Allowed

Naresh Kumar S/O Shri Ramlal v. State of Rajasthan

Rajasthan HC23 Nov 2022CW/9244/2022

Case brief

AI extract

What is this about?

The Court held that the suspension order passed by the Director & Joint Secretary was void for want of jurisdiction under Section 39(6) of the Rajasthan Municipalities Act, 2009. Subsequent Ex-Post Facto approval was also set aside as an attempt to frustrate judicial review.

What did the court decide?

The impugned suspension order dated 17.06.2022 and the Ex-Post Facto approval dated 22.11.2022 are set aside; matter remanded for fresh order.

Naresh Kumar S/O Shri Ramlal Vs State of Rajasthan — Service and Employment | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 9244/2022

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Naresh Kumar S/o Shri Ramlal, Aged About 41 Years, Resident Of 273, Bairwa Basti, Chhawani, Beawar, Distt. Ajmer - 305901 (Raj.)

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Local Self Government Department, Government Secretariat, Jaipur, Rajasthan.

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Director And Joint Secretary, Local Self Government Department, G-3, Rajmahal Residential Area, C-Scheme, Near Civil Lines Phatak, Jaipur, Rajasthan.

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Deputy Director (Regional), Local Self Government Department, Ajmer.

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Commissioner, Municipal Council, Beawar, Distt. Ajmer.

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----Respondents

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For Petitioner(s) : Mr. Rajendra Prasad, Senior Counsel assisted by Mr. Tanveer Ahamad. For Respondent(s) : Mr. Anil Mehta, AAG with Mr. Yashodhar Pandey & Ms. Archana.

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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23/11/2022

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This writ petition has been filed by the petitioner with the

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following prayer:-

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“It is, therefore humbly prayed that Your Lordship may graciously be pleased to accept and allow this writ petition and by an appropriate writ, order or direction:-

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The impugned order dated 17.06.2022 (Annexure-1) passed by the Director and Joint Secretary, Local Self Government Department, Rajasthan, Jaipur and impugned order dated 17.06.2022 (Annexure-1A) passed by the Commissioner, Municipal Council, Beawar

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(2 of 8)

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[CW-9244/2022]

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may kindly be quashed and set aside and the respondents may be directed to allow the humble petitioner to continue on the post of Chairman, Municipal Council, Beawar in the interest of justice.

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Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.

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Cost of the writ petition may also be awarded in favour of the petitioner.”

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Brief facts as stated in the writ petition are that in the election held for the post of Chairman, Municipal Council, Beawar the petitioner was elected and the contesting candidate who lost the election made a complaint against the petitioner for removing him from the said post, upon which after certain correspondences took place between the concerned government departments, the proceedings were initiated against the petitioner. Thereafter, taking a prima facie view of the allegation levelled against the petitioner, the petitioner was suspended vide order dated 17.06.2022 (Annexure-1) followed with the order dated 17.06.2022 (Annexure-1A), which is under challenge at the instance of the petitioner in the present writ petition.

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At this stage, this Court considers it appropriate to record that in the writ petition as well as during the course of arguments only the legality/validity/sustainability of the order dated 17.06.2022 has been questioned, therefore under the present order while finally deciding the writ petition this Court is only examining sustainability of the order dated 17.06.2022 passed by the respondents.

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Learned Senior Counsel appearing on behalf of the petitioner submits that the suspension order has been passed by the respondents in violation of the provisions of Section 39 (6) of Rajasthan Municipalities Act of 2009 (hereinafter to be referred as

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(3 of 8)

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[CW-9244/2022]

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the ‘Act of 2009’). Learned Senior Counsel further submits that according to Section 39(6) of the Act of 2009 only the State Government can place the petitioner under suspension whereas in the present matter the Director & Joint Secretary has passed the order of suspension on 17.06.2022 which is absolutely without his competence & jurisdiction. Learned Senior Counsel further submits that the note-sheet submitted by the respondents (Annexure-R/6) with their additional affidavit shows that the approval has been taken from the State Government only for initiating judicial enquiry against the petitioner under Section 39(3) of the Act of 2009, as proposed under Note No.43 and thus it is evident and apparently clear that Note-43 relates only for grant of approval for the aforesaid purpose of initiating judicial enquiry and it does not speak/ask about placing the petitioner under suspension and even if so no approval has been taken from the Minister In-Charge before passing the order impugned herein dated 17.06.2022. Learned Senior Counsel further submits that even the Executive Officer who too is responsible for all the executive work like issuance of Patta and against whom similar allegations like the petitioner have been levelled, only a charge-sheet under Rule 17 of the CCA Rules has been issued while in the case of the present petitioner, he has been suspended, which is a complete arbitrariness and mala-fide action on the part of the respondents in suspending the petitioner and this action of the respondents in the light of the provisions of Section 39(6) of the Act of 2009 is without application of mind.

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Mr. Anil Mehta, Additional Advocate General though has opposed the writ petition, however on a perusal of the notesheets, annexed with the reply frankly admitted that no approval

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(4 of 8)

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[CW-9244/2022]

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was taken from the Minister In-Charge with regard to suspending the petitioner as mentioned in the Note No.44 of the office file.

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On 22.11.2022, during the course of arguments, Mr. Anil Mehta, AAG sought one day’s time to take instructions with regard to passing of fresh order after seeking proper approval and submitted that in light whereof the writ petition may be allowed to be disposed of as withdrawn, considering the submission of learned AAG, time sought for was granted and at his request the matter was postponed for today i.e. 23.11.2022.

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It was further submitted by Mr. Anil Mehta, AAG that according to the Note No.72 of the Office File, Ex Post Facto approval has now been granted by the Minister-In-Charge on 22.11.2022 with regard to Note No.44 of the original note-sheet and he has tried to justify their action. Copy of the said note-sheet along with letter dated 23.11.2022 issued by the Director & Joint Secretary is taken on record, marked as Annexure-R-9.

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In rejoinder, Mr. Rajendra Prasad, learned Senior Counsel further submits that action of the respondents in granting Ex Post Facto sanction/approval is also arbitrary and mala-fide on the the part of the respondents and submitted that it has been done so by the respondents just to frustrate the purpose of filing the writ petition and it clearly shows that prior to passing of the suspension order of the petitioner there was no application of mind by the respondents and the petitioner has been placed under suspension in a haste manner.

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Heard counsel for the parties and perused the record.

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Since the controversy raised herein relates to the provisions of Section 39(6) of the Act of 2009, therefore before dealing with the arguments raised by the respective counsel for the parties, it

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(5 of 8)

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[CW-9244/2022]

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would be appropriate to first have a look over the provisions of Section 39(6) of the Act of 2009 and thus are reproduced as under :-

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“39. Removal of member:- (1) The State Government may, subject to the provisions of sub-sections (3) and (4), remove a member of a Municipality on any of the following grounds, namely:-

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(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality : 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 37,

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(c) that after his election he has incurred any of the disqualification mentioned in section 14 or section 24 or has ceased to fulfill the requirements of section 21,

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(d) that he has-

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(i) deliberately neglected or avoided performance of his duties as a member, or (ii) been guilty of misconduct in the discharge of his duties, or

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(iii) been guilty of any disgraceful conduct, or

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(iv) become incapable of performing his duties as a member, or

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(v) been disqualified for being chosen as member under the provisions of this Act, or (vi) otherwise abused in any manner his position as such member :

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Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State level services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation. (2) The power conferred by sub-section

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(1) may be exercised by the State Government of its own motion or upon the receipt of a report from the Municipality in that behalf or upon the facts otherwise coming to the knowledge of the State Government :

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Provided that, until a member is removed from office by an order of the State Government under this section, he shall

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(6 of 8)

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[CW-9244/2022]

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not vacate his office and shall, subject to the provisions contained in sub-section (6), continue to act as, and exercise all the powers and perform all the duties of, a member and shall as such be entitled to all the rights and be subject to all the liabilities, of a member under this Act.

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(3) 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 subsection (1), as a result of the inquiry referred to in the proviso to that subsection 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 enquiry and findings by Judicial Officer of the rank of a District Judge to be appointed by the State Government for the purpose.

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(4) The Judicial Officer so appointed shall proceed to inquire into the charge, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon either order for re-inquiry, for reasons to be recorded in writing, or pass final order.

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(5) While hearing an inquiry under subsection (4), the Judicial Officer shall observe such rules of procedure as may be prescribed by the State Government and shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit in respect of the following matters, namely:-

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(a) summoning and enforcing the attendance of any person and examining him on oath;

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(b) requiring the discovery and production of any such document or any other material as may be predicable in evidence; (c) requisitioning any public record; and

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(d) any other matter which may be prescribed.

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(6) Notwithstanding the foregoing provisions of this section, the State Government may place under suspension a member against whom proceedings have been commenced under this section until

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(7 of 8)

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[CW-9244/2022]

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the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the Municipality or otherwise perform the duties of a member thereof.

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(7) 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.”

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A perusal of the above provisions indicates that it is only the State Government which can place a member of Municipal Council under suspension for the reasons assigned therein. In the present case, this Court finds substance in the argument of the petitioner’s counsel that the order impugned dated 17.06.2022 is in violation of the provisions of Section 39(6) of the Act of 2009 as it is without jurisdiction since it has been passed by the Director & Joint Secretary, Local Self Government Department without prior approval of the State Government (Minister-In-Charge). Therefore, this Court has no hesitation in holding that the order impugned dated 17.06.2022 is without jurisdiction being violative of the provisions of Section 39(6) of the Act of 2009.

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The another aspect of the matter, which is in the form of subsequent development, taking approval from the Minister-InCharge at Note No.72 which is with regard to earlier Note No.44, the same on the face of record depicts that it has been done just to save their skin by the respondents and to frustrate the filing of the present writ petition and also to give legs to their earlier baseless violative action of passing of the order dated 17.06.2022 and such practice of manipulation cannot be appreciated by this Court of playing with the proceedings of the Court.

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(8 of 8)

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[CW-9244/2022]

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In view of the above findings/observations, the action of the respondents in passing of the orders dated 17.06.2022 (Annexured-1 & Annexure-1A) as well as the subsequent action of Ex-Post Facto Approval dated 22.11.2022, in the opinion of this Court cannot be held to be sustainable and deserves to set aside, as a consequence thereof the writ petition deserves to succeed.

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In that view of the matter, the writ petition is hereby allowed. The orders impugned dated 17.06.2022 (Annexure-1 & Annexure-1A) as well as the Ex Post Facto Approval dated 22.11.2022 (Annexure-R-9), are set aside. However, the respondents are at liberty to pass fresh order strictly in

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accordance with law.

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(INDERJEET SINGH),J

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MG/229

Naresh Kumar S/O Shri Ramlal v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Naresh Kumar S/O Shri Ramlal v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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