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Madhya Pradesh High Court · body

2013 DIGILAW 513 (MP)

Dheer Singh Yadav v. State of M. P.

2013-04-15

Sujoy Paul

body2013
ORDER 1. By filing this petition under Article 226 of the Constitution, the petitioner has called in question the order dated 6.3.2013, whereby the respondent No.2, Commissioner, Higher Education while revoking the suspension of the petitioner posted him to Government College, Chanderi (Ashok Nagar). The petitioner was placed under suspension by order dated 2.5.2011 (Annexure P-2). At that point of time the petitioner was working as Lab Technician in Government Excellent Science College, Gwalior. This order of suspension was revoked by the same authority by Annexure P-1. 2. Shri Prashant Sharma, learned counsel for the petitioner, assailed this order on the basis of Division Bench judgment, reported in 2005(4) MPHT 352 (Kendriya Vidyalaya Sangthan and others v. Dr. R.K. Shastri and another). Learned counsel for the petitioner submits that on revocation, the petitioner was required to be reinstated on the same place from where he was placed under suspension. Shri Prashant Sharma submits that after suspension the petitioner could have been transferred by the competent authority but in the light of Dr. R.K. Shastri (supra), it was not open for the respondent No.2 to post the petitioner at Chanderi on revocation of the suspension. 3. Per contra, Shri M.P.S. Raghuvanshi, learned Additional Advocate General, supported the order and submits that if the relevant paragraphs of Dr. R.K. Shastri (supra), are taken into consideration, it will make it crystal clear that the said judgment has no application in the facts and circumstances of this case. He further submits that Dr. R.K. Shastri (supra), has no application and this point was considered by another Division Bench of this Court in ILR (2003) MP 491 (Union of India and others v. Sri Vilas Ramesh Chand Tarhate). 4. In rejoinder submission, Shri Prashant Sharma submits that the contention of learned Additional Advocate General is devoid of any merits wherein it is argued that Dr. R.K. Shastri’s case, the Division Bench has examined the nature of power exercised by the appellate authority while considering the appeal of the petitioner therein. Shri Prashant Sharma submits that if something is impermissible for the appellate authority, the same cannot be treated as permissible for the original authority. He submits that the appellate authority is equipped with more power than the original authority who placed the petitioner under suspension. For this reason only, the order of the original authorityis put to test before a higher authority (appellate authority). He submits that the appellate authority is equipped with more power than the original authority who placed the petitioner under suspension. For this reason only, the order of the original authorityis put to test before a higher authority (appellate authority). He submits that if revocation at a different place other than the place of suspension is impermissible for the appellate authority, for the same reason it is to be held as impermissible for the disciplinary/appointing authority. No other point is pressed by learned counsel nor any other authority is cited by them. 5. I have considered the rival contentions of the parties and perused the record. 6. Learned Additional Advocate General has relied on Division Bench judgment in Sri Vilas Ramesh Chand Tarhate (supra), and tried to distinguish the judgment passed in Dr. R.K. Shastri (supra). The argument of learned counsel for the petitioner is totally based on the judgment of Dr. R.K. Shastri (supra). Before dealing with those judgments, it is noteworthy that the basic principle to consider the judgment/precedent is that a judgment has to be examined in the facts and circumstances in which it is passed. This is settled in law that a judgment is an authority on a question which has been decided by it and is not a precedent on something which is logically flowing from it. The apex Court opined it in following words : “Chanchal Goyal (Dr.) v. State of Rajasthan [ (2003)3 SCC 485 ] : 7. The decisions relied upon by the learned counsel for the appellant were rendered in different factual background. A decision is an authority for what it decides and not for what could be inferred from the conclusion. Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and others [ (2003)2 SCC 111 ] : 59. A decision, as is well known, is an authority for which it is decided and not what can logcally be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. {See Ram Rakhi v. Union of India [ AIR 2002 Del. 458 (FB)]; Delhi Administration (NCT of Delhi) v. Manohar Lal [ (2002)7 SCC 222 ]; Haryana Financial Corporation v. Jagdamba Oil Mills [ (2002)3 SCC 496 ]; and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) [ (2002)257 ITR 123 (Del.)]}. {See Ram Rakhi v. Union of India [ AIR 2002 Del. 458 (FB)]; Delhi Administration (NCT of Delhi) v. Manohar Lal [ (2002)7 SCC 222 ]; Haryana Financial Corporation v. Jagdamba Oil Mills [ (2002)3 SCC 496 ]; and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) [ (2002)257 ITR 123 (Del.)]}. Union of India v. Major Bahadur Singh [ (2006)1 SCC 368 ] : 9. The Courts should not place reliance on decisions without discussing as to have the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co.Ltd. v. Horton3 Lord MacDermott observed (All ER p.14 CD) : “The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge ....” Commissioner of Customs (Port) v. Toyota Kirloskar Motor (P) Ltd. [ (2007)5 SCC 371 ] : 37. The observations made by this Court in Essar Gujarat Ltd., in para 18 must be understood in the factual matrix involved therein. The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom.” Thus, the basic question needs to be considered is what was the question involved in the case of Dr. R.K. Shastri (supra), and in which factual backdrop the aforesaid judgment was passed by the Division Bench. In Dr. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom.” Thus, the basic question needs to be considered is what was the question involved in the case of Dr. R.K. Shastri (supra), and in which factual backdrop the aforesaid judgment was passed by the Division Bench. In Dr. R.K. Shastri (supra), the employee was placed under suspension. Against the said suspension order he preferred an appeal under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity ‘CCA Rules’). The appellate authority while exercising the appellate powers flowing from rule 23(1) read with rule 27(2) of the said Rules revoked the suspension order and decided to post the petitioner elsewhere. This order was called in question by the employee before the Central Administrative Tribunal. The Tribunal opined that the appellate authority was not justified while revoking or setting aside the suspension to direct reinstatement of the employee to a place other than the place from where he was suspended. This order of the Tribunal was put to test before the Division Bench of this Court in 2005(4) MPHT 352 . Thus, it cannot be disputed that in Dr. R.K. Shastri, the factual backdrop on which adjudication was made was regarding the power of the appellate authority under rule 23(1) read with rule 27(2) of Central Civil Services (Classification, Control and Appeal) Rules, 1965. 7. Paragraph 9.2 of the judgment in Dr. R.K. Shastri (supra), speaks for itself, which reads as under : “9.2 Rule 27 relating to consideration of appeals contains three distinct provisions. Sub-rule (1) deals with appeals against suspension. Sub-rule (2) deals with appeals against imposition of penalty. Sub-rule (3) deals with the appellate authority to issue such directions as it may deem fit in the circumstances of the case and sub-rule (3) enables the appellate authority to make such orders as it may deem just and reasonable, significantly sub-rule (1) does not vest any such wide or discretionary power on the appellate authority while dealing with appeals against orders of suspension. Sub-rule (1) merely enables the appellate authority to either confirm the suspension or revoke the suspension. Rule 27(1) controls the manner of consideration and disposal of an appeal against suspension. Sub-rule (1) merely enables the appellate authority to either confirm the suspension or revoke the suspension. Rule 27(1) controls the manner of consideration and disposal of an appeal against suspension. Having regard to sub-rule (1) or rule 27, the appellate authority has no power, while considering an appeal against an order of suspension or while revoking the suspension, to direct transfer of an employee or making the revocation or suspension subject to the employee reporting at the place of transfer.” A bare perusal of this para shows that the Division Bench noted with profit that signifying sub-rule (1) does not vest any such wide or discretionary power on the appellate authority while dealing with appeals against orders of suspension. Sub-rule (1) merely enables the appellate authority to either confirm the suspension or revoke the suspension.Thus, the Division Bench opined on the basis of nature of power given to the appellate authority under s Statute, i.e., CCA Rules. Accordingly, in my opinion, this judgment has to be read in the context of power exercised by the appellate authority under the statutory rules. 8. The argument of Shri Prashant Sharma is that if something is impermissible for the appellate authority, the same needs to be decided as impermissible for the original authority. I am unable to accept this contention. The powers of the appellate authority are engrafted in the Statute. If the Statute prescribes a manner or a method to exercise those powers beyond which the said authority had no competence to exercise its power, the said power is to be tested on the anvil of the enabling provision in the Statute. No general principles or common sense can be imported for this purpose. In other words, when Statute in unequivocal terms makes it crystal clear that the appellate authority is equipped with the power either to uphold or set aside the suspension order, no other power can be read into the power of the appellate authority under the Statute. The controlling atuhority/disciplinary authority is equipped with the power to revoke the suspension but the question is while revoking suspension whether the said authority is obliged to post the petitioner on the same place from where he was placed under suspension. Shri Prashant Sharma submits that the disciplinary/appointing/controlling authority is obliged to revoke the suspension and place the petitioner on the same place. Shri Prashant Sharma submits that the disciplinary/appointing/controlling authority is obliged to revoke the suspension and place the petitioner on the same place. It is vehemently argued that if the contention of the State is accepted, it will result into a situation where the employees will be suspended, their post will be filled up bysomebody else and subsequentlyon revocation by taking shelter of filling up the post the employee will be posted elsewhere and it will cause heart-burning and prejudice to the employee. He submits that respondent No.2 has no power to direct reinstatement elsewhere. 9. In the opinion of this Court, in service jurisprudence, suspension is not treated as punishment. The authority who has suspended the petitioner has inherent power to revoke the suspension and post the person at an appropriate place. The basic question is whether as a matter of right the petitioner can claim the same place of posting, from where he was placed under suspension. Even in Dr. R.K. Shastri (supra), it was held that the employee retains his lien over the post from where he is suspended. The word “lien” is defined in Fundamental Rules as under : “ “Lien” means the title of a Government servant to hold substantively, either immediately or on the termination of a period of periods of absence, a permanent post including a tenure post, to which he has been appointed substantively.” A bare perusal of the definition makes it clear like a noon day that lien is the substantive right/title of a Government servant to hold a substantive post.This is settled in law that lien is maintained on a post and not on a place. This view is taken in (1989)2 SCC 84 (Haribans Mishra v. Railway Board), (1989)4 SCC 99 (Ramlal Khurana v. State of Punjab), and (1997)9 SCC 248 (Bihar State Water Development Corporation v. Arun Kumar Mishra). 10. Thus, the only substantive or statutory right of the petitioner was to occupy a substantive post which he was holding before suspension, on revocation of the suspension. He has no statutory, legal or constitutional right to get reinstated on a place from where the petitioner was placed under suspension. In absence of showing and establishing any substantive, legal, vested or constitutional right, I am unable to hold that the respondent No.2 has erred in reinstating the petitioner at Chanderi. He has no statutory, legal or constitutional right to get reinstated on a place from where the petitioner was placed under suspension. In absence of showing and establishing any substantive, legal, vested or constitutional right, I am unable to hold that the respondent No.2 has erred in reinstating the petitioner at Chanderi. In Sri Vilas Ramesh Chand Tarhate (supra), the Division Bench of this Court opined as under: “True it is, in the case at hand an order of suspension was passed and later on it was revoked, but revocation of the order of suspension does not confer a premium on the officer concerned to treat it as a privilege and put forth a claim as a matter of right to be retained at the place where he was posted.” (Emphasis supplied) 11. In the opinion of this Court, there is no conflict in view expressed in Sri Vilas Ramesh Chand Tarhate (supra), and Dr. R.K. Shastri (supra). Dr. R.K. Shastri’s case was decided on the basis of peculiar factual matrix wherein the appellate authority had exercised the power and the said power and the order was put to test before the Division Bench. In my considered opinion, the finding of this Court in Dr. R.K. Shastri (supra), in para 11 cannot be divorced from other paragraphs of the said judgment. It cannot be forgotten that in Dr. R.K. Shastri (supra), the Division Bench of this Court was examining the order of Central Administrative Tribunal wherein the Tribunal opined that the appellate authority under the CCA Rules had no power to post the suspended employee elsewhere and can either reject the appeal or revoke the suspension. At the cost of repetition, it is noteworthy that the judgment of a case has to be considered in the factual matrix in which it is passed. The judgments cannot be read as euclids theorem nor it can be read as a Statute. The Division Bench prior in time in Sri Vilas Ramesh Chand Tarhate (supra), had already opined that revocation of suspension does not confer a right on the officer concerned to claim as a matter of right to be retained at the place where he was posted. In Dr. R.K. Shastri (supra), in para 11 of the judgment, in continuation of the earlier paragraphs, the Division Bench made certain observations. In Dr. R.K. Shastri (supra), in para 11 of the judgment, in continuation of the earlier paragraphs, the Division Bench made certain observations. In my opinion, the ratio decidendi which is a precedent is about the competence of the appellate authority under the CCA Rules to revoke the suspension and on revocation whether such employee can be posted elsewhere by the appellate authority. The entire observation in para 11 in Dr. R.K. Shastri (supra), has to be read in the context of the power of the appellate authority. More so when in last four lines of para 11 the Division Bench made it clear that it agree with the finding of the Tribunal that order of appellate authority dated 6/8.7.2002 to the extent it posts the first respondent elsewhere is not proper and appellate authority cannot, in exercise of its appellate power, post the employee elsewhere. 12. On the basis of aforesaid analysis, in my opinion, Dr. R.K. Shastri (supra), has no application in the facts and circumstances of this case because the order impugned is not passed by the appellate authority. Accordingly, I find no reason to interfere in this matter. The impugned order has not caused any prejudice to the petitioner nor his legal, vested or constitutional right in any manner is infringed or taken away. 13. Resultantly, petition is dismissed. No costs. .............