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Madhya Pradesh High Court · body

2006 DIGILAW 1350 (MP)

SHASHIDHAR JOSHI v. STATE OF M P

2006-11-29

J.K.MAHESHWARI

body2006
Judgment ( 1. ) THIS petition has been filed under Articles 226 and 227 of the Constitution of India, challenging the order of suspension Annexure P-14, dated 4-9-2006 passed by respondent No. 2,i. e. , Commissioner-cum-Secretary, Urban administration and Development Department, Govt. of M. P. , Bhopal, by which the petitioner who is the Chief Municipal Officer, Nagar Panchayat, Dhamnod has been placed under suspension. ( 2. ) IT is the case of the petitioner that he was the Chief Executive officer in the Special Area Development Authority which is popularly known as sada. In the year of 1994 all the Special Area Development Authorities were abolished, and their employees were absorbed in the Municipal Councils; as per the notification issued by the Government of Madhya Pradesh. The Chief executive Officers of SADA have been treated as Chief Municipal Officers in the Municipal Councils. To demonstrate this fact various Govt. orders annexures P-2 to P-8 have been filed, and it is urged that as per the order dated 12-6-2006 passed by respondent No. 2, he was transferred from Nagar panchayat, Dhamnod, District Dhar to Nagar Panchayat, Hatpiplya, District dewas. That order was challenged by him by filing the W. P. No. 2292/2006, wherein on 15-6-2006 notices were issued to Government, and the interim relief to stay such order of transfer dated 12-6-2006 was granted by this Court in favour of petitioner. Subsequently Government of M. P. itself, has passed the order annexure P-13, dated 2-8-2006; cancelling the order of transfer dated 12-6-2006. It is said that after such cancellation of transfer and on rejoining by petitioner, respondent No. 2 has passed the order dated 4-9-2006, placing him under suspension; with the prejudice mind, because, the order of transfer passed by him, was cancelled by the Government, after granting interim relief by this Court. ( 3. ) IT is the contention of learned Senior Counsel Shri A. K. Sethi that as per Section 87 of the Municipalities Act, 1961, his, Appointing Authority is the State Government. It is further urged that because of he is the member of the State Municipal Service (Executive ). However, under Section 87 (2), the state Govt. is empowered to frame the rules governing the service conditions of the members of the State Municipal Service (Executive ). It is further urged that because of he is the member of the State Municipal Service (Executive ). However, under Section 87 (2), the state Govt. is empowered to frame the rules governing the service conditions of the members of the State Municipal Service (Executive ). In exercise of such powers the Government has framed the rules, which are known as M. P. Municipal Service (Executive) Rules, 1973 (hereinafter it shall be called as rules ). As per Rule 36 members of the State Municipal Services may be placed under suspension by the Appointing Authority, if he is satisfied, to the nature of the charges and in the circumstances prevailing. ( 4. ) IT is said, in the present case respondent No. 2 is not the Appointing authority of the petitioner, however, the order of suspension as passed by respondent No. 2 is illegal and without jurisdiction. It is further said that under Rule 36 satisfaction ought to have been recorded by the Appointing Authority while placing the employee under suspension; but no such satisfaction has been recorded by respondent No. 2, however, the order of suspension is without application of mind. It is further said that, impugned order of suspension is unreasoned, therefore, also it is liable to be quashed. ( 5. ) ON the other hand respondents have filed their reply and in the reply it is said that petitioner has not complied, the order of transfer passed by the respondent No. 2. It is further said that, even after the stay granted by this court, but, without relieving, he had joined at the transferred place. Such act of the petitioner is unbecoming to the employee, however, to this irregularity, the order of suspension has rightly been passed by him, after receiving the preliminary report from respondent No. 3. It is also said in Paras 5 and 11 of the reply that respondent No. 2 has passed the order in the capacity of commissioner-cum-Secretary, Urban Administration and Development department, Govt. of M. P. , who is the head of the department, therefore, he bears competence to pass the order of suspension. In view of the aforesaid submission, it is urged that the order Annexure P-14, dated 4-9-2006 as passed by respondent No. 2 is within its competence, and after due application of mind, and in accordance with the provisions of the Rules. In view of the aforesaid submission, it is urged that the order Annexure P-14, dated 4-9-2006 as passed by respondent No. 2 is within its competence, and after due application of mind, and in accordance with the provisions of the Rules. However, the order of suspension Annexure P-14, dated 4-9-2006 deserves to be upheld. ( 6. ) I have heard learned Counsel appearing for parties and perused the record. On perusal, and to deal with the question of competence of respondent no. 2 it is necessary to refer certain relevant provisions of the M. P. Municipalities Act as well as the rules framed thereunder. Chapter IV of the municipalities Act deals with the Chief Municipal Officers. Relevant extract of rules 86 and 87 is reproduced here in below:- "86. Constitution of State Municipal Service.- (1) The State government may, for the purpose of providing officers to the council under Section 87 or 88, constitute in the prescribed manner, the following Municipal Services for the State to be called:- (a) State Municipal Service (Executive); (b) State Municipal Service (Health); and (c) State Municipal Service (Engineering ). (2) The State Government may make rules in respect of recruitment, qualification, appointment, promotion, leave, scale of pay, all allowances by whatever name called, loans, pension, gratuity, annuity, compassionate fund, provident fund, dismissal, removal, conduct, departmental punishment, appeals and other service conditions of the members of the State Municipal Service. (3) The salary. . . . . . . . . . Municipal Service : provided that. . . . . . . . . . . . . . . prescribe. (4) The State Government. . . . . . . . . . another Council. (5) If, at a. . . . . . . . . . . . . such member. 87. Chief Municipal Officer.- (1) There shall be a Chief municipal Officer to every Council who shall be the principal executive officer of the Council and all other officers and servants of the Council shall be subordinate to him. (2) The Chief Municipal Officer of a Council shall be a member of the State Municipal Service (Executive) and shall be appointed by the State Government. " ( 7. ) THE Government has framed the rules which are known as M. P. State Municipal Service (Executive) Rules, 1973. (2) The Chief Municipal Officer of a Council shall be a member of the State Municipal Service (Executive) and shall be appointed by the State Government. " ( 7. ) THE Government has framed the rules which are known as M. P. State Municipal Service (Executive) Rules, 1973. These Rules have been framed in exercise of the powers as conferred by sub-section (1) and item (b) of clauses (iv) and (v) of sub-section (2) of Section 355 read with Section 86 of the Madhya Pradesh Municipalities Act, 1961. Rule 36 deals with suspension:-"36. Suspension pending disciplinary proceedings.- (1) If having regard to the nature of charges and the circumstances in any case, the Appointing Authority is satisfied that it is necessary or desirable to place, under suspension the member of the service against whom disciplinary proceedings is contemplated or is pending, it may subject to the provisions of sub-section (2) of Section 86 of the Act pass and order placing him under suspension. (2) A member of the service detained in police custody, whether on a criminal charge or otherwise for a period longer than forty eight hours, shall be deemed to have been suspended with effect from the date of detention under this rule. (3) A member of service against who a criminal charge is pending may at the discretion of the Appointing Authority, be placed under suspension until the termination of the proceedings, if the charges are connected with his duties as a municipal servant or is likely to embrace him in the discharge of his duties in the Municipality or involves moral turpitude. " ( 8. ) ON going through the aforesaid provisions of sub-section (2) of section 87, it is apparent that the Municipal Officer shall be appointed by the State Government. Under sub- section (2) of Section 86 of the Act, the Govt. of m. P. has also framed the rules for the employees of the State Municipal Services (Executive ). Rule 36 deals with suspension of such employees. By which it is apparent that, the Appointing Authority, it satisfied, and to feel it necessary or desirable to place the employee of State Municipal Service, under suspension having regard to the nature of charges and in the circumstances of any case, then only the order of suspension may be passed. Rule 36 deals with suspension of such employees. By which it is apparent that, the Appointing Authority, it satisfied, and to feel it necessary or desirable to place the employee of State Municipal Service, under suspension having regard to the nature of charges and in the circumstances of any case, then only the order of suspension may be passed. After common reading of Sections 86 and 87 (2) as well as Rule 36, it is apparent that in the case of Chief Municipal Officer the State Government is the Appointing Authority, and such Authority may place an employee of the State Municipal Service under suspension if it is necessary or desirable looking to the nature of the charges to which he is required to place under suspension. ( 9. ) AS per the return submitted by the respondents, it has not been disputed that the Government of Madhya Pradesh is the Appointing Authority of the member of the State Municipal Service, i. e. , Chief Municipal Officer. It is merely said that because of respondent No. 2 is the head of the department and the petitioner, is under his administrative control, therefore, in that capacity he has exercised the power to place him under suspension. It is also not a case of the State that in exercise of the powers under Section 87 (2) or under Rule 36 of M. P. State Municipal Service (Executive) Rules, the power of the Appointing Authority has been delegated to respondent No. 2. In such circumstances it is to be held that respondent No. 2, i. e. , Commissioner-cum-Secretary of the Urban administrative and Development Department is not the Competent Authority to place the petitioner under suspension, because the order of suspension can be passed by the Appointing Authority, who is State Government. ( 10. ) THE impugned order of suspension passed by respondent No. 2 dated 4-9-2006 Annexure P-14 has been issued merely with the allegation that petitioner has committed "irregularity", therefore, he is placed under suspension. This order was passed by respondent No. 2 who is not the appointing Authority of the petitioner. In any case the order of suspension may also be challenged before this Court on the ground of in application of mind. This order was passed by respondent No. 2 who is not the appointing Authority of the petitioner. In any case the order of suspension may also be challenged before this Court on the ground of in application of mind. After examining the record it appears that the Appointing Authority has not applied its mind, looking to the nature of the charges and in the circumstances of the case. He has not recorded the satisfaction, for placing the petitioner under suspension. It has also not said that either it is necessary or desirable because, against him the disciplinary proceedings are contemplated or pending. It is seen that satisfaction is required to be recorded not only under sub-rule (1) of Rule 36 but as per the judgment of the Supreme Court in the case of State of Orissa Vs. Bimal Kumar Mohanti, reported in AIR 1994 SC 2296 , In the present case, respondent No. 2 has passed the order who is not the Appointing Authority of the petitioner. On the other hand the material which is available on record indicates that petitioner had joined at transferred place, but subsequently, the order of transfer was cancelled by the Government. On cancellation, he had rejoined again at the same place. Thus on account of subsequent cancellation of transfer, he has complied the order of Govt. , ignoring the order of respondent no. 2. This appears may be reason of annoyance of respondent No. 2 with petitioner. However, the nature of the charges as indicated in the order or in the return filed in this case are not of such nature, which requires intervention of the respondent No. 2, who is not the Appointing Authority, to place the petitioner under suspension. In such circumstances it is to be held that the action of respondent No. 2 is without application of mind and arbitrary. ( 11. ) UNDER the Municipalities Act power to place under suspension to the employee of State Municipal Service (Executive) is vested with government; it has not been delegated to the Commissioner-cum-Secretary of urban Administration Development Department, i. e. , respondent No. 2. As per the language of the return, as set forth, it is said that respondent No. 2 has exercised his power, being head of the department of the Urban Administration and Development Department. As per the language of the return, as set forth, it is said that respondent No. 2 has exercised his power, being head of the department of the Urban Administration and Development Department. But, no such power can be acquired by respondent No. 2 being head of the department until and unless it is conferred on them under the statute. However, it is held that respondent No. 2 is not the competent to place the petitioner under suspension and the order Annexure p-14 passed by him is without authority under the law and void, ab initio. ( 12. ) IN view of the foregoing discussion, this petition succeeds and it is hereby allowed. The order dated 4-9-2006 Annexure P-14 passed by respondent no. 2 is without jurisdiction and without application of mind, hence quashed. Consequently petitioner is entitled for all the consequential benefits. In the facts and circumstances of the case, there is no order as to costs. Writ Petition allowed.