- (1.) THE petitioner was elected as a Chairman of the Municipal Board, Nawalgarh in the general elections held in 1990. He was suspended on 5. 8. 92.
(2.) THE submission of the learned counsel for the petitioner is that the order of suspension is illegal and without jurisdiction because the proceedings were not commenced as contemplated under Sec. 63 (4) of the Rajasthan Municipalities Act, 1959. It is also submitted that a copy of the enquiry report was not given to him and that the charge in the notice were ditferent and vague and that the action is mala fide and in the order the enquiry is contemplated against the Municipal Board and against the Chairman and there is no application of mind since the explanation submitted by the petitioner has not been considered. The facts of the case are that certain complaints were made against the -petitioner and the Minister concerned directed to make an enquiry on July 20, 1991. It appears from a perusal of the file that the complaints continued to be made from different corners against the petitioner. In accordance with the directions of the Minister, the Assistant Director, Local Self Government has written a letter to the Collector, Jhunjhunu for getting preliminary enquiry conducted by the S. D. O. Nawalgarh. It appears that along with this letter certain enclosures were made. The submission of the learned counsel for the petitioner is that this order has been signed by the Assistant Director, who is no a competent authority and that the enquiry has been contemplated against the Municipal Board and not agaiast the Chairman and instead of authorising the Collector, the enquiry is sought to be made from the S. D. O Nawalgarh. The Collector, Jhunjhunu in pursuance of the said letter of the Assistant Director, has written a letter to the S. D. O. that an enquiry has to be made against the Chairman, Municipal Board, Nawalgarh and the copy of the complaint/charges was also sent along with that letter, while was received from the Minister concerned. A notice was issued to the petitioner on 13. 11. 1991 fixing the date for 16. 11. 1991. The said authority took evidence of number of persons and after taking enquiry, sent the report dated 4. 1. 1992 to the Collector, in which it was found that certain allegations have been proved, which others are partly proved. The enquiry report was sent by the Collector to the Assistant Director on 72. 92. The Deputy Secretary, Government of Rajasthan thereafter issued a notice on 26. 3. 1992 to the petitioner under Section 63/64-A of the Act and a copy of the charges proved was also sent along with the notice. The petitioner submitted reply to the show cause notice wherein it was submitted that there was no valid preliminary enquiry conducted since the material particulars were not supplied to him and a copy of the complaint was also not given to the petitioner. After getting the preliminary enquiry conducted in which some charges against the petitioner were found proved and making the mind that further action is to be taken and issuing notice to the petitioner it was decided that the petitioner should be suspended. In accordance with the order of suspension, which was ultimately passed on 5. 8. 92, the order was issued on 6. 8. 92 in which Shri Jugal Kishore Saini assumed the charge as Acting Chairman of the Municipal Board. The submission of the learned counsel for the petitioner is that in accordance with the judgment of this Court in Amar Singh Yadav V/s State of Rajasthan (1) the proceedings can be said to have commenced only after the report of the enquiry under proviso to sub-sec. (1) of Sec. 63 of the Act is received and the petitioner is afforded an opportunity to explain and the State Govt. has applied its mind and has decided to proceed under sub-sec. (2) of Sec. 63 of the Act against him. It is. submitted that since there was no valid enquiry under proviso to sub-section (1) of Sec. 63 of the. Act, then the power under Section 63 (4) cannot be exercised. A dispute was also raised as to which is the stage at which it could be said that the proceedings have commenced. The various stages contemplated are as under- "1. There may be some complaint or other material against a particular elected member which has been received by the Government; 2. On the basis of the said complaint/material, a preliminary enquiry is directed by the Government to be conducted; 3. The Officer who has to conduct the enquiry is designated 4. The designated officer issues the notice to the person against whom an enquiry is sought to be conducted and the relevant material is also provided; The person against whom the enquiry is conducted Submits his explanation and the designated officer also collects such evidence or information as may be necessary for completion of enquiry; The enquiry report is sent to the Government by the designated officer;
(3.) THE Government on the basis of the said report comes to the conclusion that the action in accordance with sub-sec. (2) of Sec. 63 is to be taken and that before the matter is sent to the Judicial Officer a decision is taken to suspend the offect under Sec. 63 (4) of the Act; Finally, the matter is sent to the Judicial Officer along with the statement setting out distinctly charges against the member and sent for enquiry and finding by the Judicial Officer of the rank of District Judge"; 5. The matter with regard to the stage when the proceedings commence, was considered by a Division Bench of this Court in Ugamsee Modi Vs. State of Rajasthan (2) wherein it was held that if there was some enquiry by certain officer against a member anda report is submitted by the Officer of the Government and the Government calls for explanation in respect of the allegations made against him then it can hardly be contested that the proceedings have not commenced. In this case, report was submitted to the Government and the petitioner was called upon to explain the allegations made and thereafter the action of suspension was taken. 6. In Mohan Lal V/s. State of Rajasthan (3) it was held that the intention of the Legislature was that a preliminary, enquiry under proviso to subsection (1) of Sec. 63 should be under taken. before action under sub-section (2) is taken for removal of a member or a Chairman on the grounds specified in Sub-section (1) (b) of Sec. 63 of the Act. 7. The Full Bench of this Court in Bhuralal Vs. State of Rajasthan (4) has also considered the stage with regard to suspension of Panch/sarpanch under the Rajasthan Panchayats Act, 1953 and it was held: "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 representative 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 been made out against the elected representative concerned or not, have been made conditions precedent before an order of suspension can be passed. It may be observed that a preliminary enquiry by the Collector is undoubtedly a safeguard against whimsical, capricious or mala fide exercise of the power of suspension by the State Government. Moreover, after the preliminary enquiry report is carefully considered by the State Government and it is of the view on the basis of the material placed on the record that there is some foundation for the charges and that a primafacie case is made out against the Sarpanch concerned, then there is no reason why the enquiry should not be considered to have begun, so as to enablethe State Government to exercise the power of temporary removal of the delinquent public office holder. As a result of the consideration of the report of the preliminary enquiry, the State Government may come to a prima facie conclusion that further continuance of the Sarpanch in office may not be in the public interest or in the interest of the Panchayat. Moreover as pointed out by Agrawal, J. in Ramchandra's case, such a protective measure like suspension may become necessary to prevent the person concerned from misusing his offence to cause further harm to the public interest or the interests of the Panchayat. What is required is that the State Government should carefully scrutinise the preliminary enquir report submitted to it and form a prima facie opinion whether the charge have, a reasonable basis and should be enquired into or they should be dropped. If the Government decide to drop the charges the question of suspension of the Sarpanch would not arise. But if the Government comes to the conclusion that a prima facie case is made out against the Sarpanch and the State Government is further of the view that the charges are serious enough and the Sarpanch should be temporarily removed from holding the elective office to prevent him from further acting prejudicially at the stage the State Government should be free to pass an order of suspension in exercise of its supervisory authority. In such circumstances, it may be necessary or even desirable to save the Panchayat property or its funds from being ruined or misappropriated. We would not be justifying in holding that because the State Government had waited so long until the report of the preliminary enquiry was received and considered by it, could still wait for some more time until the charge sheet and show cause notice are served upon the delinquent Sarpanch and he files a reply thereto and that reply is considered by the State Government before proceeding to appoint an Enquiry Officer. Such an interpretation would unreasonably delay the maters which may require quick and serious action on the part of the State Government as a result of its consideration of the preliminary enquiry report and leave such Emitters to utter uncertainty. The giving of a show cause notice to the person sought to be suspended before exercising the power of suspension would result in postponement of the exercise of the said power and would rob the power of its-object and efficacy. Moreover, the giving of the show cause notice to the person sought to be suspended would only involve duplication of the process of enquiry because the charges which would form the basis of the order of suspension are the same which are subject matter of the enquiry conducted against the person to be suspended. There is no scope for the applicability of the principle of audi alteram partem at the stage of passing an order of suspension during the pendency of an enquiry and such a requirement cannot be read into the provisions contained in sub-sec. (4a) of Sec 17. In some cases, the Panchas or Sarpanchas may try to evade service Of show cause notice and the statement of charges. Some others may take unreason ably long time in filing their replies on some pretext or the other like asking for inspection of some documents or records, though relevant or irrelevant, or on the basis of medical certificate or otherwise. If a prima facie) case of embezzlement or misappropriation is made out against a Sarpanch, it would be prejudicial to the interest of the Panchayat and result in conside-rable danger to the funds of the Panchayat in allowing him to remain in custody of the funds of the Panchayat even after a prima facie case is found to be established against him. In a case of tempering with the record of the Panchayat even after a prima facie is made out against the Sarpanch, as a result of preliminary enquiry how could the records of the Panchayat be allowed to remain in the custody of such a person? If the Sarpanch becomes incapable of acting for some reason or otherwise or in case the Sarpanch refuses to act or neglects in the discharge of his duties, then the State Government would be justified in exercising its power of supervisory control if it proceeds to pass an order suspension of the Panch or Sarpanch concerned, so that the work of the Panchayat may not suffer in future. Similarly, when a prima facie Case of misconduct or disgraceful conduct is made out against a Sarpanch of serious nature after a careful scrutiny of the preliminary enquiry report submitted by the Collector, the State Government would be justified in passing an order of suspension in exercise of its power of supervisory control. " 8. The submission of Mr. Rastogi on behalf of the respondents is that when preliminary enquiry is completed, the proceedings commence. It is submitted that the view taken in 1986 RLR 16 is not in consonance with the Division Bench decision. In order to examine the correctness of submissions of Mr. Rastogi, it is necessary to reproduce the provisions of sub-section (4) of Section 63 of the Act : "63 (4): Notwithstanding the foregoing provisions of his section, the State Government may place under suspension a member against whom proceedings have been commenced under the section until the conclusion of the enquiry 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 provisions of Sub-sec. (4) have over-riding effect on the provisions of pub-secs. 1 to 3. According to the scheme of the Act, the power to remove a Mtm-ber is conferred under sub-section (1) of Sec. 63 which has to be exercised subject to the provisions of sub-sec. (2) and sub-sec. Thus sub-sec. (2) and (3) have an over riding effect on sub-section (1 ). The proviso to sub-sec. (1) provides that an order of removal shall be passed by the State 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. Proviso to sub-section (1) puts an embargo even on exercise of powers under sub-section (1 ). Sub-section (1-A) of Sec. 63 provides that the power under subsection (1) can be exercised by the State Government of its own motion or on receipt of a report from the Board in that behalf or on the facts otherwise coming to the knowledge of the State Government. Thus the circumstances where the power could be exercised under sub-section (1) have further been circumscribed. The proviso to sub-section (1 A) provides that until a member is removed from the 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 Sec. (4) continue to act and to exercise all the powers and perform all duties of a member, and shall as such be entitled to all rights and be subject to all liabilities of a member under this Act. This proviso also visualises the position where a member is suspended under sub-See. (4) and in that csse the said member shall not perform the duties as such. The effect of this proviso is also that the provisions of sub-section (4) shall have an over-riding effect. ;