6273/07 wherein vide interim order dt. 24/08/07, after hearing complainant, operation of recommendation dt.06/07/07 (Ann.3) was stayed. As a consequence thereof, order of suspension dt.10/08/07 was revoked vide order dt.28/09/07. Thereafter a separate preliminary inquiry was conducted by SDO, Phagi and sent a report vide letter dt.01/10/07 (Ann.R/1) to the Divisional Commissioner – on the basis whereof, charge sheet was served vide notice dt.26/11/07 (Ann.R/2) to which she submitted her reply and Addl. Chief Executive Officer, CW 6273/07 //4// Zila Parishad, Jaipur was appointed as Inquiry officer U/r 22(3) of Rules, 1996 vide order dt.19/02/08 (Ann.5) with the direction to conclude inquiry within thirty days. It appears from the record that Addl. Chief Executive Officer, Zila Parishad, Jaipur submitted inquiry status report dt.30/04/09 which petitioner obtained under Right of Information Act, as per which allegations levelled against her were not found to be proved and it was observed that allegation appears to be politically motivated; copy of note sheet has been placed by her on record. However, petitioner throughout co- operated with inquiry officer and when inquiry could not have been concluded within one month despite direction of Divisional Commissioner while appointing inquiry officer in exercise of powers U/s 22(3) of Rules, 1996 taking note of delay in enquiry and nature of allegations under charge-sheet, Divisional Commissioner recommended to State Government on 03/09/08 (Ann.R/3) to place the petitioner under suspension and on its recommendation, the State Government placed the petitioner under suspension in exercise of powers U/s 38(4) of the Act vide order dt.13/10/08 (Ann.6). It has brought to the notice of this Court that CW 6273/07 //5// w.e.f. 14/10/08 as a result of parliamentary elections, Chief Election Officer declared Code of Conduct, an ante-dated order of suspension dt.13/10/08 was issued but served on 27/10/08. Counsel for petitioner submits that order of suspension impugned can certainly be passed U/s 38(4) of the Act after initiation of inquiry U/s 38(1) but in instant case, charge sheet dt.26/11/07 was served upon petitioner, to which reply was also sent immediately and inquiry officer was appointed vide order dt.19/02/08 (Ann.5) and the authority did not consider it appropriate to invoke S.38(4) of the Act at the time of initiation of inquiry and after almost a year thereof, petitioner was placed under suspension merely on the premise that there has been a delay in inquiry and inquiry officer was directed to furnish inquiry report within one month which in no manner can be attributed to her and in such circumstances, without examining as to who is responsible for delay in inquiry in an arbitrary manner, she has been placed under suspension which is violative of Art.14 of the Constitution. Counsel further submits that discretion vested with the authority taking CW 6273/07 //6// decision for placing an elected representative under suspension has to be sparingly invoked and only when there is a material on record to support that continuance in the office of elected representative would either influence inquiry or tamper with record or it may prejudice the interest of public at large and considerations laid down by this Court in judicial pronouncement have not been taken note of and power has been arbitrarily exercised without due application of mind while placing her under suspension which is in violation of principles of natural justice. In support, Counsel placed reliance upon decisions of this Court in Parmanand Paliwal Vs. State (1998(2) RLR 25); Nandlal Vs. State (1996(2) WLC (Raj) 497) & Jan Mohd. Vs. State (1992(2) WLC (Raj) 463). Taking assistance of decisions (supra), Counsel further submits that from material on record and particularly note sheets of inquiry proceedings, it clearly depicts that after appointment of inquiry officer, inquiry in fact commenced only on 07/03/08 and Presenting Officer was seeking time to submit list of departmental witnesses & documents to prove charges impugned and on CW 6273/07 //7// 15/04/09 he filed list of departmental witnesses & documents; and in these circumstances, the petitioner was never at fault and there was no delay on her part in the inquiry and if Presenting Officer/inquiry officer are not taking care in conducting the inquiry, she cannot be saddled with suspension depriving her from taking part in proceedings of Panchayatiraj institution, for which earlier also, she has made complaint of political and extraneous considerations and this drastic step of suspension has been taken with oblique motive so that she may not be allowed to discharge duties as an elected representative. Counsel further submits that as regards her earlier CWP-6273/07, after service of charge sheet and reply submitted by her, without even holding inquiry in terms of R.22 of Rules 1996, Divisional Commissioner recommended the State Government to disqualify U/s 38(1)(b) of the Act and for placing her under suspension in exercise of powers U/S 38 (4), which clearly depicts that the authority was not even aware of provisions of the Act that unless procedure as provided U/r 22 of Rules, 1996 being complied with, there cannot be any recommendation made for removal of an CW 6273/07 //8// elected representative U/s 38(1)(b) of the Act; inasmuch as the authority was not even clear about distinctive feature as to what are steps to be taken against a person who has to be removed U/s 38 of the Act or the procedure to be followed for holding disqualified as contained in S.19 while holding proceedings U/s 39 of the Act. Thus, action of respondents recommending her to be disqualified is totally un-called for and without authority & so also in clear violation of S.38(4) of the Act. Respondents have filed reply to the writ petitions. As regards earlier filed CWP- 6273/07 respondents (State) submitted that in fact this petition has become infructuous in view of order of suspension dt.10/08/07 having been later on revoked vide order dt.28/09/07 (Ann.4) and in regard to the recommendations of Divisional Commissioner for her alleged disqualification vide order dt.06/07/07 (Ann.3), Government Counsel has not made any submission as to what will be the fate of recommendations made vide communication dt. 06/07/07. As regards subsequent CWP-12235/08, in reply thereto, it has been inter-alia averred that initially preliminary inquiry was held and after the reports whereof was furnished on CW 6273/07 //9// 03/09/07 (Ann.R/1) and thereafter charge sheet dt.26/11/07 (Ann.R/2) was served and inquiry officer was appointed and since there was inordinate delay in inquiry and almost seven months had passed, taking note of nature of allegations imputed against her, Divisional Commissioner recommended for her suspension – in view whereof, State Government has rightly exercised powers vested U/s 38(4) of the Act for suspending an elected member – against whom inquiry has been initiated U/s 38(1)(b) of the Act. In support, Government Counsel placed reliance upon decisions of Full Bench of this Court in Bhuralal Vs. State (1988(1) RLR 945); and Chandra Prakash Vs. State (1999 (3) WLC (Raj.) 563). Complainant on whose instance inquiry was initiated against petitioner was allowed to intervene vide order dt.04/11/08 in CWP- 12235/08 while they were impleaded as respondents-4 & 5 vide order dt.20/12/07 in earlier CWP-6273/097; and their Counsel also supported submissions made on behalf of respondents-State and submits that if impugned suspension is revoked or set aside, petitioner would certainly influence in pending inquiry and looking to nature of allegations, it would CW 6273/07 //10// be in fitness of things to continue her under suspension and this Court may direct State respondents to conclude inquiry, itself, within time framework as deemed appropriate. It has also been submitted that since Presenting Officer was not taking due care, in his place, Tehsildar Phagi has been appointed as presenting officer vide order dt.08/05/09 and enquiry will now be expedited. I have considered rival contentions of Counsel for parties and with their assistance examined material on record. From the facts, it clearly manifest that petitioner is an elected Sarpanch of Gram Panchayat Guwadi Panchayat Samiti Phagi (Jaipur) and took charge of the Office of Sarpanch in January, 2005 with a term to complete in January, 2010. However, as per material on record, earlier, inquiry was initiated against her U/s 39 of the Act on the premise of her alleged disqualification having more than two children as on the notified date U/s 19(l) of the Act and pendente inquiry was placed under suspension which stood revoked and inquiry was dropped in view of Full bench decision in Sameera Bano Vs. State (2007(2) WLC (Raj.) 526) wherein it has been held that such pre- disqualification of an elected representative CW 6273/07 //11// could be examined only in an election petition and not in an inquiry initiated U/s 39 of the Act and that being so, State Government could not continue inquiry any further as regards alleged pre-disqualification U/s 19(l) of the Act. It is true that after recommendations dt.06/07/07 (Ann.3) made by Divisional Commissioner to State Government were stayed by this Court in CWP-6273/07; order of suspension dt.10/08/07 (Ann.4) was revoked by State authority vide order dt.28/09/07 but recommendations of Divisional Commissioner being pendente consideration, it has certainly required to be examined by this Court. A fresh charge sheet dt.30/04/07 was served to which she submitted her reply and before the inquiry officer could be appointed U/r 22(3) of Rules 1996, the Divisional Commissioner without even taking note of provisions contained in S.38; recommended State Govt to disqualify petitioner U/s 38(1) (b) vide communication dt.06/07/07, whereas such provisions can be invoked only in a case where one is held guilty of misconduct in discharge of duties or disgraceful conduct; which apparently is in violation of S.38(1)(b) and so also R.22 of Rules, 1996 and very CW 6273/07 //12// recommendations made to State Government dt.06/07/07 in no manner can be said to be legally sustainable; and deserve to be set aside. Thereafter again a preliminary inquiry was conducted against her and report was submitted on 23/09/07. However, this Court would not like to comment upon merits of charges since its inquiry is pendente consideration but after preliminary inquiry proceeded, a regular charge sheet was served on 23/11/07 (Ann.R/2) and Addl.Chief Executive Officer was appointed as inquiry officer U/r 22(3) of Rules, 1996 vide order dt.19/02/08 directing him to submit report of inquiry within thirty days. However, petitioner submitted her reply and also remained present in course of inquiry as soon as after the inquiry officer served notice upon her as referred to in note- sheets drawn during inquiry proceedings; and since delay in inquiry was considered to be a cause for placing petitioner under suspension, she has placed on record order sheets drawn in inquiry proceedings conducted by inquiry officer – a careful perusal whereof, shows that 07/03/08 is the first date when inquiry officer issued notices for 27/03/08 and there CW 6273/07 //13// is no such report as to when petitioner was served of notices for 27/03/08; but in the order sheet of 27/03/08 it was recorded that petitioner was not present & the Presenting Officer was also not present; as such inquiry stood adjourned for 30/04/08, on which date, both petitioner & Presenting Officer were not present and inquiry was adjourned to 27/05/08, on that date, petitioner was absent while Presenting Officer appeared and sought time to produce list of witnesses & documentary evidence in support of charge sheet and next date was fixed of 16/06/08 when petitioner was present and Presenting Officer again sought time to place a list of departmental witnesses & documents; and matter was adjourned to 16/07/2008, which was solitary date on which it could be said that petitioner was not present after service of notices in inquiry; yet on that date, also inquiry stood adjourned on the request of Presenting Officer for placing list of departmental witnesses & documents; and similar prayer was also made by Presenting Officer on 13/08/08. On 19/09/08, on behalf of petitioner, one Rajendra Prasad Sharma appeared. No doubt, petitioner did not appear on few dates (supra) but in view of proceedings (supra), since on the dates of her CW 6273/07 //14// absence also, Presenting officer was seeking adjournment for placing list of departmental witnesses & documents to prove the charges against her, hence petitioner cannot be said to be at fault for delay being caused in the inquiry. However, latter note-sheets may not be so material since Divisional Commissioner recommended State Government for placing petitioner under suspension on the premise of the delay in inquiry on 3/09/08 (Ann.R/3). Even after 13/08/08 either petitioner or her representative appeared in course of inquiry proceedings on 19/09/08, 17/10/08, 18/12/08, 06/01/09, 03/02/09, 16/02/09, 04/03/09, 31/03/09, 15/04/09, 28/04/09, 02/06/09, 18/06/09 & 02/07/09 and inquiry is pending before Addl. Chief Executive Officer. It will be pertinent to mention that list of witnesses & documents were filed by petitioner on 18/12/08 and thereafter also presenting officer took time and filed their list of witnesses & documents on 15/04/09 and thereafter inquiry officer himself was busy on account of which progress in inquiry has not taken place. Even from note sheets drawn during inquiry, it depicts that after inquiry officer was appointed on 19/02/08, inquiry commenced CW 6273/07 //15// on 07/03/08. It is manifest from the order sheets that the Presenting Officer was seeking adjournments to produce list of departmental witnesses & documents, and without which inquiry could not be proceeded, for which atleast petitioner cannot be saddled with any fault on her part causing delay in the inquiry. This Court can take judicial notice of circumstances as are depicted from note- sheets drawn during inquiry (supra) for holding that petitioner was not at all at fault at any time atleast for seven months during which inquiry is said to have not been effectively proceeded as having been taken note of by Divisional Commissioner while recommending to the State Government for placing her under suspension. It is also not the case of respondents that inquiry officer at any point of time has informed Divisional Commissioner that the petitioner is either not co-operating or she has either influencing the witness or tampering with record; whereas recommendations made by the Divisional Commissioner vide letter dt.3/09/08 (Ann.R/3) also do not disclose that she had tampered with the record or influenced any witness during inquiry. Only material having been taken note CW 6273/07 //16// of by Divisional Commissioner for recommending the State government for placing her under suspension was that seven months have rolled by and still inquiry report has not been furnished and has further referred the nature of allegations. Suffice it to say that after the inquiry officer was appointed on 19/02/08, nature of allegations were not considered by State Government as sufficient to invoke S.38 (4) for placing petitioner under suspension and only consideration which prevailed upon for taking decision in placing her under suspension was the delay in conclusion of inquiry, which as already taken note of supra, in no manner can be attributed to petitioner in the facts of instant case. In Full Bench decision in Bhuralal Vs. State of Rajasthan (1988(1) RLR 945), it has been observed that the case of elected representative holding office of Sarpanch, inquiry initiated should be completed at the earliest possible and elected representative should not be kept away from the office for longer time only on the ground that inquiry is being prosecuted against it. It has also been considered in Chandra Prakash Vs. State (1999 (3)WLC-Raj.563) that an elected representative CW 6273/07 //17// should not be suspended putting him at par of a government employee, for a simple reason that in a democratic set up, the duly elected officer is to be considered entirely on a different pedestal than that of Government employee and gravity of the charges should be of high magnitude warranting suspension of an erring elected representative. In a case of suspension of Two Chairmen of Municipal Board in Jan Mohd. Vs. State (1992(2) WLC 463), Division Bench of this Court sounded a word of caution that holders of elective public posts cannot be equated with Government servants and therefore a holder of an elected post if suspended, the Government must have sufficient reasons to do so. It has been further observed that due care should be taken while exercising power of suspensions of an elected representative which is not to be exercised for political or extraneous considerations. In Parmanand Paliwal Vs. State (1998 (2) RLR 25), this Court while examining suspension of an elected member/Chairman of Municipal Board took judicial notice of the fact that if elected members are allowed to continue under suspension for an indefinite CW 6273/07 //18// period and if later on, is exonerated from the charges imputed against him, as a result whereof, he will not be removed from membership, but what will happen to his suspension period during which he could not function as member, and he could not be relegated to original position. It has further been observed that looking to term of an elected representative, a period of suspension reasonably should not be of more than six months from the date of suspension. It was a case of Raj. Municipalities Act, 1959; however, provisions whereof are almost analogous to Raj. Panchayatiraj Act, 1994 wherein also there is no outer limit provided, for which an elected member can be placed under suspension. It is no doubt true that S.38(4) of the Act empowers State Government to suspend an elected representative against whom inquiry is initiated U/s 38(1) of the Act but it will not give an absolute power in the hands of State Government to debar the member for all times to come. It has to be kept in mind that the member is elected by the public and is a public representative for a fixed term. His tenure is limited, for which he can act as a public representative. In this democratic set CW 6273/07 //19// up, the elected member cannot be restrained from performing their duties for indefinite period without there being proved charge against them. He has a right to perform his duties as a member being elected to represent wish & will of the people. Thus power U/s 38 (4) is always to be sparingly used, that too with due care & circumspection. In instant case, vide order impugned, petitioner is continuing under suspension since 30/10/08. More than nine months have rolled by. There is no effective progress in inquiry having taken place till date despite the fact that petitioner is always co-operated in course of inquiry, which may take its own time. But the fact remains that time having elapsed curtailing the period being available for discharge of her duties as an elected representative of the public which in no manner could be relegated back to her original position even if she is ultimately exonerated in the inquiry. Taking an over-all conspectus of matter, in the opinion of this Court, action of respondents in placing petitioner under suspension in exercise of powers U/s 38(4) of the Act is wholly arbitrary and is in no manner legally sustainable in the eye of law. CW 6273/07 //20// Consequently, both the writ petitions succeed & are hereby allowed. Recommendations made by the Divisional Commissioner to State Government for alleged disqualifications U/s 38(1)(b) of the Act vide order dt.06/07/07 (Ann.3-CWP-6273/07) and so also her suspension vide order dt.13/10/08 (Ann.6-CWP-12235/08) are hereby quashed and set aside; as a consequence whereof, she would continue as Sarpanch and perform her duties as elected representative. However, respondents will be free to proceed & conclude the inquiry expeditiously and take action in accordance with law. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.20/ 6273CW07(2)Aug04Rsr.doc