Rajasthan High Court - Jaipur
Smt. Somya Gurjar Wife Of Shri Rajaram ... vs State Of Rajasthan on 28 June, 2021
Bench: Pankaj Bhandari, Chandra Kumar Songara
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 6485/2021
Smt. Somya Gurjar Wife Of Shri Rajaram Gurjar, Aged About 37
Years, Resident Of 289, Taruchhaya Nagar, Tonk Road, Jaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary To The
Government Of Rajasthan, Department Of Local Self
Government, Administrative Secretariat, Jaipur.
2. The Director Cum Special Secretary, Local Bodies,
Government Of Rajasthan, Department Of Local Self
Government, Near Civil Lines Railway Crossing, Jaipur.
3. Commissioner, Municipal Corporation, Jaipur Greater, Lal
Kothi, Tonk Road, Jaipur.
4. Deputy Director (Regional), Local Self Government
Department, New Colony Near Hotel Welcome, Panch
Batti, Jaipur.
5. Smt. Sheel Dhabhai, Member Ward No. 60 (Holding
Charge Of Mayor), Municipal Corporation Jaipur Greater,
Lal Kothi, Tonk Road, Jaipur.
----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Sr. Adv. assisted
by Mr. Aashish Sharma through VC
For Respondents : Mr. M.S. Singhvi (Sr. Adv.), AG,
No.1 to 4 assisted by Mr. Sheetanshu Sharma,
Mr. Anil Mehta, AAG with
Mr. Yashodhar Pandey through VC
For Respondent No.5 : Mr. Nahar Singh Maheshwari, through
VC
: Mr. K.A. Khan through VC
: Mr. S.C. Gupta, through VC
HON'BLE MR. JUSTICE PANKAJ BHANDARI (V.J.)
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA (V.J.)
Order
ORDER RESERVED ON :: 14/06/2021
ORDER PRONOUNCED ON :: 28/06/2021
(Per HON. PANKAJ BHANDARI, J.)
REPORTABLE
(Downloaded on 28/06/2021 at 08:47:15 PM)
(2 of 31) [CW-6485/2021]
1. Defects, pointed out by the Registry, are waived.
2. The petitioner has preferred the instant writ petition
challenging the vires of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of
the Rajasthan Municipalities Act, 2009 (hereinafter referred to as
"the Act of 2009") and against the order dated 06.06.2021
whereby the petitioner has been placed under suspension from the
Office of Mayor, Municipal Corporation Jaipur Greater as well as
from her membership of Ward No.87 of the said Municipal
Corporation.
3. Succinctly stated the facts of the case are that Municipal
Corporation Jaipur was dissolved and instead, two Municipal
Corporations were established in its place i.e. Municipal
Corporation Jaipur Heritage and Municipal Corporation Jaipur
Greater. The petitioner was elected as a Member of the Municipal
Corporation Jaipur Greater from Ward No.87 and thereafter, as a
Mayor of the said Municipal Corporation. In the year 2017, BVG
India Limited (hereinafter referred to as "the Company") was
granted the work by the earlier Corporation with regard to door to
door collection, segregation and transportation of municipal waste.
In view of the dissolution of the earlier Corporation, the Director
Local Bodies vide order dated 18.01.2021 informed both the
Corporations to enter into supplementary agreements with the
said Company.
4. In the first general meeting of the Board, it was decided that
the Commissioner must take appropriate legal action against the
said Company within 30 days and a new arrangement in this
regard should be made. In compliance thereof, process for
issuance of new tenders was initiated, and in the meanwhile, the
said Company filed a writ petition bearing S.B. Civil Writ Petition
(Downloaded on 28/06/2021 at 08:47:15 PM)
(3 of 31) [CW-6485/2021]
No.5253/2021 and an interim order dated 06.05.2021 was passed
in favour of the said Company. Due to non-payment of the
amount, the Company stopped garbage collection resulting into
problem of sanitation.
5. The petitioner called the respondent-Commissioner for
discussing the issue and some untoward incident took place in the
meeting room of the Mayor. The Commissioner filed a complaint
and also lodged an FIR of the incident pleading therein that action
should be taken against the Corporators. The Government
appointed an Officer of the rank of State level service to conduct
the Preliminary Enquiry and after conclusion of the said enquiry,
the Officer submitted his report on 06.06.2021. On the same day,
Government took a decision to hold judicial inquiry against the
petitioner under Section 39(3) of the Act of 2009 and suspended
the petitioner from the post of Mayor as well as Member of Ward
No.87, aggrieved by which, the present writ petition has been
preferred by the petitioner. The relief claimed by the petitioner in
the writ petition is for declaring Sections 39(1)(d)(ii) and 39(1)(d)
(iii) of the Act of 2009 as ultra-vires the Constitution of India and
for quashing and setting aside the order dated 06.06.2021
whereby petitioner has been suspended.
6. The Constitutional validity of the provisions of Sections 39(1)
(d)(ii) and 39(1)(d)(iii) of the Act of 2009 are under challenge,
hence, we would first deal with the issue of Constitutional validity
of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of the Act of 2009.
Section 39 deals with removal of a member and the same reads as
under:
"39. Removal of member- (1) The State
Government may, subject to the provisions of sub-
(Downloaded on 28/06/2021 at 08:47:15 PM)
(4 of 31) [CW-6485/2021]
Sections (3) and (4), remove a member of a Municipality
on any of the following grounds, namely: -
(a) that he has absented himself for more than three
consecutive general meetings, without leave of the
Municipality:
Provided that the period during which such member was a
jail as an under trial prisoner or as a detenue or as a
political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of
Section 37,
(c) that after his election he has incurred any of the
disqualification mentioned in Section 14 or Section 24 or
has ceased to fulfil the requirements of Section 21,
(d) that he has:-
(i) deliberately neglected or avoided performance of his
duties as a member, or
(ii) been guilty of misconduct in the discharge of his
duties, or
(iii) been guilty of any disgraceful conduct, or
(iv) become incapable of performing his duties as a
member, or
(v) been disqualified for being chosen as member under
the provisions of this Act, or
(vi) otherwise abused in any manner his position as such
member:
Provided that an order of removal shall be passed by the
State Government after such inquiry as it considers
necessary to make either itself or through such existing
or retired officer not below the rank of State level services
or authority as it may direct and after the member
concerned has been afforded an opportunity of
explanation.
(2) The power conferred by sub-Section (1) may be
exercised by the State Government of its own motion or
upon the receipt of a report from the Municipality in that
behalf or upon the facts otherwise coming to the
knowledge of the State Government:
Provided that, until a member is removed from office by
an order of the State Government under this Section, he
shall not vacate his office and shall, subject to the
provisions contained in sub-Section (6), continue to act
(Downloaded on 28/06/2021 at 08:47:15 PM)
(5 of 31) [CW-6485/2021]
as, and exercise all the powers and perform all the duties
of, a member and shall as such be entitled to all the
rights and be subject to all the liabilities, of a member
under this Act.
(3) Notwithstanding anything contained in sub-Section
(1) where it is proposed to remove a member on any of
the grounds specified in clause (c) or clause (d) of sub-
Section (1), as a result of the inquiry referred to in the
proviso to that sub-Section and after hearing the
explanation of the member concerned, the State
Government shall draw up a statement setting out
distinctly the charge against the member and shall send
the same for enquiry and findings by Judicial Officer of
the rank of a District Judge to be appointed by the State
Government for the purpose.
(4) The Judicial Officer so appointed shall proceed to
inquire into the charge, hear the member concerned, if he
makes appearance, record his findings on each matter
embodied in the statement as well as on every other
matter he considers relevant to the charge and send the
record along with such findings to the State Government,
which shall thereupon either order for re-inquiry, for
reasons to be recorded in writing, or pass final order.
(5) While hearing an inquiry under sub-Section (4), the
Judicial Officer shall observe such rules of procedure as
may be prescribed by the State Government and shall
have the same powers as are vested in a civil Court under
the Code of Civil Procedure, 1908 (Central Act No. 5 of
1908) while trying a suit in respect of the following
matters, namely:
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of any such
document or any other material as may be predicable in
evidence;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed.
(6) Notwithstanding the foregoing provisions of this
Section, the State Government may place under
suspension a member against whom proceedings have
been commenced under this Section until the conclusion
of the inquiry and the passing of the final order and the
member so suspended shall not be entitled to take part in
any proceedings of the Municipality or otherwise perform
the duties of a member thereof.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(6 of 31) [CW-6485/2021]
(7) Every final order of the State Government passed
under this Section shall be published in the Official
Gazette and shall be final and no such order shall be
liable to be called in question in any Court.
7. It is contended by learned counsel for the petitioner that in
Section 39(1)(d)(ii) of the Act of 2009, the term "misconduct in
the discharge of his duties" has been used and similarly, in Section
39(1)(d)(iii) of the Act of 2009, the term "any disgraceful conduct"
has been used, both the terms are not defined. It is argued that
the Corporator or Mayor is not aware as to what would fall within
the ambit of "misconduct in the discharge of his duties" or "any
disgraceful conduct" and therefore, these provisions are vague
and should be struck down, being violative of Articles 14, 20 and
21 of the Constitution of India. The terms being of generic nature
having no bounds of their applicability and since these clauses
attract punitive action also, they can be used against anyone
based on individual perception of a conduct, its degree and on
whims and fancy of the authority.
8. It is also contended that because the meaning of these terms
depends upon what is thought by the authority with regard to the
action at the time of their application, such undefined conduct
attracting punitive action is violative of Article 20 of the
Constitution of India. In this regard reliance has been placed on
Pyare Lal Sharma Versus Managing Director and Ors.: 1989 (3)
SCC 448.
9. It is further contended that Articles 14 and 21 of the
Constitution of India pre-supposes just, fair and reasonable law
for punishing any citizen. Counsel in this regard has placed
reliance on Shri Ram krishna Dalmia and Ors. Versus Justice S.R.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(7 of 31) [CW-6485/2021]
Tendolkar and Ors.: AIR 1958 SC 538 wherein the Apex Court
laid down certain principles to be borne in mind by the Court when
it is called upon to adjudge the constitutionality of any particular
law attached as discriminatory and violative of the equal
protection of the laws. The principles enunciated read as under:
"(a) that a law may be constitutional even though it
relates to a single individual if, on account of some
special circumstances or reasons applicable to him and
not applicable to others, that single individual may be
treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is
upon him who attacks it to show that there has been a
clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature
understands and correctly appreciates the need of its
own people, that its laws are directed to problems
made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of
harm and may confine its restrictions to those cases
where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of
constitutionality the court may take into consideration
matters of common knowledge, matters of common
report, the history of the times and may assume every
state of facts which can be conceived existing at the
time of legislation; and
(f) that while good faith and knowledge of the existing
conditions on the part of a legislature are to be
presumed, if there is nothing on the face of the law or
the surrounding circumstances brought to the notice of
the court on which the classification may reasonably be
regarded as based, the presumption of constitutionality
cannot be carried to the extent of always holding that
there must be some undisclosed and unknown reasons
for subjecting certain individuals or corporations to
hostile or discriminating legislation."
10. Learned counsel for the petitioner has further placed reliance
on Shreya Singhal Versus Union of India: AIR 2015 SC 1523
wherein Section 66A of the Information Technology Act, 2000 was
(Downloaded on 28/06/2021 at 08:47:15 PM)
(8 of 31) [CW-6485/2021]
struck down by the Apex Court treating the provisions as vague. It
was observed by the Apex Court that a penal law is void for
vagueness if it fails to define the criminal offence with sufficient
definiteness. It was further observed that ordinary people should
be able to understand what conduct is prohibited and what is
permitted. Also, those who administer the law must know what
offence has been committed so that arbitrary and discriminatory
enforcement of law does not take place. Reliance has also been
placed on The State of Madhya Pradesh & Anr. Versus Baldeo
Prasad: AIR 1961 SC 293 wherein the term "Goonda" used in the
Central Provinces and Berar Goondas Act, 1946 was found to be
vague and was struck down.
11. It is contended by learned Advocate General that provisions
of Section 63(1)(d) of the Rajasthan Municipalities Act, 1959
(hereinafter referred to as "the Act of 1959") are para-materia
with the provisions of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of the
Act of 2009. It is also contended that the provisions of the Act of
1959 held ground for a period of six decades and therefore,
veracity of the same cannot be challenged at this stage. In this
regard, reliance has been placed on PGF Limited & Ors. Versus
Union of India & Anr.: (2015) 13 SCC 50 wherein the Apex Court
has held as under:
"32. The Court can, in the first instance, examine
whether there is a prima facie strong ground made out
in order to examine the vires of the provisions raised
in the writ petition. The Court can also note whether
such challenge is made at the earliest point of time
when the statute came to be introduced or any
provision was brought into the statute book or any
long time gap exist as between the date of the
enactment and the date when the challenge is made.
It should also be noted as to whether the grounds of
challenge based on the facts pleaded and the
(Downloaded on 28/06/2021 at 08:47:15 PM)
(9 of 31) [CW-6485/2021]
implication of provision really has any nexus apart
from the grounds of challenge made. With reference to
those relevant provisions, the Court should be
conscious of the position as to the extent of public
interest involved when the provision operates the field
as against the prevention of such operation. The Court
should also examine the extent of financial
implications by virtue of the operation of the provision
vis-à-vis the State and alleged extent of sufferance by
the person who seeks to challenge based on the
alleged invalidity of the provision with particular
reference to the vires made. Even if the writ Court is
of the view that the challenge raised requires to be
considered, then again it will have to be examined,
while entertaining the challenge raised for
consideration, whether it calls for prevention of the
operation of the provision in the larger interest of the
public. We have only attempted to set out some of the
basic considerations to be borne in mind by the writ
Court and the same is not exhaustive. In other words,
the Writ Court should examine such other grounds on
the above lines for consideration while considering a
challenge on the ground of vires to a Statute or
provision of law made before it for the purpose of
entertaining the same as well as for granting any
interim relief during the pendency of such writ
petitions. For the above stated reasons it is also
imperative that when such writ petitions are
entertained, the same should be disposed of as
expeditiously as possible and on a time bound basis,
so that the legal position is settled one way or the
other."
12. It is contended that the term "misbehavior" has been used in
Articles 124(4) and 317 of the Constitution of India. Article 124(4)
deals with removal of Judge of Supreme Court on the ground of
proved misbehavior or incapacity and Article 317 of the
Constitution of India deals with removal and suspension of a
member of a Public Service Commission on the ground of
misbehavior. It is contended that the term "misbehavior" is not
defined in the Constitution of India. It is also argued that the
terms "misconduct" and "disgraceful conduct" also find place in
various enactments across the country. Some of the enactments
which use the terms are: Rajasthan Panchayati Raj Act, 1994;
(Downloaded on 28/06/2021 at 08:47:15 PM)
(10 of 31) [CW-6485/2021]
Rajasthan Agricultural Produce Markets Act, 1961; Maharashtra
Municipal Councils, Nagar Panchayats and Industrial Township Act,
1965; Madhya Pradesh Municipalities Act, 1961; Karnataka
Panchayat Raj Act, 1993; U.P. Municipal Corporation Act, 1959;
Bihar Municipal Act, 2007; Punjab Municipal Corporation Act,
1976; Gujarat Municipalities Act, 1963 and Maharashtra Zila
Parishads and Panchayat Samitis Act, 1961.
13. It is contended that the Legislature in its own wisdom has not
defined the terms "misconduct" and "disgraceful misconduct" as
the same would depend upon the facts and circumstances of each
case. Learned Advocate General has placed reliance on Ravi
Yashwant Bhoir Versus District Collector, Raigad & Ors.:(2012) 4
SCC 407 wherein the Apex Court has dealt with the terms
"misconduct" and "disgraceful conduct" while dealing with a case
pertaining to Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965. It was observed that the term
"misconduct" is a relative term and has to be construed in
accordance with the facts before the authorities. Any act, which is
detrimental to the prestige of the institution, is misconduct.
Reliance has also been placed on NandKumar Versus State of
Mah.: 2016 (6) Mh.L.J. 87 wherein the petitioner, who was a
councilor of Municipal Council, threatened the Chief Officer and the
same was held to be a "disgraceful conduct" by the Division Bench
of the Bombay High Court and the term "disgraceful conduct" was
described as a shameful behavior. In that case, threatening the
Chief Officer by showing footwear was held to be as shameful
misbehavior and shockingly unacceptable.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(11 of 31) [CW-6485/2021]
14. It is contended that since the framers of the Constitution in
their wisdom have used the term "misbehavior" in the Constitution
of India without defining the same, the use of the terms
"misconduct" and "disgraceful conduct" by the State Legislature in
the Municipality Act cannot be said to be vague and ultra-vires the
Constitution.
15. It is contended that because a provision has remained in the
statute for long, it gives validity to the entire statute. In this
regard reliance has been placed on Dharam Das & Ors. Versus
The State of Punjab & Ors.: 1975 (1) SCC 343 wherein the
enactment was in force for more than half of the century, the Apex
Court held that provisions being in the statute for more than half
of the century, the Court would lean in favour of upholding the
validity.
16. Contra to the above argument, it is contended by learned
counsel for the petitioner that merely because a provision has
remained in the statute for long, it does not give validity to the
entire statute and the same can be challenged if the provision
appears to be ultra-vires to the Constitution. In the case of Navtej
Singh Johar & Ors. Versus Union of India: AIR 2018 SC 4321,
the provisions of Section 377 of Indian Penal Code, which was
introduced way back in 1817 and the validity of which was upheld
by the Delhi High Court, was struck down by the Apex Court,
declaring it unconstitutional. Similarly, it is also contended that the
validity of Section 124-A of Indian Penal Code was upheld by the
Court in 1962, but the challenge to its validity has been
entertained by the Apex Court observing that lapse of time cannot
be the sole consideration to uphold the validity of the provisions.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(12 of 31) [CW-6485/2021]
Reliance in this regard has been placed on Kishorechand
Wangkhemcha & Anr. Versus Union of India: Writ Petition
(Criminal) No.106/2021 and on Motor General Traders & Anr.
Versus State of Andhra Pradesh: AIR 1984 SC 121 wherein it
was held that time itself does not give validity to a statute.
17. We have considered the contentions.
18. As far as challenge at a belated stage is concerned, we are in
agreement with the argument of the counsel for the petitioner that
merely because a provision has remained in the statute for long, it
does not give validity to the entire statute and the same can be
challenged if the provision appears to be ultra-vires the
Constitution. However, the judgments Shreya Singhal Shreya
Singhal Versus Union of India (supra) and State of Madhya
Pradesh & Anr. Versus Baldeo Prasad (supra) deal with striking
down of penal laws being vague, the present provisions do not
have penal consequences, hence, the judgments referred to by
the counsel for the petitioner do not have any applicability to the
facts of this case. Pyare Lal Sharma Versus Managing Director and
Ors. (supra) was a case where regulations were amended and
ground of unauthorized absence from duty was added w.e.f.
20.4.1983. The petitioner therein was removed for unauthorized
absence for period prior to 20.04.1983. The Apex Court held that
absence period being prior to the date of amendment, termination
cannot be sustained. The above judgment has no applicability to
the facts of this case and non-defining of the terms "misconduct"
and "disgraceful conduct" cannot be equated with an ex-post facto
law.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(13 of 31) [CW-6485/2021]
19. As far as the Constitutional validity of Sections 39(1)(d)(ii)
and 39(1)(d)(iii) of the Act of 2009 is concerned, the terms
"misconduct in the discharge of his duties" and "any disgraceful
conduct" cannot be termed to be vague in view of the fact that the
terms "misconduct" and "disgraceful conduct" find place in various
enactments across the country and the use of terms "misconduct"
and "disgraceful conduct" are not having any penal consequences.
It is evident that in the Constitution of India also, the term
"misbehavior" has not been defined and therefore, the Legislature
was well within its powers to not define the terms "misconduct"
and "disgraceful conduct". It is also evident that the terms
"misconduct in the discharge of duties" and "any disgraceful
conduct" has to be assigned a meaning depending on the facts
and circumstances of a particular case and the Legislature in its
own wisdom has purposely not defined these words. We are of
the considered view that the use of terms such as "misconduct in
the discharge of his duties" and "any disgraceful conduct" are not
vague, so as to render them ultra-vires the Constitution. We,
therefore, uphold the validity of Sections 39(1)(d)(ii) and 39(1)(d)
(iii) of the Act of 2009.
20. It was submitted by learned counsel for the petitioner as well
as by learned Advocate General that since hearing has lasted for
two days, the writ petition may be decided by the Division Bench
on merits. In support, they have placed reliance on Jan Mohd.
Versus The State of Rajasthan & Ors.: AIR 1993 Raj 86 wherein
the validity of Section 63(4) of the Rajasthan Municipalities Act,
1959 was challenged and the Court upheld the validity of the
provision and at the same time, disposed of the case on merits.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(14 of 31) [CW-6485/2021]
We would thus be dealing with the grounds for challenge of the
suspension order dated 06.06.2021.
21. The foremost ground on which the order is challenged is that
the suspension order has been passed without affording an
opportunity of hearing and without seeking explanation from the
petitioner. Whether a person is required to be heard before he is
suspended under the provisions of Section 39(6) of the Act of
2009 is the other question, which arises for consideration by this
Court.
22. It is contended by learned counsel for the petitioner that
Section 39 of the Act of 2009 deals with removal of a member and
Section 39(1) deals with the grounds on which a member can be
removed. It is contended that proviso to Section 39(1) provides
that an order of removal shall be passed by the State Government
after such inquiry as it considers to make either itself or through
such existing or retired officer not below the rank of State level
services or authority as it may direct and after the member
considered has been afforded an opportunity of explanation. It is
argued that before suspending any Member or Mayor, the
concerned person is required to be afforded an opportunity of
explanation.
23. With regard to the above, learned Advocate General, placing
reliance on Jan Mohd. Case (supra), contends that the validity of
Section 63(4) of the Act of 1959 was upheld by the Division Bench
of this Court and Section 63(4) of the Act of 1959 is para-materia
to Section 39(6) of the Act of 2009. The Division Bench in Jan
Mohd. case (supra) has overruled the judgment of the Single
Judge in the case of Ajmer Singh Yadav Versus State of Raj.:
(Downloaded on 28/06/2021 at 08:47:15 PM)
(15 of 31) [CW-6485/2021]
1986 RLR 16 wherein it was held that obtaining of the
explanation and its consideration is essential i.e. it is a condition
precedent for passing the order of suspension of the Chairman or
Member of the Municipal Board.
24. The Court in Jan Mohd's case (supra) further held that
suspension of a Chairman or a Member of a Municipal Board
pending inquiry being an interim measure, the suspension does
not result in civil and evil consequences and it is not penal in
character. Enough safeguards have been provided in the Section
so that no arbitrary, capricious or mala fide suspension may take
place. The Court also observed that Government must have
sufficient reasons to do so and care should be taken that such
suspensions should not be arbitrary and the suspensions of such
elected representatives should not be brought about for political
motives or consideration.
25. Learned Advocate General has also placed reliance on Full
Bench decision of this Court in Bhuralal v. State of Raj.: 1988 (1)
RLR 945 (FB), Radhey Shyam v. State: AIR 1985 Raj 65 and
Liberty Oil Mills v. Union of India: AIR 1984 SC 1271.
26. In Bhuralal v. State of Raj. (supra), the question before the
Full Bench was whether before suspending from the post of
Sarpanch, an opportunity of hearing is required to be given to the
Sarpanch or not. The Full Bench of this Court held as under:
"As pointed out by us above, the order of
suspension under Section 17(4A) is an order of interim
nature and it could be passed only after an active
application of mind by the State Government to the
question as to whether an emergent or immediate
action is called for on the basis of the preliminary
enquiry report and its decision to send a charge sheet
and show cause notice to the Panch or Sarpanch
concerned. Moreover, it is envisaged in rule 21(3) that
(Downloaded on 28/06/2021 at 08:47:15 PM)
(16 of 31) [CW-6485/2021]
an opportunity of hearing shall be afforded to the
person concerned in the sense that after a show cause
notice along with a statement of charges is served upon
him, he will have an opportunity to submit his
representation in answer to the charges. At that stage
he could also seek a review of the order and ask the
authority to rescind or modify the same. As held by
their Lordships of the Supreme Court in Liberty Oil
Mills's case(8) the principles of natural justice would be
satisfied is a post decisional hearing is given in such
matters and the aggrieved party is afforded an
opportunity at his request. If an urgent or emergent
action is required to be taken as a result of the
consideration of the preliminary enquiry report made by
the Collector to be the State Government, then there
could be no doubt that the order of suspension of the
Panch of Sarpanch could be passed at the stage of
giving the show cause notice along with a copy of the
order of sheet as a review or reconsideration of the
order of suspension is naturally envisaged after the
Panch of Sarpanch submits its representation in reply to
the show cause notice, as on consideration of the same,
the State Government may drop the charges or proceed
to appoint an Enquiry officer to hold the enquiry into the
charges, It needs to be emphasised that an order of
suspension of an elected office holder should only be
passed by the State Government when the charges
leveled against him involve misconduct of serious
magnitude and are of such a nature as to warrant
immediate or emergent action."
27. In Radhey Shyam v. State (supra), while interpreting the
provisions of Sections 17(4) and 17(4-A) of the Rajasthan
Panchayat Act, it was held that a pre-decisional hearing cannot be
afforded to a Sarpanch, Upsarpanch or a Panch before his
suspension is ordered. It has been further held that the principles
of natural justice will be attracted to an order of suspension
passed by way of punishment and it will be necessary to afford an
opportunity to the person sought to be suspended before passing
the order of suspension. But, if the order of suspension is by way
of an interim measure pending an inquiry into the charges, it is
not necessary to afford an opportunity to the person sought to be
suspended before passing the order of suspension.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(17 of 31) [CW-6485/2021]
28. In Liberty Oil Mills v. Union of India (supra), the Supreme
Court has dealt with the question of applicability of principles of
natural justice to cases where an interim order is passed pending
a final adjudication. In the said case, it has been observed as
under:
"Procedural fairness embodying natural justice is
to be implied whenever action is taken affecting the
rights of parties. It may be that the opportunity to be
heard may not be pre-decisional it may necessarily have
to be post-decisional where the danger to be averted or
the act to be prevented is imminent or where the action
to be taken can brook no delay."
It was further held that ad interim orders may always be
made ex-parte and such orders may themselves provide for an
opportunity to the aggrieved party to be heard at a later stage.
Even if the interim orders do not make provision for such an
opportunity, an aggrieved party has, nevertheless always the
eights to make an appropriate representation seeking a review of
the order and asking the authority to rescind or modify the order.
The principles of natural justice would be satisfied if the aggrieved
party is given an opportunity at his request.
29. The Full Bench in Bhuralal's case (supra) has held that it is
no doubt true that a Panch or Sarpanch could not be allowed to be
suspended in the same manner as an employee. In the matter of
passing of an order of suspension, requisite safeguards have been
provided to protect the interest of the elected representatives of
the people and that is why the holding of a preliminary enquiry, in
accordance with the procedure laid down in Rule 20 and then the
consideration of the report of the preliminary enquiry by the State
Government so as to find out as to whether a prima facie case has
(Downloaded on 28/06/2021 at 08:47:15 PM)
(18 of 31) [CW-6485/2021]
been made out against the elected representative concerned or
not, have been made conditions precedent before an order of
suspension can be passed. It was further observed by the Full
Bench that a preliminary enquiry by the Collector is undoubtedly a
safeguard against whimsical, capricious or mala fide exercise of
power of suspension by the State Government.
30. The Division Bench in Jan Mohd. case (supra) while dealing
with Section 63(4) of the Act of 1959 held that suspension of a
Chairman or a Member of a Municipal Board pending enquiry being
an interim measure, the suspension does not result in civil or evil
consequences and it is not penal in character. Enough safeguards
have been provided in the Section so that no arbitrary, capricious
or mala fide suspension may take place. The Division Bench while
upholding sub-section (4) of Section 63 of the Act of 1959 set
aside the judgment passed in Ajmer Singh Yadav's case (supra)
wherein learned Single Judge had held that before suspension,
obtaining of the explanation and its consideration is essential.
Section 63(4) of the Act of 1959 is para materia with Section
39(6) of the Act of 2009.
31. It is contended by learned counsel for the petitioner that
proviso to sub-section (1) of Section 39 of the Act of 2009
provides that an order of removal shall be passed by the State
Government after enquiry and after member concerned has been
afforded an opportunity of explanation. It is argued that the
proviso would by implication apply to a preliminary enquiry and
opportunity of explanation is required to be given to the member
concerned.
(Downloaded on 28/06/2021 at 08:47:15 PM)
(19 of 31) [CW-6485/2021]
32. We would like to clarify that proviso to sub-section (1) of
Section 39 of the Act of 2009 does not apply to a removal on the
grounds mentioned under sub-clauses (c) or (d) of sub-section (1)
of Section 39 of the Act of 2009. As it is evident from the plain
reading of sub-section (3) of Section 39, which provides that a
member may be removed on the grounds under clauses (c) or (d)
and it is only after conducting an enquiry by an Enquiry Officer of
the rank of District Judge whereas, under proviso to sub-section
(1), after conducting enquiry and affording an opportunity of
explanation to the member concerned, the State Government can
pass an order of removal. Sub-section (6) of Section 39 does not
provide for any explanation before passing an order of suspension.
In Rajaram Gurjar Versus State of Rajasthan & Ors.: 2020 SCC
OnLine Raj 268, Single Judge of this Court has held that Section
39(6) of the Act of 2009 does not contemplate that any show
cause notice is required to be given or an explanation is required
to be called from the member of municipality.
33. On plain reading of Section 39(6) of the Act of 2009, it is
evident that it does not provide for considering any explanation
before passing an order of suspension. It merely empowers the
State Government to place a Member under suspension against
whom proceedings have been commenced under this Section until
conclusion of the enquiry and passing of the final order.
34. Since the Division Bench and the Full Bench have held that
the order of suspension is an interim measure and it has never
been the intention of the Legislature to provide two opportunities
for providing explanation i.e. one before passing the order of
suspension and the other before framing of the charges, we feel
(Downloaded on 28/06/2021 at 08:47:15 PM)
(20 of 31) [CW-6485/2021]
inclined to accept the submissions of learned Advocate General
that it has not been the intention of the Legislature to grant pre-
decisional hearing to the Corporators before he/she is suspended
and that it is not the requirement of the Act of 2009 to afford
hearing or explanation before passing the order of suspension. We
accordingly hold that a person is not required to be heard before
passing of suspension order.
35. The next ground for challenge to the suspension order is that
the order was passed in hot haste and that no enquiry was
initiated against the petitioner.
36. It is contended by learned counsel for the petitioner that the
Enquiry Officer issued notices on 05.06.2021 and asked the
petitioner to appear on the same day at 3.00 p.m. The said notice
was received at 3.08 p.m. and therefore, the petitioner requested
for the next working day i.e. 07.06.2021 to file her reply. The
Enquiry Officer instead of giving a reasonable time asked the
petitioner to appear in the office by 2.00 p.m. on 06.06.2021,
which happened to be Sunday. It is contended that 'reasonable
time' was not given to the petitioner, which is in violation of the
principles of natural justice. Reliance in this regard has been
placed on State of Jammu & Kashmir Versus Haji Wali
Mohammad: AIR 1972 SC 2538; Punambhai P. Barot Versus
Chairman and Managing Director: MANU/GJ/0645/2001. The
Gujarat High Court in Punambhai P. Barot (supra) has held as
under:
"It may also be mentioned that the show cause
notice (Annexure : E) dated 9.9.1991 against proposed
punishment has also violated the principles of natural
justice. At least reasonable time and opportunity should
have been afforded to the petitioner to represent against
(Downloaded on 28/06/2021 at 08:47:15 PM)
(21 of 31) [CW-6485/2021]
the proposed punishment. In this notice only two days
time was given to the petitioner from the date of receipt
of notice to make his statement. Two days time can
hardly be said to be reasonable time for submitting reply
to the second show cause notice."
37. It is argued that in hot haste without waiting for the reply,
the Enquiry Officer submitted the report. It is argued that the
Enquiry Officer was appointed to conduct the enquiry against the
three Municipal Corporators and therefore, the report submitted
by the Enquiry Officer cannot be treated as a report against the
petitioner and no action could have been taken on the basis of the
said report.
38. Learned Advocate General submits that "undue haste"
cannot be made a ground for exercising the power of the judicial
review. To buttress his submissions, he has placed reliance on
Chairman & MD, BPL Ltd. Versus S.P. Gururaja & Ors.: (2003) 8
SCC 567 wherein it was held as under:
"Undue haste also is a matter which by itself
would not have been a ground for exercise of power of
judicial review unless it is held to be malafide. What is
necessary in such matters is not the time taken for
allotment but the manner in which the action had been
taken. The court, it is trite, is not concerned with the
merit of the decision but the decision making process.
In absence of any finding that any legal malice was
committed, the Impugned allotment of land could not
have been interfered with. What was only necessary
to, be seen was as to whether there had been a fair
play in action.
The question as to whether any undue haste has
been shown in taking an administrative decision is
essentially a question of fact. The States had devolved
a policy of Single Window System with a view to get
rid of red-tapism generally prevailing in the
bureaucracy. A decision which has been taken after
due deliberations and upon due application of mind
cannot be held to be suffering from malice in law on
(Downloaded on 28/06/2021 at 08:47:16 PM)
(22 of 31) [CW-6485/2021]
the ground that there had been undue haste on the
part of the State and the Board."
39. The judgment of State of Jammu & Kashmir (supra) relied
upon by the learned counsel for the petitioner was a case where
24 hours notice was given for dismantling the structure. The said
notice was held to be bad in law. In Punambhai P. Barot (supra)
two days time was given to submit reply to the second show cause
notice. It was held that reasonable time was not given. On facts of
the present case, the above citations do not have any applicability
as only preliminary enquiry was being conducted and petitioner
was only asked to submit her response.
40. The contention of learned counsel for the petitioner that the
entire enquiry was conducted in hot haste on Saturday and
Sunday during Pandemic and that the enquiry was not initiated
against her, cannot be made a ground for setting aside the order
of suspension more particularly because in the complaint also,
there is a specific allegation against the petitioner of using
indecent language against the Commissioner and the same is
reflected in the FIR filed by the Commissioner. In the evidence
given before the Enquiry Officer, the Commissioner has stated that
the petitioner has called the Corporators and that he informed the
petitioner that he has to attend a meeting with regard to
Pandemic, summoned by the Additional Chief Secretary but, he
was not permitted to leave the chamber. He has levelled specific
allegation against the petitioner and has also alleged that his
personal staff and gunman were also not permitted to enter into
the chamber to save him and that it was all pre-planned by the
petitioner. The order of suspension has been passed after
(Downloaded on 28/06/2021 at 08:47:16 PM)
(23 of 31) [CW-6485/2021]
considering the preliminary enquiry report and after due
application of mind, hence, the same cannot be held to be
suffering from malice in law on the ground that there has been
undue haste on the part of the State. The judgment Chairman &
MD, BPL Ltd. (supra) would apply to the facts of this case, hence,
the objection with regard to undue haste in passing of the
suspension order cannot be sustained.
41. The next ground for challenge is that the Enquiry Officer was
of a rank, which was lower to the rank of the complainant.
42. It is contended by learned counsel for the petitioner that an
Enquiry Officer was appointed by the Director and Special
Secretary, General Administrative Department, Government of
Rajasthan, on 04.06.2021. The Enquiry Officer, who happens to be
a State Service Officer of the Rajasthan Administrative Services
and junior in the rank to the complainant, could not conduct the
enquiry. In this regard, reliance has been placed on V. Abusali
Versus The Commandant and Ors.: MANU/KE/0178/1993 and
also on M.L.L. Kumar versus The Divisional Manager, A.P.S.R.T.C.
Cuddappah and Ors.: MANU/AP/0079/1989, wherein it was
held by the High Court of Andhra Pradesh that when a person who
gave complaint and evidence before him was an officer
immediately superior to him then enquiry should not have been
conducted by officer who was subordinate to complainant himself
particularly when superior officer is also witness in the case.
43. With regard to the above, learned Advocate General
contended that it was only a 'fact finding enquiry' and has placed
on record Annexure-R/14, a notification issued by the Local Self
Government dated 19.03.2020 wherein for the post other than
(Downloaded on 28/06/2021 at 08:47:16 PM)
(24 of 31) [CW-6485/2021]
Assistant Accounts Officer Grade-II for every Municipality Deputy
Director Regional concerned is the Chairperson and the
Chairperson of the Municipality is the Member. It is argued that as
per Section 39 of the Act of 2009, enquiry can be conducted by
Officer of State level services.
44. We are of the considered view that judgments V. Abusali
(supra) and M.L.L. Kumar (supra) have no applicability to the facts
of this case. Those were cases where enquiry was conducted by
the Subordinate Officer and in pursuance thereof, the delinquent
was removed whereas in the present case, enquiry is yet to be
conducted by an Officer of the level of District Judge. The
preliminary enquiry was conducted by State level service officer,
which is the requirement of Section 39 of the Act of 2009. The
challenge on the ground of Enquiry Officer being of a lower rank
than the rank of the complainant, cannot thus be sustained.
45. Yet another ground for challenging the suspension order is
that the suspension of the petitioner from the post of Mayor has
affected her reputation. It is contended by learned counsel for the
petitioner that right to reputation is a personal right guaranteed
under Article 21 of the Constitution of India as held by the Apex
court in Umesh Kumar Versus State of Andhra Pradesh & Ors.:
(2013) 10 SCC 591. We are not inclined to accept the said
argument as there is specific allegation against the petitioner that
she used indecent language against the Commissioner, who
happens to be an IAS Officer. He was manhandled in her presence.
Since his reputation was affected, plea of petitioner that her
reputation has been affected by the suspension order, cannot be
taken note of.
(Downloaded on 28/06/2021 at 08:47:16 PM)
(25 of 31) [CW-6485/2021]
46. Yet another ground for challenge is that Government has
unbridled powers and in exercise of the same, Government has
discriminated with the petitioner.
47. It is contended by learned counsel of the petitioner that
Alwar Chairperson who slapped the C.O., was not suspended,
which goes to show that the State Government has discriminated
with the petitioner. To which, learned Advocate General contends
that in the complaint filed by the Alwar Chairperson, the police has
submitted a negative final report. We are not inclined to entertain
the said objection, as each case has to be tested on its own facts
and circumstances. The entire facts of that case are not before us,
hence, we are not in a position to hold that discrimination has
been done with the petitioner.
48. Last but not the least ground pertains to the facts of the
case. It is contended by learned counsel for the petitioner that the
complaint was filed against the members and also the FIR was
lodged against the members, and there was not enough material
to suspend the petitioner. It is contended that many persons were
transferred on the same day to prevent truth to surface and
Personal Security Guards were also sent back to the department
on the same day. It is also contended that the Enquiry Officer has
wrongly inducted the petitioner even when in none of the
statements, presence of the petitioner was mentioned.
49. Learned counsel for the petitioner argued that the facts of
the case ought to be looked into to ascertain whether the same
would fall within the definition of "misconduct in the discharge of
duties" and "any disgraceful conduct". It is contended that the
complainant in this case happens to be Commissioner of the
(Downloaded on 28/06/2021 at 08:47:16 PM)
(26 of 31) [CW-6485/2021]
Municipal Corporation Jaipur Greater, who lodged a complaint
against three Corporators. It was only mentioned in the complaint
that the petitioner used indecent language at a high pitch and
levelled personal allegations on the Commissioner and the
Corporators also used the same language, on which he tried to
leave the chamber and the Corporators stopped the Commissioner
from leaving the meeting room and forced him to agree for an
alternative arrangement to be made for sanitation, collection and
disposal of the municipal waste. It is further contended that the
Commissioner also lodged an FIR for the same incident wherein
also he has sought an action to be taken against the three
Corporators, namely, Mr. Ajay Singh, Mr. Shankar Sharma and Mr.
Paras Jain. It is contended that in the FIR also, there was no
request for any action to be taken against the Mayor.
50. It is also contended that the said provisions results in
retaining of unbridled powers in the State Government for picking
and choosing persons at its whims and fancy for punishing and
thus, resulting in political abuse and misuse of power against the
members of opposite political parties. In this regard, reliance has
been placed on Geeta Devi Narooka Versus State of Rajasthan &
Ors.: 2008 (1) WLC 261, Pradeep Hinger Versus State of
Rajasthan & Ors.: RLW 2008 (1) Raj. 456, Jagdish Narayan
Sharma & Ors. Versus State of Rajasthan & Ors.: AIR 1995 Raj.
155, Baldev Singh Gandhi Versus State of Punjab & Ors.: AIR
2002 SC 1124 and Tarlochan Dev Sharma Versus State of
Punjab: AIR 2001 SC 2524.
51. Learned Advocate General appearing for the State has
contended that in the statement given by the Commissioner, who
(Downloaded on 28/06/2021 at 08:47:16 PM)
(27 of 31) [CW-6485/2021]
happens to be a Senior IAS Officer, has mentioned that the
petitioner used indecent language and also levelled personal
allegations against him. It is contended that the Company was
allotted the work of collection of garbage from the houses and its
disposal. The stay order was obtained by the Company from the
High court and for that reason, it was not possible to delegate the
said work to someone else. It is also contended that the petitioner
and the Corporators at their own behest were forcing the
Commissioner to agree for an alternative arrangement, which in
fact tantamount to contempt of the order of the High Court. It is
also contended that the objective satisfaction of the State will
have to be taken into consideration and the Court cannot impose
its discretion. The Court can only examine whether such
satisfaction has been arrived at objectively or arbitrarily. Learned
Advocate General has placed reliance on State of Tamil Nadu v. P.
M. Belliappa (supra).
52. It is also contended that the Commissioner in his statement
before the Enquiry Officer has stated that the petitioner shouted
at him and used indecent language and levelled personal
allegations against him. It was alleged that in presence of the
petitioner, he was manhandled and his security staff was not
permitted to enter the Mayor's chamber. He has also stated that
there was an interim order passed by the High Court in favour of
the Company and that he was to attend the meeting with regard
to Pandemic at 5:00 p.m., but was restrained from leaving the
chamber and was put under undue pressure to sign the document
for an alternative arrangement. From the statement, it is evident
that manhandling was done in the presence of the petitioner and
(Downloaded on 28/06/2021 at 08:47:16 PM)
(28 of 31) [CW-6485/2021]
the petitioner also used indecent language at a high pitch and the
Commissioner has specifically alleged that the same was done at
her behest. Considering the facts and circumstances of the case
and after having perused the preliminary enquiry report & the
statement of the Commissioner, the State Government was well
within its authority to initiate judicial inquiry and at the same
time, suspend the petitioner.
53. The judgment cited by learned counsel for the petitioner
Geeta Devi Narooka (supra) was a case where nothing adverse was found against the petitioner in the preliminary enquiry and proceedings were ordered to be dropped by the Minister. The High Court has held that on the face value of the charges, same were not of such nature which warrants suspension during pendency of the enquiry. It was also held that when a qualified Executive Officer, well acquainted with municipal law is posted in the municipality and who is under obligation to put a note of dissent under Section 68 of the Act of 1959 where the proceeding or order of any Committee, Chairman and Vice Chairman or any member is inconsistent with the provisions of this Act and Rules made thereunder or detrimental to interest of the Board, and send the same to the District Collector to prevent the aforesaid illegalities and irregularities. In that case, no note of dissent was put up. In Pradeep Hinger (supra), the Court held that there is no reason available for suspending the petitioner from the post of Chairman. The order of suspension was quashed and set aside. In Jagdish Narayan Sharma & Ors. (supra), no preliminary enquiry was conducted, hence, the order of suspension was set aside. In Baldev Singh Gandhi (supra), the Apex Court held that criticism of (Downloaded on 28/06/2021 at 08:47:16 PM) (29 of 31) [CW-6485/2021] the house tax assessment list by the member cannot be termed as misconduct. We are of the considered view that the facts of each case has to be adjudged on the merit of that case alone.
54. In Tarlochan Dev Sharma (supra), the Apex Court held that grounds of removal of President of Municipality must be clearly made out. The said judgment cannot be applied on facts as it is not a case of removal and is merely a case of suspension of the petitioner.
55. The Division Bench of Madras High Court in State of Tamil Nadu v. P. M. Belliappa: 1985 LIC 51 has held as under:
"when a matter of suspension is left to the objective satisfaction of the Govt., the normal rule is that it is not necessarily justiciable before the High Court and the Court cannot look into the question as to whether the materials are adequate or inadequate from its point of view. But, the factum of satisfaction can always be questioned before the Court and the party challenging the order of suspension can always show before the Court that the professed satisfaction is no satisfaction at all either because it was formed on extraneous or irrelevant circumstances or that there was a total lock of application of mind to the question as to whether it is necessary or desirable to suspend the Officer. The facts and circumstances to be considered must be those which existed on the date of the conclusion of the opinion or arriving at the satisfaction and actually weighed with the authority while passing the impugned order and facts which have come to transpire subsequently or which have been subsequently unearthed as existing even at the time of the conclusion or formation of opinion, though not considered and taken into account, cannot at all be relied on to support the impugned order. While the Court can examine as to whether the opinion or satisfaction was formed at all, Court cannot substitute its own satisfaction for that of the authority. Though the materials placed may not satisfy the Court, the task of the Court is only limited to an investigation as to whether there was any foundation of fact at all or whether irrelevant and extraneous circumstances have weighed with the authority while passing the impugned order. The fact that different formation of opinion or satisfaction is possible for the Court on the very same facts and circumstances is not a ground to quash the order in question. May be, the reason, given are in general terms. Yet the Court should (Downloaded on 28/06/2021 at 08:47:16 PM) (30 of 31) [CW-6485/2021] not exclude reasons which may fairly fall within them, allowance being made for difficulties in expression."
It is, therefore, clear that so far as the facts are concerned, objective satisfaction of the State will have to be taken into consideration and the Court cannot impose its discretion. However, it should always be examined whether the satisfaction has been arrived at objectively or arbitrarily.
56. We are of the considered view that the decision has been taken after due deliberation and application of mind and after considering the preliminary enquiry report, the same cannot be said to have been passed arbitrarily. The suspension order cannot be said to be passed in malice to oust the BJP Corporator as BJP Corporator, has been replaced by the BJP Corporator on the post of Mayor. On facts also, we do not find any ground for setting aside the suspension order.
57. In view of the foregoing conclusion, we do not find any force in the instant writ petition and the same is dismissed. While upholding the validity of Sections 39(1)(d)(ii) and 39(1)(d)(iii) of the Act of 2009, we do not find any ground to set aside the order of suspension passed by the appropriate authority. However, taking note of the facts and circumstances of the case that the petitioner was elected as a Mayor, we deem it proper to direct the State Government to expedite the judicial enquiry initiated against her and the same be completed as far as possible within a period of six months from the date of receipt of a certified copy of this order.
(Downloaded on 28/06/2021 at 08:47:16 PM)
(31 of 31) [CW-6485/2021]
58. It is further made clear that any observations made herein above will not have any bearing on the judicial enquiry to be conducted against the petitioner.
(CHANDRA KUMAR SONGARA (V.J.)),J (PANKAJ BHANDARI (V.J.)),J Sunil Solanki/PS (Downloaded on 28/06/2021 at 08:47:16 PM) Powered by TCPDF (www.tcpdf.org)