Rajasthan High Court

Naresh Kumar S/O Shri Ramlal vs State Of Rajasthan on 17 January, 2023

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

         S.B. Civil Misc. Stay Application No.19016/2022

                                        In

              S.B. Civil Writ Petition No. 19567/2022

Naresh Kumar S/o Shri Ramlal, Aged About 41 Years, R/o 273,
Bairwa Basti, Chhawani, Beawar-305901 (Raj.)
                                                                         ----Petitioner
                                     Versus
1.     State Of Rajasthan, Through The Secretary, Local Self
       Government Department, Government Secretariat, Jaipur
       (Rajasthan).
2.     Director And Joint Secretary, Local Self Government
       Department, G-3, Rajmahal Residential Area, C-Scheme,
       Near Civil Lines Phatak, Jaipur (Rajasthan).
3.     Deputy       Director     (Regional),         Local        Self   Government
       Department, Ajmer.
4.     Commissioner, Municipal Council, Beawar.
                                                                    ----Respondents

For Petitioner(s) : Mr. Rajendra Prasad, Sr. counsel assisted by Mr. Tanveer Ahamad, Adv. Mr. Rakesh Kumar Dhawan, Adv.

Mr. Manish Parihar, Adv.

For Respondent(s) : Mr. Anil Mehta, AAG with Mr. Yashodhar Pandey, Adv.

HON'BLE MR. JUSTICE INDERJEET SINGH Order

17/01/2023

Heard on the stay application.

Mr. Rajendra Prasad, learned senior counsel submitted that

on earlier occasion, the petitioner who is an elected Chairman of

the Municipal Council, Beawar was suspended by the respondents

vide order dated 17.06.2022 which was challenged by the

petitioner before this Court in the matter of Naresh Kumar Vs.

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State of Rajasthan (S.B. Civil Writ Petition No.9244/2022), which

was decided on 23.11.2022 with the following order:-

"1. This writ petition has been filed by the petitioner with the following prayer:-

"It is, therefore humbly prayed that Your Lordship may graciously be pleased to accept and allow this writ petition and by an appropriate writ, order or direction:-

1. The impugned order dated 17.06.2022 (Annexure-1) passed by the Director and Joint Secretary, Local Self Government Department, Rajasthan, Jaipur and impugned order dated 17.06.2022 (Annexure-1A) passed by the Commissioner, Municipal Council, Beawar may kindly be quashed and set aside and the respondents may be directed to allow the humble petitioner to continue on the post of Chairman, Municipal Council, Beawar in the interest of justice.

2. Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.

3. Cost of the writ petition may also be awarded in favour of the petitioner."

2. Brief facts as stated in the writ petition are that in the election held for the post of Chairman, Municipal Council, Beawar the petitioner was elected and the contesting candidate who lost the election made a complaint against the petitioner for removing him from the said post, upon which after certain correspondences took place between the concerned government departments, the proceedings were initiated against the petitioner. Thereafter, taking a prima facie view of the allegation levelled against the petitioner, the petitioner was suspended vide order dated 17.06.2022 (Annexure-1) followed with the order dated 17.06.2022 (Annexure-1A), which is under challenge at the instance of the petitioner in the present writ petition.

3. At this stage, this Court considers it appropriate to record that in the writ petition as well as during the course of arguments only the

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legality/validity/sustainability of the order dated 17.06.2022 has been questioned, therefore under the present order while finally deciding the writ petition this Court is only examining sustainability of the order dated 17.06.2022 passed by the respondents.

4. Learned Senior Counsel appearing on behalf of the petitioner submits that the suspension order has been passed by the respondents in violation of the provisions of Section 39 (6) of Rajasthan Municipalities Act of 2009 (hereinafter to be referred as the 'Act of 2009'). Learned Senior Counsel further submits that according to Section 39(6) of the Act of 2009 only the State Government can place the petitioner under suspension whereas in the present matter the Director & Joint Secretary has passed the order of suspension on 17.06.2022 which is absolutely without his competence & jurisdiction. Learned Senior Counsel further submits that the note-sheet submitted by the respondents (Annexure- R/6) with their additional affidavit shows that the approval has been taken from the State Government only for initiating judicial enquiry against the petitioner under Section 39(3) of the Act of 2009, as proposed under Note No.43 and thus it is evident and apparently clear that Note-43 relates only for grant of approval for the aforesaid purpose of initiating judicial enquiry and it does not speak/ask about placing the petitioner under suspension and even if so no approval has been taken from the Minister In-Charge before passing the order impugned herein dated 17.06.2022. Learned Senior Counsel further submits that even the Executive Officer who too is responsible for all the executive work like issuance of Patta and against whom similar allegations like the petitioner have been levelled, only a charge-sheet under Rule 17 of the CCA Rules has been issued while in the case of the present petitioner, he has been suspended, which is a complete arbitrariness and mala-fide action on the part of the respondents in suspending the petitioner and this action of the respondents in the light of the provisions of Section 39(6) of the Act of 2009 is without application of mind.

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5. Mr. Anil Mehta, Additional Advocate General though has opposed the writ petition, however on a perusal of the note- sheets, annexed with the reply frankly admitted that no approval was taken from the Minister In-Charge with regard to suspending the petitioner as mentioned in the Note No.44 of the office file.

6. On 22.11.2022, during the course of arguments, Mr. Anil Mehta, AAG sought one day's time to take instructions with regard to passing of fresh order after seeking proper approval and submitted that in light whereof the writ petition may be allowed to be disposed of as withdrawn, considering the submission of learned AAG, time sought for was granted and at his request the matter was postponed for today i.e. 23.11.2022.

7. It was further submitted by Mr. Anil Mehta, AAG that according to the Note No.72 of the Office File, Ex Post Facto approval has now been granted by the Minister-In-Charge on 22.11.2022 with regard to Note No.44 of the original note- sheet and he has tried to justify their action. Copy of the said note-sheet along with letter dated 23.11.2022 issued by the Director & Joint Secretary is taken on record, marked as Annexure-R-9.

8. In rejoinder, Mr. Rajendra Prasad, learned Senior Counsel further submits that action of the respondents in granting Ex Post Facto sanction/approval is also arbitrary and mala-fide on the the part of the respondents and submitted that it has been done so by the respondents just to frustrate the purpose of filing the writ petition and it clearly shows that prior to passing of the suspension order of the petitioner there was no application of mind by the respondents and the petitioner has been placed under suspension in a haste manner.

9. Heard counsel for the parties and perused the record.

10. Since the controversy raised herein relates to the provisions of Section 39(6) of the Act of 2009, therefore before dealing with the arguments raised by the respective counsel for the parties, it would be appropriate to first have a look over the

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provisions of Section 39(6) of the Act of 2009 and thus are reproduced as under :- "39. Removal of member:- (1) The State Government may, subject to the provisions of sub-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 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 37,

(c) that after his election he has incurred any of the disqualification mentioned in section 14 or section 24 or has ceased to fulfill 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 :

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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 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;

(d) any other matter which may be prescribed.

(6) Notwithstanding the foregoing provisions of this section, the State

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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.

(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."

11. A perusal of the above provisions indicates that it is only the State Government which can place a member of Municipal Council under suspension for the reasons assigned therein. In the present case, this Court finds substance in the argument of the petitioner's counsel that the order impugned dated 17.06.2022 is in violation of the provisions of Section 39(6) of the Act of 2009 as it is without jurisdiction since it has been passed by the Director & Joint Secretary, Local Self Government Department without prior approval of the State Government (Minister-In-Charge). Therefore, this Court has no hesitation in holding that the order impugned dated 17.06.2022 is without jurisdiction being violative of the provisions of Section 39(6) of the Act of 2009.

12. The another aspect of the matter, which is in the form of subsequent development, taking approval from the Minister-In-Charge at Note No.72 which is with regard to earlier Note No.44, the same on the face of record depicts that it has been done just to save their skin by the respondents and to frustrate the filing of the present writ petition and also to give legs to their earlier baseless violative action of passing of the order dated 17.06.2022 and such practice of manipulation cannot be appreciated by this Court of playing with the proceedings of the Court.

13. In view of the above findings/observations, the action of the respondents in passing of the orders dated 17.06.2022 (Annexured-1 & Annexure-1A) as well as the subsequent action of Ex-Post

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Facto Approval dated 22.11.2022, in the opinion of this Court cannot be held to be sustainable and deserves to set aside, as a consequence thereof the writ petition deserves to succeed.

14. In that view of the matter, the writ petition is hereby allowed. The orders impugned dated 17.06.2022 (Annexure-1 & Annexure-1A) as well as the Ex Post Facto Approval dated 22.11.2022 (Annexure-R-9), are set aside. However, the respondents are at liberty to pass fresh order strictly in accordance with law."

Mr. Rajendra Prasad, learned senior counsel further submits

that after quashing of the suspension order by this court, the

respondents again suspended the petitioner on 16.12.2022 in a

hurried manner and without application of mind. Learned senior

counsel pointed out that the respondents have mentioned in their

order that the earlier order of suspension dated 17.06.2022 has

already been withdrawn by them in compliance of the order

passed by this court, however the fact is that the earlier

suspension order has not been withdrawn by the respondents and

the same stood quashed by this court as aforesaid. Learned senior

counsel further submits that alongwith the petitioner, two other

officers of the Municipal Council were also served with the charge-

sheet under Order 17 of CCA Rules, however only the petitioner

was suspended and no similar action of suspension alike the

petitioner was taken against the abovesaid two officers against

whom the same set of allegations was there and this act of the

respondents is discriminatory in nature. Learned senior counsel

further submits that one of them is an Assisting Officer has

already been promoted to the next higher post. Learned senior

counsel further submits that the petitioner as well as the

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Executive Officer, Municipal Council are responsible for issuing the

pattas, but a lenient view has been taken against these officers.

In support of his contentions, counsel relied upon the

judgment passed by the Coordinate Bench of this court in the

matter of Geeta Devi Narooka v State of Rajasthan & Ors. (S.B.

Civil Writ Petition No. 6023 of 2007) reported in (2008) 2 WLC 261

wherein para Nos. 12 & 16 has held as under:-

"12. The Supreme Court in para 6 of the State of Punjab v. Ram Singh Ex-Constable reported in (1992) 4 SCC 54 gave meaning to the term "misconduct" and held that it must be improper and wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in formance of the duty, and further its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. Relevant portion of para 6 is as follows:

"The word 'misconduct' though no capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve"

(emphasis supplied)

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16. The aforesaid judgment of the Supreme Court Tarlochan Dev Sharma (supra) has been relied and referred to by this Court in Pradeep Hinger v. The State of Rajasthan (SBCWP No. 3740/2007 decided on 16.9.2007) where in a case of alleged misconduct of not taking action in respect of Plot No. 5 and 23-A, which were illegally allotted and allotment of land to his party members, was considered by the Court while adjudicating on the issue of suspension from the office of Chairman, Municipal Council. This Court, while considering the said misconduct, has held that when there is no specific motive/embezzlement/corruption imputed against the incumbent in the allegations levelled against him, then the order of suspension appears to be in consequence of only initiation of inquiry by the State Government under Section 63(2) of the Act of 1959 and there appears to be no reason available for suspension of the petitioner from the post of Chairman, Municipal Council as the respondents failed to prove that the presence of the petitioner on the post of Chairman, Municipal Council, Pali may prejudice the inquiry to be conducted by the competent authority under sub-

section (2) of Section 63 of the Act of 1959. The relevant portion of the aforesaid judgment is as follows:

"This Court has only examined whether from the facts it is a case of passing of suspension order in routine manner and in consequence of the decision of the State Government to 'proceed under subsection (2) of Section 63 alone or it has some specific reason for suspending the petitioner. The comments be read only in the context and not out of context to prejudice the enquiry against the petitioner or in favour of the petitioner.

In view of the above legal position and the facts came on record, the order of suspension of the petitioner appears to be in consequence of only initiation of enquiry by the State Government under Section 63(2) of the Rajasthan Municipalities Act, 1959 and there appears to be no reason available for suspension of the petitioner from the post of Chairman, Municipal Council, Pali as the respondents failed to

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prove that the presence of the petitioner on the post of the Chairman, Municipal Council, Pali may prejudice the enquiry to be conducted by the competent authority under sub-section (2) of Section 63 of the Rajasthan Municipalities Act, 1959 in any manner. Therefore, the order of suspension of the petitioner vide Annexure 11 dated 11.06.2007 deserves to be quashed.. ................

(emphasis supplied)"

In support of his contentions, counsel further relied upon the

judgment passed by the Coordinate Bench of this court in the

matter of Smt. Deepika Sharma v. State of Rajasthan (S.B. Civil

Writ Petition No.12269/2019) decided on 21.08.2019 reported in

2019(2) WLC ( Raj.) UC 784 wherein para Nos. 6 & 7 has held as

under:-

"6. The state of law with regard to exercise of statutory powers for suspension of an elected representative has been welldelineated by this court in the cases of Prema Versus State of Rajasthan, 2008 (1) WLC 291, Geeta Devi Narooka Versus State of Rajasthan & Others, 2008 (2) WLC 261 and Jan Mohd. Versus The State of Rajasthan & Others, 1992 (2) WLC 463. Therefrom, it is apparent that albeit the power of suspension indeed vests in the competent authority an elected representative including a Sarpanch cannot be suspended mechanically only for reason of initiation of a statutory inquiry. The suspension of elected representative such as Sarpanch requires due application of mind and the conclusion of an imperative need for suspension for reason of the Government's satisfaction that the continuation of the elected representative in office meantime would prejudice the statutory inquiry or be contrary to public interest. In the instant case, there is nothing on record to even prima facie establish that the State Government either applied its minds to the facts of the case and the notice charges against the petitioner and the role attributed to her in the alleged misconduct and then reached a satisfaction that the continuation of the petitioner as Sarpanch during the inquiry

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would be contrary to public interest, or be prejudicial to the statutory inquiry against her. Aside of the aforesaid, I am also of the considered view that the petitioner having continued in the office for several months till 8.7.2019 subsequent to the issue of chargesheet on 10.8.2018 and no other allegation of misconduct in the meantime having been made against her, there appears to be no foundation for the petitioner's suspension. In fact the order of suspension belatedly passed on 9.7.2019 was even prior to the appointment of an inquiry officer vide order dated 6.8.2019 to go into the charges against the petitioner.

7. I also find no force in the contention of Ms.Sheetal Mirdha, that the petitioner was a beneficiary of the patronage of the previous Government. The allegation is bald and without any material to establish the political nexus of the petitioner. Further despite the new Government having entered into office in the month of January 2019 over 6 months lapsed before the order of suspension dated 9.7.2019 was passed and the inquiry officer thereafter appointed on 6.8.2019. It is also noteworthy that the allegations in the chargesheet relate to an alleged over payment for construction work. The petitioner is a poorly educated layman in respect of these works. Those in-charge of the said works with engineering backgrounds responsible for its execution and measurements with approval were not suspended. Only a departmental inquiry for a minor misconduct under Rule 17 of the Rules of 1958 is stated by Ms.Sheetal Mirdha to have been initiated against them. The heavy hand of law for what is presently an allegation of supervisory negligence by invoking Section 38 (4) of the Act of 1994 being exercised against the petitioner is thus apparent. That tantamounts to colourable exercise of power and/ or non application of mind by the respondents, which cannot be countenanced by this court."

Mr. Anil Mehta, AAG opposed the stay application and

submitted that since opportunity was given by this court in earlier

round of litigation while quashing the suspension order of the

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petitioner, on overall scrutiny of the matter, they have again

suspended the petitioner in accordance with law. He further

submits that the judicial enquiry has already been initiated in this

matter.

Heard counsel for the parties and perused the record.

The suspension order dated 16.12.2022 passed by the

respondents deserves to be stayed for the reason that the order,

which is impugned herein dated 16.12.2022 has been passed by