Rajasthan High Court - Jaipur
Bharat Lal Saini S/O Shri Nandlal Saini vs State Of Rajasthan on 16 February, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 13062/2022
Bharat Lal Saini S/o Shri Nandlal Saini, Aged About 45 Years,
R/o Ward No. 2, Opposite Bob, Todaraisingh, District Tonk,
Chairman, Nagar Palika Todaraisingh, District Tonk.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary, Local
Self Government Department, Government Of Rajasthan,
G-3, Rajmahal Residential Area, C - Scheme Near Civil
Line Phatak, Jaipur - 16, Rajasthan.
2. Director And Joint Secretary Local Self Government
Department, Government Of Rajasthan, G-3, Rajmahal
Residential Area, C - Scheme Near Civil Line Phatak,
Jaipur - 16, Rajasthan.
3. Executive Officer, Nagar Palika Todaraisingh, District Tonk,
Rajasthan.
----Respondents
For Petitioner(s) : Mr. Punit Singhvi with Mr. Aayush Singh For Respondent(s) : Mr. Anil Mehta, AAG with Mr. Yashodhar Pandey & Mr. Prawal Mishra Ms. Archana HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 16/02/2023 At the outset, learned counsel for the petitioner confines his relief in the writ petition to the challenge to the order dated 25.08.2022.
This writ petition is filed by the petitioner, a suspended Chairperson and Member of the Nagar Palika, Todaraisingh, (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (2 of 10) [CW-13062/2022] District Tonk for quashing and setting aside the order dated 25.08.2022 whereby, he has been placed under suspension.
The relevant facts in brief are that the petitioner, an Elected Member and Chairperson of the Municipal Council Todaraisingh, District Tonk was arrested on 18.07.2022 in a bribery case whereupon, an FIR No.288/2022 dated 19.07.2022 came to be registered against him under Sections 7 & 7A of the Prevention of Corruption (Amendment) Act, 2018 (for brevity, "the Amendment Act of 2018) and Section 120-B of the Indian Penal Code (for brevity, "IPC"). Vide order impugned dated 25.08.2022, the petitioner has been placed under suspension under Section 39(6) of the Municipalities Act, 2009 (for brevity, "the Act of 2009") which has been challenged by way of this writ petition on the premise of it being violative of the mandatory provisions under Section 39 of the Act of 2009.
The respondents in their reply submitted that on receipt of an information through the letter dated 19.07.2022 from the Anti Corruption Bureau about petitioner's arrest in the aforesaid FIR No.288/2022, on 03.08.2022 a decision was taken to conduct a preliminary enquiry under Section 39(1) of the Act of 2009. In the preliminary enquiry report dated 16.08.2022, the petitioner was found prima facie guilty of misconduct. Thereafter, a decision was taken to place him under suspension which culminated in the order dated 25.08.2022.
Assailing the order impugned dated 25.08.2022, the only argument advanced by the learned counsel for the petitioner is that since, he has been placed under suspension under Section 39(6) of the Act of 2009 on the basis of the preliminary enquiry (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (3 of 10) [CW-13062/2022] wherein, he was not afforded an opportunity of explanation as mandated under Section 39(1) of the Act of 2009, it is bad in law. He would submit that since the whole basis of placing him under suspension is the preliminary enquiry which is void-ab-initio being violative of the principles of natural justice, the order dated 25.08.2022 is not sustainable in the eye of law. He, therefore, prayed that the writ petition be allowed and the order dated 25.08.2022 be quashed and set aside.
Per contra, learned Additional Advocate General, drawing attention of this Court towards the preliminary enquiry report dated 16.08.2022, would submit that since the petitioner was in custody at the relevant time, seeking an explanation under Section 39(1) of the Act of 2009 was not feasible. He would submit even otherwise also that it is a well settled legal principle that for placing an Elected Member under suspension under Section 39(6), mere decision to initiate a preliminary enquiry is sufficient. He, in support of his submissions, relies upon the co- ordinate Bench judgments of this court dated 14.02.2020 in case of Rajaram Gurjar Vs. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.21332/2019 & dated 01.02.2022 in case of Nirmal Kumar Pitaliya Vs. State of Rajasthan & Ors.:S.B. Civil Writ Petition No.17285/2021.
Heard. Considered.
The petitioner was arrested on 18.07.2022 on the allegation of accepting bribe through co-accused for which an FIR No.288/2022 dated 19.07.2022 under the provisions of the Amendment Act of 2018 and IPC came to be lodged against him. A decision was taken by the respondents on 03.08.2022 for (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (4 of 10) [CW-13062/2022] conducting a preliminary enquiry against him which was concluded on 16.08.2022 and during the entire interregnum period, he was in judicial custody and he came to be released on bail only on 19.08.2022. In pursuance of direction of this Court dated 04.02.2023, the respondents have submitted the original record pertaining to suspension for perusal of this Court. The record reveals that a proposal to place him under suspension was initiated on 17.08.2022 which got the approval of the concerned Minister on 23.08.2022 and the order of suspension came to be passed on 25.08.2022.
The aforesaid circumstances make it apparent that at the time the decision to initiate preliminary enquiry under Section 39(1) of the Act of 2009 was taken, it was concluded and a proposal was made to place the petitioner under suspension under Section 39 (6) of the Act of 2009, he was in judicial custody and his explanation could not have been sought as has been observed by the enquiry Committee also in its report dated 16.08.2022.
It is trite law that the principles of natural justice cannot be put in a straight jacket formula and can be molded depending upon facts and requirements in a given case. Herein, the petitioner was arrested on 18.07.2022 on the grave allegation of accepting illegal gratification through his PA and initiation of the preliminary enquiry under Section 39 (1) of the Act of 2009 could not have been kept in abeyance for an indefinite period for want of an opportunity of explanation in view of uncertainty about the period he was to remain in judicial custody. After arrest of the petitioner on 18.07.2022 and receipt of its information vide letter dated 19.07.2022 from the Anti Corruption Bureau, the decision of (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (5 of 10) [CW-13062/2022] the respondents dated 03.08.2022 to initiate the preliminary enquiry under Section 39(1) and its conclusion on 16.08.2022 cannot be held to be bad in law for want of compliance of the principles of natural justice in the aforesaid circumstances.
Their Lordships have, in case of Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise and Ors.: 2015 (8) SCC 519, held as under:
"(38) But that is not the end of the matter.
While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straight-jacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the Courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross- examination of witnesses is treated as necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the Courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on."
In view thereof, contention of the learned counsel for the petitioner that the action of the respondents placing him under (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (6 of 10) [CW-13062/2022] suspension based on preliminary enquiry conducted without giving him an opportunity of explanation is bad in law, cannot be countenanced by this Court. Even otherwise also, for placing an Elected Member under suspension under Section 39(6) of the Act of 2009, report of the preliminary enquiry is not a condition precedent.
Section 39(6) of the Act of 2009 reads as under:
"39. Removal of member.- (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."
Interpreting the aforesaid provisions, it has been held by this Court in the case of Rajaram Gurjar (supra) as under:-
"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 (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (7 of 10) [CW-13062/2022] 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 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.
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."
Similarly, in case of Nirmal Kumar Pitaliya (supra), this Court held as under:-
"(50) According to this Court, commencement of proceedings is the point of time, when the State Government decides to take action against an elected representative. Such decision to take action, naturally would entail a fact finding inquiry or preliminary inquiry, as contemplated under the first proviso to Section 39 of the Act of 2009, followed by a judicial inquiry to be conducted under sub- (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (8 of 10) [CW-13062/2022] sections (3) and (4) of Section 39 of the Act of 2009.
(51) But then, sub-section (6) of Section 39 of the Act of 2009, does not make any reference of any sort of inquiry, preliminary or judicial. The provision simply mentions that in case proceedings have been commenced under this Section, a member can be placed under suspension. This Court is firmly of the view that the expression "proceedings have been commenced" coupled with the expression "under this Section" is wide enough to include within its fold not only the issuance of notice for preliminary inquiry and service of charge-sheet, but even the situation and cases, when the State Government decides to get an inquiry conducted through any authorized officer. The moment, the State chooses to take action against an elected representative with or without simultaneously referring the matter to the competent authority for inquiry in terms of proviso to sub-section (1), the proceedings stand commenced.
(52) It is noteworthy that the expression used in sub-section (6) is "proceedings" and not "inquiry". The expression "proceedings" includes the decision to initiate inquiry, issuance of notice etc. and, therefore, in the opinion of this Court, in the present factual matrix, on 02.07.2021, when the State Government had decided to commence disciplinary proceedings against the petitioner and had made up its mind to do so, the proceedings had commenced.
(53) If the term 'proceedings' is to be interpreted as proposed by Mr. Rajesh Joshi then section 39(6) would be rendered redundant in case(s) when action is taken pursuant to any (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (9 of 10) [CW-13062/2022] allegation under clauses (a) and (b) of sub- section (1) of Section 39, because unlike the procedure of removal of a member under clauses
(c) and (d) of sub-section (1) of Section 39 where, after having conducted a preliminary inquiry and granting an opportunity of hearing, the State Government has to further refer the matter to a Judicial Officer, the procedure of removal of a member under clauses (a) and (b) of sub-section (1) of Section 39 only requires the State Government to decide removal/non- removal of the member after having conducted a preliminary inquiry and granting an opportunity of hearing to the accused member.
(54) Therefore, the State Government would be unable to suspend a member during pendency of its decision of removal when his case falls under clauses (a) and (b) of sub- section (1). Whereas sub-section (6) provides that suspension can take place if proceedings have been commenced under Section 39 of the Act of 2009. Unquestionably, sub-section (6) is applicable to all the nine contingencies mentioned in clauses (a) to (d) of sub-section (1). If the petitioner's argument is accepted then sub-section (4), which has been specifically made applicable to the entire Section 39 would be restricted to cases covered by clauses (c) and (d) of sub-section (1) only. Such interpretation would frustrate the very purpose of the provision and hence, the same cannot be accepted.
(55) Therefore, for the reasons discussed hereinabove and the law laid down in the case of Ugamsee Modi (supra), this Court holds that the 'proceeding' as envisaged under section 39(6) can be said to have commenced upon issuance of (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) (10 of 10) [CW-13062/2022] a preliminary inquiry/show cause notice based on the allegations levelled against the accused under section 39(1)."
In the aforesaid factual and legal backdrop, this Court is not persuaded to hold the order dated 25.08.2022 to be bad in law for want of an opportunity of explanation to the petitioner during the preliminary enquiry. The writ petition is dismissed accordingly.
However, this Court is informed that the judicial enquiry is going on in which the petitioner is participating. In view thereof, it is expected that the judicial enquiry is conducted at earliest as an elected public representative is under suspension.
Original record is returned back to the learned Additional Advocate General.
(MAHENDAR KUMAR GOYAL),J Sudha/113 (D.B. SAW/380/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 04:14:25 PM) Powered by TCPDF (www.tcpdf.org)