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Hariram Chaudhary Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1171/80
Judge
Reported in1980WLN530
AppellantHariram Chaudhary
RespondentState of Rajasthan
DispositionPetition dismissed
Cases ReferredGopal Singh vs. State of Rajasthan (decided
Excerpt:
.....11 and 17 and rajasthan panchayat and nyaya panchayat (general) rules, 1961--rule 12--sarpanch convicted under section 366 i.p.c.--held, writ jurisdiction cannot be invoked to perpetuate him in office till decision of appeal in supreme court.;a comprehensive reading of clause (2) and (3) alongwith operative part of this order would show that all that is intended by this court is that till the question of vacation of this seat under section 17(1)(a) is finally decided sarpanch would not function as such. this is what precisely is contemplated by rule 11(2). i am, therefore, of the opinion that the order under challenge warrants no intereference. even otherwise, i am of the opinion, that under article 226 a sarpanch who has been convicted under section 366 i.p.c., not only by..........the rajasthan panchayat and nayaya panchayat (general) rules, 1961, suspension order of a panch, sarpanch, upsarpanch cannot be passed till the enquiry is pending and since no inquiry in the instant case, is pending, suspension cannot be ordered.3. i have carefully considered the submission made on behalf of the petitioner by the learned counsel and perused the judgment of gopal singh's case. case of gopal singh is of a government servant, whose services were terminated on account of conviction during the pendency of the appeal. it was held by this court that since matter is sub judice in appeal, tedmination of services simpliciter on the ground of conviction cannot be allowed.4. in the instant case, no order of removal has been passed so far by the court. whether the principles laid.....
Judgment:

Guman Mal Lodha, J.

1. Petitioner, Hariram Chaudhary Sarpanch Gram Panchayat, Dadia under Panchayat Samiti, Arain, District Ajmer has filed this writ petition challenging the order of suspension dt. January 12, 1979. According to the order of suspension, petitioner has been convicted under Section 366 and Section 343 I.P.C. and sentenced to the various tedms of imprisonment and fine. This results in disqualification under Section 11(g) of the Rajasthan Panchayat Act, 1953 (hereinafter referred to be as the Act, 1953). Since the proceedings under Section 17 of the Act 1953 for declaring his seat vacant are pending against him, he has been placed under suspension pending completion of these proceedings.

2. Learned Counsel for the petitioner has argued that against the judgment of conviction an appeal was filed before the High Court and the High Court confirmed the conviction. Further, it is alleged that judgment of the High Court is sub judice before Hon'ble the Supreme Court, where the sentence awarded against the petitioner has been suspended. On this premises, it is argued that as per the dictum of law laid down in S.B. Civil Writ Petition No. 51/1976, Gopal Singh vs. State of Rajasthan (decided on December 5, 1978), since against the judgment of conviction, appeal is pending before the Appellate Court, person or civil servant against whom sentence has been passed can not be suspended nor he can be removed from service. It was argued that under Rule 12 of the Rajasthan Panchayat and Nayaya Panchayat (General) Rules, 1961, suspension order of a Panch, Sarpanch, Upsarpanch cannot be passed till the enquiry is pending and since no inquiry in the instant case, is pending, suspension cannot be ordered.

3. I have carefully considered the submission made on behalf of the petitioner by the learned Counsel and perused the judgment of Gopal Singh's case. Case of Gopal Singh is of a Government servant, whose services were terminated on account of conviction during the pendency of the appeal. It was held by this Court that since matter is sub judice in appeal, tedmination of services simpliciter on the ground of conviction cannot be allowed.

4. In the instant case, no order of removal has been passed so far by the Court. Whether the principles laid down in Gopal Singh's case would apply to the case of a Sarpanch, Panch, Upsarpanch in matters of disqualification under Section 11(g) of the Rajasthan Panchayat Act, 1953 on account of conviction during the pendency of the appeal, need not be decided in the instant case. Even on the assumption that the principles laid down in Gopal Singh's case are applicable, since no order of removal has been passed against the petitioner so far, writ petition is pre-mature.

5. So far as the suspension is concerned, both Section 17 of the Act and Rule 11 of the Rules contemplate proceedings for removal on account of disqualification. Section 17 Clause (1) is as under:

Section 17: Vacatoin of seats by and removal of Panchas-(1)(a) if any Panch, Sarpanch or Up Sarpanch, who is not qualified for election or appointment as such under this Act, has been elected or appointed to a Panchayat, or

(b) if any Panch, Sarpanch or Up-sarpanch after having been elected or appointed as aforesaid becomes disqualified during the term of his office for such election or appointment,

his seat shall be declared by the State Government, after giving him an opportunity of being heard, to have become vacant.

Rule 11. Vacation on account of disqualification.

(1) Whenever it is represented, to, or otherwise brought to the notice of the State Government:

(i) that any Panch of a Panchayat, who has been declared to be duly elected or co-opted as such or who has been appointed as such under the any provision of the Act, or

(ii) that any Sarpanch or Up-sarpanch of a Panchayat or any member or Chairman of a Nayaya Panchayat, who has been declared to be duly elected as such or who has been appointed as such under any provision of the Act, was not qualified, or was disqualified, for such election, co-option or appointment at the time when he was so elected, co-opted or appointed or has thereafter become disqualified for continuing as such Panch, Up-sarpanch, Sarpanch, member or chairman, the State Government shall draw up clearly and precisely the alleged disqualification or disqualifications forming the subject of the representation made to it, or otherwise brought to its notice and forward a copy thereof to the Collector, requiring him to inquire or to cause an enquiry to be made into the allegation and make a report in the matter, together with his findings on the alleged disqualification or disqualifications to the State Government with all convenient despatch.

(2) The State Government may order that, pending such inquiry and final orders in the matter, the Panch, Sarpanch, Up-Sarpanch, member or

Chaidman shall refrain from acting as such.

(3) xxx

(4) xxx

(5) xxx

Under the rule making power of the Act, Rules 10 and 11 provide proceedings for vacation of the seat, Rule 11 is precisely for disqualification. Under Rule 11 Sub-clause (1) or (2) whenever it is represented to the Government that Panch or Sarpanch has become dis-qualified, then the procedure has been provided for making inquiry about it. Collector under Sub-clause (ii) is required to inquire into the allegations of disqualification and then he should send his finding on the alleged disqualification to the State Government. Sub-clause (2) of Rule 11 enables the State Government to suspend a Panch, Up-Sarpanch, or Sarpanch by passing a restraint order against him. Restraint order contemplated by Sub-clause (2) tant-amounts to suspension because he is restrained from acting as such till final orders in the matter, are passed. This is what precisely has been done in the instant case.

6. Learned Counsel for the petitioner submits that Clause (3) of the Order should be read to mean that the restraint order would continue till the judgment is given in this case, in appeal by the Supreme Court. A careful study of this order would show that there is no indication that any appeal is pending in the Supreme Court or any Court and the Government wants to restrain the Sarpanch from functioning as such till that appeal is decided. A comprehensive reading of Clauses (2) and (3) alongwith operative part of this order would show that all that is intended by this court is that till the question of vacation of this seat under Section 17(1)(a) is finally decided Sarpanch would not function as such. This is what precisely is contemplated by Rule 11(2). I am, therefore, of the opinion that the odrer under challenge warrants no interference. Even otherwise, I am of the opinion, that under Article 226 a Sarpanch who has been convicted under Section 366 I.P.C., not only by the Trial Court but also whose conviction has been upheld by the High Court, should not be ordered to continue acting as such during appeal because an abductor or kidnapper, should not be allowed to adorn public office, as per the democratic moral values, till clouds are cleared and stigma is removed.

7. Sarpanch or Panch, according to ancient saying and age old belief is 'Parmeshwar' God in the village and such high office of great respect should not be allowed to be usurped by person having conviction of moral tarpitude like abduction or rape. Equitable jurisdiction cannot be invoked by such person on the sole ground that appeal is pending.

8. It is in the interest of law, morality and democracy that Article 226 is not misused for thursting or perpetuality, in office, such persons of debased conduct, till the stigma is cleared in appeal. A sensible and Sarpanch of self-respect would himself realise that he should not insist on working as Sarpanch in his own interest, till the clouds of 'abductor Convict' is cleared.

9. The result is that writ petition fails and is therefore, dismissed in limine.


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