Jan Mohd. Vs. the State of Rajasthan and ors. - Court Judgment

J.R. Chopra, J.

1. These two writ petitions raise common questions of law and, therefore, they were heard together and are being disposed of by a common judgment.

2. Succinctly stated, the facts of these two writ petitions, are as under :

(1) Facts of Jan Mohd.'s case.

The case of the petitioner Jan Mohd. is that in the general elections of Municipal Board, Sardarshahar, 30 members were elected and out of them, 15 belongs to Bhartiya Janta Party and the remaining 15 belongs to Congress-I party and in the election of Chairman of Municipal Board, Sardarshahar, in the toss, the petitioner was elected as Chairman of the Board. According to him, on account of political reasons, members of the Bhartiya Janta Party, which is presently ruling in the State, always tried to remove the petitioner from the Chairmanship. He has submitted that recently on the complaints of the members of the ruling party in the State about the affairs of the Board, an enquiry was conducted by the Deputy Director, Local Self Government Department, Jaipur and in that enquiry, he has submitted that he is nowhere involved in any of the works executed, and every work was executed after the approval of the Board. It has been submitted that the integrity of the petitioner is beyond doubt. According to the petitioner, as the members of the ruling party were determined to remove the petitioner from the post of Chairman. Municipal Board, Sardarshahar for ulterior motive, they persuaded the State Govt. to suspend the petitioner from the post of Chairman because their efforts failed to remove him. However, the petitioner was served with a notice (Annexure-1) and the statement of allegations (Annexure-2) and by order (Annexure-3), he has been suspended from the post of Chairman, Municipal Board, Sardarshahar under Section 63(4) of the Rajasthan Municipalities Act, 1959 (for short 'the Act').

3. It has been contended that the suspension of an elected member cannot be equated with the suspension of a Govt. servant inasmuch as the suspension of an elected member amounts to his temporary removal and, therefore, all sorts of precautions should be taken before suspending an elected member. The temporary removal of an elected member without affording him an opportunity of being heard is violative of the principles of natural justice. It was submitted that the suspension order has not been served on petitioner as yet and he obtained a copy of it from the Executive Officer of the Municipal Board.

4. The contention of the petitioner is that the allegations levelled against him under Section 63 of the Act do not in any manner amount to flagrant abuse of his position and he is neither guilty of misconduct in discharging his duties nor is he guilty of disgraceful misconduct. All these allegations are baseless. The entire works were executed by unanimous resolution of the Board and the Chairman has not power to override the Board. The payment of the amount over and above Rs. 10,000/- has been contributed by the Doners. The Municipality has not made that payment. As regards appointments of Clerks, the Executive Officer is competent to do so and the Chairman is not at all involved in that matter. For removal of encroachments, the Executive Officer of the Board is the competent authority under Section 203 of the Act. He has submitted that it is wrong to contend that on 4-10-1991, when Truck No. RRM 2227, which was going without paying octroi duty, was raided by the Nakedar, he asked the Nakedar not to take action against the owner of that truck. According to him, the truck was ordered to be released after recovering eleven-times penalty. As regards the allegations of purchasing of pipes, it has been submitted that the pipes were never purchased and no payment against purchase of pipes was made. The allegation regarding purpose of Patties of 4 lakhs is also wrong as this fund for purchasing of patties was released by the Collector, Churu and the Patties were purchased after obtaining the sanction of the Collector and the State Govt. The payment regarding construction of drainage was made by the Executive Officer. According to the petitioner, his suspension is mala fide and it has not been made after obtaining and considering his explanation. Thus, the suspension of the petitioner is arbitrary and, therefore, Section 63(4) of the Act be declared as ultra vires of the Constitution.

5. It has been contended that no proceedings can be said to have been commenced against the petitioner as per Section 63 of the Act, However, if it is held that they have commenced then the provisions of Section 63(4) of the Act are ultra vires of the provisions of Article 14 of the Constitution. The suspension order has been passed for an oblique motive and ulterior considerations. According to the petitioner, the suspension order has penal consequences inasmuch as if the aforesaid order stands, the petitioner will not be allowed to take part in the proceedings of the Board by virtue of the provisions of Section 63(4) of the Act and it will shatter his image in the public at large. It has been alleged that Shri Bhanwarlal Sharma, Minister of Indira Gandhi Nahar Project has won the assembly elections from the Sardarshahar Constituency and he belongs to Bhartiya Janta Party (ruling party in the State) and is keenly interested in his removal. He has already threatened the petitioner that he will remove him from the post of Chairman of the Municipal Board, Sardarshahar. According to the petitioner, irregularities in the work cannot be construed as misconduct. He has, therefore, prayed for the following reliefs:

(1) that by an appropriate writ, order or direction in the nature of mandamus or certiorari, Section 63(4) of the Act be struck down and declared void;

(ii) further by an appropriate writ, order or direction the impugned order Annexure-3 dated 10-1-1992 may kindly be quashed and set aside;

(iii) further by an appropriate writ, order or direction non-petitioners may be directed to produce resolution of the Board and the enquiry report;

(iv) further by an appropriate writ, order or direction non-petitioners may be restrained from containing (sic) any enquiry in respect of allegations and Annexs. 1 and 2 may be quashed and set aside;

(v) Pending the petition, if any order is passed, prejudicial to the interest of the petitioner, same may be quashed and set aside.

(vi) Any other appropriate writ, order or direction to which the petitioner may be entitled to in the facts and circumstances of the case may be passed.

(vii) Costs of this writ petition may be awarded to the petitioner.

Along with this writ petition, certain Annexures have been filed. The petitioner has also filed his own additional affidavit as also the affidavits of other members of the Board to show that all the works have been executed in pursuance of the unanimous resolution of the Board.

6. A reply to the writ petition has been filed on behalf of the respondents, in which, it has been claimed that the petitioner was electd as Chairman of the Municipal Board, Sardarshahar, in the year 1990. It has been alleged that Shri Ishwar Ram died on 28-2-1991 and thereafter, no notice from any person was received for no confidence motion as per the record. One Shri Ashok Picha addressed a complaint to the Minister for Local Self Government Department, and on that complaint, Shri Atma Prakash Pareekh was ordered to make preliminary enquiry. He made preliminary enquiry and in that enquiry, the petitioner has participated and thereafter, the enquiry report has been submitted on 23-12-1991. The result of that enquiry was that the amount of certain works which were sanctioned for construction of Nalis in the Kachhi Bastis were utilised for construction of Nalis in Wards Nos. 15,18,27 ad 30 which are not Kacchi Bastis. The work estimates and technical sanctions were obtained for certain works ranging between Rs. 13,000/- to Rs. 29,000/- and for those works tenders were not invited and the works were bifurcated so that estimates of the works may be reduced to Rs. 10,000/- or less. Such type of 9 specific cases were noticed by the Enquiry Officer and in those cases, the entire work was got executed from a favourite Contractor Shri Farooq Khokhar. Even for purchase of stone Pattis, tenders were invited. No approval of the technical Engineer was obtained. Shri Farooq Khokhar did not file any tender but still, negotiations were undertaken and he was ordered to supply the stone Patties. Certain promotions have been made in contravention of the orders of the State Govt. So much so, the State Govt. gave an undertaking before the Court that no appointment or promotion will be made but in contravention of that undertaking, promotions were given and thereby the Municipal Board has been put to a loss of Rs. 54,168/-from January to October, 1991. The petitioner did not take any interest in removal of the encroachments. Certain cases were directed by the Nakedars wherein the octroi duty was evaded and in those cases, chits were issued by the petitioner to release those goods. When such type of matters were high lighted in the news papers, 11 times of the octroiduty was recovered as penalty. In one case, the evasion of octroi duty was noticed by the Nakedar on 3rd, the chit was issued by the petitioner on 4th and the penalty was ordered and recovered on 5th. Thus, according to the respondents, there was a prima facie case against the petitioner to proceed against him under Section 63 of the Act.

7. According to the respondents, in such matters, no pre-decisionat hearing is essential. The petitioner himself has participated in the Enquiry and has brought all the facts to the notice of the Enquiry Officer and, therefore, it cannot be said that he has been taken by surprise. After considering the report submitted by the Enquiry Officer, he has been suspended from the post of Chairman, Municipal Board, Sardarshahar and a chargesheet has been issued against him, as to why charges be not referred to a Judicial Officer. In reply to that chargesheet, he may submit any explanation, which he likes and the competent authority may drop the proceedings, if the facts and circumstances of the case so warrant. When the enquiry has been instituted against the petitioner under Section 63 of the Act, it will be deemed that the proceedings have been initiated against him. According to the respondents, the proceedings have commenced against the petitioner from the date, when show cause notice was issued to him as regards charges levelled against him. The petitioner can submit his explanation before the competent authority, who is already seized of the matter. Along with the reply to the writ petition, the preliminary enquiry report has also been filed.

8. It has been contended by the respondents that as per Section 63(4) of the Act, the suspension can be ordered at the commencement of the proceedings and when the competent authority had applied its mind on the preliminary enquiry report and came to the conclusion that action under Section 63 of the Act has to be initiated against the petitioner then it would mean that the proceedings have commenced on the date when he ordered for the issuance of a show cause notice accompanied by the statement of allegations against the petitioner. Thus, it has been claimed that no pre-decisional hearing is necessary in such matters and the provisions of Section 63(4) of the Act are absolutely valid.

9. A rejoinder to the reply has been filed wherein the averments made in the writ petition have been reiterated. A reply to the rejoinder has also been filed wherein the facts narrated in reply to the writ petition have been reiterated.

(2) Facts of Murlidhar Sharma's case :

The case of the petitioner is that he was elected as Chairman of the Municipal Council, Churu on 28-1-1991, after Shri Bahar was removed from the Office of Chairman on account of passing of a no confidence motion against him. It is alleged that the first no confidence motion was moved against him on 31-8-1991 and the second no confidence motion was moved against him on 22-9-1991 but the Collector did not convene any meeting. The third no confidence motion was moved against him on 15-10-1991 and when no meeting was convened by the Collector, a writ petition was filed by one Shri Sattar Khan seeking direction to convene the meeting and this Court vide its order dated 4-11-1991 directed the Collector, Churu to convene the meeting. Consequently on 12-11-1991, the meeting was convened by the Collector, Churu for consideration of the aforesaid third no confidence motion against the petitioner dated 15-10-1991 and in that meeting, that no confidence motion has failed.

10. However, vide order Annexure 1 dated 11-11-1991, the petitioner was suspended from the post of Chairman, Municipal Board, Churu. The petitioner has submitted that as he belongs to Congress-I Party, the members of the Janata Dal (D) (which is a partner of the Ruling Party in the State) including local M.L.A. (respondent No. 2) were not happy with him and they have tried from the very beginning to unseat him and started harassing him on one pretext or the other. He has further submitted that the suspension order Annexure 1 dated 11-11-1991 has not been served on him so far but he has been able to get a verbatim copy of the same. That order discloses that since an inquiry under Section 63 of the Act has been commenced against the petitioner and as the allegations against him are prima facie found to be true, if the petitioner continues in the Office, it will adversely affect the inquiry and, therefore, in exercise of the powers conferred under Section 63(4) of the Act the State Govt. has suspended the petitioner.

11. The contention of the petitioner is that he was never apprised of the so-called allegations levelled against him and had no opportunity whatsoever to controvert them. This was done mala fidely in order to thwart the no confidence motion because the members of the Opposite Party anticipated the result of the no confidence motion. He has, therefore, prayed that by an appropriate writ, order or direction:

(a) the word 'proceedings' as used in Sub-section (4) of Section 63 of the Act be read down as inquiry and it be declared that suspension cannot be effected without considering reply of the member;

(b) without prejudice to above, Sub-section (4) of Section 63 be declared to be violative of Article 14 of the Constitution of India and be struck down;

(c) The impugned order Annexure-1 dated 11-11-1991 may be quashed and set aside and the respondents may be restrained from interfering with the petitioner functioning as Chairman of the Municipal Council, Churu.

(d) Any other relief which, under the facts and circumstances of the case, as deemed just and proper may also be granted; and

(e) Cost of the writ petition be awarded to the petitioner.

12. A reply to the writ petition has been filed on behalf of the respondents, wherein it has been claimed that earlier, when the case was listed before the learned single Judge, it was submitted by Mr. D.S. Shishodia, the learned counsel for the petitioner, during the course of the arguments that the allegations of mala fide against the respondent No. 2 may be treated as withdrawn and he even submitted before the learned single Judge in Court that the name of respondent No. 2 Shri Rajendra Singh Rathore be deleted and on this statement of the learned counsel for the petitioner, Shri K.N. Joshi, Advocate for Shri Rajendra Singh Rathore was not allowed to even argue the case. However, while amending the writ petition, the petitioner has again made some allegations of mala fide against respondent No. 2 and has made him a party to the petition which is against the statement given by the learned counsel for the petitioner in the Court.

13. It was contended that in pursuance of the no confidence motions dated 31-8-1991 and 22-9-1991, meetings were not convened to consider them because on both these occasions, one of the signatories came and informed that his signatures have been obtained by coersive force and he has not subscribed to the No Confidence Motions. However, the last no confidence motion was put to vote on 12-11-1991 but it failed. It has been alleged that on 16-10-1991, 20 members of the Municipal Board made a complaint to the Hon'ble Minister for Local Self Government making serious allegations against the petitioner about misconduct in the discharge of his duties and flagrant abuses of his position as Chairman. It was alleged that the Octroi posts of Municipal Council, Churu which was situated in the midst of the City Opposite Mangleshwar Mahadeo Mandhir was vacated and the possession was handed over to the Mandir authorities without proper sanction and approval of the Municipal Board. It was further alleged that there were three Civil Suits which were pending in the Court of Munsif Churu bearing Civil Original Suits Nos. 183/87, 187/87 and 185/87 and in those suits, the cancellation of plots, which were allotted to the plaintiffs by the Municipal Board were challenged. In those cases, it is alleged that the petitioner appeared at his own and filed compromises nullifying the orders of cancellation and agreed that the Municipal Council, Churu would issue Lease Deeds to the plaintiffs. The petitioner was not authorised to put his appearance before the Court and to submit compromises without prior approval of the Municipal Board. It is the Commissioner of the Municipal Board, who is authorised to execute such compromise deeds.

14, It was further contended that the petitioner has misused his office and has allotted plots to his brothers and relatives. It was alleged that one Ramesh Jangid had imported certain goods in the Municipal Area without paying octroi and his goods were seized and he was asked to pay octroi duty plus penalty but the petitioner at his own motion ordered the release of the goods and also directed that no octroi should be charged on his goods. It is also alleged that the Commissioner of the Municipal Board, Churu had initiated proceedings for removal of unauthorised possessions over the land near Mangi-Sagar Kaur. That file was called by the petitioner and was kept with him and he directed the Commissioner not to take action in that matter. This complaint made under Section 103 of the Act was supported by documents.

15. On receipt of this complaint, a preliminary enquiry was ordered and Shri M.U. Siddiqui, Commissioner made the preliminary enquiries and has submitted his report to the Director of Local Self Government. The petitioner was informed to appear before the Enquiring Officer to submit his explanation, if he can do so but the Enquiry Officer was informed that the petitioner will come on his own. However, the Enquiry report was placed before the State Govt. and the State Govt. after proper application of mind and keeping in view the fact that the charges alleged against the petitioner were found to have been prima facie proved on the basis of the preliminary enquiry report, ordered that chargesheet be drawn and pending enquiry, the petitioner be suspended.

16. According to the respondent, it is wrong to suggest that the petitioner was not apprised of the charges. He was asked by the Enquiry Officer to participate in the enquiry but he chose to remain absent. While relying on the decisions of this Court in Ugamsee Modi v. State of Raj. (1962 RLW 184) and Bhuralal v. State of Raj, (1988 (I) RLR 945), it has been contended that no pre-decisional hearing is required in such matters. What is required is that after due consideration of the preliminary enquiry report and after application of mind, if the State Govt. proposes to proceed against a Chairman of the Municipal Board as regards removal of his office then that Chairman can be suspended. It has been contended that the contention of the petitioner that no enquiry has yet commenced under Section 63 of the Act does not hold water as a copy of the Notice dated 11-11-1991 along with details of charges have already been submitted with the reply to the writ petition marked as Annexures Rule 2 and Rule 3 respectively. It was submitted that the order of suspension along with chargesheet could not be served on the petitioner as he avoided service of them and, therefore, they were pasted on his house in the presence of the witnesses.

17. It was further submitted that the preliminary enquiry report was considered by the Minister for Local Self Govt. on 4-11-1991 and a detailed order was passed. It is in pursuance of that order that this suspension order has been passed. According to the respondents, the word 'proceedings' carries a definite meaning and cannot be termed as vague. The petitioner will have an opportunity to explain his conduct because the matter has been referred for judicial enquiry and that is the stage when the petitioner will have an opportunity to explain his case. It has been submitted that it is not necessary that before suspension and before sending the matter to the Judicial Officer for enquiry, pre-decisional hearing should be provided to the Chairman of the Municipal Board. According to the respondents, this duplication is not at all called for.

18. According to the respondents, the petitioner was summoned to appear before the Local Self Minister on 6-12-1991 and 13-12-1991 but he refused to accept those notices. Now, under the orders of the Local Self Minister the matter has been referred for enquiry to the Joint Legal Remembrancer and he has issued notice to the petitioner to appear before him on 28-1-1992. According to the respondents, the provisions of Section 63(4) of the Act are not violative of Article 14 of the Constitution and, therefore, they cannot be struck down.

19. A rejoinder has also been filed on behalf of the petitioner, in which, an effort has been made to explain all these allegations which have been levelled against him and it has been claimed that the compromises have been filed in all the three cases in pursuance of a resolution of the Municipal Board. The petitioner has further submitted that he has only ordered for the vacation of the Pyao and the rest of the building has been vacated at the instance of the Commissioner and not under this orders. He has not received any notice from the Local Self Govt. Minister on 6-12-1991. He has also not received any notice from the Joint Legal Remembrancer to appear before him on 28-1 -1992. The allegations as regards the release of goods of Shri Ramesh Jangid and thereby causing loss of Octroiduty have been refuted. Rather, it has beenclaimed that the collection of octroi dutyduring his tenure has increased to a greatextent. According to the petitioner, he does.not know whether any preliminary enquirywas held against him or not. Additionalaffidavits have been filed on behalf of thepetitioner. Commissioner, Municipal Council, Churu as also on behalf of Intervener Shri,Mohd. Hussain in support of the documentsfiled by them. ..

20. We have heard Mr. M. Mridul, and Mr. Sangeet Lodha for the petitioner Murli-dhar, Mr. K.N. Joshi for the petitioner Jan Mohd., L.S. Udawat learned Additional Advocate General and Mr. L. M. Lodha Mr. M. S. Singhvi the learned counsel appearing for the Intervener Shri Mohd. Hussain. We have carefully gone through the record of the case.

21. The learned counsel appearing for the petitioners have contended that the provisions of Section 63(4) of the Act should be read down to include the principles of natural justice i.e. audi alterm partem. According to them, suspension of an elected representative should not take place without affording him an opportunity of hearing. In support of this submission, they have placed reliance on a decision of their Lordships of the Supreme Court in Jagdish Pandey v. Chancellor, Bihar University (AIR 1968 SC 353) (Head Note B) They have further contended that if this submission does not find favour with the Court then keeping in view the elementary principles of law, i.e. if any action of the State Govt. which visits somebody with civil and evil consequences then even if that action is administrative in character and has been taken in exercise of the executive powers of the State, it has to be reasonable and fair; and even in matters of administrative action, the State has to act reasonably and fairly and if the State action is not reasonable and fair then such an action is arbitrary and when it is arbitrary, it is violative of Article 14 of the Constitution, the provisions of Section 63(4) of the Act should be struck down as being violative of Article 14 of the Constitution. According to them, it is an admitted case of the respondents that before passing order suspending the petitioners, no opportunity of hearing has been provided to them and when their explanations have not been considered before their suspension, their suspension itself is per se illegal. It is penal in character and, therefore, the suspension of the petitioners which has been brought about without affording an opportunity of being heard is violative of the principles of natural justice. Thus, the suspension of the petitioners deserves to be quashed.

22. It was next contended by the learned counsel appearing for the petitioners that suspension of an elected representative cannot be equated with the suspension of a Govt. servant. A Govt. servant can be suspended even before a preliminary enquiry is held but a public representative who is elected by the people cannot be deprived of his rights without affording him an opportunity to explain his conduct. According to the learned counsel, the suspension of an elected representative results in his temporary removal from office. An elected representative is elected and appointed for a fixed term and after his suspension, even if he is exonerated, the term during which he remained under suspension will not be counted for his extension and, therefore, the consequences of suspension of an elected representative are evil and civil in nature and in such matters, the State Govt. should not act arbitrarily. Reliance in this respect has been made on certain observations made by this Court in Shyam Sunder v. State of Rajasthan (S. B. Civil Writ Petition No. 613 of 1986, decided on 12-8-1986) and Mangilalv. District Excise Officer (AIR 1971 Raj 46) (Head Note-B).

23. The contention of the learned counsel appearing for .the petitioner is that the suspension of the petitioners has been brought about in malafide exercise of powers for political motivations. According to them, when the political opponents of the petitioners, who belong to the ruling party in the State failed to carry out the no confidence motion in the Municipal Boards, they impressed upon the State Govt. to suspend the petitioners and, therefore, the suspension of the petitioners being mala fide deserves to be quashed.

24. Mr. L.S. Udawat, the learned Addl. Advocate General appearing for the State has stoutly opposed these submissions. He has submitted that it has been the consistent view of this court that no pre-decisional hearing can be granted to a person who deserves to be suspended because the suspension has no penal overtones. If the suspension is made as a penalty, then of course, the principles of audi alteram partem can be made applicable but when the suspension has been brought about as an interim measure to protect the interest of the Municipal Boards then such temporary interim measure does not visit the holder of a post with evil or civil consequences. He has contended that in this case, there is no scope of arbitrary exercise of powers. Whenever a complaint is received, a preliminary enquiry has to be got conducted by the State Govt. and after receipt of that preliminary enquiry report, if prima facie, charges are proved and the State Govt. after due application of mind comes to the conclusion that the elected representative has to be proceeded with as regards these charges then on those charges, he can be suspended. Thus, the exercise of powers is neither arbitrary nor unreasonable. No two pre-decisional hearings are necessary. According to Mr. Udawat, even if for the sake of argument, the contention of learned counsel for the petitioners is accepted then first pre-decisional hearing will have to be granted prior to the suspension and the another pre-decisional hearing will have to be granted prior to the reference of matter to the Judicial Officer, because that is provided by Sub-sections (2) and (3) of Section 63 of the Act. No charges can be referred to a Judicial Officer without affording an opportunity to the delinquent to explain his conduct. At that stage, the State Govt. can consider the explanation and can drop the charges. It has never been the intention of the legislature to provide two pre-decisional hearings.

25. It has been argued by Mr. Udawat, the learned Addl. Advocate General that according to Rajasthan Panchayat Act, no preliminary enquiry is required to be held before suspension and, therefore, the explanation of the delinquent has to be obtained on the basis of the complaint and thereafter, if the explanation is not found to be satisfactory, then the delinquent can be suspended and the enquiry can be ordered. He has further submitted submitted that according to Rajasthan Municipalities Act, on receipt of a complaint, the State Govt. may depute some officer to hold preliminary enquiry against the delinquent and after receipt of the report of preliminary enquiry, if the State Govt. after due consideration of that report comes to the conclusion that allegations of misconduct or flagrant abuse of position or the allegations of disgraceful conduct are prima faciely established then a show cause notice has to be issued to the delinquent and simultaneously, a suspension order can be passed. He has further submitted that while interpreting the provisions of Sections 17(4) and 17(4-A) of the Act, a Full Bench of this Court in Bhuralal v. State of Raj. (1988 (1) RLR 945) has held that the explanation alone is to be obtained from the delinquent and it is not necessary that suspension order should be passed only after consideration of that explanation or its rejection. He has, therefore, submitted that there is no necessity of reading down the provisions of Section 63(4) of the Act because enough safeguards have been provided in that provision and so, the State Govt. cannot exercise its powers arbitrarily.

26. According to Mr. Udawat, in these cases, the petitioners were asked to participate in the proceedings. Actually, petitioner Jan Mohd. has participated in the preliminary enquiry and petitioner Murlidhar did not participate in the proceedings though, he was asked to participate. Thus, it is clear that enough opportunity was given to the petitioners to defend themselves during the preliminary enquiry. Mr. Udawat has further submitted that it is not the requirement of the law that before ordering at suspension, a pre-decisional hearing is a must. According to him, the principles of natural justice do not apply in cases of such an interim suspension.

27. Mr. L.M. Lodha, the learned counsel appearing for the intervener has argued that the no confidence motions which were submitted against the petitioners were mala fide. Accordingto Mr. Lodha, these no confidence motions were submitted by the friends of the petitioners keeping in view the fact that once these motions fail, the petitioners cannot be removed for six months. These no confidence motions were actually stage managed affairs of the petitioners to prolong their continuation in office and, therefore, the action of the petitioners is mala fide.

28. We have considered the rival submissions made at the bar and have carefully gone through the record of the case.

29. It was contended that simply because these provisions are on the Statute Book for a long time, it does not mean that they are just and reasonable and their validity can be challenged at this stage, in spite of the passage of time. In this respect, reliance has been placed on a decision of then I oudhips of the Supreme Court in Motor General Traders v. State of A.P., (1984)(1) SCC 222 : (AIR 1984 SC 121) wherein it has been observed (at page 130 of AIR):

'Time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported.' (See W.A. Wynes: Legislative, Executive and Judicial Powers in Australia, Fifth Edition, page 33).

Our attention was next drawn to a decision of their Lordships of the Supreme Court in Rattan Arya v. State of Tamil Nadu (AIR 1986 SC 1444), wherein it has been held that what was once a perfectly valid legislation may in course of time become discriminatory and liable to challenge on the ground of its being violative of Article 14. There is no quarrel about this principle. Whether the provisions of Section 63(4) of the Act are arbitrary or not, is the main question to which we will address ourselves a little later.

30. As regards the reading down of the provisions of Section 63(4) of the Act to include the principles of natural justice, our attention has been drawn to a decision of their Lordships of the Supreme Court in Jagdish Pandey v. Chancellor, Bihar University (AIR 1968 SC 353). The facts of that case are contained in para 6 of the Judgment, wherein it has been noted that the order dated August 18, 1962 had worked itself out and, therefore, it could not have been reviewed or revised by the Chancellor under Section 4 by issuing an order dated November 30, 1962, whereby promotion was granted to a particular person by the Chancellor as Principal and that order was executed and it was sought to be set aside by a later order. In those facts, it was held that although, the Chancellor has powers to revise that order but that should be done after affording an opportunity of being heard to the affected person. It was in this context that the provision as such was read down and in reading it down it was held that it includes the principle of audi alterm partem. Here, that is not the case. It is not acase of divesting rights, which revested. It is a case of temporary removal of a person pending proposed enquiry, which may be initiated against him for his removal. That enquiry in a regular manner has to be proceeded with only after obtaining his explanation and after considering his explanation, if it is found that the charges are to be referred to the Judicial Officer then the regular enquiry starts. Prior to that, if any complaint is made as regards his working, which may be covered by Clauses (c) and (d) of Section 63(1) of the Act then on that complaint alone no suspension can take place. That complaint has to be enquired into by the State Govt. or by an officer deputed by it and after that enquiry is held and a preliminary report is submitted and after that report is considered, the delinquent can be suspended. Thus, it is clear that the suspension can only take place after due application of mind on such a report where the authorities comes to the conclusion that the matter requires further probe and if that is there then the explanation has to be obtained from the delinquent concerned and after setting down the statement of allegation that enquiry is referred to a Judicial Officer of the rank of District & Sessions Judge. Thus, the final enquiry is not held by the State Govt. It has to be held by a Judicial Officer and, therefore, the contention of Mr. Mridul, the learned counsel appearing for the petitioner Murlidhar that once a decision to suspend a particular person is taken, the State Govt. will always try to maintain its order has no legs to stand. In support of this contention, Mr. Mridul has placed reliance on a decision of their Lordships of the Supreme Court in H.L. Trehan v. U.O.I. (1989 (1) SLR 7), wherein it has been held that once a decision is taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. As stated above, in this type of cases, it is not that authority who has suspended the petitioner can hold the enquiry. The regular enquiry is conducted by a Judicial Officer. Thus, this contention is devoid of any force.

31. The suspension does not finally determine the matter. Its sole purpose is that the persons against whom severe allegations of misconduct, flagrant abuse of powers and disgraceful conduct are levelled, may be restrained from causing further damage to the finances of the institution. Thus, the decision of their Lordships of the Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna (AIR 1987 SC 71) has no application to the facts of the present case. That was a case where the allegations of misconduct were made against a member and the Disciplinary Committee was asked to decide as to whether that member is guilty or not. The finding by the Council operates with finality in the proceedings, and it constitutes the foundation for the penalty imposed by the Council on him. The power to record a finding as to whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee. In that context, it was held by their Lordships of the Supreme Court that as the order of the Council will result in finality, an opportunity of hearing should be provided to the petitioner. Thus, this authority has no application to the facts of the present case. Here, the suspension order is absolutely interim in character and does not attain any finality.

32. It was next contended by the learned counsel appearing for the petitioners that this action on the part of the State Govt. suspending the elected representative being unreasonable and arbitrary is violative of Article 14 of the Constitution. Even when the State Govt. acts administratively in exercise of its executive powers, it has to act fairly and reasonably because if the act of the State Govt. is not fair and reasonable, it will be arbitrary and once it is held to be arbitrary then it is violative of Article 14 of the Constitution. In this respect, our attention has been drawn to a decision of their Lordships of the Supreme Court in State of Haryana v. Ramkishan (1988(3) SCC 416: (AIR 1988 SC 1301), wherein it has been observed that if statutory provisions are enacted conferring powers on executive authorities to take adverse decision involving civil consequences then in absence of exclusion of natural justice rules, the provisions must be interpreted as implying to preserve right of hearing to the affected persons before taking decision. That was a case, where the mining lease which was granted in favour of a particular person was sought to be terminated prematurely. It was in this context that their Lordships of the Supreme Court have held that hearing must be afforded to the affected lessee before taking decision of termination of his lease. In that case, by this action on the part of the Govt, finality was sought to be attained as regards termination of a lease prematurely. It was not a case where interim measure was being taken and hence, this authority has no application to the facts of the present case.

33. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Bangalore Medical Trust v. B.S. Muddappa, 1991 (4) SCC 54: (AIR 1991 SC 1902), wherein their Lordships of the Supreme Court have observed that when administrative actions affect public interest, it should be exercised objectively, rationally, intelligibly, fairly and non-arbitrarily. It should not be taken in undue haste disregarding the procedure, nor should it be ultra vires the powers conferred by the Statute. There cannot be any quarrel about this principle that when the State Govt. acts administratively and its decision affects public interest, it should always exercise that discretion objectively, rationally, intelligibly, fairly and non-arbitrarily. Now, whether that has been done in this case or not is a million-dollar question which has to be answered keeping in view the facts of each case.

34. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Management of M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar, 1990 (2) SCC 48, wherein their Lordships of the Supreme Court have observed that it is fundamental principle of good administration showing that justice should not only be done but seem to have been done. It should be observed even where principles of natural justice are not applicable, affording of an opportunity of pre-decisional hearing in the particular situation is in consonance with fairness. Particular prejudice as a result of want of the opportunity need not be established. Not giving the opportunity is itself a prejudice. Their Lordships have further observed that the term 'fairness of procedure' 'fair play in action', 'duty to act fairly' are perhaps used as alternatives to 'natural justice1 without drawing any distinction. But such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable. Fairness is a rule to ensure that the vast powers in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. That was a case, where the worker of the appellant company was caught red-handed carrying 55 pieces of electro-magnetic clutch plates kept concealed in the tool box of his scooter. He was found guilty in the domestic enquiry and was dismissed from service. The matter went to the Labour Court, where the employee made a request to the Govt. that it will not be possible for him to attend the Labour Court at Dhanbad, that case was transferred to Labour Court, Patna. That application was made without intimation to the Management. It was in that context that the Management challenged the Govt. action and it was in this context that the aforesaid observations have been made by their Lordships of the Supreme Court. Thus, this authority has no application to the facts of the present case.

35. Mr. Mridul has next placed reliance on a decision of their Lordships of the Supreme Court in Nawabkhan Abbaskhan v. State of Gujarat, 1974 (2) SCC 121 : (AIR 1974 SC 1471), wherein it has been observed that where the law invests an authority with power to affect the behaviour of others what consequence should be visited on abuse or wrong exercise of power is no abstract theory but experience of life and must be solved by practical considerations woven into legal principle. Verbal rubrics like illegal, void, mandatory, jurisdictional are convenient cloaks but leave the ordinary man, like the petitioner here, puzzled about his remedy. Their Lordships of the Supreme Court have further observed:

'Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal. May be that in ordinary legislation or at common law a Tribunal, having jurisdiction and failing to hear the parties may commit an illegality which may render the proceedings voidable when a direct attack is made thereon by way of appeal, revision or review, but nullity is the consequence of unconstitutionality and so without going into the larger issue and its plural divisions, one may roundly conclude that the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void and ab initio of no legal efficacy. The duty to hear manacles his jurisdictional exercise and any act is in its inception, void except when performed in accordance with the conditions laid down in regard to hearing.'

In this case, there is no constitutional requirement of hearing before suspension. We shall deal with this aspect of the matter a little later.

36. Mr. Mridul has next placed reliance on a decision of their Lordships of the Supreme Court in Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538, wherein their Lordships of the Supreme Court in part11 of the Judgment have extracted the principles to be borne in mind by Court indetermining validity of Statute oh ground ofviolation of Article 14 and those principles readas under:

(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the constitutionality of an'ena'ct-ment and the burden is upon him who attacks it to show that there has been a cleaf transgression of the constitutional principles;

(c) that it must be presumed that thelegislature understands and correctly appreciates the need of its own people, that its lawsare directed to problems made manifest byexperience and that its discriminations arebased on adequate grounds :

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed fo be the clearest:

(e) that in order to sustain the presumptionof constitutionality, the Court may take intoconsideration matters of common knowledge, matters of common report, the historyof the times and may assume every state offacts which can be conceived existing at thetime of legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of alegislature are to be presumed, if there isnothing on the face of the law or the surrounding circumstances brought to the noticeof the Court on which the classification mayreasonably be regarded as based, the presumption of constitutionality cannot be carried tothe extent of always holding that there mustbe some undisclosed and unknown reasonsfor subjecting certain individuals or corporations to hostile or discriminating legislation.

Thus, this authority only lays down some general principles to be kept in mind by the Court while determining constitutional validity of a provision.

37. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, their Lordships of the Supreme Court while considering the principles of natural justice i.e. audi alterm partem have observed that the principle of audi alteram partem, which mandates that no one shall be condemned unheared, is part of the rules of natural justice. The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must beheld to be applicable. That was a case where ;the passport was sought to be impounded. Their Lordships have held that it cannot ;be impounded without affording an opportunity of hearing. Whether this interim measure of suspension amounts to civil consequences or not is a question which has to be answered by the Court and will be dealt with a little later but this much is clear that when action is penal in character and results in civil consequences then, of course, the principle of audi alt.ex.am partem has to be applied.

38. Their Lordships of the Supreme Court in Swadeshi Cotton Mills v. Union of India, (AIR 1981 SC 818) have held that before taking over of the Industrial Unit without investigation, hearing at pre-decisi-onal stage must be given because that would result in finality, so far as taking over of the unit is concerned. In Om Prakash v. State of J. & K, AIR 1981 SC 1001, the Supreme Court has observed at pp. 1004 & 1005;

'that equality before the law or equal protection of the laws within the meaning of Article 14 means absence of any arbitrary discrimination by the law or in their administration. The classification permissible must be based on some real and substantial distinction, a just and reasonable relation to the objects sought to be attained and cannot be made arbitrarily and without any substantial basis.'

There Cannot be any quarrel about this principle. That case relates to the distribution of raw material by the State Govt. to the Industrial Units. Here, it is not a case of conflicting claims.

39. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Ambika Pd. v. State of U. P., AIR 1980 SC 1762. That was a case of discrimination based on sex and it was held to be ultra vires of Article 14 of the Constitution. This case has no application to the facts of the present case. In Kasturilal v. State of J. & K., AIR 1980 SC 1992, the Govt.'s discretion to grant largess was not unlimited and, therefore, it was held that the Govt. action must satisfy test of reasonableness and public interest. The grant of contract by way of negotiation was not held to be arbitrary or irrational. It was further held that it must follow as a necessary corollary that the Govt. cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. It is not a case of distribution of State largess.

40. Mr. Mridul has next drawn our attention to a decision of their Lordships of the Supreme Court in Ramana v. LA. Authority of India, AIR 1979 SC 1628, That was a case of grant of tender which was granted in favour of a person who was not eligible. The Supreme Court has observed that the International Airport Authority cannot accept tender of persons who does not fulfill the requisite qualifications. It was further observed at p. 1642:

'that this rule also flows directly from the doctrine of equality embodied in Article 14. It is now well settled as a result of the decisions of this Court in E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR-348): (AIR 1974 SC 555) and Maneka Gandhi v. Union of India, (1978) 1 SCC-248 : AIR 1978 SC 597 that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principles which is non-discriminatory: it must not be guided by any extraneous or irrelevant consideration, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of taw or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory.'

There cannot be any quarrel about this principle that the State action must be fair and reasonable.

41. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Liberty Oil Mills v. Union of India, AIR 1984 SC 1271, wherein their Lordships of the Supreme Court considered the effect of clauses 8-A and 8-B of the Imports (Control) Order, 1955. It was observed as under at page 1284:

'On the initiation of a proceeding under Clause 8 by the commencement of investigation, the authority has to address itself to the question whether any action of an interim nature to prevent further harm or mischief is warranted pending invesiigation. Licences may have already been issued and allotment of imported goods may have already been made. The authority may consider it desirable to prevent the person from importing goods pursuant to the licences or to prevent him from obtaining the imported goods allotted to him through the specified agencies. If so, the authority may make an order under Clause 8-A suspending the importation of goods, the grant of licences on the allotment of imported goods. But clause 10 provides that no action under Clause 8-A may be taken without giving a reasonable opportunity to the person concerned. It is obviously thought that the right such as it may, to obtain a licence or allotment of goods having become crystallised into a licence or an allotment, an order under Clause 8-A may have immediate and grave prejudicial repercussion on the person concerned making it desirable that he should be heard before an order of suspension is made so it is that Clause 8-A contemplates a pre-decisional hearing. On the other hand, licences may not yet have been issued and allotments may yet have to be made. The appropriate authority may be satisfied that it would not be in the public interest to issues licences or make allotments to the person concerned without ascertaining further details with regard to the allegations against him. In such cases, the authority may make an order of abeyance under Clause 8-B. Both clauses 8-A and 8-B contemplate action of an interim nature pending investigation into allegations under Clause 8. Ordinarily, in the absence of anything more, it would not be necessary to give an opportunity to the person concerned before proceeding to take action under Clause 8-A or Clause 8-B. But while Clause 8-B deals with the right to obtain licences and the right to obtain allotments. Clause 8-A deals with rights which have flowered into licences and allotments. A person to whom licences have been granted or allotments made may have arranged his affairs on that basis and entered into transactions with others and, to him the consequences of action under Clause 8-A may be truly disastruous whereas the consequences of action under Clause 8-B may not be so imminently harmful. It is presumably because of this lively difference between clauses 8-A and 8-B that clause 10 provides for a pre-decisional opportunity in the case of action under Clause 8-A and does not so provide in the case of action under Clause 8-B.

Again, it is presumably because of this difference that clause 10 while:providing for an appeal against a decision under Clause 8-A does not provide for an appeal against a decision under Clause 8-B. Not that it makes any difference because sections 4-M and 4-N of the Act provide for an appeal and a revision against any decision or order made under the Act. It does not mean that the requirements of natural justice are not be met at all in the case of action under Clause 8-B. The requirements of natural justice will be met in the case of action under Clause 8-B by considering bona fide any representation that may be made in that behalf by the person aggrieved. Clause 8-B itself gives an indication that such a post-decisional opportunity on the request of the person concerned is contemplated. Action under Clause 8-B is to be taken if the authority is so satisfied in the public interest that such action may be taken without ascertaining further details in regard to the allegations. It clearly implies that when further facts are ascertained by the authority or brought to the notice of the authority, such action may be reviewed. While ex parte interim orders may always be made without a pre-decisional opportunity or without the order itself providing for a post-decisional opportunity, the principles of natural justice which are never excluded will be satisfied if a post-decisional opportunity is given, if demanded. In the case of action under Clause 8-B it is not necessary to give a pre-decisional opportunity but a post-decisional opportunity must be given if so requested by the person affected.'

Our attention was next drawn to a decision of their Lordships of the Supreme in Re-Special Courts Bill, 1978, AIR 1979 SC 478, wherein in para 73 of the judgment, certain principles of natural justice have been extracted by their Lordships of. the Supreme Court. This authority: deals with classification. We are presently, not concerned with the classification and hence, this authority has no application to the facts of this case.

42. Mr. Mridul has next drawn our attention to a decision of their Lordships of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, wherein their Lordships have observed :

'The right to life includes the right to livelihood, and deprivation of right to livelihood except according to just and fair procedure established by law can be challenged as violative of Article 21.'

Here, it is not the case of deprivation of right to livelihood. However, this authority can be utilised only to show that the procedure established by law must be reasonable and must conform to norms of justice and fair play. In that case, their Lordships have observed:

'The procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair just and reasonable. Just as a mala fide act has no existence in the eye of law even so, unreasonableness vitiates law and procedure alike. It is, therefore, essential that the procedure prescribed by law for depriving person of his fundamental right must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness thereby vitiating the law which prescribed that procedure and consequently, the action taken under it:

In this case, according to the provisions of the Act, as soon as a complaint is received by the State Govt., that complaint has to be enquired into and after the receipt of preliminary enquiry report, that report has to be considered by the State Govt. and thereafter, if the State Govt. considers on the basis of the preliminary enquiry report that the complaint is false then proceedings can be dropped but if it thinks proper that the charges levelled against the delinquent requires a thorough probe, then those charges can be referred to a Judicial Officer for further enquiry. As soon as the charges are sought to be referred to the Enquiry Officer, the delinquent must be served with a show cause notice along with statement of allegations and if the State Govt. considers it proper that the continuation in office of the delinquent will result harmful to the Institution, it may suspend the delinquent. This procedure, in our opinion, is neither unfair, unreasonable nor unjust or arbitrary, because the State Govt. cannot suspend a delinquent at its will, preliminary enquiry has to be conducted by a responsible officer and after considering the preliminary enquiry report, if the State Govt. is satisfied that the charges requires a thorough probe, and continuation in office of the delinquent may cause great loss to the finances of the Institution, it may decide to refer those charges to a Judicial Officer and before those charges are referred, the delinquent has to be served with a show cause notice along with statement of allegations and he can also be suspended from his Office at the same time this procedure, in our opinion is wholly just and reasonable.

43. Mr. L.S. Udawat, the learned Addl. Advocate General has argued that if on the basis of the preliminary enquiry report, if an opportunity is given to the erring member or Chairman of the Municipal Board to submit his explanation and if it is made imperative to consider his case before he is suspended then there will be every possibility that, that member/Chairman will avoid the service of notice and if any how that notice is served on him, he will try to delay his reply and hence, such a course will be unreasonable and unjust. Such a course will result in injustice rather than justice. Mr. Udawat has candidly conceded that a member or Chairman of the Municipal Board is an elected representative and he cannot be suspended like a Govt. servant as has been held by this Court in Shyam Sunder v. State of Raj., (S.B. Civil Writ Petition No. 613 of 1986, decided on 12-8-1986) bur it does not mean that simply because a member/Chairman of the Municipal Board is an elected representative, he cannot be suspended even if grave charges of misconduct; flagrant abuse of powers or disgraceful conduct are set up against him. If Public Institutions are left at the mercy of such persons against whom prima facie allegations of misconduct, flagrant abuse of powers or disgraceful conduct are levelled then such an interpretation which has been canvassed by the learned counsel appearing for the petitioners will certainly result in injustice. Mr. Udawat has candidly conceded that the suspension of a Govt. servant cannot be equated with the suspension of an elected representative. A Govt. servant can be sus-pended before the preliminary enquiry but an elected representative cannot be suspended before preliminary enquiry. As stated above, a member/ Chairman of the Municipal Board can be suspended only when a preliminary enquiry is conducted by a responsible Officer and the preliminary enquiry report supported by documentary and oral evidence is considered by the State Govt. and the Govt. comes to the conclusion that holding of office by such a delinquent, against whom- the allegations of misconduct, flagrant abuse of powers and disgraceful conduct have been levelled, would cause irreparable loss or damage to the Public Institution.

44. It is true that as has been held by their Lordships of the Supreme Court, in Sunil Batrav. Delhi Administration, AIR 1978 SC 1675 : (1978 Cri LJ 1741), the conviction for a crime does not reduce the person into a non-person whose rights are subject to the whims of the prison administration'and, therefore, the imposition of any major, punishment within the prison system is conditional upon the observance of procedural safeguards but it does not mean that even if ;the charges of misconduct, flagrant abuse of position and disgraceful conduct are found to be prima-faciely established on the basis of the preliminary enquiry report, which is supported by documentary and oral evidence then also such a member / Chairman of the Municipal Board should be allowed to continue in his Office.

45. Mr. Udawat does not dispute the principles laid down in K.I. Shephara v. Union of India, AIR 1988 SC 686 that Were is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. The employees have already been thrown out of employment having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a cbndi-tion precedent to their termination. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. Here, it is not a case, where an elected representative has been thrown out of his office. Here, it is a case, where looking to the gravity of charges which have been enquired into by the State Govt. through a responsible Officer and after considering that preliminary enquiry report based on documentary and oral evidence, the State Govt. has come to the conclusion that holding of office by such delinquent Chairman will cause great loss to the public institution and, therefore, till those charges are enquired into by a Judicial Officer of the rank of District Judge, as a interim measure, the elected representatives have been suspended from their office. As soon as the charges have been referred to a Judicial Officer, the petitioners have been served with a show cause notice along with statement of allegations.Thus, K.I. Shephard's case (supra) has no application to the facts of the present case. Here, the suspending authority does not hold the rigour enquiry against a delinquent officer that is done by a Judicial Officer of'District Judge Rank.

46. The decision of their Lordships of the Supreme Court in Sayeedur Rehman v. State of Bihar, AIR 1973 SC 239 : (1973 Lab 1C 197) has no application to the facts of the present case. In that case, the Supreme Court has observed as under:

'This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the right of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperativ^ necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The omissipn of express requirement of fair hearing in the rules or other source of power claimed for reconsidering an order is supplied by the rule of justice which is considered, an integral part of our judicial process which also governs quasi-judicial authorities when affecting rights of parties there is no dispute about this proposition.

47. It has been contended by Mr. K.N. Joshi, the learned counsel appearing for the petitioner Jan Mohd. that the petitioner Jan Mohd. has been suspended from the office of Chairman, Municipal Board, Sardarshahar malafidely. He has drawn our attention to certain allegations made in the petition. Petition Jan Mohd. has claimed that Local Self Minister has won the assembly election from Sardarshahar and, therefore, he is inimical to him. It has also been contended by the petitioner Murlidhar that Shri Rajendra Singh Rathore has won the assembly election from Churu Constituency and he belongs to Janta Dal -- (D), which is a partner of the ruling party in the State. According to him, respondent No. 2 Rajendra Singh is also inimical to him. No particular instances of malafides have been quoted except that either Shri Rajendra Singh Rathore or Shri Bhan-warlal Sharma belong to the ruling party in the State and, therefore, they are prejudicial to them. Simply because they belong to the ruling party in the State, it does not mean that they are prejudical to the petitioners. In this case, on the complaints received by the State Govt., a preliminary enquiry was conducted by the Responsible Officer of the State and they submitted preliminary enquiry report supported by documentary and oral evidence, wherein he has found the charges levalied against the petitioners to be primafaciely correct. It was on the basis of the preliminary enquiry report that the State Govt. has ordered that a thorough probe should be made in these charges levelled against the petitioners and the petitioners have been issued show cause notices along with statements of allegations and these charges have been referred to a Judicial Officers for further enquiry. Thus, in this case there is little scope for the exercise of powers with malafides. It is true that it has been held by their Lordships of the Supreme Court in State of Punjab v. Ramjilal, AIR 1971 SC 1228, that it would be placing an intolerable burden in proof of a just claims to require a pary alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular Officer was responsible for misusing the authority of the State by taking action for a collateral purposes. The substance of the allegations has still to be gone into before the allegations are primafaciely accepted as correct. In this respect, our attention has been drawn to a decision of the Bombay High Court in Ramchandra Maroti v. Collector, AIR 1975 Bombay 281 wherein it has been held that in support of the plea raised by the petitioner, that the action of the Trust is either mala fide or discriminatory, no data has been placed before us in support of the said challenge. In this view of the matter, the Bombay High Court has held that the petitioner-landlord was not entitled to any hearing before the said application was decided by the Trust under Section 68 of the Act, having regard to the facts and circumstances of the case.

48. Our attention was also drawn to a decision of this Court in Thanaram v. State of Raj, 1973 RLW 621 : (1974 Lab 1C 955), wherein a learned single Judge of this Court has held that if the Govt. has acted in exercise of its discretion malafidely and in violation of the Rules, the Courts cannot act as silent spectators. There is no quarrel about this principle. As stated above, no data has been placed before us in support of the allegation that the State Govt. has suspended the peti--tioners malafidely and, hence, this authority will not help the case of the petitioners. The mala fides have not been proved by the petitioners.

49. The learned counsel appearing for the petitioners have next placed reliance on a decision of their Lordships of the Supreme Court in S.P. Kapoor v. State of H.P., AIR 1981 SC 2181 : (1982 Lab IC 9) wherein it has been held that the post haste manner in which things were done on one particular date suggests that some higher-up was interested in pushing through the matter hastily when the regular secretary was on leave. In this case, on the complaints received against the petitioners, the matter was got enquired into by the State Govt. through the responsible Officers and the petitioners were called upon to participate in the preliminary enquiry. Actually petitioner Jan Mohd. has participated in the preliminary enquiry whereas petitioner Murlidhar abstained from participating in the enquiry. However, the preliminary enquiry was got conducted and a report was submitted, which was supported by oral and documentary evidence and then, after considering that report, the State Govt. has suspended the petitioners from the posts of Chairman and it thought it fit to refer the matter for further probe to a Judicial Officer under Section 63 of the Act. The petitioners have been issued show cause notices along with statements of allegations. Thus, it cannot be said that the things were done in post haste manner and some higher-up was interested in pushing through the matter hastily. Thus, S.P. Kapoor's case (supra) has no application to the facts of the present case.

50. Reliance has further been placed on a decision of Court in Dr. R.K. Sharma v. State of Raj, 1989(1) RLR 659, wherein it has been held that misconduct means intentional wrong doing. It implies failure to act honestly and reasonably either according to the ordinary and natural standard or according to the standard of a particular profession, and it does not cover mere negligence in duty. Our attention was next drawn to a decision of Punjab & Haryana High Court in Joginder Singh v. The State of Punjab, AIR 1963 Punjab 280 wherein it has been held that the words 'flagrantly abused his position as a member of the Committee' do not carry any implication that the abuse of position must have occurred over a long period of time and in connection with repeated acts. What the clause means is that if a member of a Committee, in disregard of his duty does not act or acts which shock a reasonable mind, then he can be removed by the State Govt. and again, it is the State Govt. that has to form that opinion. As a member of the Committee, a person is expected to prevent encroachment on Municipal land and evasion of octroi duty and he cannot be permitted to himself indulge in such activities inconsistently with his duties, and if he does so, he is flagrantly abusing his position. In Madanlal v: State, AIR 1985 HP 64, a learned single Judge of the Himachal Pradesh High Court has held that any and every abuse of the member of a Municipal Committee of his position, even if undesirable, improper or unlawful would not justify an action under Section 15(1)(e) of the Act. Unless the impugned misconduct of the Member in disregard of his. duty is heinous, scandalous, notorious or wicked and amounts to abusing his position in a glaring and shocking manner, the power of removal under Section 15(1)(e) cannot possible be exercised. In that case, the sole allegation against the petitioner a member of Municipal Committee was that he was guilty of verification of wrong facts contained in the application of a person which led to the grant of eligibility certificate in her favour. It was in this context, that the petitioner was removed from Office. It was held that at the highest, the petitioner could be regarded as having acted without exercising due care and caution and such an act on his part could not be reasonably regarded as satisfying the condition of his having 'flagrantly abused his position as a member of the Committee'. The impugned order removing him from the membership of the Municipal Committee could not have been legitimately passed in exercise of the powers conferred by Section 15(1)(e). The order was set aside.

51. It was contended by the learned counsel appearing for the petitioners that the Chairman of the Municipal Board can exercise all the functions of the Municipal Board under Section 67(d) of the Act and, therefore, unless he is prohibited from acting in any manner, it will be deemed that he has power to act in the manner and, therefore, the actions of the petitioners regarding compromising the matters pending in the Courts, grant of contracts, promotions etc. cannot be treated as misconduct or flagrant abuse of the position or disgraceful conduct. In this respect, our attention has been drawn to a decision of this Court in Ratanlal v. State, AIR 1964 Raj 123 : (1964 (1) Cri LJ 702), wherein it has been observed that a Municipal Board constituted under the Rajasthan Municipalities Act, 1959 can act through its Chairman by virtue of Section 67(d) of that Act in granting written consent for prosecution under Section 20 of the Prevention of Food Adulteration Act. This is what has been held by this Court in Swa-roopram v. State, AIR 1963 Raj 233 : (1963 (2) Cri LJ 527). In Mrs. Leela Jain v. State of Raj., 1959 RLW 134, it has been held by this Court that unless the powers of the Chairman are limited by any direction under Section 52 or under any of the Rules the Chairman has the power to perform all functions of the Board, including the power to compound a case.

52. Now, it takes us to the consideration of the facts of each case. It is trite law that whether particular grounds exist for the suspension of a person or not depends upon the subjective satisfaction of the State Govt. and the Court cannot substitute its own wisdom for that order. In this respect, Mr. L.S. Udawat, the learned Addl. Advocate General has drawn our attention to a decision of this Court in State of Tamil Nadu v. P. M. Belliappa, 1985 LIC 51, wherein a Division Bench of the Madras High Court has held :

'that when matter of suspension is left to the objective satisfaction of the Govt., the normal rule is that it is not necessarily justiciable before the High Court and the Court cannot look into the question as to whether the materials are adequate or inadequate from its point of view. But, the factum of satisfaction can always be questioned before the Court and the party challenging the order of suspension can always show before the Court that the professed satisfaction is no satisfaction at all either because it was formed on extraneous or irrelevant circumstances or that there was a total lock of application of mind to the question as to whether it is necessary or desirable to suspend the Officer. The facts and circumstances to be considered must be those which existed on the date of the conclusion of the opinion or arriving at the satisfaction and actually weighed with the authority while passing the impugned order and facts which have come to transpire subsequently or which have been subsequently unearthed as existing even at the time of the conclusion or formation of opinion, though not considered and taken into account, cannot at all be relied on to support the impugned order. While the Court can examine as to whether the opinion or satisfaction was formed at all, Court cannot substitute its own satisfaction for that of the authority. Though the materials placed may not satisfy the Court, the task of the Court is only limited to an investigation as to whether there was any foundation of fact at all or whether irrelevant and extraneous circumstances have weighed with the authority while passing the impugned order. The fact that different formation of opinion or satisfaction is possible for the Court on the very same facts and circumstances is not a ground to quash the order in question. May be, the reason, given are in general terms. Yet the Court should not exclude reasons which may fairly fall within them, allowance being made for difficulties in expression.'

It is, therefore, clear that so far as the facts are concerned, objective satisfaction of the State will have to be taken in to consideration and the Court cannot super-impose its discretion. However, it should always be examined whether the satisfasction has been arrived at objectively or arbitrarily.

53. In this case, there is an allegation against petitioner Murlidhar that he has ordered for the removal of one Octroi post from Mangleshwar Mahadeo Temple. It is true that octroi-post was carried on in those premises for a long time and this matter should have been placed before the Municipal Board to take a decision whether this octroi-post should be removed from there or not. However, without taking a resolution from the Municipal Board, these premises were ordered to be vacated on the basis of the demand that has been raised by the Temple Authorities. It was not a case where only a Pyao was to be vacated. It was a case of removal of octroi-post and, therefore, the matter should have been placed before the Municipal Board but that was not done in this case. Be that as it may, it is alleged against the petitioner Murlidhar that in three cases, he has filed compromise. The compromise has been filed in all the three cases on 3-4-1991. The contention of the petitioner Murlidhar is that all these compromises have been filed in pursuance of a resolution of the Municipal Board but it appears, that the resolution of the Municipal Board was obtained much later and it was only in respect of two cases and not all the three cases. In all these three cases, these were the very plots which were cancelled by the State Govt. Thus, the petitioner has taken a false plea in his writ petition that the compromises have been filed in pursuance of the resolution of the Board. If this conduct is not a misconduct or disgraceful conduct, what else can be. Thus, after considering the material on record, if the State Govt. has come to the conclusion that the petitioner Murlidhar should be suspended, it cannot be said that no prima facie case was made out against the petitioner. We may state here that as per the provisions of the Rajasthan Municipalities Act, such compromises can be filed by the Commissioner or the Executive Officer of the Board and not by the Chairman of the Board but in this case, compromises have been filed by the Chairman of the Board himself. Chairman can filed compromise on behalf of the Board when the Board authorities him to do so. The allegation regarding misuse of powers in allotment of the land has been found to be untrue by the Enquiry Officer. As regards removal of Unauthorised encroachments are concerned, the Enquiry Officer has reported that the petitioner has issued instructions to the Commissioner not to take action against them. If that be so, then of course, it is a case of misconduct as also of abuse of powers.

54. So far as petitioner Jan Mohd. is concerned, the Enquiry Officer has reported, there were 9 cases of contract, in which estimates came between 13,000/- to 29,000/-and therefore, tenders were required to 'be called as per the Rules to allot that work>but in order to avoid tenders and to allot work to a particular person, the work was divided in pieces to bring it below Rs. 10,000/-; The enquiry Officer has further reported that for purchase of stone Patties, tenders were invited. But one Farooq, who is favourite man of the petitioner Jan Mohd did riot file any tender and despite this, negotiations Were undertaken and that work was given to Shri Farooq. If these allegations are true, prima facie case of misconduct, abuse of powers and disgraceful conduct to arise and if the State Govt. has prima faciely reached to the conclusion on the basis of this evidence on record, we are not inclined to substitute our own wisdom for that. It is not the case of the petitioner that there was a resolution of the Board that this work should be sub-divided to bring it below the estimates of Rs. 10,000/-. Rather, it has been contended by him that these works have been executed in pursuance of the unanimous resolution of the Municipal Board and the amount over and above Rs. 10,000/- has been paid by public contribution. The enquiry report is totally against this submission. Thus, on facts, we are disinclined to interfere with the objective satisfasction arrived at by the State Govt. as regards the suspension of the petitioners.

55. Now, we address ourselves on the most important question, that has been raised in these writ petitions i.e. when it should be held that the proceedings have commenced against the Chairman or the Member of the Municipal Board and whether this interim measure of suspension results in evil and civil consequences and whether it is penal in character and whether enough safeguards are not provided in the Act for the exercise of powers by the State Govt. and if left at that, whether these provisions are unfair, unreasonable, unjust and hence arbitrary.

56. Sub-section (4) of Section 63 of the Act starts with a non-obstante clause i.e. 'Notwithstanding the foregoing provisions of this section, the State Govt. 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, Mr. K.N. Joshi, the learned counsel appearing for the petitioner Jan Mohd. has contended that proceedings can be said to have been commenced only when the State Govt. frames the charges and refers the matter to the Judicial Officer. That is the stage when it takes a final decision whether enquiry has to be instituted against the persons concerned or not and prior to that, it has to obtain explanation of the Member or the Chairman concerned and thus, according to him, the proceedings can be said to have commenced only when after application of mind, the State Govt. decides to frame charges and refer them to the Judicial Officer. In this respect, Mr. Joshi has placed reliance on a decision of this Court in Ajmer Singh Yadav v. State of Raj., 1986 RLR 16, wherein while relying on the decisions of this Court in Ugamsee Modi v. State of Rajasthan, 1962 RLW 184 and Mohanlal v. State of Raj., 1963 RLW 209, M.B. Sharma, J. has observed that it is only after consideration of the report of enquiry referred to in the proviso to Sub-section (1) of Section 63 of the Act and after hearing the explanation of the member concerned, that it can be proposed under Sub-section (2) of Section 63 of the Act that a Member/Chairman should be removed from his office on the ground contained in Clause (d)(i) of Section 63(1) of the Act. It was further observed as under:

'I am, therefore, of the opinion that the existence of a report under the proviso to Sub-section (1) of Section 63 of the Act and consideration of the explanation, if any, of the Member/ Chairman concerned, is a condition precedent for the commencement of the proceedings within the meaning of Section 63(4) of the Act. Therefore, so far as a Member/Chairman of the Municipal Board/Council is concerned, the proceeding under Section 63 of the Act can only be said to have been commenced after the State Govt. has applied its mind to the report under the proviso to Sub-section (1) of Section 63 of the -Act and after consideration of the explanation, if any of the Member/Chairman concerned.' Mr. Joshi has contended that this is the basic requirement of Section 63(4) of the Act for suspending a Member/ Chairman of the Municipal Board/Council as has been interpreted by this Court in Ajmer Singh Yadav's case (supra) on the strength of the decisions of this Court in Ugamsee modi's case (supra) and Mohanlal's case (supra). He took us to the last lines of para 16 of the Judgment in Ajmer Singh Yadav's case (1986 RLR 16), wherein it has been observed:

'that it is not the case of the answering respondent that after the report of Shri Kala was made to the Collector and to the Director, LB and before the order of suspension was made, any opportunity of explanation was afforded to the petitioner as provided under the proviso to Sub-section (1) of Section 63 of the Act.' This submission of Mr. K.N. Joshi has been seriously opposed by Mr. L.S. Udawat, the learned Addl. Advocate-General, who has submitted that the law laid down by this Court in Ajmer Singh Yadav's case (supra) is not a correct law because it is against the Division Bench decision of this Court as also a Full Bench decision of this Court in Bhuralalv. State of Rajasthan,(1988(1) RLR 945) and, therefore, to the extent the law laid down by this Court in Ajmer Singh Yadav's case (supra) that obtaining explanation and its consideration before suspension deserves to be overruled because it does not lay down the correct law.

57. Mr. L.S. Udawat, the learned Addl. Advocate-General has drawn our attention firstly to a Division Bench decision of this Court in Ugamsee Modi's case, 1962 RLW 184. That was a case in which the Collector held that enquiry and a criminal case was also registered on the basis of the F.I.R. that was submitted to the concerned Police Station. The Inspector-General of Police, on enquiry, applied for sanction to the State Government to start prosecution against the petitioner. The Government after consideration of the report of the Collector as also the request of the Inspector-General of Police accorded sanction for prosecution and issued a notice under Section 63(2) of the Act calling upon the petitioner why charges should not be framed against him. At that point of time, the petitioner was not suspended. He, however, avoided to give any reply and, therefore, it was on 12-5-1961 that a decision was taken that he should be suspended. The notice that was issued to the petitioner in that case was issued under Section 63(2) of the Act and it was in this context, that the learned Judges of this Court have observed that if these facts are correct that there were certain allegations of misconduct against the petitioner of his having abused his powers as a Chairman, that on these allegations there was some inquiry by certain officers and that on the report submitted by those officers, the Government called upon the petitioner to explain the allegations made against him, it can hardly be contended that proceedings cannot be taken to have commenced against the petitioner within the meaning of Sub-section (2) of Section 63 of the Act. The learned Judges have further observed that it may be that the framing of the actual charges and the reference to the Judicial Officer concerned 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. The Judicial Officer concerned, in case a reference is made in respect of certain charges which are already the subject-matter of inquiry in the Criminal Court, may stay his hands and then take up his investigation, if at all necessary at a later stage after the termination of the criminal proceedings and submit his report to the Government; but these are subsequent stages of the proceedings relating to the pendency of conclusion of the inquiry. The learned Judges have also observed:

'It is true that the impugned order of suspension has followed almost in prompt succession of the order recalling the earlier order of suspension and in that sequence, there was an apparent cause for suspicion about the bona fides of the order, but if the above fact are kept in view; namely that the previous order related to certain other charges, which were inquired into by the Legal Remembrancer, in respect of which the petitioner has been exonerated, then there is hardly any room for doubt or suspicion. The present order in fact relates to certain Other allegations made against the petitioner about his misconduct in the discharge of his official duty as a Chairman of the Municipal Board. The petitioner may succeed in showing either in the criminal proceedings or in the enquiry that may be later conducted by a Judicial Officer under Section 63 that he is not guilty, of those charges as he was able to establish earlier; but that does not affect the position that on the allegations, t as they starid at present, the State Government has jurisdiction to pass the order of suspension. It is well settled that an order of suspension is not by way of penalty. All that it does it to make the person affected refrain from discharging his functions in a particular office for a certain period. If the order had been malicious of course, this Court would be entitled to interfere; but on the facts, as they appear to be, it cannot be said that the discretion exercised by the State Government in making that order was unjustified or malicious.'

In this authority, it has not been laid down as a law that before suspending a Member/ Chairman of the Municipal Board, it is a condition precedent that a notice should be issued and explanation should be obtained and considered.

58. Ugamsee Modi's case (supra) came up for consideration before a Division Bench of this Court in Mohanlal's case, 1963 RLW 209, wherein the Division Bench consisting of Hon'ble Ranawat, C.J. and V.P. Tyagi, J. which decided the Ugamsee Modi's case (supra) addressed itself to the stage when it can be held that proceedings have commenced. In that case, certain complaints against the petitioner were received by the Government and a preliminary enquiry was held by the Dy. Director of Local Bodies in the month of March, 1962 and by the Assistant Director of Local Bodies in the month of October, 1962 after the post of the Deputy Director had been abolished. An interim report was submitted by the Assistant Director of Local Bodies to the Government on 22-10-1962. The Government after consideration of, that report, while issuing an order for further enquiry under Section 63(2) of the Act, simultaneously passed an order for suspension of the petitioner. In that case, it was vehemently contended that the proceedings have not started and, therefore, no suspension could have been ordered because suspension can only be ordered on the commencement of the proceedings and so, the suspension should be held to be invalid. The Division Bench after considering Ugamsee Modi's ,case (supra) and the provisions of Ss. 63(2), (3), (4) and (5) came to the conclusion that though for purposes of sub-sec. (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 take n to commence in the meaning of the term under Sub-section (4) of 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). Coming to the facts of the case, the' Division Bench has held that it may be noted that the Assistant Director of Legal Bodies submitted his interim report on the 22nd of October, 1962 to the Government and the record of the proceedings of the Government that has been submitted together with the reply shows that the Government applied its mind to the allegations and facts of the case and decided to take action against the petitioner and to suspend him even though it waited for sometime for the final report before ordering issue of a proper charge-sheet to him. The Division Bench further observed as under:

'In fact no charge-sheet appears to have been drawn up till a final report was received against the petitioner from the Assistant Director of Local Bodies for although some facts were found established others still required further inquiry. After receipt of that final report, the Government issued show cause notice to the petitioner, although it had decided to take action already on the interim report. Thus, even though show cause notice was in fact issued on the 1st of December, proceedings commenced' against' the petitioner on the 24th of October, 1962 when the Government took a decision to take action against him. The order of suspension in this case was made simultaneously with the order of inquiry. The crux of the matter is not the service of the show cause notice or the date on which it is issued, but the date of the determination of the competent authority that there was material for taking action for issuing process. In this view of the matter, the order of suspension of the petitioner cannot be held to be invalid having been made simultaneously with the order of institution of inquiry against him. Much stress has been laid on the following averments appearing in the reply of the Government 'after the explanation of the petitioner is received, the Government will pass orders as may be appropriate to the case whether the case is a fit one to be proceeded further by setting out a statement of charge and ordering enquiry by a District Judge or not. It is contended that the Government has not made up its mind to remove the petitioner and the order of suspension is, therefore, pre-mature. This contention is rather highly technical and is based on the loose language used in the reply to the writ petition. The intention of the Government can easily be gathered from the proceedings of the Government, at page 36 of the paper-book and no assistance in that behalf need be taken from the aforesaid wordings of the reply. The looseness in the language is due to the fact that it is always open to the Government to drop the enquiry if it so chooses and if it is satisfied that the allegations are not well founded, but that by itself cannot be said to be a good reason to think that no enquiry had been ordered by the Government prior to that stage.'

Thus, in Ugamsee Modi's case which came up for consideration in Mohanlal's case (supra), the Division Bench of this Court has categorically 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 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 Municipal Board/Council why specific charges be not framed against him and they be referred to the Judicial Officer and simultaneously, the supension 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. Prior to that, this is the stage of holding of preliminary enquiry. The Division Bench has not held that obtaining of the explanation and its consideration is a condition precedent for suspending a Member/Chairman of the Municipal Board/ Council. However, the learned single Judge in Ajmer Singh's case (supra) has observed that obtaining of the explanation and its consideration is a condition precedent for suspending a Member/Chairman of the Municipal Board/Council. We are not inclined to accept the view taken by the learned single Judge in Ajmer Singh Yadav's case (supra). The notice that was issued in Ugamsee Modi's case (supra) was issued under Section 63(2) of the Act. It has not been decided by the Division Bench of this Court in Ugamsee Modi's case that issuing of a notice is a condition precedent for suspension of a Member/Chairman of the Municipal Board/ Council. In that case, the suspension was ordered much later after the commencement of the proceedings and it was in that context, it was held that when an explanation has been obtained under Section 63(2) of the Act, it cannot be said that no sufficient opportunity was available to the petitioner to explain his point of view before suspension. :

59. Mr. M. Mridul, and Mr. K.N. Joshi, the learned counsel appearing for the petitioners have contended that the Municipal Boards/Councils are the institutions of self governance. In this respect, they drew our attention to the preamble of the Rajasthan Panchayat Act, wherein it has been provided that it is expedient to establish and develop Local Self Government in the rural areas of the State of Rajasthan and to make better provision for village administration and development. They have contended that similar is the intention of the legislation for enacting the Rajasthan Municipalities Act to develop local self Government in the urban areas of the State and to make better provision for urban administration and development. According to them, Municipal Boards/Councils are thus the units of self Government and, therefore, these Institutions should be allowed to function as units of with self Government and the Panchayats and Municipal Boards/Councils are run by elected representatives and, therefore, there cannot be any difference in the procedure that has been prescribed for the suspension of Panchas and Sarpanchas on the one hand and the Member/Chairman of the Municipal. Boards/Councils on the other hand. In this respect, they have drawn our attention to the provisions of Sections 17(4) and 17(4A) of the Rajasthan Panchayat Act, 1953. Section 17(4) of the Rajasthan Panchayat Act lays down that the State Government may by order in writing and after giving him an opportunity of being heard, and making such inquiry as may be deemed necessary, remove any Panch,' Sarpanch or Upsarpanch who (a) refuses to act or becomes incapable of acting as such, or (b) in the opinion of the State Government has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct, provided that any such inquiry as it is referred to this sub-section may be initiated even after the expiry of the term of a Panchayat, or if already initiated before such expiry, may be continued, thereafter and in any such case, the State Government shall by order in writing record its findings of the charges levelled against a Panch, Sarpanch or Upsarpanch of the Panchayat during its term of Office. Section 4A of the Panchayat Act provides that the State Government may suspend any Panch, Sarpanch or Upsarpanch against whom an enquiry has been started under Sub-section (4) or the proviso thereto, or against whom any criminal proceeding in regard to an office involving moral turpitude is pending trial in a Court of law, and debar him from taking part in any act or proceedings of the Panchayat while under such suspension. It has been contended that in case of suspension of a Sarpanch, Upsarpanch or a Panch, an explanation has to be obtained from the person concerned and, thereafter, he can be suspended whereas in this case, only on consideration of the preliminary enquiry report, a Member/ Chairman of the Municipal Board/Council can be suspended and, therefore, the provisions of Section 63(4) of the Act are discriminatory.

60. We are unable to a accept this contention raised by Mr. Mridul and Mr. Joshi, the' learned counsel appearing for the petitioners. The provisions of Section 17(4) and 17(4A) came up for consideration before a Division Bench of this Court in Bajrang Lal v. State, AIR 1981 Raj 298, wherein it has been held that Section 17 has been framed for the purpose of exercising control over the Panchas and Sarpanchas, The suspension of a Panch, Sarpanch' or Upsarpanch under particular circumstances of a case may be considered necessary or desirable to save the Panchayat or its funds from being ruined or misappropriated. The Division Bench has further held that after a preliminary report has been submitted and a prima facie case been made out against the delinquent elected officer, the State Government, after considering the merits of the case, is required to decide whether a chargesheet is to be served on the holder of the elective office or not and if it finds that a prima facie case has been established and further considers that his continuance in office would not be in the public interest or in the interest of the Panchayat fund or the working of the Panchayat, the Government should be left free to exercise its control and if the case warrants a temporary removal of such an incumbent, then after careful scrutiny of the preliminary report, submitted before it, to suspend him. The State Government is not expected to act mala fide in passing the order of suspension and in a given case, if it is found that it acted with mala fide intention, the action can well be struck down. The Division Bench has also observed that when the State Government after considering report of preliminary enquiry decides to serve charge-sheet on the Sarpanch alongwith a notice to show cause why inquiry into charges should not be held and the enquiry into alleged charges is held after consideration of explanation given by Sarpanch, it was held that the principle of audi alteram partem was complied with and notice was not. necessary before passing order of suspension under Section 17(4A) of the Rajasthan Panchayat Act. It was observed by the Division Bench in para 10 of the Judgment as under ;

'Keeping in view that the Office of Panch and Sarpanch is an elective office, no suspension order against such a man should be passed without prima facie basis. In a case, where a material has come before the Government on the basis of which certain charges can be framed, the State Government can issue a notice to the Sarpanch to show cause in writing why charges should not be inquired into'.

61. Mr. L.S. Udawat, the learned Addl. Advocate-General took us though a single, Bench decision of this Court in Radhey Shyam v. State, AIR 1985 Raj 65, wherein while interpreting the provisions of Sections 17(4) and I7(4A) of the Rajasthan Panchayat Act, S.C. Agrawal, J. (as he then was) has held that a pre-decisional hearing cannot be afforded to a Sarpanch, Upsarpanch or a Panch before his suspension is ordered. In this respect, we have been taken through certain observations made in paras 10, 11 and 14 of the judgment. It has been held by the learned single Judge that before suspension of Panch, Sarpanch or Upsarpanch under the Panchayat Act, during pendency of inquiry, a pre-decisional opportunity to be heard cannot be afforded. It has been further held that the principles of natural justice will be attracted to an order of suspension passed by way of punishment and it will be necessary to afford an opportunity to the person sought to be suspended before passing the order of suspension. But if the order of suspension is by way of an interim measure pending an inquiry into the charges, it is not necessary to afford an opportunity to the person sought to be suspended before passing the order of suspension, and this distinction has been pointed out in Lord Denning M. R. in Lewis v. Heffer, (1978) 3 All ER 354. In Paras 12 and 13 of the judgment, the learned single Judge has observed as under:

'12. At this stage, it may be mentioned that in Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 (supra) the Supreme Court has dealt with the question of applicability of principles of natural justice to cases where an interim order is passed pending a final adjudication. In the said case, it has been observed:

'Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay.'

'Ad interim orders may always be made ex parte and such orders may themselves provide for an opportunity to the aggrieved party to be heard at a later stage. Even if the interim orders do not make provision for such an opportunity, an aggrieved party has, nevertheless always the eights to make an appropriate representation seeking a review of the order and asking the authority to rescind or modify the order. The principles of natural justice would be satisfied if the aggrieved party is given an opportunity at his request.'

'We, however, take care to say that we do not mean to suggest that natural justice is not attracted when orders of suspension or like orders of an interim nature are made. Some orders of that nature, intended to prevent further mischief of one kind may themselves be productive of greater mischief of another kind. An interim order of stay or suspension which has the effect of preventing a person, however, temporarily say from pursuing his profession or line of business may have substantial serious, and even disastraus consequences to him and may expose him to grave risk and hazard. Therefore, we say that there must be observed some modicum of residual, core natural justice, sufficient to enable the affected person to make an adequate representation.'

13. An order of suspension passed under Section 17(4A) is in the nature of an interim order pending final adjudication and since the continuance of a Panch, Sarpanch or Upsarpanch during the pendency of the enquiry proceedings may cause irreparable damage, pre-decisional opportunity to be heard cannot be afforded to him and he can only be afforded post-decisional opportunity to be heard. Although, the Act and the Rules do not expressly provided for such a post decisional opportunity after passing the order of suspension, the Panch, Sarpanch or Upsarpanch who has been suspended has a right to 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 to the show cause notice issued to him under Sub-rule (2) or Rule 26. Even in the absence of such a representation, it is incumbent upon the State Government to consider the question as to whether the order of suspension should be continued or rescinded after the reply of the Panch, Sarpanch or Upsarpanch to the show cause notice issued under Sub-rule (2) of Rule 21 is received and if from the said reply, it appears that there is no substance in the charges that have been levelled or that the misconduct is of not such a serious magnitude as to warrant the suspension of the Panch, Sarpanch or Upsarpanch from the office to which he has been duly elected, the State Government should immediately review the order of suspension.'

Radhey Shayam's case (supra) has been quoted with approval by a Full Bench of this Court in Bhuralal v. State (1988 (1) RLR 945), wherein in para 14 of the judgment, Ramchandra's case 1981 WLN (UC) 496 (supra), has been cited in which, a learned single Judge of this Court took the view that suspension of a Panch/Sarpanch or Upsarpanch from his office during the pendency of enquiry into the charges of misconduct against him is in the nature of protection measure to prevent such a person from misusing his office to cause further harm, till suitable action is taken against him. Thus, by its very nature suspension pending enquiry presupposes immediate action. In BhuralaPs case, reference to the larger Bench was made by Hon'ble K.S. Sidhu, J. who while relying on Pukhraj's case (supra) took the view that before a Sarpanch or Upsarpanch is suspended, his explanation must be obtained and considered. The Full Bench of this Court in Bhuralal's case (supra) has held that in face of clear enunciation of law in Pukhraj's case (supra), where it has been clearly and unambiguously held that the point of time, at which the enquiry can be deemed to have begun for the purposes of Sub-section (4A) of Section 17 is the stage when after considering the report of the preliminary enquiry, the State Government considers it necessary to frame the charges and decides to issue a notice to the delinquent Sarpanch to show cause why the charges should not be enquired into. In para 16 of the judgment, the Full Bench has further held that it is no doubt true that a Panch or Sarpanch could not be allowed to be suspended in the same manner as an employee. In the matter of passing of an order of suspension, requisite safeguards have been provided to protect the interest of the elected representatives of the people and that is why the holding of a preliminary enquiry, in accordance with the procedure laid down in Rule 20 and then the consideration of the report of the preliminary enquiry by the State Government so as to find out as to whether a prima facie case has been made out against the elected representative concerned or not, have been made conditions precedent before an order of suspension can be passed. It was further observed as under:

'It may be observed that a preliminary enquiry by the Collector is undoubtedly a safeguard against whimsical, capricious or mala fide exercise of the power of suspension by the State Government. Moreover after the preliminary enquiry report is carefully considered by the State Government and it is of the view on the basis of the material placed on the record that there is some foundation for the charges and that a prima facie case is made out against the Sarpanch concerned, then there is no reason why the enquiry should not be considered to have begun, so as to enable the State Government to exercise the power of temporary removal of the delinquent public office holder. As a result of the consideration of the report of the preliminary enquiry, the State Government may come to a prima facie conclusion that further continuance of the Sarpanch in office may not be in the public interest or in the interest of the Panchayat. Moreover, as pointed out by Agrawal, J. in Ramchandra's case, such a protective measure like suspension may become necessary to prevent the person concerned from misusing his offence to cause further harm to the public interest or the interests of the Panchayat. What is required is that the State Government should carefully scrutinise the preliminary enquiry report submitted to it and form a prima facie opinion whether the charges have a reasonable basis and should be enquired into or they should be dropped. If the Government decides to drop the charges, the question of suspension of the Sarpanch would not arise. But if the State Government comes to the conclusion that a prima facie case is made out against the Sarpanch and the State Government is further of the view that the charges are serious enough and the Sarpanch should be temporally removed from holding the elective office to prevent him from further acting prejudicially at the stage, the State Government should be free to pass an order of suspension in exercise of its supervisory authority. In such circumstances, it may be necessary or even desirable to save the Panchayat property or its funds from being ruined or misappropriated. We would not be justifying in holding that because the State Government had waited so long until the report of the preliminary enquiry was received and considered by it, could still wait for some more time until the charge-sheet and show cause notice are served upon the delinquent Sarpanch and he files a reply thereto and that reply is considered by the State Government before proceeding to appoint an Enquiry Officer. Such an interpretation would unreasonably delay the matters which may require quick and serious action on the part of the State Government as a result of its consideration of the preliminary enquiry report and leave such matters to utter uncertainty. The giving of a show cause notice to the person sought to be suspended before exercising the power of suspension would result in postponement of the exercise of the said power and would rob the powers of its object and efficacy. Moreover, the giving of the show cause notice to the person sought to be suspended would only involve duplication of the process of enquiry because the charges which would form the basis of the order of suspension are the same which are subject matter of the enquiry conducted against the person to be suspended. There is no scope for the applicability of the principle of audi alteram partem at the stage of passing an order of suspension during the pendency of an enquiry and such a requirement cannot be read into the provisions contained in Sub-section (4A) of Section 17. In same cases, the Panchas or Sarpanchas may try to evade service of show cause notice and the statement of charges. Some others may take unreasonably long time in filing their replies on some pretext or the other like asking for inspection of some documents or records, though relevant or irrelevant or on basis the of medical certificate or otherwise. If a prima facie case of embezzlement or misappropriation is made out against: a Sarpanch, it would be prejudicial to the interest of the Panchayat and result in considerable danger to the funds of tHe Panchayat in allowing him to remain in custody of the funds of the Panchayat even after a prima facie case is found to be established against him. In a case of tampering with the record of the Panchayat, even after a prima facie case is made out against the Sarpanch, as a result of preliminary enquiry how could the records of the Panchayat be allowed to remain in the custody of such a person, if the Sarpanch becomes incapable of acting for some reason or otherwise or in case the Sarpanch refuses to act or neglects in the discharge of his duties then the State Government would be justified in exercising its powers of supervisory control, if it proceeds to pass an order of suspension of the Panch or Sarpanch concerned, so that the work of the Panchayat may not suffer in future. Similarly, when a prima facie case of misconduct or disgraceful conduct is made out against a Sarpanch of serious nature after a careful scrutiny of the preliminary enquiry report submitted by the Collector, the State Government would be justified in passing an order of suspension in exercise of its powers of supervisory control.' It was contended before the Full Bench that if a Panch or Sarpanch or Upsarpanch is not afforded an opportunity of hearing before an order of suspension is passed, the principles of natural justice would be violated, That contention was repelled by the Full Bench by pointing out that the order of suspension resulting in temporary removal of the Panch or Sarpanch is only an interim measure pending an enquiry into the charges drawn against the delinquent holder of the public office and at that stage, it is not necessary to afford an opportunity of hearing to the person sought to be suspended. It may be pointed out that suspension may be by way of punishment or by way of an interim measure but when it is by way of punishment, the principles of audi alteram partem must be complied with. When it is only by way of temporary deprivation of office or as an interim measure, it should not be insisted upon that an opportunity of hearing should be afforded to the person concerned before passing an order of suspension. The Full Bench also quoted with approval the observations of Lord Denning M.R. in Lewis v. Heffer (1978) 3 All ER 354, wherein distinction between two types of suspension orders has been pointed out, which reads as under:

'These words, apply, no doubt, the suspensions which are inflicted by way of punishment, as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice. But they do not apply to suspension Which are made as a holding operation, pending enquiries. Very often irregularities are disclosed in a Govt. Department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department of the office is being affected by rumours and suspicion. The other will not trust the man. In order to get back proper work, the man is suspended. At that stage, the rules of natural justice do not apply.' In para 21 of the judgment, the Full Bench has further held that the giving of a pre-decisional hearing to the person affected, before an administrative decision is taken by the authority concerned, should undoubtedly be adhered to when suspension is brought about by way of punishment and the court should be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, short of all its formal trappings and dilatory practices, at the pre-decisional stage. It was further observed as under:

'However, it is well recognised that in exceptional circumstances, pre-decisiona! hearing may be avoided where compulsive necessity so demands or where it is likely to paralyse the administrative progress. or frustrate the very need for prompt action. Undoubtedly, a pre-decisional hearing forms part of the fair play or natural justice but it need not necessarily mean an oral hearing. The cases cited by the learned counsel for the petitioner relate to administrative proceedings involving civil consequences in which final orders were passed in violation of doctrine of natural justice. The audi alteram partem rule is flexible. It is necessary to adjust and harmonise the need for speed and. the obligation to act fairly. Suresh Koshy George v. University of Kerala AIR 1969, SC 198; State of Orissa v. Dr. Binapani Dei, AIR 1967 SC 1269 and Smt. Menaka Gandhi v. Union of India AIR 1978 SC 597 are instances of cases, where final orders were passed in administrative actions involving civil consequences and we have no doubt that the final orders passed must be consistent with the principles of natural justice. But as already observed above, a dinstinction should always be made in the order of suspension by way of punishment and as an interim measure pending an enquiry into the matter, in cases, where urgent preventive action is called for.' The observations of their Lordships of the Supreme Court in Liberty Oil Mills case (supra) were also quoted in para 21 of the judgment with approval by the Full Bench, After citing the decisions in Kashmirilal v. The Deputy Commissioner, Sonepat (AIR 1980 P & H 209), Gurucharansingh v. State of Haryana (AIR 1979 P & H 61), Namdeo Ragho v. State of Maharashtra AIR 1979 Bom 285; Swadeshi Cotton Mills Etc. v. Union of India, AIR 1981 SC 818 and Ridge v. Baldwin (1963) 1 QB 539, the Full Bench has observed in paras 24, 25 and 26 of its judgment as under:

'24.......... The principle of acting fairly is undoubtedly an essence of good and considerate admission in a democractic set up. But some times urgent action is necessary on the ground of public policy, public health or safety or with a view to prevent a person from continuing any activities injurious to the society or prejudicial to public Interest. In such cases, the normal presumption that a hearing must be given is rebutted by the urgency of the situation. Even in cases not involving urgency, when it is necessary to prevent a person from doing any mischief or continuing to indulge in acts harmful to the society or a section thereof or where prior warning would frustrate the very object, action may be taken without a pre-decisional hearing'. 25. Similar is the situation when the suspension of a Panch, Sarpanch or Upsarpanch is necessary to be brought about in order to prevent him from continuing to commit serious acts of misconduct, misappropriation of funds, falsification of accounts, tampering with the records or misusing his official position and the like. In such case, a pre-decisional hearing can be dispensed with particularly when ample opportunity of hearing has to be afforded to the delinquent holder of public office during the statutory enquiry under Section 17(4) of the Act read with Rule 21 of the Rules.

26. As pointed out by us above, the order of suspension under Section 17(4-A) is an order of interim nature and it could be passed only after an active application of mind by the State Govt, to the question as to whether an emergent or immediate action is called for on the basis of the preliminary enquiry report and its decision to, send a charge-sheet and show cause notice to the Panch or Sarpanch concerned.'

In Para 27 of the judgment, the Full Bench has further observed as under:

'Thus, the order of suspension was passed by the State Govt. apparently after consideration of the report of the preliminary enquiry and after coming to the conclusion that a prima facie case has been made out against the Sarpanch concerned. As a matter of fact, the show cause notice and a copy of statement of charges was sent to the petitioner along with the order of suspension.'

Thus, the manner in which a Sarpanch can be suspended is in pan materia with the provisions of Section 63(4) read with Section 63(2) of the Act. Here also, the Chairman of the Municipal Board/Council can be suspended only after consideration of preliminary report and when the State Govt. after due application of mind comes to the conclusion that the matter needs further probe and therefore, a show cause notice be issued why definite charges be not framed and referred to a Judicial Officer.

62. Mr. L.S. Udawat, the learned Addl. Advocate General has contended that if pre-decisional hearing is granted to a delinquent before his suspension, as canvassed by Mr. Mridul, it would result in duplicacy and injustice. An opportunity of hearing has to be granted to the delinquent holder of a Public Office before definite charges are framed and referred to the Judicial Officer and that is what has been provided in Section 63(2) and (3) of the Act. If an opportunity of hearing is further read into the provisions of Section 63(4) of the Act, it would mean that it will provide one more opportunity to the delinquent holder of a public office to show cause and in doing do, it is always possible that he will avoid service and even if somehow he is served then he will avoid in giving his reply in time and that would result in grave injustice.

63. It has been held by this Court in Ugamsee Modi's case (ILR 1966(16) Raj 415) (supra) that in view of the proviso to Sub-section (1) of Section 63 of the Act, it is incumbent on the Govt. to offer an opportunity of explanation to the Chairman before it can frame charges against him and refer them for inquiry to the District Judge under Sub-section (2). Thus, giving of an opportunity of explanation before framing of the charges is a mandatory provision. It has never been the intention of the legislature that two opportunities should be provided one before passing the order of suspension and the other before framing of the charges. That will certainly result in duplicity. We feel inclined to accept this submission of Mr. Udawat, the learned Addl. Advocate General that it has not been the intention of the legislature to grant any pre-decisional hearing to the holder of a public office before he is suspended. What is required is that before he is suspended, a preliminary enquiry should be held by the 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 holder of electoral public office then it has to issue a notice under Section 63(2) of the Act to show cause why definite charges be not framed and all these charges should not be referred to a Judicial Officer and simultaneously, that delinquent holder of Public Office can also be suspended. Before suspending him, it is not at all essential that a pre-decisional hearing should also be granted to him to show cause why he may not be suspended before the proposed enquiry because giving of such a notice would result in grave harm or injustice because till he is suspended, the delinquent officer against whom charges are prima facie established has a right to hold his public office and to take part in the proceedings of the Municipal Board/Council and thereby, the interest of the Institution would suffer adversely. In this view of the matter, we hold that the decision in Ajmersingh Yadav's case (supra) does not lay down the correct law and, therefore, it stands overruled to that extent.

64. In view of the aforesaid discussion, we are firmly of the view that the proceedings against a Chairman or Member of the Municipal Board commence when the preliminary enquiry report submitted to the Government is considered by the Government and the Government applies its mind to it and comes to the conclusion that a further probe in the matter is essential. For the removal of the holder of an elected public office that is Chairman or Member of the Municipal Board, if the Govt. decides to issue a notice to the incumbent under Section 63(2) of the Act to the delinquent Chairman or the Member of the Municipal Board to show cause why definite charges be not framed against him and be referred to a Judicial Officer, that is the stage where the proceedings start against the Chairman or the Member of the Municipal Board and the State Govt. has power to suspend the Chairman or a member of a Municipal Board simultaneously when it decides to issue him a notice of show cause under Section 63(2) of the Rajasthan Municipalities Act. The suspension of a Chairman or a Member of a Municipal Board pending enquiry being an interim measure the suspension does not result in civil or evil consequences and it is not penal in character. Enough safeguards have been provided in the Section so that no arbitrary, capricious or mala fide suspension may take place. However, we will like to add a word of caution that the holders of these elective public posts cannot be equated with Govt. servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reasons to do so. Care should be taken that such suspensions should not be arbitrary and the suspensions of such elected representatives should not be brought about for political motives or consideration.

65. We accordingly, hold that the Sub-section (4) of Section 63 of the Rajasthan Municipalities Act is neither unfair, unreasonable, nor unjust and it is not arbitrary or ultra vires of the Constitution i.e. Articles 14, 16 and 21 of the Constitution. We further hold that Ajmer Singh Yadav's case which it has been held that obtaining of the explanation and its consideration is essential i.e. that it is a condition precedent for bringing about the suspension of the Chairman or Member of the Municipal Board does not lay down the correct law and hence, it is overruled. The relief of revocation of the suspension cannot be granted in favour of the petitioners.

66. These writ petitions stand disposed of accordingly on merits.