Sarjoo Prosad, C.J:— This application has been presented by Shri Ugamsee Modi, Chairman of the Municipal Board Jalore. He was elected Chairman of the Board on August 7, 1958.

2. On the 12th May, 1961 the Government passed an order suspending him.

3. The order runs thus:—

“Whereas Shri Ugamsee Modi, Chairman, Municipal Board, Jalore is alleged to have committed certain cognizable offences while acting as Chairman.

And whereas the State Government have already sanctioned prosecution of Shri Ugamsee Modi in a court of law;

Now, therefore, in exercise of the powers conferred by sub-section(4) of Sec. 63 of the Rajasthan Municipalities Act, 1919 (Rajasthan Act 38 of 1959) the State Government hereby places Shri Ugamsee Modi, Chairman, Municipal Board, Jalore under suspension with immediate effect.”

4. The petitioner in this application challenges the validity of the order and prays that an appropriate writ or direction may be issued quashing the order in question and directing the respondent, which is the State of Rajasthan, not to interfere with the petitioner functioning as Chairman of the Municipality. It is alleged by the petitioner that loon after he came to fill the office of Chairman, he fell foul of the Rajasthan cabinet; and as a result of that, according to the petitioner, the executive machinery had been set in motion against him in order to implicate him in false charges. It is stated that at the instance of interested persons a ??? confidence motion was moved against the petitioner by two members of the Board, Shri Nihal Chand and Shri Nathmal, to dislodge him from his office but in view of the stay order passed by this Court in writ petition No. 460 of 1960 the petitioner could not be ousted. The petitioner was earlier suspended by the Government on the 2nd of December, 1960 on certain charges and a meeting of the Board was convened on 3rd January, 1961, to discuss a vote of no confidence against the petitioners; but again on account of another stay order granted by this Court the meeting had to be postponed. On 21st November, 1960, in writ petition No. 280 of 1960 a writ was issued by the Court directing the Government to decide the question of disqualification of the two members of the Board, Nihalchand and Nathnial, who are alleged to be inimical to the petitioner, but the matter was not decided and further attempts were made by the petitioners to obtain directions from this Court about an early decision. In writ petition No. 460 of 1960 the Government Advocate submitted, or rather gave an undertaking, that Government would decide the question of reinstatement of the petitioner and also the question of dis-qualification of these members at an earlier date of 5th May, 1961. Accordingly, some six months after the order of this Court, the order of suspension passed against the petitioner was withdrawn and he was ordered to be reinstated. This was done in view of the report of the Legal Remembrancer, in exercise of the power conferred by sub-sec. (3) of sec. 63 of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1939), who exonerated the petitioner of the various charges levelled against him in relation to his allegedly having exceeded his authority in placing and getting through some matters on the agenda which were not duly before the Board meeting and making certain appointments in the exercise of his duties as Chairman of the Municipality. Immediately and in quick succession, on the 12th May, 1961, came the above order of suspension passed by the Government, which is now impugned before us. The petitioner alleges that this was due to the long drawn controversy between the petitioner on the one band and some of the members of the Board and the Government on the other; and lie not only questions the validity of the order impugned but also submits that in the background of the facts stared the order appears to have been passed with some amount of malice or animosity against him. In reply, the case of the State is that the order in question had been validly passed and that in the exercise of his duchies as Chairman the petitioner had been acting in a somewhat despotic manner with the result that actions were necessitated against him. On the case of the Government, it appears that on 12th September, 1960, a report was lodged against the petitioner by one Narayan son of Manroopa to the effect that the petitioner along with one overseer of the Municipality went to a plot of land of which Narayan was in peaceful occupation and eventually destroyed the ‘Bada’ of the complainant after beating him and destroying his fencing. A case was registered against the petitioner on that complaint and it is said that the Inspector General of Police, on enquiry, applied for sanction to the State Government to start prosecution against the petitioner. It is further alleged that the matter of the complaint in question was also enquired into by the Page: 186Collector, Jalore who submitted a report against the petitioner alleging flagrant abuse of his position in the discharge of his duties. On these grounds the State Government being satisfied prime facie, that the petitioner was guilty of mis-conduct in the discharge of his duty, issued notice under sec. 63(2) of the Rajasthan Municipalities Act on 17th January, 1961 asking the petitioner to show cruse why action should not be taken against him. It is stated that no explanation by way of showing cause was submitted by the petitioner, whereupon fresh reminders were sent on 28-2-61 and 23-5-61, but the petitioner kept silent over the mater and did not reply to the said show cause notices. It is said that Government then relying upon the report of the Inspector General of Police and the Collector of Jalore gave sanction to prosecute the petitioner for offences under secs. 447, 147 and 109 Indian Penal Code on 14th February, 1961, and thereafter acting under sec. 63(4) of the Rajasthan Municipalities Act the Government suspended the petitioner with immediate effect by its order dated 12th May, 1961. In these circumstances it is contended on behalf of the State that the order is perfectly valid and cannot be challenged by the petitioner. The notice dated 17th January, 1961 states that it appeared from the report of the Collector, Jalore that the complaint against the petitioner was that he had directed ‘Badas’ of certain cultivators to be demolished by a Municipal tractor and later on burn them resulting in the destruction of grass and grain laying inside; and that this was done on some supposed assertion that the land on which the ‘Badas’ of the cultivators stood actually belonged to the Municipal Board, although no evidence had been produced by the petitioner, who was the Chairman of the Board, to show that the lands which were ‘Abadi’ lands had not been settled with the cultivators and that the lands were in possession of the Board.

5. The main ground on which Mr. Tyagi has challenged the order is that the State Government had no jurisdiction to suspend the petitioner under sub-sec. 4 of sec. 63 of the Municipalities Act in the Absence of any proceedings having commenced against the petitioner under the section. The sub-section runs as follows:—

“(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”.

6. Mr. Tyagi points out that there is nothing to show that any proceedings had commenced against the petitioner under sec. 63 of the Act and his main reason for saying so is that in the impugned order the reference is to sanction having been granted by the Government for the prosecution of the petitioner under various sections of the Indian Penal Code as a ground justiying the order of suspension. Mr. Tyagi submits that whatever power Government may enjoy for sanctioning prosecution of the petitioner as Chairman of the Municipal Board, it has nothing to do with the order of suspension which the Government is authorised to pass within the meaning of sub-sec. (4) of sec. 63. This order. Government can only justify if it can be shown that any proceedings had been commenced against the petitioner within the meaning of sec. 63. In the absence of any such proceedings ex facie the order is without jurisdiction. It is also pointed out that under sub-sec. (2) of sec. 63, where it is proposed to remove a member on any of the grounds specified in cl. (c) or cl. (d) of sub-sec. (1) as a result of any enquiry—referred to in any proviso to that sub-section, the State Government after hearing the explanation of the member concerned, should draw up a statement setting out distinctly the charge against the member and send the same for enquiry and findings by a judicial officer of the rank of District Judge appointed by the Government for that purpose. It is submitted that in this case there was an enquiry made within the meaning of sub-sec. (2) by the Legal Remembrancer in respect of certain allegations made against the petitioner, all of which were found not to have been substantiated and, therefore, the earlier order of suspension passed against the petitioner had to be re-called by the State Government. He points out thereafter there was no fresh proceedings and consequently the order of suspension, which followed only a day later after the re-call of the previous order was quite unjustified. The argument apparently is quite plausible but if regard is had to some of the facts to which a reference has been made earlier, it would appear that the order of suspension cannot be said to be without jurisdiction. It is true that a suspension order within the meaning of sub-sec. (4) of sec. 63, can be only made if proceedings have been commenced under the section. The point of importance is whether in the circumstances of this case it can he argued on behalf of the State that proceedings had commenced under the section. The facts indicate that there were certain complaints made against the petitioner, Page: 187apart from the charges on which an inquiry had been made earlier by the Legal Remembrancer. Those complaints appear to have been prima facie, inquired into by the Collector and by the Inspector General of Police, who asked Government to accord sanction for the prosecution of the petitioner; and the Government after applying its mind to those reports thought that action was called for. It appears that the Government sent notices to the petitioner to show cause why action should not be taken against him. It is true that the notice of 17th January, 1961 refers to a general charge of various unauthorised actions taken by the petitioner for demolition of certain ‘Badas’ of cultivators on lands which are said to, be cultivable lands but were claimed by the petitioner to be in possession of the Municipal Board. One such complaint was by Narain. Repeated reminders calling for a reply and explanation appear to have been sent to the petitioner, one of the notices further shows that even before the Collector he was unable to appear to establish the claim that the lands in question belonged to the Municipality. In the circumstances the Government ultimately accorded sanction to prosecute the petitioner. In the order of sanction specific mention has been made to the complaint of Shri Narayan son of Manroopa Mali but that complaint also refers to the demolition of the fencing of his Bada on a plot of land in possession of the complainant. If these facts are correct that there were certain allegations of misconduct against the petitioner of his having abused his powers as a Chairman of the Municipality, that on those allegations there was some inquiry by certain officers and that on the report submitted by those officers the Government called upon the petitioner to explain the allegations made against him, it can hardly be contended that proceedings cannot be taken to have commenced against the petitioner within the meaning of sub-sec. (2) of sec. 63 of the Municipalities Act. It may be that the framing of the actual charges and the reference to the judicial officer concerned may take place later; but there was nothing to prevent the State Government from taking action to suspend him on those allegations under sub-sec. (4) of sec. 63 of the Act. The Judicial Officer concerned, in case a reference is made in respect of certain charges which are already the subject-matter of inquiry in the criminal court, may stay his hands and then take up his investigation, if at all necessary, at a later stage after the termination of the criminal proceedings and submit his report to the Government; but these are subsequent stages of the proceedings relating to the pendency or conclusion of the inquiry. There can be no doubt that on the facts stated here, proceedings under sub-section (2) of section 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, therefore, unable to agree with the contention of the petitioner that the order of suspension is without jurisdiction.

7. It is true that the impugned order of suspension has followed almost in pormpt succession of the order recalling the earlier order of suspension and in that sequence there was an apparent cause for suspicion about the bona fides of the order; but if the above facts are kept in view, namely that the previous order related to certain other charges, which were inquired into by the Legal Remembrancer, in respect of which the petitioner has been exonerated, then there is hardly any room for doubt or suspicion. The present order in fact relates to certain Other allegations made against the petitioner about his misconduct in the discharge of his official duty as a chairman of the Municipal Board. The petitioner may succeed in showing either in the criminal proceeding of in the enquiry that may be later conducted by a judicial officer under sec. 63 that he is not guilty of those charges as he was able to establish earlier; but that does not affect the position that on the allegations, as they stand at present, the State Government has jurisdiction to pass the order of suspension. It is well settled that an order of suspension is not by way of penalty. All that it does is to make the person affecred refrain from discharging his functions in a particular office for a certain period. If the order had been malicious, of course, this Court would be entitled to interfere; but on the facts, as they appear to be, it cannot be said that the discretion exercised by the Government in making that order was unjustified or malicious. We accordingly reject this application.