RAMESH CHAND MALVIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged an order of his suspension from the post of Sarpanch. It is admitted that an enquiry under Section 38 (1) of the Rajasthan Panchayati Raj Act, 1994, is going on against the petitioner. THE learned counsel submits that the alleged misconduct was of the time prior to the petitioner's re-election, when he was Sarpanch of the same Panchayat and he cannot be removed for something which was done in an earlier term and not in the current term as Sarpanch. It is further contended that as the petitioner is not liable to be removed from Officer under Section 38 (1) of the Act, he cannot be suspended under Section 38 (4) of the Act.

(2.) THE learned counsel relies on the proviso to Section 38 (1) and submits that under this proviso, an enquiry under sub section (1) of Section 38 can be conducted/initiated even after the expiry of the term of the Panchayati Raj Institution but in such an enquiry, no order for removal of a Member, Chairperson or the Deputy Chairperson can be passed. THE proviso, according to the learned counsel, permits recording of findings on the charges levelled but does not permit removal from office. To my mind, such an interpretation would lead to absure results. To appreciate the argument, it is necessary to reproduce Section 38 (1) of the Act. It reads as under: "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. "