Rajesh Balia, J.
1. Heard learned Counsel for the appellants.
2. The appellants challenge the order passed by the learned Single Judge allowing the writ petition filed by the respondent Madanlal.
3. The petitioner Madan Lal was elected as Sarpanch of Gram Panchayat, Baseda, Panchayat Samiti Shahpura, Distt. Bhilwara in February, 2000. The petitioner was served with a notice dt. 28th September, 2001 calling upon him to explain that since he has contested the election of Sarpanch while the criminal case under Sections 325, 323 and 324 was pending consideration in the Court of Addl. Chief Judicial Magistrate, Shahpura at the time when he filed his nomination papers, he was ineligible to contest the election under Section 19(gg) of the Panchayati Raj Act, 1994. Thereafter, on 27th October, 2001 an order was issued by the Divisional Commissioner, Ajmer that because an enquiry under Section 39 read with Section 19 of the Act of 1994 is pending against the said Madanlal, he is suspended as Sarpanch with immediate effect and he was restrained from participating in any proceedings of the Panchayat.
4. Aggrieved with the order dt. 27.10.2001, the said Madanlal has preferred the Writ Petition No. 4259/2001, which has been allowed by the learned Single Judge by holding that during the pendency of hearing of notice under Section 39 of the Panchayati Raj Act, 1994 and before issuing any declaration under Section 39(2), the petitioner ineligible which will require him to vacate the office elected member of any Panchayati Raj Institution cannot be removed from the office temporarily by ordering suspension. The said judgment of the learned Single Judge is under appeal.
5. learned Counsel for the appellants has strenuously contended that since the enquiry was pending against the respondent Sarpanch Madanlal and prima facie he was ineligible to contest the election, he could not have contested and become Sarpanch at all. He was a usurper of office, therefore, cannot be allowed to continue to discharge functions of Sarpanch and non-disclosure of this fact at the time of filing nomination papers itself, was a disgraceful misconduct within the meaning of Section 38 for which he could be suspended during the pendency of enquiry under Section 38(4) of the Act.
6. learned Counsel for the appellants in this connection relied on Full Bench decision of this Court in Bhural Lal v. State of Raj. and Ors. [1988(1) RLR-945] and Mohanlal v. State of Raj. and Ors., D.B. Civil Special Appeal (Writ) No. 674/2001 and the connected appeals decided on 29th November, 2001.
7. For appreciating the contention of the learned Counsel for the appellants, it is necessary to refer to two provisions namely; Section 38 and Section 39 of the Act and to view them in comparison to discern scope of two provisions. The provisions read as under:
Section 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.
(2) The chairperson or the deputy chairperson removed under Sub-section (1) may at the discretion of the State Government also be removed from the membership, if any of the Panchayati Raj Institution concerned.
(3) The member or the chairperson or the deputy chairperson removed under Sub-section (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.
(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 shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension.
Section 39. Cessation of membership.--(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 Section 19; or
(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
(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.
(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-section (1), the concerned authority may, after giving him an opportunity of being heard, declared him to have become so ineligible and thereupon he shall vacate his office as such member.
Provided that until a declaration under this Sub-section is made he shall continue to hold his office.
8. The perusal of two provisions bring out clearly the distinction between two. While Section 38 operates about any conduct or something that happened after a person has been elected as a member of any Panchayati Raj Institution and an enquiry is to be conducted against the elected member of the Panchayati Raj Institution in respect of such post election conduct. The enquiry and consequence of such enquiry under Section 38 does not reach pre-election conduct or happening.
9. An enquiry under Section 38 is envisaged only in such cases where after election an elected member of the Panchayati Raj Institution refuses to act or become incapable of acting as such and secondly, where he is guilty of misconduct in the discharge of duties or is otherwise guilty of any disgraceful conduct. Thus, an enquiry under Section 38 can be instituted and the provisions of Section 38 can be invoked only relating to action or inaction on the part of elected member after he is elected as member of the Panchayati Raj Institution and does not refer to any conduct anterior to his becoming a member. It is while an enquiry in respect of charges mentioned under Section 38 is pending and before he could be removed from the office on finding of existence of one or other grounds mentioned in Sub-section (1) of Section 38, Sub-section (4) empowers the State Government to render such elected member from discharging duties of his office by suspending such elected member during the pendency of enquiry. In addition to the pendency of an enquiry in respect of matters envisaged under Section 38(1) for the purpose of exercise of power to suspend an elected member another ground has been envisaged under Sub-section (4) that is where against an elected person of the Panchayati Raj Institution any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a Court of law then also he can be suspended. As a result of suspension he may be debarred from taking part in any proceeding of the Panchayati Raj Institution concerned and discharged his office during the pendency of enquiry or the trial as the case may be.
10. In contrast Section 39 does not refer to any such misconduct or inaction or incapability of the elected member to act as such, but it refers to ineligibility of a person to hold the office by a member of Panchayat. However, before a member can be asked to vacate the office of Panchayati Raj Institution held by him, a declaration about such ineligibility of such member to continue to hold office has to be made by the Competent Authority. No such declaration can be made without affording the member so affected an opportunity of hearing. Only on making of such declaration the member is required to vacate his office and not earlier thereto.
11. The contingencies referred to in Section 39 where a person is held to be ineligible to hold the membership and can be so declared (i) where a person is or becomes subject to any disqualifications specified in Section 19, or (ii) has absented himself from three consecutive meetings of the Panchayati Raj Institution concerned without giving information in writing to such Panchayati Raj Institution or (iii) is removed from the membership, or (iv) resigns from the membership, or (v) he dies, or (vi) fails to make the prescribed oath or affirmation of the office of membership within three months from the date of election or appointment.
12. Existence of any of the above contingencies makes that a person ineligible to continue as a member of the Panchayati Raj Institution. However, before ineligibility to continue as a member under Sub-section (1) of Section 39 becomes operative, the legislature has envisaged, that a declaration about such ineligibility of the member is made by the Competent Authority after giving the elected member concerned an opportunity of hearing except perhaps in case where he has died and thereupon the seat shall be vacated by such member.
13. Very significantly for the present purpose the legislature has also unequivocally expressed its mandate vide proviso to Sub-section (2) of Section 39 that until a declaration required under Sub-section (2) of Section 39 is made, such member shall continue to hold the office. Apparently merely by levelling an allegation that a member of Panchayati Raj Institution has become ineligible to continue as such member is not sufficient to restrain such member from discharging duties of his office. This mandate obviously cannot operate if such member is suspended pending opportunity of hearing afforded to him and hearing is not complete, nor any finding is reached by the Competent Authority about the alleged ineligibility. A suspended member cannot discharge duties of his office.
14. Apart from this the charges in respect of which Section 39 operates, are different from grounds for which enquiry under Section 38 can be held. It is also apparent that when an enquiry against the elected member is initiated, the law empowers the State Govt. to temporarily remove such member from the area of discharging his office by suspending him during the pendency of enquiry. No such power has been conferred on the Competent Authority to remove temporarily the elected member from the office without declaring him ineligible, by merely levelling of charges of ineligibility against such member. This conclusion to which learned Single Judge has reached we are in agreement with it.
15. The other contingency for which powers under Section 38(4) can be invoked, is that a member who is undergoing trial for an offence involving moral turpitude. However, the allegation levelled against the petitioner-respondent falls short of such requirement. The allegation against the petitioner-respondent reads as under:
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;g fd iapk;r pquko 2000 es vkis xzke iapk;r ckrsM+k ds ljiap ds in ds fuokZpu tc uksfeuslu Hkjk mlh le; vkids fo:) vfrfjDr eq[;k U;kf;d eftLVsV 'kkgiqjk dh vnkyr es Hkkjrh; n.M+ lafgrk dh /kkjk 325] 323] 324 ds rgr eqdnek la[;k 414@97 fopkjk/khu Fkk rFkk mles vkids fo:) izlaKku fy;k tkdj vkjksi fopfjr dj fn;s x;s Fks A ,slh fLFkfr es vki iapk;rh jkt vf/kuh;e dh /kkjk 19 th-th- ds izko/kkuks ds vUrZxr ljiap dk pquko ugh yM+ ldrs Fks A vr% D;ks u vkidks ljiap ds in ls v;ksX; ?kksf"kr fd;k tkos A
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16. A reading of the allegation shows that no allegation that any criminal proceedings are pending in presenting against the member-respondent-petitioner is made. Nor the allegation shows that charges levelled against the said member involve any case of moral turpitude. Merely by alleging that cognizance was taken against the respondent-petitioner for having committed offences under Sections 323, 324 and 325 at the time of filing nomination paper cannot be equated with an allegation of pendency of a criminal proceeding relating to offences involving moral turpitude when notice of intended declaration of ineligibility of the member concerned is issued. It is not even the case that said criminal proceedings are still pending when the impugned order was made nor any satisfaction appears that charges levelled against the petitioner were involving moral turpitude.
17. No case is made out either for invoking proviso to Sub-section (4) of Section 38 which was inserted vide Ordinance No. 2/2000 w.e.f. 6.1.2000.
18. learned Counsel for the appellants has relied on two cases, which in our opinion, are of little relevance to the question that has been raised before us.
19. So far as Mohanlal's case (supra) relied on by the appellants is concerned, it does not deal with the power of the Competent Authority or the State Govt. to suspend a person as member of the Panchayati Raj Institution during the pendency of enquiry under Section 39 at all.
20. It was a case in which the question was whether the enquiry under Section 39 and action under Section 43 could be taken simultaneously. The Court answered the same in positive by holding that Section 39 is a special provision to take care of a specific wrong and Section 43 is a general provision to raise election dispute or more than one ground and is available to the candidates at such election. Therefore, this special provision takes care of the principle that every wrong has a remedy and no wrong can be left without remedy. The decision nowhere refers to or deals with power of State Govt. to suspend a member of Panchayati Raj Institution during enquiry under Section 39 read with Section 19(gg).
21. The decision in Bhuralal's case (supra), too does not assist the appellants. It was rendered in the Scheme of Rajasthan Panchayati Raj Act, 1953. The provisions of Sub-section (4A) of Section 17 which enabled the State Govt. to suspend a Panch or a Sarpanch of Panchayat are vitally at variance with the provisions of Panchayati Raj Act, 1994. Under the Act of 1953, there was no corresponding provision like Section 39 nor any such mandate of legislation was there that until declaration of ineligibility to hold office as required under Section 39 is made, the elected member shall continue to hold his office. Therefore, there being basic difference in the Scheme of two enactments, the ratio laid down in Bhural Lal's case cannot be of any assistance to decide the controversy raised in this appeal.
22. Lastly, it was contended by the learned Counsel for the appellants that what is stated in proviso to Section 39 is that until a declaration is made, the elected member shall continue to hold his office. According to learned Counsel the expression 'declaration' has multi-facet meaning and cannot be confined to final decision after completion of enquiry. Reaching satisfaction about alleged ineligibility for initiating proceeding and its statement in allegations itself is a declaration envisaged under proviso to Section 39(2). Therefore, it must be assumed that the State has necessary power to suspend a person against whom allegation of ineligibility is pending enquiry.
23. We are unable to sustain this contention. The expression used in the legislation is to be read in the context of reading of Section 39 as a whole. The proviso to Section 39(2) is only a rider to the provisions of Section 39(2) itself. Section 39(1) envisages contingencies in which a member becomes ineligible to continue to hold office and vacate it. However, Sub-section (2) envisages that condition precedent before a member can be asked to vacate the office is that a declaration to that effect is made by the Competent Authority after affording an opportunity of hearing to member concerned. Unless such declaration is made, ineligibility does not operate automatically.
24. Proviso to Sub-section (2) refers to 'a declaration made under this Sub-section' that is Sub-section (2) of Section 39. Therefore, the expression 'declaration under this Sub-section' cannot refer to any other declaration than the one envisaged under Sub-section (2) of Section 39. It is clearly envisaged under substantive provision of Sub-section (2) that the Competent Authority has to make a declaration that a member concerned has become ineligible before he is required to vacate his office as member. Such declaration can take place only after giving the affected member an opportunity of hearing and on reaching a final conclusion about any such ineligibility as envisaged in show cause notice. Unless such declaration after affording opportunity is made, the member cannot be stopped from discharging duties of his office. Else the provision of making a declaration after affording opportunity of hearing itself be rendered nugatory and redundant if during the pendency of hearing of show cause notice an order restraining the member concerned from discharging his duties as member is made by suspending him. Therefore, there is no room for countenancing argument that a declaration envisaged under proviso is different from declaration required to be made under Sub-Section (2).
25. As a result, this appeal fails and is hereby dismissed in limine.