ORDER [ENTITY], J.
1. The instant writ petition has been filed for quashing the suspension order dated 6-1-2000 (Annexure P/4) passed under [SECTION] of the [ACT] (for short, "the Act") by the [ENTITY] Government against the petitioner the Chairman of Municipal Board, Gulabpura.
2. The facts and circumstances giving rise to this case are that petitioner was elected as a Member and subsequently the Chairman of the Municipal Board, Gulabpura (district Bhilwara) in August, 1995. He was issued a show cause notice dated 17-7-1999 (Annexure P/1) under [SECTION] of the Act calling upon him to furnish his explanation with respect to allegations mentioned therein. The said allegations reveal that there was a gross negligence on the part of the petitioner in collecting the octroi on certain material at the prescribed rate; secondly, misuse of funds in making payment of telephone bills; and thirdly, misuse of funds in repairing of the official car. Petitioner submitted the reply on 24-9-1999 (Annexure P/2) denying all the allegations. However, the [ENTITY] Government passed the order dated 6-1 -20 (Annexure P/ 4) putting the petitioner under suspension and holding the judicial inquiry. Being aggrieved and dissatisfied, petitioner preferred [CASE NUMBER], which was disposed of by this Court vide order dated 17-1-2000, directing the petitioner to file a representation before the Competent Authority to consider his application for withdrawal of the suspension order. While issuing such direction, the Court placed reliance upon the judgment of this Court in [PRECEDENT] v. [ENTITY] of Rajasthan, AIR 1985 Raj 65, wherein it has been held that before filing a writ petition challenging the suspension order, the person concerned should make a representation for its revocation before the [ENTITY] Government. Petitioner filed a representation before the Competent Authority on 29-1-2000 (Annexure P/5), which has been dismissed by the [ENTITY] Government vide order dated 16-3-2000 (Annexure P/6). Hence this writ petition.
3. Initially, the [ENTITY] Government had taken a decision to hold an inquiry and as there was an apprehension that petitioner may affect the fate of the inquiry, his suspension was found to be necessary. Petitioner's representation for withdrawal of suspension order was rejected vide order dated 16-3-2000 (Annexure P/6) on the ground that as there were serious complaints against the petitioner of misuse of funds and favouring particular persons in charging the lesser rate of octroi etc., a preliminary enquiry was held and prima facie the Government was satisfied that the Chairman and the Executive Officer had committed the misconduct and both of them were given show cause notice on 17-7-1999 to furnish their explanation and after considering their reply, the Government took a decision to hold an inquiry under [SECTION] of the Act, to refer the matter for judicial inquiry and to put the Chairman under suspension. It was, also, decided to proceed against the Executive Officer under [SECTION] the [ACT] (for short, -the [ACT]"). The objections raised by the petitioner in his representation against the suspension order are not worth merit as the Executive Officer has also been dealt with under [SECTION] of the [ACT], the Chairman cannot shift his entire responsibilities on him and he has to be dealt with separately under the provisions of [SECTION] of the Act, which provides a special procedure and as the judicial inquiry has also begun, there was no justification in revoking the suspension order.
4. Undoubtedly, suspension of a public representative is a matter of serious concern because the duly elected person loses his status during the suspension period and the loss is of such an immense nature that it cannot be compensated in terms of money or the harm cannot be undone by any other means. Therefore, the suspension order should be passed with great care and circumspection. (Vide Prem Prakash v. [ENTITY] of Rajasthan. 1993 (1) WLC 567. Moreso, the reply of the petitioner, in response to the show cause notice after preliminary enquiry, should be dealt with properly. (Vide Nauratan Mal Tak v. [ENTITY] of Rajasthan, 1999 (2) WLC 186.
5. There is a catena of decisions of this Court laying down that an elected representative should not be suspended putting him at par of a Government employee, for the simple reason that in a democratic set up, the duly elected officer is to be considered entirely on a different padestal than that of the Government employee and gravity of the charges should be of high magnitude warranting suspension of the erring elected officer. (Vide Bajrang Lal v. [ENTITY] of Rajasthan, 1981 WLN 32 : (AIR 1981 Raj 298 and [PRECEDENT] (supra).
6. Mr. [ENTITY] has placed very heavy reliance upon the judgment of this Court in Nand Lal v. [ENTITY] of Rajasthan, 1996 (2) WLC 497: (1996 AIHC 1818), wherein this Court has categorically held that suspension should not be resorted to in case of an elected public officer unless there is something imminently grave. Suspension should not be used as a hand-tool for disgruntled political rival since it destroys the very institute and it must be used sparingly where the allegations against the delinquent office-holder is of flagrant abuse of power. The Court held as under ;
The inquiry is being held by the Senior Judicial Officer of the [ENTITY] of Rajas than and I cannot subscribe the view that the person like the petitioner in case he remains the Chairman of the Board, would cause an embarassment to the Enquiry Officer or that inquiry would be prejudiced in any way."
7. The aforesaid observation cannot be considered having any universal application for the reason that this Court, in Smt. Rameshwari Devi Mewara v. [ENTITY] of Rajasthan, AIR 1999 Raj 47, has held that Judicial Officer, who held the inquiry therein, was not only unknown to any judicial norm but had made the inquiry report on extraneous consideration.
8. In Chimna Ram v. [ENTITY] of Rajasthan, S.B.C.W.P. No. 458/2000, decided on 24-4-2000, this Court not only expressed its displeasure in the manner in which the so-called judicial inquiry had been held but also made the following observations :
"In view of the above, the Court reached the inescapable conclusion that the judicial inquiry held in this case was a mockery and slur on the democratic set up in any civilised society."
9. The aforesaid conclusion was reached on the ground that in the judicial inquiry, the Chairman of Municipal Board, Pipar, was found to be guilty of the charges under [SECTION] of the Act though the charge under Clause (i) had never been levelled against the said Chairman, nor the ingredients of Clause (xii) were involved even in the charge-sheet; the so-called judicial inquiry was held to be a device to remove the said Chairman and was found amounting to colourable exercise of power.
10. A Division Bench of this Court, in Jagdish Singh v. [ENTITY] of Rajasthan. 1999(3) [CASE NUMBER] has held that in a society like ours which suffers from moral bankruptcy, there can be no dearth of instances even on the highest levels in all walks of life of giving a go-bye to the statutory rules or the administrative exigency.
11. In the [PRECEDENT] the Hon'ble Supreme Court observed that there was a presumption of non-abuse of power when it was vested in the high ranking officer, However, this view stood diluted with the passage of time and change in the moral values of the society. In [PRECEDENT] the Hon'ble Supreme Court, in a similar situation, made the following observations (at page 598 of AIR) :
"It cannot be said, now-a-days, if one is aware of the facts and currents of life that simply because categorisation and judgment of service record of the officer are in the hands of senior officers, is a sufficient safeguard. There has been considerable erosion in the intrinsic sense pf fairness and Justice in the senior officers by all concern. From the instances of conduct of many, some of the Senior Officers and men in high position, it cannot be said that such erosion is not only unjustified."
12. Similar view has been expressed by the Hon'ble Supreme Court in [PRECEDENT] observed as under (at page 173 of AIR) :
"It is trite to say that the individuals are not and do not become wise because they occupy high seat of power and good sense, circumspection and fairness, does not go with the posts however high they may be. There is only a complasant presumption that those who occupy high post, have high sense of responsibility. The presumption is neither legal nor rational. History does not support and reality does not warrant it."
13. Undoubtedly, the law does not acknowledge and recognise such a presumption. No doubt, u/[SECTION], [SECTION] of the [ACT], there is a presumption been that official acts have regularly been performed, but the presumption is rebuttable. The law presumes and the Court must also presume until the contrary is established that the official acts will be done fairly and objectively as the authorities under the Statute are presumed to, and expected to, act consistent with the public interest and the interest of law. (Vide [ENTITY] through [PRECEDENT]; [PRECEDENT]; and [ENTITY] of Bihar v. Subhash Singh, AIR 1997 SC 1390. Therefore, the aforesaid observations of this Court, so heavily relied upon by Mr [ENTITY], cannot be taken to be having some merit. Moreso, the same cannot be applied universally without having any rider.
14. A Division Bench of this Court, in Jan Mohammed v. [ENTITY] of Rajasthan, 1992 (2) WLC 463, held that taking a decision to hold a regular inquiry by the Government is a condition precedent for passing a suspension order. This view stands fortified by the Full Bench judgment of this Court in Bhura Lal v. [ENTITY] of Rajasthan. 1988 (1) RLR 945, wherein the analogous provisions of the [ACT] and [SECTION] of the Rules framed thereunder, were considered and the Court came to the conclusion that the elected office-bearer can be put under suspension the moment the [ENTITY] Government takes a decision to hold a regular inquiry against him. The Court held as under :
"The [ENTITY] Government has power to suspend a Sarpanch when it is satisfied, after carefully considering the report of the preliminary enquiry when it found a prima facie case made out against the delinquent elected officer, the [ENTITY] Government decides not to drop the proceedings but a statement of charges, prima facie made out against him, is drawn up specifically such details as may be considered sufficient for him to understand the nature of the charges.
On the basis of the material placed on the record of the preliminary enquiry and the report of such enquiry, the [ENTITY] Government issued a notice to the erring .Sarpanch.
to show cause in writing why the charges should not be inquired into and such notice is accompanied by a copy of statement of charges. At such stage, the enquiry contemplated under [SECTION] must be taken to have started."
15. A similar view has been taken by this Court after considering a large number of judgments in [CASE NUMBER]. Chandra Prakash v. [ENTITY] of Rajasthan on 23-6-1999 (reported in [PRECEDENT]).
16. In Mohan Lal v. [ENTITY] of Rajasthan, 1963 RLW 209, a Division Bench of this Court has held that a suspension order can be passed under [SECTION] of the [ACT] whenever the Government takes a decision to hold an inquiry. Reliance has been placed upon a Division Bench judgment of this Court in Ugamjee Modi v. [ENTITY] of Rajasthan, 1962 RLW 184, wherein it had been held that proceeding under [SECTION] of the Act must be taken to have commenced against the office-bearer when on those allegations, he was called upon to show cause and to explain his conduct and the Court held that though for the purpose of [SECTION], a preliminary inquiry would be said to have commenced no sooner the cognizance is taken of a complaint by the Government against such officer and proceedings should be taken to have commenced in the manner of the term under [SECTION] only when process is ordered to be issued 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 proceeding for the purpose of [SECTION] of the Act.
17. In the instant case, petitioner had been given a show cause notice to explain certain allegations against him; he filed the reply which was considered by the Government and the Government took a final decision to hold an inquiry. The Enquiry Officer was appointed on 6-1-2000 and he was sent the copy of the charges to be inquired into by him (Annx. R/1). Therefore, it cannot be held that the Government was not competent to pass the order of suspension at that point of time.
18. Thus, the only point left to be determined in the case is : whether the order of suspension can be held to be arbitrary/ unreasonable in the facts and circumstances of the case?
19. Initially, three charges had been levelled against the petitioner and the first one was regarding not charging the octroi at the rate prescribed by the [ENTITY] Government and for which the Municipal Board suffered a loss of Rs. 21,37,932/-. The plea raised by the petitioner that he had not been aware of the enhanced rate before 5-3-1998 and he passed the order raising the octroi rate on 6-3-1998 immediately after knowing the factum of enhancement of rate of octroi, is a question of fact to be determined in the inquiry regarding telephone bills. Undoubtedly, the charge against the petitioner that he had misused it from 16-11-1994 to March, 1995 and the bill came to the tune of Rs. 28,513/-; and also from March. 1995 to August, 1995, must not be correct for the reason that petitioner became the Chairman of the Municipal Board only in August, 1995. Even if the charge is considered from August, 1995 till it was levelled, the amount of telephone bill is too excessive. Petitioner's plea that there is no ceiling limit prescribed for telephone bill, does not seem to be correct in view of the reply filed by the respondents, wherein the reference has been made to the circular dated 14-3-1997 issued by the Government prescribing the maximum limit of Rupees 1000/- for local calls and Rs. 500/- for outstation calls for the Chairperson of the Third and Fourth Class Municipalities and Gulabpura is said to be a Third Class Municipality, though the telephone bills during the relevant period from August, 1995 to March 31, 1999, had been shown several times higher than the prescribed limit. The charge of spending Rs. 90,090/- on repairing of the official car may also be a subject-matter of inquiry for the reason that the respondents have filed the invoice dated 6-3-1997, by which the brand new car was purchased. It is nobody's case that the vehicle had met an accident and a major repairing was required. Spending the huge amount of Rs. 90,090/-on a brand new car purchased only on 6-3-1997 seems to be excessive. However, all these matters have to be considered by the Enquiry Officer and these issues cannot be decided at the threshold in writ jurisdiction.
20. Similarly, there has been serious dispute regarding service of notice of the Judicial inquiry upon the petitioner. The process server had filed an affidavit on 21-4-2000 that petitioner did not accept the notice and in para 3 of the affidavit, it has been mentioned that the petitioner had forced him to put his signatures on a blank "stamp paper and the same may be misused by him. The veracity of the contents of this affidavit cannot be examined in these proceedings. But in a case where there are allegations and counter-allegations by the parties even on the matter of service of notice, the apprehension of the respondents that in case petitioner is not put under suspension he may affect the result of the inquiry, is not without substance, Moreso, the inquiry is pending since 6-1-2000 and the allegations made against the petitioner are mostly to be proved on the basis of documentary evidence. It is a case where allegations made against the petitioner are of a grave nature and may amount to flagrant abuse of power, if proved. Moreso, if his suspension order is recalled/quashed the possibility of his influencing the witnesses and tampering with the record cannot be ruled out. Thus, in the facts and circumstances of the case, I am not inclined to interfere with the suspension order.
21. The petition is dismissed. However, the respondents are directed to conclude the inquiry expeditiously. In case petitioner does not co-operate with the inquiry, the officer may record the reasons and proceed ex parte strictly in accordance with law and submit his report to the Government. The Government is requested to pass appropriate order on the said report expeditiously, thereafter for the reason that the term of petitioner may be expiring in the second week of August, 2000. There shall be no order as to costs.