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High Court Of Rajasthan
Judgename : Rajendra Saxena
Jagdish Narayan Sharma - Appellant
Versus
State of Rajasthan - Respondent
Civil Writ Petition No. 362 of 1994
Decided On : 05/04/1994
MUNICIPALITIES - SUSPENSION OF WARD MEMBERS - PRELIMINARY ENQUIRY - APPLICATION OF MIND - SUSPENSION ORDER - VALIDITY - RAJASTHAN MUNICIPALITIES ACT, 1959, SECTION 63(1), (2), (3), (4) AND (5).
Fact of the Case:
Petitioners, elected Ward Members of Municipal Board, Merta City, challenged their suspension order dated 5-1-1994 (Annex. 7) and prayed for quashing the same and directions to allow them to participate in the meetings of the Board and Sub-Committees. They also prayed for quashing of the First Information Report (Annex. 5) lodged against them.
Finding of the Court:
1. A preliminary enquiry under the proviso to Subsection (1) is contemplated under Subsection (2) of Section 63 of the Act. 2. The stage when the State Government considers a report of the preliminary enquiry and makes up its mind to take action for removal of erring member/chairman of the Board under Section 63 of the Act, is the stage of ‘commencing of proceedings’ for purpose of Section 63 (4) and the State Government is competent to pass orders for suspension under Section 63(4). 3. Before suspending a member/chairman of a Municipal Board, a 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 petitioner and that prior to that, this is the stage of holding the preliminary enquiry. 4. 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 be should not be suspended. 5. 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 to a judicial officer before issuing a suspension under Section 63(4) of the Act.
Issues: 1. Whether a preliminary enquiry is required before suspending a Ward Member under Section 63 of the Rajasthan Municipalities Act, 1959? 2. Whether the impugned suspension order was passed without application of mind and in violation of the mandatory provisions of the Act?
Ratio Decidendi: 1. The provisions of Section 63 of the Act clearly indicate that a preliminary enquiry is contemplated under the proviso to Subsection (1) before any action is to be taken for removal of a member on the grounds specified in Sub-section (1)(d) of Section 63. 2. The stage when the State Government considers a report of the preliminary enquiry and makes up its mind to take action for removal of erring member/chairman of the Board under Section 63 of the Act, is the stage of ‘commencing of proceedings’ for purpose of Section 63 (4) and the State Government is competent to pass orders for suspension under Section 63(4). 3. Before suspending a member/chairman of a Municipal Board, a 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 petitioner and that prior to that, this is the stage of holding the preliminary enquiry. 4. 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 be should not be suspended. 5. 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 to a judicial officer before issuing a suspension under Section 63(4) of the Act.
Final Decision: The impugned suspension order dated 5-1-1994 (Annex. 7) was quashed and the respondents were directed to allow the petitioners to participate in the meetings of the Municipal Board as well as in the meetings of the subcommittees, wherein they were the members prior to passing of order Annexure-7. The petitioners’ prayer regarding quashing of F.I.R. Annexure-5 was dismissed.
Rajendra Saxena, J.-Petitioners-Sarva Shri Jagdish Narayan Sharma, Mustak Ahmed and Abdul Ajij, who are elected Ward Members of Municipal Board, Merta City, have through this writ petition challenged their suspension order dated 5-1-1994 (Annex. 7) and prayed that the same be set aside and respondents be directed to allow them to participate in the meetings of the said Municipal Board as well as the meetings of Sub-Committees wherein they are members. They have also prayed that the First Information Report (Annex. 5) lodged against them be quashed.
2. Briefly the relevant facts are that petitioners were elected as Ward Members of the Municipal Board, Merta City in the month of August, 1992, Petitioner-Jagdish Narayan Sharma contested as an independent candidate, while petitioners-Abdul Ajij and Mustak Ahmed were nominees of Janta Dal and Congress (I) Party respectively. The Bhartiya Janta Party got the majority in the said Municipal Board (hereinafter referred to as Board). The Board was constituted under the Chairmanship of the nominee of the Bhartiya Janta Party. The petitioners have alleged that on the national panorama Congress (I) Party and Bhartiya Janta Party are at loggerheads and similar is the case in the Board. They have further alleged that from the very beginning the members of the Bhartiya Janta Party were annoyed with them and had strained relations with them. They had complained against the working of the Chairman of the Board regarding many illegalities and irregularities committed by him in carrying out various works under the Nehru Rozgar Scheme in the year 1992 and in giving appointments to Nakedars. Since the petitioners had made repeated complaints on the working of the Board as also the working of Shri Suraj Meghwal, Ward Member and Vice-Chairman, Shri Nathmal Birla, who is also the Chairman of the Sub-Committee, they were annoyed with them. It is the case of petitioners that on 27-12-1993 at 7 p.m., F.I.R. Annexure 5 was lodged by Shri Suraj Mal Meghwal, Ward Member, who was elected as a nominee of Bhartiya Janta Party, at Police Station, Merta City, wherein it was alleged that on that day during the meeting of the Board, petitioner-Jagdish Narayan Sharma started hurling abuses and caught hold the collar of Shri Nath Mal Birla, Vice-Chairman and started beating him by inflicting slaps and fist blows. It was further alleged therein that when Shri Suraj Mal intervened, petitioner-Jagdish Narayan gave a fist blow on his mouth and also hurled abuses and that petitioners-Mustak Ahmed and Abdul Ajij also started abusing the members ot the Board. On the basis of F:I.R. Ex. P. 5, the S.H.O., Police Station, Merta City registered a case under Section 323, I.P.C. and under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act against the petitioners. The petitioners have averred that on 27-12-1993 at 8.15
p.m. another First Information Report Annexure 6 was lodged at Police Station, Merta City by one Shri Dharmendra against Sarva Shri Nathmal Birla, Surajmal Meghwal, Chhotu Vaishnav and two other Ward members, wherein it was alleged that on the same day at 11 a.m. he had gone to the Municipal Board, Merta City to file a complaint against one Chaina Ram Mali, who had blocked and obstructed a general path way (Aam Rasta), that he had requested the afore-mentioned Ward members, who were sitting in the Chamber of the Chairman, for removing the said obstruction and that thereupon the afore-mentioned Ward members started hurling abuses to him. In F.I.R. (Annex. 6) it was further alleged that Ward Members, Chhotu Vaishnav and Nay Ratan Singhvi Caught hold of Dharmendra while Nathmal Birla, Surajmal Meghwal and Suraj Arora inflicted injuries to him by fist blows and that Shyam Parashar and Mustak Ahmed rescued him. On that report, a case under Sections 147, 323, I.P.C. read with Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was also r
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