Govind Mathur, J.
1. The petitioner, an elected Chairperson of the Municipal Board, Merta City, was placed under suspension by an order dated 15.11.2006 passed by the Deputy Secretary to the Government of Rajasthan, Department of Local Self Government, however, the order aforesaid came to be stayed by this Court in SBCWP No,6647/2006 on 29.11.2006 after hearing the parties.
2. An explanation from the petitioner thereafter under a communication dated 23.1.2007 was sought by the Government relating to several allegations, those were said to be found prima facie proved in a preliminary inquiry conducted by the Deputy Director (Administration), Department of Local Self Government.
3. A reply denying all the allegations was given by the petitioner but the Government under an order dated 11.6.2007 decided to hold a regular inquiry against her as per the provisions of Section 63 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act of 1959'). By the same order the petitioner was also suspended from the office of Chairperson as well as from the membership of the Board, thus, this petition for writ to challenge the order dated 11.6.2007 is preferred on following grounds:
(1) the order impugned was passed without application of mind and in quite mechanical manner for the reason that before placing the petitioner under suspension a preliminary inquiry was conducted and on basis of that explanation was sought which was adequately responded, however, the order dated 11.6.2007 nowhere discloses as to how the explanation was considered and on what basis decision was taken to hold an inquiry as per Section 63 of the Act of 1959 and to place the petitioner under suspension;
(2) the petitioner being a democratically elected member of the Municipal Board and also Chairperson of the Municipal Board could have not been removed from the office in normal course otherwise then carrying a No Confidence Motion, but the respondents only with a view to avoid stringent provisions relating to No Confidence Motion adopted an unfair way to oust the petitioner from the office only to favour one Smt. Shakuntala Devi and for certain other extraneous reasons including that the petitioner is from a party i.e. in opposition to the present ruling party in the State;
(3) the placement of the petitioner under suspension is highly arbitrary as before doing so it was not spelled out as to how the petitioner was in a position to influence a judicial inquiry and also to tamper with the evidence, if any available against her;
(4) by the order dated 15.11.2006 the petitioner was placed under suspension and the aforesaid order was stayed by the Court after hearing the respondent State and despite having within the knowledge all those charges for which now inquiry is ordered to be conducted, thus, the order impugned is apparently passed to frustrate the interim order granted by this Court on 29.11.2006; and
(5) the petitioner could have not been held responsible for any charge levelled, as according to Rule 14 of the Rajasthan Municipalities (Purchase of Material and Contracts) Rules, 1974 (hereinafter referred to as 'the Rules of 1974') no contract could have been entered into for the purchase of materials/goods or for the execution of work without the prior administrative and financial sanction and for that in the present controversy the Executive Officer was the authority competent.
4. In reply to the writ petition the stance of the respondents is that the petitioner was placed under suspension under the order dated 15.11.2006 as she did not summon meeting of the Board despite written request made by 12 members, whereas the suspension under the order dated 11.6.2007 was made on being satisfied that prima facie allegations of misconduct were found established, hence, there was no question of making any effort to frustrate the interim order dated 29.11.2006.
5. The allegation of extraneous consideration and also regarding favour to Smt. Shakuntala Devi are denied with an assertion that the charge relating to the office of Chairperson was to be given to aforesaid Smt. Shakuntala Devi in view of the provisions of Section 69-A of the Act of 1959 being the office concerned reserved for Female (General) category. A copy of the preliminary inquiry report is also placed on record to substantiate the contention that conduct of the petitioner is under heavy clouds looking to serious allegations of her indulgence in corrupt activities.
6. Submissions on behalf of the respondent No. 2 who is Minister of Government of Rajasthan for Department of Local Self is also submitted and so also by the Executive Officer of the Municipal Board, Merta City.
7. With the consent of counsel for the parties the petition for writ is finally heard at admission stage.
8. Before coming to merits of the question posed to be resolved by this Court, I consider it appropriate to mention that Part-IX consisting of Articles 243 to 243-0 and Part-IX-A comprising Articles 243-P to 243-ZG were inserted to Constitution of India by 73rd and 74th Constitutional Amendment with an aim to revitalise Local Self Government by promoting greater community participation and involvement in development efforts and also in local governance. Chapter-IX and IX-A provides Rural and Urban Local Governments with a Constitutional status. The provisions of the parts referred above not only mandate for regular elections for local bodies but mandatorily provides reservation for women and for traditionally disadvantaged groups those are Scheduled Castes and Scheduled Tribes.
9. With Local Governments being a State subject in Schedule-VII of the Constitution, Parts IX and IX-A also authorise State Legislatures to enact legislation to devolve powers and resources to local bodies so as to enable them to play a vital role in creation and maintenance of public service, public goods and in planning and implementation of development of activities. By various provisions under Parts-IX and IX-A of the Constitution all efforts are made for strengthening and for empowerment of local bodies being basic unit of democratic system and no provision is there for interference in democratic set up of those bodies through administrative fiat.
10. As stated above, the Local Self Governments being a State subject are operated through State enactments wherein certain supervisory powers may be within the hands of State executives, however, while interpreting those powers, it is always desirable to ensure majesty of democracy in view of the fact that the Constitution desires for the democracy at State and Local Self Government level.
11. The Act of 1959 provides three modes for ousting an elected office bearer or member of Municipal Board, those are, (1)by carrying No Confidence Motion; (2)on acquiring pre-post election disqualification; and (3)on being found guilty for misconduct. Beside the above, an additional and most convenient mode available to the executive is by using interim power i.e. of placing an elected person under suspension. Surprisingly enough this one is the power most frequently used and i.e. obvious for the reasons being not having stringent checks and also being an interim measure without stigma.
12. Section 63 of the Act of 1959, that empowers executive to remove an elected officer and also a member of Municipal Board and also to place them under suspension, reads as follows:
63. Removal of Members (1)The State Government may, subject to the provisions of Sub-section (2) & (3), remove a member of a board on any of the following grounds, namely
(a)that he has absented himself from the meetings of the board from more than three consecutive months or three consecutive ordinary general meetings, whiehever is the longer period, without leave of the board:
Provided that the period during which such member was in jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account.(b) that he has failed to comply with the provisions of Section 61,
(c) that after his election he has incurred any of the disqualification mentioned in Section 18 or Section 26 or has ceased to fulfill the requirements of Section 24,
(d) that he has
(i) been guilty of misconduct in the discharge of his duties, or
(ii) been guilty of any disgraceful conduct, or
(iii) become incapable of performing his duties as a member, or
(iv) otherwise abused in any manner his position as such member:
Provided that an order of removal shall be passed by the State Government after such inquiry as if considers necessary to make either itself or through such existing or retired officer not below the rank of State level Services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
(1-A) The power conferred by Sub-section (1) may be exercised by the State Government of its own motion or upon the receipt of a report from the board in that behalf or upon the facts otherwise coming to the knowledge of the State Government.
Provided that, until a member is removed from office by an order of the State Government under this section, he shall not vacate his office and shall, subject to the provisions contained in Sub-section (4), continue to act as, and to exercise all the powers and perform all the duties of, a member and shall as such be entitle to all the rights and be subject to all the liabilities, of a member under this Act.
(2) Notwithstanding anything contained in Sub-section (1) where it is proposed to remove a member on any of the grounds specified in Clause (c) or Clause (d) of Sub-section (1), as a result of the inquiry referred to in the proviso to that sub-section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for inquiry and findings by judicial officer of the rank of a District Judge to be appointed by the State Government for the purpose.
(3) The judicial officer so appointed shall proceed to inquire into the Charge in the prescribed manner, hear the member concerned if he makes appearance, record his findings on each matter, embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to State Government, which shall thereupon pass final orders or order for re-enquiry by any such other officer as may be deemed proper.
(4) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceeding have been commenced under this section will conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the board or otherwise perform the duties of a member thereof.
(5) Every final order of the State Government passed under this section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any court.
13. As per provisions of Section 63 of the Act of 1959, referred above, no member of a Board may be removed from the office on any of the grounds given in Clause (c) of Sub-section (1) without having a finding of guilt as a consequent to an inquiry conducted by an officer not below the rank of District Judge. A statutory judicial inquiry is provided by the legislature acknowledging Constitutional status of the Municipal Boards and also to ensure security to the basic democratic unit, however, looking to the chances of injury to the intentions of legislature by the executive while exercising, powers under Section 63(4) of the Act of 1959, this Court in the case of Ishwar Parashar v. State of Rajasthan and Ors. 2002 (2) WLC (Raj.) 230 : RLW 2002 (2) Raj. 995, cautioned as follows:
It should also be remembered that membership of a Municipal Board is an elective office and by barring a person from discharging his functions as a member of the Municipal Board, the entire municipal ward from which he is elected goes unrepresented and might suffer. If a member of the Municipal Board commits some misconduct for which he can be removed, he may be removed after holding an enquiry into the misconduct expeditiously. But the citizens of the municipal ward cannot be made to go unrepresented in the municipal body only because the State Government institutes an enquiry against the member of the Municipal Board, keeps it pending and suspends the membership of the elected representative of the Municipal Board. Permitting such an action would be against the basic principles of democracy. It should be remembered that the representation in the municipal bodies and the autonomy of municipal bodies was considered so sacrosanct that safeguards for maintenance of basic democracy and autonomy of civic institutions are provided by amending the Constitution by inserting a separate chapter in it.
14. This Court in the case of Nandlal v. The State of Rajasthan 1996 (2) WLC (Raj) 497, while considering the provisions of Section 63(4) of the Act of 1959, observed as follows:
24. The matter can be viewed from another angle also, that as and when somebody is elected as a Chairman his political opponents or some one of the bureaucratic set up on a complaint puts the person in suspension and thereafter the enquiry may take a few years and by the time he is exonerated his entire term might be over. This would not be in the spirit of running democratic institutions and would destroy its very fabric. The political opponents are free to raise their grievances in the meetings of the Board, then there is a provision for the audit etc. and in my opinion such like of items should be confined to the Board itself and should be solved there. It is presumed that there was application of mind and the matter was looked into objectively when the show cause notice was issued. It was not thought desirable at that time to suspend the petitioner. It is only after looking at Annex. 6 when it was moved and the machinery of the State came into motion resulting in suspension of the petitioner.
25. Suspension is some time looked at as something serious and before any such action is taken the concerned authority has to bear it in mind that there is no malice or the step was not being taken arbitrarily, maliciously or vindictively. Elected representatives of the public like the petitioner who happens to be the Chairman of the Municipal Board have to keep their conduct clean and whenever such type of things happened it does carry a stigma and the person feels embarrassed in his party, the general public and particularly the electorate on whose strength and support, he comes to occupy that position.
15. Yet in another judgment i.e. Suresh Chandra Singhal v. State of Rajasthan and Anr. 2005(3) WLC (Raj.) 255 : 2005 (3) RLW 1611, this Court while dealing with the issue of suspension of a Chairman, Municipal Board, Gangapur City, held that 'we have to bear in mind that while suspending an elected Member utmost care and caution has to be taken as required under the provisions of Section 63 of the Act of 1959 and a cursory glance regarding compliance of the provision as to whether they have been resorted to or not or a common sense approach in the matter cannot be adhered to and, therefore, meticulous compliance of the provisions and the ingredients incorporated in the Act has to be resorted to.'
16. In the case of Jan Mohd. v. The State of Rajasthan and Ors. 1992 (2) WLC (Raj.) 463, a Division Bench of this Court pleased to hold that a member/Chairperson of Municipal Board can be suspended only when a preliminary inquiry is conducted by a responsible officer and a preliminary inquiry report is supported by documentary and oral evidence considered by the State Government and the Government comes to conclusion that holding office by such delinquent against whom allegations of misconduct, flagrant abuse of powers and disgraceful conduct is found.
17. The law discussed above emphasise for the cautions and checks those must be adhered while taking a decision to place a democratically elected representative of people under suspension, though this Court in the case of Kartar Singh v. State of Rajasthan and Ors. refused to interfere with the order placing a Chairperson of Municipal Board under suspension while observing that 'in a case where there are allegations and counterallegations by the parties even on the matter of service of notice, the apprehension of the respondents that in case petitioner is not put under suspension he may affect the result of the inquiry, is not without substance. Moreso, the inquiry is pending since 6.1.2000 and the allegations made against the petitioner are mostly to be proved on the basis of documentary evidence. It is a case where allegations made against the petitioner are of a grave nature and may amount to flagrant abuse of power, if proved. Moreso, if his suspension order is recalled/quashed the possibility of his influencing the witnesses and tampering with the record cannot be ruled out. Thus, in the facts and circumstances of the case, I am not inclined to interfere with the suspension order.
18. Similarly, in the case of Thanaram and Ors. v. The State of Rajasthan and Ors. 1997 (1) WLC (Raj.) 457, a Single Bench of this Court, held as follows:
15. A bare perusal of the above Section as well as the other sections referred above, makes it clear that the State Government was well within its rights to pass the impugned order suspending the petitioners in the exercise of powers under Section 63(4) of the Act of 1959. Section 63 of the Act of 1959 deals with removal of members on certain contingencies on which a member can be removed in the exercise of this Section after following the procedure laid down in it. As stated above, if there is violation and a member is guilty and his case falls under the aforesaid provision, the same can be invoked. In view of this, when existing law on the subject is not inconsistent conferring ample powers on the respondents which can be invoked as per the provisions of law an once inconsistent part to the Constitution has been removed by the Second Amendment Act, dated 29.4.94 within a period of one year of the period of enactment of Part 1X-A of the Constitution, in my opinion, the respondent are well within their jurisdiction to issue the impugned order.
16. ...
17. It is pertinent to note that the enquiry is pending with the Joint L.R. And the same is likely to be completed. In case after conclusion of the enquiry any grievance remains, the petitioner will be free to avail the remedy available under the law. Under these circumstances, I am not inclined to interfere with the impugned order dated 13.3.1996 under Article 226 of the Constitution of India. However, the concerned authority is directed to expedite the enquiry and conclude the same in accordance with law at the earliest.
19. The substance derived by the discussion above is that the Constitution provides democratically elected local self Governments including the Municipal Boards and these Constitutional bodies must be permitted to operate effectively within the parameters prescribed by the State Legislature with minimum of State intervention and also with a protection against the State abolishing the system of Local Self Government. Such protection is intended by the provisions for regular elections in the Constitution itself. The jurisdiction of Local Self Government including the Municipal Board is to take autonomous responsibility for good rule in the sphere of public service but such jurisdiction being creation of State legislature, it shall be unrealistic to propose a democratically elected Local Self Government with complete autonomous sphere including the absence of supervisory control of the State. The fundamental theme, therefore, is to strike the balance between the autonomy of Local Self Government and extent of intervention by State Executive.
20. In the present matter the Court is concerned with the mode i.e. to be adopted by the State while placing a member/office bearer of a Municipal Board under suspension. In this regard, on basis of substance derived as above, it can be safely said that the Municipal Boards are Constitutional bodies meant for promoting regular participation in process of development and governance. It acquires jurisdiction to operate within the parameters prescribed by the enactment of State legislature but the intervention of a State must be minimum. The power to take disciplinary action against an elected member/office bearer is available to the State, however, that should be exercised with all caution by keeping in mind that it may not hurt democratic values as well as autonomy of the Board. The power as given under Section 63 of the Act of 1959 including a power to place a member/office bearer of the Municipal Board under suspension should be exercised sparingly and only after reaching at a conclusion that holding of a fair inquiry against a delinquent shall be almost impossible without resorting to his/her suspension. It must be understood that suspension of an elected member virtually amount to put the voice of people to whom he/she represents in abeyance and such action is an exception to the democratic values, therefore, all possible efforts should always be made to conduct an inquiry by maintaining high traditions of democracy. In a democratic system the conduct and image of peoples representative is of prime consideration, therefore, the person conducting inquiry may that be judicial inquiry should conclude it as expeditiously as possible by maintaining all fairness and objectivity irrespective of the fact that the member/office bearer is under suspension or not.
21. With acceptance of the concept as above, merits of the present matter is to be examined.
22. It is the position admitted that the petitioner at the first instance was placed under suspension by order dated 15.11.2006 and while contesting challenge to that the State Government also brought into the knowledge of the Court all the events and acts those are now foundation to place the petitioner under suspension. It is true that by order dated 15.11.2006 the petitioner was placed under suspension as she failed to summon meeting of the Board despite the request made by 12 members in writing and other allegations for which the petitioner is now placed under suspension at that time were under investigation. But no doubt that all those facts were within the knowledge of the Court and despite that an interim order was passed staying the order of suspension. This factum clearly proves that the Court while considering the issue with regard to suspension of the petitioner under the order dated 15.11.2006 was aware of all the allegations for those the petitioner is now facing inquiry. It is also important to notice that the report of preliminary inquiry regarding allegations in question was submitted to the Government on 15.12.2006 and thereafter the petitioner submitted her explanation on 3.2.2007 that was received by the Government on 5.2.2007 but for good four months no satisfaction was arrived by the respondents to place the petitioner under suspension.
23. In reply to the writ petition it is nowhere explained as to what was the reason for not taking expedite action against the petitioner even after receiving her explanation on 5.2.2007 if she was prima facie found guilty for serious allegations of misconduct. The respondents have placed on record a copy of the preliminary inquiry report but nothing is available on record to show as to how State arrived at satisfaction that warranted suspension of the petitioner. It is also important to notice that though the State Government has taken an action against the petitioner who is an elected representative of people but yet no adequate action is taken against the Executive Officers who are admittedly equally responsible for all alleged misdeeds said to be proved under the preliminary inquiry. During the course of arguments it was informed to the Court that the Chief Executive Officer concerned has already been transferred to some other municipality and an explanation is sought from him but yet he is not subjected to any disciplinary measure.
24. The basic philosophy to keep the authority of an elected representative of people in absence by way of suspension is that his acts on face appears against the interest of people, and his/her continuation in office may effect the process of investigation, hence, in every case where State desire to exercise powers under Section 64(4) of the Act of 1959, it must satisfy itself that a fair inquiry shall be reasonably impracticable without exercising such powers, and the satisfaction so arrived must be recorded though it is not required to be communicated to the person concerned till demanded. What it appears that the State Government in every case where a decision is taken to hold an inquiry as per the provisions of Section 63 of the Act of 1959 in quite routine manner places the delinquent under suspension. The theory of suspension as applicable in service jurisprudence cannot and should not be imposed or adopted in the matters relating to the elected persons. In the present case even according to the respondents the most of the allegations are based on documentary evidence and all those documents are in custody of State Government. Thus, I failed to understand as to how the petitioner shall be in position to interfere with the inquiry while holding the office of Chairperson. Worthwhile to be noticed here that the inquiry is to be made by an officer who is not less than the rank of District Judge. Any pressure, influence or extraneous consideration in such kind of judicial inquiry is normally unacceptable. Looking to all the facts of the case discussed above, I am convinced that suspension of the petitioner is absolutely unwarranted and, therefore, it deserves to be declared illegal.
25. Accordingly, this petition for writ is allowed. The order impugned dated 11.6.2007 is quashed to the extent it relates to suspension of the petitioner from the office of Chairperson, Municipal Board, Merta City. Consequent thereto the petitioner stands restored as Chairperson of the Municipal Board, Merta City. The respondents as well as the inquiry officer are directed to conclude the inquiry expeditiously, as far as possible within a period of three months from today. The petitioner is directed to cooperate with the respondents and the inquiry officer for expeditious conclusion of the inquiry. In the event, the petitioner do not cooperate with the inquiry, the inquiry officer may record the reasons and proceed exparte strictly in accordance with law and submit his report to the Government. The Government shall also pass appropriate order on the said report expeditiously. The entire process of inquiry including the consideration of inquiry report and action thereon is expected to be concluded within a period of four months from today.
26. No order to costs.