Rajasthan High Court - Jodhpur
Tararam Mali vs State Of Rajasthan on 30 September, 2019
Equivalent citations: AIRONLINE 2019 RAJ 861
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 25) [CW-11814/2019] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11814/2019 Tararam Mali S/o Shri Rama Ji, Aged About 52 Years, By Caste Mali, Resident Of Naya Bazaar, Ward No. - 11, Sirohi.
----Petitioner Versus
1. State Of Rajasthan, Through The Secretary, Local Self Department, Jaipur.
2. The Director Cum Joint Secretary, Department Of Local Self, Jaipur.
3. The Deputy Director (Regional), Department Of Local Self, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Manoj Bhandari
For Respondent(s) : Ms. Rekha Borana
JUSTICE DINESH MEHTA
Judgment
Reserved on : 17/09/2019
Pronounced on: 30/09/2019
1. Feeling aggrieved with the order dated 05.08.2019, issued by the State Government - Director and Joint Secretary, Local Self Department, placing him under suspension, the petitioner - elected Chairman of the Municipal Council, Sirohi, has approached this Court, invoking its writ jurisdiction under Article 226 of the Constitution of India.
2. Succinctly stated the facts pertinent to the present case are that the petitioner was firstly elected as a councilor and thereafter was elected as Chairman of Municipal Council, Sirohi. According to the petitioner, out of the 25 wards, comprising of Municipal Council, Sirohi, 8 councilors belong to Congress, 14 councilors belong to BJP, while 3 councilor were independent, who (Downloaded on 30/09/2019 at 08:57:28 PM) (2 of 25) [CW-11814/2019] elected the petitioner (a BJP Candidate) as Chairman of Municipal Council in the year 2014.
3. The impugned order dated 05.08.2019, placing the petitioner under suspension, was issued in exercise of powers available under Section 39(6) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act of 2009'). The order of suspension was preceded by a show cause notice dated 11.07.2019, wherein it was indicated that in furtherance of a complaint filed by the leader of opposition, a preliminary inquiry was got conducted by the respondent No.3 - Deputy Director (Regional), Local Self Department, Jodhpur, who has reported that there is prima facie evidence of irregularities committed as the Chairman.
4. In response to the show cause notice so issued, the petitioner claims to have filed a reply dated 22.07.2019, denying all the allegations. The petitioner's defence in his reply was that the petitioner, being a Chairman, was not an appointing authority and it was rather in pursuance of the recommendation made by the Commissioner of the Council, the appointments were given. The petitioner asserted that he was neither involved in any sort of corruption nor was he indifferent or negligent towards discharge of his duties as a Chairman. The petitioner also retorted that the notice was issued out of political vengeance.
5. The respondent No.2, acting on behalf of the Government, issued the impugned order dated 05.08.2019 and placed the petitioner under suspension. It was inter alia stated that based on the preliminary inquiry, the respondent-State has decided to conduct judicial inquiry against the petitioner, as per sub-sections (3) and (4) of Section 39 of the Act of 2009, and the (Downloaded on 30/09/2019 at 08:57:28 PM) (3 of 25) [CW-11814/2019] circumstances warranted that the petitioner be placed under suspension.
6. Ms. Rekha Borana, learned Additional Advocate General, having entered Caveat on 07.08.2019, sought some time to complete her instructions and the matter was posted on 08.08.2019; on 08.08.2019, learned counsel for the petitioner insistingly prayed that effect and operation of the suspension order be stayed, as in light of judgment of this Court, until and unless charges are framed and charge-sheet is served, an elected representative, i.e. Chairman of Municipal Council, cannot be placed under suspension. Learned Additional Advocate General, however, opposed such interim prayer, while apprising the Court that the State Government has referred the matter for judicial inquiry and the charges have been framed. She submitted that the judgment relied upon by the petitioner, therefore, cannot be made applicable to present case.
7. Whereafter, the petitioner has filed an additional affidavit on 29.08.2019, along with note-sheet drawn by the State Government on 01.08.2019, along with other documents; reply to the writ petition came to be filed by the State on 06.09.2019.
8. Mr. Bhandari, learned counsel for the petitioner, calling the action of the State Government in question, argued that the initiation of inquiry so also the suspension is a result of political victimization and the same is under the undue pressure of leader of opposition - Ishwar Singh, as petitioner belongs to a party, out of power at the State level.
9. While maintaining that the petitioner, an elected representative, cannot be held responsible/liable for the appointments made, as grant of appointment and observance of (Downloaded on 30/09/2019 at 08:57:28 PM) (4 of 25) [CW-11814/2019] the procedure, is the responsibility of the Executive Officer, learned counsel argued that the appointments were given in the year 2015 and the State sprang into action in 2019, immediately coming in power of the party, to which leader of opposition hails. Learned counsel was emphatic, when he said that an elected representative cannot be removed from his office, simply for political ill will or rivalry, as has been done in the instant case.
10. Inviting Court's attention towards the note-sheet(s) drawn by the State Government, learned counsel contended that out of the ten points of complaint, respondent No.3, who had conducted preliminary inquiry, only expressed prima facie satisfaction with respect to point No.3, whereas no material was found against him, so far as remaining points of complaint are concerned.
11. Inviting attention of the Court towards the note-sheet dated 01.08.2019, vide which the respondents have proposed to place the petitioner under suspension, learned counsel argued that action of the State Government is absolutely arbitrary and without application of mind. The petitioner has been placed under suspension, simply because he had sought a month's time to file reply to the notice dated 11.07.2019. The relevant part of the note-sheet dated 01.08.2019 is reproduced hereinfra, with a view to have a better grasp of Mr. Bhandri's argument:-
"d`i;k i`'B 110&111@lh dk voyksdu QjekosaA Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh }kjk funs"kd ,oa la;qDr lfpo egksn; dks i= izLrqr dj fuEukuqlkj fuosnu fd;k gS %& 01- ;g gS fd funs"kky; dk i= Øekad 1670 fnukad 11-07-2019 Li'Vhdj.k tokc izLrqr djus okyk i= vk;qDr] uxj ifj'kn] fljksgh }kjk fnukad 19-07-2019 dks rehy djok;k x;k gSA 02- ;g gS fd esjs }kjk i= fnukad 19-07-2019 ds }kjk vk;qDr] uxj ifj'kn] fljksgh dks mDr i=kofy;ksa dk (Downloaded on 30/09/2019 at 08:57:28 PM) (5 of 25) [CW-11814/2019] voyksdu djkus ,oa lEiw.kZ i=kofy;ksa dh izekf.kr izfr;ka tkjh fd;s tkus dk fuosnu fd;k x;k gSA vr% Jheku ls fuosnu gS fd uxj ifj'kn] fljksgh }kjk i=koyh dk voyksdu o izekf.kr izfrfyfi;ka tkjh ugha djus ls tokc is"k djus gsrq 01 ekg dk le; fnykos ,oa vk;qDr uxj ifj'kn] fljksgh dks i=koyh voyksdu djok;s tkus ,oa izfrfyfi miyC/k djkus gsrq funsZ"k tkjh djkosaA bl laca/k esa fuosnu gS fd foHkkxh; i= fnukad 11-07-2019 dks Li"Vhdj.k uksfVl tkjh dj tokc 15 fnol es izLrqr djus gsrq funsZf"kr fd;k x;k FkkA Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh }kjk 15 fnol esa tokc izLrqr uk dj] tokc izLrqr djus gsrq ,d ekg dk le; pkgk x;k gSA Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh }kjk Li'Vhdj.k tokc izLrqr ugha djds foHkkxh; vkns"kksa dh vogsyuk dh xbZ gSA ;g d`R; xaHkhj gSA vr% Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh ds fo:) jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39 ¼4½ vUrxZr U;kf;d tkap djk;s tkus ,oa dh /kkjk 39 ¼6½ ds vUrxZr lHkkifr ,oa ik'kZn in ls fuyfEcr fd;s tkuk izLrkfor gSA ekŒ ea=h egksn; Lok;Rr "kklu foHkkx jkt- dks voyksdukFkZ ,oa vuqeksnukFkZ izLrqr gSA"
12. He argued that the State has placed the petitioner under suspension out of arrogance and vengeance, as he had purpotedly defied the direction to file reply within 15 days. Counsel highlighted the use of expression " vr%" to bring home his point that suspension was for the reasons noted in foregoing para. He contended that suspension for the reasons noted is extraneous.
13. Mr. Bhandari drew Court's attention towards the appointment orders given to those 10 persons; the note-sheets and order of constitution of Committee to satisfy the Court that the appointments in question were given after following due procedure and it was the Commissioner, who was responsible for the appointments and not the petitioner. Learned counsel further emphasized that the complaint filed by Ishwar Singh Dadhich - the leader of opposition and other Counscilors, was filed way back on 20.03.2016, wherein allegations were levelled not only against (Downloaded on 30/09/2019 at 08:57:28 PM) (6 of 25) [CW-11814/2019] the petitioner, but also against the then Commissioner - Lal Singh Ranawat. But, in furtherance of the complaint filed in March, 2016, the respondent State has proceeded only against the petitioner, while completely turning a blind eye towards, the then Commissioner.
14. Mr. Bhandari, learned counsel for the petitioner, cited following judgments in support of his case:-
1. Smt. Vimla Devi Vs. State of Rajasthan [2007(4) RLW 3186]
2. Nand Lal Vs. State of Rajasthan [1996(2) WLC 497]
3. Suresh Chandra Singhal Vs. State of Rajasthan [2005(3) WLC 255]
4. Geeta Devi Narooka Vs. State of Rajasthan [2008(2) WLC 261]
5. Ram Gopal Mishra Vs. State of Rajasthan & Ors.
[2000(1) WLC (Raj.) 580]
6. Ravi Yashwant Bhoir Vs. The District Collector, Raigarh & Ors. [(2012) 4 SCC 407]
7. The Institute of Chartered Accountant of India Vs. L.K. Ratnu [(1987 SC 71]
15. Ms. Rekha Borana, learned Additional Advocate General raised a preliminary objection that the petitioner has simply placed before the Court, notice issued to him with respect to 10 employees, while conveniently concealing the fact that he was also issued another notice dated 25.07.2019, for having a pivotal role in granting 13 illegal pattas on the Government land. To substantiate her stand, she invited attention of the Court towards the documents placed on record along with the reply. She further pointed out that the petitioner has placed on record, a reply dated 22.07.2019 said to have been filed along with an assertion in para No.12 of the memo of writ petition that the petitioner submitted a (Downloaded on 30/09/2019 at 08:57:28 PM) (7 of 25) [CW-11814/2019] detailed explanation-cum-reply to the show cause notice, whereas, no reply has ever been filed, which is evident from perusal of the material placed on record by her. She argued that in response to the notice dated 11.07.2019, the petitioner had appeared before the respondent No.3 and vide representation dated 23.07.2019 asked for a month's time, while requesting to accord opportunity to inspect the files and provide relevant copies, in absence of which, he showed his inability to file reply.
After reading the representation dated 23.07.2019, Ms. Boranad contended that in the teeth of the representation, the petitioner's averments in para No.12 of the writ petition, that he has filed reply dated 22.07.2019, turns out to be a blatant lie.
With these preliminary objections, Ms. Borana argued that the petitioner's writ petition is liable to be dismissed on the ground of non-disclosure, concealment and mis-statement of facts, alone.
16. She futher submitted that during the preliminary inquiry, conducted against the petitioner, for scrutiny of serious allegations levelled against him, the petitioner, as a matter of fact, was prima facie found responsible for other irregularities also and not only against point No.3 of the complaint.
17. Advancing her arguments, learned Addl. Advocate General contended that the petitioner has misconstrued the report of preliminary inquiry submitted by the respondent No.3; a prima facie evidence is available against the petitioner for point No.10 as well. She admitted that in the concluding part, it has however been wrongly mentioned that no material is available against the petitioner, for point No.10, whereas the substance of the report speaks otherwise.
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18. Responding to petitioner's reliance upon the note-sheet dated 01.08.2019, she argued that petitioner's interpretation is absolutely misplaced. She argued that the note-sheet dated 01.08.2019, contains one of the reasons, for which the petitioner has been placed under suspension. Inviting attention of the Court towards the note-sheets placed by her on record, she contended that the State Government has decided to suspend the petitioner upon consideration of the report of preliminary inquiry submitted by the respondent No.3 and having regard to the State's decision to conduct judicial inquiry, contemplated under sub-sections (3) and (4) of Section 39 of the Act.
19. Elaborating her argument, she pointed out that at each stage of the proceeding, the Director, Local Bodies and concerned Minister had given their thoughtful consideration over the matter and marked their initials. She conceded that note-sheet dated 01.08.2019 is not happily worded and it gives an impression as if, the petitioner has been suspended merely because he has failed to submit reply and sought a month's time, but, as a matter of fact, note-sheet dated 01.08.2019 is neither the order nor the basis for the decision to suspend. The decision/reason to suspend the petitioner is duly reflected in the note-sheet and order dated 05.08.2019, which unequivocally records that the State has referred the matter for judicial inquiry under sub-sections (3) and (4) of Section 39 of the Act and thus, petitioner is being placed under suspension.
20. Responding to the argument advanced by Mr. Bhandari regarding belated action on the complaints, which were filed in the year 2016, learned Additional Advocate General vehemently argued that as the petitioner belongs to the then ruling party, the (Downloaded on 30/09/2019 at 08:57:28 PM) (9 of 25) [CW-11814/2019] complaints filed by the leader of opposition, despite having substance, were not given heed to by the State Government and were kept under shroud. Those complaints saw the light of the day, only when the petitioner's political bosses were out of the power and the leader of opposition again placed the material and persuaded the State Government to take appropriate action against the petitioner, who was involved in all sorts of illegalities and irregularities.
21. Learned Additional Advocate General submitted that petitioner has come with the case, as if he has been suspended only with respect to the irregular appointments given by him, while suppressing the fact that he had also been served with the notice pertaining to his involvement, rather having pivotal role in granting 13 pattas on the Government land, on which the Municipality had removed encroachments. Based on two allegations, a charge-sheet has been sent for judicial enquiry, informed Ms. Borana.
22. She fervently argued that the charges framed and the preliminary inquiry conducted in this regard leaves no room for ambiguity that there are serious charges of misconduct and irregularities. If the petitioner continues with the position of Chairman, it is likely to affect inquiry as he will have definite access over the record and influence over the subordinate staff. Looking to the nature of the charges and petitioner's neck-deep indulgence in irregularities, the action of the State Government, suspending the petitioner cannot be faulted with. (Downloaded on 30/09/2019 at 08:57:28 PM)
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23. Ms. Rekha Borana cited following judgments to give support to her stand:-
(i) Jan Mohd. Vs. State [AIR 1993 (Raj.) 86]
(ii) Bhanwar Lal Chhabra Vs. State [1992(1) RLR 436]
(iii) Chhagan Kanwar Rathore Vs. State [AIR 2000 Raj. 238]
(iv) Durga Ram Mali Vs. State [2011 RLW(4) Raj. 3352]
24. Mr. Bhandari, giving rejoinder to State's arguments, submitted that respondents have tried to cover up their illegalities by furnishing justification that the petitioner has been suspended in wake of initiation of judicial inquiry against him, whereas the relevant note-sheet does not speak so. He argued that the respondent's contention that the petitioner has been suspended for the judicial inquiry initiated against him, is absolutely unsustainable, inasmuch as even till today, the petitioner has neither been served with any charge-sheet nor has he received any notice by the inquiry officer.
25. He argued that since filing of the present writ petition (on 06.08.2019), the respondents have tried to protract the proceedings for one reason or the other and even judicial inquiry has not commenced, only with a view to ensure that the petitioner, an elected Chairman, be kept out of the office by circuitous means, for serving ulterior motives of settling political score. He, thus, urged that the impugned order dated 05.08.2019, placing the petitioner under suspension, be quashed and set aside.
26. Heard learned counsel for the parties and perused the material available on record.
27. It is not in dispute that a preliminary inquiry has been conducted against the petitioner, in furtherance of a complaint (Downloaded on 30/09/2019 at 08:57:28 PM) (11 of 25) [CW-11814/2019] dated 06.05.2016, filed by the leader of opposition, levelling various serious allegations against the petitioner. Such complaint was not heeded by the respondents and no action was taken in pursuance of the complaint so filed, perhaps because of the fact that the Ruling Party at that moment was the petitioner's own party. In the advent of change of regime, the complaint seems to have been persuaded and tabled before the competent authority of the State Government, which thought it fit to get a preliminary inquiry done, so as to ascertain veracity of the allegations hurled by the leader of opposition.
28. The facts on record clearly suggest that the complaint, which was snoozing in the cold storage, has been made to trod after three years. Be that as it may, deliberate or unintentional inaction of the State for three years, per se, neither provides any immunity to the petitioner nor does it automatically render such action to be politically motivated. Petitioner's allegation that since the Ruling Party at the State level is other than the party, from which the petitioner hails, does not hold any water, as counter allegations can very well be cast by the complainant that the State Government, at that time turned a blind eye towards his complaint. Therefore, the contention that he has been suspended solely on the ground of political vendetta, cannot be countenanced.
29. A perusal of the note-sheets placed on record reveals that the complaint contains as many as 10 points, which were got examined by the State Government by referring the matter to the Deputy Director (Regional) - respondent No.3 to conduct a preliminary inquiry. Respondent No.3, in turn, examined the matter and gave his preliminary report, inter alia outlining that as (Downloaded on 30/09/2019 at 08:57:28 PM) (12 of 25) [CW-11814/2019] far as point No.1 is concerned, since the Anti Corruption Bureau is already examining the matter, it would not be appropriate for him to give any report/comment. He, however, gave a categorical finding qua issue No.3 relating to irregular/illegal appointment to 10 persons given by the petitioner.
30. There is no gainsaying that out of the issues/points for determination, respondent No.3 has clearly reported that the appointments given to 10 persons was irregular. It is also on record that no specific finding of petitioner's guilt was recorded qua remaining 8 issues.
31. On receipt of the report, the State Government, including Secretary and the concerned Minister, applied their mind on 04.07.2019 and taking into account the preliminary inquiry report qua issue No.3 and another inquiry qua illegal grant of 13 pattas, decided to proceed against the petitioner - a public representative. The concerned Minister gave his approval on 05.07.2019.
32. It cannot be lost sight of the fact that vide note-sheet dated 17.07.2019, the respondents thought it appropriate to elicit a response from petitioner. According to the petitioner, he had filed a reply dated 22.07.2019, however, the respondents have emphatically denied the factum of filing of the reply by placing on record petitioner's letter dated 23.07.2019 as Annex.R/12, evincing that he had sought a month's time to file reply. Upon appraisal of the facts on record, this Court is of the firm view that the petitioner's assertion in his petition that he had filed a reply dated 22.07.2019, is ex facie incorrect, in the teeth of the above referred letter dated 23.07.2019, which bears signature of the petitioner and initials of the recipient with inward number. The writ (Downloaded on 30/09/2019 at 08:57:28 PM) (13 of 25) [CW-11814/2019] petition filed by the petitioner, deserves to be dismissed on this count alone, yet deprecating petitioner's conduct, this Court deems it appropriate to decide the petition itself on merit, instead of non-suiting the petitioner on the solitary ground of indulging in falsehood.
33. Fervent arguments were advanced by the petitioner's counsel about application of mind of the respondents, while highlighting the note-sheet dated 01.08.2019, prepared by the Assistant Administrative Officer, which was duly approved by other officers, including Director-cum-Joint Secretary. It will not be out of place to reproduce the relevant part of the note-sheet, to have a better grasp of the argument advanced by the petitioner.
"44/N bl laca/k esa fuosnu gS fd foHkkxh; i= fnukad 11-07- 2019 dks Li"Vhdj.k uksfVl tkjh dj tokc 15 fnol es izLrqr djus gsrq funsZf"kr fd;k x;k FkkA Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh }kjk 15 fnol esa tokc izLrqr uk dj] tokc izLrqr djus gsrq ,d ekg dk le; pkgk x;k gSA 45/N Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh }kjk Li'Vhdj.k tokc izLrqr ugha djds foHkkxh; vkns"kksa dh vogsyuk dh xbZ gSA ;g d`R; xaHkhj gSA 46/N vr% Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] fljksgh ds fo:) jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39 ¼4½ vUrxZr U;kf;d tkap djk;s tkus ,oa dh /kkjk 39 ¼6½ ds vUrxZr lHkkifr ,oa ik'kZn in ls fuyfEcr fd;s tkuk izLrkfor gSA 47/N ekŒ ea=h egksn; Lok;Rr "kklu foHkkx jkt- dks voyksdukFkZ ,oa vuqeksnukFkZ izLrqr gSA "
34. It is pertinent to note that upon going through the documents available on record, this Court found that the matter was considered by the Director and Secretary of the Government on 05.08.2019, with respect to petitioner's suspension, vide para No.51 of the note-sheet, which reads thus:-
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(14 of 25) [CW-11814/2019] "51- vuq-45@N ls 50@N ds dze esa Jh rkjkjke ekyh] lHkkifr] u-i-] fljksgh ds fo:) U;kf;d tkap gsrq izdj.k fHktok;s tkus okyk i= vuqeksnukFkZ ,oa gLrk{kjkFkZ izLrqrA 5-8-2019 In ref. to para 50/N DFA for judicial inquiry and suspension are submitted for approval and signature.
Sd/-5.8.2019"
35. In the considered opinion of this Court, it is the noting of 05.08.2019, vide which a judicial inquiry and suspension has been proposed and approved. As far as the note-sheet dated 01.08.2019, reproduced hereinabove is concerned, the same was only a proposal, whereas the note-sheet dated 05.08.2019, reproduced in this para is the point of time, when it was decided to issue charge-sheet and suspend the petitioner. It was only on 05.08.2019, the respondents decided to suspend the petitioner and the impugned order dated 05.08.2019 came to be issued, which inter alia contains reasons for suspension also. This Court deems it appropriate to reproduce the suspension order dated 05.08.2019, which runs as infra:-
"dzekad%i=(p)()tkap@Mh,ych@2016@1971 fnukad 5@8@14 &%vkns"k%& Jh rkjkjke ekyh lHkkifr] uxj ifj'kn] fljksgh ds fo:) in dk nq:i;ksx djus dh f"kdk;r izkIr gksus ij foHkkx }kjk izkjfEHkd tkap djokbZ xbZA tkap vf/kdkjh }kjk izsf'kr fjiksVZ esa izFkr n`'V;k vfu;ferrk gksuk ik;k x;k gSA Jh rkjkjke ekyh] lHkkfir] uxj ifj'kn] fljksgh ds fo:) yxk;s x;s vkjksi dkQh xEHkhj izd`fr ds ik;s tkus ds dkj.k nqjkpj.k dh Js.kh esa vkrs gS] jkT; ljdkj }kjk muds fo:) jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk (3) (4) ds vUrxZr U;kf;d tkap djok;s tkus gsrq izdj.k izsf'kr fd;k x;k gSA Jh rkjkjke ekyh lHkkifr] uxj ifj'kn fljksgh ds in ij cus jgus ls U;kf;d tkap izHkkfor fd;s tkus dh laHkkouk gSA vr% jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39 (6) ds vUrxZr iznRr "kfDr;ksa dk iz;ksx djrs gw, jkT; ljdkj Jh rkjkjke ekyh] lHkkifr] uxj ifj'kn] (Downloaded on 30/09/2019 at 08:57:28 PM) (15 of 25) [CW-11814/2019] fljksgh dks lHkkifr ,oa lnL; ds in ls rqjUr izHkko ls fuyfEcr djrh gSA (mTtoy jkBksM) funs"kd ,oa la;qDr lfpo"
36. A perusal of the suspension order clearly shows that proper consideration was made and considering the fact that issuance of charge-sheet was necessary, it was thought expedient to pass order of suspension, as a prima facie case of irregularities was found in the preliminary inquiry report sent by the inquiry officer.
37. As a matter of fact, it is the decision to launch judicial inquiry, which has triggered the suspension in exercise of powers under Section 39(6) of the Act of 2009.
38. In considered opinion of this Court, the petitioner's argument that he has been placed under suspension simply because he has sought time to file reply, though at a first flush appears to be attractive, but on deeper scrutiny turns out to be hollow.
39. At the time of filing the writ petition, the petitioner had challenged his suspension only on the ground of it being politically motivated; against the Principles of Natural Justice; and the allegations being frivolous. It is only after perusal of the reply and the note-sheets, which were filed by the respondents on record, the petitioner has harped upon the note-sheet dated 01.08.2019 and tried to improvise his case on the plank of note-sheet dated 01.08.2019.
40. As a matter of fact, the petitioner cannot be permitted to raise such plea in view of his categorical stand that he had filed a reply dated 22.07.2019. The petitioner cannot approbate and reprobate - in the memo of writ petition, he asserts that he had (Downloaded on 30/09/2019 at 08:57:28 PM) (16 of 25) [CW-11814/2019] filed a reply and after perusal of the reply filed by the respondent, he takes a U-turn and contends that he has been placed under suspension, simply because he has asked for time to file reply. The petitioner's stand is clearly counter productive - if one is accepted, then the other has to fall for its falsehood.
41. Mr. Bhandari's arguments that in the preliminary inquiry, the petitioner has been exonerated on all points, cannot be accepted in view of the preliminary inquiry report furnished by the respondent No.3. A perusal of the report unravels that the petitioner has been found prima facie guilty of issue No.3, whereas respondent No.3 has refrained from giving any report qua the remaining issues, as the matter was pending scrutiny of the Anti Corruption Bureau. No clean chit has been given qua the remaining issues, as has been claimed by the petitioner.
42. Be that as it may, it is not the number of issues decided against the petitioner, which are relevant for the purpose of suspension, it is rather gravity of charges. It is the objective satisfaction of the State. Even if the petitioner is found prima facie involved even in a single instance, the State can place the petitioner under suspension, if it decides to conduct a judicial inquiry against a public representative.
43. The allegation(s) or charges mentioned in the charge- sheet against the petitioner are serious in nature and in case the respondents have decided to conduct a judicial inquiry, this Court would be reluctant in interfering in the matter, given the fact that the respondents have placed relevant material in their reply and additional affidavit that the matter has been referred to the designated officer for judicial inquiry and charge-sheet has also been forwarded.
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44. It is now for the inquiry officer to serve a charge-sheet to the petitioner and proceed in accordance with law. The petitioner's contention that he has not been served with the charge-sheet along with the suspension order or otherwise, needs to be looked into by the inquiry officer. The provisions of the Act of 2009, particularly Section 39 does not mandate that the charge- sheet shall be served along with suspension order. It will not be out of place to reproduce sub-sections (3) and (4) of Section 39 of the Act of 2009, which runs thus:-
"39. Removal of member.-
(1) XXX XXX (2) XXX XXX (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."
Sub-section (3) of Section 39 of the Act of 2009 simply postulates that after hearing the explanation of the member concerned, the State Government will draw a statement setting out the charges against the member and shall send the same for enquiry and findings by Judicial officer to be appointed by the (Downloaded on 30/09/2019 at 08:57:28 PM) (18 of 25) [CW-11814/2019] State Government. A careful reading of sub-section (3) of Section 39 shows that the State Government is required to prepare a memorandum of charges and charge-sheet to the Judicial officer appointed for the purpose of inquiry and not to the petitioner.
45. Now I proceed to deal with the judgments cited on behalf of the petitioner:
(i) Smt. Vimla Devi (supra) In this case, the petitioner was suspended as she did not call meeting of the Board, despite written request made by members, solely for this reason, the petitioner was placed under suspension. This Court, dealing with the facts obtaining in the said case, held that the allegations/charges against her, did not warrant suspension of the petitioner- a Chairman, particularly because of the documentary evidence already available, with the help of which the charges levelled against her could be examined.
Dealing with the facts of the said case, the Court quashed the order of suspension. The facts of Vimla Devi's case (supra) are starkly different, inasmuch as holding of inquiry or the allegation of not convening meeting, does not involve serious charges and it can conveniently be concluded that elected representative should not be suspended for such charges, as there is no apprehension of tempering with the evidence.
(ii) Nandlal Vs. State of Rajasthan (supra) This case cited by learned counsel for the petitioner is also distinguishable for its facts. A perusal of para No.9 of the judgment reveals that there were trivial charges against petitioner therein and having dealt with the charges, this Court came to a (Downloaded on 30/09/2019 at 08:57:28 PM) (19 of 25) [CW-11814/2019] conclusion that the petitioner's suspension was not warranted and thus quashed it while observing as under:-
"30. Though in view of the settled principles of law this Court would not interfere in suspension orders lightly since suspension is only a deprivation of one's status and that too temporarily, it does not amount to penalty and is normally ordered when the truth of the allegations of misconduct or corruption is under scrutiny, it neither effects the status of the person holding the office nor effects in any other form, but that is in the case of the persons where the rules of master and servant apply. As I have already indicated the office held by the elected representative of the public cannot be equated with that of the Government employees since these offices are held by the incumbent for a fixed period of time and the court would not shirk its responsibility to intervene in the matter as and when a glaring case of the kind is brought before it. Power even in such like cases should be used very sparingly and that too with utmost caution and care and the court would not provide to the political rivals to use its platform to serve their personal ends and settle their scores."
(iii) Suresh Chanra Singhal Vs. State & Anr. (supra) Division Bench judgment cited by Mr. Bhandari is also of little avail to the petitioner, inasmuch as the Division Bench has quashed the suspension noticing that the suspension order was passed on 09.06.2004, whereas charge-sheet was issued on 02.07.2004. The Division Bench also held that no preliminary inquiry report was in existence, when the suspension order came to be passed. Apart from the above, what perhaps prevailed over the Division Bench, while quashing the suspension order was, that despite direction given by the Single Judge to conclude the inquiry expeditiously, inquiry in question was made to drag for more than a year and the respondents had taken innumerable opportunities to thwart conclusion of the inquiry. This being the fact situation, it (Downloaded on 30/09/2019 at 08:57:28 PM) (20 of 25) [CW-11814/2019] was thought appropriate to quash the order of suspension not merely for its legal flaws, but because of the fact that the inquiry was neither making any headway nor was it likely to be concluded in near future.
(iv) Geeta Devi Narooka Vs. State & Ors. (supra) Learned Single Judge of this Court quashed the order of suspension in this case, after going through the charges and reply filed by the petitioner. It was observed in paras Nos.27 and 28 of the judgment that there are no allegations of embezzlement or corruption and the alleged misconduct cannot be treated to be a gross misconduct. In view of the charges framed, learned Single Judge was of the opinion that it cannot be said that it was reasonably impracticable to hold inquiry against the petitioner while continuing him in the office of Chairman.
As against this, the facts are completely different; the charges levelled against the petitioner are serious and in view of the fact that the files relating to removal of encroachment and grant of patta are not available, it cannot be said that the petitioner's suspension is unwarranted.
(v) Ram Gopal Mishra Vs. State & Ors. (supra) This case is also clearly distinguishable on its facts, inasmuch as the allegation levelled against the petitioners were, on facts, were found trivial. Paras Nos.44 and 45 of the judgment show that the suspension in this case was quashed based on appreciation of the facts involved and material available therein.
(vi) Ravi Yashwant Bhoir Vs. District Collector Raigd & Ors.
This judgment of Hon'ble the Supreme Court is a ruling as to how an inquiry against an elected representative should be (Downloaded on 30/09/2019 at 08:57:28 PM) (21 of 25) [CW-11814/2019] conducted. A scanning of factual matrix of this case brings to fore that it was a case of removal and debarment of a Chairman of Municipal Council for a period of six years. Dealing with a plethora of judgments, Hon'ble the Supreme Court laid down guidelines as to how an inquiry should proceed.
In considered opinion of the Court, this judgment cited by the learned counsel is of hardly any help to the petitioner's cause, inasmuch as petitioner has yet to face the inquiry; he has approached the Court only against suspension.
(vii) Institute of Chartered Accountant of India (supra) This judgment of Hon'ble the Supreme Court also speaks about the fairness of inquiry of misconduct against member of the Institute of Chartered Accountants, hence not applicable to the present case.
(viii) Meena Vyas Vs. State & Ors. (supra) A learned Single Judge of this Court quashed the suspension order inter alia observing that no preliminary inquiry was placed on record nor the same was ever supplied to the petitioner. On the facts involved in the case, it was held that the judicial inquiry has been ordered, without application of mind and without placing any documentary evidence with regard to the preliminary inquiry. Having observed that the allegations levelled in Charge No.1 did not have any substance in view of the unanimous approval of the Board, the Court quashed the suspension order dated 03.10.2008, inter alia finding that the respondents have not considered reply filed by the petitioner, which was admittedly received on 19.09.2008. (Downloaded on 30/09/2019 at 08:57:28 PM)
(22 of 25) [CW-11814/2019] In the case at hands, the petitioner Tararam Mali has not filed any reply to the notice issued to him, as such he cannot claim parity of his case with this case. Let alone is false assertion that he had filed reply.
46. Learned Additional Advocate General relied upon a few judgments with a view to lend support to her argument that before suspending an elected representative, it is not essential that a pre-decisional hearing should be granted to him/her. Judgments cited by her are being analysed one after another:
(i) Jan Mohd. Vs. State [AIR 1993 Raj. 86] In this case, while over-ruling the judgment rendered in the case of Ajmer Singh [1986 RLR 16], the Division Bench has held as under:-
"... ... before suspending a member/Chairman of the Municipality, it is not at all essential that a pre-decisional hearing should be granted to him to show cause why he may not be suspended, and according to this court, what is essential is that the preliminary inquiry report should be considered and after application of mind on the inquiry report, if the State Govt. considers it fit that the matter needs further enquiry then a show cause notice has to be issued to such member/Chairman of the Municipality as to why specific charges be not framed against him and they be referred to the judicial officer and simultaneously the suspension order can be issued (para No.17) ... ...merely because ministers contemplating suspension belong to different political party, it does not mean their prejudice against the petitioner. (para No.24)"
(ii) Bhanwarlal Chhabra [1992 (1) RLR 436 In this case, this Court observed as under:-
"... It has never been the intention of the legislature that two such opportunities should be provided and it is not the intention of the legislature to grant any pre decisional hearing (Downloaded on 30/09/2019 at 08:57:28 PM) (23 of 25) [CW-11814/2019] before a Member/Chairman is suspended by the State Government in exercise of powers under Section 63(4) of the Act .... ...., At the stage of application of mind by the State Government to proceed or not to proceed against the delinquent representative, he can be suspended and it is not at all essential that a pre-decisional hearing should be granted to him to show cause why he may not be suspended before the proposed inquiry. Such view may also result in grave harm or injustice to the institution and the public." (para 18)
(iii) In support of her argument that framing of charge-
sheet and then sending it to the petitioner is not necessary, Ms. Borana has cited the judgment rendered in the case of Chhagan Kanwar Rathore Vs. State [AIR 2000 Raj. 238], wherein this Court has observed as under:-
"... ... It is not the legislative intent under sub- section (2) of Section 63 that before passing suspension order under Section 63(4) of the Act charges as per provisions of Section 63(2) are to be framed and sent to the petitioner or the District Judge. (para 28) ... ... for purposes of Section 63(4), i.e. for suspending the Chairman or the Member of the Municipality like the petitioner, framing of the charge sheet is not a condition precedent. (para 28) ... ... pre decisional hearing is not a condition precedent to bringing about suspension of Member/Chairman of Municipality."
(iv) Learned Additional Advocate General cited the judgment of this Court dated 18.07.2011, rendered in the case of Durga Ram Mali Vs. State [SBCWP No.4780/2011], to contend that the issue of suspension is not to be gone into by the High court and it should be left to the objective satisfaction of the Government. She relied upon the following portion of para No.15 of this judgment:-
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(24 of 25) [CW-11814/2019] "... ... I am of the opinion that when the matter of suspension is left to the objective satisfaction of the Government, the normal rule is that it is not unnecessarily justiciable before the High Court and the Court cannot look into the question as to whether the materials are adequate or inadequate from its point of view nor the Court should substitute its own satisfaction for that of the authority."
47. Judgments cited by Ms. Borana, particularly in the cases of Bhanwarlal Chhabra (supra) and Chhagan Kanwar Rathore (supra), in no ambiguous terms rule that before suspending an elected representative, the State is not required to provide pre- decisional hearing, asking him/her as to why he/she should not be placed under suspension. It has also been held by this Court that after framing the charges, the State is not required to send the charge-sheet to the Member. In view of the law laid down by this Court and upon appraisal of the factual matrix this Court is of the considered view that the respondents have neither violated any of the statutory provisions nor has their conduct been vindictive.
48. The charges levelled against the petitioner and the material available, show that a judicial inquiry in the matter is imperative. In case the petitioner continues to hold the office, not only the inquiry officer would be under a moral pressure, the petitioner himself will be in a position to influence the witnesses and may try to withheld, if not temper the record.
49. In view of the aforesaid and upon overall appraisal of facts obtaining and material available, this Court does not find it to be a case, where State's action, placing the petitioner under suspension, deserves any interference.
50. The writ petition, therefore, fails. The stay application also stands dismissed.
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51. As a parting remark, this Court feels that a period of more than 1½ months has elapsed, since the petitioner was suspended, it was incumbent upon the enquiry officer to at least serve a charge-sheet and memorandum of charges, given the fact that the petitioner is an elected representative, chosen by the public for a fixed term of five years. Be that as it may, this Court deems it appropriate to direct the enquiry officer to serve the charge-sheet and conclude the enquiry as expeditiously as possible.
(DINESH MEHTA),J /skm/-
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