Rajasthan High Court - Jaipur
Chhagan Kanwar Rathore vs State Of Rajasthan And Ors. on 4 January, 2000
Equivalent citations: AIR2000RAJ238, 2000(2)WLC231
ORDER Arun Madan, J.
1. By way of this writ petition, Smt. Chhagan Kanwar Rathore (petitioner) has sought direction for quashing : (1) show cause notice dt. 17-3-99 (Ann.1) and (2) order dt. 21-7-99 (Ann. 4), by which she has been suspended from the posts of Chairman and Member of Municipality, Sarwar by the State Govt. in exercise of power u/S. 63 (4) of the Rajasthan Municipalities Act, 1959 (for short, "the Act").
2. Factual matrix necessary to decide the controversy raised at the bar is thus. Undoubtedly, the petitioner in an election held in the year 1995 was elected as Member of the Municipal Board, Sarwar (for brevity the Board) and whereupon she had been also elected as Chairperson in August 1995 and since then she has been Chairperson of the Board. The petitioner states that she belongs to the Bhartia Janta Party; that in 14th Assembly Elections in the Rajasthan State, Congres (I) Party members formed new government and since she being member of Bhartia Janta Party (BJP) opposed in the 14th assembly election against Congress (I) party candidate Shri Babulal Singaria (respondent No. 3) who has been elected as Member of Legislative Assembly from Kekri constituency which covers area of the Board of Sarwar, at whose behest, the complaints by the members of the Congress (I) party come to be lodged against her to the State Govt. for the works having been got performed by the Board in the years 1995-96, 1996-97 and 1997-98. Upon such complaints, the State Govt. issued a show cause notice dt. 17-3-99 (Ann. 1) to the petitioner alleging therein seven instances as to the financial irregularities having been allegedly committed in excess of powers and jurisdiction as Chairperson of the Board, as also against the orders of the State Govt., which resulted into heavy financial loss to the public exchequer. By show cause notice (Ann. 1) received by her on 22-3-99, her explanation was sought within 15 days otherwise after expiry of prescribed period to further proceed against her under Section 63 of the Act.
3. It is the petitioner's case that she had posted her explanation (Ann. 2A) to the show cause notice (Ann. 1) under registered post (Ann. 2) on 3-4-99 raising therein legal objections as well as denial to the allegations made in the notice (Ann. 1). She had also filed a Writ Petition No. 2027/99 challenging the show cause notice (Ann.1) apprehending order of suspension, but this Court vide its order dt. 17-5-99 (Ann. 3) dismissed her writ petition by arriving at the conclusion that both the prayers of the petitioner have no legal force as this Court cannot enter into the merit of the charges for which a show cause notice has been issued to her, so as to act as an enquiry officer.
4. However, an order suspending the petitioner from the posts of Chairperson and Member of the Board was passed on 21-7-99 by the respondent No. 2 under the orders 9f the State Govt. in exercise of powers u/S. 63 (4) of the Act. Hence, this writ petition challenging show cause notice (Ann. 1) and suspension order (Ann. 4).
5. While drawing attention to the suspension order (Ann. 4), Shri G. K. Garg, learned counsel for the petitioner contended that admittedly, reply (Ann. 2A) to show cause notice (Ann. 1) sent by post by the petitioner having been allegedly not received within time, was not taken into consideration before or at the time Of issuing suspension order (Ann. 4) by the State Government and, therefore, according to Shri Garg, non consideration of her reply (Ann. 2A) to show cause notice (Ann. 1) has resulted in vitiating not only principles of natural Justice but also vitiated the suspension being in violation of the provisions of the suspension under Sections 63 (2) & 63 (4) of the Act on the part of the respondents State functionaries, and on this ground alone, the Impugned suspension order (Ann. 4), as per Shri Garg, deserves to be set aside.
6. Next plank of attack as to the validity of the suspension is that since the State Govt. failed to draw Up a statement setting out distinctly the charge upon hearing to the explanation to the show cause notice and the sending it for an inquiry and seeking findings of a Judicial officer not below the rank of the District Judge, as is contemplated in Section 63 (2) of the Act, before suspending the petitioner, in whose case no charge sheet has been framed except issuing order dt. 21-7-99 (Ann, 4) for Judicial inquiry therefore, the suspension being contrary to provisions of Section 63 (2) of the Act deserves to be set aside besides for the reason, that commencement of the proceedings did not take place as per Section 63 (4) of the Act.
7. By referring to each of the allegations of charge stated in the show cause notice, Shri Garg contended that even none of the charges are prima facie made out if taken into consideration in the light of the explanation given by the petitioner in her reply (Ann. 2A), so as to probe into any enquiry much less any judicial inquiry under Section 63 of the Act and, therefore, the order of suspension is mala fide being based on no material inasmuch as the petitioner cannot be saddled with responsibility for all the works on the basis of the allegations stated in the show cause notice under Section 63 (1) of the Act and moreover, action of the State Govt. in proceeding further under show cause notice (Ann. 1) after her explanation thereto (Ann. 2) would be an act simulating merely flogging dead horse and that being so, Removal of the petitioner in the nature of suspension is against the Article 243 of the Constitution of India and show cause notice is also vitiated being based on no legal evidence.
8. In support of aforesaid contentions, Shri Garg cited a decision of this Court in Ashok Kumar Jain v. State of Rajasthan, 1993 (3) WLC 180.
9. By filing reply to the writ petition, the respondent Nos. 1 and 2 have hotly contested the petition. Mr, M. Rafiq, learned Additional Advocate General contended that nine complaints of financial irregularities of grave nature were received involving the petitioner prior to formation of the present Government of ruling Cong. (I) party and since the complaints continued to be lodged against the petitioner, the Govt. instructed the Deputy Director (Regional) Local Self Government Ajmer to enquire into those complaints and thereby the Dy. Director submitted two preliminary enquiry reports one on 9-2-99 and another on 11-2-99. It is the case of the respondent Nos. 1 and 2 that upon receipt of preliminary enquiry report and also the technical report from the Superintending Engineer, Municipal Council, Ajmer, the Govt. decided to take further action against the petitioner in view of seriousness of the charges of financial irregularities and so, her explanation was sought within 15 days by Issuing show cause notice (Ann. 1) drawing up a statement setting out distinctly the allegations of the charge, and whereafter, the Government decided to place her under suspension so also by referring the matter for judicial Inquiry.
10. In order to refute and controvert the contentions of the petitioner. Mr. Rafiq cited decisions in (1) Ugansee Modi v. State of Rajasthan, 1962 Raj LW 184; (2) Mohanlal v. State of Rajasthan. 1963 Raj LW 209 (DB); (3) Jan Mohd. v. State of Rajasthan, 1992(2) WLC 463 : (AIR 1993 Rajasthan 86); (4) Ajmer Singh v. State of Rajasthan, 1986 Rajasthan LR 16 and (5) Bhanwarlal Chhabra v. State of Rajasthan, (1992) 1 Rajasthan LR 436.
11. An application has also been filed by applicant Harun Khan on 10-8-99 with the prayer to allow him as an intervener to this writ petition. I have heard Ms. Ashish Joshi tin this application. The applicant claims to be a member of the Municipal Board Sarwar of which the petitioner had been Chairperson and he claims to have filed complaints of corruption against the petitioner. But surprisingly enough his application is not supported by any of such complaints alleged by applicant to have been filed and on the basis of those complaints the State Govt. would have suspended the petitioner. Therefore, in the absence of any material and document so as to establish that the suspension under challenge in this writ petition was as a result of the complaints of the applicant, nor any allegation of malice has been made by the petitioner against Harun Khan or even against any of the complainants of complaints culminating into the impugned show cause notice and order of suspension, I do not think it just to implead Harun Khan (applicant) as intervener and/or necessary party to this writ petition. Hence, application of Harun Khan filed on 10-8-99 for allowing him as intervener, being devoid of substance and merit is consequently dismissed.
12. I have heard the learned counsel for the parties and considered their rival contentions as well as legal aspect on the subject. Before dealing with the controversy raised at the Bar I deem It proper to have a brief resume of the allegations of the charge stated in the impugned show cause notice (Ann. 1), which are inter alia :--
(1) That the petitioner first called tenders but at her own cancelled those tenders without any approval of the Board or its decision, got works executed at departmental level by issuing N.I.T. with a view to her family members being benefited;
(2) That the petitioner got six works each of worth above Rs. one lac. got completed and undertaken without any resolution being passed by the Board and without prior sanction of the Board;
(3) That money of grants to the Board for undertaking flood relief works in financial years 1996-97, 1997-98 and 1998-99 was misused by passing an order for supply of construction material to her relative Samrath Singh Rathore and whose payments were received by her son Sher Singh, which shows that this contract was awarded to her own son;
(4) That in celebrations of 786th Urs of Dargah Sarwar Shrief a JCB Machine was hired @ Rs. 600/- per hour for the work of cleaning and levelling of ground for which 55 hours were shown to have consumed but no log book to support it was maintained nor were details for quantity of JCB Machine work brought on record but payment for 55 hrs. work worth Rs. 1.03 lac was made for cleaning and repairs of the area where the tents were fitted for celebrations of pilgrims and this work was got done without inviting tender but at her own level;
(5) That the petitioner purchased one HMT Tractor from Hindustan Engineering Company of Rs. 2,25,777/- as against an order dt. 4-8-1995 which authorised her to purchase the tractor through Agro Industries;
(6) That the petitioner sold out a piece of land adjacent to her own plot to her husband Shri Shankar Singh at a throw away and unjustified price of Rs. 48/- per yard, as against market value of the area where it was situated in a market fetching higher price;
(7) That the petitioner made STD beyond the limit prescribed by the State Govt. for the period September 95 to January 1998 resulting in payment of Rs. 56206/- by the Board.
13. It is not in dispute at the bar that show cause notice (Ann. 1) dt. 17-3-99 was challenged by the petitioner in her earlier Writ Petition No. 2027/99. which was dismissed by this Court by its order dt. 17-5-99 (ANN.3). This Court in its order (Ann. 3) held that It could not enter into the merits of the charges for which a show cause notice has been issued to her by acting as an enquiry officer. In the light of these findings of this Court in its order (Ann. 3) which considered the show cause notice dt. 17-3-99 and which is also being, challenged in subsequent/ present Writ Petition No. 3849/99, the petitioner, in my considered view, cannot be allowed to reagltate upon the charges again and again on the one pretext or the other entering into the merits of the charges for which this Court, itself, has held not to enter into, in its earlier order for the same relief which is being raised here. Hence, I have no option but to restrain myself to enter into merit of the charges for which impugned show cause notice has been issued to her so as to act as an inquiring authority, which Itself would be beyond Jurisdiction of this Court. To consider the explanation to the impugned show cause notice is totally within the domain and competence of the authority or inquiring authority under the Act and not this Court. Thus viewed, I do not find any Justification to invoke extraordinary jurisdiction of this Court to examine the validity of the show cause notice in the facts and circumstances of this case involving questions of fact which require a detailed inquiry and probe into the matter and evidence, which cannot be collected by this Court. Therefore, the matter is left for detailed probe and Inquiry at the instance of the Judicial Officer appointed by the State Govt. for Judicial Inquiry into the charges and rejection of the writ petition challenging the show cause notice would not be Influenced by the Inquiring authority and would not cause any prejudice to the petitioner to plead for her explanation before the inquiring authority as the merits of the charges have not at all been entered into or examined by this Court.
14. As regards impugned suspension, the contention of Shri Garg on behalf of the petitioner is that she should not have been suspended till her explanation was received and considered by the State Government. The questions under the controversy are, whether the explanation was necessarily to be examined; whether in the instant case, her explanation was considered before passing the impugned suspension and whether the proceedings have commenced before the impugned suspension was passed under Section 63 (4) of the Act.
15. Here, let me decide all these questions on the principles of law laid down in the decisions cited at the bar. In Ugamsee Modi v. State of Rajasthan. (1962 Raj LW 184) (DB) (supra), this Court held that a suspension order within the meaning of Sub-section (4) of Section 63 can only be made, if proceedings have been commenced under Section 63 and in case of certain allegations of misconduct against a member of the Board of his having abused his powers as a Chairman of the Municipality and on those allegations there was some inquiry by certain officers and on the report of those officers, the Govt. called upon the petitioner to explain the allegations made against him, it can hardly be contended that proceedings cannot be taken to have commenced against him within the meaning of Section 63 (2). This Court then held that the finding of the actual charges and the reference to the judicial officer against the Member/Chairman of the Municipality may take place later, but there was nothing to prevent the State Govt. from taking action to suspend him on those allegations under Section 63 (4) of the Act. In the facts and circumstances of that case (supra), this Court: held that proceedings under Section 63 (2) of the Act must be taken to have commenced against the petitioner when on those allegations he was called upon to show cause and to explain his conduct.
16. In Mohanlal v. State, (1963 Raj LW 209) (DB) (supra) wherein the order of suspension was made simultaneously with order of inquiry, while observing that the crux of the matter is not the service of the show cause notice or the date on which it is Issued, but the date of determination of the competent authority that there was material for taking action for issuing process, this Court in a categorical term held that though for purposes of Sub-section (1) of Section 63, a preliminary inquiry would be held to have commenced, no sooner cognizance is taken of a complaint by the Government against such officer, yet proceedings should be taken to commence within the meaning of Section 63 (4), only when process is ordered to issue against such person, or when the authority makes up its mind to take action. The stage when the Govt. makes up its mind whether or not to take action in the opinion of this Court is the stage of commencement of proceedings for purposes of Section 63 (4), as held in Mohan lal's case (supra).
17. In Jan Mohd's. case, (AIR 1993 Rajasthan 86) (supra) (DB) affirming the view and law laid down In Mohanlal's case, (1963 Raj LW 209) (supra) and Ugamsee Modi's case, (1962 Raj LW 184) (supra), this Court held that in those cases it has not been laid down as a law that before suspending a Member/Chairman of the Municipality it is a condition precedent that a notice should be issued and explanation should be obtained and considered. However, in Jan Mohd's case (supra), view expressed by the ld. Single Judge in Ajmer Singh's case, (1986 Rajasthan LR 16) (supra) to the effect that obtaining of the explanation and its consideration is a condition precedent for suspending a Member/Chairman of the Municipality, was not accepted by the Division Bench of this Court that view of AJmer Singh's case stands overruled. Therefore, in Jan Mohd's case (supra) principle of audi alteram partem in a case of Member/Chairman of the Municipality under Section 63 (4) of the Act was held to be not applicable, and procedure of inquiring into complaint and on satisfaction with preliminary inquiry report, then serving show cause notice on delinquent and at the same time suspension of the delinquent from office, was held wholly just and reasonable. This Court also held that before suspending a member/Chairman of the Municipality, it is not at all essential that a pre-decisional hearing should also be granted to him to show cause why he may not be suspended, and according to this Court, what is essential is that the preliminary inquiry report should be considered and after application of mind on the inquiry report, if the State Govt. considers it fit that the matter needs further enquiry then a show cause notice has to be issued to such member/chairman of the Municipality as to why specific charges be not framed against him and they be referred to the judicial officer and simultaneously the suspension order can be Issued because as soon as there is application of mind on the preliminary inquiry report, when the Govt. decides what action has to be taken and at the stage when the proceedings commence against such delinquent and prior to that, this is the stage of holding of preliminary enquiry. This Court also held on the question of power of Court to interfere with the suspension that it is trite law that whether particular grounds exist for the suspension of a person or not depends upon the subjective satisfaction of the State Govt. and the Court cannot substitute its own wisdom for that order and the Court cannot super-impose its discretion, and what can always be examined is whether the satisfaction has been objective or arbitrary.
18. In Bhanwarlal's case, (1992 (1) Rajasthan LR 436) (supra), reiterating and applying the principles of law laid down by the Division Bench of this Court in the decisions, cited above, this Court observed as under :--
"From Sub-section (2) of Section 63, it is clear that an opportunity of hearing has to be granted to the delinquent holder of a public office before definite charges are framed and referred to the Judicial officer.
If an opportunity of hearing is read into the provisions of Section 63 (4) of the Act, it would mean that two opportunities should be provided, one before passing the order of suspension and another before framing of the charges. It has never been the intention of the legislature that two such opportunities should be provided and it is not the Intention of the legislature to grant any pre decisional hearing before a Member/ Chairman is suspended by the State Government in exercise of powers under Section 63 (4) of the Act. What is required is that before he is suspended, a preliminary enquiry should be held by a responsible officer and after the report is received and the State Government applies its mind and comes to the conclusion that a further probe is essential for the removal of the Member/Chairman then, it has to issue a notice under Section 63 (2) of the Act to show cause why definite charges be not framed and referred to a judicial officer. At the stage of application of mind by the State Government to proceed or not to proceed against the delinquent representative, he can be suspended and it Is not at all essential that a pre-decisional hearing should be granted to him to show cause why he may not be suspended before the proposed inquiry. Such view may also result In grave harm or injustice to the institution and the public. Therefore, I have no hesitation in rejecting the first and the foremost contention made by the learned counsel for the petitioner that the proceedings against the petitioner have not commenced in the present case".
19. As regards the decision cited by Shri Garg on behalf of the petitioner, in Ashok Kumar Jain v. State of Rajasthan, (1993 (3) WLC 180) (supra), in para 8, the learned Single Judge, who had also occasion to examine such a question in Ajmer Singh v. State of Rajasthan, (1986 Rajasthan LR 16) (supra) which stand overruled by the decision of the Division Bench of this Court in Jan Mohd's case (AIR 1993 Rajasthan 86) (supra), observed that existence of the report of the preliminary inquiry is a condition precedent for issuing a notice to the Chairman or the Member of the Municipal Board, as the case may be, and only after receipt of the enquiry report, the State Government decides to proceed against a member, it can be said that there has been application of mind and the proceedings can be said to be commenced against a member/Chairman for the purposes of Sub-section (4) of Section 63 of the Act. It was a case where on the facts of that case, this Court observed as under:--"It can, therefore, be said that there was absolutely no preliminary inquiry, no report of the preliminary enquiry and Minister took a decision to suspend the three petitioners in utter disregard of provisions of Section 63 of the Act, and it cannot be said that the proceedings for removal of the petitioners have not commenced within the meaning of Sub-section (4) of Section 63 of the Act and, therefore, the State Government could not have exercised the powers of suspension. The order of the State Government is, therefore, without jurisdiction as the condition precedent to the applicability of Section 63 (4) of the Act was not fulfilled."
20. Obviously present one is a case where there has been preliminary inquiry so also two reports of the preliminary inquiry on record to which there has been application of mind by the State Government before referring the matter to the judicial inquiry and simultaneously taking decision to suspend the petitioner. Hence ratio of the decisions cited by Shri Garg, is not applicable to the present case being distinguishable and overruled by Division Bench of this Court in Jan Mohd's case (AIR 1993 Rajasthan 86) (supra).
21. In Smt. S. Kanta Ranawat v. State of Rajasthan (S.B. Civil Writ Petition No. 5893/ 98 decided on January 21, 1999) (reported in 1999 (2) Rajasthan LR 342) cited by Shri Garg, since no preliminary inquiry was conducted, no explanation was asked for from the petitioner under Section 63(2) of the Act, therefore, this Court held the suspension of the petitioner bad in law. Similarly, the decision in Ramgopal Mishra v. State of Rajasthan (S.B. Civil Writ PetitionNo.2982/ 1999 decided on 19th July, 1999) (reported in 2000 (1) WLC 580) having different facts and circumstances than the present case is not attracted because in Ram Gopal Mishra's case, the show cause notice stated allegations which pertained to the period prior to his election as Member and thereafter as Vice Chairman of the Board and in these circumstances, this Court held that the material relied upon by the appropriate authority in case of suspension of petitioner Ramgopal Mishra was extraneous to the charge on the basis of which preliminary enquiry was initiated against him.
22. Now, applying the principles of law, referred to above to the present case, I am of the considered view that the contentions advanced by Shri Garg on behalf of the petitioner do not have any merit much less substance to establish her case for interference in her impugned suspension.
23. In the case at hand, undoubtedly the complaints were received against the petitioner as to the financial irregularities, whereupon cognizance was taken by the State Govt. directing the Dy. Director to enquire into those complaints and on technical aspects of the construction work. Superintending Engineer of Municipality of Ajmer was also deputed to make preliminary report to which two reports on 9-2-1999 and 11-2-1999 were received by the State Government, which after applying Its mind to those preliminary Inquiry reports thought that action was called for and in consequence thereto, show cause notice (Ann. 1) asking for explanation was sent to the petitioner. In these circumstances it must be held that the proceedings be taken to have commenced against the petitioner within the meaning of Sub-section (2) of Section 63 of the Act and I find no substance and merit in the contention of Shri Garg that in case of the petitioner's suspension, the proceedings did not take place or commence as per Section 63(4) of the Act and Shri Garg's contention must fall. And, in view of the principles of law laid down by this Court in the decisions, quoted above, since pre decisional hearing before suspending the petitioner is not required to be granted and in other words pre decisional hearings not a condition precedent to bringing about suspension of Member/Chairman of Municipality, I must hold that in case of the present petitioner, her explanation was not necessarily to be examined by the respondents No. 1 and 2, and thus viewed also, her explanation was not required to be considered before passing her suspension order.
24. Further, as held in Jan Mohd.'s case (AIR 1993 Rajasthan 86) (supra), merely because ministers contemplating suspension belong to different political party, it does not mean their prejudice against the petitioner. The petitioner has failed to establish mala fide on the part of the respondent No. 3 or the minister of the ruling party so as to warrant interference in her suspension of this Court.
25. Sub-section (4) of Section 63 of the Act starts with a non obstante clause, i.e. "notwithstanding the foregoing provisions of this section." the State Govt. 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.
26. Sub-section (2) of Section 63 of the Act if carefully read with Sub-section (1) It makes explicitly clear that it is incumbent upon the Govt. to offer an opportunity of explanation to the Chairman before it can frame charges against him and refer them for inquiry to the District Judge under Subsection (2). As held in Ugamsee Mohd.'s case (1962 Raj LW 184) (supra), giving of an opportunity of explanation before framing of the charges is a mandatory provision and it has never been the Intention of the legislature that two opportunities should be provided one before passing of the order of suspension and the other before framing of the charges.
27. In the case at hand, after receipt of the explanation of the petitioner (Ann. 2) to the show cause notice (Ann. 1), the State Govt. considered her explanation before preparing final charge sheet drawing up a statement setting out distinctly the charge against the petitioner and then has sent the same for inquiry and findings by the District Judge who has been appointed by the State Goyt. under Section 63(2) by order dt. 27-7-1999 (Ann. R.1). By order dt. 21-7-1999 (Ann. R.1) the State Govt. after having found prima facie charge of misconduct against the petitioner during preliminary inquiry, decided to further inquire into by judicial inquiry under Section 63 and therefore send the charge sheet along with statement setting out distinctly charge for inquiry to the Jt. LR(L) of rank of the District Judge. Therefore, it cannot be held that the State Govt. failed to comply with provisions of Subsection (2) of Section 63 which may warrant revocation of the suspension of the petitioner.
28. The conditions precedent for suspending Member or Chairman like the petitioner, viz. (1) a preliminary Inquiry should have been conducted against her/him; (2) report of the preliminary inquiry should have been considered by the Govt.; and (3) the Govt. upon application of mind to the report comes to the conclusion that a further probe in the matter is required, then it should issue a notice under Section 63(2) of the Act to show cause why definite charges be not framed and be referred to a judicial inquiry which is the stage where proceedings start against the delinquent like the petitioner and once the proceedings commence, the State Govt. has power to suspend the Chairman like the petitioner, simultaneously when it decides to issue her a notice of show cause under Section 63(2) of the Act. It is not the legislative intent under Subsection (2) of Section 63 that before passing suspension order under Section 63(4) of the Act charges as per provisions of Section 63(2) are to be framed and sent to the petitioner or the District Judge. As discussed above, the stage and question of framing of the charge under Section 63(2) comes only and arises when explanation to the show cause notice Issued under Section 63(1) is received and when the reference to the judicial officer for Judicial inquiry Is issued and for purposes of Section 63(4) i.e. for suspending the Chairman or the Member of the Municipality like the petitioner, framing of the charge sheet is not a condition precedent. The conditions precedent are stated above and the same having been fulfilled and complied with by the State Govt. for purposes of Section 63(4) of the Act, the suspension of the petitioner does not deserve to be revoked as It being not contrary to provisions of Section 63(2) or 63(4) of the Act. Thus, on the facts as they appear, it cannot be said that the discretion exercised by the Govt. in making the order was unjustified or malicious or arbitrary.
29. As a result of the above discussion, this writ petition is dismissed. No order as to costs.