BHANDARI, J.—This is a special appeal under sec. 18 of the High Court Ordinance and arises in the following circumstances:

On 4th October, 1960 Shri Pukhraj was elected as Sarpanch of Badgaon Panchayat, but he had to relinquish his office on account of no confidence motion passed against him on 10th October, 1963. On 23rd January, 1964 he was again elected as Sarpanch of the said Panchayat. On 24th May, 1964 he received a notice from the Assistant Secretary (Enquiry) Government of Rajasthan asking him to show cause why enquiry should not be made in respect of the charges contained in the statement annexed to the notice. He submitted his reply to the charge-sheet. On 10th June, 1964 the petitioner received an order from the Assistant Secretary (Enquiry) by which the petitioner was suspended from the post of Sarpanch under sec. 17(4-A) of the Rajasthan Panchayat Act (hereinafter called the Act.)

2. Shri Pukhraj filed a writ petition in this Court challenging the aforesaid order of suspension on various grounds. This writ petition was heard by Jagat Narayan J. The writ petition was allowed by the learned Judge and he set aside the aforesaid order of suspension. It is against this judgment of the learned Single Judge that the State of Rajasthan has filed this appeal.

3. Notice of the appeal was sent to Shri Pukhraj respondent but inspite of the service of the notice he is not present. In order to appreciate the point involved in this appeal, it is necessary to refer to sec. 17(4) and 17(4-A) of the Act and also to rules 20 and 21 of the Rajasthan Panchayat and Nyaya Panchayat General Rules, 1961 (hereinafter called the Rules): —

"sec.17(4) The State Government 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 or Sarpanch who—

(a) refuses to act or becomes incapable of acting as such, or

(b) in the opinion of the State Government 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 in 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 case the State Government 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 term of office.

(4-A) The State Government may, during the course of any inquiry under sub-sec. (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 proceedings of the Panchayat while under such suspension."

Rule 20. Preliminary inquiry for removal.—"(l) The Collector may, on his own motion or upon the requisition of the State Government initiate a preliminary inquiry under sub-sec. (4) of sec. 17 against any Panch, Sarpanch or Up-Sarpanch of a Panchayat or against any member or Chairman of a Nyaya Panchayat.

(2) For the purpose of sub-rule (1) any officer subordinate to him may be deputed by the Collector to hold such preliminary inquiry and to make a report to him.

(3) Any such preliminary inquiry against the Chairman or a member of a Nyaya Panchayat may also be initiated as aforesaid by the Munsif, or, where there is no Munsif by the Civil Judge, or the Magistrate of the first class, having jurisdiction over the Nyaya Circle.

(4) If, as a result of such preliminary inquiry, the Collector or the Munsif or the Civil Judge or the Magistrate of the first class initiating the inquiry is satisfied that any charges of the nature specified in sub-sec. (4) of sec. 17 are prima facie made out against such Panch, Sarpanch or Up-sarpanch or against such Chairman or Member, as the case may be, a report thereof along with the the recommendations of such officer the matter shall be made accordingly to the State Government or to any officer or authority to whom the powers of th

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