Rajasthan High Court - Jaipur
Rajaram Gurjar Son Of Shri Bhayram ... vs State Of Rajasthan on 14 February, 2020
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 21332/2019
Rajaram Gurjar Son Of Shri Bhayram Gurjar, Aged About 42
Years, Resident Of Masalpur Chungi, Karauli (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Department Of Local Self Government, Secretariat, Jaipur.
2. Directorate Of Local Bodies, Through Its Director And
Joint Secretary, G-3, Rajmahal Residency Area, Civil
Lines, Railway Crossing, C-Scheme, Jaipur.
3. Municipal Council Karauli, Through Its Commissioner.
----Respondents
For Petitioner(s) : Mr.Rajendra Prasad, Sr.Adv. Assisted
by Mr.Deepak Sharma, Adv. &
Mr.Karan Tibrewal, Adv.
For Respondent(s) : Mr.Anil Mehta, Additional Advocate
General with Mr.Yashodhar Pandey,
Adv. & Mr.Mehul Harkawat, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment Reserved on : 21st January, 2020
REPORTABLE
Date of Pronouncement : 14th February, 2020
By the Court:
1. The instant petition has been filed by the petitioner challenging the order dated 06.12.2019 passed by the Director and Joint Secretary, Local Self Government placing the petitioner under suspension from the post of Chairman, Municipal Council, Karauli invoking Section 39(6) of the Rajasthan Municipalities Act, 2009 (hereinafter shall be referred to as "the Act, 2009").
2. The facts, pleaded in nutshell, are that the petitioner was duly elected as Chairman, Municipal Council, Karauli, District (Downloaded on 14/02/2020 at 09:13:58 PM) (2 of 15) [CW-21332/2019] Karauli in August, 2015 and stated to be discharging his duties with utmost sincerity and honesty and there was no complaint of any misconduct against the petitioner in last four years except some false complaints, said to be made by the ward members of the opposite political party.
3. The petitioner has pleaded that he was in receipt of the letter dated 06.12.2019 issued by the respondent No.2 stating that the petitioner was guilty of misconduct in discharge of his duties, as per the comments received from the Commissioner, Municipal Council, Karauli and the factual report received from the Superintendent of Police, Karauli implicating the petitioner in FIR No.414/2019 registered at Police Station Kotwali, District Karauli for the offences under Section 323, 189 and 384 IPC. It was informed to the petitioner that he had committed serious misconduct in discharge of his duties and further has misused his position as Chairman and as such, the above acts of the petitioner were covered under the provisions of Section 39(1)(d) of the Act, 2009 and the State Government had decided to conduct a judicial enquiry against the petitioner under Section 39(3) of the Act, 2009 and further the respondents invoked powers conferred under Section 39(6) of the Act, 2009 and decided to suspend the petitioner from the post of Chairman, Municipal Council, Karauli with immediate effect.
4. The petitioner has pleaded that the impugned order dated 06.12.2019 has been issued maliciously without following due process of law with the intention to target him under the political vendetta. The petitioner has pleaded that the FIR No.414/2019 (Downloaded on 14/02/2020 at 09:13:58 PM) (3 of 15) [CW-21332/2019] registered against him at the Police Station Kotwali, District Karauli is still under investigation and only with an ulterior motive, the impugned suspension order was passed.
5. The petitioner has pleaded that he was under the bonafide belief that procedure, as set out and contemplated under Section 39 of the Act, 2009, would be followed by the respondents and he would be given an opportunity of hearing substantiating his explanation and the complaint was to be inquired by the State Government or by an officer and report was to be prepared accordingly.
6. The petitioner has pleaded that the criminal case which is under investigation, leveling allegations against him, was first required to be proved and without affording any opportunity of hearing and without following due process of law, as contemplated in the Act, 2009, impugned order has been passed.
7. Learned Senior Counsel appearing for the petitioner Mr.Rajendra Prasad has vehemently argued that neither any preliminary enquiry was conducted against the petitioner nor any show cause notice was issued to the petitioner before passing the impugned suspension order.
8. Counsel further submitted that reports of the Commissioner, Municipal Council, Karauli and Superintendent of Police, Karauli cannot be the relevant material to come to the conclusion for taking any action under Section 39(6) of the Act, 2009 for placing the petitioner under suspension.
9. Mr.Rajendra Prasad, learned Senior Counsel submitted that as per the law laid down by this Court in the case of Jan Mohd. (Downloaded on 14/02/2020 at 09:13:58 PM)
(4 of 15) [CW-21332/2019] Vs. The State of Rajasthan & Ors. reported in 1992(2) WLC (Raj.) 463, it was incumbent that only on the basis of the complaint made about working of a person, which may be covered by sub-section (1)(a) of the Section 39 of the Act, 2009, no suspension can take place. The complaint has to be inquired by the State Government and after the enquiry is held and a preliminary report is submitted and after that report is considered, the delinquent can be suspended. Counsel on the strength of the said judgment, submitted that suspension can only take place after due application of mind on the preliminary report where the authority comes to the conclusion that the matter requires further probe and the explanation has to be obtained from the delinquent concerned and after setting down the statement of allegation, the enquiry is required to be referred to a judicial officer.
10. Learned counsel also placed reliance on the judgment in the case of Jagdish Narayan Sharma and Ors. Vs. State of Rajasthan and Ors. reported in 1994(2) WLC (Raj.) 615 and on the strength of the said judgment submitted that if the preliminary enquiry is not conducted and report of the Enquiry Officer is not placed before the State Government, then it cannot be said that "proceedings have been commenced" within the meaning of Section 39(6) of the Act, 2009 and as such, the impugned suspension order is vitiated.
11. Mr.Anil Mehta, Additional Advocate General has filed reply to the writ petition. It has been averred by the respondents that an FIR for the offences under Sections 189, 323, 332, 353 & 504 IPC was registered against the petitioner and after that a detailed (Downloaded on 14/02/2020 at 09:13:58 PM) (5 of 15) [CW-21332/2019] enquiry report was prepared by the Superintendent of Police, Karauli and it was found that the petitioner is a habitual offender as there were several cases of physical assault and manhandling registered against the petitioner. The State has averred that the respondent No.2 had received reports from the Commissioner, Municipal Council and the Superintendent of Police, Karauli and after examining both the reports, a detailed report was prepared by the respondent No.2 in accordance with the Section 39 of the Act, 2009. The State has reiterated that the competent authority i.e. the respondent No.2 - Director, after carefully examining and looking the seriousness of the matter, recommended a judicial enquiry to the Principal Secretary, Law Department by writing a letter dated 06.12.2019. The State has reiterated that the petitioner will be granted ample opportunity of hearing before the Enquiry Committee to present his case in the judicial enquiry that has been initiated under Section 39 of the Act, 2009. The State Government has taken stand that the charges against the petitioner are very serious in nature as the petitioner has physically assaulted, manhandled and ill-treated the fellow government employees and he is guilty of disgraceful conduct. The State has taken stand that the petitioner has abused his position as a Chairperson and as such it has rightly exercised power under Section 39(6) of the Act, 2009.
12. Mr.Anil Mehta, Additional Advocate General has placed reliance on the judgments passed by this Court in the case of Bhanwar Lal Chhabra Vs. State of Rajasthan & Ors. reported in 1992 (1) RLR 436, Chhagan Kanwar Rathore Vs. State of (Downloaded on 14/02/2020 at 09:13:58 PM) (6 of 15) [CW-21332/2019] Rajasthan reported in AIR 2000 Raj. 238 and Tararam Mali Vs. State of Rajasthan reported in AIROnLine 2019 Raj. 861.
13. Learned Additional Advocate General has submitted that as per Section 39(1)(d) of the Act, 2009, the State Government has power to remove a member of the municipality on the ground of he being guilty of misconduct in discharge of his duties or being guilty of any disgraceful conduct. Counsel submitted that under Section 39(2) of the Act, 2009 power conferred of removal under sub-section (1) of Section 39 of the Act, 2009 may be exercised by the State Government of its own motion or upon the receipt of a report from the Municipality or upon the facts otherwise coming to the knowledge of the State Government.
14. Learned Additional Advocate General submitted that in the present case, the competent authority received the information from Commissioner, Municipal Council, Karauli and Superintendent of Police, Karauli about disgraceful conduct of the petitioner and as such it initiated the process of holding a judicial enquiry against the petitioner.
15. Learned Additional Advocate General submitted that power under sub-section (6) of Section 39 of the Act, 2009 has been rightly exercised against the petitioner as proceedings against him have commenced as the petitioner has been issued chargesheet and a judicial enquiry is conducted against him.
16. Learned Additional Advocate General submitted that on 06.12.2019 itself the competent authority has framed charges against the petitioner and further chargesheet has been sent to the petitioner and a competent officer will conduct enquiry against (Downloaded on 14/02/2020 at 09:13:58 PM) (7 of 15) [CW-21332/2019] the petitioner for the purpose of removing him, on the allegations leveled against him.
17. Learned Additional Advocate General submitted that neither show cause notice is required to be given nor explanation is required to be called from the incumbent before placing him under suspension. The satisfaction of the competent authority is based on the material and after application of mind, the suspension order was passed on having complete inputs about disgraceful conduct of the petitioner and further the State has decided to hold a regular enquiry by issuing chargesheet on the same day when the impugned order of suspension was passed and as such the learned counsel defends the action of the State Government.
18. Before adverting to the merits of the case, it would be relevant to quote Section 39 of the Rajasthan Municipalities Act, 2009 as follows:-
"39. Removal of member. - (1) The State Government may, subject to the provisions of sub-Sections (3) and (4), remove a member of a Municipality on any of the following grounds, namely:-
(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality:
Provided that the period during which such member was in jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of Section 37,
(c) that after his election he has incurred any of the disqualification mentioned in Section 14 or Section 24 or has ceased to fulfill the requirements of Section 21,
(d) that he has-
(i) deliberately neglected or avoided performance of his duties as a member, or
(ii) been guilty of misconduct in the discharge of his duties, or
(iii) been guilty of any disgraceful conduct, or (Downloaded on 14/02/2020 at 09:13:58 PM) (8 of 15) [CW-21332/2019]
(iv) become incapable of performing his duties as a member, or
(v) been disqualified for being chosen as member under the provisions of this Act, or
(vi) otherwise abused in any manner his position as such member:
Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State level services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
(2) The power conferred by sub-Section (1) may be exercised by the State Government of its own motion or upon the receipt of a report from the Municipality in that behalf or upon the facts otherwise coming to the knowledge of the State Government:
Provided that, until a member is removed from office by an order of the State Government under this Section, he shall not vacate his office and shall, subject to the provisions contained in sub-Section (6), continue to act as, and exercise all the powers and perform all the duties of, a member and shall as such be entitled to all the rights and be subject to all the liabilities, of a member under this Act. (3) Notwithstanding anything contained in sub-Section (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-Section (1), as a result of the inquiry referred to in the proviso to that sub-Section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for enquiry and findings by Judicial Officer of the rank of a District Judge to be appointed by the State Government for the purpose.
(4) The Judicial Officer so appointed shall proceed to inquire into the charge, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon either order for re-inquiry, for reasons to be recorded in writing, or pass final order.
(5) While hearing an inquiry under sub-Section (4), the Judicial Officer shall observe such rules of procedure as may be prescribed by the State Government and shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;(Downloaded on 14/02/2020 at 09:13:58 PM)
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(b) requiring the discovery and production of any such document or any other material as may be predicable in evidence;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed. (6) Notwithstanding the foregoing provisions of this Section, the State Government may place under suspension a member against whom proceedings have been commenced under this Section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the Municipality or otherwise perform the duties of a member thereof.
(7) Every final order of the State Government passed under this Section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any Court."
19. This court finds that the State Government has been provided power of removal, on the grounds enumerated under sub-section (1) of Section 39 of the Act, 2009 and order of removal on any of these grounds for removing a member of the Municipality can only be passed after an enquiry is conducted and the member concerned is afforded an opportunity of explanation.
20. This court further finds that sub-section (2) of Section 39 of the Act, 2009 permits the State Government to take action under sub-section (1) for removal of the member of its own motion or upon receipt of a report from the Municipality or upon the facts otherwise coming to the knowledge of the State Government. The said sub-section confers power to the State Government to exercise power conferred by sub-section (1) for removal of a member on the basis of the information, it may possess from different sources for initiating action for removal of a member.
21. This court finds that sub-section (3) of Section 39 of the Act, 2009 provides that for removal of a member on any of the (Downloaded on 14/02/2020 at 09:13:58 PM) (10 of 15) [CW-21332/2019] grounds specified in clauses (c) & (d) of sub-section (1), as a result of the inquiry, the hearing of explanation of the member concerned is necessary and distinct charges are required to be leveled and further the enquiry is to be conducted by Judicial Officer, to be appointed by the State Government.
22. This court finds that sub-section (4) of Section 39 of the Act, 2009 gives power to the Judicial Officer to inquire into the charge, hear the member concerned, record his findings and send the record along with his findings to the State Government.
23. This court finds that sub-section (6) of Section 39 of the Act, 2009 is a non-obstante clause and confers power in the State Government to place under suspension a member against whom proceedings have been commenced until conclusion of enquiry and passing of the final order of removal under sub-section (1) of Section 39 of the Act, 2009.
24. This court finds that the power of suspension can be invoked by the State Government if the "proceedings have been commenced" for removal of a member, as provided under sub- section (1) of Section 39 of the Act, 2009. The said provision under sub-section (6) of Section 39 of the Act, 2009 nowhere contemplates that any show cause notice is required to be given or further an explanation is required to be called from the member of the municipality. The only requirement is with respect to the proceedings which are commenced for removal of a member on any of the grounds enumerated in sub-section (1) of Section 39 of the Act, 2009. The competent authority, if has received inputs, as per sub-section (2) of Section 39 of the Act, 2009, may exercise (Downloaded on 14/02/2020 at 09:13:58 PM) (11 of 15) [CW-21332/2019] the power of removal and after application of mind, if it has decided to hold enquiry against the member of municipality and further the statements setting out distinct charges are issued to the member, it cannot be said that proceedings have not commenced under Section 39 of the Act, 2009.
25. This court finds that the reliance placed by learned Senior Counsel for the respondents on the judgment passed by this court in the case of Jan Mohd. (supra), the Division Bench of his court has clearly held that when any preliminary enquiry report is submitted to the Government and the same is considered by the Government by applying its mind and it comes to the conclusion that a further probe in the matter is essential and if the Government decides to issue a notice to the incumbent as why definite charges be not framed against him and be referred to a Judicial Officer, the State Government has power to suspend the member of the municipality simultaneously when it decides to issue him a show cause notice under earlier Section 63(2) of the Rajasthan Municipalities Act, 1959. Learned counsel has placed reliance on para-20 of the judgment which reads as follows:-
"29. As regards the reading down of the provisions of S.63(4) of the Act to include the principles of natural justice, our attention has been drawn to a decision of their Lordships of the Supreme Court in Jagdish Pandey v. Chancellor, Bihar University (AIR 1968 SC 353). The facts of that case are contained in para 6 of the judgment, wherein it has been noted that the order dated August 18, 1962 had worked itself out and, therefore, it could not have been reviewed or revised by the Chancellor under S.4 by issuing an order dated November 30, 1962, whereby promotion was granted to a particular person by the Chancellor as Principal and that order was executed and it was sought to be set aside by a later order. In those facts, it was held that although, the Chancellor has powers to revise that order but that should be done after affording an opportunity of being (Downloaded on 14/02/2020 at 09:13:58 PM) (12 of 15) [CW-21332/2019] heard to the affected person. It was in this context that the provision as such was read down and in reading it down it was held that it includes the principle of audi alterm partem. Here, that is not the case. It is not a case of divesting rights, which revested. It is a case of temporary removal of a person pending proposed enquiry, which may be initiated against him for his removal. That enquiry in a regular manner has to be proceeded with only after obtaining his explanation and after considering his explanation, if it is found that the charges are to be referred to the Judicial Officer then the regular enquiry starts. Prior to that, if any complaint is made as regards his working, which may be covered by clauses (c) and (d) of S.63(1) of the Act then on that complaint alone no suspension can take place. That complaint has to be enquired into by the State Govt. or by an officer deputed by it and after that enquiry is held and a preliminary report is submitted and after that report is considered, the delinquent can be suspended. Thus, it is clear that the suspension can only take place after due application of mind on such a report where the authorities comes to the conclusion that the matter requires further probe and if that is there then the explanation has to be obtained from the delinquent concerned and after setting down the statement of allegation that enquiry is referred to a Judicial Officer of the rank of District & Sessions Judge. Thus, the final enquiry is not held by the State Govt. It has to be held by a Judicial Officer and, therefore, the contention of Mr.Mridul, the learned counsel appearing for the petitioner Murlidhar that once a decision to suspend a particular person is taken, the State Govt. will always try to maintain its order has no legs to stand. In support of this contention, Mr.Mridul has placed reliance on a decision of their Lordships of the Supreme Court in H.L.Trehan v. U.O.I. (1989 (1) SLR 7), wherein it has been held that once a decision is taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. As stated above, in this type of cases, it is not that authority who has suspended the petitioner can hold the enquiry. The regular enquiry is conducted by a Judicial Officer. Thus, this contention is devoid of any force."
26. This court finds the conclusion and the ratio of the judgment in paragraphs 61 and 62, which are quoted hereunder:-
"61. In view of the aforesaid discussion, we are firmly of the view that the proceedings against a Chairman or Member of the Municipal Board commence when the preliminary enquiry report submitted to the Government is considered by the Government and the Government applies its mind to it and comes to the conclusion that a further probe in the matter is essential. For the removal of the holder of an elected public office that is Chairman or Member of the Municipal Board, if the Govt. decides to issue a notice to the incumbent under S.63(2) of the Act to the delinquent Chairman or the Member (Downloaded on 14/02/2020 at 09:13:58 PM) (13 of 15) [CW-21332/2019] of the Municipal Board to show cause why definite charges be not framed against him and be referred to a Judicial Officer, that is the stage where the proceedings start against the Chairman or the Member of the Municipal Board and the State Govt. has power to suspend the Chairman or a member of a Municipal Board simultaneously when it decides to issue him a notice of show cause under S.63(2) of the Rajasthan Municipalities Act. The suspension of a Chairman or a Member of a Municipal Board pending enquiry being an interim measure the suspension does not result in civil or evil consequences and it is not penal in character. Enough safeguards have been provided in the Section so that no arbitrary, capricious or mala fide suspension may take place. However, we will like to add a word of caution that the holders of these elective public posts cannot be equated with Govt. servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reasons to do so. Care should be taken that such suspensions should be arbitrary and the suspensions of such elected representatives should not be brought about for political motives or consideration.
62. We accordingly, hold that the Sub-S.(4) of S.63 of the Rajasthan Municipalities Act is neither unfair, unreasonable, nor unjust and it is not arbitrary or ultra vires of the Constitution i.e. Arts 14, 16 and 21 of the Constitution. We further hold that Ajmer Singh Yadav's case in which it has been held that obtaining of the explanation and its consideration is essential i.e. that it is a condition precedent for bringing about the suspension of the Chairman or Member of the Municipal Board does not lay down the correct law and hence, it is overruled. The relief of revocation of the suspension cannot be granted in favour of the petitioners."
27. In humble opinion of this court, the Division Bench has clearly laid down that obtaining explanation and its consideration before suspension is not a condition precedent for suspension of a member of the municipality and further the Division Bench had not granted relief of revocation of suspension, challenged in the said case.
28. This court accordingly finds little substance in the submission of the learned Senior Counsel for the petitioner that neither show cause notice was given to the petitioner nor preliminary enquiry was conducted against him and as such the impugned suspension order is vitiated.
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29. This court finds little substance in the submission of learned Senior Counsel for the petitioner that suspension of the petitioner is due to political reasons. The facts, which have come on record, nowhere reflect that suspension is only due to initiative taken by any ward member or any political party interfering in the entire incident. The facts, which have come on record, show that the petitioner has conducted himself in such a manner where the State Government had to keep in mind the purity of administration and working of democratic institution of municipality where the Chairperson is expected to discharge his duties with full responsibility and grace. The State Government found that the elected Chairman of the Municipal Council, Karauli, the petitioner, conducts himself in such a manner where he gives beating to the employees and exert undue influence/pressure on them to do illegal act or to commit financial irregularities, the State Government if has thought it proper to place the petitioner under suspension and to conduct a judicial enquiry, no fault can be found with such decision making process and as such no interference is required in the writ jurisdiction.
30. This court finds that in the present facts of the case, the State Government had obtained the report from Commissioner, Municipal Council, Karauli and further factual report, sent by Superintendent of Police, Karauli interalia mentioning that there were several other cases against the petitioner who had indulged himself in manhandling and ill-treating the government employees and exerting undue favour to get the illegal work done by putting pressure on the employees.
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31. This court finds that elected representatives need to be dealt with different approach in the matter of suspension and they cannot be equated with the government servant. The State Government must have sufficient reasons to form an opinion for placing such elected representative under suspension and such suspension order should not be arbitrary and irrational or to settle the political motives or for political considerations.
32. Consequently, the present writ petition, having no force, stands dismissed. No costs.
(ASHOK KUMAR GAUR),J Solanki DS, PS (Downloaded on 14/02/2020 at 09:13:58 PM) Powered by TCPDF (www.tcpdf.org)