1 S.B.CIVIL WRIT PETITION NO.5233/2008 (Ashok Kumar Machhi Vs. State of Rajasthan & ors.) Date of Order :: 15th April 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Rajesh Joshi for the petitioner Mr.Anand Purohit, Addl. Advocate General Learned counsel for the petitioner submits that in view of the changed circumstances, the petitioner does not want to proceed with the writ petition against the respondent No.3. At the request of learned counsel for the petitioner, the name of the respondent No.3 is deleted from the array of parties. Though the matter has been placed today for orders in relation to service on the respondent No.3 but with the name of the respondent No.3 having been deleted from the array of parties and for the subsequent development particularly of the judgment of the Hon'ble Division Bench dated 12.11.2008 in SAW No.958/2008 and SAW No.203/1998 having been brought to the notice of the Court; at the request and with the consent of learned counsel for the parties, the matter is taken up for final disposal by this order. This writ petition has been filed against the order dated 26.07.2008 (Annex.15) as passed by the Secretary to the Government of Rajasthan in its Local Self Department (Annex.15) putting the petitioner, then holding the office of the 2 Chairperson of Municipal Boardl, Nagaur, under suspension under Section 63 (4) of the Rajasthan Municipalities Act, 1959 ('the Act') with reference to the facts that there had been a complaint against the petitioner and on charges having been primarily established in the preliminary enquiry, he was served with notice asking for his explanation per Section 63 of the Act; and for his having failed to file reply and Government deciding to put the matter to judicial enquiry, the petitioner was required to be suspended. In this writ petition, this Court took note of all the facts and circumstances and history of the case in its order dated 17.10.2008 and stayed the effect and operation of the suspension order dated 26.07.2008. It appears that the notice dated 25.06.2007 (Annex.8) asking explanation from the petitioner, was put to challenge by him in CWP No.4213/2008 that was dismissed by the learned Single Judge of this Court on 05.03.2008. This order dated 05.03.2008 was challenged by the petitioner in intra-court appeal, SAW No.203/2008. On the other hand, the order dated 17.10.2008 as passed in this writ petition was challenged by the respondents in another intra-court appeal, SAW No.958/2008. A copy of judgment dated 12.11.2008 as delivered by the Hon'ble Division Bench in disposal of the aforesaid two intra-court appeals has been placed for perusal and therefrom it is apparent that the matter 3 relating to the petitioner has comprehensively been considered and decided by the Hon'ble Division Bench. The Hon'ble Division Bench proceeded to allow the said SAW No.203/2008 holding that there had been no valid, legal and proper enquiry in accordance with proviso to Section 63 (1) of the Act and no further action could be taken. The Hon'ble Division Bench said,- ''Thus, considering the case from either of the stand points, in our view there is no escape from the conclusion, that there has been no valid, legal and proper inquiry, in accordance with the provisions of the proviso to sub-sec.(1) of Section 63 of the Act, under order of competent authority, and/or by the competent authority. As held above, the requirement of preliminary inquiry being sine qua non, and since the same has been found absent, per-force language of sec.63(2), no further action could be taken, nor Annx.8 could be issued. Since we have found the very jurisdictional fact being missing, which vitiates entire subsequent action, we need not go into other factual contentions raised by either side and arguments advanced, whether they be on aspect of involvement of writ petitioner, or gravity of charges, or mala fides, or existence of considerations, and application of mind, on the question of suspension of petitioner. The result of aforesaid discussion is, that Appeal No.203/08 is required to be, and is allowed, the impugned order is set aside, the writ petition filed by the petitioner is allowed, and the communication/order Annx.8 is quashed. It is however clarified, that it will be open to the respondents, if State considers it necessary, to hold fresh inquiry, and to proceed afresh thereafter.'' So far other appeal SAW No.958/2008 as filed against the interim order in this writ petition was concerned, the 4 Hon'ble Division Bench specifically held that when the very basis on which decision was taken by the State Government to order judicial enquiry having been quashed, subsequent and consequent action of suspension automatically stands wiped out and the writ petition and appeal remain only academic. The Hon'ble Division Bench said,- ''Coming to appeal No.958/08, apart from the fact, that this appeal has been filed against only ad-interim order, staying operation of suspension order, while issuing notice to other respondents, making it returnable in four weeks; in view of the fact, that the very basis, being Annx.8 on the basis of which decision was taken by the State Government to order judicial inquiry, has been quashed; subsequent and consequent action of suspension, automatically stands wiped out, and the writ petition and appeal only remain academic. Consequently, in view of quashing of communication dated 25.06.2007, while deciding SAW No.203/08, this Appeal is dismissed.'' When the very basis of passing of the impugned suspension order dated 26.07.2008 (Annex.15) is wiped out per the force of the aforesaid decision of the Hon'ble Division Bench, nothing further survives for consideration in this writ petition that is rendered infructuous. In fact, for all practical purposes, the entire matter as involved in this writ petition stands concluded with the aforesaid decision of the Hon'ble Division Bench. In the light of and following the aforesaid decision of Hon'ble Division Bench dated 12.11.2008, this writ petition is dismissed as infructuous. 5 (DINESH MAHESHWARI),J. MK