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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
MAHENDAR KUMAR GOYAL, J.
Bharat Lal Saini S/o. Shri Nandlal Saini - Petitioner
Versus
State of Rajasthan, Through Principal Secretary, Local Self Government Department, Government of Rajasthan & Ors. - Respondents
S.B. Civil Writ Petition No. 13062 of 2022
Decided On : 16-02-2023
Municipalities Act, 2009 - Section 39(6) - Prevention of Corruption - Sections 7 & 7A - Indian Penal Code,1860 - Section 120-B – Offence of Criminal Conspiracy – Elected Member and Chairperson of Municipal Council - Suspension - Petitioner, an Elected Member and Chairperson of Municipal Council Todaraisingh, District Tonk was arrested in a bribery case whereupon, an FIR No. dated came to be registered against him - Vide order impugned dated petitioner has been placed under suspension - It was concluded and a proposal was made to place petitioner under suspension under Section 39 (6) of the Act of 2009, he was in judicial custody and his explanation could not have been sought as has been observed by the enquiry Committee also in its report dated. Para 9
Finding of Court :
Contention of the learned counsel for petitioner that action of respondents placing him under suspension based on preliminary enquiry conducted without giving him an opportunity of explanation is bad in law, cannot be countenanced by this Court - Even otherwise also, for placing an Elected Member under suspension, report of preliminary enquiry is not a condition precedent - In aforesaid factual and legal backdrop, Court is not persuaded to hold order dated to be bad in law for want of an opportunity of explanation to petitioner during preliminary enquiry - Court is informed that judicial enquiry is going on in which petitioner is participating - In view thereof, it is expected that judicial enquiry is conducted at earliest as an elected public representative is under suspension.
Result : Writ petition is dismissed
JUDGMENT :
1. At the outset, learned counsel for the petitioner confines his relief in the writ petition to the challenge to the order dated 25.08.2022.
2. This writ petition is filed by the petitioner, a suspended Chairperson and Member of the Nagar Palika, Todaraisingh, District Tonk for quashing and setting aside the order dated 25.08.2022 whereby, he has been placed under suspension.
3. The relevant facts in brief are that the petitioner, an Elected Member and Chairperson of the Municipal Council Todaraisingh, District Tonk was arrested on 18.07.2022 in a bribery case whereupon, an FIR No.288/2022 dated 19.07.2022 came to be registered against him under Sections 7 & 7A of the Prevention of Corruption (Amendment) Act, 2018 (for brevity, “the Amendment Act of 2018) and Section 120-B of the Indian Penal Code (for brevity, “IPC”). Vide order impugned dated 25.08.2022, the petitioner has been placed under suspension under Section 39(6) of the Municipalities Act, 2009 (for brevity, “the Act of 2009”) which has been challenged by way of this writ petition on the premise of it being violative of the mandatory provisions under Section 39 of the Act of 2009.
4. The respondents in their reply submitted that on receipt of an information through the letter dated 19.07.2022 from the Anti Corruption Bureau about petitioner’s arrest in the aforesaid FIR No.288/2022, on 03.08.2022 a decision was taken to conduct a preliminary enquiry under Section 39(1) of the Act of 2009. In the preliminary enquiry report dated 16.08.2022, the petitioner was found prima facie guilty of misconduct. Thereafter, a decision was taken to place him under suspension which culminated in the order dated 25.08.2022.
5. Assailing the order impugned dated 25.08.2022, the only argument advanced by the learned counsel for the petitioner is that since, he has been placed under suspension under Section 39(6) of the Act of 2009 on the basis of the preliminary enquiry wherein, he was not afforded an opportunity of explanation as mandated under Section 39(1) of the Act of 2009, it is bad in law. He would submit that since the whole basis of placing him under suspension is the preliminary enquiry which is void-ab-initio being violative of the principles of natural justice, the order dated 25.08.2022 is not sustainable in the eye of law. He, therefore, prayed that the writ petition be allowed and the order dated 25.08.2022 be quashed and set aside.
6. Per contra, learned Additional Advocate General, drawing attention of this Court towards the preliminary enquiry report dated 16.08.2022, would submit that since the petitioner was in custody at the relevant time, seeking an explanation under Section 39(1) of the Act of 2009 was not feasible. He would submit even otherwise also that it is a well settled legal principle that for placing an Elected Member under suspension under Section 39(6), mere decision to initiate a preliminary enquiry is sufficient. He, in support of his submissions, relies upon the coordinate Bench judgments of this court dated 14.02.2020 in case of Rajaram Gurjar Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No.21332/2019 & dated 01.02.2022 in case of Nirmal Kumar Pitaliya Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No.17285/2021.
7. Heard. Considered.
8. The petitioner was arrested on 18.07.2022 on the allegation of accepting bribe through co-accused for which an FIR No.288/2022 dated 19.07.2022 under the provisions of the Amendment Act of 2018 and IPC came to be lodged against him. A decision was taken by the respondents on 03.08.2022 for conducting a preliminary enquiry against him which was concluded on 16.08.2022 and during the entire interregnum period, he was in judicial custody and he came to be released on bail only on 19.08.2022. In pursuance of direction of this Court dated 04.02.2023, the respondents have submitted the original record pertaining to suspension for perusal of this Court. The record reveals that a proposal to place hi
Point of Law : Obtaining explanation and its consideration before suspension is not a condition precedent for suspension of a member of the municipality and further Division Bench had not granted rel....
The court established that suspension of a municipal member can occur without prior notice if proceedings have commenced, interpreting the relevant sections of the Rajasthan Municipalities Act, 2009.
Suspension of an elected representative is valid when misconduct is established, with the suspension being justified under relevant statutory provisions, ensuring accountability and public confidence....
Suspension of an elected representative must be based on sufficient grounds and objective satisfaction, not arbitrary or politically motivated actions.
The court affirmed that the State Government can suspend a Sarpanch based on inquiry initiation, even without a preliminary report, provided the member is given an opportunity to explain.
Point of law: power of suspension may be invoked by the State Government, if the proceedings have been commenced for removal of a member as provided under subsection (1) of Section 39 of the Act of 2....
The principles of natural justice require that no individual can serve as both Enquiry Officer and complainant to ensure fair proceedings.
The court affirmed that suspension of an elected representative can occur based on a preliminary enquiry report without prior hearing, provided the charges are grave enough to warrant such action.
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