ASHOK KUMAR GAUR,J. - (1.) The instant petition has been filed by the petitioner challenging the order dated 25.10.2019, whereby she has been placed under suspension on the post of Sarpanch, Gram Panchayat Mongepura, Tehsil Mandrayal, District Karauli.
(2.) Counsel for the petitioner submitted that the impugned suspension order suffers from legal infirmity. Counsel submitted that the enquiry, conducted against the petitioner under Rule 22 of Rajasthan Panchayati Raj Rules, 1996 (hereafter 'the Rules of 1996'), was conducted in ex-parte manner and the petitioner was not afforded any opportunity to defend herself. Counsel submitted that as far as the charges levelled against the petitioner are concerned, the petitioner has not committed any misconduct and there was no ill motive of the petitioner to pass an order for setting up hand-pumps at various places.
(3.) Counsel submitted that there was necessity of hand-pumps in the village at different places and accordingly, after getting due permission from the person concerned, the hand-pumps were set up and as such, the entire proceedings, which have been initiated against the petitioner for conducting enquiry and placing her under suspension, need to be interfered by this Court. Counsel for the petitioner submitted that the bare perusal of the enquiry report dated 26.09.2019 (Annexure-13) shows that the petitioner was not present on 26.09.2019 and in her absence, the Enquiry Officer proceeded in arbitrary manner. Counsel submitted that the Enquiry Officer had given dates to conduct the enquiry on 05.09.2019, 11.09.2019, 18.09.2019 and on all these dates, the petitioner was present before the Enquiry Officer and the next date was fixed on 26.09.2019. Counsel submitted that socalled service of notice on one family member of the petitioner, i.e., Ramkamal on 24.09.2019 cannot be said to be a proper service of the notice of enquiry and as such, the ex-parte proceedings, which have been conducted, is not regular proceedings, which are required to be undertaken by the Enquiry Officer while conducting the enquiry under Rule 22 of the Rules of 1996. Counsel for the petitioner also placed reliance on the judgment passed by the Principal Seat at Jodhpur in S.B. Civil Writ Petition No.6886/2011 (Roshani Devi Vs. State of Rajasthan and Ors.), decided vide order dated 04.03.2013 and judgment reported in 1987 RLR (II) 560 (Gauri Shankar Mishra Vs. State of Rajasthan and Ors.). Counsel for the petitioner on the strength of said judgments, submitted that the Enquiry Officer, has not conducted the enquiry in a proper manner. The incumbent cannot be punished for committing the alleged misconduct and misconduct has to be in the nature of an act which reflects integrity of the person where one works with some ill motive. Counsel submits that the case of Roshani Devi (supra) also decides that the provisions of the Rules of 1996 are mandatory in nature and as such when the procedure has not been followed, this Court has not approved the procedure of enquiry conducted by the Authorities, while deciding the cases under the Rules of 1996. Counsel also submitted that the petitioner has ample proof to show before this Court that due permission was taken from the Authorities where the hand-pumps were to be set up and further the revenue record was also changed to show that the handpumps should not be set up at a private persons' land/house. Per contra, learned Addl. Govt. Counsel, appearing as caveator for the respondents and has filed reply, submitted that the petitioner was guilty of serious charges of misuse of public fund of Rs.7,07,296/- and the said amount was spent for the benefit of some individuals and as such the Enquiry Officer found the charges to be proved against the petitioner. Counsel further submitted that before conducting regular enquiry under Rule 22 of the Rules of 1996, by giving a charge sheet dated 18.07.2019, preliminary enquiry was conducted. Counsel submitted that in the preliminary enquriy, it was revealed that the petitioner had passed an order permitting the setting up of hand-pumps in a private khatedar's land and since the facility was to be available for general public, the same amount which was earmarked for the facility of general public was misused by the petitioner as Sarpanch. Counsel submitted that for placing the petitioner under suspension, the preliminary enquiry which was conducted was sufficient for invoking the power under Section 38 (4) of the Rajasthan Panchayati Raj Act, 1994 (hereafter 'the Act of 1994'). Counsel submitted that the opportunity of hearing was afforded to the petitioner and she had appeared on different dates before the Enquiry Officer and since the petitioner did not produce any evidence in her support, the allegations of not giving proper opportunity for conducting ex-parte enquiry cannot be accepted. Counsel submitted that the enquiry report further reveals fact of one incident, which had taken place, of indulging in taking away the relevant record and giving beating to one person-Secretary of the Gram Panchayat-Lokesh Meena on 26.11.2018. Counsel submitted that the record was available with the petitioner and it was incumbent on her to produce all the record before the Enquiry Officer and as such it cannot be alleged that the respondents have proceeded in a wrongful manner. Counsel further submitted that this Court in catena of cases have already taken a view that for suspension of Sarpanch, the opportunity of prior hearing is not necessary. Counsel further submitted that the persons who are holding responsible post under the Panchayati Raj Act, need to work honestly and if certain serious nature of allegations are found against such person, the Competent Authority has to undertake exercise of conducting enquiry. Counsel further submitted that in the present case, the charge No.1 of misuse of public fund has been found to be proved and charges No.2 and 3 have not been found to be proved. Counsel submitted that the report of the enquiry officer and further the preliminary enquiry, were the relevant consideration for taking a decision for placing the petitioner under suspension. 3. I have heard the learned counsel for the parties and perused the material available on record.;