K. C. AGARWAL, C. J. - (1.) THIS petition under Art. 226 of the Constitution was filed by the Mahadev Prasad challenging the order dated March 31, 1990 of the State Government by which suspension of respondent no. 5 (Madan Singh) from the office of Sarpanch, Gram Panchayat, Jaisinghpura Tehsil Virat Nagar, Jaipur, passed under Section 17 (4-A) of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as the Act') was recalled.
(2.) SUB-section (4-A) of Section 17 of the Act reads as under : " The State Government may suspend any Panch, Sarpanch or Upsar-panch against whom an enquiry has been started under sub-section (4) or the proviso thereto or against whom any criminal proceeding in regard to an offence involving moral turpitute is pending trial in a court of law, and debar him from taking part in any act or proceeding of the Panchayat within under such suspension. " The State Government suspended respondent no. 5 by its order dated January 27, 1990 by expressing its prima facie view to the effect: ******** This order was subsequently withdrawn by the State Government on March 31, 1990 by observing that after re-examination of the entire matter pertaining to the respondent no. 5 the State Government arrived at the opinion that the order suspending respondent no. 5 be revoked with immediate effect, but departmental enquiry to continue. The main contention raised by the petitioner's counsel before Hon'ble Mr. Justice D. L. Mehta was that the State Government had no power to revoke the order passed under sub-section (4a) of Section 17 of the Act. In support of this argument a decision, reported in Om Prakash V. State of Rajasthan (1) was cited before the learned Judge. The learned Judge expressed doubt about the correctness of that decision and referred the following question :- " Whether a suspension order passed under the provisions of the Rajasthan Panchayat Act can be recalled by the State Government or not?" Section 17 of the Act deals with vacation of seats by and removal of Panchas. Since we are not concerned with the details as to how is a Panch is removed it is not necessary for us to refer to those provisions. State Government derives power under sub-sec. 4-A of Section 17 of the Act for suspending any Panch, Sarpanch or Upsarpanch against whom an enquiry has been stated under sub-section (4), or the proviso thereto. Section 70b of the Act indicates a provision conferring power of review by State Government. This review is for a limited purpose of recalling the order passed under sub-section (4) of Section 17 or the proviso thereto. Sub-section (4)of Section 17 provides for a final order removing any Panch, Sarpanch or Upsarpanch on the grounds specified in clauses (a) and (b ). If under sub-section (4) of Section 17 a decision has been taken for removal of a Sarpanch, the State Government can review such an order if the same was passed under mistake, whether of law or of fact; or in ignorance of any material fact. There is no provision empowering State Government to review the order passed under sub-section (4-A) of Section 17. Legislature did not think it necessary to confer such power of review in case of suspension. As by its nature suspension a different than removal contemplated by sub-section (4) of Section 17. Removal is definite and final, where as suspension is a temporary order to remain in force till enquiry goes on. Such an order will come to an end ipso facto, on the proceedings under sub-section (4) of Section 17 terminating. It has a short life and is meant to debar a Panch or Sarpanch for the period the enquiry is going on.
(3.) FROM the nature of the order contemplated by sub-section (4-A) it is clear that the State Government can recall it at any time when it is thought that interest of the institution did not need its continuation. Suspension order can be snapped on being recalled by the State Government and, as stated above, it is temporary in nature. Counsel for the petitioner urged that had the Legislature intended that the State Government be conferred the power of recalling a suspension order passed under sub-section (4-A) it would have made a provision to that effect in Section 70-B. The Legislature having not conferred the same type of power with regard to sub-section (4-A) as it is with regard to sub-section (4), the Legislature may have intended that the State Government will not have the power to recall it. Under sub-section (4-A) of Section 17 a Panch, Sarpanch or Upsar-panch can be suspended on fulfilling the conditions mentioned in the same. Consequently, if the State Government finds that there are criminal proceedings in regard to an offence involving moral turpitude then Surpanch- or Upsarpanch can be suspended. As a result of suspension, he would not be entitled to take part in any act or proceeding of the Panchayat, The duration of the suspension would be the period during which enquiry is pending. The State Government has, however, discretion to recall that order. If the State Government finds that the material, on which he had been suspended, is not sufficient to continue the suspension order, it can revoke the same. The suspension order being adminis-trative in nature, the same is discretionary. The court of law cannot interfere with the exercise of such discretion unless it is made with oblique motive or upon extraneous consideration. But in the garb of exercise of power to withdraw suspensioa, State Government is entitled to function arbitrarily or capriciously. ;