RAJESH BALIA,J. - (1.) HEARD learned Counsel for the parties.
(2.) PETITIONER was elected as a Member from Ward No. 15 of Municipal Board, Padampur in the election held in August, 1995 and was thereafter also elected as Chairperson of the Board. The impugned order was made to remove the petitioner from Chairperson as well as membership of the Board and she was declared disqualified to contest any election for five years, which reads as under: .........[vernacular ommited text]........... The petitioner has challenged above order through this writ petition. It was contended by Mr. S.L. Jain, learned Counsel for the petitioner that the order has been made in violation of statutory provisions. It has been contended that enquiry has been conducted in respect of an allegation falling under Sec.63(1)(d), obviously because the charges levelled against him does not fall within clause (a)(b) and (c) of Section 63(1) of the Act. For enquiry into such charges an enquiry can be conducted only by a judicial officer of the rank of District Judge. The enquiry into charges has been conducted by the Sub -Divisional Officer, who could not in law be entrusted with such enquiry and State Govt. could not have acted on such findings recorded by any authority who is not authorised under law to make such enquiry. In that connection it was also urged that if for any reason it is held that enquriy is not vitiated, then too the findings recorded by the SDO/Collector as an enquiry officer do not enjoy the same status as the findings recorded by a judicial officer enjoys under Sec.63(2) of the Act. Such findings by enquiry officer is bound to be considered by the State Govt. on merits to reach its own conclusion. It is also urged that the order has been made in breach of principles of natural justice inasmuch as before making the order no opportunity of hearing was afforded to the petitioner to explain his conduct even if the charges levelled were found to have been proved before the Govt., the Authority empowered to make the order under Section 63 of the Rajasthan Municipalities Act, 1959. It has also been contended by the learned Counsel for the petitioner that the impugned order is also not a speaking order inasmuch as it does not disclose for what charges of misconduct the order of removal and disqualifying the petitioner from contesting future elections has been made.
(3.) MR . Rajesh Joshi, learned Counsel appearing for respondent No. 1, has contended firstly that because no finding on the competence of SDO to act as enquiry officer has been recorded by the Court in earlier writ petition filed by the petitioner against order of suspension, though such grievance was raised by the petitioner, the petitioner is debarred from raising such plea in this petition on the principles of constructive res judicata. It was also urged that since enquiry envisaged under Section 63(2) is a judicial enquiry to be conducted by a judicial officer of the rank of a District Judge and the findings recorded in such enquiry is binding on the State Govt. inasmuch as the State Govt. has to make an order in conformity with those findings, the principles of natural justice requiring furnishing a copy of the enquiry report and findings to the concerned member of the Board are by necessary implication excluded. At any rate merely because of non -supply of the enquiry report it cannot be inferred that any prejudice has been caused to the petitioner on account of non -supply of the enquiry report unless the petitioner establishes that any prejudice has been caused, the order passed on the basis of such enquiry cannot be set aside. He places reliance on the decision of this Court in Smt. Sushilla Dugar v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 1129/2000, decided on July 28, 2000. It will be appropriate to refer to the provisions of Section 63 in order to appreciate and analyse the contentions raised before me by the respective parties. 63. Removal of members. -(1) The State Government may, subject to the provision, of Sub -sections (2) and (3) remove a member of a board on any of the following ground namely: (a) that he has absented himself from the meetings of the board from more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period, without leave of the board: Provided that the period during which such member was in 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 61. (c) that after his election he has incurred any of the disqualification mentioned in Section 18 or Section 26 or has ceased to fulfill the requirements of Section 24. (d) that he has - (i) been guilty of misconduct in the discharge of duty or (ii) been guilty of any disgraceful conduct, or (iii) become incapable of performing his duties as a member, or (iv) otherwise flagrantly abused in any manner his position as such member: Provided that an order of removal shall be passed by the Government after such enquiry as it considers necessary to make either itself or through such officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. (1A) The power conferred by Sub -section (1) may be exercised by the State Govt. of its own motion or upon the receipt of a report from the board in that behalf or upon the facts otherwise coming to the knowledge of the State Govt.: Provided that, until a member is removed from office by an order of the State Govt. under this section, he shall not vacate his office and shall, subject to the provisions contained in Sub -section (4), continue to act as, and to 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. (2) 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 Govt. shall draw up a statement setting out distinctly the charge against the member and shall send the same for inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Govt. for the purpose. (3) The judicial officer so appointed shall proceed to inquire into the charge in the prescribed manner, 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 alongwith such findings to State Govt., which shall thereupon pass orders in conformity with those findings. (4) 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 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. (5) Every order of the State Govt. 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. ;