PARMANAND PALIWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner is the elected ward Member of Municipal Board, Rajsamand from ward No. 21. Later on, he contested the election of Chairman of the Municipal Board, Rajsamand and was declared elected. At the relevant time, the petitioner was the Chairman of the Municipal Board. On 22.10.96 a shew cause notice was issued to the petitioner for explanation Under Section 63 of the Rajasthan Municipalities Act 1959 (for short 'the Act' hereinafter). On 5.11.96 a reply was filed by the petitioner. A charge sheet was issued that while holding the post of Chairman of the Municipal Board, Rajsamand, the petitioner at his whims has effected renovation of the chamber without inviting tenders or even issuing the work order. He has not fixed the rates for executing the work and, therefore, he has committed financial irregularity using his position. Charge No. 2 is to the effect that on 25.6.97, tenders were invited for carrying out the work of paver at six places. The tenders were opened on 2.7.97 and the permission to carry out the work to M/s. Kaviraj Construction was issued whereas the work at six places was completed even prior to issuing of tenders. This way the tenders were invited only to fill up the lacuna and the work was carried out without inviting tenders using the position and thereby caused financial loss to the Muncipal Board. It is contrary to the Nagar Palika (Samanya Karya and Anubandh) Rules, 1974 (for short 'the Rules' hereinafter). After the issuance of the charge sheet, an order of suspension was issued suspending the petitioner from the Chairmanship of the Municipal Board, Rajsamand and the matter was handed over for judicial enquiry as contemplated Under Section 63 (2) of the Act. It is submitted by the counsel for the petitioner that before the enquiry as contemplated under the proviso to Sub -section (1) of Section 63 is completed, no proceedings under Sub -section (4) of Section 63 could have been taken against the petitioner.

(2.) UNDER the facts of the case. I need not go into this submission made by the counsel for the petitioner as the petitioner's suspension order was issued only after the issuance of the charge sheet. However, it would be fruitful to refer to the decision of the Division Bench of this Court reported in Jan Mohd. v. The State of Rajasthan (1992 (2) WLC (Raj.) 463 whereby the Division Bench approved the decision of another Division Bench rendered in Mohanlal v. State of Rajasthan 1963 RLW 209 and observed as under: The Division Bench after considering Ugamsee Modi's case (supra) and the provision of Sections 63 (2), (3), (4) and (5) came to the conclusion that though for purposes of Sub -section (1) of Section 63, a preliminary inquiry would be held to have commenced no sooner cognizance is taken of a complaint by the Govt. against such Officer, yet proceedings should be taken to commence in the meaning of the term under Sub -section (4) to Section 63 only when process is ordered to issue against such person or when the authority makes up its mind to take action. At this stage, the Govt. 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). The conjoint reading of Sub -sections (1), (2) and (4) of Section 63 indicates that the proceedings would be taken to be commenced within the meaning of Sub -section (4) of Section 63 when the authority makes up its mind to take action against the person. The affidavit filed by the Deputy Director (Regional), Local Bodies, Jodhpur alleges that on 19.7.97, charge against the petitioner were framed and thereafter the order of suspension has been issued against the petitioner. The charges framed against the petitioner are as mentioned above. Framing of charges by the respondent against the petitioner clearly indicates the Govt. making up its mind to take action against the petitioner. Prima facie, on reading the charges, it cannot be said that they do not fall within Section 63(1)(d) of the Act or that there is a colourable exercise of powers. As the matter is pending consideration before the Judicial Officer, it would not be proper for me to dilate upon the question regarding validity, proof and justification for framing charges.

(3.) ACCORDINGLY the petition is dismissed but it is directed that if no order is, passed against the petitioner Under Section 63 (3) of the Act within six months from 19.7.97, the suspension order shall stand revoked from 19.1.98.