JUDGMENT 1. :- The petitioner, who is an elected member of Municipal Board, Chirawa District Jhunjhunu pursuant to the General Elections for members of the Municipal Board (hereinafter referred to as 'the Board') which were held in August, 1995 and thereafter by way of further election from amongst the members of the said Board, the petitioner was elected as Vice Chairman and he took charge as such in August 1995 itself. 2. The petitioner is also a member of the Bharatiya Janata Party (BJP) and is a district representative of Jhunjhunu of Pilani Assembly area. Since his election as Vice Chairman, he has been performing all functions in the said capacity for the welfare and upkeep of the Board. The petitioner is also running a printing press in the name and style of M/s Mahalaxmi Printers over the past more than 22 years and has also been publishing weekly news paper named 'Shekhawati Halkaro' having its registration from the Government of India vide No. 62297/89 is carrying on the business of printing and publishing since 1989. He has been publishing news items as well as advertisements in his aforesaid news paper, which he has been receiving from time to time from the Government Agencies as well as from private individuals. The said news paper has also been publishing auction notices and other relevant advertisements. Some of such advertisements have been published on receipt of orders from Municipal Board Pilani, Sales Tax Department, Jawahar Navodaya Vidyalaya, Kajera Ballooning to the Central Government as also from different judicial Courts including Additional District and Sessions Judge Khetri, as well as from Krishi Upaj Mandi Samiti. 3. It may be noted in this context that before his election as Vice Chairman of the Board in the year 1995, the petitioner had also published advertisements on receipt of orders from the Board in his aforesaid news paper since 1991 and thereafter. 4. 3. It may be noted in this context that before his election as Vice Chairman of the Board in the year 1995, the petitioner had also published advertisements on receipt of orders from the Board in his aforesaid news paper since 1991 and thereafter. 4. Pursuant to the change of political climate in Rajasthan in the last Assembly Elections held in 1998, it has been contended on behalf of the petitioner that he was subjected to repeated harassment and humiliation by non-petitioner No.2, i.e. the Deputy Secretary, Department of Local Bodies, Government of Rajasthan, and this fact is evident from the explanation of the petitioner which was called for by the said respondent on 29.4.99 with regard to the charge (1st charge) framed against him regarding publication of some material pertaining to the advertisements in his news paper. 5. The first allegation levelled against the petitioner was misuse of his power and official position in the capacity of Vice Chairman in connivance with the Chairman of the Board, when he had obtained order for publishing advertisements in his news paper as against the consideration of Rs. 2927/- received from the Board. The charge with regard to the aforesaid allegation was that since the advertisement in petitioner's news paper issued from different Municipal Boards as well as from Municipal Board Chirawa since 1991; he received aforesaid amount for having published three advertisements in relation to preparation of Ration Card for value of Rs. 560/-. 6. Second allegation was in respect of the Boards advertisements with regard to the instructions for keeping the municipal area neat and clean for which he had received a consideration of Rs. 1100/-. 7. The third allegation against the petitioner was for advertisement published for inviting tenders for removal of dead animals from the municipal area Chirawa for an amount of Rs. 840/-. In this manner the total amount of Rs. 2500/- was paid to the petitioner by the Board. 8. The second charge levelled against the petitioner was in respect of the payment of Rs. 15,202/- received by him for printing and stationery charges from the Board. 840/-. In this manner the total amount of Rs. 2500/- was paid to the petitioner by the Board. 8. The second charge levelled against the petitioner was in respect of the payment of Rs. 15,202/- received by him for printing and stationery charges from the Board. He was subjected to an enquiry which was initiated against him by the Board, i.e. preliminary enquiry, which was conducted by the Sub Divisional Officer Jhunjhunu; after calling explanation from the petitioner for suo-motu show cause notice issued to him on 29.4.99 vide (Annexure-1), to which he was given ten days' time to file his reply failing which enquiry under section 63 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') was to be conducted. 9. From the perusal of Annexure 1 dated 29.4.99, it is borne out that the Department of Local Bodies, Government of Rajasthan, Jaipur and sought explanation of the petitioner as aforesaid regarding misuse of his official position in the capacity as Vice Chairman of the Board, since he had in collusion with Chairman of the Board received certain orders for publication of advertisements in his aforesaid news paper and thereby had received payment of Rs. 2927/- and Rs. 15202/- through his printing press M/s Mahalaxmi Printers and the payments were received in this manner which were exorbitant and not permissible as per the rules and had thus caused monetary loss to the Nagar Palika for which he was liable to disciplinary action as per Section 63 of the Act. 10. In reply to the show cause notice dated 29.4.1999, the petitioner had submitted his explanation to the Director, Department of Local Bodies vide (Ann.2) by controverting the allegations as referred to hereinabove by contending inter alia that the news paper of the petitioner has been regularly receiving orders for publication of advertisements from Municipal Board Chirawa since 11th December, 1991 to 31.3.1995 and he has been regularly publishing the advertisements so received of the Nagar Palika for the past 17 years. He had enclosed the details of advertisements regarding payments received by him against the bills referred to in the reply. He had enclosed the details of advertisements regarding payments received by him against the bills referred to in the reply. The petitioner at the same time submitted that during the relevant period he was not functioning as Vice Chairman of the Municipal, Board Chirawa and with regard to the allegation regarding publication of advertisements of the Nagar Palika during his tenure as Vice Chairman; only three advertisements were published as per the order given by the Executive Officer of the Department of Local Bodies, who is a Government servant and the petitioner had not received the orders from the Chairman. The total payment received by the petitioner for publication of the advertisements from 19.1.96 to 14.5.96 was Rs. 2500/- only. It was submitted that the petitioner's news peper is a registered news paper and he has been regularly publishing advertisements in the same for various Government departments and, in fact, with the approval of the State Government. 11. It was further contended by the petitioner that since all the orders pertained to publication of printing of the advertisements had been received by the petitioner prior to his tenure as Vice Chairman of the Board, there was nothing wrong regarding publication of the said advertisements as it would not tantamount to misuse of his official position in the capacity as Vice Chairman. Moreover, he had only served a public cause for the welfare of the Board and in all bonafides of the public at large by publishing the advertisements through his printing press. Consequently he prayed for dropping of the proceedings initiated against him as per Section 63 of the Act. In alternative it was contended that the allegations levelled against the petitioner do not come within the purview of any of any 'disgraceful' act or 'misconduct' or 'flagrant abuse of power' in discharge of his duties in the capacity of Vice Chairman of the Board so as to attract the provisions of Section 63(1)(d) of the Act so as to entail his suspension from office and thereafter his removal from the post in the event of the charges being established and proved on the basis of the evidence to be led by the parties concerned. 12. 12. After receipt of the reply to show cause notice dated 29.4.99 (Ann.2), the respondents passed impugned order dated 7th June, 99 (Ann.3) by which the petitioner was placed under suspension by the respondents following preliminary enquiry conducted against him vide Ann.3. As the order of suspension was passed by the State Government by having resort to by the provisions of Section 63(4) of the Act which empowers the State Government to place under suspension a member of the Board against whom proceedings have been commenced under this section following conclusion of preliminary enquiry till 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. 13. In order to appreciate the contentions advanced by the learned counsel for the parties in true perspective, it would be better to briefly refer to the salient provisions of the Act. 14. Sub Section (2) of Section 63 of the Act stipulates that where it is proposed to remove a member of the Board on any of the grounds specified in clause (c) or clause (d) of sub sec.(1), as a result of the enquiry 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 inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose. 15. It may be pertinent to mention in this context that before any member of the Board may be removed in the event of his/her having incurred any of the disqualifications as stipulated in clause (c) or clause (d) of sub-sec. 15. It may be pertinent to mention in this context that before any member of the Board may be removed in the event of his/her having incurred any of the disqualifications as stipulated in clause (c) or clause (d) of sub-sec. (1) of Section 63 of he Act the State Government has to be satisfied that the member concerned, after his election to the office of Member, Vice Chairman or Chairman, as the case may be, has incurred any of the disqualification mentioned in Section 18 or 26 or has ceased to fulfill the requirements of section 24 and further that he (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 : As submitted in clause (d) of sub-section (1) of Section 63, the proviso to Section 63 regulates the procedure that before any order of removal could be passed against any member or office bearer of the Municipal Board, the State Government is competent to pass the same only 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 sufficient opportunity of submitting explanation. The regulatory clause is as per Section (1A) of Section 63, which stipulates that the power conferred by sub-section (1) regarding removal of a member of a Board may be exercised by the State Government either of its own motion or upon the receipt of a report 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 said office by an order of the State Government, he shall not vacate his office and shall, subject to the provisions contained in sub-section (4) of Section 63, continue to act as such, and to 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 the Act. 16. 16. In reply to show cause notice, it has been contended on behalf of the respondents inter alia that the complaints against the petitioner had been received by the Board while in his capacity as Vice Chairman, he was guilty of misconduct in discharge of his duties and was also guilty of disgraceful conduct by flagrantly abusing his official position as Vice Chairman of the Board. On merits, the respondents have not disputed the position that the petitioner who is proprietor of M/s Mahalaxmi Printers and was also publishing news paper known as 'Shakhawati Halkaro' while at the same time it has been contended that the petitioner's said news paper is not recognised by D.P.R. for the purpose of publication of advertisements of the Board more particularly for publication of the Government's advertisements. Hence its publication by the petitioner was not permissible being contrary to the rules and instructions. It has, thus been contended that advertisements given to the news paper of the petitioner by the Municipal Board were not only illegal from the point of view that the news paper being not recognised by the Government itself but also from the point of view that the petitioner in his capacity as Vice Chairman of the Board he could not have taken undue advantage of his position which in any case amount to flagrantly abusing his position as Vice Chairman and member of the Municipal Board respectively besides it also amounted to misconduct and disgraceful conduct on his part. 17. As regards the initiation of preliminary enquiry against the petitioner by the State Government it has been justified on the ground that neither the said enquiry nor the suspension is open to challenge since it is only on the basis of the aforesaid allegations that the State Government had directed initiation of preliminary enquiry through District Collector, Jhunjhunu, who had deputed the Sub-Divisional Officer Jhunjhunu to enquire into the matter. 18. The SDO in his preliminary enquiry submitted on 17th October, 1997 had elaborately dealt upon the various charges not only against the petitioner but also the Chairman. It was noted by the enquiry officer during the course of preliminary enquiry that the circulation of the news paper in which the petitioner had allegedly published the advertisements was very limited and as a result of which no much publicity could be given to the intended advertisements. It was noted by the enquiry officer during the course of preliminary enquiry that the circulation of the news paper in which the petitioner had allegedly published the advertisements was very limited and as a result of which no much publicity could be given to the intended advertisements. Further more the news paper was also not recognised by the D.P.R. for publication of Government Advertisements. Hence undue favour has been shown to by publication of advertisements in petitioner's news paper and since stationery and printing work was given to him without inviting tenders and in absence of resolution of the Board the enquiry was conducted at the time when the political party to which he belongs was in power. Hence merely on this ground alone it could not be inferred that the petitioner was subjected to political victimisation. 19. The respondents have further denied that the charges against the petitioner regarding misuse of his official position as Vice Chairman of the Municipal Board in having got the advertisement published in collusion with Chairman of the Board, are baseless and incorrect. 20. As regards sustainability of the impugned order of suspension dated 7th June, 99, it has been contended that the State Government upon consideration of the preliminary enquiry report decided to place the petitioner under suspension as also the Chairman of the Municipal Board since they were both found in collusion and certain charges against them are similar and if they were allowed to continue in their respective position, it was possible that fair and impartial enquiry would not have been completed. The respondents have further contended that since the charges levelled against the petitioner are fully covered under the provisions of Section 63(i)(d) of the Act of 1963 and since the petitioner has been found guilty of disgraceful conduct by flagrantly abusing his position as Vice Chairman, the impugned order of suspension dated 7th June, 1999 is not open to challenge and the action of the respondents in having passed the same and also the show cause notice dated 29.4.99 are not open to challenge by way of this writ petition. They have further contended that the impugned order of suspension cannot be held to be malafide or arbitrary since no notice or opportunity of hearing was required to be given to the petitioner at the stage of preliminary enquiry since it was conducted by a fact finding body and the position of law in this regard is well settled, hence the petitioner's contentions deserve to be rejected. 21. As regards the constitutional provisions, it has been contended that after 74th amendment of the Constitution, the Government has not been divested of its powers to place an elected member under suspension. On the contrary as per Article 243 of the Constitution, a person shall be disqualified for being chosen as 'and, for being' a member of Municipality if he is so disqualified by or under any law made by the Legislautre of the State. Hence no embargo has been placed on the powers of the Government with regard to 74th amendment of the Constitution is concerned in this regard. 22. The first contention which was advanced on behalf of the petitioner by Shri B.L. Sharma is that the allegation levelled against the petitioner do not come within the purview of any disgraceful act or misconduct or with regard to flagrant abuse of powers as indicated in Section 63(1)(d) of the Act of 1959. The charges levelled against the petitioner are not so serious as to entail his suspension as elected member of the Board. It was further contended that there was no foundation for conducting preliminary enquiry on the basis of which the petitioner has been suspended and in any event the election of the petitioner was for a limited period of 5 years only during which he had earlier been elected as a member of the Municipal Board and thereafter as Vice Chairman and subsequently placed under suspension vide impugned order dated 7th June, 99 (Ann.3), which is not sustainable in law as it fails to meet the requirements of tl Act. It was further contended that the charges framed against the petitioner do not come within the ambit and scope of powers of the Municipal Board to have directed to put the petitioner under suspension as per Section 63(1)(d) of the Act. It was further contended that the charges framed against the petitioner do not come within the ambit and scope of powers of the Municipal Board to have directed to put the petitioner under suspension as per Section 63(1)(d) of the Act. Alternatively, it was contended by the learned counsel that in any event different yardstick is to be applied in case of elected members of the Municipal Board, whose election is only for a fixed term of five years which is of a short duration, whereas in case of Government servants whose tenure is not limited for a fixed period, different yardstick is to be applied. It was further contended in this regard that from the perusal of allegation against the petitioner pertaining to misuse of his official position as an elected member of the Board by getting the printing work done in his printing press in respect of the advertisements, it cannot be disputed that the said advertisements were important for the welfare of the Board and it cannot be construed that the said advertisements have been against public policy or opposed to the same or have damaged the image of the Board in any manner. 23. With regard to the time gap between the explanation sought for from the petitioner vide show cause notice dated 29.4.99, it was contended that the petitioner had submitted his explanation vide his reply (Ann.2) and thereafter the respondents kept the impugned order of suspension deliberately pending for a period of over one and a half years and it is only on 29.4.99, after change of political climate in the State, following the Assembly Elections, on the basis of the alleged preliminary enquiry report dated 17.10.97 of SDO, Jhunjhunu that the petitioner was placed under suspension on 7th June, 99 vide (Ann.3) by the State Government. This shows malafides on the part of the respondents in having deliberately kept the enquiry report pending and to implement the order of suspension only belatedly on 7th June, 99 not only with a view to prejudice the enquiry but also to tarnish his image and reputation. Hence the order is highly arbitrary and not sustainable in law. 24. This shows malafides on the part of the respondents in having deliberately kept the enquiry report pending and to implement the order of suspension only belatedly on 7th June, 99 not only with a view to prejudice the enquiry but also to tarnish his image and reputation. Hence the order is highly arbitrary and not sustainable in law. 24. The next contention advanced by the petitioner's counsel was that the report of preliminary enquiry was received by the State Government on 17.10.99 but no action had been taken thereafter for a period of one and a half years and all of a sudden on 29.4.99 (Ann.1) explanation of petitioner was called for and vide Exh.3 dated 7th June, 99 he was placed under suspension. No explanation has been furnished on record for such inordinate delay on the part of the respondents for taking this belated action. 25. In the backdrop of above events, Shri Sharma further contended that before the power for passing the order of suspension could be resorted to by the respondents with the aid of Section 63(4) of the Act, proceedings for removal of member of the Board under section 63 must have been commenced. The proceedings can be treated to have been commenced only when a show cause notice is issued by the State Government for enquiry and the member is called upon to explain the charges levelled against him followed by the order of suspension if justifiable as per the law by the State Government. 26. In absence of charge sheet, such an order could not have been passed. No charge sheet was served on the petitioner before issuing of suspension order dated 7th June, 99 and even charge sheet could not have been issued simultaneously with the suspension order and the petitioner had in fact received the copy of charge sheet issued by the Judicial Officer alongwith notice dated 18.6.99. It is settled proposition of law that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the requirements of the Statute and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 27. In the reply filed on behalf of the respondents it has also been stated that the charges as referred to above found prima facie proved in the report of preliminary enquiry. 27. In the reply filed on behalf of the respondents it has also been stated that the charges as referred to above found prima facie proved in the report of preliminary enquiry. It has further been contended on behalf of the petitioner that in the additional affidavit filed by the respondents dated 29th June, 99, the aforesaid figures were drastically changed by them as Rs. 10372/- against the publication of advertisements and an additional charge of Rs. 37226/- against the printing work undertaken by the petitioner's brother's firm has also been levelled. It has been contended by the petitioner's counsel that how far these charges are sustainable in view of subsequent manipulations done by the respondents by way of additional affidavit, obviously prove the malafides on the part of the respondents, since where was the occasion for the respondents to have carried out these changes so as to bring matters which are extraneous to the case as so contended by the respondents themselves on the basis of which the original charges were framed against the petitioner. It is inconceivable whether in such circumstances, it will be correct to assume that the petitioner in his capacity as member and subsequently as Vice Chairman of the Municipal Board could be held to be liable for misconduct in discharge of his duties or for disgraceful conduct on his part as per Section 63(1)(d) of the Act for having flagrantly abusing his position can be construed as correct as his alleged collusiveness with the then Chairman of the said Municipal Board which was the foundation of the charge is conspicuously absent having neither been proved nor established on the basis of any evidence on the record. 28. The learned counsel for the petitioner placed reliance upon the following judgments in support of his case: 1. 1996(2) WLC (Raj.) 497 (Nandlal Vs. State of Rajasthan) 2. 1986 RLR (5) 16 (Ajmer Singh Yadav Vs. State of Rajasthan & Others) 3. 1992(2) WLC 463 (Jan Mohammad Vs. the State of Rajasthan & Others) 4. 1979(1) SLR SC 840 (Union of India Vs. Shri J. Ahmed) 5. 1993(1) WLC (Raj.) 567 (Prem Prakash Vs. State of Rajasthan & Others) 6. 1992(2) WLC (Raj.) 533 (Shyam Sunder Sharma Vs. State of Rajasthan & Others) 7. 1972 WLN (5) 523 (Balmukand Vs. The State of Rajasthan) 8. 1989(1) RLR 659 (Dr. R.K. Sharma Vs. State of Rajasthan) 9. Shri J. Ahmed) 5. 1993(1) WLC (Raj.) 567 (Prem Prakash Vs. State of Rajasthan & Others) 6. 1992(2) WLC (Raj.) 533 (Shyam Sunder Sharma Vs. State of Rajasthan & Others) 7. 1972 WLN (5) 523 (Balmukand Vs. The State of Rajasthan) 8. 1989(1) RLR 659 (Dr. R.K. Sharma Vs. State of Rajasthan) 9. RLR 1992(2) 372 (Smt. C.K. Gupta Vs. State of Rajasthan & Another) . 29. In the matter of Nandlal Vs. State of Rajasthan (supra) similar controversy had arisen for consideration of this court, wherein the petitioner, who was Chairman of the Municipal Board was subjected to show cause notice dated 30.11.94 followed by order of suspension dated 23.11.95. Municipal elections were held in Begun District Chhitorgarh in the year 1990. It was alleged that the petitioner belonged to Congress Party and the total strength of the Board consisted of 13 members out of which 12 belonged to Congress while one to Bharatiya Janata Party and the term of the elected members of the Board is of five years. It was further alleged that since the BJP was ruling party in the State and was opposed to the ideology of the Congress party, further problems had been created for the petitioner by the local BJP MLAs. It was submitted that none of the charges could even remotely be taken as misconduct in the discharge of duties or disgraceful conduct which may render the petitioner incapable of performing his duties as Chairman of the Board nor the same could be construed as flagrant abuse in any manner. It was again contended that the charges were vague, indefinite and are aimed to tarnish the image of the petitioner and to liquidate him politically and the charges do not fall within the parameters of Section 63 of the Act. The learned Single Judge after having examined the rival contentions of the parties and the charges in detail with reference to the relevant provisions of the Act opined that since the enquiry was pending in the matter at the hands of a senior judicial officer who happened to be the Joint Legal Remembrancer of the State of Rajasthan while on a cursory look the charges were not serious enough which could be sustained resulting in suspension of the petitioner. The learned Single Judge was further of the view that the suspension means to put a stop for the time being, to debar or cause to withdraw temporarily from any privilege, office or function. In a given situation it may also mean to hold someone in an indeterminate state and in tense uncertainty, a conditional withholding, suspected of crime on suspicion. It is not something automatic which flows as a necessary consequence of show cause notice. It was further opined that as and when somebody is elected as Chairman or Vice Chairman, as the case may be, his political opponenets with a view to tarnish his image, get him involved in enquiry and followed by suspension which may take couple of years and by the time he is exonerated, his entire term might be over. This would not be in the spirit of running democratic institutions and would destroy its very fabric. Some times as some thing serious and before any action is taken, the concerned authority has to bear in mind that there is no malice or the step was not taken arbitrarily, maliciously or vindictively; it does not mean that the elected Chairman, Vice Chairman or the Members of the Board should not keep their conduct dean but whenever such type of things happended it does carry a stigma and the person concerned who feels embarrassed in the general public and particularly the electorate on whose strength and support, he comes to occupy the position. Since the learned Single Judge was of the view that suspension should not be resorted to in a case of an elected public officer unless there is something eminently grave in view of the allegations levelled against the petitioner, which would not effect the enquiry even if he is permitted to continue in the office, the order of suspension was not held sustainable. It was further opined that normally court would not interfere in suspension orders lightly but having regard to the fact that since elected representative of public office cannot be equated with that of a Government employee since these offices are held by the incumbent temporarily for a limited duration of time, the court should not shirk its responsibility to intervene in such matters as and when glaring case of its kind is brought to its notice. Consequently the order of suspension was revoked, being not sustainable. 30. In Jan Mohd. Consequently the order of suspension was revoked, being not sustainable. 30. In Jan Mohd. Vs. State of Rajasthan & Other (supra), the question which had arisen for consideration before the learned Division Bench of this Court related to interpretation of the provisions of Section 63(1)(4) of the Act in the context of suspension of a Member/Chairman of Municipality, wherein it was observed thus : "Sub-sec.(4) of Section 63 of the Act starts with a non-obstante clause i.e. 'Notwithstanding the foregoing provisions of this section, the State Govt. may place under suspension a member against whom proceedings have been commenced under this 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. It was contended that proceedings can be said to have been commenced only when the State Govt. frames the charges and refers the matter to the judicial officer. That is the stage when it takes a final decision whether enquiry has to be instituted against the persons concerned or not and prior to that, it has to obtain explanation of the Member or the Chairman concerned and thus, according to him, the proceedings can be said to have commenced only when after application of mind, the State Government decides to frame charges and refer them to the judicial officer. Before suspending a Member/Chairman of the Municipal Board/ Council, what is essential is that the preliminary enquiry report should be considered and after application of mind on the preliminary enquiry 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 Municipal Board/Council, why specific charges be not framed against him and they be referred to the Judicial Officer and simultaneously, the suspension order can be issued because as soon as there is application of mind on the report that has been submitted by the Enquiry Officer, when the Govt. decides what action has to be taken and that is the stage when the proceedings commence against the petitioner. Prior to that, is the stage of holding of preliminary enquiry'. 31. decides what action has to be taken and that is the stage when the proceedings commence against the petitioner. Prior to that, is the stage of holding of preliminary enquiry'. 31. It was further observed by this Court that before an officer is suspended a preliminary enquiry should be held by some responsible officer and after the receipt of report, the State Government should apply its mind and thereafter arrive at the conclusion as to whether further probe is essential for the removal of the holder of elected public office. It is only thereafter that in such an event, notice under section 63(2) of the Act to show cause may be issued regarding framing of definite charge but before an action is taken for suspending such officer, it is not at all essential that a pre-decisional hearing has also to be given to him. For the removal of holder of a public office of Chairman of Municipal Board, if it is decided to issue a notice to the delinquent, that is the stage when the proceedings start against the Chairman or Member of the Board and the State Government has the power to suspend the Chairman or such Member simultaneously when it decides to issue a notice of show cause under section 63 (2) of the Act. The suspension of Chairman or Member of the Board pending enquiry, being an interim measure, the suspension does not result in civil or evil consequences. However, the significant aspect of the matter that the learned DB of this Court relied upon in the aforesaid judgment : a word of caution that the holders of elective public post cannot be equated with Government servants and if holder of such public post is suspended, the Government must have sufficient and justifiable reasons to do so. Such suspension should not be arbitrary and the suspension of such elected representatives should not be brought about for political motives or consideration. 32. Such suspension should not be arbitrary and the suspension of such elected representatives should not be brought about for political motives or consideration. 32. It was observed by the learned DB in the above matter and other connected writ petitions which were decided by the common single order that since complaint is received by the State Government, it has to be enquired into and after receipt of preliminary enquiry report, it has to be considered by the State Government and thereafter, if after due consideration, the State Government comes to the conclusion that on the basis of preliminary enquiry, the complaint is false, then the proceedings should be dropped but if it thinks proper that charges levelled against the delinquent requires a thorough probe then charges can be referred to the judicial officer for enquiry. 33. Applying the ratio of the aforesaid decision which is attracted to the instant case, on the basis of the aforesaid, I am consequently of the view that the preliminary enquiry should be conducted by some responsible Government functionary and requires thorough probe unless and until it is opined in the preliminary enquiry report that the continuation of the delinquent may result in loss to the finances of the concerned Institution by the holder of public officer, only in that event, the matter may be referred to judicial Officer for further enquiry in accordance with law but not otherwise. 34. In Union of India Vs. J. Ahmed (supra), the question which arose for consideration of the Apex Court was with regard to the code of conduct of Government employees, who are governed by All India Service (Conduct) Rules, 1954 as to what constitutes 'misconduct' which may entail disciplinary action against them. It was observed by the Apex Court that, lack of efficiency & failure to attain higher standard of administrative ability while holding a post would not by itself amount to misconduct since it merely tantamounts to lack of personal qualities and would not by itself initiate a cause for holding disciplinary enquiry against the erring official. It was further observed that the code of conduct as set out in the Conduct Rules clearly indicates that unless the conduct is blameworthy for the Government servant in the context of Conduct Rules every act complianed would by itself should not be construed as misconduct. It was further observed that the code of conduct as set out in the Conduct Rules clearly indicates that unless the conduct is blameworthy for the Government servant in the context of Conduct Rules every act complianed would by itself should not be construed as misconduct. Failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. Consequently the Apex Court held that it was difficult to subscribe to the view adopted by the High Court. 35. In the matter of Balmukand Vs. The State of Rajasthan (supra) the question which arose for consideration was as to whether printing work of a particular amount carried out on behalf of the Municipal Board could entail his disqualification from membership of the Board. The learned Single judge while interpreting the provisions of Section 26 and 63 of the Act of 1959 observed thus: "It cannot be forgotten that clause (d)(v) of the proviso is an integral part of clause (xii) of Section 26 of the Act, and the disqualification as prescribed by clause (xii) can be incurred by a member of the Board only when a member receives payment from the Board for the occasional sale of any article in excess of the prescribed limit and unless such a limit is fixed under the proviso it is difficult to hold that a person has incurred disqualification under the provisions of Section 26(xii) of the Act for having dealings with the Board" 36. Consequently, I am of the view that since no upper limit was specified or fixed under the Rules by the State Government with regard to carrying out the printing work which the petitioner had undertaken on behalf of the Municipal Board as its member, merely because the petitioner had incurred certain expenditure with regad to the printing work of the Board of which he was reimbursed, that by itself cannot be construed as 'misconduct' or 'flagrant abuse of powers' as member of the Board as per interpretation of Section 26 and 63 of the Act. In view of this position, the order of suspension passed by the State Government suspending the petitioner and thereafter initiating disciplinary proceedings against him would obviously be beyond the scope and competence of the State Government and cannot be sustained. 37. In the matter of Prem Prakash Vs. State of Rajasthan (supra) this court while deprecating the casual manner in which the Director of Local Bodies had acted in a similar matter observed thus : "It cannot be overlooked that suspension of a public representative is a matter of serious concern because with his suspension the elected representative is denigrated in the eye of public and loses his status during the period of his suspension. The adverse effects suffered by the elected representative on account of the suspension are immense and no amount of compensation, monetarily or otherwise, can undo the harm caused to the elected representative by his suspension. Therefore in such matters order should be made with great care and circumspection and those who are required to deal with the matter, have to act with great care and caution". Consequently the impugned order of suspension was held not sustainable. 38. In the matter of Smt. C.K. Gupta Vs. State of Rajasthan (supra), the petitioner who was an elected member of the Municipal Board, Dausa had challenged the impugned order of the State Government by which she was placed under suspension in exercise of powers under section 63(4) of the Act. The petitioner had claimed that the order of suspension being contrary to the provisions of the Act could not be sustained since she had not been served with any charge sheet and no enquiry had commenced against her. It was observed by this court that Section 63(4) of the Act provides for suspension of a member against whom proceedings have been commenced. Therefore, before resorting to exercise the power under section 63(4) of the Act, proceedings for removal of a member of the Board must have been commenced, which is condition precedent before power of suspension, could be exercised by the State Government. The proceedings would be treated to have commenced only when a show cause notice has been issued followed by enquiry when the member is called upon to explain the charges levelled against him, which may be held by the Government itself or through such officer/authority to whom the Government may direct. The proceedings would be treated to have commenced only when a show cause notice has been issued followed by enquiry when the member is called upon to explain the charges levelled against him, which may be held by the Government itself or through such officer/authority to whom the Government may direct. Relying upon the decision of the Apex court in P.R. Nayak Vs. Union of India ( AIR 1972 SC 554 ) , whereby the order of suspension had been issued against a member of All India Service Under Rule 3(1) of the Rules of 1969, the court held that suspension after initiation of disciplinary proceedings and not in contemplation of disciplinary proceedings can be resorted to and the disciplinary proceedings can be held to be initiated only when the charge sheet is issued to the delinquent employee. Actual initiation or starting of disciplinary proceedings constitutes condition precedent before it can be said that the disciplinary proceedings had been initiated. 39. Mr. M.Rafiq, learned Additional Advocate General, for the State while controverting the aforesaid contentions of the petitioner's counsel supported the sustainability of the impugned order of suspension dated 7th June, 99 (Ann.3) on the ground inter alia that the petitioner in his capacity as member of the Municipal Board had withdrawn some amount, towards the stationery printing charges for the benefit of M/s Mahalaxmi Printers which was a firm run by his brother in which the petitioner had interest in the capacity of Vice Chairman of the Municipal Board. 40. It was contended that the said work was conducted without there being any fair competition and hence in this view of the matter, the petitioner, in his official capacity as a representative of the Board, was guilty of misconduct in discharge of his duties and also of disgraceful conduct by flagrantly abusing his official position. In support of his contentions, the learned Additional Advocate General placed reliance on the following decisions: 1. 1988(1) RLR 945 Bhura Lal Vs. State of Rajasthan & Others . 2. 1997(1) WLC (Raj.) 457 Thana Ram & Others Vs. The State of Raj. & Others. 3. 1997(1) SCC 299 Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra & Others 4. 1997(1) RLR 1 Smt Saroj Chotiya Vs. State of Raj. & Others. 5. 1992(1) RLR 436 Bhanwarlal Chhabra Vs. State of Raj. & Others 6. 1994(2) RLR 113 Jagdish Narayan Sharma & Others Vs. The State of Raj. & Others. 3. 1997(1) SCC 299 Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra & Others 4. 1997(1) RLR 1 Smt Saroj Chotiya Vs. State of Raj. & Others. 5. 1992(1) RLR 436 Bhanwarlal Chhabra Vs. State of Raj. & Others 6. 1994(2) RLR 113 Jagdish Narayan Sharma & Others Vs. State of Raj. & others. 7. 1962 (Vol.XIII) RLW 185 Ugamsee Modi Vs. State of Rajasthan. 41. I have given my thoughtful consideration to the contentions advanced by the learned counsel for the parties and have also examined the relevant provisions of the Act of 1959 as well as the ratio of the decisions referred to hereinabove. 42. Prima-facie, I am of the considered view that the allegations complained of on the basis of which the petitioner was placed under suspension pursuant to the impugned order dated 7th June, 99 (Ann.3) is not sustainable in law since it fails to meet the requirements of Section 63(1)(d) of the Act. Under the aforesaid provisions, the State Government, subject to the provisions of Sub-section (2) & (3), may direct removal of a member of Municipal Board on any of the grounds indicated under section 63(a) of the Act i.e. he has either absented himself from the meetings of the Board from more than three consecutive months or three consecutive ordinary general meetings whichever is the longer period, without leave of the Board, which in my considered opinion is not attracted to this case. 43. It transpired during the course of hearing that the printing press had already been established by the petitioner much before the general election for the members of the Municipal Board, Chirawa, which were held in August 1995 while the period in dispute is subsequent to his election as Member and thereafter as Vice Chairman. Mr. Rafiq has vehemently contended that the petitioner was also guilty in not obtaining competitive rates from other publishers and by floating a tender before undertaking the printing work relating to the advertisements. Mr. Rafiq has vehemently contended that the petitioner was also guilty in not obtaining competitive rates from other publishers and by floating a tender before undertaking the printing work relating to the advertisements. As to what is the undue benefit which the petitioner had derived consequent upon the same by entrusting printing work to the firm run by his brother and as to how and in what manner the publication of the advertisements, which admittedly were for the welfare of the Board, in the news paper 'Shekhawati Halkaro' which had a small circulation in that area could defeat the interest and welfare of the Board remains unexplained on the record. The learned counsel further failed to explain as to how the public interest was defeated consequent upon the facts complained of so as to incur the disqualifications as envisaged in the aforesaid provisions. 44. It is not disputed that the petitioner had entrusted advertisement work to the company run by his brother, which was with a view to promote welfare of the Municipal Board and could not be construed as 'misconduct', 'disgraceful act' or with regard to 'abuse of power' in his capacity and duties as Member or Vice Chairman so as to entail passing of the impugned order of suspension has also remained unexplained on the record. In my considered opinion the conditions stipulated in Section 63 read with Section 26 & 68(2) of the Act are not attracted to the instant case. 45. I am further of the view that before passing the impugned order of suspension since the competent authority had failed to observe the necessary procedural safeguards as contemplated in the Act, the impugned order of suspension cannot be held to be sustainable. 46. Initially, in the instant case, the preliminary enquiry was conducted by the SDO Jhunjhunu, who was not competent to do so and hence the show cause notice served on the petitioner by an authority not competent to issue the same cannot be held sustainable before the preliminary enquiry was conducted. Even on the strength of the impugned notice dated 29.4.99 by which the explanation of the petitioner was called for by the Deputy Secretary, Local Bodies, Government of Rajasthan Jaipur, could not be construed a proper show cause notice so as to ensure compliance with the rquirements of the Act. Even on the strength of the impugned notice dated 29.4.99 by which the explanation of the petitioner was called for by the Deputy Secretary, Local Bodies, Government of Rajasthan Jaipur, could not be construed a proper show cause notice so as to ensure compliance with the rquirements of the Act. Moreover, in the said show cause notice, the allegations pertain to the period 11.12.91 to 31.3.95 when the petitioner had allegedly published advertisements of Nagar Palika in his news papers for 17 times, which admittedly pertain to the period prior to his election as member and thereafter as Vice Chairman of the Board. Hence it is thus obvious that material relied upon by the appropriate authority was extraneous to the charge on the basis of which preliminary enquiry was initiated against the petitioner resulting in his suspension from office. 47. Sections 84 and 85 of the Act 1959, on which reliance was placed by the learned Additional Advocate General, which stipulate the consequences resulting in disqualification by any person who has directly or indirectly, either by himself or through his partner, having any share or interest in any contract, with by or on behalf of a Board or in any employment with, under by or on behalf of a Board other than as a municipal officer or servant shall be disqualified for being an officer or servant of such Board. And any member who knowingly acquires directly or indirectly any share or interest in any contract or employment with, under, by, or on behalf of a Board of which he is a member shall be disqualified, which in my view are not attracted to the instant case since no such contract has been brought to my notice which prevented the petitioner from carrying out the advertisement work through his printing press resulting in disqualification as contemplated in the said provisions. Likewise the provisions of Rajasthan Municipalities Advertisement Rules, 1982, violation of which has been alleged by the learned counsel for the respondents, has also not been elaborated or specified as to how the petitioner is said to have committed violation of the said rules in discharge of his duties as Member Vice Chairman of the Board. 48. Likewise the provisions of Rajasthan Municipalities Advertisement Rules, 1982, violation of which has been alleged by the learned counsel for the respondents, has also not been elaborated or specified as to how the petitioner is said to have committed violation of the said rules in discharge of his duties as Member Vice Chairman of the Board. 48. As a result of the above discussion, the impugned order of suspension dated 7th June, 1999 (Ann.3) as well as show cause notice dated 29.4.99 (Ann.1) on the basis of which preliminary enquiry was held against the petitioner by the respondents are quashed and set aside.The writ petition is allowed with costs, which is quantified at Rs. 5000/- (Rupees five thousand only).Petition Allowed. *******