JUDGMENT
Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 4.12.2002 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order of suspension dated 26.11.2002 (Annex. 3) passed by the State Government (respondent No. 1) by which the petitioner was put under suspension in exercise of power under Section 63(4) of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as “the Act of 1959”) on the ground that under Section 63 of the Act of 1959, a decision has been taken for judicial enquiry against the petitioner, be quashed and set aside.
2. The case of the petitioner as put forward by him in this writ petition is as follows:-
The petitioner was elected as Member, Municipal Board, Sangaria from Ward No. 19 in the elections held in Aug. 2000 and thereafter, he was elected as Chairperson, Municipal Board, Sangaria.
The case of the petitioner is that the respondent No. 2 K.C. Bishnoi, who was at the relevant time Minister of State for Motor Garage, Government of Rajasthan, Jaipur, was close to Shri B.D. Kalla, who was at that time Minister for Local Self Department, Government of Rajasthan, Jaipur and therefore, the respondent No. 2 had been unauthorisedly interfering with the affairs of the Municipal Board, Sangaria and the respondent No. 2 was against the petitioner and he wanted to oust the petitioner from the office of Chairperson, Municipal Board, Sangaria.
The further case of the petitioner is that since the respondent No. 2 was eager to oust the petitioner from the office of the Chairperson, Municipal Board, Sangaria, therefore, he succeeded in issuing a notice Annex. 1 dated 15.7.2002 against the petitioner under the provisions of Section 63 of the Act of 1959 and by that notice, explanation from the petitioner was sought for in respect of the allegations made in that notice.
The further case of the petitioner is that he filed a detailed reply to the said notice Annex. 1 through Annex. 2 on 26.8.2002 in which he denied all the allegations levelled against him in notice Annex. 1. According to the petitioner, all the allegations levelled against him in notice Annex. 1 are frivolous and baseless.
The further case of the petitioner is that vide impugned order dated 26.11.2002 (Annex. 3), he was placed under suspension and simultaneously, through order Annex. 4 dated 27.11.2002, the Collector, Hanumangarh authorized the Vice-Chairman, Municipal Board, Sangaria to discharge the duties of Chairperson in absence of the petitioner.
In this writ petition, mainly the impugned suspension order Annex. 3 dated 26.11.2002 has been challenged by the petitioner on various grounds and the main grounds are as follows:-
(i) That all the charges levelled against the petitioner through notice Annex. 1 are frivolous one and they should be treated as negatived by seeing the reply Annex. 2 dated 26.8.2002 submitted by the petitioner. Therefore, when the impugned suspension order Annex. 3 was passed, there was no basis or material for passing it and thus, the impugned suspension order Annex. 3 is bad in law and should be quashed and set aside.
(ii) That enquiry under Sec. 63 of the Act of 1959 cannot be said to have been commenced against the petitioner because on the date when the impugned suspension order Annex. 3 dated 26.11.2002 was passed, no charge-sheet was served upon the petitioner. Furthermore, the enquiry under Section 63 of the Act of 1959 can be initiated only after a preliminary enquiry report is received and on the basis of that preliminary enquiry report, the State Government forms an opinion to hold regular enquiry and draw the charges. In other words, merely on the basis of preliminary enquiry report and without drawing the charges, the impugned suspension order Annex. 3 could have not been passed and therefore, from this point of view also, the impugned suspension order Annex. 3 is bad in law and liable to be set aside.
Hence, this writ petition with the prayer as stated above.
A reply to the writ petition was filed by the respondent No. 1 and the case of the respondent No. 1 is that the members of the Municipal Board, Sangaria wrote complaints against the petitioner stating therein that the petitioner in capacity as Chairperson was missing the power, as he had arranged to dispose of the land which in fact was not vested in the Municipal Board and was vested in RIICO. A copy of the complaint is marked as Annex. R/1.
The further case of the respondent No. 1 is that after receipt of the complaint Annex. R/l, the Director, Local Self Government vide order dated 20.12.2001 appointed Regional Dy. Director, Local Self Department, Bikaner to conduct enquiry into the complaint made against the petitioner. According to the respondent No. 1, the Regional Dy. Director conducted a detailed enquiry after inspecting the site and found the petitioner and some other persons prima facie guilty and he submitted his report to the State Government on 10.6.2002, a copy of which is marked as Annex. R/2.
The further case of the respondent No. 1 is that a bare perusal of the preliminary enquiry report Annex. R/2 reveals that charges were of serious nature and they were committed by the petitioner in capacity as Chairperson of the Municipal Board and thus, he misused official position and committed gross negligence, irregularity and misconduct and therefore, a show cause notice Annex. 1 dated 15.7.2002 under the provisions of Section 63 of the Act of 1959 was issued against the petitioner and a reply to show cause notice Annex. 1 was filed by the petitioner thorough Annex. 2 dated 26.8.2002 and after considering the preliminary enquiry report Annex. R/2 dated 10.6.2002 and after seeing the reply of the petitioner Annex. 2 dated 26.8.2002, the State Government came to the conclusion that judicial enquiry be conducted against the petitioner and simultaneously, the petitioner was put under suspension through impugned suspension order Annex. 3 dated 26.11.2002 and looking to the above facts and circumstances, the impugned suspension order Annex. 3 was rightly passed against the petitioner.
According to the respondent No. 1, no doubt when the impugned order of suspension Annex. 3 was passed on 26.11.2002, no charge-sheet was served upon the petitioner, but later on, charge-sheet was served upon the petitioner through Annex. R/6 and Annex. R/7 on 2.12.2002 and serving of charge-sheet was not a condition precedent before issuing an order of suspension under Section 63(4) of the Act of 1959 as held by this Court in Jan Mohammad v. The State of Rajasthan (1). For seriousness of the charges against the petitioner, findings recorded by the Regional Dy. Director in his report Annex. R/2 dated 10.6.2002 and later on, charge sheet in the shape of Annex. R/6 and Annex. R/7 may be referred to.
According to the respondent No. 1, the proceedings can be said to have been commenced when the preliminary enquiry report is submitted to the Government and the same is considered by the Government and the Government applied its mind and came to the conclusion that a further probe in the matter was essential and in such circumstances, order of suspension could be passed under Section 63(4) of the Act of 1959 and thus, the submission of the petitioner that serving of charge-sheet is a condition precedent before passing the impugned suspension order Annex. 3 is wholly untenable. Hence, the writ petition filed by the petitioner be dismissed.
A reply to the writ petition was also filed by the respondent No. 2 and the case of the petitioner that he was misusing authority against the petitioner with no ground has been denied and hence, it was prayed that the writ petition filed by the petitioner be dismissed.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
4. To appreciate the contentions of the parties, it would be appropriate to quote here Section 63 of the Act of 1959:-
“63. Removal of members.-(1) The State Government may, subject to the provisions of Sub-section (2) and (3) remove a member of a board on any of the following grounds, namely.-
(a) that he has absented himself from the meetings of the board for more than three consecutive months or three consecutive ordinary general meetings, whichever is the longer period, without leave of the board;
Provided that the period during which such member was in jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of Section 61.
(c) that after his election he has incurred any of the disqualification mentioned in Section 18 or Section 26 or has ceased to fulfill the requirements of Section 24.
(d) that he has.-
G) been guilty of misconduct in the discharge of his duties, or
(ii) been guilty of any disgraceful conduct, or
(iii) becomes incapable of performing his duties as a member, or
(iv) otherwise abused in any manner his position as such member;
Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State Level Services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
(1-A) The power conferred by Sub-section (1) may be exercised by the State Government 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 office by an order of the State Government under this section, be shall not vacate his office and shall, subject to the provisions contained in sub section (4) continue to act as, and 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 this Act.
(2) Notwithstanding anything contained in Sub-section (1) where it is proposed to remove a member on any of the grounds specified in Clause (c) or Clause (d) of Sub-section (1), as a result of the enquiry referred to in the proviso to the 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.
(3) The Judicial Officer so appointed shall proceed to inquire into the charge in the prescribed manner, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter be considered relevant to the charge and send the record alongwith such findings to the State Government, which shall thereupon pass final orders or order for re-enquiry by any such other officer as may be deemed proper.
(4) Notwithstanding the foregoing provisions of this section, the State Government 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.
(5) Every final order of the Slate Government passed under this section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any court.”
5. There is no dispute on the point that through impugned order Annex. 3 dated 26.11.2002, the petitioner was placed under suspension and there is also no dispute on the point that charge- sheet in the shape of Annex. R/6 and Annex. R/7 was issued to the petitioner on 2.12.2002 meaning thereby on the date when the impugned suspension order Annex. 3 was passed, no charge sheet was served on the petitioner.
6. There is also no dispute on the point that complaint Annex. R/l was received against the petitioner and on that complaint Annex. R/1, a preliminary enquiry was got conducted by Regional Dy. Director, Local Self Department, Bikaner, who submitted his report through Annex. R/2 dated 10.6.2002 in which prima facie case of misusing the power against the petitioner in respect of various acts was found. There is also no dispute on the point that thereafter, a show cause notice Annex. 1 dated 15.7.2002 under the provisions of Section 63 of the Act of 1959 was issued against the petitioner and a reply to that show cause notice Annex. I was submitted by the petitioner through Annex. 2 dated 26.8.2002. Thereafter, the petitioner was placed under suspension through impugned suspension order Annex. 3 dated 26.11.2002.
7. Thus, looking to the above facts and circumstances of the case, it cannot be said at this stage that all the charges levelled against the petitioner in the notice Annex. 1 are frivolous or groundless or baseless.
8. Therefore, the argument that all the charges levelled against the petitioner in notice Annex. 1 dated 15.7.2002 are frivolous and baseless cannot accepted at this stage and the same stands rejected.
9. Further, the submission that the complaints and the preliminary enquiry, which was got conducted through Regional Dy. Director were initiated and motivated by the respondent No. 2 also cannot be accepted at this stage because of the simple reason that the Regional Dy. Director was an independent officer.
10. The next submission of the petitioner is that no enquiry has been commenced against him under Section 65(10) read with Section 63(2) of the Act of 1959 and as such, the impugned order of suspension Annex. 3 should be treated as illegal and without jurisdiction. Furthermore, enquiry under Section 63 of the Act of 1959 can be initiated only after preliminary enquiry report is received and on the basis of that preliminary enquiry report, the State Government forms an opinion to hold regular enquiry and draw charges and merely on the basis of preliminary enquiry report and without drawing the charges, the impugned suspension order Annex. 3 cannot be passed and hence, the impugned suspension order Annex. 3 is bad in law and should be quashed and set aside.
11. In this respect, it may be stated here that there are two views of this Court on that aspect.
One view
12. The first view is found in Prem Prakash v. State of Raj. and Ors. (2), where the Single Bench of this Court observed that making of preliminary enquiry under Section 63 of the Act of 1959 is not equivalent to proceedings envisaged under Section 63(2) of the Act of 1959 and issuance of charge sheet is a sine qua non before power under Section 63(4) of the Act of 1959 could be invoked. If that first view is to be accepted, the impugned suspension order Annex. 3 dated 26.11.2002 cannot be sustained.
Second view
13. Prior to the above judgment of this Court in the case of Prem Prakash (Supra), there was a contrary view taken of this Court in the following cases:-
(i) In Mohanlal v. State of Rajasthan (3), the Division Bench of this Court held that action under Section 63(4) of the Act of 1959 could be taken when the authority makes up its mind to take action.
(ii) In Bhanwar Lal Chhabra v. State of Rajasthan and Ors. (4), the Single Bench of this Court held as under:-
“Thus, the view which I have taken stands fully fortified by the above judgment of the Division Bench. The stage when the State Government considers the report of the preliminary enquiry and makes up its mind to take action for removal against the erring Member/Chairman of the Board Under Section 63(2) of the Act, is the stage of commencement of proceedings for purposes of sec. 63(4) and the State Government is competent to pass an order of suspension in exercise of powers contained in Sub-section (4).”
(iii) In the case of Jan Mohd. (supra), the Division Bench of this Court held that 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 Slate 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 Government decides what action has to be taken and that is the stage when the proceedings commence against the petitioner.
14. In view of the above three judgments of this Court including two Division Bench judgments of this Court where second view was taken, the law laid down by the Single Bench of this Court in the case of Prem Prakash (supra), cannot be said to be a good law and therefore, the view expressed by the Single Bench of this Court in the case of Prem Prakash (supra), would not prevail.
15. Thus, in view of the Division Bench Judgment of this Court in the case of Jan Mohd. (supra), the proceedings commence when the State Government considers and applies its mind to the preliminary enquiry report and forms opinion as to what action has to be taken and if after considering and application of mind to the preliminary enquiry report, the State Government comes to the conclusion that the matter needs further enquiry, the State Government while ordering for further enquiry, can simultaneously pass an order of suspension against the delinquent official.
16. In the present case, a complaint Annex. R/1 was received against the petitioner and on that complaint Annex. R/1, a preliminary enquiry was got conducted by Regional Dy. Director, Local Self Department, Bikaner, who submitted his report through Annex. R/2 dated 10.6.2002 in which prima facie case of misusing the power against the petitioner in respect of various acts was found and thereafter, a show cause notice Annex. 1 dated 15.7.2002 under the provisions of Section 63 of the Act of 1959 was issued against the petitioner and a reply to that show cause notice Annex. 1 was submitted by the petitioner through Annex. 2 dated 26.8.2002 and thereafter, after taking a decision to hold judicial enquiry against the petitioner, the petitioner was simultaneously placed under suspension through impugned suspension order Annex. 3 dated 26.11.2002.
17. In my considered opinion, looking to the above facts and circumstances of the case, if after application of mind to the preliminary enquiry report Annex. R/2 dated 10.6.2002 submitted by the Regional Dy. Director and considering the reply of the petitioner Annex. 2 dated 26.8.2002 to the show cause notice Annex. 1 dated 15.7.2002, the State Government came to the conclusion that further probe was essential and after ordering for judicial enquiry against the petitioner, the petitioner was simultaneously placed under suspension through impugned suspension order Annex. 3, no illegality or irregularity has been committed by the State Government (respondent No. 1) in passing the impugned suspension order Annex. 3 against the petitioner on 26.11.2002.
18. Apart from this, Sub-section (4) of Section 63 of the Act of 1959 starts with a non-obstante clause i.e. “notwithstanding the foregoing provisions of this section, the State Government 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”
19. No doubt in Sub-section (2) of Section 63 of the Act of 1959, there is a mention of the fact that as a result of the enquiry referred to in the proviso to the 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, but since Sub-section (4) of Section 63 of the Act of 1959 starts with non- obstante clause i.e. “notwithstanding the foregoing provisions of this section……. .”, therefore, when the order under Section 63(4) of the Act of 1959 is passed, the provisions of Section 63(2) would not come in its way.
20. It may be stated here that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment that is to say, to avoid the operation and defect of all contrary provisions.
21. Thus, it is held that if after application of mind to the preliminary enquiry report Annex. R/2 dated 10.6.2002 submitted by the Regional Dy. Director and after issuing show cause notice Annex. 1 dated 15.7.2002 to the petitioner and after considering the reply of the petitioner Annex. 2 dated 26.8.2002 to the show cause notice Annex. 1, the State Government came to the conclusion that further probe was essential and ordered for holding judicial enquiry against the petitioner and simultaneously passed impugned suspension order Annex. 3 against the petitioner in exercise of power under Section 63(4) of the Act of 1959, no illegality or irregularity has been committed by the State Government (respondent No. 1) in passing the impugned suspension order Annex. 3 against the petitioner. It may be that framing of the actual charges may take place later, but there was nothing to prevent the State Government from taking action to suspend him on those allegations under Sub-section (4) of Section 63 of the Act of 1959.
22. Hence, in view of the above, the argument that since on the date when the impugned suspension order Annex. 3 dated 26.11.2002 was passed, no charge sheet was served on the petitioner, therefore, the impugned suspension order Annex. 3 is bad in law, stands rejected.
23. It may be stated here that in cases of passing suspension order, principles of natural justice are not applicable and therefore, if before passing the impugned suspension order Annex. 3, the petitioner was not given any notice or opportunity of hearing, that impugned suspension order Annex. 3 does not become invalid on that ground as he would get chance in the disciplinary proceedings and thus, such order would not be termed as unfair, unreasonable, unjust or arbitrary.
24. For the reasons stated above, 1 am not inclined to interfere with the objective satisfaction arrived at by the State Government as regards to suspension of the petitioner through impugned suspension order Annex. 3 dated 26.11.2002, in exercise of the power under Article 226 of the Constitution of India and thus, this writ petition deserves to be dismissed.
Accordingly, this writ petition filed by the petitioner is dismissed. The stay granted by this Court through order dated 12.12.2002 by which the operation of the impugned suspension order Annex. 3 dated 26.11.2002 was stayed, stands vacated.
No order as to costs.