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2015 DIGILAW 708 (MP)

Brajesh Singh v. State of M. P.

2015-07-09

K.K.TRIVEDI

body2015
ORDER : K.K. Trivedi, J. The petitioner, who was at the relevant time posted as Registrar, Awadhesh Pratap Singh Vishwavidyalaya, Rewa (hereinafter referred to as the University for brevity), has initially challenged the order dated 28.03.2014, by which the respondent No. 1/State Government has placed him under suspension in terms of provisions of Rule 9 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966 for brevity) on various grounds. It is contended that only to circumvent the orders passed by this Court on earlier occasion, the order of suspension has been issued against the petitioner. It is the case of the petitioner that since he was posted on deputation and that deputation was curtailed by the respondent-State, a writ petition was required to be filed by the petitioner being Writ Petition No. 3618/2014. This Court has admitted the aforesaid writ petition and has granted an interim stay to the petitioner. However, since the respondent-State was not happy with such an action taken by the petitioner, the order impugned of suspension was issued. 2. During pendency of the writ petition, since a charge sheet was issued to the petitioner, assailing the said charge sheet also, an amendment has been made in the writ petition and by way of amended pleadings, the charge sheet dated 19.4.2014 and 29.5.2014 are also called in question. An application was made by the petitioner stating that since he was on deputation under the provisions of Rule 20 of the Rules of 1966, the petitioner could not have been placed under suspension by the State Government. Detailed hearing of the said application was done on 17.10.2014 and since it was found that the petitioner being a Government Officer was governed by the Rules of 1966 and could have been placed under suspension even when he was on deputation, in exercise of the power under Rule 9 of the Rules of 1966, such a prayer of the petitioner was rejected. Notably, this order has not been called in question anywhere nor has been set aside by any higher forum, therefore, the same has attained finality. The issue raised by the petitioner in these circumstances relating to the authority and jurisdiction of the respondent No. 1 in placing the petitioner under suspension is not required to be tested once again. 3. Notably, this order has not been called in question anywhere nor has been set aside by any higher forum, therefore, the same has attained finality. The issue raised by the petitioner in these circumstances relating to the authority and jurisdiction of the respondent No. 1 in placing the petitioner under suspension is not required to be tested once again. 3. Indeed, while the order of repatriation was challenged by the petitioner and an interim stay was granted by this Court, the State Government has passed an order on 27.5.2014 cancelling the said order, as a result, challenge to the said order in Writ Petition No. 3618/2014 has come to an end. Even before cancellation of that order, on account of certain irregularities pointed out, if the competent authority has issued an order of suspension, the allegation of malafides cannot be sustained. Further, the authorities against whom allegations of malafides are made, are not impleaded by name as a party to show any personal bias of any higher officials of the State against the petitioner. In absence of such specific grounds, allegations of malafides are not to be looked into. The petition is, thus, not maintainable on this count. 4. It is not in dispute that the petitioner is holding a lien on the substantive post in the Government Department which post is squarely covered by the Rules of 1966. The power to place any person under suspension under Rule 9 of the Rules of 1966 is available to the appointing authority or any authority which is higher to the appointing authority or the disciplinary authority. It is not the case of the petitioner that none of those authorities have issued the order of suspension and, therefore, it cannot be said to be violative or de hors the Rules and is, therefore, not amenable to a challenge in the writ petition directly specifically under the circumstances when an appeal against such an order is provided under Rule 23 of the Rules of 1966, wherein it is specifically provided that an appeal can be preferred against an order of suspension made or deemed to have been made under Rule 9 of the Rules of 1966. The efficacious remedy of appeal was available to the petitioner which he has not deliberately resorted to. Ofcourse in the case of Whirlpool Corporation Vs. The efficacious remedy of appeal was available to the petitioner which he has not deliberately resorted to. Ofcourse in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 the Apex Court has held that an alternative remedy is not a bar to exercise power under Article 226 of the Constitution of India by this Court, but keeping in view the detailed deliberation done in the matter of grant of interim relief vide order dated 17.10.2014, it was necessary for the petitioner to resort to the said remedy as allegations of malafides were not accepted nor it was held that the authority was not competent to place the petitioner under suspension. 5. Now adverting to the allegations of charge sheet being incompetent or otherwise not maintainable suffice it to say that the same is also not required at this stage. The Apex Court in catena of cases has held that gravity of charges of misconduct are required to be tested only in the departmental enquiry by the enquiry officers while recording the evidence. The allegations made by the petitioner that he has not committed any misconduct relating to the function which he is required to discharge as Registrar of the University, as is not within the statutory duties to be performed by the said authority in terms of provisions of M.P. Universities Act, 1973, cannot be sustained at this stage as whether the petitioner was required to discharge such duties or not and whether any lapses in performing the said duty will amount to a misconduct or not, has to be tested by the enquiry officer while conducting the enquiry. This Court is not required to look into those aspects nor is supposed to conduct the enquiry on its own to test the validity of the charge sheet. 6. In the case of Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, AIR 2007 SC 906 while considering the scope and extent of judicial review and interference in charge sheet permissible under Article 226 of the Constitution of India, the Apex Court has held in paragraph 13, 14, 15 & 16 as under :- "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board Vs. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, AIR 1996 SC 691 ; The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, AIR 2004 SC 1467 ; Ulagappa and Others Vs. Divn. Commr. and Others, AIR 2000 SC 3603 (1); State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, AIR 1987 SC 943 , etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." 7. Similarly, in the case of The Secretary, Min. of Defence and Others Vs. However, ordinarily the High Court should not interfere in such a matter." 7. Similarly, in the case of The Secretary, Min. of Defence and Others Vs. Prabhash Chandra Mirdha, AIR 2012 SC 2250 the Apex Court has held that ordinarily a writ petition does not lie against the charge-sheet or a show cause notice as it does not give rise to any cause of action unless the same has been issued by an authority not competent to initiate departmental proceedings. The Supreme Court has laid down the law in this regard by relying on several previous decision, in the following terms:- "10. Ordinarily a writ application does not lie against a charge sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, AIR 1987 SC 943 ; Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh and others, AIR 1996 SC 691 ; Ulagappa and Others Vs. Divn. Commr. and Others, AIR 2000 SC 3603 (1); The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, AIR 2004 SC 1467 ; and Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, AIR 2007 SC 906). 11. In State of Orissa and Another Vs. Sangram Keshari Misra and Another, (2010) 13 SCC 311 this Court held that normally a charge sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also: Union of India (UOI) and Others Vs. Upendra Singh, (1994) 3 SCC 357 ]. 12. (See also: Union of India (UOI) and Others Vs. Upendra Singh, (1994) 3 SCC 357 ]. 12. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings." 8. In view of the aforesaid law laid down by the Apex Court, there is no requirement of exercising the extraordinary power under the writ jurisdiction by this Court to test the validity of such submission of the petitioner. Even otherwise, sufficient time has elapsed from the date of issuance of the charge sheet and it would have been much better for the petitioner to state his defence before the enquiry officer and to get a decision on merits of the departmental enquiry rather than challenging the same in such writ petition. 9. In view of the aforesaid, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.