[2023:RJ-JP:34705]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 14381/2023 Devender Singh Shekhawat son of Late Shri Doongar Singh Ji, aged about 46 rears, resident of New Colony, Adarsh Nagar, Ajmer.

----Petitioner Versus

1. State of Rajasthan, through its Secretary, Local Self Government, Government Secretariat, Jaipur.

2. Director and Special Secretary, Director Local Bodies, G-

3, Rajmahal Residency Area, Civil Lines Phatak, C-

Scheme, Jaipur.

3. Dy. Director (Regional), Director Local Bodies, Ajmer.

4. Municipal Corporation, Ajmer through its Commissioner, Prithviraj Marg, Ajmer.

----Respondents For Petitioner(s) : Mr.Rajendra Prasad, Senior Advocate assisted by Mr.Ashish Sharma, Advocate.

For Respondent(s) : Mr.Anil Mehta, Additional Advocate General assisted by Mr.Yashodhar Pandey & Mr.Anurag Sharma, Advocates.

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND RESERVED ON : 08/11/2023 PRONOUNCED ON : 21/11/2023

Order

REPORTABLE

1. By this petition, the petitioner seeks to challenge the impugned order dated 22.08.2023 whereby he has been placed under suspension under Section 39(6) of the Rajasthan Municipalities Act, 2009 (for short ‘the Act of 2009’) from the office of Member, Ward No.38, Municipal Corporation, Ajmer (for short ‘the Corporation’).

2. The facts, in brief, of the case are that the petitioner was elected as Member from Ward No.38 of the Municipal Corporation, Ajmer on 31.01.2021. He has been placed under suspension vide order dated 22.08.2023 by the respondents with the charge that he filed a Civil Suit and power/vakalatnama against the Corporation before the Court of Civil Judge, North, Ajmer, against the mandate contained under Section 24(xvi) of the Act of 2009.

3. Learned counsel for the petitioner submitted that the petitioner has not filed any suit against the Corporation, he simply signed the power on behalf of the plaintiff in the capacity of an associate junior counsel. The suit was filed by the Counsel Mr.Abhishek Bhargava and only said Mr.Bhargava has appeared on behalf of the plaintiff. The petitioner has not contested and argued in any suit against the interest of the Corporation. Hence, the petitioner has not acted in a disgraceful manner against the interest of the Corporation.

4. Counsel submitted that after receipt of complaint against the petitioner, his explanation was called and looking to the averments and explanation of the petitioner, the matter was referred to the higher authorities and on 14.08.2023, the Department of Local Bodies recorded the note-sheet and indicated therein as follows:-

“The conduct of Shri Devendra Shekhawat is unbecoming of elected Parshad, he has acted against the interest of Nagar Nigam.

In view of this, he may be issued a show cause notice before proceeding further.”

5. Counsel submitted that without issuing any show cause notice of definite charges, the petitioner has been placed under suspension in violation of the provisions contained under Section

39 of the Act of 2009.

6. Mr.Rajendra Prasad, learned Senior Counsel submitted that as per the law laid down by this Court in the case of Jan Mohd. Vs. The State of Rajasthan & Ors. reported in 1992(2) WLC (Raj.) 463, it was incumbent that only on the basis of the complaint made about working of a person, which may be covered by sub-section (1)(a) of the Section 39 of the Act, 2009, no suspension can take place. The complaint has to be inquired by the State Government and after the enquiry is held and a preliminary report is submitted and after that report is considered, the delinquent can be suspended. Counsel on the strength of the said judgment, submitted that suspension can only take place after due application of mind on the preliminary report where the authority comes to the conclusion that the matter requires further probe and the explanation has to be obtained from the delinquent concerned and after setting down the statement of allegation, the enquiry is required to be referred to a Judicial Offi