Rajasthan High Court - Jodhpur
Om Prakash Kalwa vs State Of Rajasthan ... on 27 May, 2024
Bench: Pushpendra Singh Bhati, Yogendra Kumar Purohit
[2024:RJ-JD:24012-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Spl. Appl. Writ No. 558/2024
Om Prakash Kalwa S/o Shri Jodha Ram Kalwa, Aged About 61
Years, R/o Meghdeep, Ner Udham Singh Chowk, Old Housing
Boad, Suratgarh, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Its Secretary, Local Self
Government, G-3 Rajmahal Residency Area, Near Civil
Line Fatak, C-Scheme, Jaipur, 302005.
2. Director Cum Special Secretary, Local Self Department,
Govt. Of Rajasthan, Jaipur.
3. Basant Kumar S/o Shri Satyanarayan, Aged About 70
Years, R/o Back Side Of Rathi School, Suratgarh, District
Sri Ganganagar.
4. Mohd. Faruk S/o Kanwardeen, Aged About 32 Years, R/o
Ward No. 08 New Ward No. 02, Suratgarh, District Sri
Ganganagar.
5. Paras Ram Bhatia S/o Taju Ram, Aged About 68 Years, R/
o Ward No. 27, New Ward No 37, Suratgarh, District Sri
Ganganager.
6. Tulsi Aswani W/o Dharamdas, Aged About 48 Years, R/o
Near Jhulelel Mandir, Suratgarh, District Sri Ganganagar.
7. Suresh Kumar S/o Mr. Bhinya Ram, Aged About 40 Years,
By Caste Gawariya, R/o Ward No. 22, Naya Shiv Badi
Mandir, Suratgarh Ganganagar, Rajasthan.
----Respondents
(2) S.B.CIVIL WRIT PETITION NO.4553/2024
1. Basant Kumar S/o Shri Satyanarayan, Aged About 70 Years,
R/o Back Side Of Rathi School, Suratgarh, District Sri
Ganganagar.
2. Mohd. Faruk S/o Kanwar Deen, Aged About 32 Years, R/o
Ward No. 08 New Ward No. 02, Suratgarh, District Sri
Ganganagar.
3. Paras Ram Bhatia S/o Taju Ram, Aged About 68 Years, R/o
Ward No. 27, New Ward No 37, Suratgarh, District Sri
Ganganager.
4. Tulsi Aswani W/o Dharamdas, Aged About 48 Years, R/o Near
(Downloaded on 30/05/2024 at 08:58:21 PM)
[2024:RJ-JD:24012-DB] (2 of 10) [SAW-558/2024]
Jhulelel Mandir, Suratgarh, District Sri Ganganagar.
---Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Local Self
Government, Govt. of Rajasthan, Jaipur.
2. Director Cum Special Secretary, Local Self Department,
Govt. Of Rajasthan, Jaipur.
3. Om Prakash Kalwa S/o Shri Jodha Ram Kalwa, Aged About
58 Years, R/o Meghdeep, Near Udhamsingh Chowk, Old Housing
Board, Suratgarh, Dist.Sriganganagar (Presently the Chairman of
Municipal Board Suratgarh, Dist. Sriganganagar).
4. Suresh Kumar S/o Mr. Bhinya Ram, Aged About 40 Years,
By Caste Gawariya, R/o Ward No. 22, Naya Shiv Badi Mandir,
Suratgarh Ganganagar, Rajasthan.
For Appellant(s) : Mr. R.N.Mathur, Sr. Advocate through
VC with Mr. Muktesh Maheshwari &
Mr. Sachin Mathur
For Respondent(s) : Mr. Sandeep Shah, Sr. Advocate
assisted by Mr. Shailendra Gwala and
Nishant Bafna
Mr. Manish Patel, AAG
Mr. Ankur Mathur with Mr.
Harshwardhan Thanvi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Order
27/05/2024
1. With the consent of learned counsel for the parties, this
special appeal and the writ petition are heard finally.
2. The prayer in S.B.Civil Writ Petition No. 4553/2024 preferred
by the writ petitioners Basant Kumar and Ors. is as follows :-
"(a) That the impugned order dated 19.02.2024
passed by the respondent No.2 Director Cum Special
Secretary, Local Self Department, Govt. of Rajasthan,
Jaipur may please be quashed and set aside.
[2024:RJ-JD:24012-DB] (3 of 10) [SAW-558/2024]
(b) any other appropriate order or direction, which
this Hon'ble Court considers just and proper in the
facts and circumstances of this case, may kindly be
passed in favour of the petitioner; and
(c) cost of the writ petition may kindly be awarded to
the petitioner."
3. The prayer in the special appeal preferred by the appellant
against the impugned order dated 10.05.2024 passed in the
aforesaid writ petition reads as follows :-
"I. The impugned order dated 10.05.2024 passed by
HON'BLE JUSTICE VINEET KUMAR MATHUR in
S.B.MISC STAY PETITION in S.B.CIVIL WRIT PETITION
NO. 4553/2024 [BASANT KUMAR & ORS V/S. STATE
OF RAJ. & ORS.]may kindlybe quashed and set aside.
II. Any other order or direction that may be deemed
fit, just and proper may kindly be issued in favour of
the appellant.
III. Costs may kindly be also awarded in favour of the
appellant."
4. The facts noted by this Court are that the appellant was
elected as Chairman, Municipal Board, Suratgarh in the year 2019.
A tender for laying down sewerage line, construction of safety
tank and removal of old sewerage tank was awarded to one M/s
Monti Carlo Ltd. and while the complaints against the said tender
process was being investigated, a sum of Rs. 1,60,98,940/- was
withheld from the dues of the company. At that juncture, the
action was initiated against the appellant under the provisions of
Section 39 of the Rajasthan Municipalities Act, 2009 (hereinafter
"the Act of 2009"). The inquiry was challenged by the appellant in
S.B.Civil Writ Petition No.5413/2023 which was dismissed by this
Court vide order dated 21.07.2023. Another writ petition was
preferred by the appellant being S.B.Civil Writ Petition
No.10207/2023 challenging the inquiry and inquiry report as well,
which was also dismissed as withdrawn on 17.08.2023 on account
of the fact that the appellant was placed under suspension vide
[2024:RJ-JD:24012-DB] (4 of 10) [SAW-558/2024]
order dated 24.07.2023. After suspension, the respondent State
took a stand of holding a judicial inquiry against the present
appellant, which was challenged by him along with the suspension
order by filing another writ petition being S.B.Civil Writ Petition
No.12569/2023, that was also dismissed by this Court vide order
dated 26.09.2023.
5. The fresh writ petition being S.B.Civil Writ Petition No.
4553/2024 was preferred by the writ petitioners Basant Kumar
and three others on account of the fact that there was a
revocation of the suspension order vide order dated 19.02.2024
resulting into reinstatement of the appellant. The said revocation
order has been stayed by the Single Bench vide the interim order
dated 10.05.2024, against which this special appeal is preferred
by the present appellant.
6. Learned Senior Counsel Mr. R.N.Mathur assisted by Mr.
Muktesh Maheshwari made his submissions on behalf of the
appellant principally on three grounds; firstly that the order of
suspension was duly revoked by the State, however, while
ignoring the powers and findings of the State Government, the
impugned interim order has been passed staying the revocation
order dated 19.02.2024. The second submission made by learned
Senior Counsel Mr. Mathur was that the revocation of the
suspension order was on account of prolonged suspension and for
that he has drawn attention of this Court to the judgment of this
Court passed in SBCWP No.2839/1997 "Parmanand Paliwal Vs.
State & Anr.", decided on 1.10.1997 and reported in 1997 (3) RLW
(Raj.) 2076. The relevant paras of the said judgment read as
follows :-
[2024:RJ-JD:24012-DB] (5 of 10) [SAW-558/2024]
"(3). The conjoint reading of sub-sections (1), (2) and (4)
of S. 63 indicates that the proceedings would be taken to
be commenced within the meaning of sub-section (4) of S.
63 when the authority makes up its mind to take action
against the person. The affidavit filed by the Deputy
Director (Regional), Local Bodies, Jodhpur alleges that on
19.7.97, charges against the petitioner were framed and
thereafter the order of suspension has been issued against
the petitioner. The charges framed against the petitioner
are as mentioned above. Framing of charges by the
respondent against the petitioner clearly indicates the
Govt. making up its mind to take action against the
petitioner. Prima facie, on reading the charges, it cannot
be said that they do not fall within S. 63(1)(d) of the Act
or that there is a colourable exercise of powers. As the
matter is pending consideration before the Judicial Officer,
it would not be proper for me to dilate upon the question
regarding validity, proof and justification for framing
charges.
(4). Sub-section (4) of S. 63 of the Act provides that
notwithstanding the foregoing provisions of S. 63, the
State Govt. may place under suspension a member
against whom proceedings have been commenced u/s. 63
and that suspension order continues until the conclusion of
the enquiry or passing of the final order. The result of
suspension is that 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. Thus,
as a result of the suspension order issued under sub-
section(4) of S. 63 pending enquiry or till the final order is
passed, the member shall be debarred from taking part in
the proceedings of the Municipal Board or otherwise
performing his duty as a member of the Board. Sub-
section (4) cannot be read as giving unlimited power in
the hands of the State to debar a member from
performing his duties for all times to come. It is to be kept
in mind that the member is ele-cted by the public and he
is the representative of the public in the Municipal Board.
His tenure is limited and he can act as a representative of
the public for a fixed term. In the democratic set up, the
elected member cannot be restrained from performing his
duties for unlimited period without there being proved
charge against him. He has a right to perform his duties
as a member he being elected torepresent wish and will of
the people. One has to read the inherited limitation of the
authority in applying the powers under sub-section (4)
debarring any elected member from performing his duties
as such. The suspension should not result into a removal
of the member, a power vested under sub-section (3) of s.
63 can be exercised after due and proper enquiry, by the
State, as per the procedure prescri-bed for holding an
enquiry into a charge against the member of a Municipal
Board or Counselor of Municipal Council. The enquiry
contemplated under sub-section (2) and the order
thereafter under sub- section (3) has to be passed after
giving opportunity to the member to lead oral and
[2024:RJ-JD:24012-DB] (6 of 10) [SAW-558/2024]
documentary evidence and after consideration and giving
due weight to the facts found on record. The order is re-
quired to be a speaking order giving reasons for arriving
at a particular logical conclusion. There is no equation
between the order passed of suspending a member and
order of removal of member. Proceeding for removal of a
member may take a longer period but that should not
result in continued suspension of the member until the
enquiry is concluded or order is passed. The matter can be
looked into from another angle. An enquiry is commenced
against the member for his removal and continue for two
years and ultimately the member is exonerated from all
the charges framed against him, result would be, he will
not be removed from membership, but what will happen
to his suspension for two years, the period he could not
function as member, he could not be relegated to the
original position. The power to suspend a member could
be held to be legal if it is for a limited period or some
machinery is provided for review of the matter and
extension thereafter of the suspension period of the
member. Considering the term of the member of Board,
reasonable period of suspension of member could be for
six months from the date of suspension. An enquiry
contemplated under sub-section (2) of S. 63 of the Act
and the resultant order would be passed within the period
of six months from the date of suspension of a member.
For some reason or the other, the enquiry u/s 63(2) is not
completed or order under sub-section (3) of S. 63 is not
passed, that shall not come in the way of cessation of
suspension order. On the day six months are completed
from the date of suspension order, the suspension order of
a mem-ber under Sub-section (4) of S. 63 of the Act shall
come to an end.
(5). Accordingly, the petition is dismissed but it is directed
that if no order is passed against the petitioner u/s 63(3)
of the Act within six months from 19.7.97, the suspension
order shall stand revoked from 19.1.98."
7. Learned Senior Counsel also submits that the appellant has
been bound down and an undertaking has been called for and
thus, there is no reason for anybody to suspect any interference in
the judicial inquiry which is going on.
8. At this juncture, learned Additional Advocate General was
asked as to in what circumstances the State took the decision to
revoke the suspension order.
9. Learned Additional Advocate General tried to take this Court
to Section 39 of the Act of 2009 with particular reference to sub-
[2024:RJ-JD:24012-DB] (7 of 10) [SAW-558/2024]
sections (3), (4) and (6) stating that it was the power of the State
to revoke the suspension of a duly elected representative after
proper consideration of the issues involved. Learned AAG, at this
juncture, in addition to his submissions that proper deliberation
was made and power to revoke the suspension vests with the
State, also submitted that he had fairly submitted before the
Hon'ble Single Bench that the State Government be given liberty
to pass a fresh order in accordance with law dealing with the issue
involved and such submission has been recorded in paragraph 15
of the impugned order. Learned AAG has taken this Court to the
revocation order which admittedly does not have any reasons for
revocation of the suspension. Thereafter, learned AAG has taken
this Court to the notings which are also part of the record. The
relevant part of the notings reads as follows:-
"77- iSjk 74@,u dh ikyuk esa izdj.k dk laf{kIr fooj.k fuEukuqlkj gS%&
ftyk dyDVj] Jhxaxkuxj }kjk fnukad 10-03-2023 dks :Mfldksa
dk;kZy; dks tkap fjiksVZ izsf'kr dh xbZA tkap fjiksVZ vuqlkj lksd fiV
rksM+us@[kkyh djus ls lacaf/kr fcyksa dks Dyse djus okys fuekZ.k dEiuh
fd rduhdh vf/kdkjh fcyksa esa gq, dk;Z ds lR;kfir djus okys uxj
ikfydk lwjrx<+ esa inLFkkfir rRdkªŒ dfu'B vfHk;ark] lgk;d vfHk;ark]
vf/k"kk'kh vf/kdkjh] dfu'B ys[kkdkj lfgr v/;{k uxj ikfydk lwjrx<+
,oa fcyksa dks lR;kfir djus okys :Mfldksa ds vf/kdkjh;ksa dks nks'kh ik;k
x;kA :Mfldksa ds }kjk i=koyh lrdZrk vuqHkkx dks izkIr gksus ij tkap
fjiksVZ ds vk/kkj ij nks'kh Jh vkseizdk"k dkyok rRdkΠv/;{k uxj
ikfydk lwjrx<+ dks jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39
ds rgr fnukad 24-04-2023 dks Li'Vhdj.k uksfVl tkjh fd;k x;k lkFk
gh izdj.k esa nks'kh vf/kdkjh Jh lquhy dqekj es?koky] rRdkΠys[kkdkj]
Jh fot; izrki flag rRdkΠvf/k"kk'kh vf/kdkjh] Jh iadt vxzoky
rRdkΠvf/k"kk'kh vfHk;ark ds fo:) lh-lh-,- fu;e&16 ds rgr
vuq"kklukRed dk;Zokgh izkjEHk dj nh xbZ gSA Jh vkseizdk"k dkyok
rRdkΠv/;{k uxj ikfydk lqjrx< ds }kjk izLrqr Li'Vhdj.k uksfVl
ds tokc dk fof/kd ijh{k.kksijkar Jh dkyok ds }kjk izLrqr Li'Vhdj.k
uksfVl ds tokc dks larks'kinz ugha ik;s tkus ij jktLFkku uxj ikfydk
vf/kfu;e 2009 dh /kkjk 39¼6½ ds rgr iznRr "kfDr;ksa dk iz;ksx djrs
gq;s jkT; ljdkj }kjk fnukad 24-07-2023 dks v/;{k ,oa lnL; ds in
ls fuyfEcr fd;k x;k rFkk izdj.k dks U;kf;d tkap gsrq fnukad
24-07-2023 ls fof/k foHkkx dks izsf'kr fd;k x;k gSA Jh vkseizdk"k
dkyok rRdkŒ- v/;{k uxj ikfydk lqjrx<+ ds fo:) orZeku esa izdj.k
U;kf;d tkap esa fopkjk/khu gSA
[2024:RJ-JD:24012-DB] (8 of 10) [SAW-558/2024]
78- iSjk 70@,u ij izkIr fof/kd jk; vuqlkj jkT; ljdkj Jh
vkseizdk"k dkyok fuyfEcr lnL; dks U;kf;d tkap ds vfUre
fu.kZ;k/khu muds }kjk U;kf;d tkap esa fdlh izdkj dk gLrk{ksi ugha
djus@izHkkfor ugha djus dh vUMjVsfdax yh tkdj fuyEcu ls cgkyh
ds fcUnw ij iz"kklfud Lrj ls fopkj fd;k tkdj fu.kZ; fy;k tk
ldrk gSA"
10. Learned AAG however, could not point out a single word or
line which could reflect that there is an application of mind or that
the decision to revoke the suspension has been arrived at after
due consideration or reasoning. Although the prerogative and
power of the State may be an issue, but even if they have the
power then also, the State ought to have at least in its notings
reflected some reasoning, even if short, for arriving at such
decision of revocation, which they say is in their domain.
11. Mr. Sandeep Shah, learned Senior Counsel appearing for the
respondent-an elected member of the Municipality and the author
of the writ petition submits that neither there was power with the
State Government to revoke the suspension nor such order of
revocation reflects any kind of reasoning which could result into
the State coming at a conclusion of revocation of
inquiry/suspension.
12. After hearing the submissions on the limited subject of
impugned interim order, Learned Senior Counsel Mr. Mathur
assisting the Court on behalf of the appellant submits that in case
this Court is not satisfied on the merits of the case, then an
opportunity may be given to the State of Rajasthan to revisit the
issue in question and while quashing the revocation order, a liberty
may be given to the State to pass a fresh order showing due
consideration and application of mind.
[2024:RJ-JD:24012-DB] (9 of 10) [SAW-558/2024]
13. The proposition made by learned Senior Counsel Mr. Mathur
is accepted by the counsel for the respondents Mr. Sandeep Shah,
Mr. Manish Patel, AAG and Mr. Ankur Mathur only to the extent
that revocation order may be quashed and a liberty may be given
to the State to pass a fresh order, while reserving their rights to
contest on all the issues raised at subsequent stage. Mr. Sandeep
Shah insists that such order be passed only if the law permits.
14. This Court in the given facts and circumstances of the case,
where the impugned order itself is only an interim order, agrees
with the agreed upon proposition of limiting the today's
adjudication only to the issue of reasoning behind the revocation
order. The reasoning is absolutely missing in the revocation order
and the notings. The power of suspension is a powerful tool in the
hands of the employer and has to be exercised very cautiously
taking into consideration the critical sensitivities involved with
such power. The power is unbridled but with the unbridled power
comes more responsibility. In the considered opinion of this Court,
neither the impugned order of revocation of the suspension dated
19.02.2024 nor the reasoning given in the notings indicate even a
fraction or a small reflection that due consideration was made
regarding revocation of the suspension. The suspension order
carries far-reaching ramification for both the parties and once the
State had taken a decision to pass suspension order, then at the
time of revocation also, equal responsibility lies upon the State to
have considered revocation.
15. In a very limited zone of interference which this Court is
exercising, the revocation order dated 19.02.2024 is quashed and
set aside with complete liberty to the State to pass fresh order in
[2024:RJ-JD:24012-DB] (10 of 10) [SAW-558/2024]
accordance with law while keeping into consideration all the issues
which have been raised by both the parties. The State shall pass a
speaking order within a period of 30 days from receiving the
certified copy of this order, supported by whatever consideration
they make, after taking into count factual matrix which is on
record. Needless to say that this order and the directions given in
S.B.Civil Writ Petition No. 4553/2024 shall not prejudice the State
to make an order in either side.
16. It is also clarified that the expeditious disposal of the judicial
inquiry which has already been directed by the Hon'ble Single
Bench, is the order which shall remain in existence.
17. In the light of the aforesaid submissions, with the consent of
the parties, the writ petition and the special appeal stand disposed
of. However, liberty is also granted to the aggrieved parties to
avail the remedies available to them in case any fresh order is
passed by the State.
(YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J
15-S-1-RP/-
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