The High Court held that the State Government quashed a suspension order of an elected municipal chairman because the revocation lacked reasoning. The Court directed the State to pass a speaking order within 30 days.
The revocation order of suspension dated 19.02.2024 was quashed; liberty granted to the State to pass a speaking order within 30 days.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
(1) D.B. Spl. Appl. Writ No. 558/2024
Om Prakash Kalwa S/o Shri Jodha Ram Kalwa, Aged About 61 Years, R/o Meghdeep, Ner Udham Singh Chowk, Old Housing Boad, Suratgarh, Rajasthan.
----Appellant
Versus
----Respondents
(2) S.B.CIVIL WRIT PETITION NO.4553/2024
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Jhulelel Mandir, Suratgarh, District Sri Ganganagar.
---Petitioner
Versus
| For Appellant(s) | : Mr. R.N.Mathur, Sr. Advocate through VC with Mr. Muktesh Maheshwari & Mr. Sachin Mathur |
|---|---|
| For Respondent(s) | : Mr. Sandeep Shah, Sr. Advocate assisted by Mr. Shailendra Gwala and Nishant Bafna |
| Mr. Manish Patel, AAG | |
| Mr. Ankur Mathur with Mr. Harshwardhan Thanvi |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Order
27/05/2024
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(b) any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner; and
(c) cost of the writ petition may kindly be awarded to the petitioner."
III. Costs may kindly be also awarded in favour of the appellant."
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order dated 24.07.2023. After suspension, the respondent State took a stand of holding a judicial inquiry against the present appellant, which was challenged by him along with the suspension order by filing another writ petition being S.B.Civil Writ Petition No.12569/2023, that was also dismissed by this Court vide order dated 26.09.2023.
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"(3). The conjoint reading of sub-sections (1), (2) and (4) of S. 63 indicates that the proceedings would be taken to be commenced within the meaning of sub-section (4) of S. 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, charges 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 S. 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.
(4). Sub-section (4) of S. 63 of the Act provides that notwithstanding the foregoing provisions of S. 63, the State Govt. may place under suspension a member against whom proceedings have been commenced u/s. 63 and that suspension order continues until the conclusion of the enquiry or passing of the final order. The result of suspension is that 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. Thus, as a result of the suspension order issued under subsection(4) of S. 63 pending enquiry or till the final order is passed, the member shall be debarred from taking part in the proceedings of the Municipal Board or otherwise performing his duty as a member of the Board. Subsection (4) cannot be read as giving unlimited power in the hands of the State to debar a member from performing his duties for all times to come. It is to be kept in mind that the member is ele-cted by the public and he is the representative of the public in the Municipal Board. His tenure is limited and he can act as a representative of the public for a fixed term. In the democratic set up, the elected member cannot be restrained from performing his duties for unlimited period without there being proved charge against him. He has a right to perform his duties as a member he being elected torepresent wish and will of the people. One has to read the inherited limitation of the authority in applying the powers under sub-section (4) debarring any elected member from performing his duties as such. The suspension should not result into a removal of the member, a power vested under sub-section (3) of s. 63 can be exercised after due and proper enquiry, by the State, as per the procedure prescri-bed for holding an enquiry into a charge against the member of a Municipal Board or Counselor of Municipal Council. The enquiry contemplated under sub-section (2) and the order thereafter under sub- section (3) has to be passed after giving opportunity to the member to lead oral and
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documentary evidence and after consideration and giving due weight to the facts found on record. The order is required to be a speaking order giving reasons for arriving at a particular logical conclusion. There is no equation between the order passed of suspending a member and order of removal of member. Proceeding for removal of a member may take a longer period but that should not result in continued suspension of the member until the enquiry is concluded or order is passed. The matter can be looked into from another angle. An enquiry is commenced against the member for his removal and continue for two years and ultimately the member is exonerated from all the charges framed against him, result would be, he will not be removed from membership, but what will happen to his suspension for two years, the period he could not function as member, he could not be relegated to the original position. The power to suspend a member could be held to be legal if it is for a limited period or some machinery is provided for review of the matter and extension thereafter of the suspension period of the member. Considering the term of the member of Board, reasonable period of suspension of member could be for six months from the date of suspension. An enquiry contemplated under sub-section (2) of S. 63 of the Act and the resultant order would be passed within the period of six months from the date of suspension of a member. For some reason or the other, the enquiry u/s 63(2) is not completed or order under sub-section (3) of S. 63 is not passed, that shall not come in the way of cessation of suspension order. On the day six months are completed from the date of suspension order, the suspension order of a mem-ber under Sub-section (4) of S. 63 of the Act shall come to an end.
(5). Accordingly, the petition is dismissed but it is directed that if no order is passed against the petitioner u/s 63(3) of the Act within six months from 19.7.97, the suspension order shall stand revoked from 19.1.98."
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sections (3), (4) and (6) stating that it was the power of the State to revoke the suspension of a duly elected representative after proper consideration of the issues involved. Learned AAG, at this juncture, in addition to his submissions that proper deliberation was made and power to revoke the suspension vests with the State, also submitted that he had fairly submitted before the Hon'ble Single Bench that the State Government be given liberty to pass a fresh order in accordance with law dealing with the issue involved and such submission has been recorded in paragraph 15 of the impugned order. Learned AAG has taken this Court to the revocation order which admittedly does not have any reasons for revocation of the suspension. Thereafter, learned AAG has taken this Court to the notings which are also part of the record. The relevant part of the notings reads as follows:-
"77- iSjk 74@,u dh ikyuk esa izdj.k dk laf{kIr fooj.k fuEukuqlkj gS%&
ftyk dyDVj] Jhxaxkuxj }kjk fnukad 10-03-2023 dks :Mfldksa dk;kZy; dks tkap fjiksVZ izsf’kr dh xbZA tkap fjiksVZ vuqlkj lksd fiV rksM+us@[kkyh djus ls lacaf/kr fcyksa dks Dyse djus okys fuekZ.k dEiuh fd rduhdh vf/kdkjh fcyksa esa gq, dk;Z ds lR;kfir djus okys uxj ikfydk lwjrx<+ esa inLFkkfir rRdkªŒ dfu’B vfHk;ark] lgk;d vfHk;ark] vf/k”kk’kh vf/kdkjh] dfu’B ys[kkdkj lfgr v/;{k uxj ikfydk lwjrx<+ ,oa fcyksa dks lR;kfir djus okys :Mfldksa ds vf/kdkjh;ksa dks nks’kh ik;k x;kA :Mfldksa ds }kjk i=koyh lrdZrk vuqHkkx dks izkIr gksus ij tkap fjiksVZ ds vk/kkj ij nks’kh Jh vkseizdk”k dkyok rRdkŒ v/;{k uxj ikfydk lwjrx<+ dks jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39 ds rgr fnukad 24-04-2023 dks Li’Vhdj.k uksfVl tkjh fd;k x;k lkFk gh izdj.k esa nks’kh vf/kdkjh Jh lquhy dqekj es?koky] rRdkŒ ys[kkdkj] Jh fot; izrki flag rRdkŒ vf/k”kk’kh vf/kdkjh] Jh iadt vxzoky rRdkŒ vf/k”kk’kh vfHk;ark ds fo:) lh-lh-,- fu;e&16 ds rgr vuq”kklukRed dk;Zokgh izkjEHk dj nh xbZ gSA Jh vkseizdk”k dkyok rRdkŒ v/;{k uxj ikfydk lqjrx< ds }kjk izLrqr Li’Vhdj.k uksfVl ds tokc dk fof/kd ijh{k.kksijkar Jh dkyok ds }kjk izLrqr Li’Vhdj.k uksfVl ds tokc dks larks’kinz ugha ik;s tkus ij jktLFkku uxj ikfydk vf/kfu;e 2009 dh /kkjk 39¼6½ ds rgr iznRr “kfDr;ksa dk iz;ksx djrs gq;s jkT; ljdkj }kjk fnukad 24-07-2023 dks v/;{k ,oa lnL; ds in ls fuyfEcr fd;k x;k rFkk izdj.k dks U;kf;d tkap gsrq fnukad 24-07-2023 ls fof/k foHkkx dks izsf’kr fd;k x;k gSA Jh vkseizdk”k dkyok rRdkŒ- v/;{k uxj ikfydk lqjrx<+ ds fo:) orZeku esa izdj.k U;kf;d tkap esa fopkjk/khu gSA
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78- iSjk 70@,u ij izkIr fof/kd jk; vuqlkj jkT; ljdkj Jh vkseizdk”k dkyok fuyfEcr lnL; dks U;kf;d tkap ds vfUre fu.kZ;k/khu muds }kjk U;kf;d tkap esa fdlh izdkj dk gLrk{ksi ugha djus@izHkkfor ugha djus dh vUMjVsfdax yh tkdj fuyEcu ls cgkyh ds fcUnw ij iz”kklfud Lrj ls fopkj fd;k tkdj fu.kZ; fy;k tk ldrk gSA"
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accordance with law while keeping into consideration all the issues which have been raised by both the parties. The State shall pass a speaking order within a period of 30 days from receiving the certified copy of this order, supported by whatever consideration they make, after taking into count factual matrix which is on record. Needless to say that this order and the directions given in S.B.Civil Writ Petition No. 4553/2024 shall not prejudice the State to make an order in either side.
(YOGENDRA KUMAR PUROHIT),J
(DR.PUSHPENDRA SINGH BHATI),J
15-S-1-RP/-
3 issues framed by the court
Whether a revocation order of suspension of a municipal chairman is valid if it lacks any reasoning or application of mind.
Whether the State Government must exercise due caution and provide reasoning when revoking a suspension order of an elected representative.
Whether an interim order staying the revocation of suspension was legally enforceable without written reasons for the prior revocation.
Colour shows how this judgement treated each authority
Parmanand Paliwal Vs. State & Anr.Referred¶50
Parmanand Paliwal Vs. State & Anr., 1997 (3) RLW (Raj.) 2076
2 provisions across 1 enactments
Om Prakash Kalwa
State Of Rajasthan, Through Its Secretary, Local Self Government
Basant Kumar
Director Cum Special Secretary, Local Self Department, Govt. Of Rajasthan
PUSHPENDRA SINGH BHATI
YOGENDRA KUMAR PUROHIT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
