JUDGMENT 1. - The petitioner Smt. S. Kanta Ranawat was the elected member of the Municipal Board and was also elected as Chairman of the said Municipal Board, Bundi. The seat of the Chairman was reserved for woman candidate. The Board is elected for five years. It is stated that there was rivalry amongst the members of the Board and the rival group belongs to the group of Finance Minister Shri K.K. Goyal who is a dose friend of the respondent No. 3 Shri Bhanwar Lal Sharma who was holding the charge of Cabinet Minister for Local Self Government at the time of filing of the writ petition. It is stated that said Shri K.K. Goyal had always been a rival for the petitioner ever since her election to the Chairman and had been creating problems in her way by making false and frivolous complaints with the motive that Vice Chairman Shri Suresh Jindal should occupy the position of Chairman in case the petitioner is either got suspended or removed in collusion with the group of opposite camp. It is stated that a complaint was made to respondent No. 2 on false or frivolous allegations. Number of complaints and some reports submitted in this regard have been attached as Annexures 1, 2, 3 and 4. Even though the said allegations were repeatedly made and enquired into and nothing was found against the petitioner, but still vide Annexure-8 dated 24.2.1998, the petitioner was issued a show cause notice on the allegations mentioned therein which was duly replied by the petitioner vide Annexure-9. The allegations were in regard to making of payment to the daily wage earners, not providing weekly rest to daily wage labours and also in regard to order of promotion to one Shri Mahendra Singh. It was replied by the petitioner that the functions as mentioned in the allegations were actually of the Chief Executive Officer and not of the petitioner; it was so stated by the petitioner in Annexure-9. It is stated that at one time it was decided by the Secretary of the Department to drop the show cause notice Annexure-8 having not been proved. The petitioner has reproduced certain nothings as appearing on the file in the writ petition itself at page 9. It is stated that at one time it was decided by the Secretary of the Department to drop the show cause notice Annexure-8 having not been proved. The petitioner has reproduced certain nothings as appearing on the file in the writ petition itself at page 9. It is stated that the petitioner was surprised to receive a letter Annexure-10 dated 11.11.1998 suspending the petitioner under Section 63 of the Rajasthan Municipalities Act. It is alleged that she has been ordered to be suspended so that Shri Suresh Jindal may be handed over the charge of Chairman who may be helpful to Shri Goyal for election to the seat of M.L.A. in the ensuring elections. The impugned order Annexure-10 is attacked on the ground that it does not confirm the mandatory provisions of Section 63 as no charge-sheet had been issued to the petitioner and until and unless a charge-sheet is issued, the petitioner could not have been suspended. It is also attacked on the ground that from the bare reading of Annexure-8, no misconduct had been made out from the charges of show cause notice dated 24.2.1998 or in the alternative in the enquiry held, the petitioner stood exonerated. It is further submitted that the action is being taken against the petitioner with a mala fide intention and the petitioner being elected member is being victimized. 2. Reply has been filed by the respondents. It is stated that as many as 20 members had made complaints against the petitioner. The allegations of mala fide are denied. It is stated that the State Government had power to appoint an enquiry officer. It is further stated in the reply that some preliminary enquiry was held vide Annexure-3 by the Executive Officer and report was submitted and on 11.11.1998 it was decided to suspend the petitioner. The enquiry report has been attached as Annexure R-3 and the charge-sheet dated 11.11.1998 as Annexure-4. 3. A replication has been filed on behalf of the petitioner denying the averments made in the written statement. It was further stated that even the so called preliminary enquiry was held at the back of the petitioner and she was never associated with the enquiry. It is further submitted that the charge-sheet Annexure R-4 had not been received by the petitioner. It was further stated that even the so called preliminary enquiry was held at the back of the petitioner and she was never associated with the enquiry. It is further submitted that the charge-sheet Annexure R-4 had not been received by the petitioner. It was actually issued on 18.11.1998 and was received by the petitioner on 29.11.1998 vide Annexure-12 and thus it was in violation of the mandatory provisions of Section 63 of the Act. 4. At the time of arguments on the stay application/vacation of the stay application, the parties had desired that the arguments being addressed on the stay application shall also be applicable to the main case as well and it was thought appropriate to dispose of the main case itself as requested and desired by the counsel. 5. Section 63 of the Rajasthan Municipalities Act provides the procedure for removal of members on the ground of absence from the meetings for more than three consecutive months or three consecutive ordinary general meetings, if he has failed to comply with the provisions of Section 61 or he has incurred any of the disqualifications mentioned in Section 18 or Section 26 or has ceased to fulfil the requirements of Section 24 or he has been guilty of misconduct in the discharge of his duties; or guilty of any disgraceful conduct, or becomes incapable of performing his duties as a member, or otherwise flagrantly abused in any manner his position in any manner. However, the order of removal is to 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. He is entitled to continue in the office subject to the provisions contained in Sub-section (4). It is provided in sub-section (2) of Section 63 that on the inquiry having been referred under sub-section (1) and after hearing the explanation of the concerned member, the State Government shall draw up a statement setting distinctly the charge against the member and shall send the same enquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. Under Sub-section (3) of Section 63 such judicial officer shall record his finding after enquiring into the charges. Under Sub-section (3) of Section 63 such judicial officer shall record his finding after enquiring into the charges. However, the State Government may place such office under suspension against whom proceedings have been commenced. Section 63 reads as under: "63. Removal of members-(1) The State Government may, subject to the provisions of sub-sections (2) and (3), remove a member of a board on any of the following grounds, namely: (a) that he has absented himself from the meetings of the board for more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period, without leave of the board: 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 61; (c) that after his election he has incurred any of the disqualifications mentioned in Section 18 or Section 26 or has ceased to fulfil the requirements of Section 24; (d) that he has (i) been guilty of misconduct in the discharge of his duties, or (ii) been guilty of any disgraceful conduct, or (iii) become incapable of performing his duties as a member, or (iv) otherwise flagrantly abused in any manner his position as such member; Provided that an order of removal shall be passed by the State Government the such inquiry 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. (1A) The power conferred by sub-section (1) may be exercised by the State Government of its own motion or upon the receipt from the board in that behalf or upon the facts otherwise coming to the knowledge of the State Government: 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 contailed in sub-section (4), continue to act and to exercise all the powers and perform all the duties of, a member and shall as such be entitled to all rights and be subject to all the liabilities a member under this Act. (2) 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 provio to the sub-section and after hearing the explantion 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 inquiry and findings by Judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. (3) The Judicial Officer so appointed shall proceed to inquire into the charge in the prescribed manner, 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 pass orders in conformity with those findings. (4) Notwithstanding the foregoing provisions of this section, the State 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 board or otherwise perform the duties of a member thereof. (5) Every 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. 6. A single Bench of this Court in the case of Nand Lal Vs. State of Rajasthan 1995(2) RLR 34=1996(2) WLC 497 had held that the suspension means to put a stop to for the time being, to debar or cause to withdraw temporarily from any privilege, office or function and it is not something automatic which flows as a necessary consequences of show cause notice. It was held that the suspension is some time looked at as something serious and before any such action is taken the concerned authority has to bear it in mind that there is no malice or the step was not being taken arbitrarily, maliciously or vindictively. It was held that the suspension is some time looked at as something serious and before any such action is taken the concerned authority has to bear it in mind that there is no malice or the step was not being taken arbitrarily, maliciously or vindictively. It was further held that the supsension should not be used hand-tool for disgruntled political rivals since it destroys the very institution and it is the interest of the institution that suffers in the process. The Single Judge had also observed that the misconduct or the performance of duties have to be of the kind that these amount to a flagrant abuse. 7. In the case of Ashok Kumar Jain & Ors. Vs. The State of Rajasthan & Another, 1993(3) WLC 180 , it was held that it was only after the consideration of the report of inquiry referred to in the proviso to sub-section (1) of Section 63 of the Act and after hearing the explanation of the member concerned, that it can be proposed under sub-section (2) of Section 63 of the Act that a Member/Chairman should be removed from his office on the grounds contained in clause (d)(i) of Section 63(1) of the Act. The Hon'ble Judge had held that the existence of a report under the proviso to sub-section (1) of Section 63 of the Act and consideration of the explanation, if any, of the Member/Chairman concerned, is a condition precedent for the commencmeent of the proceedings within the meaning of Section 63(4) of the Act. It was further held that the existene of the report of the preliminary enquiry is a condition precedent for issuing a notice to the Chairman or the Member of the Municipal Board, as the case may be, and only after receipt of the enquiry report, the State Government decides to proceed against a member, it can be said that there has been application of mind and the proceedings can be said to be commenced against a member/Chairman for the purposes of sub-section (4) of Section 63 of the Act. In the case of Ashok Kumar Jain (supra) it was held that there was absoloutely no report of the preliminary enquiry and the Minister had taken a decision to suspend the petitioner in utter disregard of the provisions of Section 63 of the Act. In the case of Ashok Kumar Jain (supra) it was held that there was absoloutely no report of the preliminary enquiry and the Minister had taken a decision to suspend the petitioner in utter disregard of the provisions of Section 63 of the Act. The Court observed as under: "Therefore, so far as a Member/Chairman of the Municipal Board, who is sought to be removed on the ground that he has been guilty in the discharge of his misconduct can only be removed after complying with the provisions of the Act. 'It is only after consideration of the report of inquiry referred to in the proviso to sub-section (1) of Section 63 of the Act and after hearing the explanation of the member concerned, that it can be proposed under sub-section (2) of Section 63 of the Act that a Member/Chairman should be removed from his office on the grounds contained in clause (d)(i) of Section 63(1) of the Act. I am, therefore, of the opinion that the existence of a report under the proviso to sub-section (1) of Section 63 of the Act and consideration of the explanation, if any, of the Member/Chairman concerned, is a condition precedent for the commencement of the proceedings within the meaning of Section 63(4) of the Act. I am, therefore, of the opinion that the existence of a report under the proviso to sub-section (1) of Section 63 of the Act and consideration of the explanation, if any, of the Member/Chairman concerned, is a condition precedent for the commencement of the proceedings within the meaning of Section 63(4) of the Act. Therefore, so far as a Member/Chairman of the Municipal Board/Council is concerned, the proceedings under section 63 of the Act can only be said to have been commenced after the State Government has applied its mind to the report under the proviso to sub-section (1) of Section 63 of the Act and consideration of the explanation, if any, of the Member/Chairman concerned." "It can, therefore, be said from the aforesaid discussion that the existence of the report of the preliminary enquiry is a condition precedent for issuing a notice to the Chairman or the Member of the Municipal Board, as the case may be, and only after receipt of the enquiry report, the State Government decides to proceed against a member, it can be said that there has been application of mind and the proceedings can be said to be commenced against a member/Chairman for the purposes of sub-section (4) of Section 63 of the Act." "It can, therefore, be said that there was absolutely no preliminary enquiry and Minister took a decision to suspend the three petitioners in utter disregard of the provisions of Section 63 of the Act and it cannot be said that the proceedings for removal of the three petitioners have not commenced within the meaning of sub-section (4) of Section 63 of the Act and, therefore, the State Government could not have exercised the powers of suspension. The order of the State Government is, therefore, without jurisdiction as the condition precedent to the applicability of Section 63(4) of the Act was not fulfilled." 8. In the case of Jagdish Narain Sharma & Ors. Vs. State of Rajasthan & Ors. 1994(2) RLR 113 =1994(2) WLC 615 relying on a Division Bench judgment in the case of Mohan Lal Vs. State of Rajasthan 1968 ILR (Raj.) 259 , it was held by this court that the preliminary enquiry has to be held under section 63(1) of the Act as a precondition. Vs. State of Rajasthan & Ors. 1994(2) RLR 113 =1994(2) WLC 615 relying on a Division Bench judgment in the case of Mohan Lal Vs. State of Rajasthan 1968 ILR (Raj.) 259 , it was held by this court that the preliminary enquiry has to be held under section 63(1) of the Act as a precondition. It was observed as under: "A close reading and scrutiny of sub-section (2) makes it abundantly apparent that a preliminary enquiry under the proviso to sub-section (1) is contemplated under sub-section (2) of Section 63 of the Act. Sub-section (2) expressly provides for an enquiry and further action to be taken in that behalf, as a result of the preliminary enquiry referred to in the proviso to sub-section (1) of Section 63. The intention of legislature is dear that a preliminary enquiry under the proviso to sub-section (1) should be undertaken before any action is to be taken for removal of a member on the grounds specified in sub-section (1)(d) of Section 63. In other words, a preliminary enquiry is not the stage when it can be said that an action for removal of a member under sub-section (2) is commenced. The words 'proposed to remove a member' in sub-section (2) make it dear that the action to remove a member under sub-section (2) starts only after the result of the preliminary enquiry, the State Government decides to take action. It is at that stage that the State Government makes up its mind whether or not to take an action for the removal of the member. Therefore, the object of the preliminary enquiry is to verify whether there is any substance in the allegation made against a member. This view stands fortified by the following observations made by the Division Bench of this court in the case of Mohan Lal Vs. State of Rajasthan, 1968 ILR (Raj.) 259. " 9. The Single Bench had also noticed in the case of Prem Prakash Vs. State of Rajasthan 1993(1) WLR 567 and a Division Bench decision in the case of Jan Mohammad Vs. State of Rajasthan & Ors. State of Rajasthan, 1968 ILR (Raj.) 259. " 9. The Single Bench had also noticed in the case of Prem Prakash Vs. State of Rajasthan 1993(1) WLR 567 and a Division Bench decision in the case of Jan Mohammad Vs. State of Rajasthan & Ors. 1992(2) WLC (Raj.) 463 and it was held that before suspending a member/Chairman of a municipal Board, what is essential is that the preliminary enquiry should be conducted and its report should be considered and after application of mind on the preliminary report, if the State Government considers it fit that the matter needs further enquiry then a show cause notice has to be issued to such Member/Chairman of the Board as to why specific charges not be framed against him and those be referred to the judicial officer and simultaneously, the suspension order can be passed. It was observed as under : "Shri Ranjit Joshi, the learned counsel for the petitioners has placed reliance on Prem Prakash Vs. State of Rajasthan, 1993(1) WLR 567 , wherein the learned S.B. of this Court has held that making of preliminary enquiry under section 63 is not equivalent to the proceedings envisaged under section 63(2) and that issue of charge-sheet is a sine qua non before power under section 63(4) can be invoked and that the suspension of a Member of the Municipal Board before framing of charge suffers from serious legal infirmity and is without jurisdiction." "In Jan Mohd. Vs. The State of Rajasthan & Others, 1992(2) , Western Law Case Rajasthan-463, a D.B. of this Court affirming the view taken in Ugamsee Modi Vs. State of Rajasthan, 1962 R.L.W. 184 and Mohan Lal Vs. Vs. The State of Rajasthan & Others, 1992(2) , Western Law Case Rajasthan-463, a D.B. of this Court affirming the view taken in Ugamsee Modi Vs. State of Rajasthan, 1962 R.L.W. 184 and Mohan Lal Vs. State of Rajasthan 1963 RLW 209 has reiterated that before suspending a member/Chairman of a municipal board, what is essential is that the preliminary enquiry should be conducted and its report should be considered and after application of mind on the preliminary report, if the State Government considers it fit that the matter needs further enquiry then a show cause notice has to be issued to such Member/Chairman of the Board as to why specific charges be not framed against him and those be referred to the judicial officer and simultaneously, the suspension order can be passed, because as soon as there is application of mind on the report that has been submitted by the enquiry officer when Government decides what action has to be taken and that is the stage when the proceedings commenced against the petitioners and that prior to that, is the stage of holding the preliminary enquiry. Therefore, a preliminary enquiry in respect of the alleged misconduct of a Member/Chairman and, an application of mind on the report of such preliminary enquiry or the material available with the State Government are sine qua non or conditions precedent for passing an order of suspension under Section 63(4) of the Act, and it is not at all necessary to issue a show cause notice or afford an opportunity of hearing to such Member as to why he should not be suspended. It is also not necessary to draw up a statement setting out distinctly the charge against the member and to send the same for enquiry and findings of a judicial officer before issuing a suspension order under section 63(4) of the Act." 10. This court also held in the case of Jagdish Narain (supra) that it is needless to reiterate that the holder of an electoral post cannot be equated with a Government servant, and, therefore, before the holder of such an electoral post is suspended, the Government must have sufficient reasons to do so and care should be taken that such suspensions are not arbitrary, irrational, whimsical, unjust, unfair or actuated out of political motives or for political considerations. 11. In the case of Jan Mohd. Vs. 11. In the case of Jan Mohd. Vs. State of Rajasthan 1992(2) WLC 463 , it was held that before suspending the Chairman of the Municipal Board it is a condition precedent that a notice should be issued. 12. In the present case, before issuing the suspension order Annexure-10 on 11.11.1998, the petitioner was issued show cause notice Annexure-8 on three alleged charges; (1) that as per audit objection certain amount has been paid to a daily wages worker of the Municipality; (2) that certain daily wage workers have not been given the weekly rest and they have been shown as working regularly from 1 to 16 days; (3) that one Mahendra Singh had been promoted on 19.12.1995. 13. The above said three allegations were enquired into and it is stated by the petitioner that except the promotion of Mahendra Singh the other charges had not been established in the preliminary enquiry and so far as the charge of promotion of Mahendra Singh is concerned, it cannot be said that it can amount to a misconduct, even though the promotion was made in a regular manner as per the instructions issued from time to time on the proposal of the office. 14. In the charge-shet now issued on 11.11.1998 except the charge of promotion of Mahendra Singh, other charges were never the subject matter of any show cause notice or explanation or enquiry under Section 63(1) of the Act. Before passing the order of suspension as has been held by this court in various judgments as discussed above, it was necessary to hold preliminary enquiry on all the alleged allegations, association of the petitioner by asking his explanation and also to take action under Section 63(2) of the Act, no such procedure has been adopted and straightway some enquiry is said to have been held on as many as more than nine charges as mentioned in Annexure-4 for which no action under Section 63(1) or (2) was taken and thus, the suspension order passed under Section 63(4) without complying with the mandatory provisions of sub-section (1), (2) and (3) of Section 63 cannot be maintained and is liable to be set aside. 15. 15. It is also admitted during the time of arguments that so far the charge-sheet Annexure R-4 is concerned, the petitioner had not been given any opportunity to explain the charges mentioned in the said charge-sheet and since the charge-sheet has been framed on the file, the petitioner had also been suspended on the same date. To my mind, it is a clear violation of the mandatory provisions of Section 63(1) and (2) of the Act. Certain allegations of mala fide have been levelled against the respondent Minister but in view of the fact that the suspension itself is being held illegal and order Annexure-10 is being quashed, there is hardly any necessity to go into the other aspects being raised by the petitioner.For the reasons mentioned above, the writ petition is allowed. The order Annexure-10 is quashed with a cost of Rs. 2,000/-.Petition Allowed with costs. *******