JUDGMENT 1. - The petitioner has filed the present writ petition under Article 226 of the Constitution of India or 6.2.04 against the respondents with a prayer that by an appropriate writ, order or direction the order of suspension dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through the Avar Sachiv (Enquiry), Panchayati Raj Department, Jaipur) under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) by which the petitioner was placed under suspension during the pendency of enquiry pending under Section 38(1) of the Act of 1994 be quashed and set aside as on that date no enquiry was pending against the petitioner. 2. The facts of the case as put forward by the petitioner are as under: (i) That the petitioner is the Sarpanch of Gram Panchayat Kapurisar, Panchayat Samiti Loonkaransar, Dist. Bikaner. (ii) Further case of the petitioner is that since in the Rajasthan State Legislative Assembly, 2003, the petitioner had supported the candidate of Congress party from Loonkaransar constituency and the Government was formed by BJP, therefore, his political opponents were trying to dislodge the petitioner from the post of Sarpanch. (iii) Further case of the petitioner is that on the basis of preliminary enquiry, the petitioner was placed under suspension through order dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through Avar Sachiv, Panchayati Raj Department, Jaipur) and this order dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through Avar Sachiv, Panchayati Raj Department, Jaipur) has been challenged in this writ petition. 3. 3. In this writ petition, the main submission of the learned counsel for the petitioner is that the proceedings under Section 38(1) of the Act of 1994 can be said to be initiated after framing of the definite charges against the petitioner as provided under Sub Rule 2 of Rule 22 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the Rules of 1996) and in absence of that the suspension order dated 29.1.2004 (Annex.1) which was passed under Section 38(4) of the Act of 1994 is perse illegal as when the impugned order dated 29.1.2004 (Annex.1) was passed, charges in respect of that enquiry were not framed against the petitioner nor the same were communicated to the petitioner and hence the impugned order dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through Avar Sachiv, Panchayati Raj Department, Jaipur) is illegal and is liable to be set aside. 4. Reply to the writ petition was filed by the respondents and their case is that since on the basis of preliminary enquiry, the petitioner was found to have committed various defalcations and since enquiry had been initiated against the petitioner under Section 38(1) of the Act of 1994, therefore, the petitioner was rightly suspended through order dated 29.1.2004 (Anenx.1) passed by the respondent (State of Rajasthan through the Avar Sachiv (enquiry), Panchayati Raj Department, Jaipur) and hence the writ petition be dismissed. 5. Heard and perused the record. 6. For convenience, Section 38(4) of the Act of 1994 under which the powers have been exercised for suspension of the petitioner from the post of Sarpanch is quoted hereunder: "Section 38. Removal and Suspension: (1)..... (2)..... (3)..... (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." 7. From the entire reading of Section 38(4) of the Act of 1994, it is clear that the powers of suspension are to be exercised if (i) an enquiry has been initiated under sub-section (1) against the Sarpanch or (ii) if Criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law. In the present case impugned order dated 29.1.2004 (Annex.1) was passed by the State of Rajasthan through the Avar Sachiv (enquiry), Panchayati Raj Department (respondent) on the ground that an enquiry has been initiated under sub-section (1) of Section 38 of the Act of 1994. In the impugned order dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through the Avar Sachiv, Panchayati Raj Department), it was clearly mentioned that since enquiry had been initiated against the petitioner under Sub-section (1) of Section 38 of the Act of 1994, therefore, he was put under suspension. 8. The question which arises for consideration is whether in view of the fact that definite charges have not been framed against the petitioner nor statement of allegations has been issued to the petitioner so far, can it be said that any enquiry under Section 38(1) of the Act of 1994 has been initiated against the petitioner or not? 9. A Full Bench of this Court in the case of Bhura Lal v. State of Rajasthan , under the provisions of Rajasthan Panchayat Act, 1953 which are akin to the provisions of Act of 1994 and Rules of 1996, has held that order of suspension can be passed only when the charges had already been 'named against the erring panch, Sarpanch or up-sarpanch in that enquiry and statement of allegations had been issued to him. 10. Thus, it can be concluded that initiation of enquiry, if provisions of Section 38(4) of the Act of 1994 are interpreted, would be from the stage of framing of charges and issuance of statement of allegations to the concerned person and not prior to that. 11. In the present case, there is no dispute on the point that when the impugned order dated 29.1.2004 (Annex.1) was passed by the respondent (State of Rajasthan through the Avar Sachiv, Panchayati Raj Department, Jaipur), no charges were framed against the petitioner in the enquiry nor the statement of allegations was issued to the petitioner. 11. In the present case, there is no dispute on the point that when the impugned order dated 29.1.2004 (Annex.1) was passed by the respondent (State of Rajasthan through the Avar Sachiv, Panchayati Raj Department, Jaipur), no charges were framed against the petitioner in the enquiry nor the statement of allegations was issued to the petitioner. Thus when the impugned order dated 29.1.2004 (Annex.1) was passed by the respondent (State of Rajasthan through the Avar Sachiv (enquiry), Panchayati Raj Department) under Section 38(4) of the Act of 1994, the enquiry had not been initiated against the petitioner. Section 38(4) of the Act of 1994 authorises the State Government to pass an order of suspension only when an enquiry under Section 38(1) of the Act of 1994 has been initiated. Since in the present case, the charges were not framed against the petitioner nor any statement of allegations was issued to the petitioner in that enquiry, the order dated 29.1.2004 passed by the respondent (State of Rajasthan through the Aver Sachiv, Panchayati Raj Department, Jaipur) was without authority of law and cannot be sustained. 12. For the reasons mentioned above, the impugned order of suspension dated 29.1.2004 (Annex.1) passed by the State of Rajasthan through the Avar Sachiv (Enquiry), Panchayati Raj Department, Jaipur (respondent) is liable to be quashed and set aside and this writ petition deserves to be allowed. Accordingly, the present writ petition is allowed and the impugned order dated 29.1.2004 (Annex.1) passed by the respondent (State of Rajasthan through the Avar Sachiv (Enquiry), Panchayati Raj Department, Jaipur is quashed and set aside. it is made clear that the respondent is competent to take up proceedings against the petitioner in exercise of powers under Section 38(4) of the Act of 1994 if enquiry is initiated against the petitioner under Section 38(1) of the Act of 1994 and the decision in this case would not be treated as an impediment in exercise of that power. *******