ORDER
Rajendra Saxena, J.
1. 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 of 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 Nav 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 registered. It is alleged that thereafter petitioner No. 2 Mustak Ahmed received the impugned order dated 5-1-1994 (Annex. 7), whereby petitioners were suspended by the State Government under Section 63(4) of the Rajasthan Municipalities Act, 1959 (in short the Act). It was mentioned therein that since criminal proceedings have commenced against the petitioners, therefore, it was contemplated to hold an enquiry against them under Section 63 of the Act and that in exercise of the powers under Section 63(4) the State Government has suspended the petitioners with immediate effect. It is alleged that the impugned suspension order Annexure-7 has not been served upon other petitioners in accordance with the provisions of Section 250 of the Act. The petitioners have asserted that the suspension order Annexure 7 has been passed without application of mind and in utter
disregard of the mandatory provisions of the Act and is unfair, unjust and illegal. According to them the investigation in the case registered against them, vide F.I.R. Annexure 5 was still pending and, therefore, their suspension during the pendency of the investigation is unjust, unfair and uncalled for. They have alleged that since a similar criminal case was also registered against the Chairman, Shri Suraj Arora, Vice-Chairman — Nathmal Birla and Ward members, Surajmal; Nav Ratan Singhvi and Chhotu Vaishnav, but no order suspending them has been passed by the respondents. Thus the action of the respondents suspending the petitioners is violative of Articles 14 and 16 of the Constitution of India. Moreover neither any opportunity of hearing was given to the petitioners nor any preliminary enquiry was conducted against them. Thus, proceedings under Section 63 (1) has not yet commenced against them, and, therefore, the impugned suspension order Annex. 7 also suffers from lack of jurisdiction and patent illegality which deserves to be quashed.
3. The respondents in their counter have taken certain preliminary objections. Firstly, this joint petition on behalf of three petitioners is not maintainable. Secondly, the petitioners have suppressed the material and important fact that after investigation in the F.I.R. Annex. 6 lodged by Shri Dharmendra, the police has submitted a final report. The petitioners have made incorrect statement that all the petitioners had contested the election as Ward members as the nominees of the Congress (I) Party, because as a matter of fact petitioner-Jagdish Narayan Sharma contested the election as an independent candidate, while petitioner Abdul Ajij was the nominee of the Janta Dal. Therefore, the writ petition deserves to be dismissed. On merits, it has been asserted that the members of the Board inter se did not have any strained relations, that the allegations of irregularities and illegalities committed by the Chairman were vague and bald. It was admitted that Shri Surajmal Meghwal, Ward Member, had lodged the F.I.R. Annex. 5, whereupon a case was registered against the petitioners. The respondents have averred that the copy of
the F.I.R. Annex. 5 and proceedings of the Board’s meeting dated 27-12-1993 duly signed by the Chairman and Executive Officer of the Board, were submitted to the State Government, that after examining the matter the State Government decided to have a detailed enquiry under Section 63 of the Act and simultaneously issued the impugned suspension order Annex. 7 under Section 63(4) of the Act, which was sent to all the petitioners by post. The copies of the suspension order Annex. 7 were also sent by the Board under registered post to petitioners-Jagdish Narayan and Abdul Ajij, who deliberately avoided its service. The respondents have refuted that the suspension order Annex. 7 was passed without application of mind. They have asserted that it is not at all necessary to draw the statement of charge and to send the same to the disciplinary officer before suspending a Ward Member. It has been submitted that the petitioners had the knowledge of the suspension order Annex. 7 that the provisions of Section 250 of the Act are not applicable and that there was no violation of any mandatory provision of the Act. The respondents have maintained that no opportunity of hearing is envisaged before passing the suspension order under Section 63(4) of the Act and the opportunity of hearing is only required to be given during detailed enquiry under Subsections (2) and (3) of Section 63 of the Act. It has been asserted that no copy of the F.I.R. Annex. 6 was sent to the Government, that informant Dharmendra was not Ward Member and that even after investigation the police has submitted a final report in that case. This clearly shows that the F.I.R. Annex. 6 was lodged with extraneous consideration and as such there is no question of any discrimination.
4. The petitioners in their rejoinder have submitted that since they have been suspended by a common order Annex. 7 in respect of a common cause of action, a joint writ petition is maintainable under Rule 375 of the High Court of Judicature for Rajasthan Rules, 1952, that there was no suppression of any material fact, because petitioner-Jagdish Narayan Sharma beloings to Congress (I) Party for the last ten years, but he had
contested the election as independent candidate and after he being elected, he supported the Congress (I) Party. Petitioner Abdul Ajij was of course a nominee of Janta Dal, but since Shri Nathu Ram Mirdha joined the Congress Party, he also joined the Congress (I) Party. Thus petitioners are the members of the Congress (I) Party. The petitioners have urged that the relief for quashing of F.I.R. Annex. 5 is only ancillary and that the writ petition does not suffer from the defect of misjoinder of causes of action. The petitioners have asserted that admittedly no preliminary enquiry as envisaged under Section 63 (1) of the Act was conducted by the respondents to ascertain the correctness of the allegations levelled against them nor their explanation was obtained. Thus no prima facie case was made out against them. Since after the alleged incident on 27-12-1993 the Board’s meeting was adjourned, there was no question of drawing the proceedings of the said meeting and sending the same to the State and as such there was no application of mind for passing the suspension order. The petitioners have further asserted that they have been suspended illegally and in an arbitrary manner. They have also submitted that after investigation in the case registered on the basis of F.I.R. Annex. 5 the police has filed challan against petitioner-Jagdish Narayan Sharma only and given final report against petitioners-Mustak and Abdul Ajij, which goes to show that the respondents have misused their powers.
5. I have heard Shri Ranjit Joshi, the learned counsel for the petitioners and Shri N. M. Lodha, the learned counsel for the respondents at length and carefully perused the relevant record.
6. First of all I will deal with the preliminary objections raised by Shri N. M. Lodha regarding the maintainability of this writ petition. There is no dispute that all the petitioners are Ward members, that in the F.I.R. (Annex. 5), common allegations were levelled against them, whereupon a case under Section 323, I.P.C. read with Section 3(1)(x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act was registered
and that upon the same cause of action a common suspension order Annex. 7 was passed. Therefore, such a joint writ petition is not prohibited under Rule 375(4) of the Rajasthan High Court Rules, 1952. The facts of the case of Kamji v. The State of Rajasthan, 1980 WLN (UC) 90 relied upon by Shri N.-M. Lodha are clearly distinguishable, because petitioners in that case did not have the same cause of action. Therefore, the first preliminary objection cannot be sustained.
7. There is no suppression of material facts by the petitioners, because at the time of alleged incident dated 27-12-1993 as also on the day the impugned suspension order Annex. 7 was passed and on the date of filing of this writ petition, all the petitioners were members of Congress (I) Party. Hence on this count also this writ petition cannot be thrown over board. The main relief sought by the petitioners in this writ petition is for quashing the suspension order Annex. 7 and the other relief regarding directing the respondents to allow the petitioners to participate in the meetings of the Municipal Board as well as the meetings of the Sub-Committee is only ancillary. During the course of arguments, Shri Ranjeet Joshi has clearly conceded that he does not want to press the relief for quashing the F.I.R. Annex. 5. Therefore, this writ-petition does not suffer from any defect of misjoinder of causes of action. Hence all the preliminary objections raised on behalf of respondents stand overruled.
8. Now on merits. To resolve the rival contentions, it will be conducive to reproduce Section 63 of the Act, which runs as under :–
Section 63 : REMOVAL OF MEMBERS :–
(1) The State Government may, subject to the provisions of Sub-sections (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.
2 ((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 –
(i) been guilty of misconduct in the discharge of his duties, or
(ii) been guilty of any disgraceful conduct, or
(iii) become incapable of performing his duties as a member, or
(iv) otherwise flagrantly 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 officer or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
1 (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, he shall not vacate his office and shall, subject to the provisions contained in Sub-section (4), continue to act as, and exercise all the p6wers 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 inquiry 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 he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon pass orders in conformity with those findings,
(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 inquiry 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 member thereof.
(5) Every order of the State 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.
9. A close reading and scrutiny of subsection (2) makes it abundantly apparent that a preliminary enquiry under the proviso to Sub-section (1) is contemplated under Subsection (2) of Section 63 of the Act. Subsection (2) expressly provides for an enquiry and further action to be taken in that behalf, as a result of the preliminary enquiry referred to in the proviso to Sub-section (1) of Section 63. The intention of Legislature is clear that a preliminary enquiry under the proviso to Subsection (1) should be undertaken before any action is to be taken for removal of a member on the grounds specified in Sub-section (1)(d) of Section 63. In other words, a preliminary enquiry is not the stage when it can be said that an action for removal of a member under
(sic)tion (2) is commenced. The words
(sic) to remove a member” in Sub-
section (sic) it clear that the action to
removel (sic) under Sub-section (2) starts
only at (sic) of the preliminary
enquiry, (sic) government decides to
take action. It is at that stage that the State
Government makes up its mind whether or
not to take an action for the removal of the
member. Therefore, the objection of the preliminary enquiry to verify whether there is
any substance in the allegation made against a
members. This view stands fortified by the
following observations made by the Division
Bench of this Court in the case of Mohan Lal
v. State of Rajashtan, ILR (1963) 13 Raj
259 :–
“The issue, therefore, in short is whether the petitioner was suspended on commencement of the proceedings against him under Section 63. If so, the order of suspension cannot be held to be invalid. In Ugamsee Modi v. State of Rajasthan, ILR (1961) 11 Raj 892, a Division Bench of this Court consisting of the Chief Justice and Mr. Justice Shinghal held, “proceedings under Sub-section (2) of Section 63 of the Act, must be taken to have commenced against the petitioner when on those allegations he was called upon to show cause and to explain his conduct”, we are in agreement with the law laid down in that decision. After a complaint is received by the Government against a member or a Chairman, a preliminary inquiry has to be undertaken to verify whether there is any substance in the allegations made against such persons and after holding that inquiry as contemplated by proviso to Sub-section (1) of Section 63, if the Government decides to take action against such person, it may issue show cause notice to him and also take further action for conduct of an inquiry in accordance with the provisions laid down under Section 63(2)(3)(4) and (5). Though for purposes of Sub-section (1) of Section 63, a preliminary inquiry would be held to have commenced no sooner cognizance is taken of a complaint by the Government against such officer, yet proceedings should be taken to commence in the meaning of the term under Sub-section (4) to Section 63 only when
process is ordered to issue against such person, or when the authority makes up its mind to take action. At that stage the Government makes up its mind whether or not to take action and that, in our opinion, is the stage of commencement of proceedings for purposes of Section 63(4)“.
10. In Bhanwar Lal Chhabra v. State of Rajasthan, 1992(1) RLR 436, it has been held that before a Ward member/chairman of a Municipal Board is suspended a preliminary enquiry should be held by a responsible officer and after the report is received and the State Government applies its mind and comes to the conclusion that a further probe is essential for the removal of the member/ chairman, then it has to issue a notice under Section 63(2) of the Act to show cause why definite charge be not framed and referred to a Judicial Officer. At the stage of application of mind by the State Government to proceed or not to proceed against the delinquent representative, he can be suspended and it is not at all essential to give him pre-decisional hearing to show cause as to why he should not be suspended. It has been further held that 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). Therefore, what is required is that before a member/ chairman is suspended, a preliminary enquiry should be held by a responsible officer and after his report is received and the State Government applies its mind and comes to the conclusion that a further probe is essential for the removal of the member/chairman then, it has to issue a notice under Section 63(2) of the Act to show cause why definite charges be not framed and referred to a Judicial Officer. At the stage of application of mind by the State Government to proceed or not proceed against the delinquent representative, he can be suspended and it is not at all essential that a pre-decisional hearing should be granted to him to show cause why he may not be
suspended before the proposed enquiry.
11. Shri Ranjit Joshi, the learned counsel for the petitioners has placed reliance on Prem Prakesh v. State of Rajasthan, 1993 (1) WLR 567 wherein the learned S. B. of this Court has held that making of preliminary enquiry under Section 63 is not equivalent to the proceedings envisaged under Section 63(2) and that issue of charge-sheet is a sine qua non before power under Section 63(4) can be invoked and that the suspension of a Member of the Municipal Board before framing of charge suffers from serious legal infirmity and is without jurisdiction.
12. I have carefully gone through this judgment. It appears that before the learned S.B., the Division Bench judgments rendered in the case of Ugamsee Modi and Mohan Lal and the latest D.B. judgment dated 12-5-1992 in Jan Mohd v. State reported in 1992 (2) Western Law Cases 463 : (AIR 1993 Raj 86) were not brought to the notice of the learned S.B.
13. In Jan Mohd. v. The State or Rajasthan, 1992 (2), Western Law Cases Rajasthan 463 : (AIR 1993 Raj 86) a D.B. of this Court affirming the view taken in Ugamsee Modi v. State of Rajasthan, 1962 RLW 184 and Mohan Lal v. State of Rajasthan, 1963 RLW 209 has reiterated that before suspending a member/chairman of a Municipal Board, what is essential is that the 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. Therefore, 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. 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.
14. Therefore, with all respect to the learned S.B., the principle of law enunciated in Prem Prakash’s case (supra) runs counter to the consistent view taken by three D.B.s of this Court as regards interpretation of the provisions of Section 63 (4) of the Act. In such circumstances, the judgment passed in Prem Prakash’s case (supra) is per incuriam and is not a good law.
15. In Jan Mohd.’s case (cited supra), this Court has also held that Sub-section (4) of Section 63 is neither unfair nor unreasonable nor unjust nor arbitrary nor ultra vires of the provisions of Articles 14, 16 and 21 of the Constitution and specifically overruled the law laid down in Ajmer Singh Yadav v. State of Rajasthan, 1986 RLR 16, wherein it was held that “proceedings to have commenced” used in Section 63(4) of the Act contemplated that such proceedings such proceedings commence only after the report of enquiry under proviso to Section 63(1) has been received and the delinquent member has been afforded opportunity of explanation and the State Government has applied its mind and has decided to proceed under Section 63 of the Act.
16. In the case in hand, admittedly after the receipt of the F.I.R. (Annex. 5) and the proceedings of the Board meeting dated 27-12-1993, no preliminary enquiry was conducted. The police case was under investigation and no challan was filed by the police by 5-1-1994, when the impugned suspension order Annex. 7 was passed. The copy of alleged proceedings of the Board dated 27-12-
1993 has also that not been filed by the respondents in this writ petition. In absence of any preliminary inquiry at least the facts mentioned in F.I.R. Annex. 5 ought to have been got inquired and verified by the State Government through a responsible officer. Moreover the Minutes of the Board’s meeting dated 27-12-1993 cannot be dispensed with the legal requirement of conducting a preliminary inquiry.
17. It is needless to reiterate that the holder of an electoral post cannot be equated with a Government servant, and therefore, before the holder of such an electoral post is suspended, the Government must have sufficient reasons to do so and care should be taken that such suspensions are not arbitrary, irrational, whimsical, unjust, unfair or actuated out of political motives or for political considerations.
18. In the instant case, admittedly neither
any preliminary enquiry was ordered nor
conducted nor any report of the enquiring
officer was placed before the State Govern
ment. Hence it cannot be held by any stretch
of imagination that “proceedings had been
commenced” within the meaning of Section
63 (4) of the Act against the petitioners when
the impugned suspension order Annex. 7 was
passed. Moreover there was total non-
application of mind on the part of the State
Government before suspending the petitioners. Therefore, on this count alone the
impugned suspension Annex. 17 cannot be
sustained.
19. This is also not in dispute that police after investigation has submitted the challan against petitioner Jagdish Narayan Sharma only as allegations levelled against petitioners Abdul Ajij and Mustak Khan have been found to be false by the Investigating Officer. Shri N. M. Lodha has contended that in such a contingency the petitioners may make an appropriate representation seeking a review of the order of suspension and asking the State Government to rescind the said order after he has submitted his reply. For this he has placed reliance on the case of Radhey Shyam Sharma v. State of Rajasthan, AIR 1985 Raj 65. It was a case where an order of
suspension of Panch/Sarpanch was passed under Section 17(a) of the Rajasthan Panchayat Act, 1953. The provisions of Section 17 of Rajasthan Panchayat Act and those of Rules 20, 21 of the Rajasthan Panchayat and Nyaya Panchayat General Rules, 1961 are clearly different and not analogous to the provisions of Section 63 of the Act. Since no preliminary enquiry was conducted as envisaged under Section 63(1) nor there was application of mind of the State Government on the material which was placed before it, the impugned suspension order Anx. 7 is clearly against the mandatory provisions of Section 63(4), unjust, illegal and non est. The contention of Shri N. M. Lodha is, therefore, without merit and it will be quite unreasonable to ask the petitioner to seek their remedy filing the review petition before the State Government.
20. In the premises of above discussion the impugned suspension order Annexure-7 is clearly in violation of the mandatory provisions of Section 63(4) of the Act and as such the same is illegal, arbitrary and unjust, which deserves to be quashed.
21. The upshot of the above discussion is that this writ petition is partly allowed and the impugned, suspension order dated 5-1-94 (Anx. 7) is hereby quashed and the respondents are directed to allow the petitioner to participate in the meeting 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 is hereby dismissed as not pressed: No order as to costs.