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Madhya Pradesh High Court · body

2013 DIGILAW 197 (MP)

K. K. Singh Chouhan v. State of M. P.

2013-02-13

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J. 1. In this writ petition the petitioner, inter alia, has assailed the validity of the orders dated 10-9-2007 and 29-6-2011 passed by the Commissioner, Municipal Corporation, Bhopal as well as by the State Government respectively. The petitioner also seeks quashment of the charge-sheet dated 18-10-2007. Background facts leading to filing of the writ petition, briefly stated, are that the petitioner at the relevant time was posted as Additional Commissioner in Municipal Corporation, Bhopal and was holding the charge of building permission and illegal colony cell. On 5-4-2007 a search and seizure operation was carried out by the Income Tax Department at the residence of the petitioner. In the said operation a sum of Rs. 4.82 lakhs in cash was recovered from the petitioner and evidence of investment in immovable properties and several bank accounts were found. The Income Tax Department also reported that the petitioner was having relations with several builders from whom he received the amount. On receipt of aforesaid information from the Income Tax Department, the State Government vide order dated 10-9-2007 directed the Commissioner, Municipal Corporation, Bhopal to forthwith suspend the petitioner and institute departmental enquiry against him. The Commissioner, Municipal Corporation, Bhopal keeping in view the gravity of accusations made against the petitioner, by order dated 10-9-2007 placed the petitioner under suspension. The Commissioner reported the matter to the appointing authority, namely, Mayor-in-Council, which in its meeting dated 12-9-2007 granted ex facto approval to order of suspension passed by the Commissioner. 2. Being aggrieved by the order of suspension the petitioner preferred an appeal on 27-10-2007. Thereafter, the petitioner filed writ petition, namely, W.P. No. 203/2008 which was disposed of by a Bench of this Court vide order dated 10-1-2008 with a direction to the Appellate Authority to decide the appeal. Thereafter, the petitioner submitted a representation dated 30-1-2008, which failed to evoke any response. The petitioner, thereafter, again filed writ petition, namely, W.P. No. 134/2009 which was disposed of by order dated 20-4-2010 by a Bench of this Court with a direction to the Appellate Authority to decide the appeal preferred by the petitioner within stipulated period. The Appellate Authority by the impugned order dated 29-6-2011 remanded the matter to the Municipal Corporation to reconsider the matter and to take action in accordance with the instructions issued by the General Administration Department, Government of Madhya Pradesh from time to time. The Appellate Authority by the impugned order dated 29-6-2011 remanded the matter to the Municipal Corporation to reconsider the matter and to take action in accordance with the instructions issued by the General Administration Department, Government of Madhya Pradesh from time to time. In the aforesaid factual backdrop the petitioner has approached this Court. 3. Learned senior counsel for the petitioner submitted that the Disciplinary Authority of the petitioner is Mayor-in-Council which is the competent authority to place the petitioner under suspension, however, the order of suspension was passed by the incompetent authority, namely, Commissioner, Municipal Corporation at the dictates of the State Government. It is further submitted that the order of suspension suffers from vice of non-application of mind and has been passed in casual and routine manner. It is also urged that ratification of the order which is per se illegal cannot be done and there is no material on record to show compliance of provisions of sections 52 and 53 of the Municipal Corporation Act, 1956 (hereinafter referred to as the 'Act') and Rule 3(2)(ii) of M.P. Civil Services (Conduct) Rules, 1965 (for short 'Conduct Rules'). Lastly, it is submitted that the charge-sheet has been issued by the incompetent authority, namely, Commissioner, therefore, the same is liable to be quashed and for past about five years no proceeding in the departmental enquiry initiated against the petitioner has been taken. In support of her submissions, learned senior counsel has placed reliance on the decisions in the cases of V.P. Gindroniya vs. State of M P. and another, 1971 MPLJ (S.C.) 227 : AIR 1970 SC 1498 : AIR 1994 SC 2296 : (2010) 7 SCC 678 and Suresh Kumar Purohit vs. State of M.P. and another, 2005 (4) MPLJ 524 . 4. On the other hand, learned Panel Lawyer for the respondents No. 1 & 2 submitted that the State Government has remanded the matter to the Municipal Corporation to reconsider the matter relating to suspension of the petitioner. 4. On the other hand, learned Panel Lawyer for the respondents No. 1 & 2 submitted that the State Government has remanded the matter to the Municipal Corporation to reconsider the matter relating to suspension of the petitioner. Learned counsel for the respondents No. 3 & 4 while inviting the attention of this Court to second proviso to Rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity 'CCA Rules') submitted that the order of suspension can be passed by an authority lower than the appointing authority and such authority is required to forthwith report to the appointing authority the circumstances in which the order of suspension was passed. It is submitted that the Commissioner passed the order of suspension and placed the matter for consideration before the appointing authority i.e. Mayor-in-Council which accorded ex facto approval on 12-9-2007. It was further submitted that though the State Government has passed an order dated 10-9-2007 directing the Commissioner, Municipal Corporation, Bhopal to place the petitioner under suspension, yet the order of suspension does not reflect that the same was issued at the instance of the State Government. The Commissioner taking into account the nature of accusations and the material which was available against the petitioner and on due consideration has passed the order of suspension. It is further submitted that under section 420 of the Act, if in the opinion of the State Government any officer or servant of the Corporation is negligent in the discharge of his duties, the Corporation shall on the requirement of the Government, suspend, fine or otherwise punish him. It is also submitted that the charges contained in the charge-sheet have nothing to do with the proceeding which is pending against the petitioner under the Prevention of Corruption Act, 1988 and the charge-sheet has been issued by the Commissioner who is the competent authority being the Controlling Authority of the petitioner. In this connection, learned counsel for respondents No. 3 and 4 has referred to section25(1)(a) and section 55 of the Act. In this connection, learned counsel for respondents No. 3 and 4 has referred to section25(1)(a) and section 55 of the Act. In support of his submission, learned counsel has placed reliance on the decisions in Corporation of the City of Nagpur Civil Lines, Nagpur and another vs. Ramchandra G Modak and others, AIR 1984 SC 626 , State of Haryana vs. Hari Ram Yadav and others, AIR 1994 SC 1262 , Inspector General of Police and another vs. Thavasiappan, (1996) 2 SCC 145 , U.P. Rajya Krishi Utpadan Mandi Parishad and others vs. Sanjiv Rajan, (1993) Suppl. 3 SCC 483 and N.K. Pandey vs. State of M.P. and others, 2012 (1) MPLJ 479 . 5. I have considered the respective submissions made by learned counsel for the parties. Before proceeding further it is appropriate to notice relevant statutory provisions. Admittedly, the service conditions of the petitioner are governed by Madhya Pradesh Municipal Corporation (Appointment and Conditions of Services of Officers and Servants), Rules, 2000 (hereinafter referred to as the 2000 Rules'). In view of Rule 13(2) of 2000 the provisions of 1966 Rules as well as provisions of CCA Rules apply to the officers and servants of the Corporation. Under Rule 9(1) of the CCA Rules it is provided that the appointing authority or any authority to which it is subordinate or disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension where a disciplinary proceeding against him is contemplated or is pending or any criminal offence is under investigation, inquiry of trial. Second proviso of Rule 9 stipulates that where the order of suspension is made by the authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. 6. Section 53 of the Act provides the manner in which the proceedings of the Corporation, Mayor-in-Council or any committee shall be recorded, section 420 thereof provides notwithstanding anything contained in this Act, if in the opinion of the Government any officer or servant of the Corporation is negligent in the discharge of his duties, the Corporation shall, on the requirement of the Government, suspend, fine or otherwise punish him, and if in the opinion of the Government he is unfit for his employment, the Corporation shall dismiss him. 7. 7. It is well settled legal principle that when a statute prescribes a mode of doing an act in a particular manner, that act has to be done in that manner alone and other modes of its performance are forbidden. [Bhagwant Rai and others vs. State of Punjab and others, (1995) 5 SCC 440 and I.T.C. Bhadrachalam Paper Boards and another vs. Mandal Revenue Officer, A.P. and others, (1996) 6 SCC 634 ]. It is equally well settled rule of Administrative Law that when the statute confers a discretion on the authority to take action in the prescribed manner, the authority has to exercise the discretion independently on its own. If an authority exercises the discretion vested in it by law under dictation from or at the behest of the Superior Authority in a specific manner, the same would tantamount to non-exercise of discretionary power by the authority and such an action or decision cannot have any sanctity in law. In State of U.P. vs. Maharaj Dharmendra Prasad Singh, (1989) 2 SCC 505 , the Supreme Court has held that Statutory Authority cannot permit its discretion to be influenced by the dictation of others as the same would amount to abdication and surrender of its discretion. Similarly, in Anirudhsinghji Karansingji Jadeja vs. State of Gujarat, AIR 1995 SC 2390 , Supreme Court has held that discretion exercised under the dictates or instructions of a Higher Authority amounts to failure to exercise the discretion altogether. In Panchmchand vs. State of Himachal Pradesh, 2008 (4) MPLJ (S.C.) 99 : (2008) 7 SCC 117 , the Supreme Court has held that an authority has to act within the four corners of the Act and not under on the dictates of a Superior Authority. 8. After having noticed relevant statutory provisions and the well settled legal principles of law, I may advert to the facts of the case. Admittedly, the Disciplinary Authority of the petitioner is Mayor-in-Council and against the order of suspension, admittedly, an appeal lies under Rule 23 of 1966 Rules to the State Government. In the instant case, the State Government by order dated 10-9-2007 directed the Commissioner, Municipal Corporation, Bhopal to forthwith suspend the petitioner and to institute a departmental enquiry. Thereupon the Commissioner on the same day suspended the petitioner. In the instant case, the State Government by order dated 10-9-2007 directed the Commissioner, Municipal Corporation, Bhopal to forthwith suspend the petitioner and to institute a departmental enquiry. Thereupon the Commissioner on the same day suspended the petitioner. If the order (Annexure-P-1) is read in its entirety it leaves no iota of doubt that same has been passed at the behest of the appellate authority i.e. the State Government. Thus, in the facts of the case the Commissioner has failed to exercise the discretion vested in him under Rule 9 of 1966 Rules and has exercised the same at the dictates of the appellate authority, therefore, the order cannot have any sanctity in law. So far as the contention made by learned counsel for respondents No. 3 and 4 that the State Government has the power under section 420 of the Act to direct suspension of an employee is concerned, suffice it to say, the order dated 10-9-2007 has been passed by the Commissioner and not by the State Government. Therefore, apparently, the order of suspension has not been passed by the State Government in exercise of powers under section 420 of the Act. 9. Section 55 of the Act provides that Commissioner shall be the principal executive officer of the Corporation and all other officers and servants of the Corporation except the servants and officers of the Corporation office shall be subordinate to him. Thus, in view of section 55 of the Act the Commissioner is the Controlling Authority of the petitioner. In (1997) 6 SCC 75 : (1996) 4 SCC 708 it has been held by the Supreme Court that the Controlling Authority can also initiate the disciplinary proceedings. In the instant case, the charge-sheet has been issued by the Controlling Authority, namely, the Commissioner, who is competent to issue the charge-sheet. Therefore, the charge-sheet issued to the petitioner cannot be quashed on the ground that it has not been issued by the competent authority. In the instant case, the charge-sheet has been issued by the Controlling Authority, namely, the Commissioner, who is competent to issue the charge-sheet. Therefore, the charge-sheet issued to the petitioner cannot be quashed on the ground that it has not been issued by the competent authority. However, in view of the statement made by learned counsel for the respondents No. 3 and 4 that the charges contained in the charge-sheet do not have any relation with the proceedings pending against the petitioner under the Prevention of Corruption Act, 1988 as the same relates to the misconduct under the provisions of Conduct Rules and in view of the fact that Corporation has expressed its willingness to expeditiously conclude the departmental enquiry which is pending against the petitioner for past about 5 years, in the facts of the case the proceeding in the departmental enquiry needs to be expedited. 10. In the preceding analysis the order of suspension dated 10-9-2007 (Annexure-P-1) and the order passed by the State Government dated 29-6-2011 are hereby quashed. Needless to state, the competent authority would be at liberty to take appropriate action in accordance with the law to place the petitioner under suspension. The competent authority is further directed to ensure that the disciplinary proceeding initiated against the petitioner shall be concluded expeditiously preferably within a period of six months from the date of production of certified copy of the order passed today. Needless to state, the petitioner shall co-operate with the proceeding in departmental enquiry and shall not seek unnecessary adjournments. Accordingly, the writ petition is disposed of.