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Madhya Pradesh High Court · body

2014 DIGILAW 1430 (MP)

Savita Yadav v. State of M. P.

2014-11-05

PRAKASH SHRIVASTAVA

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Judgment Prakash Shrivastava, J. 1. The petitioner being aggrieved with the order of suspension dated 6-6-2012 and the charge-sheet dated 7-7-2012 has approached this Court. In brief, the case of petitioner is that she was initially appointed as Medical Officer on Class-II post and has been granted senior grade w.e.f. 1-1-1999 and the selection grade pay scale of ` 12,000-16500/- w.e.f. 1-1-2005 therefore, she has become class-I officer. She has been placed under suspension by order dated 6-6-2012 by the Collector. The order of suspension has been approved by the impugned order dated 7-7-2012 by the Commissioner. She has been issued the charge-sheet dated 7-7-2012 by the Commissioner. Petitioner has questioned the authority of Collector and Commissioner to pass the impugned orders of suspension and issuing charge-sheet. 2. A reply has been filed by the respondents taking the stand that the petitioner has been placed under suspension in terms of the applicable service Rules and the Commissioner is competent to issue the charge-sheet to the petitioner. 3. Learned counsel for petitioner submits that the Commissioner was not empowered to issue the charge-sheet to the petitioner who is a class-I employee since the Disciplinary Authority for Class-I employee is the State Government which alone could have issued the charge-sheet. He further submits that the Collector was not competent to place the petitioner under suspension and the subsequent approval of the order of suspension by the Commissioner will not validate the Collector's order. 4. As against this, Counsel for State has supported the order of suspension and issuance of charge-sheet on the ground that the petitioner has been suspended and charge-sheet has been issued by the competent authority in accordance with Rules. 5. Having heard the learned counsel for the parties and on perusal of the record, it is found that the respondents have not disputed the fact that the petitioner is working on Class-I post. In terms of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short Rules) and Schedule appended thereto for Class-I post in the Public Health Department, the State Government is the appointing authority as also the authority competent to impose the penalties. 6. In the present case, charge-sheet has been issued by the Commissioner and not by the State Government, therefore, it is to be examined if the Commissioner was competent to issue the charge-sheet. 7. 6. In the present case, charge-sheet has been issued by the Commissioner and not by the State Government, therefore, it is to be examined if the Commissioner was competent to issue the charge-sheet. 7. Major and minor penalties have been specified in Rule 10. Rule 12 of the Rules, provides for disciplinary authorities competent to impose penalty under Rule 10. Relevant part of Rule 12 reads as under : "12. Disciplinary authorities.--(1) The Government may impose any of the penalties specified in Rule 10 on any Government servant. (2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (3), any of the penalties specified in Rule 10 may be imposed on-- (a) a member of State Civil Service by the appointing authority or the authority specified in the Schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the Governor. (b) a person appointed to a State Civil post by the authority specified in this behalf by a general or special order of the Governor. Or {x x x} by the appointing authority or the authority specified in the Schedule in this behalf. (3) Notwithstanding anything contained in this rule :- (a) no penalty specified in clauses (v) to (ix) of Rule 10 shall be imposed by any authority subordinate to the appointing authority : (Provided that the High Court shall have the power to impose all the penalties except penalties as specified in clause (vi) so far as it relates to reduction in rank i.e. post of service) and clauses (vii) to (ix) of Rule 10):" 8. In terms of the Rule 12(2) any penalty, either minor or major, can be imposed by the appointing authority or the authorities specified in Schedule or any other authority empowered by the general or special order of the Governor. In terms of the Rule 12(2) any penalty, either minor or major, can be imposed by the appointing authority or the authorities specified in Schedule or any other authority empowered by the general or special order of the Governor. The Governor by order dated 13th August, 1997 exercising the power under Rule 12(a) and (b) has issued the following order empowering all the Divisional Commissioners of the State to impose the minor penalties under Rule 10 on Class-I and Class-II Officers (except of the officers of the Judicial Services and the Police Department) of the State Government posted within their respective divisions :- "No. C-6-5-1997-3-I. In pursuance of Clause (a) and (b) of sub-rule (2) of Rule 12 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, the Governor of Madhya Pradesh hereby, empowers all Divisional Commissioners of the State to impose the penalties specified in clauses (i) to (iv) of Rule 10 of the said Rules on Class I and Class II officers (except of the officers of the Judicial Services and the police department) of the State Government posted within their respective divisions." 9. The position has further been clarified by subsequent order of Governor under the above Rules published in the gazette dated 15th September, 2008 empowering all the Divisional Commissioners of the State to take disciplinary action and impose minor penalties, which reads as under : "Bhopal, the 15th September, 2008 No. C-6-1-2008-3-I.--In pursuance of clause (a) and (b) of sub-rule (2) of Rule 12 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and in supersession of this Department's Notification No. C-6-5-1997-3-I, dated 1st January, 2002, the Governor of Madhya Pradesh hereby empowers all Divisional Commissioners of the State to take disciplinary action and to impose the penalties specified in clause (I) to (IV) of Rule 10 of said Rules on Class I and Class II Government servants (except the officers of the Judicial services, police department and posted in non-governmental Institutions/Organizations/Undertakings) of the State Government posted within their respective divisions. By order and in the name of the Governor of Madhya Pradesh AQUEELA HASHMAT, Dy. Secy." 10. By order and in the name of the Governor of Madhya Pradesh AQUEELA HASHMAT, Dy. Secy." 10. In terms of Article 311(1) of the Constitution of India, no member of the State Civil Service or holder of the civil post can be dismissed or removed by an authority subordinate to the appointing authority, but Article 311(1) of the Constitution does not provide that even the departmental proceeding must be initiated only by the appointing authority. If there is no Rule providing for initiation of the departmental proceeding by the appointing authority, then any superior controlling authority can initiate departmental proceeding. Hence initiation and conducting of departmental proceeding can be by any superior controlling authority in addition to the authority competent to impose penalty, if the relevant service Rules do not prohibit the same [See : P.V. Srinivasa Sastry and others v. Comptroller and Auditor General and others, reported in (1993) 1 SCC 419 , Inspector General of Police and another v. Thavasiappan, reported in (1996) 2 SCC 145 and State of U.P. and another v. Chandrapal Singh and another, reported in (2003) 4 SCC 670 ]. 11. A conjoint reading of the Rules of 1966 with the orders of Governor dated 13th August, 1997 and 15th September, 2008 make it clear that the State Government is competent to impose any penalty either minor or major to the petitioner and the Commissioner is competent to take disciplinary action and to impose minor penalty on the petitioner who is a class-I employee. No Rule has been pointed out by counsel for petitioner prohibiting the superior controlling authority other than the appointing authority or the disciplinary authority from initiation of the departmental enquiry and conducting the same. Thus, the Commissioner is competent to initiate and conduct the departmental enquiry against the class I and II government employee for imposing minor or major penalty and he can also impose minor penalty but as required by Rule 12(3)(a) major penalty provided in Rule 10(v) to (ix) cannot be imposed by the Commissioner since he is subordinate to the appointing authority. In such a case the commissioner is required to take recourse to sub-rule (21) of Rule 14 under which the Commissioner, after concluding the enquiry if finds it to be a case of imposition of major penalty, has to forward the record to the State Government/disciplinary authority competent to impose major penalty for appropriate decision. In such a case the commissioner is required to take recourse to sub-rule (21) of Rule 14 under which the Commissioner, after concluding the enquiry if finds it to be a case of imposition of major penalty, has to forward the record to the State Government/disciplinary authority competent to impose major penalty for appropriate decision. Rule 14(21) reads as under : "(21)(a) Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule 10, (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule 10), has itself inquired into or the articles of any charge and that authority, having regard to its own finding or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of opinion that the penalties specified in clauses (v) to (ix) of Rule 10 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. (b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses if necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules." 12. Counsel for petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Union of India and others v. B.V. Gopinath, reported in (2014) 1 SCC 351 , wherein the Supreme Court explaining the expression of "shall cause to be drawn up" in Rule 14(3) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 has held that it permits the disciplinary authority to delegate to subordinate authority task of drawing up substance of proposed definite and distinct articles of charge-sheet only, but it does not provide for delegation of power of approval to proposed charge-sheet, and therefore, in that case in absence of the approval of disciplinary authority (FM) charge-sheet was found to be non-est but in the present case, the Commissioner who has issued the charge-sheet is the competent authority in terms of Rule 12 and in terms of orders of Governor dated 13-8-1997 and 15-9-2008. 13. Counsel for petitioner referring to order of the Governor dated 13-8-1997 has submitted that power to take disciplinary action and initiating enquiry cannot be sub-delegated to the Commissioner but the orders of Governor dated 13th August, 1997 and 15 September, 2008 are not orders of sub-delegation but these are the orders passed by the Governor exercising power under Rule 12(2)(a) and (b) of Rules, 1966 which empowers the Governor to authorise any authority to impose any of the minor penalty under Rule 10. 14. In view of the above, I am of the opinion that the charge-sheet which has been issued by the Commissioner to the petitioner is by the competent authority and issuance of the charge-sheet cannot be faulted on that ground. 15. The petitioner has also challenged the order of suspension dated 6-6-2012 issued by the Collector as approved by the Commissioner Indore Division Indore vide order dated 7-7-2012. The Collector is neither the appointing authority nor the disciplinary authority of the petitioner. Rule 9 provides for placing a government servant under suspension by the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other empowered authority. Second proviso to Rule 9(1) deals with the case where the order of suspension is made by the authority lower than the appointing authority. Rule 9(1) reads as under : "9. Second proviso to Rule 9(1) deals with the case where the order of suspension is made by the authority lower than the appointing authority. Rule 9(1) reads as under : "9. (1) The appointing authority or any authority to which it is subordinate or the 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-- (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation , inquiry of trial: Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed after sanction of prosecution by the government against him : Provided further that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made." 16. In the present case the petitioner has been placed under suspension by the Collector who is neither the appointing authority of petitioner nor the disciplinary authority or an authority authorised by the order of Governor. In terms of the second proviso to Rule 9(1) the Collector has not reported to the appointing authority the circumstances in which the order was made. Mere approval of the order of suspension by the Commissioner will not validate the suspension order of the Collector because the Commissioner is not the appointing authority but he is only the disciplinary authority as held above. Thus, the impugned order of suspension dated 6-6-2012 passed by the Collector as approved by the Commissioner by order dated 7-7-2012 cannot be sustained and is hereby set aside. It will be open to the competent authority to place the petitioner under suspension in accordance with the Rules. C.C. as per rules.