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2008 DIGILAW 260 (JHR)

Bindhyachal Rai v. State of Jharkhand

2008-02-29

D.G.R.PATNAIK, M.KARPAGAVINAYAGAM

body2008
ORDER D.G.R. Patnaik, J. 1. The appellant has assailed the order dated 30.1.2008 passed by the learned single Judge in W.P. (S) No. 6441 of 2007, whereby the appellant's prayer for quashing the Officer Order of his suspension as contained in Memo No. 6751(S) dated 26.10.2007, issued under the signature of the respondent No. 3, was rejected. 2. In his writ petition, the petitioner/appellant had challenged the impugned Office Order on the following grounds: 1. that the impugned order of suspension is totally arbitrary, illegal, unconstitutional and in colourable exercise of power. 2. that the impugned order of suspension is violative of Rule 3-A(l)(a) of Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 in as much as there was no departmental proceeding pending against the petitioner on the date when the order of suspension was issued and neither was any charge framed or served against him, even after lapse of more than one month from the date of suspension. 3. that the respondent No. 3 under whose signature the order was issued, had no jurisdiction to put the petitioner under suspension, since such order could have been passed only by the appointing authority namely the Engineer-in-Chief. 3. Facts of the case, as pleaded by the petitioner in the writ petition, are that the petitioner was appointed as Junior Engineer in the Public Works Department known as Road Construction Department on 4.2.1980 and since then, he has maintained unblemished service record. On his transfer as Junior Engineer, National Highway-Swarnrekha Section, under Chandil Subdivision Jamshedpur, he joined the post on 21.7.2005. During his posting in the National Highway Road Division, Jamshedpur, he was served with the impugned order of suspension on the ground of alleged dereliction and negligence in duty and the alleged violation of Rule 3-A(l)(a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, with immediate effect. 4. After hearing the petitioner and the respondents, the learned single Judge dismissed the writ application vide order dated 30.1.2008 on the ground that the petitioner has not made any case for interfering with the impugned order of suspension. 5. Assailing the impugned order, Shri Manoj Tondon, learned Counsel for the appellant, has reiterated the same grounds advanced in the writ application. 5. Assailing the impugned order, Shri Manoj Tondon, learned Counsel for the appellant, has reiterated the same grounds advanced in the writ application. The thrust of the argument of the learned Counsel is that under Rule 3-A (l)(a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, the appellant being a Government servant, could have been placed under suspension either by his appointing authority or any authority to which it is subordinate or by the Governor by general or special order, but the impugned Office Order does not indicate that the order of suspension was passed by any competent authority. 6. Learned Counsel argues that the Deputy Secretary, Road Construction Department under whose signature the order was issued, is neither a competent authority nor authority to which the appointing authority is subordinate and neither has the suspension order been issued in the name of the Governor. Learned Counsel argues further that even if the impugned Office Order declares that the decision to suspend the appellant was taken by the Government, it in itself, cannot be treated as compliance of the provisions of Article 166(2) of the Constitution of India, as there is no indication as to what the decision was and how it was worded, where it was taken and whether it was expressed in the name of the Governor. 7. To buttress his argument, learned Counsel finds support from the judgments of the Supreme Court in the case of Bachhittar Singh v. State of Punjab and Ors. reported in AIR1963SC395 , State of Kerala v. Lakshmikutty and Ors. reported in (1986) 4 SCC 632 and J.P. Bansal v. State of Rajasthan and Ors. reported in [2003]2SCR933 . It is further argued that the impugned order of suspension is bad on account of the fact that no departmental proceeding was initiated at all and in fact, no charge has been framed against him even till date. 8. Per contra, the stand taken by the respondents is that the order of suspension of the appellant was passed in consonance with the provisions of Rule 3-A(l)(a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. 8. Per contra, the stand taken by the respondents is that the order of suspension of the appellant was passed in consonance with the provisions of Rule 3-A(l)(a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. Shri S.K. Gadodia, learned JC to Advocate General, would explain that the order of suspension was passed by the State Government in the Road Construction Department and, communication of the order was made by the Deputy Secretary, Road Construction Department under his signature. Even if the order of suspension does not specifically state that it was issued under the name of the Governor, the requirement of Article 166 of the Constitution of India is deemed to be complied with by the declaration in the suspension order that it was passed in the light of the., decision taken by the Government. 9. Learned Counsel argues further that the order of suspension has been challenged by the petitioner/appellant only on the ground that it was not issued either by petitioner's appointing authority or any authority to which such appointing authority is subordinate or by the Governor or in the name of the Governor and therefore, it was void. It is not the case of the petitioner/appellant that no such decision for his suspension was taken by the Government at all. Learned Counsel adds that the provisions of Article 166 of the Constitution of India are only directory and not mandatory in character and even if they are not complied with, it would well be established as a question of fact that the impugned order of suspension was issued in fact by the State Government. 10. To support his argument, learned Counsel refers to the judgment of the Supreme Court in the case of Chitralekha v. State of Mysore reported in AIR 1961 SC 1823. 10. To support his argument, learned Counsel refers to the judgment of the Supreme Court in the case of Chitralekha v. State of Mysore reported in AIR 1961 SC 1823. Learned Counsel explains further that, as would appear from the impugned order of suspension, as also explained in detail in the counter-affidavit filed by the respondents, that in course of inspection of stretch of National Highway-33 between Ranchi and Jamshedpur, length of road between 185 to 239 km was found in extremely bad condition and no repair work was undertaken despite issuance of the work order on 14.9.2007 and this was on account of negligence and dereliction on the part of the petitioner/appellant, who in his capacity of being Junior Engineer, was duty bound to get the repair work executed. The appropriate Government taking cognizance of the negligence and dereliction on the part of the petitioner/ appellant, had taken the decision to suspend the petitioner in contemplation of the departmental proceeding against him and during the period of suspension, subsistence allowance was payable to the petitioner as per Rule 96 of service Code. 11. Undisputedly, the provisions of Rule 3-A(l)(a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 (hereinafter referred to as the 'Rules') do apply to the petitioner. Rule 3-A(1)(a) reads as under : 3-A (1) The appointing authority or any authority to which it is subordinate or the Governor by general or special order, may place a Government servant under suspension-2 Where a disciplinary proceeding against him is contemplated or is pending... The Rule amply indicates that the order of suspension of the Government servant may be passed either by his appointing authority or any authority to which such appointing authority is subordinate to the Governor, by general or special order and such order can be passed where a disciplinary proceeding against the Government servant is contemplated or is pending. 12. The impugned order of suspension issued in Hindi and the same translated in English, is as follows: GOVERNMENT OF JHARKHAND Road Construction Department OFFICE ORDER 378 DATED 26/10/2007 Shri Bindhyachal Rai, Junior Engineer, National Highway, Jamshedpur is put under suspension with immediate effect, under Rule 3-A(l)(a) of Bihar and Orissa (Discipline and Appeal) Rules, 1935, in the light of the decision taken by the Government, for his dereliction and negligence in respect of construction of road during his said posting. 2. 2. Subsistence allowance would be payable to him as per Rule 96 of Service Code during the period of his suspension, 3. During the period of suspension Road Construction Department Ranchi is fixed as his Head Quarter. 4. Memo of charge is being issued against him separately. Deputy Secretary to Government Road Construction Department, Jharkhand, Ranchi. Memo No. 6751 (S), Dated 26.10.2007 Copy to: Secretary/Engineer-in-Chief/All Chief Engineer Road Construction Department, Jharkhand, Ranchi/All Superintending Engineer/All Executive Engineer, Road Construction Department, Jharkhand, Ranchi for information and necessary action. Deputy Secretary to Government, Road Construction Department, Jharkhand, Ranchi. Memo No. 6751 (S). Dated 26.10.2007. Copy to-Secretary and Deputy Secretary (Cell)/Under Secretary-I and II/Section Officer-I/Character/Vigilance/Account Section and concerned Assistants, Road Construction Department, Jharkhand, Ranchi or information and necessary action. Deputy Secretary to Government. Road Construction Department Jharkhand, Ranchi. Memo No. 6751 (S) Dated 26.10.2007. Copy to-Bindhyachal Rai, Junior Engineer, National Highway Division, Jamshedpur. Deputy Secretary to Government, Road Construction Department Jharkhand, Ranchi. On a plain reading of the order, it would suggest that there was communication of the order of suspension of the petitioner to the concerned authority within the Road Construction Department pursuant to the decision of the Government. This order has been communicated by the Deputy Secretary under the memo served upon the petitioner. It does not suggest that the order of suspension was passed by the Deputy Secretary. It is true that the order of suspension does not state specifically that it was passed in the name of the Governor, nor does it contain any detail as to the decision taken to suspend the petitioner. But this, in itself, would not render the impugned order of suspension as void. Article 166 of the Constitution of India which relates to the conduct of business of the Government of a State, reads as follows: 166. Conducted of business of the Government of a State: (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor... . In the case of Chitralekha v. State of Mysore (supra), the Supreme Court has observed as follows: Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1) The same view was reiterated by this Court in State of Bombay v. Purushottam Jog Naik 1952CriLJ1269 , where it was pointed out that though the order in question there was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions. See Ghaio Mall and Sons v. State of Delhi [1959]1SCR1424 , and it is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. 13. The appellant/petitioner has challenged the impugned order of his suspension not by questioning the existence of the order, but on the ground that as the order was not issued in the name of the Governor, it was void. As interpreted by the Hon'ble Supreme Court in the judgment in the case of Chitralekha (supra), the provisions of Article 166 of the Constitution of India are directory and omission to comply with the provisions does not render the executive action a nullity and if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government. 14. The impugned order of suspension as well as the counter-affidavit filed by the respondent-State contains a clear averment that the order of suspension was issued by the Government and communication thereof was made by the. Deputy Secretary to the Government through the office memo. 15. The judgments referred to by the appellant cannot be held applicable to the facts of the present case. In the case of Bachhittar Singh v. State of Punjab and Anr. Deputy Secretary to the Government through the office memo. 15. The judgments referred to by the appellant cannot be held applicable to the facts of the present case. In the case of Bachhittar Singh v. State of Punjab and Anr. (supra), the order affecting the services of the petitioner therein was taken on the basis of some noting on the file recorded by the Revenue Minister. The order signed by the Revenue Minister did not express that the action taken was in the name of the Governor and further, the order was not communicated to the party affected. This judgment was considered in the case of R. Chitralekha, (supra) by the Supreme Court. Similar are the facts in the case of State of Kerala v. Lakshmlkutty and Ors. (supra) in which mere decision taken by the council of Ministers was sought to be challenged as being an order of the State Government, although the decision taken by the Council of Ministers was not translated into action by issue of any notification expressed in the name of the Governor and neither was such decision communicated to the party affected. Facts in the case of J.P. Bansal v. State of Rajasthan and Ors. (supra) also relates to the decision taken by the Cabinet which was challenged, taking the same to be a Government Order, although it was not followed by any notification issued in the name of the Governor and neither was such decision of the Cabinet communicated to the party affected. 16. In the instant case, since existence of the impugned order of suspension has not been questioned and even if the impugned office order of suspension does not specifically state that it was passed in the name of the Governor, it can well be established as a question of fact that the impugned order of suspension was issued in fact by the State Government or by the Governor. There is no denial that the order was communicated to the petitioner/appellant. The appellant has not made out any ground requiring interference with the impugned order of suspension and neither do we find sufficient ground to interfere with the order of the learned single Judge. This appeal is accordingly dismissed. M. Karpaga Vinayagam, C.J. 17. I agree. Appeal dismissed.