D.P. Gupta, J.
1. Heard learned Counsel for both the parties. The submission of the learned Counsel for the petitioner is two fold : in the first place, be urges that the order of suspension of the petitioner passed on August 23, 1976 is bad in law, in as much as an enquiry as contemplated under Sub-section (4A) of Section 17 of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as 'the Act') has not started as yet and therefore the State Government has no jurisdiction to suspend the petitioner from his office of Sarpanch; in the second place, learned Counsel argues that allegations of malafide have been made in para 12 of the writ petition against Shri B.L. Sharma, Collector, Pali and it is urged that the charge sheet and the show cause notice served upon the petitioner as well as the order of suspension of the petitioner from the office of the Sarpanch should be quashed on the aforesaid grounds. In support of his first contention, learned Counsel relies upon a decision of this Court in Pukhraj v. State of Rajasthan 1965 R.L.W. 98. Mr. Mathur, learned Additional Government Advocate on the other hand submits that the decision of the learned Single Judge in Pukhraj's case 1965 R.L.W. 98 has been set aside by a Division Bench of this Court in State of Rajasthan v. Pukhraj 1970 R.L.W. 125. He also submits that the arounds which have been raised by the petitioner in this writ petition can be taken by him in the enquiry under Section 17 of the Act and as the said enquiry is still proceeding against the petitioner, it would not be proper for this court at this stage to consider the questions reined in this writ petition. Mr. Mathur states at the Bar that the Sub Divisional Officer, Pali, has been appointed by the State Government as the Enquiry Officer under Sub-rule (3) of Rule 21 of the Rajasthan Panchayat and Nyaya Panchayat (General) Rules, 1961 (hereinafter referred to as the Rules') to make an enquiry into the charges which have been drawn up and served upon the petitioner. I have considered the rival contentions.
2. As regards the first contention of the learned Counsel for the petitioner, it appears that a show cause notice under Rule 21(2) of the Rules, was issued to the petitioner on August 21, 1976 calling upon him to show cause to wiring why an enquiry in respect of the charges be not made. A charge sheet containing 11 charges, drawn up under Sub- rule (1) of Rule 21, was also sent to the petitioner along with the aforesaid show cause notice. It may be recalled here that a preliminary enquiry under Rule 20 was earlier held against the petitioner by the Additional District Development Officer, Pali, who submitted his report on April 24, 1976 and he fund that the petitioner was guilty of grievous misconduct. The aforesaid report was then pent by the Collector, Pali, along with his recommendations to the State Government under Sub-rule (4) of Rule 20 of the Rules, Thereupon, the State Government considered the report of the preliminary enquiry and then drew up the charge sheet which was sent to the petitioner along with the show cause notice dated August 21, 1976 (Anx 6). The grievance of the petitioner is that although he was enquired to submit a reply to the aforesaid charge sheet on or before September 9, 1976, yet without waiting for the reply of the petitioner the State Government proceeded to pass an order on August 23, 1976 under Sub-section 4(A) of Section 17 of the Act suspending the petitioner. According to the learned Counsel for the petitioners the 'enquiry' contemplated under Sub-section (4A) of Section 17 would only begin when the State Government appoints an enquiry officer after considering the representation of the petitioner in reply to the charge sheet and the show cause notice and that the State Government has no jurisdiction to pass an order of suspension at any stage earlier thereto.
3. Although a learned Single Judge of this Court had in Pukhraj's case 1965 R.L.W. 98 taken the view which has been canvassed by the learned Counsel for the petitioner, yet on appeal the decision of the learned Single Judge in that case was set aside by a Division Bench of this curt. It was held by the Division Bench on appeal (2) that there was no reason to take the narrow view that even after issuing a notice calling upon the Panch, Sarpanch or Upsarpanch to show cause why the charges, statement of which has been furnished to him, should not be enquired into, the 'enquiry' should not be deemed to have started within the meaning of Section 17(4A) of the Act. Thus according to the decision of the Division Bench of this court, the enquiry begins as soon as a show cause notice under Sub-rule(2) of Rule 21 of the Rules, along with a copy of the charges framed under Sub-rule (1) of Rule 21 is issued by the State Government to the Panch, Sarpanch or Up-Sarpanch concerned and the State Government has the power to suspend a Panch, Sarpanch or Up-Sarpanch after the enquiry against him has begun, as provided under Sub-section (4A) of Section 17 of the Act In the present case, it is not disputed that a show cause notice along with the charge sheet was sent to the petitioner by the State Government on August 21, 1976. It cannot thus be held that the order of suspension passed by the State Government on August 23, 1976 under Sub-section (4A) of Section 17 of the Act was without jurisdiction. The State Government had the authority to pass an order of suspension of the petitioner from his office of Sarpanch, as soon as the show cause notice along with a copy of the charge sheet was issued to the petitioner on August 21, 1976. I have myself taken this view in a case recently decided by me that then enquiry referred to in Sub-section (4A) of Section 17 of the Act starts with the issuing of a show cause notice along with a charge sheet and ends when a final order is passed by the State Government under Rule 22 of the Rules Moreover, in the present case, Mr. Mathur has also stated at the Bar that an enquiry officer has already been appointed under Sub-rule (3) of Rule 21 to enquire into the charges framed against the petitioner. In this view of the matter, the first contention of the learned Counsel fails and must be repelled.
4. As regards the second contention, in para 12 of the writ petition, it has been alleged by the petitioner that Shri B.L. Sharma, Collector, Pali, pressurized the petitioner to cancel the 'Pattas' executed by the Panchayat in favour of two persons, namely, Naharmal and Bhanwarlal, in respect of plots of land sold to them by public auction by the Panchayat but as the petitioner expressed his inability to oblige him in this matter, the Collector, threatened the petitioner with dire consequences. Learned Counsel for the petitioner argued that Mr. B.L. Sharma who has been personally made a party to the writ petition has not controverted the allegations of malafides made against him in para 12 of the writ petition. However, a question was pertinently put to the learned Counsel as to whether any allegations of malafides have been levelled against the State Government in the writ petition but learned Counsel was unable to point out any allegation of malafides against the State Government. It may be pointed out here that the orders which have been challenged in the present writ petition, namely, the show cause notice along with the charge sheet and the order of suspension of the petitioner have been passed by the State Government and not by Shri Sharma. The State Government, under Sub-rule (1) of Rule 21, must have considered the report of the Preliminary Enquiry made by the Additional District Development Officer and then the State Government thought that the charges were prima facie made out against the petitioner and thereafter a charge sheet was drawn up and a show cause novice was issued to the petitioner and he was also suspended. As no allegations of malafides have been made against the State Government, it cannot be said that the State Government could not proceed with the enquiry contemplated under Section 17(4) of the Act, in the present case Learned Counsel for the petitioner argued that the sales, which have been made subject-matter of charges Nos. 1 to 10, were fully authorised by the decisions of the Panchayat and the petitioner, acting as a Sarpanch, merely carried out the decisions of the Panchayat and that he has no personal liability in the matter and that there is no allegation of personal misconduct against the petitioner. Learned Counsel agrees that all the aforesaid defences have already been taken by the petitioner in his reply to the charge sheet received upon him by the State Government. It would now be for the State Government to decide the question as to what responsibility the petitioner has in the matter and whether any personal misconduct on the part of the petitioner would be proved, as a result of the enquiry which is going to be conducted against him of the basis of the charge sheet served upon him, would be decided thereafter. In my view, this Court cannot prejudge the aforesaid questions at this stage, as the charges which have been framed against the petitioner are still subject matter of an enquiry under Rule 21 and the State Government will have to decide in respect thereof under Rule 22 after it receives the findings of the enquiry officer. There is another charge No. 11 in the charge sheet with relates to an allegation of forgery on the part of the petitioner. It has been stated at the Bar that a criminal trial is pending in the matter against the petitioner under the provisions of the Indian Penal Code Lamed counsel submits that the matter to which this charge No. 11 relates is an old one and a prima facie decision in respect of the alleged forgery is said to have been approved at in favour of the petitioner by the Sub Divisional Officer, Pali, on 6-2-70 That may be so, but the charge is subject matter of a regular enquiry against the petitioner and the State Government will have to ultimately decide about the matter. I do not consider that thin court can interfere at this stage with the proceedings in respect of the enquiry which is going on against the petitioner under Sub-section (4) of Section 17 of the Act read with Rule 21 of the Rules. It is expected that the enquiry officer shall expectiously complete the aforesaid enquiry and would submit his report to the State Government.
5. The writ petition has, therefore, no merit and the same is dismissed.