- (1.) THE petitioner, Ganesha Ram S/o Khinva Ram, Sarpanch of Gram Panchayat - Parewadi, Kuchaman City, Nagaur, has approached this Court by way of present writ petition for quashing the suspension order Annex.2 dated 05.09.2013, whereby the petitioner was placed under suspension under Section 38 (4) of the Rajasthan Panchayati Raj Act, 1994 (for short, 'Act of 1994').
(2.) THE allegation against the petitioner as given in impugned order is that the petitioner, Ganesha Ram while acting as Sarpanch of Gram Panchayat Parewadi, has demanded and taken the bribe of Rs.25,000/ - from the complainant, Sh. Om Prakash Jat, for which an FIR No.342/2013 has been registered by the Anti - Corruption Bureau against him on 31.07.2013 u/s 7, 13 (1) (d)/ 13 (2) of the Prevention of Corruption Act, 1988, which is pending investigation with the concerned investigating agency. The petitioner was also arrested. By the impugned order the petitioner has been placed under suspension with immediate effect and has been restrained from participating in the activities of the Gram Panchayat - Parewadi, during the pendency of the suspension. The said order has been passed by the Deputy Secretary of the Gramin Vikas and Panchayatri Raj Department of the Government of Rajasthan. Simultaneously, on the same day, another notice (Annex.1) dated 05.09.2013 under the 22 of the Panchayati Raj Rules, 1996 has been served upon the petitioner along -with the charge -sheet enclosed therewith calling upon him to furnish his explanation with respect to said allegation in terms of Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (for short, hereinafter referred to as 'Rules of 1996') on or before 20.09.2013. The petitioner has apparently not produced the said annexed charge -sheet with the notice before this Court and has withheld the same, nor he has furnished any such explanation so far to the respondent and instead has approached this Court by way of present writ petition, which is filed in this Court on 23.09.2013 for quashing of the said notice and suspension order.
(3.) MR . Sudheer Sharma, learned counsel for the petitioner submitted that the suspension of the Sarpanch cannot be made unless the criminal trial can be said to be pending in the court of law as per the provisions of sub -section (4) of Section 38 of the Act of 1994. He also submitted that an opportunity of hearing of one month is required to be given as per Rule 22 of the Rules of 1996, which deals with 'Procedure of Enquiry', before taking any action under sub - section (1) of Section 38 of the Act of 1994 for removal from the post of Sarpanch and, therefore, without giving an opportunity of hearing, as required by Rule 22, the petitioner cannot be placed under suspension. He relied upon a decision of coordinate bench of this Court at Jaipur Bench in the case of Hansraj Gujar Vs. State of Rajatshan & Ors. (SBCWP No.12698/2012, decided on 13.02.2013) in which it has been held that where the State Government relying upon only criminal proceedings in regard to an offence involving moral turpitude unless the said trial is pending in a competent court of law i.e. where the Challan has been filed, the trial cannot be said have been commenced before that and, therefore, the suspension order cannot be passed. He also relied upon an interim order dated 25.02.2013 passed by a coordinate bench of this Court in SBCWP No.1925/2013 -Chunnilal Vs. State of Rajasthan & Ors., staying the operation of suspension order dated 13.02.2013 in that case. The petitioner has sought following relief(s) in the writ petition: - "It is, therefore, humbly prayed that the present writ petition may kindly be allowed and by an appropriate writ order or direction: 1. The order dated 5.9.2013 (Anx.2) issued by the respondent no.2 placing the petitioner under suspension kindly be quashed. 2. Any other appropriate order or direction, which this Hon'ble Court deems fit may be passed in favour of appellant. 3. The writ petition may kindly be allowed with costs." ;