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2001 DIGILAW 57 (MP)

State of M. P. v. Om Prakash Gupta

2001-01-16

N.G.KARAMBELKAR, S.P.SRIVASTAVA

body2001
ORDER 1. Feeling aggrieved by the order passed by the Madhya Pradesh Administrative Tribunal, the respondent No. 2, whereunder allowing the claim petition of the contesting respondent No/1, the order dated 12-1-2000, placing him under suspension had been quashed, the State of Madhya Pradesh, the employer has now approached this Court seeking redress praying for quashing of the impugned order dated 31-1-2000, passed by the respondent No. 2, the Tribunal. 2. We have heard the learned Government Advocate in support of the writ petition as well as the learned counsel representing the contesting respondent No. 1, and have carefully perused the record. 3. The facts in brief shorn of details and necessary for the disposal of this writ petition lie in a narrow compass : The contesting respondent white he was posted as Van Kshetrapal (Forest Ranger) was placed under suspension vide the order dated 1-11-1996, passed by the Conservator of Forest, the then appointing authority in view of the submission of the challan in the Court of Special Additional District Judge, Gwalior, wherein he was involved in the commission of an offence under section 13 of the Prevention of Corruption Act, 1988. This criminal case had been initiated at the instance of the Special Police Establishment, Lokayukt, Gwalior. Later on the aforesaid order placing the respondent No. 1 under suspension was revoked by the Governor vide the order dated 4-2-1998, who by that time was the appointing authority on account of the post held by the respondent No. 1 having been made a gazetted post. 4. It may be noticed that in the order dated 4-2-1998. passed by the Governor while reinstating the respondent No. 1 in service it had been indicated that the further orders in the matter relating to the suspension will be passed after the conclusion of the proceedings pending before the criminal Court of the competent jurisdiction. 5. However, the Governor subsequently purporting to implement the direction contained in the first proviso to rule 9(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, passed an order dated 12-1-2000, placing the respondent No. 1 under suspension again with immediate effect. This order, whereunder the respondent No. 1 had been placed under suspension for the second time was challenged before the respondent No. 2, the Tribunal on various grounds. This order, whereunder the respondent No. 1 had been placed under suspension for the second time was challenged before the respondent No. 2, the Tribunal on various grounds. The Tribunal even in the absence of any return/reply proceeded to hear the matter being of the view that it could be disposed of at that stage finally; observing that the facts of the case were no longer in dispute. The Tribunal vide the impugned order allowed the claim petition and quashed the order of suspension dated 12-1-2000. 6. A perusal of the impugned order passed by the respondent-Tribunal discloses that what had weighed with it was that the employer could not be deemed to have any right to place a person under suspension twice on the same ground on which he had been placed under suspension which order had been revoked exercising the discretion vested in the employer in this matter and further that the employer could not behave with discrimination and pick out an employee for meeting him out with a different treatment as compared to those employees who although stood at par with him were meted out with a different treatment. 7. The learned Government Advocate representing the petitioner-employer has urged that the grounds on which the Tribunal had quashed the order placing the respondent-employee under suspension are not sustainable in law. In this connection suffice it to say that so far as the plea of discrimination is concerned, the Apex Court in its decision in the case of Chandigarh Administration and another vs. Jagjit Singh and another reported in AIR 1995 SC 70 S observed-as follows: ....Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law... (Emphasis supplied) 8. In the aforesaid view of the matter, the Tribunal cannot be held to be justified in interfering with the order of suspension accepting the plea of discrimination which could not be deemed to be available to the respondent No.1/employee not only in law but also in view of the absence of the necessary pleadings in this regard. 9. The other ground on which the Tribunal had chosen to interfere in the order of suspension is also untenable in law. In this connection, it should not be lost sight of that the employer/appointing authority acting under a statutory provision is always vested with enough jurisdiction so as to make it possible for it to rectify any mistake committed by it. In this connection, it should not be lost sight of that the employer/appointing authority acting under a statutory provision is always vested with enough jurisdiction so as to make it possible for it to rectify any mistake committed by it. There may be a case where some statutory provision is overlooked or defect of such a nature comes to light which requires to be removed at the earliest. Such a jurisdiction is quite different from the jurisdiction to review. Review is a creature of statute. In the absence of a statutory provision vesting the authority with the power to review its own order, it is neither possible nor permissible for such an authority to embark upon a course for reviewing the order passed by it earlier. The rectification of a mistake cannot be confused with the power to review. 10. In the present case the relevant statutory provision stipulates that when a challan for a criminal offence involving corruption or other moral turpitude is filed against a Government servant, he shall invariably be placed under suspension. There may be a case where in ignorance of this provision and not noticing the rigour of the same, an order is issued in flagrant disregard of the same. The concerned authority may, in such a case rectify its own mistake. This, however, will not amount to review as envisaged under rule 29 of the aforesaid Rules which power can be exercised within the limitations attached to the same. 11. In the aforesaid view of the matter, the view of the respondent- Tribunal to the effect that the employer has no right to place a person under suspension twice on the same ground on which he had been placed under suspension and revoke the same at the discretion after two years is not liable to be affirmed. 12. It is not disputed that on the date when the first order placing the respondent No. 1 under the suspension had been passed, the first proviso to rule 9(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 had been brought into force as it had come into effect with effect from 17-4-1996. 13. The State Government had revoked the order of suspension of the respondent No. 1 vide the order dated 4-2-1998. 14. 13. The State Government had revoked the order of suspension of the respondent No. 1 vide the order dated 4-2-1998. 14. At this stage, it may be noticed that while the first proviso to rule 9(1) of the Rules referred to hereinabove required that a Government Servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against him, the provision contained in the proviso to rule 9(5)(d) of the said Rules clearly indicate the saving of the jurisdiction of the State Government for revoking such an order for reasons to be recorded. It is, therefore, obvious that for the Governor, rigour of the first proviso to rule 9(1) of the said Rules stood relaxed and it was left open to the State Government to pass any order in the matter relating to the suspension even if the said order had been passed taking into consideration the first proviso to rule 9(1) of the said Rules. This jurisdiction as envisaged under the said rule could be exercised by the State Government alone and not by any other authority. 15. The learned counsel for the respondent No. 1 while supporting the impugned order passed by the Tribunal has urged that the order dated 12-1-2000, passed by the State Government had been passed in the exercise of the jurisdiction of the review as envisaged under rule 29 of the aforesaid Rules. The contention is that the earlier order passed by the State Government dated 4-2-1998, had to be taken to be an order passed in the exercise of the jurisdiction envisaged under rule 9(1)(5)(d) of the Rules and the order dated 12-1-2000 could only be passed in the exercise of the jurisdiction of review envisaged under rule 29(1) of the Rules as there is no other provision whereunder such an order could be passed. 16. 16. In the aforesaid connection, it has been urged by the learned counsel for the respondent No. 1 that the jurisdiction envisaged under rule 29(1) of the Rules could be exercised if at all within a period not later than 6 months as has been clearly stipulated under that provision but in the present case since the earlier had been passed on 4-2-1998, by 12-1-2000, on which date the second order had been passed, the limitation having been expired, the Governor ceased to have any jurisdiction to interfere in any manner in the earlier order dated 4-2-1998. 17. The learned Government Advocate representing the petitioners, however, urged that the limitation referred to in rule 29(1) of the Rules has been prescribed only in regard to those matters where the power of jurisdiction to review is sought to be exercised by an Appellate Authority. So far as the other authorities referred to in rule 29(1)(i) and (ii) are concerned, there is no such limitation prescribed. 18. The provision contained in rule 29(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, provides as under: 29. So far as the other authorities referred to in rule 29(1)(i) and (ii) are concerned, there is no such limitation prescribed. 18. The provision contained in rule 29(1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, provides as under: 29. (1) Notwithstanding anything contained in these rules except Rule 11.-- (i) the Governor; or (ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariate), under the control of such head of a department, or (iii) the Appellate Authority, within six months of the date of the order proposed to be reviewed, or (iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may -- (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose; any of the penalties specified in clauses (v) to (ix) of rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14(xxx) and except after consultation with the Commission where such consultation is necessary: Provided further that no power to review shall be exercised by the head of department unless -- (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. *** *** *** 19. A perusal of the aforesaid rule clearly indicates that the provision relating to the limitation of 6 months is in respect of the authorities referred to in rule 29(1)(i), (ii) and (iii) of the Rules. The use of word "or" in the aforesaid rule is indicative of the fact that the power of review could be exercised by any of the authorities referred to in the rule 29(1)(i), (ii) and (iii) of the Rules within a period of 6 months and not thereafter. 20. In the present case, the undisputable and irrefutable facts clearly indicate that the order of suspension dated 12-1-2000 which has the effect of reviewing the earlier order passed by the same authority dated 4-2-1998, had been passed much beyond the prescribed period of limitation even though the concerned authority ceased to have any jurisdiction in the matter. 21. In the aforesaid connection, it may be noticed that the authority which had passed the order dated 12-1-2000, had itself in the case of Shri V. S. Mishra, who stood at par with the present respondent No. 1 had allowed him to be reinstated in the service by revoking the order of suspension in spite of the rigour contemplated under the first proviso to rule 9(1) of the Rules. The said order reinstating Shri v. S. Mishra, Van Kshetrapal was passed on 26-1-1997. Although the order reinstating the respondent No. 1 in service stood revoked while placing him under suspension vide the order dated 12-1-2000, no such order had been passed in the case of Shri V. S. Mishra. The submission of the learned counsel representing the petitioner-employer is that it was only on account of the limitation envisaged in rule 29(1) of the Rules, that the Governor did not take any action in respect of Shri V. S. Mishra but in respect of the present respondent No. 1 in spite of the limitation having been expired, acting without jurisdiction, the impugned action had been taken for which no reason was assigned. 22. It may further be noticed that while passing the first order dated 1-11-1996, placing the respondent No. 1 under suspension the appointing authority was aware of the provision contained in rule 9(1) of the aforesaid Rules. 22. It may further be noticed that while passing the first order dated 1-11-1996, placing the respondent No. 1 under suspension the appointing authority was aware of the provision contained in rule 9(1) of the aforesaid Rules. While revoking the said order vide the order dated 4-2-1998, the State Government itself was fully aware of the rigour of the first proviso to rule 9(1) of the Rules. However, while passing the order dated 12-1-2000, no further reasons have been disclosed except mentioning that the order was being passed in view of the first proviso to rule (1) of the aforesaid Rules. 23. So far as the aforesaid provision is concerned, the effect of the same had already been analysed in the earlier orders. It is, therefore, obvious that no such fresh fact or circumstance could be said to have come into existence which could justify a review. 24. In view of what has been indicated hereinabove, sufficient ground has been made out for interference in the order dated 12-1-2000 passed by the petitioner/employer. This conclusion is reached by adopting a route different from the route adopted by the respondent/Tribunal. However, it cannot be lost sight of that it was the involvement of the respondent No. 1 in the matters relating to the offences involving moral turpitude and corruption. In such matters, the charge being serious especially when dealing with the Government employees, special reasons must be furnished while ordering for revocation of the suspension of the erring employee as his continuance in the service may lead to wholly unwarranted results but at the same time it cannot also be lost sight of that in spite of the rigour envisaged under the first proviso to rule 9(1) of the Rules, the State Government had ample discretion in the matter and in suitable cases appropriate orders could be passed by it protecting the interest of the State Government. 25. Taking into consideration the facts and circumstances referred to hereinabove, we are of the considered opinion that the writ petition deserves to be disposed of with certain directions. 26. 25. Taking into consideration the facts and circumstances referred to hereinabove, we are of the considered opinion that the writ petition deserves to be disposed of with certain directions. 26. This writ petition is accordingly disposed of with the direction that the ultimate order of the Tribunal quashing the order passed by the State Government dated 12-1-2000 (a true copy of which has been filed as Annexure P/2 to the writ petition) shall remain intact but it will be open to the State Government to pass the suitable orders in the matter relating to the posting of the respondent/employee looking to the charges levelled against him. 27. There shall however be no order as to costs.