MISRA, J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance 1949, has been preferred by the appellant-Suresh Chandra Singhal against the judgment and order passed by the learned Single Judge in S. B. C. W. P. No. 3920/2004 (Suresh Chandra Singhal vs. State of Rajasthan and Ors.) dated 27. 09. 2004 which was heard and dismissed alongwith a batch of several other writ petitions involving common questions of law. As a consequence of the judgment and order of the learned Single Judge, the appellant who had been suspended from functioning as the Chairman of the Municipal Board, Gangapur City, was allowed to remain under suspension till the conclusion of the enquiry, which was ordered to be conducted expeditiously by the Judicial officer to whom the enquiry has been entrusted. The appellant having specified period to function as member and Chairman of the Board, is suffering each day on account of pendency of the enquiry which is yet to be concluded and hence has preferred this appeal on several grounds including the ground of delay in concluding the enquiry.
(2.) THE facts of the case in so far as it is relevant to decide the controversy involved herein is that the appellant-petitioner who had first of all been elected as a member of the Municipal Board Gangapur City, on 20. 8. 2000 was further elected as a Chairman of the said Municipal Board on 22. 8. 2000. After completion of his tenure as Chairman of the Board for approximately more than three years, a notice was issued to him on 16. 2. 2004 by the Deputy Secretary, Department of Local Self Government, Jaipur incorporating five charges against the appellant on the basis of an alleged enquiry report of the Regional Deputy Director for which explanation was sought from the appellant within a period of seven days failing which a proceeding was to be initiated under Section 63 of the Rajasthan Municipal Act 1959 (shortly referred to herein as the Act of 1959 ). The first charge levelled against the petitioner was to the effect that he had failed to take action to remove the encroachment with regard to a plot sold in auction on 29. 8. 2003. The second charge alleged that no further action was taken to remove encroachment on land of shop No. 30 and adjoining land in front of shop No. 19, 31, 32 which were let out by the Municipal Board to Jagdish Prasad Garg in 1978. The third charge was that instead of cancelling the contract for not depositing the contract amount by the contractor for Bus Parking for the year 2001-02, he allowed the contractor to pay the money by installments. The fourth charge was that he did not cancel the contract of the private buses for the year 2002-03 when the highest bidder Raju did not deposit the amount. The fifth and the last charge disclosed that the appellant did not call the monthly meeting of the Municipal Board. The petitioner on 1. 3. 04 demanded the copies of the documents, enquiry report and the complaint and submitted the reply, but thereafter the order of suspension was passed against the appellant on 9. 6. 2004. The appellant/petitioner feeling aggrieved with the order of suspension filed a writ petition being SBCWP No. 3920/2004 challenging the order of suspension on several grounds including the reason that the charges were frivolous and baseless and did not warrant an enquiry. It was also challenged on the ground that the order of suspension had been passed by the respondents without following the provisions of the Act of 1959 as the order of suspension was passed without serving the charge-sheet and statement of allegations on the appellant/petitioner nor any notice had been served upon him calling for an explanation. It was challenged further on the ground that Section 63 of the Act of 1959 empowers only the State Government to hold an enquiry and no other authority had the power to hold the enquiry and as the State Government had not passed any order for holding the enquiry, the enquiry held by the Dy. Director at the instance of the Director could not be termed as `enquiry' in terms of Section 63 (1) (a) of the Act of 1959. One of the principal contentions raised on behalf of the appellant/petitioner is that a preliminary enquiry had not been held in regard to the charges alleged and in absence of the preliminary enquiry, the order of suspension could not be held justified in terms of Section 63 of the Act of 1959.
(3.) THE learned Single Judge while dealing with the case of the appellant/petitioner alongwith other several similarly situated persons, who also were suffering the order of suspension holding different posts after having been elected on those posts, was pleased to rely upon a series of decisions of the Division Bench of this High Court and having relied upon them was pleased to hold that the consistent view of this Court on the controversy involved is that if the State Government is satisfied regarding the charges that they require a thorough and fare probe, and continuation in office of the delinquent may cause great loss to the finances of the institution, it may decide to refer those charges to a judicial officer for enquiry and the delinquent be served with a show-cause notice alongwith statement of allegations and he can also be suspended from his office simultaneously. THE writ petition filed by the petitioner was, therefore dismissed directing the petitioner to go through the enquiry which was ordered to be conducted expeditiously. Challenging the judgment and order of the learned Single Judge in this appeal, it was first of all contended that as per the provisions of Section 63 (2) of the Act of 1959 there should have been a preliminary enquiry under Section 63 (1) of the Act of 1959 and explanation of the concerned member/chairman should have been sought before drawing up the charges. It is alleged that in the instant case, the State Government had not appointed any person to conduct the enquiry into the complaint and the enquiry initiated on 7. 2. 2004 cannot be said to be an enquiry under the proviso to Section 63 (1) of the Act of 1959 as no explanation was called from the petitioner/appellant before framing the charges. Addressing further on this contention, it was contended that no enquiry report having been submitted under proviso to Section 63 (1) read with sub-section (1) (c) of the Act by the State Government against the petitioner, there is no question of application of mind on the enquiry report and hence no enquiry could be said to have commenced so as to justify the order of suspension passed against the petitioner which was also malafide, arbitrary and void ab initio. Much emphasis was also laid on the fact that no explanation was called from the appellant/petitioner under Section 63 (2) of the Act of 1959 and without framing the charges against the petitioner, no order of suspension could be passed. It was, therefore, contended that the order of suspension dated 9. 6. 2004 is wholly illegal, without jurisdiction and against the provisions of law. Besides this, it was contended that the order of suspension suffers from non-application of mind and not based on any materials and hence the same deserves to be quashed and set aside. Thus the sum and substance of the arguments advanced by Shri Bhandari on behalf of the appellant is that the learned Single Judge has failed to consider that under Section 63 (4) of the Act of 1959, an elected member or Chairman can be placed under suspension only in case of a proceeding having been commenced for his removal on the ground contained in clause (d) of sub-section (1) of Section 63 of the Act but in the instant case no enquiry had been conducted and no report had been received under the provisions of Section 63 (2) of the Act of 1959 and the Government had not applied its mind to the same as no opportunity had been afforded to the petitioner for his explanation. The learned counsel further submitted that the learned Single Judge has failed to consider that the respondent-State Government had never called the appellant/petitioner to explain any of the charges which were not based on any enquiry report under the proviso to Section 63 (1) of the Act of 1959 and no opportunity of explanation was ever given to the petitioner for the alleged charges before passing the impugned order of suspension and in such situation and circumstance, the same ought not to be hold sustainable under the eye of law. ;