Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 497 (MP)

A. P. Singh Gaharwar v. State of M. P.

2012-05-07

AJIT SINGH, R.S.JHA

body2012
JUDGMENT : Asper R.S. Jha , J.:- Theappellant has filed this writ appeal under the provisions of Section 2(1) ofthe M.P. Uchcha Nyayalaya ( Khandpeeth Ko Appeal) Adhiniyam , 2005, being aggrieved by order dated 23-1-2012passed by the learned Single Judge in W.P. No. 20970/2011 whereby the petition,filed by the petitioner/appellant against the orders dated 28-10-2010 and8-11-2011 suspending the appellant, has been dismissed as well as against theorder dated 27-2-2012 passed in Review Petition No. 112/2012 affirming thesame. 2.The brief facts leading to the filing of the present appeal are that certaincomplaints were filed against the appellant while he was posted as ChiefMunicipal Officer, Municipal Corporation, Ratlam ,pursuant to which investigation was conducted by the Economic Offences Bureauand Crime No. 1/2002 was registered by them. Subsequently, a charge-sheet wasfiled against the appellant on 4-2-2010 after obtaining sanction on 31-10-2006 before the First Additional Sessions and Special Judge, pursuant to which hehas been suspended by order dated 28-10-2010 ,which order has also been affirmed in appeal by the Appellate Authority byorder dated 8-11-2011 . Theappellant being aggrieved by the order of suspension filed W.P. No. 20970/2011,which has been dismissed by order dated 23-1-2012 .The appellant thereafter filed an application for review, which has also beendismissed by order dated 27-2-2012 ,being aggrieved by which he has filed the present appeal. 3.It is submitted by the learned Counsel for the appellant that the impugnedorder of suspension dated 28-10-2010 was passed by the authority concerned onthe behest of and in view of the directions issued by the Economic OffencesBureau and is, therefore, unsustainable and illegal in view of the decision ofthis Court in the case of Suresh Kumar Purohit Vs.State of M.P. and anotlur , 2005 (4) MPLJ 524 , whereinit has been held that an order of suspension issued on the behest of the Lokayukt without application of mind by the authority isillegal. It is further submitted that in fact the allegation and charges on thebasis of which th appellanthas been placed under suspension are also unsustainable as the appellant wasnot responsible for any financial misappropriation or loss to the State. 4.We have heard the learned Counsel for the parties at length. From a perusal ofthe record, it is clear that the allegations against the appellant are inrespect of irregularities and misappropriation of an amount of Rs . 4.We have heard the learned Counsel for the parties at length. From a perusal ofthe record, it is clear that the allegations against the appellant are inrespect of irregularities and misappropriation of an amount of Rs . 32 ,30,000 /- and consequently,a case under Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act,1988 and Sections 420,409,467 and 120-B, IPC, has been instituted against himby filing a challan before the Competent CriminalCourt after obtaining sanction from the authorities. From the record, it isfurther clear that in spite of a charge-sheet being filed against him on4-2-2010, he was not placed under suspension by the authorities and that theinformation regarding filing of the charge-sheet and pendency of the criminal proceedings against the appellant was placed before theauthorities of the State by the Economic Offences Bureau by communicationsdated 17-9-2010 and 12-10-2010 and thereafter the authorities of the State haveplaced the appellant under suspension by order dated 28-10-2010 by clearlystating that he is being placed under suspension on account of the fact that acharge-sheet has been filed-against him before the Competent Criminal Court on4-2-2010. It is further clear that the appellant had raised all these issuesthat he has raised before this Court before the Appellate Authority, who hasexamined the aforesaid aspect and has dismissed the appeal filed by theappellant by recording a finding to the effect that the appellant has not beenplaced under suspension on the dictates of the Economic Offences Bureau but hasbeen placed under suspension in view of the filing of a charge-sheet againsthim before the Competent Court as required by the first proviso to Rule 9 (1)of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 andthe circular to that effect issued by the State Government, dated 15-10-2005. 5.To properly appreciate the contention of the learned Counsel for the appellant,it would be appropriate to examine the relevant provisions of the M.P. CivilServices (Classification, Control and Appeal) Rules, 1966 (hereinafter referredto as 'the Rules of 1966'). 5.To properly appreciate the contention of the learned Counsel for the appellant,it would be appropriate to examine the relevant provisions of the M.P. CivilServices (Classification, Control and Appeal) Rules, 1966 (hereinafter referredto as 'the Rules of 1966'). Rule 9 (1) of the Rules of 1966, which makesprovision for placing a Government servant under suspension is in the following terms : - "9.(1) The Appointing Authority or any authority to which it is subordinate or theDisciplinary Authority or any other authority empowered in that behalf by the Governorby general or special order, may place a Government servant under suspension- (a) where a disciplinary proceeding against him iscontemplated or is pending, or (b) where a case against him in respect of any criminaloffence is under in ventilation, inquiry of trial : Providedthat a Government servant shall invariably be placed under suspension when-a- challan for a criminal offence involving corruption orother moral turpitude is filed after sanction of prosecution by the Governmentagainst him : Providedfurther that where the order of suspension is made by an authority lower thanthe Appointing Authority, such authority shall forthwith report to theAppointing Authority the circumstances in which the order was made." Rule9 (5) (d) of the Rules of 1966, which is relevant for the purposes ofsuspension made under the first proviso to Rule 9 (1) of the Rules of 1966 isto the following effect : - "9.(5)(d) An order of suspension made or deemed to have been made under this Rulemay at any time be modified or revoked by the authority, which made or isdeemed to have made the order or by any authority to which that authority issubordinate : Providedthat an order of suspension made under the first proviso to sub-rule (1) ofRule 9 shall not be revoked except by an order of the Government made forreasons to be recorded." 6.A bare reading of the aforesaid provisions of the Rules makes it clear thatwhile Rule 9 (1) of the Rules of 1966 provides that a Government servantagainst whom a disciplinary proceedings is contemplated or is pending oragainst whom any criminal offence is under investigation, enquiry or trial"may" be placed under suspension, the first proviso to Rule 9(1) ofthe Rules of 1966 provides that a Government servant "shallinvariably" be placed under suspension, where a challan for a criminal offence involving corruption or moral turpitude is filed againsthim after obtaining sanction for prosecution from the Government. To put it differently,while Rule 9 (1) of the Rules of 1966 provides that the Competent Authority"may" place a Government servant under suspension in cases fallingunder clauses (a) and (b) of Rule 9(1) of the Rules of 1966, the first provisoappended thereto mandates that in case a challan fora criminal offence involving corruption or moral turpitude is filed against theGovernment servant after sanction for prosecution by the Government, he"shall invariably" be placed under suspension. 7.The use of the word "may" in the first part of Rule 9(1) of the Rulesof 1966 in relation to clauses (a) and (b) and the use of the words "shallinvariably" in the first proviso is a clear and sure indication of thefact that while the requirement for placing a Government servant undersuspension under Rule 9 (1) (a) and (b) of the Rules of 1966 is directory, therequirement of placing a Government servant whose case falls under the firstproviso to Rule 9 (1) of the Rules of 1966 is mandatory. In view of the clearwords used in the Rule no other interpretation is either possible orpermissible. 8.We are fortified in the view taken by us in view of the decision of the SupremeCourt rendered in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra , AIR 1968 SC 178 , wherein the use of the word"may" in the first part of Section 540 of the Code of CriminalProcedure; 1898 was held to be discretionary while the use of the word"shall" in the latter part of the Section was held to be mandatory inthe following terms : - "10.Section 540 is intended to he wide as the repeated use of the word 'any'throughout its length clearly indicates. The section is in two parts. The firstpart gives a discretionary power but the latter part is mandatory. The use ofthe word ' may ' in the first part and of the word'shall' in the second firmly establishes this difference. Under the first part,which is permissive, the Court may act in one of three ways:- (a) summon any person as a witness, (b) examine any person present inCourt although not summoned, and (c) recall or re-examine a witness alreadyexamined. Under the first part,which is permissive, the Court may act in one of three ways:- (a) summon any person as a witness, (b) examine any person present inCourt although not summoned, and (c) recall or re-examine a witness alreadyexamined. The second part is obligatory and compels the Court to act in thesethree ways or any one of them, if the just decision of the case demandsit....." SimilarView has been taken by the Supreme Court in the case of T.R. Sharnui Vs. Prithvi Singh andothers, (1976) 1 SCC 226 , while interpreting Rule 3 of the Punjab CivilServices Rules in Para 6, in the following terms :- 6.......Areading of the rule leaves no doubt that a duty is cast upon the CompetentAuthority to suspend the lien of a Government servant on a permanent post,which he holds substantively if he is appointed in a substantive capacity to apermanent post outside the cadre on which he is borne. The imperative nature ofthe rule is also clear from the use of the word "shall" in clause (a)as against the use of the word " may " inclause (b) of that rule....." TheSupreme Court has taken a same view while interpreting Section 45 of theBanking Regulation Act, 1949, in the cases of The Chairman, Canara Hank. Han galore Vs. M.S. Jasra and others, AIR 1992SC 1100 and AIR 1992 SC 1341 . 9.In the case of Mahaluxmi Rice Mills and others Vs.State of U.P. and others, (1998) 6 SCC 590 , the Supreme Court while consideringthe provisions of Section 17(iii)(b)(3)of the U.P. Krishi Utpadan Mandi Adhiniyam , 1964, wherein the word "may" has beenused in the first part and "shall" in the latter, has again held thatin such cases the use of the word "shall" indicates the mandatorynature of the provision in the following terms :- "9.It is significant to note that the word used for the seller to realise market fee from his purchaser is "may"while the word used for the seller to pay the market fee to the Committee is"shall". Employment of the said two monosyllables of greatjurisprudential import in the same clause dealing with two rights regarding thesame burden must have two different imports. Employment of the said two monosyllables of greatjurisprudential import in the same clause dealing with two rights regarding thesame burden must have two different imports. The Legislative intendment caneasily be discerned from the frame of the sub-clause that what is conferred onthe seller is only an option to collect market fee from his purchaser, but theseller has no such option and it is imperative for him to remit the fee to theCommittee. In other words, the Market Committee is entitled to collect marketfee from the seller irrespective of whether the seller has realised it from the purchaser or not." Similarview has also been taken by the Supreme Court in the cases of Godrej Pacific Tech. Limited Vs. Computer Joint IndiaLimited. (2008) 11 SCC 108 and Rama Paswan Vs . State of Jharkhand , (2007) 11 SCC 191 . 10.The aforesaid law laid down by the Supreme Court compels us to only oneconclusion that a Government servant whose case fallsunder the first proviso to Rule 9 (1) of the Rules of 1966, is mandatorily required to be placed under suspension in viewof the use of the word "shall" in the said proviso. In fact, it ispertinent to note that the said proviso uses the word "shall" inconjunction with the word "invariably", which has been defined in theOxford Advanced Learner's Dictionary to mean always the same; without fail, asunder :- Invariable (Verb/ Adj .) - always the same;never changing; ( Syn .) unchanging. Invariably (Verb/ Adj .) - always; ( Syn .) without fail. Similarly, in The Random HouseDictionary of the English Language, 1970 Edition, the word"invariable" has been defined as :- Invariable(Adj.) - not variable or capable of being varied; unchangeable; static orconstant; Invariable (Noun) - that which is invariable; constant. ( Syn .) unalterable; unchanging;changeless; invariant; unvarying; immutable; uniform. and,therefore, the word "shall invariably" used in the first proviso toRule 9 (1) of the Rules of 1966 means that the Government servant whose casefalls within the preview of the first proviso to Rule 9(1) of the Rules of1966, shall without any variation, always, without fail, be placed undersuspension. ( Syn .) unalterable; unchanging;changeless; invariant; unvarying; immutable; uniform. and,therefore, the word "shall invariably" used in the first proviso toRule 9 (1) of the Rules of 1966 means that the Government servant whose casefalls within the preview of the first proviso to Rule 9(1) of the Rules of1966, shall without any variation, always, without fail, be placed undersuspension. 11.In fact, the mandatory requirement of placing a Government servant undersuspension, whose case falls under the first proviso to Rule 9(1) of the Rulesof 1966, in view of the use of the word "shall invariably" becomesfurther clear when the Hindi Version of the first proviso is taken intoconsideration, which is in the following terms :- xxxxxxxxxxxxxxxx 12.We may, at this stage, also fruitfully consider the Legislative history of theaforesaid provisions of Rule 9 (1) of the Rules of 1966. In the Rules that wereinitially notified, the first proviso to Rule 9 (1) of the Rules of 1966, wasnot in existence and, therefore, the State Government by circular dated15-10-1985 of the General Administration Department had issued instructionsthat in cases where a challan is filed against theconcerned Government servant in cases involving corruption by the Lokayukt Organisation or theEconomic Offences Bureau, the concerned Government servant should, withoutexception, be immediately placed under suspension. The extract of the aforesaidnotification is reproduced at Page 43 of the book titled Suspension andRevocation, 2009 Edition, published by Suvidha LawHouse, in the following terms :-- xxxxxxxxxxxxxxxxx 13.However, in spite of the aforesaid circular of the Government, as severalmatters were taken up before the Court of Law in which it was held that ordersof suspension on the dictates of the Executive Instructions were contrary tolaw as the authority was precluded and prevented from applying its independentmind to each case, therefore, the State Government by notification dated27-5-1996 amended the provision of Rule 9 of the Rules of 1966, by insertingthe first proviso to Rule 9(1) and the proviso to Rule 9 (5) (d) of the Rulesof 1966, segregating and separately classifying cases of those Governmentservants against whom challan before the CompetentCriminal Court had been filed in cases involving corruption or moral turpitudeclearly mandating that the cases of such Government servant, shall withoutvariation, always and without fail, be placed under suspension. 14.The aforesaid object and reasons for incorporating the amendment in the Ruleswas clearly specified and stated by the State Government in its circular dated 27-5-1996 withdrawing its previous circulardated 15-10-1985 as it wasno longer required. The aforesaid circular of the State Government dated27-5-1996 is published at Page Nos. 43 and 44 in the above referred book,clearly clarifying the reasons and objects of the aforesaid amendment, in thefollowing terms :- xxxxxxxxxxxxxxxxxx On26-2-1998, the State Government on finding that the concerned authorities werenot properly implementing the first proviso to Rule 9, again issued a circulardirecting the authorities to immediately place the Government servant undersuspension whose case falls under the first proviso to Rule 9 (1) of the Rulesof 1966, failing which strict action shall be taken against the responsibleauthority, in the following terms : - xxxxxxxxxxxxxxxxxxx 15.While considering the provisions of the first proviso to Rule 9 (1) of theRules of 1966, it would also be appropriate, at this stage, to consider theimport of the proviso inserted below to Rule 9 (5) (d) of the Rules of 1966,which provides that an order of suspension issued under the first proviso toRule 9 (1) of the Rules of 1966, shall not be revoked except by an order of theGovernment made for reasons to be recorded. In our considered opinion, theinsertion of the aforesaid proviso further indicates that orders of suspensionissued under the first proviso to Rule 9 (1) of the Rules of 1966 should not becasually revoked and in case such revocation is required, then the said powercan only be exercised by the State Government after recording reasons for suchrevocation. However, as in spite of the aforesaid requirement of law as ordersof suspension issued under the first proviso to Rule 9(1) of the Rules of 1966,were being casually revoked, the State Government again issued a circular on 30-9-1999in respect of the manner of exercise of the powers for revocation, in thefollowing terms which is quoted below : - xxxxxxxxxxxxxxxxxx TheState Government has also issued a consolidated circular dated 30-8-2002 , which is in similar termsin respect to the aforesaid Rule. 16.Subsequently, the State Government with a view to further specify and clarifythe limit and import of the applicability of the first proviso to Rule 9(1) ofthe Rules of 1966, inserted the words "after sanction of prosecution bythe Government" in the proviso as it stands today by notification dated26-2-2007. 16.Subsequently, the State Government with a view to further specify and clarifythe limit and import of the applicability of the first proviso to Rule 9(1) ofthe Rules of 1966, inserted the words "after sanction of prosecution bythe Government" in the proviso as it stands today by notification dated26-2-2007. 17.In view of the aforesaid analysis of the provisions of Rule 9 (1) of the Rulesof 1966, and its Legislative history, we are of the considered opinion that theprovisions of the first proviso to Rule 9 (1) of the Rules of 1966 mandatesthat a Government servant shall without variation, always, without fail, beplaced under suspension in case of a charge-sheet been filed against him foroffences involving corruption or moral turpitude after obtaining sanction forprosecution. Similar view has been taken by a Division Bench of this Court Inthe case of Rajendra Singh Dasondhi and another Vs. State of M.P. and others, ILR (2009) MP 2766. 18.In the instant case, the charge-sheet was filed against the appellant aftersanction before the Competent Court on 4-2-2010 and, therefore, in view of themandate of the first proviso to Rule 9 (1) of the Rules of 1966, he wasrequired to be placed under suspension but the Competent Authority did not doso and it was in such circumstances that the Economic Offences Bureau hasbrought to the notice of the Competent Authority the provisions of the firstproviso to Rule 9(1) of the Rules of 1996 and the Competent Authority on realising the mandate of law has placed the appellant undersuspension by order dated 28-10-2010 specifically stating therein that he isbeing placed under suspension on account of filing of a charge-sheet againsthim on 4-2-2010 before the Special Judge under the Prevention of CorruptionAct, which is perfectly in conformity with the provisions of the first provisoto Rule 9 (1) of the Rules of 1966. 19.It is clear from a perusal of the impugned order of suspension that the appellanthas not been placed under suspension on the dictates of the Economic OffencesBureau as alleged by the appellant but has been placed under suspension in viewof the mandate of law and in such circumstances we do not find any merit in thesubmission of the appellant to the contrary. In fact, we are of the consideredopinion that as the case of the appellant falls under the first proviso to Rule9 (1) of the Rules of 1966, which is mandatory in nature, he was required to beand has rightly been placed under suspension immediately on filing of acharge-sheet against him. 20.In view of the fact that the appellant is required to be placed undersuspension in accordance with the provision of the proviso to Rule 9 (1) of theRules of 1966 and the authority has no discretion in the matter, the otherissues raised by the appellant regarding veracity of the charges levelled against him, etc., need not be looked into by usas no useful purpose shall be served in doing so. Quite apart from the above,the Supreme Court in the case of U.P. Rajya Krishi Utpadan Mandi Parishad and others Vs. Sanjiv Rajan , 1993 Supp. (3) SCC483 and this Court in the case of Deepa Dubey (Mrs.) Vs. Union of India, 2010 (4) M.P.H.T. 191 ,have also stated that while dealing with cases of suspension, the Courts arenot required to look into the correctness or authenticity of the charges levelled against a Government servant. 21.We are also of the considered opinion that in view of the aforesaid analysis ofthe Rules and the facts and circumstances of the present case, the relianceplaced by the appellant on the decision of this Court rendered in the case ofSuresh Kumar Purohil (supra), is also misplaced andmisconceived as the factual background and backdrop in which the aforesaiddecision was tendered is totally different from the factual matrix of thepresent case. 22.In the case of Suresh Kumar Purohit (supra), thepetitioner who was working as Assistant Transport Sub Inspector, was placed under suspension on 23-3-2000 on account of a challan being filed against him underthe provisions of Sections 13 (1) (E) and 13 (2) of the Prevention ofCorruption Act. However, subsequently the suspension was revoked by order dated 13-4-2000 . 22.In the case of Suresh Kumar Purohit (supra), thepetitioner who was working as Assistant Transport Sub Inspector, was placed under suspension on 23-3-2000 on account of a challan being filed against him underthe provisions of Sections 13 (1) (E) and 13 (2) of the Prevention ofCorruption Act. However, subsequently the suspension was revoked by order dated 13-4-2000 . Thereafter theauthorities again suspended the petitioner by order dated 24-7-2004 only onaccount of the fact that the Lokayukt had directedhis suspension and it was in those circumstances and in the backdrop of thefacts prevailing in that case that the observations in respect of Rule 9 of theRules of 1966 were made by the learned Single Judge in the case of Suresh Kumar Purohit (supra), which have to be understood andlimited to the facts of that case and cannot be taken to be a precedent inrespect of all cases falling under the provision of Rule 9 of the Rules of1966. In fact, the Supreme Court in the case of Uttaranchal Road Transport Corporation Vs. Mansarani Nainwal , AIR 2006 SC 2840 , has observed that placingreliance on a decision without looking into the factual background of the casebefore it is impermissible in the following terms :- "13 :...... Reliance on the decision without looking into thefactual background of the case before it is clearly impermissible. A decisionis a precedent on its own facts. Each case presents its own features. It is noteverything said by a Judge while giving judgment that constitutes a precedent.The only thing in a Judge's decision binding a party is the principle uponwhich the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi . According to the well settled theory ofprecedents, every decision contains three basic postulates : ( i ) findings of material facts, direct andinferential. An inferential finding of fact is the inference, which the Judgedraws from the direct, or perceptible facts; (ii) statements of the principlesof law applicable to the legal problems disclosed by the facts; and (iii)judgment based on the combined effect of the above. A decision is an authorityfor what it actually decides. What is of the essence in a decision is its ratioand not every observation found therein nor what logically flows from thevarious observations made in the judgment. A decision is an authorityfor what it actually decides. What is of the essence in a decision is its ratioand not every observation found therein nor what logically flows from thevarious observations made in the judgment. The enunciation of the reason orprinciple on which a question before a Court has been decided is alone bindingas a precedent. [See : State of Orissa Vs. Sudhansu Sekhar Misra , AIR 1968 SC 647 and Union of India Vs. Dhanwanti Devi , (1996) 6 SCC 44 ].A case is a precedent and binding for what it explicitly decides and no more.The words used by judges in their judgments are not to be read as if they arewords in an Act of Parliament. In Quinn Vs. Leathern, (1901) AC 495 (HL); Earlof Halsbury , LC, observed that every judgment must beread as applicable to the particular facts proved or assumed to be proved,since the generality of the expressions, which are found there are not intendedto be exposition of the whole law but governed and qualified by the particularfacts of the case in which such expressions are found and a case is only anauthority for what it actually decides." 23.We are, therefore, constrained to clarify that the decision rendered in thecase of Suresh Kumar Purohit (supra), was and isconfined to the facts of that particular case and cannot and shall not betreated as laying down the law or as a precedent for the purposes ofinterpreting the provisions of Rule 9 of the Rules of 1966, in any other casespecifically in view of the analysis and interpretation of Rule 9 (1) and 9 (5)(d) of the Rules of 1966, as made by us in the present case. 24.In view of the aforesaid facts and circumstances of the case we find no reasonto interfere with the order passed by the learned Single Judge. The appeal,filed by the appellant, fails and is, accordingly, dismissed. 25.There shall be no order as to the costs.