- (1.)THIS is a writ petition under Art. 226 of the Constitution by one Maghraj, who was a Sarpanch of Gram Panchayat, Meetari. By it he challenges the validity of the Government order dated 28-7-66, whereby under the provisions of s. 17 (4-A) of the Rajasthan Panchayat Act, 1953 (hereinafter to be referred to as 'the Act'), certain findings were recorded against him in respect of certain acts of misconduct alleged to have been committed by him when he was a Sarpanch of the panchayat during its previous tenure in the year 1961. He also questions the validity of a consequential order passed by the Government on 28-10-1966, restraining him from functioning as a Sarpanch.
(2.)THE relevant facts on which the writ petition is founded are briefly these. THE petitioner was elected as Sarpanch of the Gram Panchayat first in the year 1961, and after the term of the panchayat came to an end, he was again elected in the year 1965 as a Sarpanch. While he was working as a Sarpanch second time, he was faced with an enquiry under s. 17 (A-4) of the Act. He was served with a charge sheet on 10-11-1965. In pursuance thereof, the petitioner submitted his reply denying the charges and then an enquiry was hold against him and on 28-7-66, an order was passed, under the proviso to sub-sec. 4 of sec. 17 of the Act, that the petitioner would be disqualified to hold any office under the Act for the next three years. Subsequently, on the basis of that finding, an order was passed against him whereby he was forbidden to function as a Sarpanch and the Government declared his seat vacant.
It was contended by the petitioner in the first instance that the finding recorded against him on 28-7-1966 was illegal. In the second place, it was contended that the finding could not result in debarring or disqualifying him from holding the present office as Sarpanch, though it might disqualify the petitioner from seeking election at a future election for the period of three years for which the finding would operate against him.

The writ petition was opposed by the State of Rajasthan. During the pendency of this writ petition, one Chunnilal and Rameshwarlal, on whose complaints, the enquiry was instituted against the petitioner, applied fortuning impleaded as respondents. It was felt by the Court that these persons were not necessary parties to the case. However, for assisting the Court for a proper determination of the controversy raised, their learned counsel Shri J. S. Rastogi was also heard.

Learned counsel for the petitioner did not press the first point, and he argued the second point on the basis that the finding recorded against the petitioner may be assumed to be correct. On that assumption it was urged by learned counsel that the finding does not entitle the State Government to remove the Sarpanch from his present office. He invited my attention to a judgment of mine in S. B. Civil writ No. 1847 of 1966 - Poornaram vs. State of Rajasthan - decided on 29-9-1967, and submitted that the present case was wholly covered by the view taken in Poornaram's case. Learned Deputy Government Advocate did not contest that the present case was covered by what was held in Poornaram's case, but he submitted that the question decided in Poornaram's case is the subject matter of a Full Bench Reference in some earlier cases therefore, the hearing of the present case should be postponed. I would have readily postponed the hearing of this case in expectation of the decision in the Full Bench case, but it could not be ascertained precisely as to when the Full Bench would be constituted for the purpose. At any rate, there is no expectation of the Full Bench being constituted in the near future. In these circumstances, I do not consider just and proper to delay the disposal of the present writ petition as it would necessarily deprive the petitioner of an elective office. The normal tenure of the panchayat has already expired, and I am told, that its term has been extended only by one year so that various steps for fresh electors could be taken in the meantime. In Poornaram's case, it was observed by me that of a bare perusal of sub-sec. 4, 4-A & 4-B shows that where action has been taken against a panch, sarpanch or upsarpanch on the basis of what he had done during the tenure of the previous panchayat then the matter has to best with the regarding of a finding against him as contemplated under sub sec. 4 of sec. 17. " I added that on account of the finding, the panch, Sarpanch or Up-sarpanch concerned shall not be eligible for re-election under this Act for a period of three years from the date of such finding, but that finding could not disqualify the petitioner Poornaram from continuing as a Sarpanch of the present panchayat, nor was it open to the State Government to take any step to remove the Sarpanch on the basis of the finding.

Shri Rastogi has submitted that this view requires reconsideration. He submits that the provisions of s. 11 (j) imposes a disqualification on a person against whom a finding has been given for holding the office of a Panch, Sarpanch or Up-sarpanch, and, as such a disqualification is incurred after election of such a person, action can be taken against him under sub sec. 1 of sec. 17 of the Act. For appreciating the argument of Mr. Rastogi it will be convenient to read the relevant provisions. Sec. 11.- Qualification of Panchas.- Every person, who is entitled to vote at an election in any Panchayat Circle or a Ward thereof for the purposes of this Act, shall be qualified for election or appointment as a Panch, unless such person - (j) is for the time being ineligible for election under sub-sec. (4b) of sec. 17 of this Act or under sub-sec (3) of sec. 40 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959. " The relevant portions of sec. 17 are like this - "17. Vacation of sents by and removal of Panchas.- (1) (a) If any Panch, Sarpanch or Upsarpanch, 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. (4) The State Government may, by order in writing and after giving him an opportunity of being heard and making such inquiry as may be deemed necessary, remove any Panch, Sarpanch, or Up-sarpanch who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct: Provided that any such inquiry as is referred to in this sub-section may be initiated even after the expiry of the term of a Panchayat or, if already initiated before such expiry, may be continued thereafter and in any such case the State Government shall, by order in writing, only record its findings on the charges levelled against a Panch, Sarpanch or Up-Sarpanch of the Panchayat during its terms of office. (4a) The State Government may, during the course of any enquiry under sub-sec. (4), suspend a Panch, Sarpanch or Up-Sarpanch against whom the inquiry has been started and debar him from taking part in any act or proceeding of the Panchayat while under such suspension. (4b) A Panch, Sarpanch or Up-Sarpanch who has been removed under sub-sec. (4) or against whom findings have been recorded under the proviso to that sub-section shall not be eligible for re-election under this Act for a period of three years from the date of his removal or, as the case may be, from the date on which such findings are recorded. "

The argument of Shri Rastogi at the first blush appeared to be plausible, but on a closer scrutiny, it did not hold water. Sec. 11 describes the qualification of Panchas, and in doing so, provided that - "every person, who is entitled to vote at an election in any Panchayat Circle or a Ward thereof for the purpose of this Act, shall be qualified for election or appointment as a Panch. " The various sub clauses of the section define the disqualifications, and clause (j) has therefore to be treated as a disqualification. A perusal of clause (j) shows that the ineligibility contemplated therein has a reference to sub-sec. (4b) of sec, 17, and therefore, this clause has to be read in conjunction with the relevant clause in 6 (4b) and other allied clauses of sec. 17. Sec. (4b) provides that a Panch, Sarpanch or Up-Sarpanch against whom findings have been recorded, shall not be eligible for re-election under this Act for a period of three years from the date of such findings. Therefore, in construing clause (j) of sec. 11, we have to take the ineligibility which refers to the period contemplated under sub-clause (4b) of sec. 17 of the Act for the purposes of re-election and that cannot be construed to mean disqualification for holding the present office of the Panch, Sarpanch or Up-Sarpanch concerned. Were this not so, then the use of the word "only" occurring in the expression "the State Government shall, by order in writing, only record its findings", in sub-sec. (4) of sec. 17 will be rendered otiose. The use of this word "only" provides the real clue for getting at the legislative intent and in review the Legislature only intended that where a finding is recorded against a Panch, Sarpanch or Up-Sarpanch in respect of what he might have done as a member of the previous panchayat, that should not result in debarring him from his present office but would only dis-entitle him from standing at a future election. Shri Rastogi wanted to argue like this. First there will be the finding under sub-sec. (4) of sec. 17, then that finding results in disqualification under clause (j) of sec. 11 of the Act, and then as such dis-quali-fication was incurred after the person concerned had been elected. , sub-sec. (1) of sec. 17 will empower the State Government to remove such person. Sub-sec. (1) of sec. 17 of the Act does not give any discretion whatsoever to the State Government and once the formality of giving a notice is completed, the State Government is bound to remove him. In other words, the position, if Shri Rastogi's contention is accepted comes to this. Instead of passing an order of removal in the order giving the finding itself, the State Government will be just having one formality more of giving a notice to the person concerned and then removing him. In that context, if the Legislature had really intended such a course, then it should not have been wanting in words to provide clearly that a finding recorded under sub-sec. (4) would result in the removal of the Panch, Sarpanch. The use of the expression "only" in sub-sec. (4) clearly delineates the object of such a finding. The object of such a finding has in my view, to be gathered from what is contained in sub-sec. (4b ). Therefore, reading all these provisions harmoniously. I am convinced that the recording of a finding under sub-sec. (4) of Sec. 17 of the Act cannot result in the removed of the Panch, Sarpanch, or Up-Sarpanch from the office that he may be holding for the time being. In these circumstances, I see no reason to depart from the view that I have taken in Poornaram's case. Shri Rastogi also invited my attention to Doabia's Election Cases, 1962, Page 7 (Moolchand Sharma vs. The State of Uttar Pradesh ). Their Lordships of the Supreme Court, who were dealing with the provisions of Sec. 18-D of the U. P. Municipalities Act, 1916, while interpreting that section pointed out that - "if a member of the Board incurs the disqualification during the period of his membership, he will be disqualified for being a member of the Board. This provision is applicable to the stage previous to the election as also to a stage after that. " I have carefully gone through this judgment and I am unable to hold that the provisions that I am called upon to construe are analogous to those which fell for consideration at the hands of their Lordships. In the present case, the provisions of sub-sec. (4) of Sec 17 of the Rajasthan Act, 1953, in my view, provide the clue for gathering the 1egislative intent as already observed. Apart from this, the background of Sec. 17, (4a) and (4b) cannot be lost sight of. These sub-sections were introduced by Rajasthan Act No. 37 of 1959 when was published in the Rajasthan Gazette, Extraordinary, Part IV-A, dated 9-9-1959. I may also mention that the proviso to sub-sec. (4) was also inserted by the same Amendment Act. The position prior to these Legislative charges was, and it was held more than once by this Court, that it was not open to the State Government to make an enquiry under sub-sec. (4) of sec. 17 of the Act against a Panch, Sarpanch or a Up-Sarpanch in respect of anything he may have done as a member of the previous panchayat. Even if the enquiry were pending by the time, the term of the previous panchayat came to an end, that could not be continued once the Panch, Sarpanch or Up-Sarpanch concerned was no longer such Panch, Sarpanch or Up-Sarpanch on account of the expiry of the term of the panchayat. It was with a view to remedying this that the amendments were made. By virtue of the amendments, such an enquiry could be continued even after the expiry of the term of the previous panchayat. It may not always be that a person who was a member of the previous panchayat is once again a member of that panchayat as a result of any fresh election, and therefore, the provision for recording a finding was made, and in such a case where one is not re-elected, there would be no point in making provision for removal of the Panch, Sarpanch or Up-Sarpanch. Then that finding would intail the disqualification for the person concerned for re-election in future for the stated period. I may also make a reference to a Division Bench case of this Court - Shiv Raj Singh vs. State of Rajasthan (1 ). That case was decided after these amendments had come into force. The petitioner in that case became Sarpanch of a certain panchayat in December 1959, and the tenure of his office came to an end in December, 1960. He came to be elected as a member of the panchayat second time at the fresh elections. In respect of certain charges against the petitioner for what he was alleged to have done as a member of the previous panchayat, an enquiry under sec. 17 of the Act was instituted against him and during the course of the enquiry, he was suspended. There the learned Judges had to examine the validity of the suspension order, and in doing so, they considered the question whether the power of removal would be there even if the charges were held proved against the petitioner in the enquiry' concerned. They pointed out that the enquiry would not result in the removal of the petitioner, and therefore, suspension could not have been ordered, as according to the learned Judges, suspension amounted to temporary removal which was not warranted by Sec. 17 of the Act. Though this case related to the power of suspension, it, in my opinion, lends support to the view that I have taken in Poornaram's case. In these circumstances, the Government cannot be said to points the power of removing the petitioner or restraining him from discharging the duties of his office or to declare the seat vacant. This action cannot be taken by the Government on the basis of the findings recorded against the petitioner as a result of the enquiry relating to the charges for the period he held the office in the previous panchayat. As I have already observed, learned counsel for the petitioner has not challenged the correctness or the legality of the findings themselves. In these circumstances, I allow the writ petition in part while the findings recorded by the Government against the petitioner on 28-7-1966 shall stand, the Government order dated 28-10-1966, restraining the petitioner from functioning as a Sarpanch and declaring his seat is hereby set aside. The State Government is restrained from interfering with the discharge of the duties of the Sarpanch of the Panchayat by the petitioner except according to law. There would be no order as to costs. .

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