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2022 DIGILAW 120 (CHH)

Archana Gupta v. State of Chhattisgarh

2022-03-07

SANJAY K.AGRAWAL

body2022
JUDGMENT : 1. This petition is directed against the order dated 27-8-2021 (Annexure P-1) by which the petitioner has been placed under suspension by respondent No.4 under Rule 53(1) of the Chhattisgarh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968 (for short, ‘the Rules of 1968’). 2. The petitioner was appointed on the post of Sub-Engineer by Nagar Panchayat, Jarhi by order dated 3-8-2010 and thereafter, the State Government by order dated 12-3-2018, transferred her services to Municipal Council, Surajpur, where she is presently working and by the impugned order, she has been placed under suspension alleging certain misconducts which has been sought to be challenged by filing this writ petition. 3. It is the case of the petitioner that she is working as Sub-Engineer in Municipal Council, Surajpur and she is an officer specified in Section 94(4) of the Chhattisgarh Municipalities Act, 1961 (for short, ‘the Act of 1961’) and her appointment has been confirmed by the State Government and therefore her suspension cannot be made without previous approval of the State Government under Section 94(5) of the Act of 1961. As such, the impugned order of suspension is liable to be set aside. 4. Return has been filed by the State/respondents No.1 to 3 stating inter alia that though the petitioner has been suspended, but the order of suspension has not been approved by the State Government and it has been rejected by the order of the Joint Director, Directorate of Urban Administration and Development, dated 2-2-2022, as such, the impugned order of suspension is without jurisdiction and without authority of law. 5. Respondent No.4 has filed separate return stating inter alia that on account of serious misconduct committed by the petitioner, she has been placed under suspension, as Municipal Council, Surajpur has jurisdiction to place her under suspension under Rule 53(1) of the Rules of 1968 and impose major penalty, and imposed major penalty. 6. Mr. Manoj Chauhan, learned counsel appearing for the petitioner, would submit that the petitioner is an officer specified in Section 94(4) of the Act of 1961 and therefore by virtue of Section 94(5) of the Act of 1961, the petitioner cannot be placed under suspension for more than one month without previous approval of the State Government. 6. Mr. Manoj Chauhan, learned counsel appearing for the petitioner, would submit that the petitioner is an officer specified in Section 94(4) of the Act of 1961 and therefore by virtue of Section 94(5) of the Act of 1961, the petitioner cannot be placed under suspension for more than one month without previous approval of the State Government. He would further submit that the State Government has categorically stated that the suspension order of the petitioner has not been approved by the State Government vide order Annexure R-1/1 and approval is required as per the circular Annexure P-3 dated 26-12-1996 and respondent No.4 being the borrowing authority has no competence and jurisdiction to place her under suspension, therefore, the impugned order is liable to be set aside. 7. Mr. Jitendra Pali, learned Deputy Advocate General appearing for the State/respondents No.1 to 3, would submit that by virtue of Section 94(7) of the Act of 1961, the State Government has jurisdiction to transfer any officer or servant of one Municipal Council to another Municipal Council mentioned in sub-sections (1) and (2) of Section 94 which includes Sub-Engineer also and therefore the transfer has rightly been made, but by virtue of Section 94(5) before placing the petitioner under suspension, previous approval of the State Government would be required and unless prior approval is granted, the impugned order would not be valid though by drawing the analogy of Rule 20 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, ‘the Rules of 1966’), Sub-Engineer can be placed under suspension by respondent No.4, but previous approval of suspension would be necessary as by virtue of Section 94(7) of the Act of 1961, Sub-Engineer of one Municipal Council transferred to another Municipal Council will be treated to be on deemed deputation to the Municipal Council where he has been transferred. He would further submit that Section 94(5) of the Act of 1961 would be required to be complied with, which the State Government has already refused, as such, the writ petition deserves to be dismissed. He would rely upon the decision of the Supreme Court in the matter of State of Madhya Pradesh v. Shankar Lal and others (1980) 1 SCC 702 to buttress his submission. 8. Ms. He would rely upon the decision of the Supreme Court in the matter of State of Madhya Pradesh v. Shankar Lal and others (1980) 1 SCC 702 to buttress his submission. 8. Ms. Ashwini Amin, learned counsel appearing for respondent No.4, would submit that the impugned order so passed is strictly in accordance with law, as the petitioner is guilty of serious misconduct and after contemplating departmental enquiry, she has been placed under suspension. Since the petitioner’s services have been transferred by respondent No.1 from the State Government to respondent No.4, respondent No.4 has power and jurisdiction to place her under suspension and by drawing the analogy of Rule 20 of the Rules of 1966, respondent No.4 can always place a municipal servant working with him under suspension. Therefore, the writ petition is liable to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the material available on record with utmost circumspection. 10. The post of Sub-Engineer in Nagar Palika Parishad, Surajpur – respondent No.4 and in Nagar Panchayat, Jarhi is a specified post under Section 94(4) of the Act of 1961. In the year 2010, the State Government conducted a common recruitment process for selection on the post of Sub-Engineer (Civil, Mechanical and Electrical) for several Municipal Corporations, Municipal Councils and Nagar Panchayats including for Nagar Panchayat, Jarhi. The petitioner was selected on the post of Sub-Engineer for Nagar Panchayat, Jarhi and she was appointed by the Nagar Panchayat, Jarhi by order dated 25- 8-2010 and thereafter, in exercise of power conferred under Section 94(1) of the Act of 1961, the State Government has transferred her services from Nagar Panchayat, Jarhi to respondent No.4 – Nagar Palika Parishad, Surajpur. By the impugned order Annexure P-1, the petitioner has been placed under suspension by the respondent Nagar Palika Parishad, Surajpur, in exercise of power conferred under Rule 53(1) of the Rules of 1968 which has been called in question by the petitioner in this writ petition particularly to the extent of suspending her from the post of Sub-Engineer. 11. By the impugned order Annexure P-1, the petitioner has been placed under suspension by the respondent Nagar Palika Parishad, Surajpur, in exercise of power conferred under Rule 53(1) of the Rules of 1968 which has been called in question by the petitioner in this writ petition particularly to the extent of suspending her from the post of Sub-Engineer. 11. Challenge to the order of suspension has been made on two counts; firstly, that the services of the petitioner have been transferred to respondent No.4 by way of transfer in exercise of power conferred upon Section 94(7) of the Act of 1961, therefore, respondent No.4 being the borrowing authority shall not have the powers of appointing authority for the purpose of placing the petitioner under suspension and therefore it is liable to be quashed, and secondly, that the petitioner cannot be placed under suspension for a period exceeding one month without the previous approval of the State Government under Section 94(5) of the Act of 1961. I shall consider both the submissions one by one. 12. Admittedly, respondent No.4 Municipal Council, Surajpur is having annual income of more than five lakhs of rupees. By virtue of Section 94(7) of the Act of 1961, the State Government is empowered to transfer any officer or servant of a Council mentioned in sub-sections (1) and (2) of Section 94. Though Sub-Engineer is not an officer mentioned in Section 94(1) of the Act of 1961, but the Supreme Court in Shankar Lal’s case (supra) considering the meaning of expression, “any officer or servant of a Council mentioned in sub-sections (1) & (2) of Section 94” held that all officers and servants appointed by the Municipal Council but not specified in sub-sections (1) & (2) of Section 94 are also covered by Section 94(7) and the State Government is entitled to transfer them. It was held by their Lordships as under : - “2. … The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub-sections (1) and (2)" occurring in sub-section (7) mean "any officer or servant as enumerated or specified in sub-sections (1) and (2)”; that is to say, the officers who can be transferred under sub-section (7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant. No other officer or servant can be transferred. No other officer or servant can be transferred. We do not think that the High Court is right in putting this restricted interpretation to sub-section (7) of Section 94. Other officers and servants who can be appointed by the Municipal Councils either under sub-section (1) or under sub-section (2) are also the officers and servants mentioned in these sub-sections for the purposes of sub-section (7). Theoretically, therefore the power does exist in the State Government to transfer them. We must, however, hasten to add that “in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of municipal employees getting small salaries. There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub-sections (1) and (2) and subjected to the exercise of power of transfer under sub-section (7).” 13. In view of the above, the post of Sub-Engineer – the petitioner herein, are covered by Section 94(1) read with Section 94(7) of the Act of 1961 and in exercise of those powers, the State Government has transferred the services of the petitioner to Municipal Council, Surajpur. 14. At this stage, it would be appropriate to notice Rule 20 of the Rules of 1966. Rule 20 of the Rules of 1966 has made provisions regarding officers lent the Union or any other State Government or any subordinate or Local Authority, etc. Sub-rule (1) of Rule 20 of the Rules of 1966 provides as under: - “20. 14. At this stage, it would be appropriate to notice Rule 20 of the Rules of 1966. Rule 20 of the Rules of 1966 has made provisions regarding officers lent the Union or any other State Government or any subordinate or Local Authority, etc. Sub-rule (1) of Rule 20 of the Rules of 1966 provides as under: - “20. Provisions regarding officers lent the Union or any other State Government or any subordinate or Local Authority, etc.-(1) Where the services of a Government servant are lent by one department to another department or to the Union Government or to any other State Government or any authority subordinate thereto or to a local or other authority (hereinafter in the rule referred to as ‘the borrowing authority’), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him: Provided that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant (hereinafter in this rule referred to as ‘the lending authority’) of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be.” 15. A careful perusal of sub-rule (1) of Rule 20 of the Rules of 1966 would show that where the services of a Government servant are lent by one department to another department or to the Union Government or to any other State Government or any authority subordinate thereto or to a local or other authority, the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him subject to that the borrowing authority shall forthwith inform the authority which lent the services of the Government servant of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding, as the case may be. 16. 16. In the instant case, though in case of municipal officers/servants, the provisions contained in Rule 20 of the Rules of 1966 would not be strictly applicable, but since the State Government has been empowered by Section 94(7) of the Act of 1961 to transfer a municipal officer from one Municipal Council to another Municipal Council/Nagar Panchayat, by drawing the analogy of Rule 20 of the Rules of 1966, it can safely be held that though respondent No.4 – Municipal Council, Surajpur is the borrowing authority of the petitioner and in that capacity, respondent No.4 being borrowing authority shall have power and jurisdiction to place a municipal officer/servant under suspension, however, respondent No.4 was required to inform forthwith to the lending authority leading to passing the impugned order of suspension. As such, the objection that the borrowing authority/respondent No.4 has no jurisdiction to pass the order of suspension sans merit, as respondent No.4 being the borrowing authority had power and jurisdiction of appointing authority for the purpose of placing the Government servant under suspension, otherwise, it will lead to a situation where the borrowing authority though would take the services of the municipal servant/Sub- Engineer, but would have no control and no power to take disciplinary action for his alleged misconduct in performance of his official duty, which the borrowing authority is otherwise legally obliged to take disciplinary action. 17. Now, realising the difficulty, Mr. Manoj Chauhan, learned counsel for the petitioner, would submit that the petitioner is an officer specified under Section 94(4) of the Act of 1961, but by virtue of Section 94(5), she cannot be placed under suspension for a period more than one month and if the suspension exceeds one month, it cannot be exercised without previous approval of the State Government. At this stage, it would be appropriate to notice Section 94(5) of the Act of 1961, which states as under :- “94. Appointment of staff.- (1) to (4) xxx xxx xxx (5) No order of suspension for a period exceeding one month shall be passed against any officer mentioned in or specified under sub-section (1) and no resignation tendered by any such officer shall be accepted without previous approval of the State Government.” 18. Appointment of staff.- (1) to (4) xxx xxx xxx (5) No order of suspension for a period exceeding one month shall be passed against any officer mentioned in or specified under sub-section (1) and no resignation tendered by any such officer shall be accepted without previous approval of the State Government.” 18. A focused glance of the aforesaid provision would show that the legislature has imposed an administrative check on the powers of the Council to place a municipal officer under suspension for more than one month. He or she can be placed under suspension for a period of one month, but if suspension has to exceed one month, then previous approval of the State Government is imperative and will be required. Section 94(5) of the Act of 1961 deals with the officers mentioned in as well as the officers specified under sub-section (1). Section 94(1) provides as under: - “94. Appointment of staff.-(1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under Section 95, appoint a Revenue Officer and an Accounts Officer and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties.” 19. A careful perusal of the above-stated provision would show that there is a specific mention of officers namely, Revenue Officer and Accounts Officer in Section 94(1) of the Act of 1961, but other officers including the petitioner/Sub-Engineer etc. have not been mentioned therein. It also includes the officers specified under sub-section (1) of Section 94. The word “specify” has been used in Section 26A of the Income-tax Act, 1922 and Rule 2 of the Income-tax Rules, 1922. The Supreme Court in the matter of M/s. Kylasa Sarabhaiah v. The Commissioner of Income-tax, Hyderabad AIR 1965 SC 1411 has held that the word “specify” is used in Section 26-A and Rule 2 as meaning, mentioning, describing or defining in detail; it does not mean expressly setting out in fractional or other shares. The Supreme Court in the matter of M/s. Kylasa Sarabhaiah v. The Commissioner of Income-tax, Hyderabad AIR 1965 SC 1411 has held that the word “specify” is used in Section 26-A and Rule 2 as meaning, mentioning, describing or defining in detail; it does not mean expressly setting out in fractional or other shares. In my considered opinion, though under sub-section (1) of Section 94 of the Act of 1961, Sub-Engineer is not mentioned, but he is covered by the expression “officers specified in sub-section (1)” of Section 94 of the Act of 1961, following the principles of law laid down by their Lordships of the Supreme Court in Shankar Lal’s case (supra) and for suspension of Sub-Engineer for a period more than one month, previous approval of the State Government would be required under Section 94(5) of the Act of 1961. As such, for suspension of the petitioner (Sub-Engineer) who is an officer not mentioned in sub-section (1) of Section 94 of the Act of 1961, but included under the word “officers specified under sub- section (1) of Section 94”, previous approval of the State Government would be absolutely necessary. 20. Reverting to the instant case, though in the return filed by the State/respondents No.1 to 3, it has clearly been stated that the petitioner’s order of suspension is dated 27-8-2021, it was sent by Municipal Council, Surajpur on 24-9-2021, and the Joint Director/Director, Directorate of Urban Administration and Development has informed vide order dated 2-2-2022 that the suspension of the petitioner has not been approved by the competent authority. As such, since the period of one month from 27-8-2021 i.e. the date of suspension of the petitioner had already expired, in absence of previous approval of the State Government, the order of suspension passed by respondent No.4 deserves to be quashed. Accordingly, the order of suspension for a period of one month, dated 27-8-2021 passed by respondent No.4 placing the petitioner under suspension under Rule 53(1) of the Rules of 1968 for want of previous approval of the State Government under Section 94(5) of the Act of 1961, is hereby quashed. However, the respondents are at liberty to proceed in accordance with law. 21. The writ petition is allowed to the extent indicated herein-above leaving the parties to bear their own cost (s).