BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS petition has been filed challenging the order of placing the petitioner under suspension vide order dated 12. 02. 2004 (Annexure-5) on the alleged ground that prima facie it has been proved that the petitioner was ineligible to contest the election and to hold the elected office of Panchayati Raj Institutions as he has been found disqualified under Section 19 (1) of Panchayati Raj Act, namely, that he had third child after the cut-off date i. e. , 27. 11. 1995. The challenge is on two fold grounds. Firstly, that the provision authorizing the State Government to nominate competent authority under Section 2 (vii) of the Rajasthan Panchayati Raj Act 1994 is invalid as according to the learned counsel for the petitioner the naming of competent authority is a part of essential legislative function which could have been designated by the Legislature itself and such legislative function could not have been delegated to the State Government. Secondly, on merit of the case, it was contended that the charge and the prima facie finding in preliminary enquiry pertains to disqualification of the petitioner to hold the elected office of Panchayati Raj Institutions but it does not pertain to any matter which can be inquired into under Section 38 of the Act and, therefore, holding enquiry on the basis of alleged disqualification which fell under Section 39 of the Act while holding an enquiry into the matter within Sec. 39, no power vests in the State Government to suspend the incumbent during the pendency of enquiry relating to disqualification to hold the elected office under Section 19 (1) of the Act. Therefore, the order of suspending the petitioner during pendency of enquiry by giving reference to Section 38 (1) and 39 (2) of the Act was wholly without jurisdiction. So far as the constitutional validity of Section 2 (vii) is concerned, the same has been held intra-vires by this Court in the case of Smt. Mridula Kanwar vs. State of Rajasthan (D. B. Civil Writ Petition No. 5773/2003, decided on 15. 09. 2004 ). Hence, no second declaration is required to be made. However, so far as second contention is concerned, the contention is sustainable on the admitted facts of the case. The order (Annexure-5) placing the petitioner under suspension though refers it to be an enquiry both under Section 38 (1) and 39 (2), the fact into which enquiry is conducted is only referable to alleged disqualification incurred by the petitioner under Sec. 19 (1) of the Act of 1994. The respondents have placed on record the copy of the preliminary finding which was submitted to the CEO, Zila Parishad, Sirohi by Vikash Adhikari, Panchayati Samiti, Abu Road under letter dated 24. 9. 2001. The notice to show cause was issued on 20. 02. 2004 which clearly states that since a birth of third child to the elected Member has been registered after 27. 11. 1995, which has been found to be correct in enquiry, he comes under purview of disqualification under Section 19 (1) of the Act of 1994 and the petitioner was called upon to show cause against the preliminary finding reached by Chief Executive Officer, Zila Parishad, Sirohi (Annexure-7) dated 20. 02. 2004. Vide Exhibit R/1 submitted by the respondents, which is a copy of the letter dated 24. 9. 2001 by Vikash Adhikari, Panchayat Samiti, Abu Road to CEO, Zila Parishad, Sirohi along with Enquiry Report, also says that the petitioner has incurred disqualification under Section 19 (1) of the Act of 1994 for holding the Elected Membership of the Panchayati Raj Institutions. The Scheme of Section 38 and 39 of the Panchayati Raj Act, 1994 leaves no room of doubt that the scope of these Sections on the the matter which require enquiry under Section 38 or under Section 39 are entirely different. While during pendency of enquiry under Section 38, power to suspend an Elected Member has been conferred upon the State Government, Section 39 makes a clear provision contrary to what has been made in Section 38 of the Act that until declaring a Member of a Panchayati Raj Institution ineligible under Section 39 (2) he shall continue to hold his office. For the present purposes, it would be apposite to reproduce the Section 38 and 39 in juxtaposition:- Sec. 38. Removal and Suspension.- Sec. 39. Cessation of Membership.- (1) 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- (1) [a] member of a Panchayati Raj Institution shall not eligible to continue to be such member if he- (a) is or becomes subject to any of the disqualifications specified in Sec. 19; or (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: (b) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution; or 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. (2) The chairperson or the deputy chairperson removed under Sub-sec. (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned. (c) is removed from the membership; or (d) resigns from the membership; or (e) dies; or (f) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment. (3) The member or the chairperson or the deputy chairperson removed under Sub-sec. (1) or against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under this Act for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. (2) Whenever it made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in Sub-sec. (1), the concerned authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such member. (4) The State Government may suspend any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under Sub- sec. (1) or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law and such person shall stand debarred from taking part in any act or proceedings of the Panchayati Raj Institution concerned while being under such suspension. [xxx] Provided [xxx] that until a declaration under this sub Section is made he shall continue to hold his office.
(3.) SECTION 38 of the Act of 1994 deals with removal and suspension- (i) when a person or elected member refuses to act or becomes incapable of acting as such; or (ii) is found guilty of misconduct in the discharge of duties or any disgraceful conduct. Both the provisions of Sec. 38 do not refer to the disqualification to be incurred as prescribed in SECTION 19 (1) of the Act. Section 39 deals with cessation of membership on being or having become disqualified or incurring any disqualification prescribed under Section 19 of the Act. Sub-section (2) empowers a competent authority to declare a member to continue his office if he is satisfied on holding such enquiry as he deem fit that the member is disqualified and has become disqualified to hold the office and proviso to Sub-section (2) of Section 39 makes it abundantly clear that during pendency of enquiry, until it culminates into a declaration under this Sub-section (2) against the member, he cannot be ousted from the office. In view thereof, by mere reference to Section 38 and 39 in the impugned order, the enquiry cannot be considered to have been held under Section 38 and the enquiry can only be related to Section 39. ;