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2013 DIGILAW 476 (MP)

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

2013-04-08

R.S.JHA, S.A.BOBDE

body2013
JUDGMENT : As per R.S. Jha, J.:- The appellant has filed this appeal under Section 2 (1) of the M.P. Uchcha-Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005, being aggrieved by order dated 13-2-2013 passed by the learned Single Judge in W.P. No. 2345/2012 whereby the order dated 10-9-2007 and 29-6-2011 passed by the Commissioner, Municipal Corporation, Bhopal and the State Government respectively suspending the appellant, have been quashed while the charge-sheet issued to the appellant on 18-10-2007 has been upheld. 2. The undisputed facts of the case are that action had been taken against the appellant on account of the fact that an Income Tax raid for search and seizure was made in his premises on 5-4-2007 during which cash worth Rs. 4.82 lacs and several documents relating to investments were seized which indicated that the appellant had relations with several builders. The State Government, on receiving the aforesaid information, issued an order on 10-9-2007 directing the Municipal Corporation, Bhopal to suspend the appellant and to initiate a departmental enquiry against him pursuant to which the Commissioner, Municipal Corporation, Bhopal passed the order of suspension of the appellant on the same day, i.e., on 10-9-2007 with information of the same to the Mayor-in-Council. The order of the Commissioner was placed before the Mayor-in-Council who ratified it by granting approval to it in its meeting held on 12-9-2007. The writ petitions, earlier filed by the appellant against the order of his suspension, were disposed of with a direction to the Appellate Authority to decide his appeal which was ultimately decided by the Appellate Authority of the State Government on 29-6-2011 and the matter was sent back to the Municipal Corporation, Bhopal for reconsideration. The appellant, thereafter, being aggrieved filed W.P. No. 2345/2012 which has been partly allowed and the impugned order of suspension dated 10-9-2007 and the order passed by the Appellate Authority dated 29-6-2011 have been quashed granting liberty to the Competent Authority to take fresh action against the appellant to place him under suspension. The prayer made by the appellant for quashing the charge-sheet dated 18-10-2007 has been rejected. The appellant, being aggrieved by the order of the learned Single Judge, has filed the present appeal before this Court. 3. The prayer made by the appellant for quashing the charge-sheet dated 18-10-2007 has been rejected. The appellant, being aggrieved by the order of the learned Single Judge, has filed the present appeal before this Court. 3. The learned Senior Counsel for the appellant has assailed the order passed by the learned Single Judge on the ground that in view of the provisions of the M.P, Municipal Corporations (Appointment and Conditions of Service of Officers and Servants) Rules, 2000 (hereinafter referred to as "the Corporation Rules") and the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Civil Service Rules") and the admitted fact that the Appointing Authority of the appellant is the Mayor-in-Council the charge-sheet issued on 18-10-2007 by the Commissioner, Municipal Corporation, Bhopal, who is not the Appointing Authority of the appellant, deserves to be quashed on the ground that it was issued without power, authority or jurisdiction. It is submitted that the learned Single Judge should have quashed the impugned charge-sheet on the same grounds on which the order of suspension was quashed as the impugned charge-sheet has been issued on the directions of the State Government and, therefore, the impugned order of the learned Single Judge, upholding the charge-sheet while quashing the order of suspension which suffers from the same illegality, deserves to be set aside. 4. The learned Counsel appearing for the respondent-Corporation, on advance copy, submits that on search and seizure proceedings being conducted at the appellant's premises several incriminating documents relating to property as well as cash were seized from the premises of the appellant and as the conduct of the appellant was negligent in the discharge of his duties, therefore, the State Government issued an order on 10-9-2007 directing the Municipal Corporation to suspend the appellant and to initiate a departmental enquiry against him. It is submitted that the State Government is competent to issue such a direction under Section 420 of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as "the Act") and even though the said provision has not been mentioned in the order, the power of the State Government to issue such a direction flows from Section 420 of the Act. 5. 5. It is submitted that pursuant to the direction of the State Government, the matter was taken up urgently and in compliance of the order of the State Government, the appellant was immediately placed under suspension by the Commissioner on the same date, i.e., on 10-9-2007 and, thereafter, the matter was placed before the Mayor-in-Council, who is the Appointing Authority of the appellant, who in turn granted ex facto approval to the action of the Commissioner taken in compliance of the direction of the State Government, in its meeting held on 12-9-2007, and thereafter, the impugned charge-sheet has been issued on 18-10-2007. 6. It is submitted by the respondents that the Mayor-in-Council granted approval to the action of the Commissioner in taking steps in compliance of the order passed by the State Government dated 10-9-2007, which also directed initiation of a departmental enquiry and, therefore, as the Mayor-in-Council granted approval for suspension as well as for initiating a departmental enquiry, the Commissioner issued a charge-sheet to the appellant on 18-10-2007. In the circumstances, it is submitted that in view of the clear and specific provision of Section 420 of the Act and the approval of the Mayor-in-Council in its meeting held on 12-9-2007, the contentions of the appellant are totally misconceived and deserves to be rejected. 7. The learned Dy. Advocate General appearing for the State has reiterated and adopted the arguments of the learned Counsel for the Corporation. 8. We have heard the learned Counsel for the parties at length. Section 420 of the Act, reads as under :- "420. Power to demand punishment or dismissal.- 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." 9. From a perusal of the aforesaid section, it is clear that it contains a non obstante clause giving it an overriding effect on all other provisions of the Act as well as subordinate legislation including the rules and empowers the State Government to direct the Corporation to suspend, fine or otherwise punish any officer or servant of the Corporation who is negligent in the discharge of his duties and also further stipulates that if in the opinion of the Government he is unfit for employment, the Corporation shall dismiss him. It is also clear from a perusal of Section 420 of the Act, that it does not confer or vest any discretion in the Corporation to sit over the directions issued by the Government. 10. Apparently, the power and authority of the Government to issue the order dated 10-9-2007 can be traced to and is contained in Section 420 of the Act, even if there is no mention of the provision in the order. It is further clear that in view of the order issued by the State Government under Section 420 of the Act, the appellant was placed under suspension on 10-9-2007 by the Commissioner and, thereafter, the Mayor-in-Council in its meeting held on 12-9-2007 has granted ex facto approval to the action being taken by the Commissioner in compliance of the direction issued by the State Government subsequent to which the charge-sheet has been issued on 18-10-2007. II. At this stage, it is pertinent to note that the Mayor-in-Council, who is the Appointing Authority and the Competent Authority, in its meeting held on 12-9-2007, has granted ex facto approval and sanction to the action being taken by the Commissioner in compliance of the order issued by the Urban Administration and Development Department of the State of M.P., dated 10-9-2007 whereby the State has directed the Corporation to suspend the appellant as well as to initiate a departmental enquiry against him and, therefore, the Mayor-in-Council, who is the Competent Authority, has not limited or confined its sanction and approval to the order of suspension alone but has in fact approved all the steps taken by the Commissioner in compliance of the directions of the Government including initiating a departmental enquiry against the appellant. 12. 12. In view of the aforesaid facts and circumstances of the present case, it is manifestly clear that the impugned order of suspension dated 10-9-2007 and the impugned charge-sheet dated 18-10-2007 have been issued by the Commissioner in compliance of the order issued by the State Government under Section 420 of the Act, and the Appointing Authority, i.e., the Mayor-in-Council has also approved the same, therefore, the contention of the appellant based on other provisions of the Act and the provisions of the Corporation Rules and the Civil Services Rules, which are both subordinate legislation, have no merit and deserve to be rejected as it is settled law that the statutory provisions of Section 420 of the Act, which starts with a non obstante clause, will prevail over the other provisions of the Act and the Rules which are in the nature of subordinate legislation. 13. We are also of the considered opinion that as the action taken by the Commissioner against the appellant has been approved and affirmed by the Mayor-h-Council, who is the Competent Authority, in its meeting held on 12-9-2007, therefore, the contention of the appellant that the impugned orders issued by the Commissioner lack authority, is also misplaced and misconceived. A similar view has been taken by a Division Bench of this Court in the case of Shankerlal Choube Vs. Shri L.P. Tiwari, Commissioner, Municipal Corporation, Jabalpur and others, 1965 MPLJ 934 . 14. We are also of the considered opinion that in view of the specific statutory provisions of Section 420 of the Act which empowers the Government to issue direction to the Corporation or its officers to suspend or initiate departmental proceedings against an employee thereby leaving them with no discretion in the matter the general principle of administrative law which prohibit abdication or exercise of discretionary powers by an authority on the dictates of a Superior Authority would not be applicable to the present case in view of the specific power to issue directions conferred by Section 420 of the Act, upon the Government, as application of the said principle to the present case by ignoring the provisions of Section 420 of the Act, would lead to an absurd and unwanted situation which would render the statutory provisions of Section 420 of the Act, otiose and redundant. 15. 15. We are, therefore, of the considered opinion that the reasoning to the contrary, given by the learned Single Judge by relying upon the cases of the Supreme Court rendered in the cases of State of U.P. and others Vs. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505 ; Anirudhsinhji Karansinhji Jadeja and another Vs. State of Gujarat, AIR 1995 SC 2390 ; and Pancham Chand and others Vs. State of Himachal Pradesh and others, (2008) 7 SCC 117 , cannot be sustained and deserves to be set aside as the said judgments of the Supreme Court are not applicable to the facts and circumstances of the present case specifically in view of the existence of a statutory provision like Section 420 of the Act. 16. The reasoning of the learned Single Judge, contrary to what we have stated above, is accordingly set aside. However, as the respondents have not assailed the order of the learned Single Judge, we think it appropriate not to interfere in the conclusion recorded by the learned Single Judge of quashing the order of suspension. It is clarified that while the reasons given by the learned Single Judge for quashing the order of suspension are set aside, the result is not disturbed only on account of the fact that it has not been assailed or challenged by the respondents. 17. In the facts and circumstances of the present case, for the aforementioned reasons, i. e., the statutory provisions of Section 420 of the Act, and the approval granted by the Mayor-in-Council on 12-9-2007, we uphold the order of the learned Single Judge dismissing the petition relating to the challenge to the charge-sheet dated 18-10-2007. 18. With the aforesaid observation, the appeal filed by the appellant stands. dismissed. There shall be no order as to the costs.