Rajasthan High Court - Jaipur
Ajmer Singh Yadav vs State Of Rajasthan And Ors. on 29 November, 1985
Equivalent citations: 1986(1)WLN92
JUDGMENT Mahendra Bhushan Sharma, J.
1. The petitioner Ajmer Singh Yadav, Chairman of the Municipal Board Bari, District Dholpur, has played for a writ of certiorari or a direction for quashing the order dated September 12, 1985 (Annexure 1) of the State Government placing the petitioner under suspension. The petitioner has also challenged the vires of Section 63(4) of the Rajasthan Municipalities Act, 1959 (for short 'the Act').
2. The petitioner was elected as a member of the Municipal Board, Bari from ward No. 13 on February 14, 1982 and thereafter was unanimously elected as Chairman of the aforesaid Municipal Board. According to the petitioner in the month of March, 1984 the Government of Rajasthan had asked for the petitioner's explanation in respect of some items. However, when the petitioner met the then Minister for State for Local Self Department, Shri Praduman Singh on January 11, 1985, the Minister was satisfied with the petitioner's explanation and therefore no further proceedings were taken in the matter. It is the case of the petitioner that he had a meeting with the Collector, Dholpur in connection with some Municipal work about two months ago and there were some hot discussions between him and the Collector Dholpur. It appears that the Collector Dholpur did not take it very kindly and appears to have made some complaint against the petitioner to the Director of Local Bodies (hereinafter called as the Director, LB)-cum-Dy. Secretary to the Government, Local Self Department Government of Rajasthan, Jaipur. The petitioner received an order dated September 12, 1985 whereby the Government of Rajasthan, purporting to act under Section 63(4) of the Act, has placed the petitioner under suspension from the office of the Chairman/Member of the Board.
3. The petitioner has challenged the aforesaid order placing him under suspention on the ground that no proceedings for his removal from the office of the Chairman/Member of the Board have been commenced against him and therefore, the suspension is illegal. The vires of Section 63(4) of the Act have been challenged by the petitioner on the ground that the same does not provide any guidelines and clothes the State Government with unfettered powers. Therefore, it is violative of Article 14 of the Constitution and is invalid. The case of the petitioner further is that no procedure is laid down under section ('3(4) of the Act for suspension of the office and there is no fair and reasonable procedure for suspending a member/Chairman of the Municipal Board and therefore it is violative of Article 14 of the Constitution of India.
4. Show cause notice was issued to the respondents and on behalf of the respondent No. 1 State of Rajasthan reply has been filed. According to the State complaints of misconduct, abuse of office, were received against the petitioner from Shri Rajkumar Bharadwaj, Vice Chairman of the same Board on January 21, 1983. Upon the said complaint an enquiry was got conducted by the Collector through Shri Ahsan Ahmed Chhipa, Asstt. Collector Headquarters Dholpur. The inquiry report dated November 8, 1983 was forwarded by the Collector to the Director, LB on November 21, 1983 and after considering the same the State Government issued a notice along with the statement of charges to the petitioner on March 2, 1984. In response to the aforesaid notice which was accompanied by the statement of charges the petitioner appeared, but did not submit any reply till May 24, 1983. The Director, LB then requested the State Government to place the petitioner under suspension. Before taking any action personal hearing was afforded to the petitioner and he was given notice, but every time the petitioner sought adjournments and no reply to the show cause notice was submitted till May 2, 1985. That file is still pending and has not been dropped. It is further the case of the respondent No. 1 State of Rajasthan that complaints against the petitioner for his gross-misconduct in the discharge of his duties and abuse of his authority as Chairman were again received by the Collector on July 25, 1985 from Rajkumar, on July 26, 1985 from Rajkumar and on July 26, 1985 from Munnalal. The Collector Dholpur under his order dt. July 27,1985 requested the Director, LB for getting an inquiry conducted in the affairs of the Municipality and the misconduct of the petitioner. The Director, LB appointed Shri Madanlal Kala, Assistant Director Local Bodies to conduct an inquiry relating to complaints received against the petitioner by his order dated August 3, 1985. Shri Kala made an enquiry and submitted his report dated August 7, 1985 to the Collector and to the Director, LB. The Collector after scrutinising the inquiry report submitted by Shri Kala was satisfied that the petitioner has misconducted himself as Chairman by unlawfully disposing of the Municipal properties, allowing unlawful constructions against bye-laws, executing sale-deeds with his own signatures without any resolution of the Board, for taking no action against the trespassers and selling Municipal lands by negotiations without resorting to auction and thereby causing heavy loss to the Municipal Board. A request was made by the Collector for a regular inquiry under Section 63(2) and (3) of the Act and also for placing the petitioner under suspension from the office of the Chairman. The recommendations of the Collector were scrutinised and the report submitted by Shri Kala was also looked into and it was ordered to initiate inquiry against the petitioner on the grounds mentioned under Section 63(1)(d)(i) and Section 63(1)(d)(iv) of the Act. This order was issued only after approval of the Chief Minister. According to the answering respondent Section 63(4) of the Act is not violative of Article 14 of the Constitution and it provides opportunity of hearing.
5. Along with the reply, the answering respondents have filed the report of Shri Kala and other documents. The relevant files were also sent for and were placed for perusal. Arguments have been heard and the record perused.
6. Subject to the provisions of Sub-sections (2) and (3) of Section 63 of the Act, the State Government may, under sub-section(1) of Section 63 of the Act remove any member of any Board on any of the grounds contained therein. Under Clause (d)(i) of sub-section 1 of Section 63 of the Act, a member of a Board can be removed on the ground that he has been guilty of misconduct in the discharge of his duties. But under the proviso to Sub-section (1) of Section 63 of the Act, 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 officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. In case a member of the Board is to be removed on the ground contained in Clause (d)(i) of Sub-section (1) of Section 63 of the Act, as a result of the inquiry referred to in the proviso to Sub-section (1) of Section 63 of the Act, after hearing the explanation of the member concerned, it is necessary that the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for inquiry and finding by the judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. The Legal Remembrancer and the Joint Legal Remembrancer have been appointed as the Judicial Officers vide notification No. F.4(34)LSG/A/59-II dated November 11, 1959 under Sub-section (2) of Section 63 of the Act. Under sub-section(3) of Section 63 of the Act, the Judicial Officer so appointed shall proceed to inquire into the charge in the prescribed manner, 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 pass orders in conformity with those findings. Vide notification No. F.4(34)LSG/A/-II dated November 11,1959 in exercise of powers conferred under Section 63(3) of the Act, the State Government prescribed the procedure for holding inquiry into the charge against the member of a Municipal Board and Councillor of a Municipal Council. Under that procedure, when the State Government sends a statement setting out distinctly the charge against the member councillor, the same shall be treated as complaint and a copy of the same shall be sent to the member/councillor for filing a written statement personally or through his advocate on a date fixed for the purpose by the judicial Officer. If the member/councillor admits the charge in his written statement and shows no sufficient cause, Why he should not be removed, the Judicial Officer shall record his finding on each matter embodied in the statement of charge after hearing him, if he makes appearance and send the record to the State Government for passing necessary orders. If the member/councillor denies the charge, the Judicial Officer shall take such evidence oral or documentary, as may be produced in support of and against the charge. After completing the inquiry the Judicial Officer shall send record along with his finding to the State Government for necessary orders. The State Government has to pass orders in confirmity with the finding of the Judicial Officer. Under Section 63(4), not with standing the provisions contained in Sub-sections (1) and(2) of Section 63 of the Act, 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 Board or otherwise perform the duties of a member thereof.
7. It will be seen from the above referred to provisions of Section 63 of the Act along with the notification of the State Government dated Nov. 11, 1959, referred to earlier, that so far a member of Municipal Board/Council is concerned, in case he is to be removed on the grounds contained in Clause (d)(i) of Section 63(1) of the Act, that he has been guilty of misconduct in the discharge of his duties, there must be first an enquiry under the provision to Sub-section (1) of Section 63 of the Act, which may be made either by the State Government itself or through such officer or authority as may be directed and after the member concerned is afforded an opportunity of explanation. The inquiry as aforesaid and the explanation, if any of the member concerned should be considered by the State Government and thereafter, the State Government must draw a statement setting out distinctly the charge against the member and send the same for inquiry to the Judicial Officer. Such statement shall be treated as complaint.
8. Sub-section(4) of Section 63 of the Act starts with a non-obstante clause. But a pie-condition for the exercise of the powers under Sub-section (4) of Section 63 of the Act to place him under suspension is that the proceedings of removal must have been commenced under Section 63 of the Act against him. He can be placed under suspension after the commencement of the proceedings of removal until the conclusion of the inquiry and passing the final order after inquiry by the Judicial Officer. The pertinent question therefore is as to when the proceedings in respect of a member of the Municipal Board/Council who is sought to be removed from his office under sub-section(1) Clause (d)(i) of Section 63 of the Act, on the ground that he has been guilty of misconduct in the discharge of his duties can be said to have been commenced ? Under Sub-section (1) of Section 65 of the Act, any Chairman shall he removable from his officer as such Chairman on any of the grounds specified in Clause (d) of Sub-section (1) of Section 63 of the Act and the provisions of Sub-section (2) to (5) of that section shall apply. In my opinion, so far as a Chairman/Member of the Municipal Board Council is concerned, in case he is sought to be removed from his office on the ground contained in clause(d)(i) of Sub-section (1) of Section 63 of the Act, that he has been guilty of misconduct in the discharge of his duties, the proceedings for removal can be said to have been commenced against him only after the report of Inquiry under the proviso to Sub-section (1) of Section 63 of the Act is received, he has been afforded opportunity of explanation and the State Government has applied its mind and has decided to proceed Under Sub-section (2) of Section 63 of the Act against him. It is not necessary that for commencement of the proceedings as aforesaid, the statement of charge which as per the notification referred to earlier is to be treated as complaint must have been drawn. I am unable to agree with the submission of Mr. Calla, Advocate and Mr.M.I. Khan, Government Advocate that any inquiry, may not be an inquiry under the proviso to Sub-section (1) of Section 63 of the Act, if has been made and has been considered by the State Government and the State Government has applied its mind and has decided to take action for removal is sufficient and even in that case it can be said that the proceedings for removal under Section 63 of the Act have been commenced against the member/Chairman of the Board.
9. In Ugamsee Modi v. State of Rajasthan 1962 RLW 184, Sub-section (4) of Section 63 of the Act came up for consideration before a division Bench of this Court. It was held in that case that the suspension order within the meaning of Section 63(4) of the Act can be passed if the proceedings have been commenced under that section. In that case on the basis of a report of the Collector. Jalore and Inspector General of Police show cause notice was issued to Ugamsee Modi, Chairman of the Municipal Board to show cause as to why action be not taken against him. He did not not furnish any explanation and the State Government gave sanction to prosecute Shri Modi for various offences under the Indian Penal Code and thereafter purporting to act under Section 63(4) of the Act, the State Government placed him under suspension with immediate effect. It was held that:
If these facts are correct that there were certain allegations of misconduct against the petitioner of his having abused his powers as Chairman of the Municipality, that on those allegations there was some inquiry by certain officers and that on that report submitted by those officers the Government called upon the petitioner to explain the allegations made against him it can hardly be contended that proceedings cannot be taken to have been commenced against the petitioner within the meaning of Sub-section (3) of Section 63 of the Municipalities Act.
Mr. Calla, learned counsel for the non-petitioner No. 2 has contended that it has not been laid down in the case of Ugamsee (supra) that before a member/ Chairman of the Board/Council can be suspended under Sub-section (4) of Section 65 of the Act, the proceedings under Sub-section (2) of Section 63 must have been commenced. His contention is that under Sub-section (4) of Section 63 of the Act, if on any report the State Government has applied its mind and has taken a decision to initiate proceedings for removal of a member/Chairman of the Municipal Board under Clause (d)(i) of Section 63 (1) of the Act, it can be said that the proceedings have been commenced against him under Section 63. According to him, it is not necessary that there must be an inquiry and result thereof under the proviso to Sub-section (1) of Section 63 of the Act. But I have already earlier referred to the relevant provisions of the Act as well as to the notification issued under Sub-section (3) of the Section 63 of the Act. A member/Chairman of a Municipal Board/Council who is sought to be removed on the grounds contained in Clause (d)(i) of Sub-section (1) of Section 63 of the Act can only be removed as a result of the inquiry referred to in the proviso to Sub-section (1) of Section 63 of the Act and after hearing the explanation of the member/Chairman concerned. In Sub-section (2) of Section 63 of the Act, the words used are "where it is proposed to remove a member" (emphasis added) and the State Government can only propose to remove a member under the aforesaid clause of Section 63 (1) of the Act after application of its mind to the result of the inquiry referred to in the proviso to Sub-section (1) of Section 63 of the Act after hearing the explanation of the member concerned. I am, therefore, of the opinion that even in Ugamsee's case (supra) a Division Bench of this Court has held that so far as Member/ Chairman of the Municipal Board/Council is concerned, if he is sought to be removed on the ground of misconduct under Clause (d)(i) of Section 63 (1) of the Act, proceedings can only be said to have been concerned when as a result of the inquiry under the proviso to Sub-section (1) of Section 63 of the Act and after considering the explanation if any of the member, the State Government applies its mind and takes a decision to make an enquiry under Sub-section (2) of Section 63 of the Act.
10, In Mohanlal v. State of Rajasthan 1963 RLW 209 Section 63(1) (d) of the Act and Section 63 (4) again came up for consideration. In that case certain complaints had been received by the Government against the Chairman of the Municipality, Sardarshar. A preliminary inquiry was held by the Dy. Director, LB and the Assistant Director, LB. An interim report was submitted by the Assistant Director to the Government, as the Government, as the post of Dy. Director had been abolished. The statement of the Chairman was recorded by the Asstt. Director before he submitted report to the Government regarding certain allegations against him. The Government ordered suspension of the Chairman. Thereafter the writ petition was filed challenging the validity of the order of suspension on the ground that no inquiry had commenced against the Chairman. A reference in that case was made to Ugamsee's case (supra). A contention was raised on behalf of the Chairman that the proceedings against him can be said to have been commenced only on issue of a show cause notice to him after the proceedings are taken for appointment of a Judicial Officer after conducting the inquiry. It was held that further action under Section 63(2) of the Act can only be taken as a result of the inquiry under the proviso to Sub-section (1) of Section 63 of the Act. It was. held that:
It is obvious that the intention of the legislature was that a preliminary inquiry under the proviso to Sub-section (1) of Section 63 should be undertaken before action under Sub-section (2). is taken for removal of a member or a Chairman on the grounds specified in Sub-section (1) (d) of Section 63.
The learned Judges expressed their agreement with the law laid down in Ugamsee's case (supra) that proceedings under Sub-section (2) of Section 63 of the Act must be taken to have been commenced against the petitioner was called upon to show cause and explain his conduct.
11. The provisions of Sub-section (1) of Section 63 of the Act are subject to the provisions of Sub-section (2) and (3) of Section 63 of the Act. Therefore, so far as a Member/Chariman of the Municipal Board, who is sought to be removed on the ground that he has been guilty in the discharge of his misconduct is concerned, he can only be removed after complying with the provisions of Sub-section (2) and (3) of Section 63 of the Act. It is only after considering of the report of inquiry referred to in the proviso to Sub-section (1) of Section 63 of the Act and after hearing the explanation of the member concerned, that it can be proposed under Sub-section (2) of Section 63 of the Act that a Member/Chairman should be removed from his office on the ground contained in Clause (d)(i) of Section 63 (1) of the Act. I am, therefore, of the opinion that the existence of a report under the proviso to Sub-section (!) of Section 63 of the Act and consideration of the explanation, if any, of the Member/Chairman concerned, is a condition precedent for the commenc-ment of the proceedings within the meaning of Section 63(4) of the Act. Therefore, so far as a Member/Chairman of the Municipal Board/Council is concerned the proceedings under Section 63 of the Act can only be said to have been commenced after the State Government has applied its mind to the report under the proviso to Sub-section (1) of Section 63 of the Act, and after consideration of the explanation, if any of the Member/Chairman concerned.
12. The question, therefore, arises as to when the proceedings under Section 63 of the Act can be said to have been commenced against the petitioner in this case ? It has already been stated earlier that under the provision to Sub-section (1) of Section 63 of the Act, the inquiry into the matter of removal of a Member /Chairman of the Municipal Board on the ground contained in Clause (d)(i) of Section 63 (1) of the Act can only be made either by the State Government itself or through such officer or authority as it may direct.
13. Under Section 299 of the Act, the State Government may delegate all or any of its powers exercisable by it under sections mentioned therein. The power under Section 63 of the Act, can also be delegated under Section 299 of the Act by the State Government to any officer subordinate to it. The State Government has not delegated its powers under clauses (c) and (d) of Sub-section (1) of Section 63 of the Act to its subordinate officers including the Director, LB. The only powers which have been delegated under Section 299 of the Act are under Section 63(1)(a) and (b) of the Act. Some of the powers were delegated to the Director LB under Government notification No. F. 8 (84)LSG/62/III dated December, 19,1962. Thereafter, under notification No. F. (135) LSG/77-IV dated January 21, 1978 in supresession of all previous notifications issued in this behalf the State Government in exercise of its powers conferred by Section 299 of the Act delegated the powers under Section 63(1)(a) and (b) of the Act on the Director, LB in respect of all Municipal Councils and Boards. The powers of the State Government under Clause (c) and (d) of Section 63(1) of the Act have not been delegated to any of the subordinate officers. The contention of Mr. M I Khan, learned Government Advocate is that Under Section 283 of the Act any officer appointed or authorised by the State Government in this behalf by a general or special order shall have power to enter on or inspect or cause to be entered on and inspected any immovable property occupied by any Board or any institution under its control or management or any work in progress under it or under its direction or control. His further contention is that any officer appointed or authorised by the State Government in this behalf shall have power to inspect the office of any Board and call for the records of any such Board under Section 284 of the Act. His contention further is that under Section 283 and 284 of the Act the State Government issued a notification No. F. 3(135) LSG/77-I V-2 dated January 19, 1971 in supersession of all previous notifications issued in this behalf and authorised the Director, LB Dy. Director, LB, Accounts Officer, of Local Bodies, Assistant Director, Local Bodies in respect of all Municipal Councils and Boards to exercise the powers under Section 283 and 284 of the Act. He therefore contends that if the Asst. Director in exercise of those powers inspected the Board and made a report, it can be said that the report was made by the officer appointed by the State Government. But the power of removal of a Member/Chairman vested in the State Government under Section 63 of the Act is different power and as already stated earlier the State Government under Section 299 of the Act has only delegated its powers under Section 63(1)(a) and (b) of the Act on its subordinate officers including the Director. LB. As stated earlier, the power under Sub-section (c) and (d) of Section 63 (1) of the Act have not been delegated to any of the subordinate officers. Therefore, an inquiry under the proviso to Sub-section (1) of Section 63 of the Act in the matter of removal of a Member/Chairman of the Municipal Board as contained in Clause (d)(i) of Section 63(1) of the Act could only be made by the State Government itself or it could have directed any of its subordinate officers to make such inquiry into the matter. I have already said earlier that the existence of inquiry under the proviso to Sub-section (1) of Section 63 of the Act and affording opportunity of explanation to the Member/ Chairman concerned, is a condition precedent for removal of the Member/ Chairman concerned on the ground contained in Clause (d)(i) of Section 63(1) of the Act.
14. The case of the petitioner is that proceedings under Section 63 of the Act have not been commenced against him and therefore he could not have been suspended under Section 63(4) of the Act. The order of suspension is dated September 12, 1985 (Annexure 1). It is mentioned in the aforesaid order of suspension that the charges of misconduct are prima facie proved as a result of the preliminary inquiry and because Shri Ajmer Singh Yadav is holding the office of Chairman, Municipal Board Bari, it will prejudicially affect the inquiry, Shri Yadav is placed under suspension. In reply to the show cause notice the respondent No. 1 State, has stated in para No. 5 of that the complaints of misconduct, abuse of office, were received against the petitioner from Shri Rajkumar, Vice Chairman of Municipal Board, Bari on January 21, 1983. A copy of the said complaint has been annexed with the writ petition as Annexure R/1. A perusal of the complaint will show that it was addressed to the Minister for Local Self Government and a copy of it was endorsed to the Director, LB. The Director, LB is also ex-officio Dy. Secretary to the Government. In the earlier part of the judgment reference has been made in detail to the reply and to the fact that no action has been taken on that complaint and it is still pending. (For the sake of convenience this complaint will here in after be called as the 'first complaint').
15. It is further the case of the answering respondent that the complaints against the petitioner for his gross-misconduct in the discharge of his duties have been received by the Collector on July 25, 1985 from Rajkumar, and on July 26, 1985 from Munnalal. The Collector vide his letter dated July 27, 1985 requested the Director, LB, and Secretary for getting an inquiry conducted in the affairs of the Municipality and the misconduct of the petitioner. The Director, LB appointed Shri Madanlal Kala, Asst. Director, Local Bodies to conduct an inquiry relating to the complaints received against the petitioner by order dated August 3, 1985. Shri Kala submitted his report dated August 7/8, 1985 to the Collector and to the Director, LB. The Collector after scrutinising the inquiry report submitted by Shri Kala was satisfied that the petitioner has misconducted himself as Chairman by unlawfully disposing of the Municipal properties, allowing unlawful constructions against bye-laws, execution sale deeds with his own signatures without any resolution of the Board, for taking no action against the trespassers and selling Municipal lands by negotiations without resorting to auction and thereby causing heavy loss to the Municipal Board. The Collector requested for a regular inquiry under Section 63(2) and (3) and also requested for the suspension of the Chairman petitioner during the inquiry. The State Government after receipt of the recommendations of the Collector again scrutinised the report submitted by Shri Kala, ordered to initiate the inquiry on the grounds under Section 63(1)(d)(i) and 63(1)(d)(iv) of the Act. By the same order the suspension order under Section 63(4) of the Act was passed by the Director. LB. This order was approved by the Chief Minister. Along with the reply to the writ petition, a copy of the inquiry report conducted by Shri Kala has been annexed as Annexure R/4. The complaints dated July 25 and 26, 1985, for the sake of brevity shall be called as the second complaint).
16. The files of the first complaint as well as of the second complaint have been made available to me by the learned Government Advocate and have been perused. It will be clear from the reply to the petition as well as from the files of the complaints that the petitioner has not been suspended on the first complaint or as a result of the inquiry on the first complaint. At the cost of the repetition a reference is made to para No. 5 of the reply page 3 wherein it has been clearly stated that the file is still pending and the inquiry has not been dropped. That apart, I have already held that under the proviso to Sub-section (1) of Section 63 of the Act an inquiry can be made either by the State Government itself or through any subordinate officer directed to make an inquiry into the matter. It has been said earlier that the powers under clauses (c) and (d) of Section 63 (1) have not been delegated to any of the officers subordinate to the State Government . From the reply to the petition, so far as the first complaint is concerned, all that can be said is that the inquiry was got conducted by the Collector through Shri Ahsan Ahmed Chhipa, Asst. Collector Dholpur and no inquiry was conducted by the State Government or any other authority under its direction. Therefore, firstly the order of suspension under Section 63(4) of the Act is not said to have been made in consequence of the first complaint and in my opinion it could not have been made .because there was no inquiry report under the proviso to Sub-section (1) of Section 63 of the Act and by virtue of sub-section 63(2) of the Act it could only be proposed to remove a Member/chairman as a result of inquiry under the proviso to Sub-section (1) of Section 63 of the Act and after hearing the explanation, if any. Coming to the second complaint at the request of the Collector Dholpur the Director, LB appointed Shri Madan Lal Kala, Asstt. Director, LB to inquire into the matter. The State Government did not make any inquiry nor it directed the Asstt. Director, LB to make any inquiry in the matter. This enquiry therefore also suffers from the same infirmity and in my opinion it cannot be said to be an inquiry under the proviso to Sub-section (1) of Section 63 of the Act. That apart, it is not the case of the answering respondent that after the report of Shri Kala was made to the Collector, and to the Director, LB and before the order of suspension was made, any opportunity of explanation was afforded to the petitioner as provided under the proviso to Sub-section (1) of Section 63 of the Act. It is not stated in the reply nor does it appear from the perusal of the file of the second complaint that as a result of the inquiry referred to under the proviso to Sub-section (1) of Section 63 of the Act and after having the explanation of the petitioner the State Government proposes to remove the petitioner from the office. Under Section 63(4) of the Act a Member/Chairman can be placed under suspension in case proceedings have been commenced against him for his removal on the ground contained in Clause (d)(i) of Section 63(1) of the Act. As stated earlier, on the ground contained in Section 63(1)(d)(i) of the Act, proceedings can only be said to have been commenced only after inquiry report under the proviso to Sub-section (1) of Section 63 of the Act is received and an opportunity has been afforded to the Member/Chairman concerned of his explanation. Even if the report of Shri Kala, Asstt. Director, LB be held to be a preliminary report under the proviso to Sub-section (I) of Section 63 of the Act, which in my opinion, it is not, in the absence of affording an opportunity of explanation on the report, it cannot be said that the proceedings have been commenced within the meaning of Sub-section (4) of Section 63 of the Act. Therefore, in my opinion, the order of suspension cannot be sustained as the case is in contravention of the provisions of Section 63(4) of the Act.
17. So far as the vires of Section 63(4) of the Act are concerned, this argument was only addressed in alternative. This argument therefore need not be dealt with.
18. In the result, I allow this writ petition on the ground that proceedings cannot be said to have been commenced in this case within the meaning of Section 63 of the Act for the removal of the petitioner from the office of Member/Chairman of Municipal Board Bari. The order dated September, 12, 1985 (Annexure 1) is quashed Costs made easy.