- (1.) The present petition is directed against the order dated 7/7/2015 (Annexure-5) passed by the respondent No.2 placing the petitioner who is Sarpanch of Gram Panchayat Kakrali, Panchayat Samiti Ramgarh, District Alwar under suspension, in exercise of the powers conferred under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the said Act').
(2.) The short facts giving rise to the present petition are that the petitioner had contested the election for the post of Sarpanch of the Gram Panchayat Kakrali, and she was declared elected. The defeated candidate i.e. the respondent No.7 thereafter had filed the election petition before the District Judge, Alwar, challenging the said election alleging that the petitioner did not possess requisite educational qualification, and that she had produced fabricated documents. The respondent No.7 had also filed the criminal proceedings which has been registered as FIR No.85 of 2015 against the petitioner, leveling similar allegations with regard to the fabrication of the documents etc. It appears that on the basis of the said allegations and the proceedings, the respondent No.2 passed the impugned order dated 7/7/2015, placing the petitioner under suspension from the office of Sarpanch in exercise of the powers conferred under Section 38(4) of the said Act, which is challenged by the petitioner by way of present petition.
(3.) The petition has been resisted by the respondent Nos.1 to 4 and 6 by filing the reply contending interalia that the criminal proceedings is already pending against the petitioner with regard to the production of the forged documents and therefore the respondent No.2 was justified in placing the petitioner under suspension, ofcourse it has been stated that the petitioner was not arrested in respect of the said offence and the mentioning about the said fact in the impugned order was wrong. It has further been contended that a preliminary enquiry was already initiated for the allegations made against the petitioner, and therefore the petitioner was liable to be placed under suspension. 3. The learned counsel Mr. Anand Sharma for the petitioner has submitted that the petitioner was never arrested in respect of the criminal complaint registered against her, however the impugned order has been passed on the ground that she was arrested, which was factually incorrect as admitted by the respondents themselves. Taking the Court to the provisions contained in Section 38(4) of the said Act, he further submitted that the petitioner could be placed under suspension only if the trial is pending in the Court of law in respect of the criminal proceedings involving moral turpitude, whereas in case of the petitioner, no charges have been framed by the Court and therefore it could not be said that the trial is pending in the Court. The learned Govt. Counsel Mr. Manu Bharagav for the respondent Nos. 1 to 3 and Ms. Naina Saraf for the respondent No.7 however submitted that since the preliminary enquiry had already been initiated against the petitioner in respect of the charges levelled against her, her case would fall under the purview of Section 38(4) of the said Act. Ofcourse they have conceded that the petitioner was not arrested and that charges have not been framed against the petitioner so far by the Court after the submission of charge sheet against her.;