ORDER, 1974–Suspension of Sarpanch–Warrant case being tried for last 7 years–No charge framed–Held, trial court has not applied its mind mind and it cannot be said that any case is pending against Sarpanch
Admittedly, no charge has been framed against the petitioner so far in the above case till today and the case is now fixed on January 16, 1986 for framing of charge.
The case relates to an offence under Section 3/7 of the Essential Commodities Act for violating the provisions of Rajasthan Cement (Licence and Control) Order, 1974. The offence is punishable upto 7 years under Clause (ii) of Sub-section (1) of Section 7 of the Essential Commodities Act. The case is thus being tried as a warrant case. The trial Court has not applied its mind to merits of the case regarding framing of charge and as such it cannot be said that any case is pending trial against the petitioner.
(b) RAJASTHAN PANCHAYAT ACT, 1953-Sections 17(4) and (4A) and ESSENTIAL COMMODITIES ACT, 1955 – Section 3/7 and RAJASTHAN CEMENT (LICENCE AND CONTROL) ORDER, 1974–Suspension of Sarpanch–Incident of 1978–No charge framed–Adjournments sought to produce record for last 7 years–Held, it is highly unjust to punish an elected Sarpanch by suspeding him in such old matter
The incident relates to 1978 and challan was filed in 1980 and since March 25,1981 till at least upto April 29, 1985, the Assistant Public Prosecutor sought adjournments for producing the record. It is highly unreasonable and unjust to punish a person for no fault on his part and to suspend him in respect of such an old matter when he has been elected as Sarpanch by a democratic process.
Writ Allowed
JUDGMENT
Narendra Mohan Kasliwal, J.
1. The case of the petitioner is that he was elected as Sarpanch of Gram Panchayat, Phagi District Jaipur in the elections held in the month of December, 1981. After the election of the petitioner as Sarpanch in December, 1981, he was continuously holding the said post of Sarpanch. The case of the petitioner further is that he belongs to Bhartiya Janta Patty and the ruling party in Rajasthan belongs to Congress T. In the month of January, 1983, the petitioner was suspended on some illegal charges under Section 17(4) of the Rajasthan Panchayat Act, 1953 (here in after referred to as ‘the Act’). The petitioner filed a writ petition No. 175/83 and challenged the above order of suspension and on a stay petition moved in that case a stay order was also granted in favour of the petitioner. Subsequently, the order of suspending the petitioner was withdrawan by the State Government itself and as such the said writ petition was also withdrawn by the petitioner. The petitioner thereafter came to know that the Under Secretary (Inquiry) Village Development and Panchayat Rajasthan, Jaipur, (respondent No. 2) was going to pass an order under Section 17(4) of the Act suspending the petitioner again. On further inquiry the petitioner came to know that on November 19, 1985, the respondent No. 2 has passed on order suspending the petitioner on the ground that a case under Section 3/7 of the Essential Commodities Act, 1955 (here in after referred to as ‘the EC Act’) is pending against the petitioner in the court of Chief Judicial Magistrate, Jaipur District, Jaipur. According to the petitioner, the said order had not been served on the petitioner till the filing of the present writ petition on November 21, 1985. A certified copy of the order dated Nov. 19, 1985 has been filed as Annexure 1. The petitioner has thus challenged the order dated Nov. 19, 1985 (Annexure 1) by filing the present writ petition.
2. The contention of the petitioner is that no case under the EC Act can be said to be a case involving moral turpitude and as such if any case under Section 3/7 of the EC Act is pending against him then it cannot be considered as a ground for suspending the petitioner under Section 17(4) of the Act. It has been further submitted that a challan had been filed in the year 1980 against the petitioner with regard incident relating to year 1978 and no charge has still been framed in the aforesaid case and as such that case cannot be taken as a ground that any trial is pending against the petitioner. It is submitted that in the above case, the allegation against the petitioner is that he was having 73 bags of cement without licence. Even arguments regarding framing of charge have not been heard in that case and the last date in the above case was November 19, 1985 and the case has now been adjourned to January 16, 1986. That case is to be tried as a warrant case and before framing any charge in the case it cannot be considered that any trial is pending against him. It has been further submitted that even looking to the allegation made in the above case, no case involving moral turpitude can be made out against the petitioner and in these circumstances, the petitioner could not have been suspended under Sub-section (4A) of Section 17 of the Act. It has also been argued that the incident in the above case relates to the year 1978 and thereafter the petitioner has been elected in December, 1981 and he was not debarred from contesting the election and the voters having elected the petitioner in December, 1981, no action could have been taken against him for an act relating to he period of 1978. It has also been submitted that neither any notice was given nor any opportunity of hearing was given co the petitioner before passing the impugned order and as such the impugned order is also violative of the principles of natural justice.
3. A reply has been filed to the writ petition on behalf of the respondents. It has been submitted in the reply that a case under Section 3/7 of ‘the EC Act involving serious accusation against the petitioner is pending in the Court of Chief Judicial Magistrate, Jaipur. The order dated November 19, !985 has been passed by the Government in exercise of the power available under Section 17(4A) of Act. In this case it cannot be disputed that the petitioner is facing trial for an offence containing serious allegations under Section 3/7 of the EC Act and such offence certainly involves moral turpitude. It has been further submitted that in the impugned order the provision mentioned is 17 (4 Ka) which is nothing but Section 17(4A) of the Act and there is no force in the contention of the petitioner that only Section 17(4) was mentioned in the impugned order. It has been further submitted that a challan has been filed in the case and the trial commences even before the framing of the charge in the case. It has also been submitted that a Full Bench of this Court in Bhoora Lal v. State S.B. Civil Writ Petition No. 759/84 decided on May 9, 1985 has clearly taken the view that neither any notice nor any opportunity of hearing is required to be given where a Sarpanch is suspended on account of a case pending trial against him. The impugned order was passed by the Government after considering all the facts and circumstances of the case and as such he is not entitled to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
4. The facts in the case are almost admitted. The original record of the Criminal Case No. 110/80 pending against the petitioner in the Court of Chief Judicial Magistrate had been called. A perusal of the above record shows that the incident relates to July 14, 1978 and July 15, 1978. A challan in respect of the above case was filed on July 31, 1980 under Section 3/7 of the EC Act. It is clearly borne out from the record of the above case that on March 25, 1981 the arguments regarding framing of charge were deferred as the Assistant Public Prosecutor wanted to call Stock Register and other record before making arguments of framing of charge. From March 25, 1981 till April 29, 1985 the case is being adjourned on account of the reason that Assistant Public Prosecutor wanted time for the production of the record. Admittedly, no charge has been framed against the petitioner so far in the above case till today and the case is now fixed on January 16, 1986 for framing of charge.
5. The case relates to an offence under Section 3/7 of the EC Act for violating the provisions of the Rajasthan Cement (Licence and Control) Order, 1974. The offence is punishable upto 7 years under Clause (ii) of Sub-section (1) of Section 7 of the EC Act. The case is thus being tried as a warrant case. The trial Court has not applied its mind to merit of the case regarding framing of charge and as such it cannot be said that any case is pending trial against the petitioner. Apart from the above circumstances, the incident relates to 1978 and challan was in filed 1980 and since March 25, 1981 till at least upto April 29, 1985, the Assistant Public Prosecutor sought adjournments for producing the record. It is highly unreasonable and unjust to punish a person for no fault on his part and to suspend him in respect of such an old matter when he has been elected as Sarpanch by a democratic process. It is also strange that though the petitioner was elected in December, 1981, but action is being taken against him in November, 1985. This clearly goes to show that the State Government did not apply its mind on the peculiar facts and circumstances of this case and though it had withdrawn its earlier order suspending the petitioner, but again passed the present impugned order on November 19, 1985 just in a mechanical manner.
6. In view of the above circumstances, this writ petition is allowed, the order dated November, 19, 1985, (Annexure 1) is set aside.
7. Before parting with the case it may be made clear that any observations made in this case will not affect the merits of the criminal case pending before the Chief Judicial Magistrate. It is further observed that it was not proper to grant adjournments for a period of nearly 4 years to the Assistant Public Prosecutor for producing any record. The trial Court should not have granted such indulgence before hearing arguments for framing of charge. The record of the criminal case may be sent back to the trial Court immediately with a direction to dispose of the case now as expeditiously as possible. A copy of this order be sent to the learned Chief Judicial Magistrate.