Rajasthan High Court - Jodhpur
Meena Vyas vs State & Anr on 24 October, 2008
Equivalent citations: AIR 2009 (NOC) 833 (RAJ.)
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.7999/2008.
(Meena Vyas Vs. State of Rajasthan & Another)
DATE OF ORDER : October 24th, 2008
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. M.R. Singhvi for the petitioner.
Mr. A.K. Rajvanshi, Addl. Advocate General.
Mr. Kuldeep Mathur for the applicant.
Reportable : BY THE COURT :
By way of filing this writ petition, the petitioner has challenged the impugned order of suspension dated 03.10.2008 and prayed that the order of suspension may be quashed and set aside and the petitioner may be restored to her position as if she was never placed under suspension and she may be relegated to the position, which was obtaining prior to passing of the impugned order and the entire proceedings conducted so far may be quashed and the Government may be restrained from 2 holding inquiry on the premise of inquiry report of the Deputy Director (Regional), Ajmer.
Brief facts of the case are that the petitioner was elected as Ward Member from Ward No.11 in the month of August 2005 in the Parbatsar Municipal Board. Thereafter, elected members of the Municipal Board elected the petitioner as Chairman unanimously. Since then she was continuing until passing of the impugned order of suspension. In the writ petition, it is pointed out by the petitioner that she is belonging to the Indian National Congress and the State Government is ruled by another political party Bhartiya Janata Party (BJP), therefore, the State Government is always having an evil eye over the members belonging to the Indian National Congress. In the writ petition, the petitioner has stated that whenever the ruling Government got the opportunity to uproot the elected person of the Indian National Congress, they have been uprooted and, for illustration, it is stated by the petitioner that in Nagaur district, there are 4 Municipal Boards viz., (i) Deedwana, (ii) Merta, (iii) Nagaur and (iv) Parbatsar.
In para 5 of the writ petition, it is specifically contended that so far as Merta Municipal Board is concerned, one Smt. Vimla Devi who was elected Chairman was placed under suspension against which she 3 preferred writ petition before this Court and her writ petition was allowed by this Court while setting aside the suspension order. The said Smt. Vimla Devi belongs to the Indian National Congress and she was uprooted in a systematic manner at the cost of law, democracy and public feelings. It is contended by the petitioner in the writ petition that she being elected Chairman of the Municipal Board was discharging her duties faithfully, religiously and was following the laws as prescribed in the Rajasthan Municipalities Act; but, the Government placed her under suspension vide the impugned order dated 03.10.2008. The said suspension order was passed on the basis of some preliminary inquiry which was got conducted through the Deputy Director (Regional), Ajmer in which the so called allegations were found to be proved and the petitioner was called upon to submit her explanation within 15 days and, for that purpose, a communication was sent to the petitioner dated 03.09.2008 which was received by her on 08.09.2008. The petitioner has placed the said communication on record marked Annex.-2.
As per the petitioner, the said notice was on the face of it illegal and not passed on any evidence. After receiving the said notice, the petitioner submitted her explanation vide her reply dated 12.09.2008 and the same 4 was dispatched to the Government through speed-post. As per information of the petitioner, the said reply was served upon the Government on 18.09.2008. It is further submitted by the petitioner that in the communication dated 03.09.2008 she was called upon to file her reply within 7 days. Since the notice was received by her on 08.09.2008, therefore, within the stipulated time, reply was filed by her. But, without considering the said reply and observing in the suspension order that till today no reply has been filed, the impugned order has been passed. Thus, on this count alone, the impugned order deserves to be quashed and set aside.
As per the petitioner, no inquiry was conducted nor she was apprised of any of the evidence against her. So also, none of the allegations levelled against her can be treated to be proved against the petitioner, therefore, the petitioner is not involved in any type of illegal act which is unbecoming of a Chairman nor there are any allegations against her by which it can be said that she has committed any misconduct which tantamount committing any wrong as an elected person.
The petitioner has submitted that in the communication dated 03.09.2008, four allegations were levelled against her but the petitioner has stated in the letter of explanation that she has nothing to do with those 5 allegations. The allegations levelled against the petitioner are following :
"1.यह ह क नगर प ल परबतसर द र व र न0 11 म गणशज मन र च! स ब#सत न शमश न त स म % सड लनम ण ब बत लनबव य ज र' ( थ । ज+ क न 11.04.07 + प लशत ह-ई तथ उक य ( अन-म लनत गत 9,90,000/- रपय श य गय । उक य हत- ठ र4 न लनबव य पश ( लनबव ओ म श य+गशच 7 वषणव रपनगढ न 2.75 पलतशत य:नतम र पर य प:ण रन ल य अपन लनबव पश (। श य+गश च + क न 05.06.07 + ए मह म य प:ण रन ल य पत 671 क न 05.06.07 द र य श ज र' क य ।क त-
ठ र न बरस त म!सम ( वजह स य ए मह म प:ण नह' ह+न स 2 म ह (15-07-07 स 15-09-07) ( अवल= बढ न ल य लनव न क य गय क त- आप द र पत 1125-27 क न 18-07-07 द र य श लनरसत र =र+हर र लश जबत र ' गय । उस पशच त कदत य प थलम त व ठ र श एच.आर. Bक%र न उक लनम ण 2.75 पलतशत म समप क त रन हत- आव न पसत-त क य क त-
उस भ आप द र य श नह' क य । नगर प ल दर
उस य क ो+ रव न ल ए ब- र क न 14-08-07 +
लनबव य ज र' ( गय तथ श पव ण सB शन मपन
परबतसर + 23.71 पलतशत स अल= र पर य श ज र'
क य तथ 2 म ह ( समय अवल= '।
जब प:व सव श य+गश च 7 वषणव व श
एच.आर. Bक%र 2.75 पलतशत र म य रन + तय र
थ, त+ आप द र उस य शप ज र' नह' र ब
- र
लनबव य आमबतत र अ य ठ र पव ण सBकशन
+ 23.71 पलतशत स अल= र तथ समय वल= 2 मह
रख र य श ज र' र प ल + ज नब:झ र गभग
21 पलतशत र लश न- स न पह-Iच य ह, नजस ल य आप
आर+बपत ह।
2. यह ह क व र न0 2 म न ' म क ब ज
प-ल य स च ज म न त न + +न4 स ईर य
रव न हत- बबन क स सकम त न ( अल= र' स
एस%'म% तय र रव य क न 23-05-08 + लनबव य ज र'
( गय नजस ( अन-म लनत ग त 4.00 ख श य गय
ह। ज -लशरय: अभ व म लनबव य ज र' रन बवल=
सगत नह' ह। एस%'म% 30-05-08 + तय र रव य गय। ज -
लशरय: तय र नह' थ त+ लनबव य ज र' रन लनयमसगत
नह' ह। अत: लनबव य ज र' रन म अलनयलमतत ( गई
ह।
6
पव ण सBकशन मपन परबतसर ( र 7.50
पलतशत स ऊपर थ तब उस ( र उस समय र एप:व नह'
( तथ प ल द र अपन क%पपण 16.06.08 म यह
उल ख क य ह क ब+र ( बठ म र सव N लत (
ज वग । ब+र ( बठ 03.07.08 + समप न ह-ई। क त- ब+र
( बठ 03.07.08 + समप न ह+न स प:व ह' य आरमभ
रव क य । र4 अन-म+ न बगर ह' बबन क स
य श ज र' क य उक य रव य गय तथ आप द र
उस ठ र + भ-गत न रव न वब र ज रह ह।
इसस सपष ह क आप द र लम भगत र ठ र +
भ पह-Iच न पय स क य ज रह ह। नजस ल ए आप
आर+बपत ह।
3. यह ह क व र न0 15 म म-खय र सत म रव ड
लमशन + ज त ह। उक र सत 40 कR% च!र थ नजस पर
श छTतरम ज+ नगर प ल म सR ई मच र' ह द र
सड पर अलतकमण र र सत 12-13 कR% ह' रख ह। ज+
जनकहत म सर सर ग त ह। छTतरम म न बच म
प:व बन ह-आ ह। नजस पर नगर प ल स ज न र'
न पर उ ह ज त नह' ह क छTतरम प स पट% ह
भ अथव नह'। इसस सपष ह क आप ( लम भगत स
आम र सत पर अलतकमण र रख ह। नजस ल य आप
आर+बपत ह।
4. यह ह क चन र म + उस ( भ:लम पट% ब+र
( बठ क न 05.02.07 म ज र' क य । नगर प ल
र र एव यव ह' बववरण स स R सपष ह क क न
05.02.07 + अल=श ष अल= र' अव श पर थ। ब+र बठ
लनष ल बप श जयच स ल खव र तत न
तहस र श रघ-न थलसह हसत कर क न 06.02.07 +
रव य ह नजस पर क न 06.02.07 अक त ह। क न
05.02.07 + ब+र ( बठ अल=श ष अल= र'
अन-पनसथलत म ह+न स उक बठ लनयम सगत नह' ह।"
With regard to charge No.1, it is submitted by the petitioner that allegation No.1 pertains to construction of road in Ward No.11 and, for that purpose, notice inviting tender was published and tenders were invited vide publication dated 09.04.2007. As per the terms and conditions of the tender, the work was to be completed within a period of one month. Hence, after receipt of the 7 tenders, a comparative statement was prepared on 15.05.2007 and one Shri Yogesh Chandra was found to be the lowest bidder and he was informed that his tender was accepted and, therefore, he was directed to commence the work and complete the same within the stipulated time. He was conveyed the acceptance vide letter dated 05.06.2007; but, unfortunately, Yogesh Chandra failed to commence and complete the construction work within the stipulated time, therefore, in the circumstance, the order was cancelled by the Executive Officer vide letter dated 18/19-07-2007 and, simultaneously, the second lowest bidder was called upon to undertake the work and, for the same, communication was sent on 18.07.2007. He was called upon to give his consent by 23.07.2007. But, in the meantime, all the bidders including the second lowest bidder withdrew their security money. Accordingly, fresh tenders were invited vide notice dated 14.08.2007. The aforesaid proceedings was placed before the General House of the Municipal Board in its meeting dated 18.07.2007 wherein the House approved the act of inviting fresh tenders. Therefore, after approval when fresh tenders were received the Municipal Board proceeded in accordance with law and prepared comparative table of the bidders, in which, lowest bid was made by M/s Praveen Construction Company whose rate was 32% above. 8 Thereafter, the lowest tenderer was further called upon for negotiation and finally on account of persuasion of the authorities of the Municipal Board, the lowest tenderer was persuaded to reduce its rates and it agreed to reduce the rate to the tune of 23.71% above and, thereafter, necessary technical sanction was granted and order was placed with M/s Praveen Construction Company vide communication dated 24.10.2007.
As per the contention of the petitioner there is no act, action, omission and commission on the part of the petitioner with regard to construction of CC road in Ward No.11. Therefore, it is absolutely wrong to charge the petitioner or take any action against her who is elected Chairman of the Municipal Board nor it can be said that there was any act which was performed by her resulting in any losses to the Municipal Board, Parbatsar. According to the petitioner orders were passed strictly in accordance with law and there is no breach of any provision of law with regard to inviting tenders. It is also contended by the petitioner that the Chairman has nothing to do with the proceedings and all the proceedings are required to be convened by the Executive Officer. In this case, the fresh tenders were invited after due approval by the Board in its meeting dated 18.08.2007, therefore, the first charge 9 levelled against the petitioner is totally baseless and the petitioner has nothing to do with the allegation.
As per the petitioner, charge No.2 pertains to undertaking work on both the sides of nalas from Balaji Puliya to the house of Chandji. The petitioner submits that she is least involved in that matter inasmuch as after proper survey, the estimate was prepared by the concerned Junior Engineer and, thereafter, the same was processed by the office and it was presented through the Executive Officer to the Chairman. Thereupon, necessary sanction was accorded to invite tenders on 20.05.2008. Accordingly, NIT was issued on 23.05.2008 and 30.05.2008 was fixed as last date for receipt of the tenders. After due for formalities, three constructors submitted their tenders viz., SK Construction Company, Praveen Construction Company and M/s Radhavallabh Malakr. Upon preparing the comparative table, the rate of M/s Praveen Construction Company was found to be lowest as it was 7.98% above. The tender was referred to the Assistant Engineer concerned and the concerned technical person approved the same and, accordingly, the lowest bidder was informed. The petitioner has placed on record certified copy of the note-sheet dated 20.05.2008 onwards. It is, therefore, contended by the petitioner that it is clear that on the last date of submission of tender the 10 G-Schedule was ready, therefore, the allegation levelled against her is totally wrong that in the G-Schedule there is only signature of the Junior Engineer whereas it bears signature of the Executive Officer and approved by the concerned technical authority.
For the above work, the lowest tenderer was selected and order was placed and before placing the order G-Schedule was duly ready and rates were finally negotiated. However, no formal order was placed to the tenderer but the contractor was made to undertake the work at the instance of the concerned Ward Member. So far as petitioner is concerned, she is not at all involved in the matter because as per record the communication dated 11.07.2008 was issued by the Executive Engineer to the Junior Engineer who was posted at the Municipal Board, Parbatsar. It is revealed from the communication dated 11.07.2008 that it is the Ward Member who prevailed upon the contractor to commence the work without there being any formal order by the Municipal Board. In this way, according to the petitioner, charge No.2 is totally baseless and the petitioner is not involved in any manner in this charge also.
So far as charge No.3 is concerned, it is absolutely false charge which has got no legs to stand. So far as Chittarmal is concerned, no encroachment was made by 11 him after the petitioner was elected as Chairman of the Municipal Board. However, if anyone has made any encroachment, then, the petitioner cannot be held responsible for the same therefore the allegation of connivance is on the face of it misconceived. The petitioner has contended in the writ petition that so far as Chittarmal is concerned he has not made any encroachment after joining of the petitioner as Chairman, therefore, she is in no way involved in the matter. Chittarmal applied for regularization way back in the year 1991-92 and that was turned down.
Regarding Charge No.4, the petitioner has contended that the allegation regarding issuance of patta in favour of Chaina Ram Choudhary is nothing but tissues of lie. She has contended that she is in no way involved in the matter and this issue has been examined time and again and all the times nothing was found wrong in respect of Chaina Ram nor the petitioner was found guilty. The petitioner has further narrated that this issue has been raised time and again on account of personal rivalry of Ramesh Bagda viz-a-viz Chaina Ram Choudhary. Two nephews of Ramesh Bagda are being prosecuted at the instance of Chaina Ram Choudhary and nephews of Ramesh Bagda along with other accused have been convicted by the Court of Addl. District & Sessions Judge (Fast Track), Parbatsar 12 vide judgment dated 15.09.2008. The petitioner has committed no wrong and the allegation with regard to issuance of patta in favour of Chaina Ram is totally baseless. An inquiry was conducted by the S.D.O. Parbatsar and the same was apprised to the Collector through letter dated 14.08.2008 and the S.D.O. has categorically observed that the Municipal Board has rightly issued patta after getting the requisite fees and has rightly issued the permission to raise construction, therefore, transfer is not illegal and construction is being carried out as per approved plan. The petitioner has placed on record the minutes of the meeting dated 12.12.2006 wherein at item No.5 the case of Chaina Ram Choudhary was considered and in the aforesaid meeting it was resolved that before issuing patta report may be obtained from the concerned committee and the said committee also submitted its report. Thereafter, the matter was again placed before the Board on 05.02.2007. Vide item No.3 the case of Chaina Ram was considered and the act of granting patta was affirmed by the House unanimously. Meaning thereby, the allegation is totally baseless and there is no foundation upon which the charge is based.
The allegation against the petitioner that there was no Executive Officer and proceedings were not drawn properly whereas the proceedings have been drawn in 13 accordance with law by the Executive Officer who was very much present there. In this respect, the petitioner has submitted that since regular Executive Officer was not there, therefore, Collector passed an order dated 22.11.2006 directing the Tehsildar, Parbatsar to work as Executive Officer, Municipal Board, Parbatsar. Meaning thereby, the Tehsildar was given the charge of the Executive Officer on 27.11.2007 which is evident vide Annex.-21 placed on record of the writ petition. Thus, the minutes of the meeting dated 05.02.2007 were drawn in accordance with law and Executive Officer was present in the meeting and, therefore, he has signed the minutes as is evident from the minutes of the meeting dated 05.02.2007. Therefore, it is clear that on totally false premises, the petitioner is sought to be implicated as if there was no Executive Officer and she got the signature of the Tehsildar whereas he was authorized to work as Executive Officer by the order of the Collector and he has signed the same as Executive Officer.
It is contended by the petitioner that in the aforesaid circumstances it is obvious that all the charges are baseless but the petitioner was asked to explain the allegation and in pursuance of the communication dated 03.09.2008 though she has sent the reply and the said reply was received by the respondent department on 14 19.09.2008 but ignoring the said reply, the following assertion has been made on 03.10.2008 that, "पर त-
सपष रण जव ब 15 क वस स अल= अवल= वयत त ह+न पर भ अब त प प नह' ह:आ ह।" whereas in the reply at para 5, it is
accepted by the respondents that the reply of the petitioner was received on 19.09.2008, therefore, the impugned order dated 03.10.2008 is patently illegal order and has been passed in contravention of the principles of natural justice and, so also, on the basis of baseless allegations and without supplying any copy of the so called preliminary inquiry conducted by the Deputy Director (Regional) Ajmer.
Learned counsel for the petitioner vehemently contended that no inquiry has ever been conducted in this case, therefore, the action of the respondents is in breach of the principles of natural justice. Therefore, the suspension order deserves to be quashed. Learned counsel for the petitioner while inviting attention of the Court to the legal provisions in this regard submitted that although there is power left to the State Government to place any elected Chairman under suspension by taking recourse to Section 63(4) of the Act; but, Section 63(4) can be invoked in exceptional circumstances. Further, while inviting my attention towards Section 63 of the Act, it is submitted that there is provision for removal of Member 15 and the petitioner's case is not covered under sub-section (1) (a), (b) and (c) of Section 63 of the Act. But, under clause (d) of sub-section 1 of Section 63 it is provided that an elected member can be removed if he has -
(i)been guilty of misconduct in the discharge of his duties, or
(ii)been guilty of any disgraceful conduct, or
(iii)become incapable of performing his duties as a member, or
(iv)otherwise abused in any manner his position as such member.
The above provision has been prescribed for removal of Member and Chairman of the Board and during course of inquiry the power can be exercised for placing the person charged under suspension under Section 63(4) which specifically provides that the State Government may place under suspension a member against whom proceedings have been commenced under this section till 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. Meaning thereby, there must be commencement of proceedings against the petitioner. But, in this case, no specific charge-sheet has been placed on record against the petitioner.
16
Learned counsel for the petitioner while inviting my attention towards Section 63(1A) submitted that the power conferred by sub-section (1) may be exercised by the State Government on its own motion or upon receipt of a report from the Board in that behalf or upon the facts otherwise coming to the knowledge of the State Government. It is contended by learned counsel for the petitioner that in this case as per the language of Annex.- 1, impugned order it reveals that the action is not taken suo motu nor any report was sent by the Board but the order has been passed on the basis of an inquiry allegedly conducted upon the complaint, meaning thereby, the action has been taken against the petitioner on the basis of a complaint which is not permissible. More so, who has made the complaint and what type of allegations are levelled against the petitioner is not disclosed nor copy of inquiry report so conducted by the Deputy Director (Regional), Ajmer was supplied to the petitioner though demanded by her.
Learned counsel for the petitioner while inviting my attention towards Section 68 of the Act of 1959 submitted that in Section 68 the powers of the Executive Officer including custody of the records are prescribed. In sub- section (1) of Section 68, it is specifically provided that the Executive Officer shall be responsible for the custody of all 17 the records of the Board including all papers and documents connected with the proceedings of the board and all the committees and shall arrange for performance of such duties relating to the proceedings of such bodies as they may respectively impose. Further, there is duty cast upon the Executive Officer being the representative of the State to watch public interest where any proceeding or order of a Board or of any of its committees or of the Chairman or Vice Chairman or of any member is inconsistent with the provisions of this Act and the rules made thereunder or is deteriment to the interest of the Board, the Executive Officer shall put up a note of dissent and report the matter to the Collector of the district and the State Government. Learned counsel for the petitioner vehemently contended that in this case the Executive Officer has not even put any dissent in the proceedings for which allegations are levelled against the petitioner. Therefore, the whole purpose of placing the petitioner under suspension is illegal because the petitioner has nothing to do with the so called allegations levelled against the petitioner. The suspension order can be passed in the rarest circumstances and cannot be passed in a casual manner. It is argued by learned counsel for the petitioner that here, in this case, according to the facts narrated above, the petitioner cannot be held responsible for any of 18 the misconduct alleged but, not only she has been placed under suspension but judicial inquiry has also been ordered which is totally unwarranted.
Learned counsel for the petitioner while inviting my attention towards reply filed by the respondents submitted that the respondents are not only making allegation against the petitioner but have dared to submit before this Court that the petitioner has been placed under suspension because during the period of judicial inquiry it is not proper to allow the petitioner to continue as Chairman of the Municipal Board because she can influence the judicial inquiry. As per learned counsel for the petitioner it is very strange that how an elected member can influence the senior judicial officer who will be conducting the judicial inquiry as per rules. Therefore, the reason shown by the respondents for placing the petitioner under suspension is not tenable. More so, the action of the respondents is arbitrary and against the public interest causing huge loss to the petitioner.
Learned counsel for the petitioner vehemently argued that in very casual manner and to malign the petitioner's prestige this action has been taken against the petitioner upon baseless charges though the same are not related to the petitioner, therefore, there is no ground in existence for placing the petitioner under suspension. 19 Learned counsel for the petitioner vehemently argued that this suspension is outcome of the political rivalry because the petitioner belongs to Indian National Congress and the State Government is ruled by another political party BJP and the ruling party is always having evil eye over the members of the opposition party. Therefore, it has resulted in suspension of the petitioner on false charges. It is contended that the charges are yet to be proved against the petitioner.
It is further submitted by the learned counsel for the petitioner that why type of complaint has been filed and who has filed the complaint is not disclosed by the respondents; but, during the course of proceedings, one application has been filed by applicant Ramesh Bagara, President, Bharatiya Janata Party Shahar Mandal, Parbatsar in which he has levelled the charges enumerated in the notice seeking explanation from the petitioner; meaning thereby, the argument of the petitioner that the said inquiry has been commenced on the basis of political rivalry is found to be correct. Although, in the reply filed by the State, it is refuted in para 3 that any evild eye is there over the members of the Municipal Board, Parbatsar. It is stated that there are only 2 BJP members in the Municipal Board and the post of Chairman is reserved for General Woman candidate and there is no woman member 20 of the BJP in the Municipal Board and, therefore, now, in place of the petitioner who is under suspension, Smt. Anita Rathi, an independent member has been nominated vide order dated 13.10.2008.
In this view of the matter, it is argued by learned counsel for the petitioner that the inquiry has been conducted on the basis of the complaint and during the course of arguments, the learned Addl. Advocate General submitted that it does not appear probable that the inquiry has been conducted on the basis of the complaint filed by the applicant. Learned counsel for the petitioner opposed the impleadment of applicant Ramesh Bagara as party on the ground that as per judgment of the Division Bench of this Court the applicant cannot be impleaded as party even if he has made the complaint to that effect. The said judgment cited by learned counsel for the petitioner while opposing impleadment of the applicant is reported in 2005 (1) WLC 243, Surendra Kumar Garg & Others Vs. State of Rajasthan, in which, it has been held that role of the complainant comes to an end as and when he made the complaint. He is no more a person to interfere in the subject matter of the inquiry between the State Government and the incumbent against whom the complaint has been made and no one has a right to make interference being complainant, therefore, the applicant 21 cannot be impleaded as party and his application deserves to be rejected.
Learned counsel for the petitioner has invited my attention towards certain judgments in which the Hon'ble Supreme Court and this Court have held that the suspension order should not be passed in casual manner. In Tarlochan Dev Sharma Vs. State of Punjab & Others, (2001) 6 SCC 260, it has been held that the expression "abuse of powers" in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. Learned counsel for the petitioner invited my attention towards some important judgments of this Court based on number of judgments of the Hon'ble Supreme Court. Referring to the judgment reported in 2008 (1) WLC (Raj.) 294, in the case of Pradeep Hinger Vs. State of Rajasthan & Others, it is submitted that the learned Single Judge of this Court held after interpreting the relevant law that suspension of the Chairman of the Municipal Council is not warranted upon casual allegation, therefore, elected Chairman is entitled to exercise all powers of his office until removed from office.
In the case of Geeta Devi Narooka Vs. State of Rajasthan & Others, reported in 2008 (2) WLC (Raj.)261, it is held by this Court that suspension is not natural 22 consequence of inquiry, since misconduct must be such as to make continuation of the delinquent in office reasonably impracticable. The charges only of allotment of land contrary to law and policy and not reflecting gross misconduct since Government never took cognizance of any of eight charges under Section 100 and no allegation of corruption or embezzlement, in that view of the matter, order of suspension was set aside.
In the case of Bajrang Lal Vs. State of Rajasthan, 1981RLW 355, although the case was related to suspension of Sarpanch under particular circumstances, but adjudication reflects that action of suspension by the State Government should be after careful scrutiny of preliminary report submitted before it before passing the suspension order. The suspension order should not be passed in casual manner. It is contended by learned counsel for the petitioner that here, in this case, the purpose of placing the petitioner under suspension is totally baseless and has no foundation to stand because the allegations levelled against the petitioner are not at all of serious nature. In this view of the matter, it is submitted that the supension order is totally colourable exercise of power and has been passed only to malign the petitioner and oust her from office.
23
Per contra, the learned Addl. Advocate General, Mr. A.K. Rajvanshi while inviting attention towards the reply submitted that no reply to the notice given to the petitioner on 03.09.2008 was filed within 7 days after receipt of the notice. The notice was served upon the petitioner on 08.09.2008 and 7 days' time comes to an end on 15.09.2008; but, no explanation was received upto 17.09.2008, therefore, the decision was taken by the Department of Local Bodies, Government of Rajasthan, Jaipur on 17.09.2008 for conducting judicial inquiry in this matter and, consequently, order dated 03.10.2008 was passed. It is further submitted that the said decision was taken looking to the seriousness of the charges levelled against the petitioner and the petitioner was placed under suspension during the judicial inquiry. It is also found appropriate by the respondents not to allow the petitioner to remain in office during the process of judicial inquiry. It is argued by the learned Addl. Advocate General that the allegation levelled against the respondents with regard to political rivalry in passing the order in question is totally baseless because she has not made any person party by name in his personal capacity.
Learned counsel for the State further argued that the allegation of political rivalry is baseless on the ground that the State Government is of course being ruled by the BJP 24 but there are only 2 BJP members in the Municipal Board Parbatsar and the post of Chairman is reserved for General Woman candidate and no woman candidate of BJP won election as Member of the Municipal Board, Parbatsar which is also evident from the fact that after suspension of the petitioner one independent candidate Smt. Anita Rathi has been nominated as Chairman of the Board. Moreover, action of the respondents is based on seriousness of the charges and not on the basis of any political rivalry. Learned counsel for the respondent State further argued that the so called reply was received on 18.09.2008 but before that the decision was taken for holding judicial inquiry against the petitioner and it was found necessary to place the petitioner under suspension pending the judicial inquiry which action cannot be termed as arbitrary or illegal in any manner.
It is submitted by the learned Addl. Advocate General that in the preliminary inquiry all the charges were prima facie found to be correct by the Deputy Director, Local Bodies, Ajmer and looking to the seriousness of the charges and financial losses faced by the Municipal Board, the decision has been taken and there is no illegality in holding the judicial inquiry against elected Chairman because the law permits under Section 63 (4) of the Act of 1959 to hold such judicial inquiry. It is also argued that 25 the judicial inquiry is proposed and decision of placing the petitioner under suspension was made under the apprehension that by holding the post the petitioner can influence the judicial inquiry proceedings and may tamper with the evidence and can make manipulations in the inquiry and so also in the official record. Therefore, upon the fact that the petitioner has acted arbitrarily and against the public interest and caused huge losses to the public exchequer, therefore, such action has been taken in which there is no wrong and the petitioner has rightly been placed under suspension. According to Mr. Rajvanshi, no interference is required in the matter. Learned counsel for the respondents has tried to make submission that charges are so serious for which suspension was necessitated.
In the rejoinder, it is submitted by learned counsel for the petitioner that no preliminary inquiry was conducted in accordance with law nor a copy of the inquiry report was supplied to the petitioner though demanded by her which is evident from the reply. It is also pointed that the person who has filed affidavit is Ratan Lal Java and the said person is holding the office of Executive Officer of the Municipal Board and he was also given the same notice for explanation as was given to the petitioner. The petitioner has placed on record Annex.-23, reply of Ratan Lal Java in 26 pursuance to the notice given to him for the same charges as are levelled against the petitioner. Meaning thereby, the person who has filed affidavit in support of the reply of the respondents himself was under suspicion and, therefore, he was given notice to explain the same.
Although in the reply Annex.-23 filed by the officer- in-charge as one of the co-alleged person, he has stated that he was posted as Executive Officer with effect from 06.08.2007 and all the allegations are not related to the period of his tenure but this fact clearly speaks that without application of mind the said preliminary inquiry was conducted and even the person who has conducted the inquiry was not knowing that Ratan Lal Java the present Executive Officer was not posted during the period for which alleged misconduct was inquired into. It is also argued by learned counsel for the petitioner that although identical charges were levelled against the officer in-charge vide communication dated 03.09.2008 and his letter number is 1996 and the letter seeking explanation from the petitioner bears number 1995, both dated 03.09.2008; meaning thereby, the officer in-charge of this case was also given notice to explain the allegations on the basis of the so called preliminary inquiry which is not even supplied to the petitioner though demanded by her in her reply and so also not produced before this Court. In this view of 27 the matter, the whole reply is baseless and has no foundation to stand.
It is stated by learned counsel for the petitioner that the applicant Ramesh Bagra is not entitled to be impleaded as party even if it is presumed that he has made the complaint against the petitioner in view of the Division Bench judgment of this Court, reported in 2005 (1) WLC 243, in which the Division Bench of this Court has held that in the matter of inquiry and suspension against elected person the business of the complainant comes to an end after filing the complaint. Learned counsel for the petitioner contended that it is not open to any person to interfere in the jurisdiction of the Government which is inherent, therefore, although the applicant being President of the BJP Shahar Mandal, Parbatsar has filed copy of the complaint along with the application, but, in the reply, it is refuted by the respondents that any action has been taken due to political rivalry. In this view of the matter as per the learned counsel for the petitioner the applicant Ramesh Bagra is not entitled to be impleaded as party in the proceedings and the reply filed by the respondents deserves to be rejected and the petitioner is entitled to the relief sought for for quashing the impugned suspension order.
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I have considered the rival submissions advanced by both the parties and also heard the applicant who has filed application asserting that he has made the complaint, therefore, he is necessary party.
In my opinion, the complainant applicant Ramesh Bagra is not necessary party in this case because as per reply filed by the respondents the so called suspension order was passed upon the preliminary inquiry conducted upon complaint by the Deputy Director (Regional), Ajmer but name of complainant is not mentioned. Further, in view of the Division Bench decision in the case of Surendra Kumar Garg Vs. State of Rajasthan, reported in 2005 (1) WLC 243, it has been held that role of the complainant comes to an end as and when he made complaint. He has no right to interfere in the subject matter of the inquiry between the State Government and elected person against whom complaint has been filed, therefore, the applicant is not necessary party even if it is presumed that he has made the complaint. He has no jurisdiction to interfere in the government decision for taking any action, therefore, the application filed by the applicant Ramesh Bagra for impleadment is rejected.
In this case, upon perusal of Section 63 of the Act, it is obvious that there is provision for removal of the members. A member of the Board can be removed on 29 four grounds enumerated in Section 63(1) (a), (b), (c) and
(d). The petitioner's case does not fall under Section 63 (1) (a), (b) and (c) because sub-section (1)(a) is related to absenting from meeting which is not the case here. Similarly, in clause (b) if he has failed to comply with the provisions of Section 61and in clause (c) if any member has incurred disqualification mentioned in Section 18 or Section 26 or has ceased to fulfill the requirements of Section 24. Therefore, as per the allegations, a decision has been taken against the petitioner for holding judicial inquiry and to place the petitioner under suspension on the ground that in the preliminary inquiry there is finding of misconduct in discharging her duties as Chairman of the Board but no preliminary inquiry has been placed on record nor a copy of the report of preliminary inquiry has been supplied to the petitioner though it was demanded by her. Therefore, in the absence of any evidence of preliminary inquiry, there is no force in the argument of the learned Addl. Advocate General, appearing for the State, that the State Government has taken the decision for judicial inquiry as well as placing the petitioner under suspension on the basis of preliminary inquiry and the seriousness of the charges levelled against her.
The facts of this case further reveal that on the basis of a complaint the proceedings against the petitioner has 30 been undertaken but it is not disclosed by the respondents that what type of complaint was received by the Government. It is true that under Section 63(1A) and (4) of the Act of 1959 there is power conferred upon the Government for taking action but the competent authority before passing order of suspension was required to apply its mind upon the so called complaint. Meaning thereby, there is no provision for entertaining any complaint under Section 63 (1A) of the Act but the respondents can say that source of knowledge is complaint, therefore, before taking any action if any preliminary inquiry is conducted, then, copy of that was to be given to the petitioner. In this view of the matter, the whole action has been taken without application of mind.
In this case, very glaring example of non-application of mind emerges from the fact that a detailed reply has been filed by the State Government supported by the affidavit sworn by the present Executive Officer of the Municipal Board, Parbatsar and the said Executive Officer has also been served with notice dated 03.09.2008 in which same charges were levelled and he was directed to file explanation and in pursuance to the notice reply has been filed by the officer in-charge which is evident from Annex.-23 filed by the petitioner along with additional affidavit; meaning thereby, it is revealed from the facts 31 that so called judicial inquiry has been ordered without application of mind and without placing any documentary evidence with regard to the preliminary inquiry before this Court.
It is true that once the judicial inquiry has been ordered, then, the matter is to be adjudicated upon by the Judicial Officer and he is to conduct an inquiry for the alleged misconduct against the petitioner. As per provisions of law the State Government can take action to examine the correctness of the allegations levelled against the elected member or Chairman of the Board. Therefore, obviously before completion of the judicial inquiry it is not proper for this Court to examine the correctness of the allegations because the State Government has taken decision to hold the judicial inquiry which is within the jurisdiction of the State Government, therefore, although the petitioner has prima facie tried to establish before this Court that the allegations levelled against her are baseless and have no substance and, so also, not related to the functioning of the Chairman; but, the matter is required to be examined in the judicial inquiry and such power of the State Government cannot be questioned even though the petitioner's contentions with regard to the allegations in this case have force. In this view of the matter, it is held 32 that State Government can proceed to hold inquiry in the event of having any knowledge of misconduct.
In this petition, the petitioner has challenged the order of suspension dated 03.10.2008, in my opinion, the action of the State Government while placing elected Chairman under suspension is required to be assessed whether the suspension order is justified or not. For the said purpose, number of grounds have been raised in this case that the suspension was not necessitated in the facts and circumstances of the case because as per the reply suspension order has been passed solely on the ground that if the petitioner will remain as Chairman she can influence the inquiry and will tamper with the documents. In my opinion, the apprehension of the State Government is totally unfounded. No one can interfere in the judicial inquiry which is to be conducted by an Officer in the rank of Higher Judicial Service. Therefore, the reason for placing the petitioner under suspension as stated by the respondents that she can influence the judicial inquiry is totally baseless. It is also required to be observed that the State Government should not make such allegation that judicial inquiry can be influenced. The Division Bench of this Court in the case of Jan Mohammed Vs. State of Rajasthan, reported in 1992 (2) WLC (Raj.) 463, held that suspension of Chairman/Member of the Municipal Board, 33 pending inquiry, being an interim measure does not result in civil or evil consequences and it is not penal in character. The Division Bench in the said case has held as under :
"However, we will like to add a word of caution that the holder of these elective posts cannot be equated with the government servants and, therefore, before holder of an elected post is suspended, the Government must have sufficient reason to do so. Care should be taken that such suspension should not be arbitrary and the suspension of such elected representative should not be brought about for political motives or considerations."
In another case, cited by learned counsel for the petitioner, Nand Lal Vs. State of Rajasthan, 1996 (2) WLC (Raj.) 497, it has been held that the whole idea of suspension is that the suspended person does not cause any embarrassment in the inquiry proceedings and his presence in the office should not prejudice the inquiry under sub-section (2) or sub-section (3). This Court, in the said judgment, therefore emphasized that the idea of suspension is that the suspended person does not cause any embarrassment in the inquiry proceedings and his presence in the office should not prejudice the inquiry.
In this view of the matter, although suspension is not a punishment but suspension order should not be passed in routine manner in respect of an elected member. Suspension is not natural consequence of initiation of an 34 inquiry, therefore, at the time of passing such order sound and cogent reasons must exist for the suspension of the elected representative. In my opinion, in this case there is no charge of embezzlement, there is no direct charge against the petitioner of misconduct. The allegation levelled in charge No.1 has no substance because there was unanimous approval of the House of the Board for grant of work contract and other charges are not directly related to the petitioner. Hence, no misconduct is apparently found to be established directly against the petitioner for which suspension of the petitioner was required, therefore, the suspension order passed by the respondents can be termed as arbitrary and illegal action on the part of the respondents. The power cannot be exercised in respect of an elected member while treating him as civil servant. In the case of Pradeep Hinger Vs. State of Rajasthan, 2008 (1) WLC (Raj.), 249, the co- ordinate Bench of this Court while considering the various judgment of the apex Court and this High Court, held that before passing suspension order the competent authority is required to draw an inference from the facts whether such suspension is necessary. The suspension order cannot be passed only on the ground that the decision has been take for conducting judicial inquiry; but, the suspension order should be passed while taking into consideration the 35 seriousness of the charges and, if the competent authority feels that the petitioner will abuse his power while performing duties as Chairman or Member of the Board, such suspension of the incumbent may be necessitated.
In the writ petition, the petitioner has narrated so many grounds with regard to her innocence and substantiated by the arguments that she was innocent with regard to the allegations levelled against her, so also successfully brought to the notice of this Court that the allegations are not directly related to her. The first charge is regarding granting sanction of work contract to Yogesh Chandra on 05.06.2007. The petitioner has brought to the notice of this Court the resolution of the Board dated 18.08.2007 in which the said work which was given to Yogesh Chandra was approved by the House unanimously. With regard to charge No.3 the petitioner has successfully proved that encroachment was made by Chhittarmal, an employee of the Municipal Board prior to her election. So also, about the actions which are said to be voiced against her were not done by her in the capacity of Chairman. The acts have been done after approval of the Board House. The petitioner has not acted contrary to the provisions and spirit of the Act of 1959 which may warrant any action for placing her under suspension. Similarly, the reply of the petitioner was not considered though it was 36 received on 19.09.2008 and the suspension order was passed on 03.10.2008 in which it is observed that till today the reply has not been received. In this view of the matter, the suspension order has been passed without taking into account the reply filed by the petitioner which was admittedly received before passing of the suspension order. Moreover, neither the copy of the preliminary inquiry report was supplied to the petitioner though demanded by her nor, in fact, the report of the preliminary inquiry has been produced before this Court.
In this view of the matter, in my opinion, the suspension order passed by the respondents to dislodge the petitioner from office is patently arbitrary and illegal and passed without application of mind and without supplying copy of the report of the preliminary inquiry.
In this case, a very important ground has been raised by the petitioner which requires consideration. Admittedly, in this case, reply has been filed by the State supported by the affidavit of Ratan Lal Java, present Executive Officer of the Municipal Board, Parbatsar. It is very strange that the same person was also given identical notice with same allegations which is evident from his reply Annex.-23 placed on record by the petitioner by way of filing additional affidavit. In regard to the subject- matter of the said reply filed by Ratan Lal Java, the 37 present Executive Officer, it is stated that he has submitted explanation that he has wrongly been given the said notice because he was given the posting as Executive Officer, Municipal Board, Parbatsar on 07.08.2007 and all the allegations relate to the period prior to his posting; meaning thereby, the Officer in-charge of this case who has been appointed by the State Government was also under suspicion before the authorities for the same charge upon which judicial inquiry has been ordered. But, after receiving his explanation, he has been appointed as Officer in-charge in this case. Obviously, the Secretary, Local Bodies who has passed the suspension order which is under challenge in this writ petition has not even taken care to file reply through any authority of the State and has appointed the present Executive Officer of Municipal Board, Parbatsar as Officer in-charge to whom identical notice for explaining allegations has been given to file reply before this Court on behalf of the State Government; meaning thereby, the attitude of the respondent State towards the Court is also very casual which is further substantiated by the fact that in the reply the reason for placing the petitioner under suspension has been shown that she can influence the judicial inquiry which is to be conducted by a higher Judicial Officer of the Judiciary. In this view of the matter, the suspension of the petitioner 38 from the post of elected Chairman is outcome of arbitrary exercise of power by the State and without even perusing the entire facts of the case, therefore, the State Government has acted unconstitutionally while passing the order of suspension of the petitioner.
Therefore, the order of petitioner's suspension from the post of elected Chairman has been passed in a very casual manner and without application of mind and, further, without there being any substantial grounds which is not sustainable in the eye of law. More so, it is against the spirit of democracy. The petitioner while performing the duties of Chairman cannot influence the judicial inquiry nor the State should say in such casual manner that judicial inquiry which is to be conducted by a Higher Judicial Service officer will be influenced by the petitioner is she will remain Chairman of the Board during the inquiry. The respondents cannot treat elected Chairman at par with regular government servants against whom suspension order can be passed under Rule 13 of the Rajasthan Civil Services (C.C. & A.) Rules, 1958.
In the case of Geeta Devi (supra), the co-ordinate Bench of this Court, at Jaipur Bench, Jaipur, held that suspension is not natural consequence of an inquiry, since the misconduct must be such as to make continuance of 39 the delinquent in office reasonably impracticable. In para 23 of the judgment, this Court held as follows :
"The upshot of the above discussion is that an elected representative is having a valuable right of holding the statutory fixed term. The suspension results in curtailment of fixed statutory period, therefore, the same is a serious matter and the same should not be made in violation of Section 63(2) and (4) of the Act of 1959 and the procedure laid down and settled by this Court, malafide and in an arbitrary manner. Further sufficient care and caution is to be taken while scrutinizing the case for suspension which may result in interim removal in case the inquiry results in exoneration and further the authority concerned must satisfy that misconduct is a gross misconduct and it is reasonably impracticable to continue the elected representative in office during pendency of the inquiry. It is also to be seen that suspension should not be mere consequence of inquiry, otherwise the suspension becomes arbitrary."
The facts of the present case clearly speak that the misconduct alleged against the petitioner is not directly related to the petitioner and, more so, are not of serious nature for which suspension order was required to be passed by the respondents. Likewise, in the case of Jan Mohammed (supra), it has been held that holder of these elective posts cannot be equated with the government servants and, therefore, before holder of an elected post is suspended, the Government must have sufficient reason to do so. The State is under obligation to take care that such suspension should not be arbitrary and the 40 suspension of such elected representative should not be brought about for political motives or considerations.
The above discussion necessarily leads to the conclusion that the elected representatives have right to hold the statutory fixed term office and such statutory period cannot be curtailed in any manner while taking arbitrary action in violation of Section 63(2) and (4) of the Act of 1959 and the procedure laid down and settled by this Court. Therefore, the grounds stated in the reply for passing the impugned suspension order are not sustainable as per the law laid down by this Court in the above cited judgment. So also, it appears on the face of it that order of suspension dated 03.10.2008 is mala fide and arbitrary exercise of power, therefore, the same deserves to be quashed.
Further, it emerges from the entire record that the impugned suspension order dated 03.10.2008 is arbitrary and illegal having been passed without application of mind. Moreover, the charges levelled against the petitioner are not of such serious nature and related to the functioning of the Chairman so as to warrant for placing the petitioner under suspension.
In this petition, order of suspension of elected Chairman of Municipal Board is under challenge which is said to be passed by the Secretary, Local Bodies while 41 exercising power under Section 63 (4) of the Act and to protect the said order in this case no other responsible officer has been deployed to file reply which is evident from the fact that the present Executive Officer Ratan Lal Jatav has been appointed as Officer in-charge and he has also been given identical notice by the State to explain the same allegation which is levelled against the petitioner; meaning thereby, that co-delinquent has been appointed to protect the order of suspension passed by the State.
The above fact speaks that conduct and negligence of the respondent State authorities itself is questionable and requires to be held as unprecedented including the action taken against the petitioner.
Consequently, this writ petition is allowed. Order impugned dated 03.10.2008 placing the petitioner under suspension is quashed and set aside. The respondents are directed to hand over charge of the office of Chairman, Municipal Board, Parbatsar to the petitioner forthwith.
There shall however be no order as to costs.
(Gopal Krishan Vyas) J.
Ojha, a.