Ranawat, C. J. - (1.) THIS is a writ petition by Shivraj Singh under Art. 226 of the Constitution. The petitioner and one Ghasilal contested the election for the office of Sarpanch of Gram Panchayat Banetha, in Uniara tehsil of the Tonk district, and the petitioner came out successfully at the election. He assumed the office of Sarpanch on December 22, 1959 and continued to function as such upto December 8, 1960 on which date the Gram Panchayat ceased to exist. Six villages were taken out from the area of the Gram Panchayat so that a new Gram Panchayat, with the same name, was constituted and it consisted of Banetha and Sardarpura villages. Fresh elections to the reconstituted Banetha Gram Panchyat were held on December 9, 1960 and once again there was a contest between the petitioner and Ghasilal for the office of Sarpanch. The Petitioner defeated Ghasilal at the election and was declared elected on December 9, 1960. Even when the petitioner was functioning as Sarpanch, before his re-election, of the former Banetha Gram Panchayat, some complaints were made against him and charge-sheet Ex. 1 was issued by the Government against the petitioner which, in substance, amounted to an allegation that the petitioner had failed to discharge his duties under sec. 16 of the Rajasthan Panchayat Act (Act XXI of 1953) hereinafter in this judgment referred to as the Act. By that charge-sheet, the petitioner was called upon to show why he should not be removed from the office of Sarpanch under sec. 17 (4) of the Act. The petitioner denied the charges. He however received an order dated January 13,1961 (Ex. P. 2) from the State Government suspending him from the office of Sarpanch under sec. 17 (4a) of the Act. The petitioner has challenged the validity of that order of suspension on the ground that it was not within the competence of the State Government to pass it.
(2.) THE aforesaid facts have not been controverted in the reply filed by the respondents and their main contention is that since an enquiry was already pending before the re-election of the petitioner and could be continued under the provisions of sec. 17 (4a) of the Act, a final order "will be passed in the light of the result of the enquiry" and that the order of suspension has been "passed only in the course of an enquiry and had already been given effect to". It has been denied that the order of suspension is invalid. We have heard the learned counsel for the parties. The only point which arises for decision in this case is whether the State Government could suspend the petitioner under sub-sec (4a) of sec. 17 of the Act in respect of an enquiry which related to the period preceding the current term of the Panchayat and for which a charge-sheet had been served on him before the expiry of that term. It has been argued on behalf of the petitioner that while the proviso to sub-sec. (4) of sec. 17 enabled the State Government, inter alia, to continue an enquiry even after the expiry of the term of the Panchayat, the State Government could record its findings on the charges levelled against the Sarpanch and that it could not take resort to the provisions of sub-sec. (4a) and pass an order of suspension. On the other hand, learned Government Advocate has argued that no restriction could be placed on the scope of sub-section, (4-A) of the Act and that, as mentioned in that sub-section, an order of suspension could be made during the course of "any" enquiry under sub-sec. (4), including the one under its proviso. The provisions of sub-secs (4) and (4a) of sec. 17 of the Act are as follows: - "17 (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, Sarpa-nch, or Upsarpanch 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 rase 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 term 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 " The proviso to sub-sec. (4) and the new sub-sec. (4-A) were inserted by the Amendment Act No. XXXVII of 1959. Without the proviso, the State Governments power of making an enquiry against a Panch, Sarpanch or Up-Sarpanch was confined to their refusal or incapacity to Act or to their misconduct or neglect in the discharge of official duty or to a case in which they were found guilty of any disgraceful conduct in respect of the Panchayat in which they held the office for the time being. By the proviso, the State Government was authorised to initiate such an enquiry even after the expiry of the term of the panchayat or to continue any enquiry which had already been initiated during the term of the former Panchayat. Although this power of enquiry has thus been extended to cover the official lapse, misconduct or neglect etc. on the part of a Panch, Sarpanch or Up-Sarpanch of the Panchayat whose term has come to an end, it has been clearly provided in the subsequent portion of the proviso that in any such case the State Government shall "only record its findings on the charges levelled against Panch, Sarpanch or Up-Sarpanch of the Panchayat during its term of office. ". This provision is important for it limits the extent of the power of the State Government in a case in which an enquiry is held for any misconduct or neglect etc. pertaining to the term of the former Panchayat. Although under sub-sec. (4) the State Government has the power to remove, a Panch, Sarpanch or Up-Sarpanch who is found guilty of misconduct or neglect etc. in connection with the affairs of the Panchayat of which he is a member for the time being, such a power of removal has expressly been taken away under the latter part of the proviso in a case where the misconduct or neglect etc. pertains to the affairs of a Panchayat which has ceased to exist. The learned counsel for the parties are in agreement with this interpretation of sub-sec. (4), which is in fact quite obvious. The question which remains for consideration is whether the State Government could suspend a Panch, Sarpanch or Up-Sarpanch under sub-sec. (4a) who has been found guilty of misconduct or neglect etc. on an enquiry held under the proviso to sub-sec. (4) i. e. if the misconduct or neglect etc. concerns the affairs of a Panchayat whose term has already expired. We have no doubt that the State Government has no such power and that sub-sec. (4a) is not applicable in the case of an enquiry falling within the purview of the proviso to sub-sec. (4 ). As has already been shown, the State Government does not have the power to order the removal of a Panch, Sarpanch for any misconduct or neglect etc. in connection with the affairs of a Panchayat whose term has already expired, and, when there is no such power of removal, there can be no power of suspension, for the reason that an order of suspension in such a case would operate as an interim order of removal. The word "suspend" is defined in the Oxford English Dictionary to mean "to debar, usually for a time from the exercise of a function or enjoyment of a privilege; esp. to deprive (temporarily) of one's office". An order of suspension would therefore amount to temporary removal in a case like this and when the power of removal has not been given to the State Government even at the final stage, it cannot be argued that it has, nonetheless, a power of ordering a temporary removal by making an order of suspension, as in the instant case. The use of the word "any" in sub-sec. (4a) of sec. 17 could not, in this view of the matter, cover the case of an enquiry under the proviso to sub-sec. (4 ). In the result, order No. F3:528:vku:60: Tonk dated January 13, 1961 of petitioner Shivraj Singh's suspension as Sarpanch of Banetha Panchayat is contrary to law and is set aside. The petitioner will be entitled to one set of costs from the respondents. . ;