1993 Supreme(Raj) 480
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.S.Singhvi, J.
Prem Prakash - Appellant
Versus
State Of Rajasthan and Others - Respondent
S.B.Civil Writ Petition No. 3558 of 1992.
Decided On : 1-03-1993
The Government cannot suspend a member of a Municipal Board under Section 63(4) of the Rajasthan Municipalities Act, 1959, without framing charges against the member and sending the same for inquiry to a Judicial Officer.
Headnote:
MUNICIPALITIES ACT - SECTION 63(4) - SUSPENSION OF MEMBER - SERVICE OF NOTICE - VALIDITY - EXPLANATION OF MEMBER - CONSIDERATION BY MINISTER - FRAMING OF CHARGES - NECESSITY - JURISDICTION.
Fact of the Case:
Petitioner, a member of the Municipal Board, Srimadhopur, challenged the order of his suspension under Section 63(4) of the Rajasthan Municipalities Act, 1959, and the show cause notice issued to him. The petitioner claimed that the notice was not served properly and his explanation was not considered by the Minister before passing the suspension order.
Finding of the Court:
The court held that the service of notice on the petitioner by affixation at his residence was illegal as the prescribed procedure under Section 250(1) of the Act was not followed. The court also found that even if the notice was served properly, the petitioner had submitted his explanation on time, but it was not placed before the Minister before passing the suspension order.
Issues: 1. Whether the service of notice on the petitioner was valid? 2. Whether the Minister considered the petitioner's explanation before passing the suspension order? 3. Whether the Government had the jurisdiction to suspend the petitioner without framing charges against him?
Ratio Decidendi: 1. The court held that the service of notice on the petitioner by affixation at his residence was illegal as the prescribed procedure under Section 250(1) of the Act was not followed. 2. The court found that even if the notice was served properly, the petitioner had submitted his explanation on time, but it was not placed before the Minister before passing the suspension order. 3. The court held that the Government had no jurisdiction to suspend the petitioner without framing charges against him, as the expression "proceedings have been commenced" in Section 63(4) of the Act means framing of charges and issue of charge sheet by the Government and sending the same for inquiry to a Judicial Officer.
Final Decision: The court allowed the writ petition, quashed the order of suspension, and directed the competent authority to declare the result of the No Confidence Motion forthwith.
JUDGMENT
1. - This petition involves a challenge to the order dated 18.5.92 passed by the Government for suspension of the petitioner, who was at the relevant time holding office of the Member, Municipal Board, Srimadhopur and for quashing of the show cause notice dated 12.5.92, first information report No. 63/92 dated 26.4.92 and for some incidental directions for allowing the petitioner to participate in the meetings of Municipal Board, Srimadhopur as its Member.
2. Although pleadings of the party are very elaborate, I do not consider it necessary to make a detailed reference to all these pleadings because in my opinion question relating to the validity of petition can be decided in the light of provisions contained in Section 63(4) read with Section 250 of the Municipalities Act, 1959 and for this purpose factual controversy lies in a very narrow compass.
3. The petitioner has claimed that he is a resident of Ward No. 11 of Srimadhopur Municipality. He belongs to Scheduled Caste and as a Member of that category, he was elected to the Municipal Board, Srimadhopur as a nominee of Congress-I party. The Chairman of the Municipal Board Shri Salig Ram Choudhary had contested election as a nominee of the Bhartiya Janta Party and according to the petitioner, as is on the national scene, two parties are at loggerheads in the Municipal Board also. The petitioner claims that he has made several complaints against the undemocratic functioning of the Chairman.
4. A first information report was filed against the petitioner sometimes in the month of April 1992 with the police station of Srimadhopur. A copy of this report was also forwarded to the Government of Rajasthan in the Directorate of Local Bodies. On the basis of report, action was proposed against the petitioner under Section 63 of Rajasthan Municipalities Act, 1959 (for short 'the Act'). A notice dated 12.5.92 was issued by the Government to the petitioner and he was called upon to submit his explanation within three days as to why proceedings be not taken against him for terminating his membership. The petitioner asserted that he submitted his detailed explanation to the Deputy Secretary, Local Self Government Department on 16.5.92 but without considering the reply, the Government passed order dated 18.5.92 suspending him in the purported exercise of its power under Section 63(4) of the Act. The petitioner's case is that notice dated 12.5.92 was not served upon him in a regular manner and the reply submitted by him was not even placed before the Hon'ble Minister, who has taken the decision for suspension of the petitioner. The respondents have contested this claim of the petitioner by asserting that the notice dated 12.5.92 was served on the petitioner by affixation and he had full knowledge of the said notice. He submitted his reply only on 23.5.92 and much before that a decision had been taken by the Hon'ble Minister for suspension of the petitioner under Section 63(4).
5. During the course of hearing, learned Additional Advocate General produced before the court file relating to first information report lodged against the petitioner as well as the file of Government in which case relating to suspension of the petitioner has been dealt with. A look at the government's file shows that on receipt of copy of the information regarding the filing of first information report against the petitioner, the Assistant Director prepared a note suggesting action against the petitioner under Section 63 of the Act. This proposal was approved by the Hon'ble Minister and then notice dated 12.5.92 was issued under the signatures of the Deputy Secretary to the Government-cum-Director, Local Bodies. A copy of the notice, which is found at page 31 of the file show that it was despatched on 13.5.92. At the back of this notice there is a report of Process Server of the Office of Tehsildar, Srimadhopur that he had gone to the house of Prem Prakash on 13.5.91 (13.5.92) and there he learnt that petitioner
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