R. P. Dubey v. State of M. P. — 1993 DIGILAW 438 (MP)

ORDER Gulab C. Gupta, J. -- 1. "Mountain of a mole hill", is perhaps the best description of the petitioner's grievance, as canvassed in this writ petition, filed under Article-226 of the Constitution. He has been put under suspension pending departmental enquiry by order dated 23.11.1991 (Document No. 16) and in order to challenge legal validity thereof, he challenges vires of section 54 (1) of M.P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act) and the appointment of respondent No.3 as the Commissioner, Municipal Corporation, Jabalpur, and claims a writ a/certiorari and quo-warranto for the purpose. 2. The petitioner is admittedly employed as an Engineer in the Municipal Corporation at Jabalpur. The said Municipal Corporation is governed by the provisions of the Ad and the authority thereof is now vested in the respondent administrator appointed by the State Government for the purpose. The respondent State Government has also appointed the respondent No.3 as Commissioner vide order dated 30th September, 1991 (Annexure 3-A). A perusal of this order indicates that the respondent No.3 was at that time working as Commissioner, Municipal Corporation, Dewas, which is also governed by the provisions of the Act. It appears that there were charges against the petitioner relating to performance of his duties and it was considered necessary to hold a departmental enquiry into them. Pending departmental enquiry, it was decided to put him under suspension. The order (Document No. 16) indicates that it is signed by the respondent No. 3, but it mentions that the petitioner was being put under suspension " vkns"k ", in accordance with the order. The order, however, does not mention as to who was the authority, ordering the same, but a copy of this order is endorsed to the respondent administrator for information. Thereafter, on 7.1.92 a charge-sheet has been issued, leveling 5 charges, amounting to dereliction of duty, not maintaining proper control and supervision of subordinate officials causing financial loss to the Corporation and entering into compromises in an illegal manner. Before the enquiry could proceed further, the petitioner filed the present writ petition in this Court on 6.3.1992, challenging legality and validity of not only his suspension, but also the appointment of respondent No. 3 and constitutional validity of section 54 (1) of the Act. 3. Before the enquiry could proceed further, the petitioner filed the present writ petition in this Court on 6.3.1992, challenging legality and validity of not only his suspension, but also the appointment of respondent No. 3 and constitutional validity of section 54 (1) of the Act. 3. The submissions of the petitioner arc: firstly, section 54 (1) of the Act is ultra vires Articles 14 & 16 of the Constitution, inasmuch as, it confers unguided discretion on the State Government to appoint a Commissioner and thereby violates the Constitutional mandate. It is specifically submitted that the said provision docs not specify the person or class of persons, who may be appointed as Commissioner and, therefore, there is complete absence of intelligible differentio, making the provision arbitrary and violative of Article-14. It is also submitted that power given to the State Govt. is very wide, uncontrolled and admits abuse or colourable exercise resulting in discrimination; secondly, it is submitted that the respondent No.3 is a Member of State Municipal Service (Executive) and holds lien on that post. His appointment as Commissioner, therefore, amounts to his holding two substantive posts at the same time, which is not only arbitrary, violating Article-14, but also against F.R. 12-B. It is further submitted that in the past, history of appointment of Commissioner, clearly establishes that persons of the rank of Dy. Collectors were usually appointed, but the respondent No. 3 does not belong to that rank and, therefore, his appointment is illegal deserving quashing by issuing a writ of quo-warranto. As regards suspension and issuance of charge-sheet, it is submitted that they are contrary to Rule-9 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, inasmuch as, they haw not been issued by the disciplinary authority. It is further submitted that the showing in the return that suspension is directed by the Administrator is a fraud and documents prepared only for the purposes of this writ petition. It is also submitted that it is a case of mala fide exercise of power by the respondent No.3 and hence suspension and charge-sheet deserve to be quashed. The respondents have filed their return and have denied allegations of illegality and mala fides. In the return filed by the respondents 2 & 3, it has been specifically stated that the order of suspension was passed by the then Administrator, Shri Gopal Reddy, I.A.S.. The respondents have filed their return and have denied allegations of illegality and mala fides. In the return filed by the respondents 2 & 3, it has been specifically stated that the order of suspension was passed by the then Administrator, Shri Gopal Reddy, I.A.S.. Shri Reddy has also given his affidavit dated 27.3.1992 (Page-100 of Paper Book) stating that he has, after application of his mind, ordered the petitioner's suspension and enquiry into the matter by the respondent No.3. He has also stated that the charge-sheet was issued after obtaining his approval. It is, therefore, submitted by the respondents 2 & 3 that the whole action has been taken in accordance with law and, therefore, there is no justification for seeking intervention of this Court. 4. As regards constitutional validity of section 54 (1) of the Act, it must, at once, be mentioned that it empowers the State Government to appoint a Commissioner for the Corporation for a renewable period not exceeding rive years. Sub-section (2) of this section provides that the Commissioner so appointed would be removable from office, if at a meeting of the Corporation anu not less than three-fourth of the total number of Councilors constituting the Corporation for the time being shall vote in favour of a proposition in this behalf, and he may be removed by the Government at any time, if it appears to the Government that he is incapable of performing the duties of his office or has been guilty of any misconduct or neglect; which renders his removal expedient. Proviso to this section clarifies that if the Commissioner holds a lien on any post under the Government, he may be recalled at any time by the Government. Section-55 of the Act clarifies that the Commissioner shall be principal executive officer of the Corporation and all other officers and servants of the Corporation, except the servants and officers of the Corporation office shall be subordinate to him. He shall have the right to speak at, and otherwise take part in any meeting of the Corporation or any Committee thereof, but shall not be entitled to vote or to move any proposition Sections 56 & 57 of the Act provide for salary and conditions of service and the arrangements to be made during his temporary absence on leave. He shall have the right to speak at, and otherwise take part in any meeting of the Corporation or any Committee thereof, but shall not be entitled to vote or to move any proposition Sections 56 & 57 of the Act provide for salary and conditions of service and the arrangements to be made during his temporary absence on leave. Section 56 (1) empowers the Government to prescribe monthly salary and allowances of the Commissioner from time to time and sub-section (2) thereof provides that when a person appointed as a Commissioner hold lien on a post under the Government, conditions of service shall be laid down by the Government, but in relation to all other persons condition of service would be such as may be laid down by byelaws framed by the Corporation. As regards powers and duties of the Commissioner, one has to go through various provisions of the Act, as he is concerned with the entire administration of the Corporation. Since there is no dispute between the parties about the fact that a Commissioner is required to be responsible for entire administration of the Corporation, it is not necessary to quote those provisions. The fact remains that a Commissioner is appointed for purpose of discharging specified statutory functions and obligations. In spite of it, it is dear that section-54 of the Act docs not provide any other qualification for appointment of a Commissioner except that he must be capable of performing the duties of his office. The aforesaid section also provides that even a Government servant holding lien on a post under the Government may be appointed as a Commissioner. Question requiring consideration is 'whether this provision confers unguided, unchannelised and arbitrary discretion on the Government and, therefore, offends Articles 14 & 16 of the Constitution. As regards law, it is dear that legislatures in India have, consistent with their sovereign character, wide powers of delegation, which is only subject to one important imitation, i.e., that the legislature cannot delegate essential legislative functions, which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. (See Harishankar Dagia and another v. The State of Madhya Pradesh ( AIR 1954 SC 4 (5). (See Harishankar Dagia and another v. The State of Madhya Pradesh ( AIR 1954 SC 4 (5). In Hamdard Dawakhana v. Union of India (AIR 1966 SC 554) para-15, it was clarified that the legislature cannot delegate unchannelised and uncontrolled power and the power delegated must not be unconfined and vagrant and it must be canalised within banks that keep it from overflowing. The decisions in The State of West Bengal v. Anwar Ali Sarkar and another ( AIR 1952 SC 75 ) & State of Maharashtra v. Mrs. Kamal Kumar Barkule & others ( AIR 1985 SC 119 ) also contain the same law. Under the circumstances, if the aforesaid provision permits arbitrary and uncanalised exercise of discretion, the same would be violative of not only the aforesaid law, but also Articlc-14 of the Constitution. 5. As regards Artidc-14, some later decisions may also be noticed in The Registrar of Co-operative Societies and another v. K. Kunjabilla and others ( AIR 1980 SC 350 ), the Supreme Court considered similar submission in relation to the power of the Government, u/s. 62 of Madras Co-operative Societies Act, entitling them to exempt societies from application of the provisions of the Act. The said provision was claimed to be 'Henry VIII Clause' and hence void. The Supreme Court considered the Constitutional limits of delegation and reaffirmed that the legislature cannot delegate its essential legislative function. The Court also held that, "Legislate it is must by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provision of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is valid." Applying the aforesaid law, the Court referred to the preamble, the scheme and other material and found clear guidelines. Since the objectives were clear and the power was given to the State Government, which was expected to exercise to advance the policy and' objects of the Act, it was held that the Act was not void. Since the objectives were clear and the power was given to the State Government, which was expected to exercise to advance the policy and' objects of the Act, it was held that the Act was not void. Earlier a Division Bench of this Court in Collective Farming Society Ltd., Lilakheri v. State of M.P. ( 1974 JLJ 16 ) had taken the same view in relation to section-91 of the M.P. Co-operative Societies Act and has found guidelines in the object, status of the authority and was held to be valid. The fact that the power was given to the Slate Government was also taken into consideration. This law seems to have been applied in some other disciplines as well. In Ajit Singh v. The Chief Election Commissioner of India and others ( AIR 1989 SC 2255 ), the power of the Chief Election Commissioner to appoint a Secretary was under challenge. The said appointment was left to the discretion of the Chief Election Commissioner and was challenged as conferring upon him arbitrary power. The Supreme Court did not accept the challenge, as according to it, the person so appointed was by very nature of duty required to be a person of confidence of the Chief Election Commissioner and since Chief Election Commissioner was a responsible constitutional functionary, conferring power on him to appoint the Secretary cannot be treated as arbitrary. The challenge was, therefore, negatived. The decision in Bhandara District Central Co-operative Bank Ltd. and others v. State of Maharashtra and another ( AIR 1993 SC 59 ) also follows the same logic and upholds the Constitutional validity of section 73-A of Maharashtra Co-operative Societies Act, which authorised the Slate Government to nominate a "designated officer". The provision did not provide the guideline and hence the power was claimed to be violative of Article-14. The Court held that, "it is not necessary to have the guideline in express terms in the very section dealing with delegation. The entire Act is available for this purpose." (para-7). The Court ultimately held that the Act clearly specifies the policy and, therefore, the exercise of power has to be in accordance with the said policy. The Court, therefore, held that the discretion by the Govt. will be exercised in a manner, which would advance the policy, and found nothing arbitrary in the provision. The Court ultimately held that the Act clearly specifies the policy and, therefore, the exercise of power has to be in accordance with the said policy. The Court, therefore, held that the discretion by the Govt. will be exercised in a manner, which would advance the policy, and found nothing arbitrary in the provision. It is, therefore, clear that in order to consider whether the Act provides unchannelised and arbitrary discretion in the Government, the Court will look not only the particular section, but the entire Act, its objects and the policy behind it and then decide whether the conformant of power was arbitrary. The functions to be performed by the Commissioner are clearly stated in various provisions of the Act. Those functions, it is not disputed, are intended to provide a truly local self-Government and work the same in accordance with democratic norms. The Commissioner being the principal executive officer is required to carry out those functions and, therefore, a person to be appointed as a Commissioner must be capable of performing his duty of office. This, in the opinion of this Court, provides sufficient guideline. The proviso to section 54 clearly indicates that even a person holding a lien on any post under the Government may be appointed as a Commissioner indicating that a person with necessary administrative skill and not a novice or a beginner, is required to be appointed. The fact that this power has been conferred on the State Government is the sure guarantee that the appointment will be of a person, who would be capable of performing his duties of his office. There is, therefore, sufficient guideline available in the matter and, therefore, this Court does not find any substance in the submission that the provision is violative of Articles 14 & 16 of the Constitution. The submission is rejected. 6. As regards the arguments based on convention that earlier only DY. Collectors were appointed, suffice it to say that simply because few persons had been appointed, who were holding the rank of Dy. Collector, the appointment of Dy. Collector has not become a customary law. It may be that earlier persons capable of performing duties of the office of Commissioner were not available to the Government and, therefore, Deputy Collectors, who had administrative ability, were chosen for the purpose. Collector, the appointment of Dy. Collector has not become a customary law. It may be that earlier persons capable of performing duties of the office of Commissioner were not available to the Government and, therefore, Deputy Collectors, who had administrative ability, were chosen for the purpose. The respondent No.3 was at the time of his appointment working as a Commissioner at Municipal Corporation, Dewas and, therefore, it is reasonable to assume that he has the necessary capabilities. He, even according to the petitioner, belongs to the cedre of Chief Municipal Officer. A perusal of the provisions of Municipalities Act would indicate that a Chief Municipal Officer is also required to perform somewhat similar functions and that appears to be the reason why the respondent No.3 was appointed as Commissioner at Dewas. An experienced Administrative Officer, trained in particular discipline, has, therefore, been preferred to Deputy Collectors, who only have general administrative abilities. This preference, in the opinion of this Court, cannot be held to be arbitrary or unjustified. The challenge to the power of the State Government on the ground of Article-14 must, therefore, fail. The submission that the Res. No.3 is holding two posts at the same time is based on misreading of section-54 of the Act. Even if it be assumed that be belongs to the State Municipal Service (Executive) and holds lien on the post of Chief Municipal Officer, that would not disentitle him to be appointed to the post of Commissioner. Holding lien un the post of Chief Municipal Officer would also nut mean that he is holding two posts. The petitioner has nut properly appreciated the provisions ufsectiun-54 (1) of the Act, which does nut contemplate any permanent appointment to the post of Commissioner, but contemplates a tenure appointment, renewable after 5 years. Under the circumstances, the argument must be held to be devoid of substance. . 7. This takes us to the consideration of the moot question of this writ petition, i.e., the suspension and issuance of charge-sheet to the petitioner. The submission of the learned counsel for the petitioner is that the matter is covered by the provisions of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 and the reliance has been placed on Rule-9 (1) of the said Rules, which provides for authorities entitled to suspend a Government servant. The submission of the learned counsel for the petitioner is that the matter is covered by the provisions of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 and the reliance has been placed on Rule-9 (1) of the said Rules, which provides for authorities entitled to suspend a Government servant. It is the petitioner's own case that appointing authority, in relation to the petitioner, is Standing Committee of the corporation and since the standing Committee has been dissolved and its power vests in the respondent Administrator because of section 423 (1) (c) of the Act, it is the Administrator, who is the appointing authority and, therefore, also the disciplinary authority. It is submitted that since the impugned-order of suspension (Annexure-P/16) has been passed by the Commissioner, it is illegal. The arguments proceeds on' a misconception of fact and hence docs not deserve any serious consideration. It is true that the order has been issued by the Res. No.3 and is also signed by him, but the order has been issued in accordance with the order. The return, filed by the respondents 2 & 3 indicates that it was passed under instructions from the respondent No.2, the Administrator. A copy of the order of the respondent ' Administrator has been filed as "Annexure-A/1". The learned counsel for the petitioner would like this Court to believe that the said order has been created only for purposes of this case and did not actually exist on the date the suspension order was issued. It is really difficult to believe the said statement. It is almost impossible to believe it in the context of the affidavit filed by Shri M. Gopal Reddy, the then Administrator, wherein he has categorically stated that he had, on receipt of the complaint, got a preliminary enquiry made and when he was, prima facie, satisfied that a departmental enquiry was necessary, he ordered suspension of the petitioner. There is no reason why an officer of the category of Mr. Reddy, should file the false affidavit. It was admitted at the time of oral hearing of this petition that Shri Reddy is no longer the Administrator and is now working as the Collector at Chinaware. The petitioner could have, if he so liked, obtained an affidavit to the contrary from him. It is difficult to believe' that Shri Reddy would have obliged the petitioner. It was admitted at the time of oral hearing of this petition that Shri Reddy is no longer the Administrator and is now working as the Collector at Chinaware. The petitioner could have, if he so liked, obtained an affidavit to the contrary from him. It is difficult to believe' that Shri Reddy would have obliged the petitioner. This Court is, therefore, fully convinced that the order (Annexure-P/16) was passed, pursuance to the order passed by the Administrator. The fact that the Administrator had subsequently acted as Enquiry Officer would justify this conclusion. In this view of the matter, there would be no scope for the argument that suspension was ordered by an authority, who was not entitled to pass the said order. 8. As regards law on the subject, Courts are always reluctant to interfere with the order of suspension and do so only when a clear-cut case of breach of statutory provision or Mala fide is made out. In this connection, the decisions of Supreme, Court in S.A Khan v. State of Haryana ( AIR 1993 SC 1152 ) and Government of Andhra Pradesh v. V. Shivaraman (AIR 1990 SC 115) may be looked into. As noticed earlier, there is no breach of statutory rule, as the order has been passed by the administrator, who is the appointing as also the disciplinary authority. This is on the assumption that the Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 apply, for which there appears to belittle material, on record. 9. As regards mala fide, the decision in Rajendra Rai v. Union of India ( AIR 1993 SC 1236 ) may be taken into consideration. This case clearly establishes that though it may not always be possible to establish malice infact in a straight-cut manner, in proper cases, it is possible to draw reasonable inference of Malafide action from the pleadings and antecedent facts and circumstances provided that there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. If the facts of the case are considered in the context of the aforesaid law, there would be no justification whatsoever for drawing any inference of malice. The letter of the respondent No.3 seeking clarification from the petitioner about the part played by him in the matter of encroachment is said to be indicating malice. If the facts of the case are considered in the context of the aforesaid law, there would be no justification whatsoever for drawing any inference of malice. The letter of the respondent No.3 seeking clarification from the petitioner about the part played by him in the matter of encroachment is said to be indicating malice. It appears that the petitioner was required to report progress in the matter of encroachment removal and in reply, he submitted that the entire encroachment removal had been done under the direction of the respondent No.3 (Pill & P/12). The statement that removal was done under the direction of the respondent No. 3 was contradicted by him vide Annexure P/13 and this is said to be evidence of malice. This Court does not find any basis for drawing inference of malice on this fact. The document (P/12), which is the report of the petitioner would indicate that in para-2 thereof, the petitioner claimed that encroachment removal was done under the directions of the Collector, but at the end, he has written that it was done under the directions of the respondent No.3. If everything was done under the direction and presence of the Collector, there was really no scope for it being done under the directions of the respondent. Since this was likely to create a rift between the Collector and the respondent No.3, the contradiction was perhaps necessary. The Court would even think that the respondent No.3 would have clarified the position himself, instead of seeking clarification; but simply because clarification has been sought, it would not indicate malice. Under the circumstances, this Court finds no justification for the submission that the suspension and issuance of charge-sheet was an act of malice on the part of the respondent No.3. This Court is, on the contrary, of the opinion that both were done at the instance of the Administrator who had, on preliminary enquiry, ordered issuance thereof. 10. Before parting with this case, we would like to mention that the petitioner has, in his enthusiasm to get his suspension revoked, made reckless and unfounded allegations against the Chief executive of the respondent Corporation and would hope that our decision will prompt introspection and he will decide to follow the official discipline and work to promote public interest, for which the respondent Corporation has been formed. 11. Petition fails and is dismissed with costs. 11. Petition fails and is dismissed with costs. Counsel fee Rs. 500/-.