Anshuman Singh, J. - (1.) This petition under Article 226 of the Constitution of India is directed against an order dated 28.4.97 passed by the Additional Secretary (Enquiry) Rajasthan, Jaipur suspending the petitioner Smt. Archana Bohra. Sarpanch Gram Panchayat Roopangarh, Panchayat Samiti Kishangarh, Ajmer in exercise of power conferred under Section 38(4) of the Rajasthan Panchayati Raj. Act, 1994, a copy of which has been filed as Annexure-5 to the writ petition. The brief facts which are relevant for the purpose of deciding the present case are that the petitioner was elected as Sarpanch of Gram Panchayat Roopangarh in the election held in the month of January, 1995 defeating one Smt. Shama Devi. It has been stated that the respondent No. 5 Smt. Kamlesh Kumari against whom the petitioner had contested the election earlier and who has been elected as a member of Panchayat Samiti Kishangarh on the ticket of BJP made a false complaint against the petitioner vide letter dated 11.1.96 to the respondent No. 4 i.e. the Block Development Officer Panchayat Samiti Kishangarh. In the said complaint it. has been alleged that the petitioner has committed irregularity in purchase of construction material and also misused the funds of Panchavat and thereby embezzled the funds of the Panchayat. It has been stated in para 6 of the petition that on enquiry made by Kuihva Karvakari Adhikari, Zila Parishad Amer, only some of Rs. 08/- was found short and no other serious irregularities were found. It has been further alleged that all of a sudden the petitioner came to know through a news item published in "Danik Bhaskar" in Ajmer Edition on 3.5 97 that the petitioner has been suspended from the post of Sarpanch Gram Panchavat Roopangarh. It has further been alleged that the petitioner approached the authority but he was not told the reason or ground for suspension, however, he arranged a copy of the suspension order dated 28.4.97 which has been issued under Section 38(4) of the,. Rajasthan Panchayati Raj Act. 1994. Feeling aggrieved against the aforesaid order the petitioner has approached this Court. in extraordinary writ jurisdiction with a prayer to quash the suspension order dated 28.4.97.
(2.) I have heard Mr. Hanuman Choudhary, learned counsel for the petitioner at considerable length. The first limb of the argument of the learned counsel for the petitioner is that the suspension order has been passed in violation of the provisions of Section 38(1) of the Rajasthan Panchayati Raj. Act, 1994. In order to test the correctness of the contention of the learned counsel for the petitioner. It is relevant to mention Section 38(1) and 38(4) of the Act, 1994 in extension. Which runs as under- "38. Removal and suspension - (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- (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. (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-section (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 stand debarred from taking part in any act or proceeding of the Panchayati Raj. Institution concerned while being under such suspension."
(3.) The learned counsel for the petitioner vehemently urged that the petitioner has been suspended without any opportunity of being heard and the suspension order is liable to be quashed in view of the provisions of the Act. 1994 which provides a reasonable opportunity being given to a chairperson or a deputy chairperson of a Panchayati Raj. Institution. The contention of the counsel for the petitioner is wholly fallacious on the premises that the present case is not a case of removal but it is a case of suspension. There is no manner of doubt that before passing order of removal a duty is cast upon the authorities concerned to afford reasonable opportunity of being heard. Since the order impugned in the present writ petition is not an order of removal, the provisions of Section 38(1) of the Act 1994 cannot be attracted. As far as the suspension is concerned, the Legislature has not provided any opportunity of being heard before passing order in exercise of power conferred under Section 38(4) of the Act 1994 and the recital made in the impugned order is very emphatic that the suspension order has been passed in exercise of power conferred under Section 38(4) of the Act, 1994. Therefore, the argument of the learned counsel for the petitioner being wholly devoid of merit deserves to be rejected.;