PATIL CJ. - (1.) PETITIONER Ram Lal Choudhary was an elected Member of Panchayat Samiti Dudu. He was served with a notice for an enquiry under Section 39 (2) of the Rajasthan Panchayati Raj Act, 1994 (for short `the Act of 1994') on the ground that he has disqualified himself on account of he having more than two children which is prohibited under Clause (1) of Sec. 19 of the Act of 1994. The notice was issued on 11. 12. 1997 and he was called upon to submit his reply on 20. 12. 1997 by the Deputy Secretary (Law), Government of Rajasthan, Jaipur. On 11. 12. 1997 an order was passed by the Director & Special Secretary to the Government of Rajasthan that he is disqualified under Sec. 39 on account of breach of Sec. 19 (1) for having more than two children but he has been issued notice under Sec. 39 (2) for personal hearing adhering to the principle of natural justice. He has been suspended as a Member of Panchayat Samiti Dudu in exercise of powers under Sec. 38 (4) with immediate effect. It is this notice and order of suspension which are challenged by filing the writ petition No. 40/98.
(2.) PRIOR to the suspension of Ram Lal Choudhary, the Member of the Panchayat Samiti Dudu submitted a no confidence motion against the Pradhan of Panchayat Samiti Dudu on 17. 11. 1997. In pursuance of the said notice, the Chief Executive Officer, Zila Parishad, Jaipur by order dated 20. 11. 1997 fixed the meeting for consideration of no confidence motion against the Pradhan on 12. 12. 1997. Twenty four Members attended the meeting on 12. 12. 1997 inclusive of Ram Lal Choudhary, the Sub Divisional Officer, who presided over the meeting of no confidence motion had restrained Ram Lal Choudhary from participating in the no confidence motion meeting on account of he being suspended by the State Government under Section 38 (4) of the Act of 1994. Twenty three members excluding Ram Lal Choudhary were permitted to vote. Out of those twenty three Members, twenty one voted in favour of the no confidence motion. The Sub Divisional Officer has passed an order that total membership of the Panchayat Samiti Dudu is thirty three. Since Ram Lal Choudhary is suspended, the membership of the Panchayat Samiti remains thirty two. Two third of the thirty two members would be twenty two members and twenty two members is the requisite number for passing the no confidence motion. Since the no confidence motion is supported by only twenty one members, no confidence motion fails. This order is challenged in Writ Petition No. 39/98. It is submitted by the counsel appearing on behalf of the petitioner that the order of suspension which has been passed on 11. 12. 1997, a day earlier of the no confidence motion meeting fixed, is per se without jurisdiction and, as such, non est. Under the illegal order Ram Lal Choudhary was restrained from exercising his right to vote and participate in the meeting, had Ram Lal Choudhary been permitted to vote the result of no confidence motion would have been different particularly so when Ram Lal Choudhary in the no confidence meeting gave in writing that his vote be counted in favour of no confidence motion. First question requires determination is whether the order of suspension issued against Ram Lal Choudhary on 11. 12. 1997 is in accordance with Law. The power to suspend is derived under Sub-Section (4) of Section 38, which reads as under:- " 38 (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 proceeding of the Panchayati Raj Institution concerned while being under such suspension. " The State Government under Sub-Sec. (4) of Sec. 38 can suspend a member 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. The effect of suspension is provided in the latter part of sub-sec. (4)of Sec. 38 that if there is a suspension order, the person suspended shall be debarred from taking part in any act or proceeding of the Panchayati Raj Institution while he is under suspension. Power of suspension can be exercised by the State Government only if there is an enquiry initiated under sub-section (1) or any criminal proceeding pending regarding any offence involving moral turpitude. Admittedly, there is no criminal proceeding pending against Ram Lal Choudhary. Thus the power to suspend has been resorted to on the ground that the enquiry has been initiated under sub-section (1) of Sec. 38. Sec. 38 (1) reads as under:- " 38 (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 ini-tiated 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. " Sub-Section (1) of Sec. 38 of the Act of 1994 gives power to the State Government to remove any member including a chairperson or a deputy chairper-son of a Panchayati Raj Institution by order in writing after giving such person an opportunity of being heard and making such enquiry as may be deemed necessary. The power to remove a member can be exercised only if the member refuses to act or become incapable of acting as such or is guilty of misconduct in the discharge of duties or any disgraceful conduct. Having more than two children can not be said to be members refusing to act or becoming incapable of acting as a member. Neither it can be a misconduct in the discharge of duties as a member or a disgraceful conduct. The power to remove under sub-section (1) can be exercised only if there is a ground exists under Clause (a) or Clause (b) of Sec. 38 (1 ). If there is a ground exists under Clauses (a) and (b) of Sec. 38 (1) then only power to suspend can be resorted to on initiation of enquiry. If there is no ground exists under Clause (a) and (b) of Sec. 38 (1), there cannot be an enquiry on those grounds under sub-section (1) and if there is no enquiry there is no power with the State Government to suspend a member of the Panchayati Raj Institution. In fact Ram Lal Choudhary has been given the notice under Sec. 39 (2) that he is disqualified to be a member of the Panchayati Raj Institution, he having more than two children which disqualifies him to be a member of Panchayati Raj Institution. There is no notice given to Ram Lal Choudhary under Sec. 38 (1) of the Act of 1994. In the absence of commencement of any enquiry under sub-section (1) of Sec. 38, no order could have been passed suspending Ram Lal Choudhary. The order of sus-pension dated 11. 12. 1997 (Annexure No. 6 in Writ Petition No. 40/98) is without jurisdiction and is hereby quashed.
(3.) RAM Lal Choudhary was not permitted to vote in the no confidence motion held on 12. 12. 1997. He was wrongly restrained to vote in the no confidence motion by virtue of the order of suspension passed on 11. 12. 1997 which has been quashed by this Court. RAM Lal Choudhary was competent to exercise his vote which was not permitted to him by the Competent Authority i. e. the Sub Divisional Officer and as the result thereof he had passed an order that no confidence motion has failed. We are of the view that the one vote of RAM Lal Choudhary will make difference in passing or not passing of the no confidence motion. In view thereof the order of Sub Divisional Officer, Sambhar Lake Camp, Panchayat Samiti Dudu declaring the no confidence motion has failed, is set aside. The Presiding Officer i. e. Sub Divisional Officer, Panchayat Samiti Dudu. District Jaipurshall issue notice to RAM Lal Choudhary to attend the Panchayat Samiti Office on a particular date to cast his vote on the no confidence motion moved against Pradhan of the Panchayat Samiti Dudu and will declare the result of the motion of no confidence afresh after permitting RAM Lal Choudhary to cast his vote by counting all the votes casted in favour of or against the no confidence motion. This exercise shall be done by the Sub Divisional Officer within a period of fifteen days of the placement of this order before him. For the aforesaid reasons, both the writ petitions are disposed of. In the circumstances of the case there shall be no order as to costs. .;