Ranawat, C. J. - (1.) THIS is an application by Mohanlal under Art. 226 of the Constitution challenging the validity of Government order dated the 24th of October, 1962 by which the petitioner was suspended from his office of Chairmanship of the Sardarshahar Municipal Board.
(2.) THE facts of this case are not in dispute. Briefly they be put thus. THE petitioner Mohanlal was elected member of the Sardarshahar Municipality at general election held in May, 1961 and he was subsequently elected as Chairman of the said Municipality. Certain complaints against the petitioner were received by the Government and a preliminary enquiry was held by the Dy. Director of Local Bodies in the month of March, 1962 and by the Assistant Director of Local Bodies in the month of October, 1962 after the post of the Deputy Director had been abolished. An interim report was submitted by the Assistant Director of Local Bodies to the Government on the 22nd of October, 1962. THE statement of the petitioner was recorded regarding certain allegations against him by the Assistant Director on the 20th of October, 1962 before he submitted his report to the Government. THE Government ordered suspension of the petitioner on the 24th of October, 1962 and a formal order in this behalf was communicated to the petitioner on the 1st of November, 1962. THE petitioner has filed this [writ petition on the 6th of November challenging the validity of the order of his suspension on the ground that no enquiry had commenced against him under sec. 65 (10) read with sec. 63 (2) of the Rajasthan Municipalities Act, 1959. THE petitioner also alleged that he did not receive any information about any inquiry against him till he received the order of his suspension. In the reply that has been filed by the Government, it is stated that a preliminary report was submitted by the Assistant Director of Local Bodies to the Government on the 22nd of October, 1962 and the Government was pleased to order the petitioner's suspension on the 24th of October, 1962 and also for holding an inquiry against him. A copy of the record of the proceedings in this behalf has been placed on the record and it appears at page 39 of the paper-book. It is further stated that the Assistant Director of Local Bodies submitted his final report to the Government on the 28th of November, 1962 and on that report show cause notice was ordered to issue against the petitioner. In short, the reply is that an inquiry was ordered against the petitioner simultaneously with the order of his suspension. Mr. Rastogi for the petitioner has contended that for the removal of a chairman of a municipal board, proceedings under sec. 65 (10) contemplate that the Government should act on the grounds mentioned in sec. 65 (l) (d) by adopting the procedure laid down under sec. 63 (2) and before the Government makes up its mind to remove a chairman, it is not open to the Government to order his suspension and in the instant case, it is stated, the Government has not so far made up its mind whether or not to remove the petitioner from his office of chairmanship. Reference in this behalf has been invited to the reply filed by the Government in which it is mentioned that action regarding appointment of a judicial officer shall be taken on receipt of the reply of the petitioner and on the Government deciding whether or not to take action against him for his removal. In support of this contention, Mr. Rastogi has vehemently urged that proviso to sub-sec. (1) of sec. 63 of the Act is not applicable to the inquiries under sec. 65 (10) for removal of a chairman of a municipal board. He has also urged that in the meaning of sub-sec. 4 to sec. 63 inquiry against a chairman of a municipal board is commenced on issue of a show cause notice to him after proceedings are taken under sub-sec. 2 by appointment of a judicial officer for conducting inquiry. He has thus argued that the order of suspension of the petitioner is premature and is, therefore, not in accordance with law. He has prayed that the order of suspension of the petitioner be vacated and the matter should be left to the Government to make a proper order in this behalf in case an inquiry under sub-sec. 2 of sec. 63 is instituted by appointment of judicial officer. Sec. 65| (10) lays down, "every chairman and every vice-chairman shall be removable from his office as such chairman and vice-chairman on any of the grounds specified in clause (d) of sub-sec. (1) of sec. 63, and the provisions of sub-sec. (2) to (5) of that section shall apply. " In sec. 63 (1) (d) the following grounds have been mentioned : - » " (d) that he has, - (i) been guilty of misconduct in the discharge of his duties, or (ii ). . . . . . . . . (iv) otherwise flagrantly, abused in any manner his position as such member. " A proviso appears after clause (d) in sec. 63 (1) to the following effect : "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 Officer or authority as it may direct and after the member concerned has afforded an opportunity of explanation. " The contention of the learned counsel for the petitioner is that inquiry under the proviso is not contemplated in the case of removal of a chairman and an inquiry in his case can only commence under sub-sec. (2) of sec. 63. Sub-sec. (2) of sec. 63 of the Act provides : - " (2) Notwithstanding anything contained in sub-sec. (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-sec. (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 inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. " It is evident, by scrutiny of sub-sec. (2) of sec. 63. , that an inquiry under the proviso to sub-sec. (1) of sec. 63 is contemplated under sub-sec. (2) of sec. 63 which is applicable to the case of inquiry for removal of a chairman under sec. 65 (10 ). The contention of the learned counsel for the petitioner that an inquiry under the proviso to sub-sec. (1) of sec. 63 is not contemplated in the case of inquiry regarding removal of a chairman of the municipal board is without substance. A clear answer to this is gathered from sub-sec. (2) which expressly provides for an inquiry and further action to be taken in that behalf as a result of the inquiry referred to in the proviso to sub-sec. (1 ). Mr. Rastogi had no answer to make when confronted with reference to the proviso in sub-sec. (2) to sec. 63. It is obvious that the intention of the legislature was that a preliminary inquiry under the proviso to sub-sec. (1) of sec. 63 should be undertaken before action under sub-sec. (2) is taken for removal of a member or a chairman on grounds specified in sub-sec. (l) (d) of sec. 63. In this connection, the provision of sub-sec. (4) of sec. 63 is relevant and it is applicable to the case of the petitioner by virtue of sec. 65 (10 ). It provides : - " (4) 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 board or otherwise perform the duties of a member thereof. " The issue therefore in short is whether the petitioner was suspended on commencement of the proceedings against him under sec. 63. If so. , the order of suspension cannot be held to be invalid. In Ugamsee Modi Vs. State of Rajasthan (l) a Division Bench of this Court consisting of the Chief Justice and Mr. Justice Shanghai held, "proceedings under sub-sec. (2) of sec. 63 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. " We are in agreement with the law laid down in that decision. After a complaint is received by the Government against a member or a chairman, a preliminary inquiry has to be undertaken to verify whether there is any substance in the allegations made against such person and after holding that inquiry as contemplated by proviso to sub-sec. (1) of sec. 63, if the Government decides to take action against such person, it may issue show cause notice to him and also take further action for conduct of an inquiry in accordance with the provision laid down under secs. 63 (2) (3) (4) and (5 ). Though for purposes of sub-sec. (1) of sec. 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 in the meaning of the term under sub-sec. (4) to sec. 63 only when process in ordered to issue against such person, or when the authority makes up its mind to take action. At that stage the Government makes up its mind whether or not to take action and that, in our opinion, is the stage of commencement of proceedings for purposes of sec. 63 (4 ). Coming to the facts of the instant case, it may be noted that the Assistant Director of Local Bodies submitted his interim report on the 22nd of October, 1962 to the Government and the record of the proceedings of the Government that has been submitted together with the reply shows that the Government applied its mind to the allegations and facts of the case and decided to take action against the petitioner and to suspend him even though it waited for sometime for the final report before ordering issue of a proper charge-sheet to him. In fact, no charge-sheet appears to have been drawn up till a final report was received against the petitioner from the Assistant Director of Local Bodies for although some facts were found established others still required further inquiry. After receipt of that final report, the Government issued show cause notice to the petitioner although it had decided to take action already on the interim report. Thus even though show cause notice was in fact issued on the 1st of December, proceedings commenced against the petitioner on the 24th of October, 1962 when the Government took a decision to take action against him. The order of suspension in this case was made simultaneously with the order of inquiry. 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 the determination of the' competent authority that there was material for taking action for issuing process. In this view of the matter, the order of suspension of the petitioner cannot be held to be invalid having been made simultaneously with the order of institution of inquiry against him. Much stress has been laid on the following averments appearing in the reply of the Government : "after the explanation of the petitioner is received the Government will pass orders as may be appropriate to the case whether the case is a fit one to be proceeded further by setting out a statement of charge and ordering enquiry by a District Judge or not. " It is contended that the Government has not yet made up its mind to remove the petitioner and the order of suspension is therefore premature. This contention is rather highly technical and is based on the loose language used in the reply to the writ petition. The intention of the Government can easily be gathered from the proceedings of the Government at page 36 of the paper-book and no assistance in that behalf need be taken from the aforesaid wordings of the reply. The looseness in the language is due to the fact that it is always open to the Government to drop the enquiry if it so chooses and if it is satisfied that the allegations are not well founded, but that by itself cannot be said to be a good reason to think that no enquiry had been ordered by the Government prior to that stage. It is obvious, having regard to the facts and circumstances of the case that an inquiry had been ordered against the petitioner on the 24th of October, 1962 and the order of suspension of the petitioner is therefore not invalid. The petition fails and is dismissed. .;