1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R SMT. DHAGLAI V. THE STATE OF RAJASTHAN & OTHERS. S. B. CIVIL WRIT PETITION NO.4489/2007. Under Article 226 of the Constitution of India. DATE OF ORDER ::: 11-04-2008 PRESENT HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI Mr.D. K. Parihar, for Petitioner. Mr. N. M.Lodha, AAG, for Respondents. BY THE COURT: This writ petition is directed against the order dated 11.06.2007, by which the petitioner was placed under suspension pursuant to the provisions of Section 63 (4) of the Rajasthan Municipalities Act, 1959 (hereinafter referred to 'the Act of 1959'). The petitioner has contended that she was elected as Ward Member of the Municipal Board, Pipar city, in the year, 2005. One Guti Devi fought election against her but she 2 lost therein and only with a view to take revenge from the petitioner, Complaint Annexures-3 and 4 was submitted and therein, without calling explanation from the petitioner for violation of the provisions of Section 26 (xii) of the Act of 1959, the order of suspension was passed. It was further contended that the petitioner's husband is a registered contractor since 2002-03. Thus, he was entitled to get the work from Municipal Board, Pipar city. However, when the work was awarded, it was also made clear by the petitioner's husband that he would be unable to do the work as his wife is Member of the Municipal Board. However, ignoring all these aspects, impugned order of suspension was passed. Learned Additional Advocate General, appearing for the respondents, submitted that as per provisions of Section 26 (xii) of the Act of 1959, petitioner's husband could not have taken the contract work of the Municipal Board, Pipar city. It is contended that since there is violation ofSection 26 (xii) of the Act of 1959, hence the order of suspension has rightly been passed after holding preliminary inquiry and, thereafter, even explanation regarding the aforesaid 3 charges was called from the petitioner which too, was submitted. Thus, it was submitted by the learned Additional Advocate General that there exists no ground for challenge to the order impugned. I have considered the rival submissions of the learned counsel for the parties and scanned the matter carefully. Since the order of suspension has been based on the ground of violation of Section 26 (xii) of the Act, 1959, thus it would be gainful to quote the aforesaid provision, for ready reference which reads as under :- “26. General disqualifications for members. (xii) who, save as hereinafter provided, has directly or indirectly, by himself or any member of his family or his partner, employer or employee, any share or interest in any work done or supply made by the order of such board or in any contract or employment with or under or by or on behalf of such board.” 4 Perusal of the aforesaid provision reveals that there is a clear provision for elected members not to engage their relatives for a work of the Municipal Board for which they have been elected. Despite of the aforesaid provision, admittedly, petitioner's husband participated in the contract-work which then was not only awarded but payment thereafter was also received from the Municipal Board, Pipar city, therefore, so far as the violation of Section 26 (xii) of the Act, 1959 is concerned, prima facie, same is made out and the petitioner cannot take shelter that since the contract was awarded by the Executive Officer of the Municipal Board, thus the petitioner had no say therein and in view of the above, violation of Section 26 (xii) of the Act of 1959 is not made out. In fact, whether the work is awarded by the Executive Officer or by the Chairman, it makes no difference so far as violation of Section 26 (xii) is concerned, more so when the fact regarding violation of the aforesaid provision came in the knowledge of the petitioner and petitioner's husband, therefore, it cannot be said that the order of suspension is not passed in accordance with law, more so when even before passing of the order of suspension, the petitioner's 5 explanation was also called. Learned counsel for the petitioner referred to the judgment of this Court in the case of Smt. Vimla Devi v. State of Rajasthan & Others, S. B. Civil Writ Petition No.9729/2007, decided on 17.08.2007 to show that if the allegations are based on documentary evidence, which are otherwise in the custody of the Government and the inquiry in the matter has to be conducted by the judicial officer not below the rank of District Judge, then the suspension order should not be passed. Learned counsel for the respondents, however, submitted that appeal against the said order was filed, however, the same became infructuous in view of the conclusion of inquiry during the pendency of the appeal. I have considered the judgment of this Court in the case of Smt. Vimla Devi (Supra). The aforesaid judgment given by this Court shows that at most care should be given to the facts of the case before passing of the order of suspension so that democratically elected representative may not unnecessarily face the suspension and taking note of the 6 mode adopted in the aforesaid case, necessary judgment was passed. So far as the present matter is concerned, it is a case which is falling under the provisions of Section 63 (1) © and it has already been narrated that there is a violation of provisions of Section 26 (xii) of the Act of 1959. Thus, if prima facie, it is come out that the petitioner has incurred disqualification in view of the provisions of Section 26 (xii), an order of suspension passed thereupon cannot be said to be illegal. In fact, merely for the reason of existence of documentary evidence with the Government, it cannot be said that the order of suspension cannot be passed, otherwise it would amount to re-writing the provisions of Section 63 (4) of the Municipalities Act, 1959. In the present matter, the facts available on record demonstrates and prima facie prove disqualification incurred by the petitioner in view of the violation of Section 26 (xii) of the Act, 1959 which fact is even borne out from the explanation and replies submitted by the petitioner herself and representation made by her husband. In such circumstances, I do not find any error in the order of suspension. However, learned counsel for the respondents 7 was asked as to why the inquiry has not been completed, it was then informed that on last three occasions the petitioner is not co-operating with the inquiry officer thereby the inquiry could not be completed. Looking to the fact that inquiry needs to be completed expeditiously, it is directed that inquiry be completed within a period of three months from the date of receipt of a copy of this order and the petitioner is directed to co-operate with the inquiry officer, so that final result of the inquiry may come out within shortest possible time. With the aforesaid directions, the writ petition is dismissed with no order as to costs. (M. N. BHANDARI), J. scd. 8