Kan Singh, J. - (1.) THIS is a writ petition under Article 226 of the Constitution by one Maghraj, who was a Sarpanch of Gram Panchayat Meetari. By it he challenges the validity of the Government order dated 28.7.66, whereby under the provisions of Section 17(4 -A) of the Rajasthan Panchayat Act, 1953 (hereinafter to be referred to as 'the Act'), certain findings were recorded against him in respect of certain acts of misconduct alleged to have been committed by him when he was a Sarpanch of the Panchayat during its previous tenure in the year 1961. He also questions the validity of a consequential order passed by the Government on 28.10.1966, restraining him from functioning as a Sarpanch.
(2.) THE relevant facts on which the writ petition is founded are briefly these. The petitioner was elected as Sarpanch of the Gram Panchayat first in the year 1961, and after the term of the Panchayat came to an end, he was again elected in the year 1965 as a Sarpanch. While he was working as a Sarpanch second time, he was faced with an enquiry under Section 17(4) of the Act. He was served with a charge -sheet on 10.11.1965. In pursuance thereof, the petitioner submitted his reply denying the charges and then an enquiry was held against him and on 28 -7 -66, an order was passed, under the proviso to Sub -section 4 of Section 17 of the Act, that the petitioner would be disqualified to hold any office under the Act for the next three years. Subsequently, on the basis of that finding an order was passed against him whereby he was forbidden to function as a Sarpanch and the Government declared his seat vacant. It was contended by the petitioner in the first instance that the finding recorded against him on 28 -7 -66 was illegal. In the second place, it was contended that the finding could not result in debarring or disqualifying him from holding the present office as Sarpanch, though it might disqualify the petitioner from seeking election at a future election for the period of three years for which the finding would operate against him. The writ petition was opposed by the State of Rajasthan. During the pendency of this writ petition, one Chhunilal and Rameshwarlal, on whose complaints, the enquiry was instituted against the petitioner, applied for hearing impleaded as respondents. It was felt by the Court that these persons were not necessary parties to the case. However, for assisting the Court for a proper determination of the controversy raised, their learned Counsel Shri J.S. Rastogi was also heard. Learned Counsel for the petitioner did not press the first point, and he argued the second point on the basis that the finding recorded against the petitioner may be assumed to be correct. On that assumption it was urged by learned Counsel that the finding does not entitle the State Govt. to remove the Sarpanch from his present office. He invited my attention to a judgment of mine in S.B. Civil writ No. 1847 of 1966 Poornaram v. State of Rajasthan decided on 29 9 -1967, and submitted that the present case was wholly covered by the view taken in Poornaram's case. Learned Deputy Govt. Advocate did not contest that the present case was covered by what was held in Poornaram's case, but he submitted that the question decided in Poornaram's case is the subject matter of a Full Bench Reference in some earlier case therefore, the hearing of the present case should be postponed. I would have readily postponed the hearing of this case in expectation of the decision in the Full Bench case, but it could not be ascertained precisely as to when the Full Bench would be constituted for the purpose. At any rate, there is no expectation of Full Bench being constituted in the near future. In these circumstances, I do not consider just and proper to delay the disposal of the present writ petition as it would necessarily deprive the petitioner of an elective office. The normal tenure of the Panchayat has already expired, and I am told, that its term has been extended only by one year so that various steps for fresh elections could be taken in the meantime. In Poornaram's case, it was observed by me that a bare persual of Sub -section (4) and (4B) shows that where action has been taken against a Panch, Surpanch or Up - Sarpanch on the basis of what he had done during the tenure of the previous Panchayat then the matter has to be raised with the recording of a finding against him as contemplated under Sub -section (4) of Section 17. I added that on account of the finding the Panch, Sarpanch or Up -Sarpanch concerned shall not be eligible for re -election under this Act for a period of three years from the date of such finding, but that finding cannot disqualify the petitioner from continuing as a Sarpanch of the present Panchayat, nor it is open to the State Govt. to take any step to remove the Panch Sarpanch or Up -Sarpanch on the basis of the finding.
(3.) SHRI Rastogi has submitted that this view requires reconsideration. He submits that the provisions of Section 11(j) imposes a disqualification on such a person against whom a finding has been given for holding the office of a Panch, Sarpanch or Up -Sarpanch, and as such, a disqualification is incurred after election of such a person, action can be taken against him under Sub -section (1) of Section 17 of the Act, For appreciating the argument of Mr. Rastogi it may be convenient to read the relevant provisions embodying the portions which are material. Section 11 is like this: Qualification of Panchas : Every person, who is entitled to vote at an election in any Panchayat Circle or award thereof for the purposes of this Act, shall be qualified for election or appointment as a panch, unless such person - (j) - is for the time being ineligible for decision under Sub -section (4B) of Section 17 of this Act or under Sub -section (3) of Section 40 of the Rajasthan Panchayat Samitis & Zila Parishads Act, 1959 . He having been elected or appointed as aforesaid, becomes disqualified during the term of his office for such election or appointment. His seat shall be declared by the State Govt., after giving him an opportunity of being heard, to have become vacant. (4) - The State Govt. 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, Sarpanch, or Up -Sarpanch who - (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Govt. 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 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 case State Govt., 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 terms of office. (4A) The State Government may, during the course of any enquiry under Sub -section (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. (4B) A Panch, Sarpanch or Up -Sarpanch who has been removed under Sub -section(4) or against whom findings have been recorded under the proviso to that Sub -section shall not be eligible for re -election under this Act for a period of three years from the date of his removal or, as the case may be, from the date on which such findings are recorded.;