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2006 DIGILAW 764 (MP)

G. P. Bhargawa v. State of M. P.

2006-05-20

A.K.PATNAIK, AJIT SINGH

body2006
JUDGMENT Patnaik, C. J. --1. This is an appeal against the order dated 8.3.2006 passed by the learned single Judge in WP No. 3376/2006 (S). 2. The facts briefly are that the appellant was posted as Chief Municipal Officer, Nagar Panchayat, Sohagpur, in District Hoshangabad since July 2004. The Collector, Hoshangabad, submitted a report to the State Government alleging various acts of misconduct committed by the appellant and recommending that he be placed under suspension. Thereafter, the State Government placed the appellant under suspension by order dated 23.2.2006. Aggrieved by the said order of suspension, the appellant filed the aforesaid writ petition but by order dated 8.3.2006 the learned single Judge dismissed the said writ petition. Aggrieved by the said order dated 8.3.2006 of the learned single Judge, the appellant has filed this appeal. 3. Mr. Shroti, learned counsel for the appellant, submitted that Rule 36 of the Madhya Pradesh Municipal Services (Executive) Rules, 1973 (in short, "the Rules") provides that 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 a member of the service against whom disciplinary proceedings is contemplated or is pending, it may pass an order placing him under suspension. He submitted that the order of suspension dated 23.2.2006 would show that the appointing authority has not applied its mind to the nature of the charges and the circumstances of the case and has also not recorded its satisfaction that it is necessary or desirable to place the appellant under suspension and has also not stated that disciplinary proceedings against him are contemplated or pending. He vehemently submitted that the impugned order of suspension is therefore liable to be quashed, as it does not satisfy the statutory requirements of Rule 36 of the Rules. He cited the decision of the Supreme Court in the case of Indian Nut Products and others v. Union of India and others [( 1994) 4 SCC 269] in support of his submission that the order of suspension should itself record the satisfaction of the conditions and requirements of the statutory provision in Rule 36 of the Rules. He cited the decision of the Supreme Court in the case of Indian Nut Products and others v. Union of India and others [( 1994) 4 SCC 269] in support of his submission that the order of suspension should itself record the satisfaction of the conditions and requirements of the statutory provision in Rule 36 of the Rules. He also relied on the aforesaid decision of the Supreme Court in Indian Nut Products and others (supra) for the proposition that if statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned therein and such grounds must be made out on the basis of the relevant material and if the existence of the conditions required for the exercise of the power is challenged, the Courts are entitled to examine whether those conditions existed when the order was made in exercise of their power of judicial review. Mr. Shroti also relied on the decision of the Supreme Court in the case of State of Orissa v. Bimal Kumar Mohanty [ AIR 1994 SC 2296 ] and in particular para 12 of the said decision in which it has been held that the appointing authority or the disciplinary authority when it seeks to suspend an employee pending enquiry or contemplated enquiry, the order of suspension should be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and that the order of suspension should not be an administrative routine or an automatic order to suspend an employee but must be based on all relevant aspects and in particular the aspect as to whether it is expedient to keep an employee under suspension pending the enquiry. He submitted that the learned single Judge has not considered the aforesaid decision of the Supreme Court in the case of State of Orissa (supra) in its proper perspective and has summarily dismissed the writ petition of the petitioner. 4. Mr. He submitted that the learned single Judge has not considered the aforesaid decision of the Supreme Court in the case of State of Orissa (supra) in its proper perspective and has summarily dismissed the writ petition of the petitioner. 4. Mr. Vivek Awasthy, learned Government Advocate, on the other hand, placed the records in which the order of suspension was passed by the State Government and submitted that all the relevant factors that have been mentioned in rule 36 of the Rules have been taken into consideration before the appellant was placed under suspension. Sub-rule (1) of rule 36 on which Mr. Shroti has placed reliance is quoted herein: "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 that 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 an order placing him under suspension." 5. It will be clear from the aforesaid sub-rule (1) of rule 36 of the Rules that the appointing authority has to apply its mind to the nature of charges and the circumstances of the case and after application of mind if it is satisfied that it is necessary or desirable to place a member of the service under suspension against whom disciplinary proceedings is contemplated or pending, it may pass an order· placing him under suspension. The aforesaid sub-rule (1) of rule 36 of the Rules nowhere states that the order of suspension itself must state that the appointing authority has applied its mind to the nature of charges and the circumstances of the case and must also mention that the appointing authority was satisfied that it was necessary to place him under suspension and must also state that disciplinary proceedings are contemplated or are pending against the member of service who is to be placed under suspension. In the absence of the statutory requirement in the said sub-rule (1) of rule 36 of the Rules, if in the records or file in which the order of suspension is passed it is found that the appointing authority has applied its mind to the nature of charges and the circumstances of the case and was satisfied that it was necessary or desirable to place the member of service under suspension and that disciplinary proceedings were contemplated or were pending against such member of service, the Court cannot hold that the suspension is vitiated and quash the same merely because in the order of suspension itself these aspects are not mentioned. 6. In Indian Nut Products and others (supra) cited by Mr. Shroti, the proviso to sub-section (I) of section 3 of the Kerala Cashew Factories (Acquisition) Act, 1974 stated that before making a declaration under said sub-section (I) of section 3 in respect of a Cashew factory, the Government shall give the occupier of the factory and the owner of the factory, where he is not the occupier, a notice of their intention to take action under this sub-section and the grounds therefor and consider the objections that may be preferred in pursuance of such notice. Hence, in the aforesaid case, the proviso to sub-section (l) clearly stipulated that in the notice to be given to the occupier of the factory and the owner of the factory, where he is not the occupier, the grounds for making a declaration under sub-section in respect of a Cashew factory was to be mentioned. Since the statute itself requires mentioning of the grounds for making the declaration are to be given to occupier of the factory and the owner of the factory, where he is not the occupier, the Supreme Court has held that such grounds must be indicated in the notice itself and in the absence of the relevant grounds indicated in the notice itself, the notices have to be declared null and void and the consequent order has to be quashed. But as we have seen, sub-rule (l) of rule 36 of the Rules quoted above does not require that the order of suspension itself must state the nature of charges and the circumstances of the case, or the satisfaction of the appointing authority, that it is necessary or desirable to place the member of the service under suspension or that disciplinary proceedings were contemplated or are pending against the member of the service. 7. The order of suspension, however, can still be challenged if the Court after examining the records of the case finds that in fact the appointing authority has not applied its mind to the anture of the charges and the circumstances of the case or that there was no satisfaction of the appointing authority that it was necessary or desirable to place the member of service under suspension or that in fact no disciplinary proceedings are contemplated or are pending against the member of the service. This is not only requirement of sub-rule (1) of rule 36 of the Rules but also the requirement of any order of suspension as held by the Supreme Court in State of Orissa (supra). 8. We have perused the records before us and we find that the Collector, Hoshangabad, in his D.O. letter dated 4.2.2006 addressed to the Principal Secretary, Urban Administration and Development Department, Government of Madhya Pradesh, Bhopal, has alleged various acts of misconduct on the part of the appellant including financial irregularities alleged to have been committed in respect of the work of construction of concrete road from Jaiswal Petrol Pump to Shishu Mandir School. The said recommendations of the Collector, Hoshangabad, in its letter dated 4.2.2006 state in detail the facts relating to the alleged misconduct by the appellant and the competent authority of the State Government has applied his mind to the said facts as stated in the letter dated 4.2.2006 of the Collector and thereafter passed the order for placing the appellant under suspension. After perusal of the said letter dated 4.2.2006 as well as the note sheets in the file produced before us we find that the competent authority of the State Government has applied his mind to the nature of charges, the circumstances of the case and thereafter placed the appellant under suspension on being satisfied that it is necessary and desirable to do so. We also find from the note sheets that a decision has been taken by the competent authority for initiating a disciplinary proceeding against the appellant. This is, thus, not a case where the requirement of sub-rule (l) of rule 36 of the Rules quoted above are not satisfied and also not a case where the requirements laid down by the Supreme Court in the case of State of Orissa (supra) for placing a delinquent employee under suspension have not been complied with. 9. For the aforesaid reasons, we do not find any merit in the appeal and we accordingly dismiss the same. We, however, make it clear that it will be open for the appellant to move the competent authority of the State Government to revoke the suspension by filing a proper representation. If such a representation is made, the competent authority may consider the same and pass orders, as he may deem proper in the facts and circumstances of the case in accordance with the rules. We also make it clear that none of the observations made by us in this order will in any way influence the enquiry officer or disciplinary authority in the disciplinary proceedings initiated or contemplated against the appellant.