KOKJE, J. - (1.) THE petitioner has challenged an order of his suspension from the post of Sarpanch. It is admitted that an enquiry under Section 38 (1) of the Rajasthan Panchayati Raj Act, 1994, is going on against the petitioner. THE learned counsel submits that the alleged misconduct was of the time prior to the petitioner's re-election, when he was Sarpanch of the same Panchayat and he cannot be removed for something which was done in an earlier term and not in the current term as Sarpanch. It is further contended that as the petitioner is not liable to be removed from Officer under Section 38 (1) of the Act, he cannot be suspended under Section 38 (4) of the Act.
(2.) THE learned counsel relies on the proviso to Section 38 (1) and submits that under this proviso, an enquiry under sub section (1) of Section 38 can be conducted/initiated even after the expiry of the term of the Panchayati Raj Institution but in such an enquiry, no order for removal of a Member, Chairperson or the Deputy Chairperson can be passed. THE proviso, according to the learned counsel, permits recording of findings on the charges levelled but does not permit removal from office. To my mind, such an interpretation would lead to absure results. To appreciate the argument, it is necessary to reproduce Section 38 (1) of the Act. It reads as under: "the State Government may, by order in writing and after giving him an opportunity of being heard and making such enquiry as may be deemed necessary, remove from office any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution, who- (a) refuses to act or becomes incapable of acting as such; or (b) is guilty of misconduct in the discharge of duties or any disgraceful conduct; Provided that any enquiry under this sub-section may, even after the expiry of the term of the Panchayati Raj Institution concerned be initiated or, if already initiated before such expiry, be continued thereafter and in any such case, the State Government shall, by order in writing, record its findings on the charges levelled. " What is made clear by the proviso is that an enquiry can be initiated and continued even after the expiry of the term of the Panchayati Raj Institution. This means, a charge-sheet can be served on the petitioner for something which he had done during the previous term in office. Logically, on conclusion of the enquiry, the person who is found guilty can be punished. Findings on the charges are not recorded for academic reasons. They are recorded because they can be used against the delinquent official. In case of a Member, Chairperson or Deputy Chairperson of a Panchayati Raj Institution who has not sought re-election or who has failed to get elected again to the same post which he occupied earlier, the enquiry under Section 38 (1) will stop after recording finding on the charges levelled. There is no question of removal from office in such a case. The person has already ceased to hold the office. Such a person will only incur the disqualification under Section 38 (3) in which, it is clearly stated that the Member or the Chairperson or the Deputy Chairperson removed under sub section (1) or against whom findings have been recorded under the proviso to that sub- section, shall not be eligible for being chosen under the Act for a period of five years from the date of his removal or as the case may be, the date on which such finding are recorded. However, so far as the person who gets re-elected to the office and continues to hold such office, the order for removal can be made and Section 38 (4) clearly applies to such a person and he can be suspended from his office. Obviously, Section 38 (4) can have no application in the case in which the person has already ceased to hold office and has not got re-elected to the same office. In the present case, the petitioner has been re-elected and is continuing on the post of Sarpanch. He may, therefore, be removed from office, if found guilty in an enquiry under Section 38 (1) of the Rajasthan Panchayati Raj Act, 1994. There is, therefore, no force in the contention that for something which had been done in the previous term of the office, the petitioner could not be removed from office and Section 38 (4) of the aforesaid Act did not apply to him. The learned counsel cited a decision of Division Bench of this Court rendered in case of Shivraj Singh vs. State of Rajasthan (1 ). That judgment was rendered under the Rajasthan Panchayats Act, 1953. There is a difference in the language of the provision of Section 38 (1) of the Rajasthan Panchayati Raj Act, 1994 and the old Act, 1953. The words "only record its findings on the charges levelled against Panch, Sarpanch or Up- Sarpanch of the Panchayat during its term of office" used in Section 17 (4) of the old Act, have not been repeated verbatim in the new Act. The deleting of these words shows a clear intention to permit action to be taken against an office bearer of a Panchayati Raj Institution for something which was done by him in his previous term of office. The ruling has, therefore, no application in this case. The learned counsel further submitted that the action taken against the petitioner was malafide. According to the learned counsel, the charges were framed and levelled against him only because the Executive Officer of the Panchayat, who happened to be the resident of the same village, was inimical towards him. I have perused the charge sheet which contains serious charges. The charge-sheet was issued on 1. 11. 2000 for something which was done in the year 1998/1999 and thereabouts. It cannot be said that the charges were frivolous in nature and that the action was belated. For the aforesaid reasons and observations, I find no substance in the petition. The petition is, therefore, dismissed. . ;