Rajasthan High Court - Jaipur
Suresh Chandra Singhal vs State Of Raj. And Anr. on 13 May, 2005
Equivalent citations: RLW2005(3)RAJ1611, 2005(3)WLC255
Author: Gyan Sudha Misra
Bench: Gyan Sudha Misra, J.R. Goyal
JUDGMENT Gyan Sudha Misra, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance 1949, has been preferred by the appellant-Suresh Chandra Singhal against the judgment and order passed by the learned Single Judge in S.B.C.W.P. No. 3920/2004 (Suresh Chandra Singhal v. State of Rajasthan and Ors.) dated 27th September, 2004 which was heard and dismissed alongwith a batch of several other writ petitions involving common questions of law. As a consequence of the judgment and order of the learned Single Judge, the appellant who had been suspended from functioning as the Chairman of the Municipal Board, Gangapur City, was allowed to remain under suspension till the conclusion of the enquiry, which was ordered to be conducted expeditiously by the Judicial officer to whom the enquiry has been entrusted. The appellant having specified period to function as member and Chairman of the Board, is suffering each day on account of pendency of the enquiry which is yet to be concluded and hence has preferred this appeal on several grounds including the ground of delay in concluding the enquiry.
2. The facts of the case in so far as it is relevant to decide the controversy involved herein is that the appellant-petitioner who had first of all been elected as a member of the Municipal Board Gangapur City, on 20.8.2000 was further elected as a Chairman of the said Municipal Board on 22.8.2000.
3. After completion of his tenure as Chairman of the Board for approximately more than three years, a notice was issued to him on 16.2.2004 by the Deputy Secretary, Department of Local Self Government, Jaipur incorporating five charges against the appellant on the basis of an alleged enquiry report of the Regional Deputy Director for which explanation was sought from the appellant within a period of seven days failing which a proceeding was to be initiated under Section 63 of the Rajasthan Municipal Act 1959 (shortly referred to herein as the Act of 1959).
4. The first charge levelled against the petitioner was to the effect that he had failed to take action to remove the encroachment with regard to a plot sold in auction on 29.8.2003. The second charge alleged that no further action was taken to remove encroachment on land of shop No. 30 and adjoining land in front of shop No. 19, 31, 32 which were let out by the Municipal Board to Jagdish Prasad Garg in 1978. The third charge was that instead of cancelling the contract for not depositing the contract amount by the contractor for Bus Parking for the year 2001-02, he allowed the contractor to pay the money by installments. The fourth charge was that he did not cancel the contract of the private buses for the year 2002-03 when the highest bidder Raju did not deposit the amount. The fifth and the last charge disclosed that the appellant did not call the monthly meeting of the Municipal Board. The petitioner on 1.3.04 demanded the copies of the documents, enquiry report and the complaint and submitted the reply, but thereafter the order of suspension was passed against the appellant on 9.6.2004.
5. The appellant/petitioner feeling aggrieved with the order of suspension filed a writ petition being SBCWP No. 3920/2004 challenging the order of suspension on several grounds including the reason that the charges were frivolous and baseless and did not warrant an enquiry. It was also challenged on the ground that the order of suspension had been passed by the respondents without following the provisions of the Act of 1959 as the order of suspension was passed without serving the charge-sheet and statement of allegations on the appellant/petitioner nor any notice had been served upon him calling for an explanation. It was challenged further on the ground that Section 63 of the Act of 1959 empowers only the State Government to hold an enquiry and no other authority had the power to hold the enquiry and as the State Government had not passed any order for holding the enquiry, the enquiry held by the Dy. Director at the instance of the Director could not be termed as 'enquiry' in terms of Section 63(1)(a) of the Act of 1959.
6. One of the principal contentions raised on behalf of the appellant/petitioner is that a preliminary enquiry had not been held in regard to the charges alleged and in absence of the preliminary enquiry, the order of suspension could not be held justified in terms of Section 63 of the Act of 1959.
7. The learned Single Judge while dealing with the case of the appellant/petitioner alongwith other several similarly situated persons, who also were suffering the order of suspension holding different posts after having been elected on those posts, was pleased to rely upon a series of decisions of the Division Bench of this High Court and having relied upon them was pleased to hold that the consistent view of this Court on the controversy involved is that if the State Government is satisfied regarding the charges that they require a thorough and fare probe, and continuation in office of the delinquent may cause great loss to the finances of the institution, it may decide to refer those charges to a judicial officer for enquiry and the delinquent be served with a show-cause notice alongwith statement of allegations and he can also be suspended from his office simultaneously. The writ petition filed by the petitioner was, therefore dismissed directing the petitioner to go through the enquiry which was ordered to be conducted expeditiously.
8. Challenging the judgment and order of the learned Single Judge in this appeal, it was first of all contended that as per the provisions of Section 63(2) of the Act of 1959 there should have been a preliminary enquiry under Section 63(1) of the Act of 1959 and explanation of the concerned member/Chairman should have been sought before drawing up the charges. It is alleged that in the instant case, the State Government had not appointed any person to conduct the enquiry into the complaint and the enquiry initiated on 7.2.2004 cannot be said to be an enquiry under the proviso to Section 63(1) of the Act of 1959 as no explanation was called from the petitioner/appellant before framing the charges. Addressing further on this contention, it was contended that no enquiry report having been submitted under proviso to Section 63(1) read with Sub-section (1)(c) of the Act by the State Government against the petitioner, there is no question of application of mind on the enquiry report and hence no enquiry could be said to have commenced so as to justify the order of suspension passed against the petitioner which was also malafide, arbitrary and void ab initio. Much emphasis was also laid on the fact that no explanation was called from the appellant/petitioner under Section 63(2) of the Act of 1959 and without framing the charges against the petitioner, no order of suspension could be passed. It was, therefore, contended that the order of suspension dated 9.6.2004 is wholly illegal, without jurisdiction and against the provisions of law. Besides this, it was contended that the order of suspension suffers from non-application of mind and not based on any materials and hence the same deserves to be quashed and set aside.
9. Thus the sum and substance of the arguments advanced by Shri Bhandari on behalf of the appellant is that the learned Single Judge has failed to consider that under Section 63(4) of the Act of 1959, an elected member or Chairman can be placed under suspension only in case of a proceeding having been commenced for his removal on the ground contained in Clause (d) of Sub-section (1) of Section 63 of the Act but in the instant case no enquiry had been conducted and no report had been received under the provisions of Section 63(2) of the Act of 1959 and the Government had not applied its mind to the same as no opportunity had been afforded to the petitioner for his explanation. The learned counsel further submitted that the learned Single Judge has failed to consider that the respondent-State Government had never called the appellant/petitioner to explain any of the charges which were not based on any enquiry report under the proviso to Section 63(1) of the Act of 1959 and no opportunity of explanation was ever given to the petitioner for the alleged charges before passing the impugned order of suspension and in such situation and circumstance, the same ought not to be hold sustainable under the eye of law.
10. The Additional Advocate General Mr. Bharat Vyas on the contrary submitted that the order of suspension passed against the appellant was wholly in compliance and consonance with the provisions of Section 63(4) of the Act 1959 as the order of suspension against the appellant was passed on 9.6.2004, after an enquiry report was prepared by the Regional Director and notice was issued to the appellant seeking explanation on five charges on 16.2.2004 failing which action was proposed to be taken under Section 63 of the Act of 1959. It was therefore contended that prior to passing the order of suspension the report was already in existence and hence the order of suspension was wholly justified, even though the charge sheet had not been issued by that time.
11. The question therefore, which needs to be addressed in this writ petition is whether the suspension of the appellant can be held to be in consonance with Section 63(4) of the Act of 1959, and whether the proceeding could be held to have commenced against the appellant prior to the passing of the order of his suspension as Section 63 of the Act 1959 clearly lays down as follows:-
"Section 63(4) notwithstanding the foregoing provisions of the Section, the State Government may place under suspension a member against whom proceedings have been commenced under this Section until the conclusion of the enquiry and the passing of the final order and the member suspended shall not be entitled to take part in any proceedings of the Board of otherwise perform the duties of a member thereof."
12. Fortunately for the contesting parties assistance, the question as to when and at what stage an elected representative to a Municipal Board could be put under suspension has cropped up time and again before this Court in numerous cases and a series of decisions have been delivered on the point touching various aspects of the matter and the learned Single Judge has rightly observed that a consistent view has emerged out of these decisions that an elected representative can be put under suspension as soon as the enquiry has commenced but the ticklish question as to when the enquiry can be said to have commenced against the elected member/Chairman of the Board obviously depends upon the facts, circumstances and situation prevailing in the case presented before the Court. While in some cases it may be that the notice itself regarding a preliminary enquiry is not served on the affected elected person while in others, the preliminary enquiry report is not submitted by the concerned authority before the State Government to form an opinion whether the enquiry is to be initiated and whether the affected elected person is fit to be put under suspension. Various decisions have been delivered by this Court from time to time while dealing with the validity of the order of suspension as for instance in the case of Prem Prakash v. The State of Raj. and Ors. reported in 1993 (1) WLC 567-validity of service of notice for proposed action under Section 63 of the Rajasthan Municipalities Act 1959 was a subject matter of consideration before the learned Single Judge who found that the procedure under Clause (d) of Section 250(1) for putting the elected member of the Municipal Board Shrimadhopur was resorted to without first of all following the three other modes of service of show cause notice on the affected member and hence the suspension order was quashed holding therein that the proposed action under Section 63(4) without placing the explanation of the affected member to the State Government prior to passing the order of suspension was held to be contrary to Section 63(4) of the Act of 1959 and it was further held therein that the suspension of the petitioner before framing charges suffered from serious legal infirmity and was without jurisdiction due to which the suspension order was finally quashed.
13. In yet another decision delivered by a Division Bench of this Court in the matter of Jan Mohammed v. State of Raj. and Ors. reported in 1992 (2) WLC 463 the learned judges of the Division Bench were pleased to hold that suspension has to take place after due application of mind on report of preliminary enquiry and final enquiry had to be held not by the State Government but by a judicial officer. After an extensive analysis of the case laws on the question as to when and at what point a member/Chairman of Municipal Board could be suspended was discussed threadbare in this decision and it was held therein that a member/Chairman of Municipal Board can be suspended only when a preliminary enquiry is conducted by a responsible officer and preliminary enquiry report is supported by documentary and oral evidence considered by the State Government and the Government comes to the conclusion that holding office by such delinquent against whom allegations of misconduct, flagrant abuse of powers and disgraceful conduct is found, the member can be suspended for enquiry by the judicial officer. Affirming the decision reported in 1962 RLW 184 Ugamsee Modi v. State of Rajasthan and 1963 RLW 209 Mohanlal v. State of Rajasthan it was held therein that before suspending a member/Chairman of the Municipal Board or Council what is essential is that a preliminary enquiry report should be considered and after application of mind on the preliminary enquiry report, if the State Government considers it fit that the matter needs further enquiry then a show cause notice has to be issued to such member/Chairman of the Municipal Board/Council as to why specific charges not be framed against him and they be referred to the Judicial Officer and simultaneously, the suspension order can be issued because as soon as there is application of mind on the report that has been submitted by the enquiry officer, and the Government decides what action has to be taken that is the stage when the proceedings can be said to have commenced against the member/Chairman, prior to that, the stage is of holding of a preliminary enquiry.
14. In yet another judgment delivered in the matter of Nand Lal v. State of Rajasthan reported in 1996 (2) WLC 497, show cause notices were followed by suspension of the Chairman of a municipal Board, validity of which was assailed by filing a writ petition before the learned Single Judge and the learned Single Judge therein held that suspension could not be automatic or necessary consequence of show cause notice. When enquiry against the petitioner was being held by senior Judicial Officer, no possibility of petitioner prejudicing enquiry could be inferred so as to justify suspension. It was further held therein that power of suspension of holders of elective office cannot be equated with Government servants governed by rules of Masters and Servant and it has to be used sparingly and with utmost care and caution so as to avoid political rivals to use this platform to serve their personal ends and settle their scores and the order of suspension was quashed therein since the charges were found to be flimsy in nature.
15. Examining the facts of the case discussed in the impugned judgment and order in the light of the ratio of the decisions referred to hereinbefore which has been relied upon by the learned Single Judge also, we fully endorse the view of the learned Single Judge that the order of suspension is a necessary consequence once the enquiry has commended against the elected representatives which is clearly laid down in Section 63(4) of the Act of 1959 but it is difficult to ignore or loss sight of the fact in view of the ratio of the decision delivered in the case of Jan Mohammad (supra), that the order of suspension has to be passed only after the preliminary enquiry report is placed before the State Government and the State Government thereafter passes a fresh order for initiation of enquiry. In the instant case the order of suspension was passed on 9.6.2004 after a notice was issued to the appellant on 16.2.2004 and in that notice itself it was indicated that if explanation is not offerred to the notice, action will be taken under Section 63 of the Act of 1959. Thereafter there is no preliminary enquiry report in existence and hence there could not have been any occassion to place the same before the State Government which had to consider whether the enquiry was fit to be initiated under Section 63 of the Act of 1959 or not. We have further noticed that the charge sheet admittedly was issued to the appellant on 2.7.2004 but the order of suspension was passed prior to that date on 9.6.2004 which was not based on any preliminary enquiry report. The notice which was sent on 16.2.2004 to the appellant by the Regional Deputy Director had itself indicated that if explanation is not offerred on the five charges, action will be taken under Section 63 of the Act of 1959 from which it could be clearly inferred that the stage of Section 63 had not yet arrived when the order of suspension was passed on 9.6.2004. In the cases relied upon by the learned Single Judge viz. Jan Mohammad and other cases it has clearly been held that once the enquiry report is submitted to the State Government and a decision is taken by the State Government to initiate the enquiry an order of suspension can be passed simultaneously, but when no enquiry report is in existence after 16.2.2004 the compliance of Section 63 do not appear t6 have been met with by the respondents. We have to bear in mind that while suspending an elected Member utmost care and caution has to be taken as required under the provisions of Section 63 of the Act 1959 and a cursory glance regarding compliance of the provision as to whether they have been resorted to or not or a common sense approach in the matter cannot be adhered to and therefore meticulous compliance of the provisions and the ingredients incorporated in the Act has to be resorted to. Bearing this in mind we have noticed that when the explanation on 16.2.2004 was sought by the appellant against the notice under the charges, no preliminary enquiry report was submitted by anyone in regard to the charges nor charge sheet was issued and yet an order of suspension was passed on 9.6.2004 when the charge sheet had not even been issued. The admitted position is that the charge sheet was issued on 2.7.2004 and the same was received by the appellant on 9.10.2004. Even if it were to be accepted that the issuance of charge sheet was in the offing, the requirement as envisaged regarding application of mind before charge sheet is issued cannot be ignored, therefore the initiation of enquiry in terms of Section 63 (4) of the Act of 1959 before such enquiry report do not appear to be existing in the instant matter and hence we find no substance in the argument of the learned counsel for the respondents that the enquiry against the appellant had already commenced on the date when the order of suspension had been passed. As already stated, and we reiterate, that although we agree with the learned Single Judge that the suspension is warranted and justified once an enquiry has commenced, the commencement of enquiry within the legal ambit in the instant matter cannot be held to have commenced on 9.6.2004 when the order of suspension was passed in absence of any preliminary enquiry report in existence against the appellant, much less its consideration by the State Government. Therefore the order of suspension in our view was not justified on 9.6.2004 although it could have been passed simultaneously when the charge sheet had been issued or it could be passed earlier if a preliminary enquiry report was in existence on which the State Government took a conscious decision reducing it into writing that the enquiry had to be initiated which could satisfy the ingredients of Section 63 of the Act that an order of suspension could be passed once the enquiry has commenced.
16. Apart from the legal lacuna in passing the order of suspension against the appellant, we have further noticed that although the learned Single Judge had directed that the enquiry should be completed against the appellant expeditiously, the respondent State Government has not completed the enquiry although approximately one year has already passed. It has been stated that the Department had failed to produce any evidence and sought adjournment even on 21.1.2005 although the counsel for the appellant had objected to the adjournment and the enquiry is still dragging on although the appellant's term as Chairman is a at the fag end of its tenure. In fact we feel the need to observe that even assuming that the order of suspension could be held to be justified, the delay in conducting and completing the enquiry inspite of the direction of the learned Single Judge to conduct it expediously, could be treated to be the sole reason for quashing the order of suspension as inspite of the liberty granted by the learned Single Judge on 23.11.2004 and also having been granted several opportunities by this Court to the respondents to complete the enquiry expeditiously against the appellant, there appears to be no intention to expedite and conclude the enquiry. The appellant's complete the enquiry expeditiously against the appellant, there appears to be no intention to expedite and conclude the enquiry. The appellant's tenure, as already stated is due to come to an end in August 2005 and therefore, we do not deem it appropriate to deny and deprive the appellant from functioning as Chairman to which he had been duly elected, for the rest of his tenure. We therefore, quash the order of suspension not merely for its legal flaw but also on account of the fact that the enquiry is neither making any headway nor it is likely to conclude soon, inspite of the direction and liberty granted by the learned Single Judge to the respondents to do so. However, we make it clear that the quashing of the order of suspension will have no affect upon the enquiry proceedings, howsoever flimsy the charges might be.
17. The appellant therefore shall be reinstated as Chairman of the Municipal Board forthwith. The appeal accordingly stands allowed and disposed of but without any order as to costs.