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Mohanlal v. State Of Rajasthan
Factual and Procedural Background
The petitioner, Mohanlal, was elected a member of the Sardarshahar Municipality in the general election of May 1961 and was subsequently elected Chairman. Complaints against him led to preliminary enquiries: one by the Deputy Director of Local Bodies in March 1962 and another by the Assistant Director of Local Bodies in October 1962 (the Deputy Director post having been abolished). The Assistant Director recorded the petitioner's statement on 20 October 1962 and submitted an interim report to the Government on 22 October 1962.
The State Government ordered the petitioner's suspension on 24 October 1962; a formal communication of suspension was made to the petitioner on 1 November 1962. The petitioner filed a writ petition under Article 226 on 6 November 1962 challenging the suspension on the ground that no inquiry had commenced under section 65(10) read with section 63(2) of the Rajasthan Municipalities Act, 1959, and that he had not been informed of any inquiry until he received the suspension order.
The Government replied that an interim report had been submitted on 22 October 1962, that suspension was ordered on 24 October 1962 and that an inquiry was ordered simultaneously with the suspension. The Government further stated the Assistant Director submitted a final report on 28 November 1962 and thereafter a show-cause notice was issued to the petitioner.
Legal Issues Presented
- Whether the petitioner's suspension on 24 October 1962 was invalid because no inquiry had commenced under section 65(10) read with section 63(2) of the Rajasthan Municipalities Act, 1959.
- Whether the proviso to section 63(1) of the Act (providing for a preliminary inquiry and opportunity of explanation) applies to the removal/inquiry procedure for a chairman under section 65(10).
- What constitutes the "commencement of proceedings" for the purposes of section 63(4) (which permits suspension of a member "against whom proceedings have been commenced under this section").
Arguments of the Parties
Petitioner's Arguments
- The petitioner (through Mr. Rastogi) contended that removal of a chairman requires proceedings under section 65(10) which invoke the grounds in section 63(1)(d) and the procedure of section 63(2), and that the proviso to section 63(1) is not applicable to inquiries under section 65(10).
- He argued that an inquiry under section 63 commences only upon issuance of a show-cause notice and the appointment of a judicial officer under subsection (2), so suspension before that stage was premature and unlawful.
- He sought vacation of the suspension order and asked that if an inquiry under section 63(2) was to be instituted, the Government should appoint a judicial officer and proceed accordingly.
Government's Arguments
- The Government replied that an interim report by the Assistant Director was submitted on 22 October 1962 and that the Government, having applied its mind, ordered suspension on 24 October 1962 and ordered that an inquiry be held.
- The Government asserted that a final report was later submitted on 28 November 1962 and that a show-cause notice was issued thereafter; in short, the Government maintained that inquiry was ordered simultaneously with suspension.
- The Government's reply also contained a statement that after receiving the petitioner's explanation it would pass orders as appropriate, whether to proceed by setting out a statement of charge and ordering inquiry by a District Judge or not; the petitioner relied on this wording to suggest the Government had not yet made up its mind.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ugamsee Modi v. State of Rajasthan (Division Bench) | Held that proceedings under section 63(2) are to be taken to have commenced when, on the basis of allegations, the person is called upon to show cause and explain his conduct. | The Court agreed with this law and relied on it in interpreting when proceedings commence for purposes of section 63(4), while distinguishing the stage at which a preliminary inquiry occurs and the stage at which proceedings are regarded as commenced for suspension under section 63(4). |
Court's Reasoning and Analysis
The Court examined the relevant statutory provisions in the Rajasthan Municipalities Act, 1959 as they were set out in the record:
- Section 65(10) provides that every chairman is removable on any of the grounds specified in clause (d) of section 63(1) and that the provisions of subsections (2) to (5) of section 63 shall apply.
- Section 63(1)(d) lists grounds such as misconduct in discharge of duties or flagrant abuse of position.
- A proviso to section 63(1) states that an order of removal shall be passed after such inquiry as the State Government considers necessary and after the member has been given an opportunity to explain.
- Section 63(2) provides that where it is proposed to remove a member on grounds in clauses (c) or (d) of section 63(1), as a result of the inquiry referred to in the proviso, the Government shall draw up a statement of charge and send it for inquiry and findings by a judicial officer (District Judge) appointed by the Government.
- Section 63(4) permits the State Government to place under suspension a member "against whom proceedings have been commenced under this section" until the conclusion of the inquiry and final order.
From these provisions the Court concluded:
- Section 65(10) incorporates section 63(2) procedure for chairmen; therefore the proviso to section 63(1) and the framework of subsection (2) apply to a chairman's removal inquiry. The petitioner's contention that the proviso does not apply was rejected as without substance, given the express language of subsection (2).
- There is a distinction between (a) a preliminary inquiry (which may begin when a complaint is taken up by the Government to verify allegations) and (b) the commencement of "proceedings" for the purposes of section 63(4). While a preliminary inquiry may be undertaken as soon as cognizance is taken of a complaint, "proceedings" in the sense of section 63(4) commence either when process is ordered to issue against the person or when the competent authority makes up its mind to take action (i.e., determines that there is material for issuing process).
- The Court adopted the principle from Ugamsee Modi that subsection (2) proceedings are to be seen as having commenced when the person is called upon to show cause and explain. However, for suspension under subsection (4) the relevant commencement point is the moment the authority decides to take action or orders process.
- Applying these principles to the facts: the Assistant Director's interim report was before the Government on 22 October 1962; the Government, having applied its mind to the interim report, decided to take action and ordered suspension on 24 October 1962. Although a formal charge-sheet was not drawn up until after a final report, and a show-cause notice was issued later, the Government had already determined there was material for taking action on 24 October and had ordered inquiry simultaneously with suspension.
- The Court rejected the petitioner's emphasis on certain loose language in the Government's reply (that the Government would decide after receiving the petitioner's explanation whether to proceed) as a technical point that did not reflect the true intention evident from the Government's proceedings; the loose wording did not negate that an inquiry had been ordered on 24 October 1962.
Holding and Implications
Holding: The writ petition is dismissed; the order of suspension dated 24 October 1962 was valid.
Implications:
- Direct effect on the parties: The petitioner's challenge to the suspension failed and the suspension ordered by the Government on 24 October 1962 was held not to be invalid.
- Statutory interpretation applied: The Court held that section 65(10) brings a chairman within the inquiry framework of section 63, including the proviso and subsection (2), and that suspension under section 63(4) is permissible where proceedings have commenced — understood as the point when the authority makes up its mind to take action or orders process.
- The opinion does not assert that it is laying down a novel precedent beyond its agreement with the rule in Ugamsee Modi; it applies existing principles to the facts and concludes the suspension was lawfully made simultaneously with the ordering of an inquiry.
Ranawat, C.J:— This is an application by Mohanlal under Art. 226 of the Constitution challenging the validity of Government order dated the 24th of October, 1962 by which the petitioner was suspended from his office of Chairmanship of the Sardarshahar Municipal Board.
2. The facts of this case are not in dispute.
3. Briefly they be put thus. The petitioner Mohanlal was elected member of the Sardarshahar Municipality at general election held in May, 1961 and he was subsequently elected as Chairman of the said Page: 210Municipality. 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 the 22nd of October, 1962. The statement of the petitioner was recorded regarding certain allegations against him by the Assistant Director on the 20th of October, 1962 before he submitted his report to the Government. The Government ordered suspension of the petitioner on the 24th of October, 1962 and a formal order in this behalf was communicated to the petitioner on the 1st of November, 1962. The petitioner has filed this writ petition on the 6th of November challenging the validity of the order of his suspension on the ground that no enquiry had commenced against him under sec. 65(10) read with sec. 63(2) of the Rajasthan Municipalities Act, 1959. The petitioner also alleged that he did not receive any information about any inquiry against him till he received the order of his suspension. In the reply that has been filed by the Government, it is stated that a preliminary report was submitted by the Assistant Director of Local Bodies to the Government on the 22nd of October, 1902 and the Government was pleased to order the petitioner's suspension on the 24th of October, 1962 and also for holding an inquiry against him. A copy of the record of the proceedings in this behalf has been placed on the record and it appears at page 39 of the paper-book. It is further stated that the Assistant Director of Local Bodies submitted his final report to the Government on the 28th of November, 1962 and on that report show cause notice was ordered to issue against the petitioner. In short, the reply is that an inquiry was ordered against the petitioner simultaneously with the order of his suspension.
4. Mr. Rastogi for the petitioner has contended that for the removal of a chairman of a municipal board, proceedings under sec. 65(10) contemplate that the Government should act on the grounds mentioned in sec. 65(1)(d) by adopting the procedure laid down under sec. 63(2) and before the Government makes up its mind to remove a chairman, it is not open to the Government to order his suspension and in the instant case, it is stated, the Government has not so far made up its mind whether or not to remove the petitioner from his office of chairmanship. Reference in this behalf has been invited to the reply filed by the Government in which it is mentioned that action regarding appointment of a judicial officer shall be taken on receipt of the reply of the petitioner and on the Government deciding whether or not to take action against him for his removal. In support of this contention, Mr. Rastogi has vehemently urged that proviso to sub-sec. (1) of sec. 63 of the Act is not applicable to the inquiries under sec. 65(10) for removal of a chairman of a municipal board. He has also urged that in the meaning of sub-sec. 4 to sec. 63 inquiry against a chairman of a municipal board is commenced on issue of a show cause notice to him after proceedings are taken under sub-sec. 2 by appointment of a judicial officer for conducting inquiry. He has thus argued that the order of suspension of the petitioner is premature and is, therefore, not in accordance with law. He has prayed that the order of suspension of the petitioner be vacated and the matter should be left to the Government to make a proper order in this behalf in case an inquiry under sub-sec. 2 of sec. 63 is instituted by appointment of judicial officer.
5. Sec. 65(10) lays down,
“Every chairman and every vice-chairman shall be removable from his office as such chairman and vice-chairman on any of the grounds specified in clause (d) of sub-sec. (1) of sec. 63, and the provisions of sub-sec. (2) to (5) of that section shall apply.”
6. In sec. 63(1)(d) the following grounds have been mentioned:—
“(d) that he has—
(i) been guilty of misconduct in the discharge of his duties, or
(ii)………….
(iv) otherwise flagrantly abused in any manner his position as such member.”
7. A proviso appears after clause (d) in sec. 63(1) to the following: effect:—
“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 Officer or authority as it may direct and after the member concerned has afforded an opportunity of explanation.”
8. The contention of the learned counsel for the petitioner is that inquiry under the proviso is not contemplated in the case of removal of a chairman and an inquiry in Page: 211his case can only commence under sub-sec. (2) of sec. 63. Sub-sec. (2) of sec. 63 of the Act provides:—
“(2) Notwithstanding anything contained in sub-sec. (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-sec. (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.”
9. It is evident, by scrutiny of sub-sec. (2) of sec. 63, that an inquiry under the proviso to sub-sec. (i) of sec. 63 is contemplated under sub-sec. (2) of sec. 63 which is applicable to the case of inquiry for removal of a chairman under sec. 65(10). The contention of the learned counsel for the petitioner that an inquiry under the proviso to sub-sec. (1) of sec. 63 is not contemplated in the case of inquiry regarding removal of a chairman of the municipal board is without substance. A clear answer to this is gathered from sub-sec. (2) which expressly provides for an inquiry and further action to be taken in that behalf as a result of the inquiry referred to in the proviso to sub-sec. (1). Mr. Rastogi had no answer to make when confronted with reference to the proviso in sub-sec. (2) to sec. 63. It is obvious that the intention of the legislature was that a preliminary inquiry under the proviso to sub-sec. (1) of sec. 63 should be undertaken before action under sub-sec. (2) is taken for removal of a member or a chairman on grounds specified in sub-sec. (1)(d) of sec. 63. In this connection, the provision of sub-sec. (4) of sec. 63 is relevant and it is applicable to the case of the petitioner by virtue of sec. 65(10). It provides:—
“(4) 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 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 board or otherwise perform the duties of a member thereof.”
10. The issue therefore in short is whether the petitioner was suspended on commencement of the proceedings against him under sec. 63. If so, the order of suspension cannot be held to be invalid. In Ugamsee Modi v. State Of Rajasthan (1) a Division Bench of this Court consisting of the Chief Justice and Mr. Justice Shinghal held, “proceedings under sub-sec. (2) of sec. 63 of the Act, must be taken to have commenced against the petitioner when on those allegations he was called upon to show cause and to explain his conduct.” We are in agreement with the law laid down in that decision. After a complaint is received by the Government against a member or a chairman, a preliminary inquiry has to be undertaken to verify whether there is any substance in the allegations made against such person and after holding that inquiry as contemplated by proviso to sub-sec. (1) of sec. 63, if the Government decides to take action against such person, it may issue show cause notice to him and also take further action for conduct of an inquiry in accordance with the provision laid down under secs. 63(2)(3)(4) and (5). Though for purposes of sub-sec. (1) of sec. 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 taken to commence in the meaning of the term under sub-sec. (4) to sec. 63 only when process in 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 sec. 63(4). Coming to the facts of the instant case, it may be noted that the Assistant Director of Local 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. 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 Page: 212action 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 yet made up its mind to remove the petitioner and the order of suspension is therefore premature. 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. It is obvious, having regard to the facts and circumstances of the case that an inquiry had been ordered against the petitioner on the 24th of October, 1962 and the order of suspension of the petitioner is therefore not invalid. The petition fails and is dismissed.
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