Shyam Sunder Sharma v. State of Rajasthan — 1992 DIGILAW 774 (RAJ)

Honble V.K. SINGHAL, J.—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. 3. 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. 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. 4. 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. 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; 5. 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; 6. The enquiry report is sent to the Government by the designated officer; 7. 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; 8. 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 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 Ramchandras 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. 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. (3). 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). 9. 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. 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. 10. Sub-sec. (2) provides that 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-sec. (1) as a result of enquiry referred to in the proviso to that sub-Section and after hearing the explanation of the member concerned, the State Government shall draw a statement setting out distinctly the charges against a member and shall sent the same for enquiry and finding by the Judicial Officer of a rank of District Judge to be appointed by the State Government for the purpose. This power which has to be exercised by the State Government is at a point of time where the enquiry as contemplated under proviso to sub-sec. (1) has already been completed and on the basis of such enquiry the State Government has to make up its mind as to whether the further proceedings are to be taken or the matter is to be dropped. In case the further proceedings are to be taken then the Member has to be given opportunity and his explanation has to be called for. This is after doing this exercise that the State Government shall draw a statement setting out distinctly the charge against the Member which is required to be sent for final enquiry and finding by a Judicial Officer. 11. This is after doing this exercise that the State Government shall draw a statement setting out distinctly the charge against the Member which is required to be sent for final enquiry and finding by a Judicial Officer. 11. Sub Section (3) refers to the procedure which the Judicial Officer has to adopt for recording his final finding which has to be sent to the State Government and on the basis of which, the State Government has to pass order. This sub-section (3) has no applicability at this stage in the present case. 12. In. Ugamsee Modis case (supra) the facts were, that certain complaints were made against the petitioner apart from the charges on which enquiry had been made earlier by the Legal Rememberancer. Those complaints were enquired into by the Collector and Inspector General of Police, who asked to accord sanction for prosecution of the petitioner. The Government, after applying its mind to those reports thought that action was called for. Show cause notices were issued to the petitioner. The petitioner failed to apppar and the Government Ultimately accorded sanction for prosecution. It was held that if on the allegations there was some enquiry by certain officers and that on the reports submitted by those officers, the Government called upon the petitioner to explain the allegations made against him, it could hardly be contended that the proceedings cannot be taken to have commenced against the petitioner within the meaning of sub-Sec. (2) of Section 63 of the Municipalities Act. The proceedings under sub-sec. (2) of Sec. 63 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. 13. According to the above judgment it is not only conducting of the preliminary enquiry and receiving of reports, but thereafter the Government must come to the conclusion that the action is called for and the proceedings can be said to have commenced at that stage. In Madan Lals case(supra) this judgment was considered and it was held that for the purpose of sub-section (1) of Sec. 63, a preliminary enquiry could 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 with in the meaning of Sub-Sec, (4) of sec. In Madan Lals case(supra) this judgment was considered and it was held that for the purpose of sub-section (1) of Sec. 63, a preliminary enquiry could 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 with in the meaning of Sub-Sec, (4) of sec. 63 of the Act only when the notice is be ordered to issued against such officer 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 at that stage it could be said that the proceedings under sub-section (4) of Sec. 63 commenced. 14. In the light of the decisions given by the two Division Benches referred to above, it is clear: (i) that there must be some complaint against a Member; (ii) the Government decides to take action on such complaint by making a preliminary enquiry; (iii) the directions to make the preliminary enquiry are given; (iv) the officer is appointed to make preliminary enquiry; (v) the officer so designated calls for explanation of the Member by issuing a notice; (vi) the designated Officer may take into consideration the explanation which is submitted by the Member concerned against whom enquiry is made and such other verbal and documentary evidence; (vii) the Enquiry report is sent to the Government and the Government after consideration of the said report and applying its mind comes to the conclusion that further action is necessary in accordance with the provisions of sub-section (2) of Sec. 63 of the Act, 15. After completion of these exercises, the order of suspension could be issued. Now looking to the facts of this case, from the record produced, it is evident that the State Government" has also after complying with the formalities referred to above issued a show cause notice to the petitioner and his explanation was called for. After taking into consideration the said explanation, it was decided that further action has to be called for and the contention of the Chairman was untenable and at that stage a decision was taken to suspend the petitioner. After taking into consideration the said explanation, it was decided that further action has to be called for and the contention of the Chairman was untenable and at that stage a decision was taken to suspend the petitioner. Looking to the entire circumstances and the various judgments referred to above, I am of the opinion that the proceedings have commenced and it was within the jurisdiction of the State Government to pass an order under Section 63 (4) for the suspension of the petitioner. 16. Since in the facts and circumstances of the case, I have come to the conclusion that the proceedings were commenced, therefore it is not necessary to consider the contention of the learned counsel for the respondent that the proceedings commence when a direction is issued to make preliminary enquiry or the preliminary enquiry is completed because in this case even the subsequent stages have also been crossed. It is not necessary to refer this matter to the Larger Bench as prayed by the learned counsel for the respondents. 17. Now coming to the another question raised by the learned counsel for the petitioner that the enquiry as contemplated under sub-section (1) of sec. 63 was not conducted by the Collector himself and therefore the entire proceedings are vitiated and for that purpose reliance was placed on instructions No. F. 8(34) LSG/62 issued by the Government in September, 1965 wherein it was directed that the enquiry in respect of Municipalities having population of 10000 and more should be conducted by the Collector himself and the enquiries in cases of Municipalities of the population of less than 10000 should be conducted by the S.D.O The enquiries against the Chairman and Member of the Board should be initiated only after approval of the Government. On a bare perusal of these instructions, it would be evident that it has been issued under See. 290 of the Rajasthan Municipalities Act and have no co-relation with the power which is conferred under proviso to sub-section 1 of Sec. 63. Even otherwise, when under the proviso the State Government has been empowered to get the enquiry conducted through such officer or authority as it may direct then specific language of the Section cannot be made ineffective by any Circular or Notification or Instructions. Even otherwise, when under the proviso the State Government has been empowered to get the enquiry conducted through such officer or authority as it may direct then specific language of the Section cannot be made ineffective by any Circular or Notification or Instructions. The directions which have been given in the present case by the State Government to get the enquiry completed in accordance with the order of the Minister through the S.D.O. was perfectly valid. 18. So far as the application of the provisions of Clause (d) of Sub-section (1) is concerned, it is not disputed. It has been submitted that the"notice issued is vague, and that copy of the report was not provided to the petitioner. So far as the question of making the enquiry report available to the petitioner is concerned. I am of the view that the enquiry which is contemplated under sub sec. (1) of Sec. 63 has to be submitted by the designated officer to the State Government to arrive at a conclusion as to whether the proceedings under subsection (2) of Sec. 63 are to be initiated or not. Before that stage the petitioner has no right to claim copy of the report. It is only when the report has been received by the Government and a decision is being taken that further action hag to be taken and a show cause notice is issued, at that stage only the petitioner is entitled to get copy of the report. It has been held by the Apex Court in the case of Rama Swami that enquiry report cannot be directed to be given before it is placed before the Speaker of the Parliament. The reason is obvious. After receiving report, the authority concerned may come to the conclusion that proceedings are not to be initiated then the petitioner in such a situation will have no right to demand copy of the report and if it is decided that, further proceedings are to be commenced then even before submitting explanation of the show cause notice issued under sub-sec. (2) of Sec. 63 the petitioner can demand copy and the respondents would be under a duty to provide a copy of such report. In the present case, the petitioner has demanded copy on 14.1.92, which was refused on 24.8.92 vide Annexure 16. (2) of Sec. 63 the petitioner can demand copy and the respondents would be under a duty to provide a copy of such report. In the present case, the petitioner has demanded copy on 14.1.92, which was refused on 24.8.92 vide Annexure 16. As I have already observed that the procedings commenced when preliminary enquiry is completed and the State Govt. applies its mind to take action under sub-sec. (2) of Sec. 63, I am of the view that that stage was over and the show cause notice which was issued by the State Govt. is the subsequent action, which would not affect the validity of the proceedings already taken. In order to draw a statement setting out distinctly the charges against a Member for making final enquiry and finding to a Judicial Officer, the petitioner has to be provided with copy of the report and the letter which has been written that it is only a correspondence and hence cannot be given, is not correct. The respondents are directed to issue a copy of the report within a period of one month to the petitioner and then only after considering the explanation to draw the statement setting out distinctly the charges against the petitioner. Since this exercise is subsequent to commencement of proceeding and does not affect the validity for exercise of power! under sub-sec. (4) of Sec. 63, therefore, it has no material effect and the order of suspension is not vitiated on the ground. 19. The last contention, which has been raised by the learned counsel for the petitioners is that the charges in the notice are vague, At this stage, only thing is to be seen is with regard to he conducting of preliminary enquiry as contemplated under proviso to sub-see. (1) of Sec. 63. Along with the writ petition, a copy of the notice issued under sub-sec. (2) of Sec. 63 which could be issued by the State Government after receiving the report of the preliminary enquiry and after being satisfied that further action is initiated in the facts and circumstances of the case, has been enclosed. Since proceedings already stand commenced, the subsequent issue of notice by the State Government for providing opportunity for drawing up a statement setting out distinctly the charges against a Member will not effect the validity of the preliminary enquiry concluded. Since proceedings already stand commenced, the subsequent issue of notice by the State Government for providing opportunity for drawing up a statement setting out distinctly the charges against a Member will not effect the validity of the preliminary enquiry concluded. Though in respect of the notice issued under sub-sec. (2) of Sec. 63 the defects as pointed out by the learned counsel for the petitioner are correct to the extent that specific instances or details of the allegations have not been mentioned in the notice, since proceedings have already been commenced, the power under sub-sec. (4) of Sec. 63 was validly exercised. It would however be proper that the respondents provide ant opportunity to the petitioner of hearing by issuing a detailed notice under sub-see. (2) of Sec. 63 as mentioned above; provide copy of the report of enquiry to the petitioner and thereafter on receipt of explanation, the statement of charges should be drawn up. 20. In the facts and circumstances of the case as mentioned abdve, the writ petition has no force and is hereby dismissed, with no order as to costs.