WRIT PETITION No of Anil Kumar Jain. Versus. State of Chhattisgarh & others.

Transcription

1 1 HIGH COURT OF CHHATTISGARH Single Bench: Hon ble Shri Justice Sanjay K.Agrawal WRIT PETITION No of 2006 PETITIONER Anil Kumar Jain Versus RESPONDENTS State of Chhattisgarh & others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Appearances of the counsel: Mr. V.G. Tamaskar, counsel for the petitioner. Mr. Raj Kumar Gupta, Deputy Advocate General for the State/respondents ORAL ORDER (Passed on ) (1) The seminal question involved in this writ petition is whether the 3 rd respondent Collector, Koria is empowered under Chhattisgarh Civil Services (Classification Control & Appeal) Rules, 1966 (henceforth Rules, 1966 ) to place the petitioner under suspension and to institute departmental enquiry against him. (2) The required facts, necessary for disposal of the writ petition in nutshell, are as under:-

2 2 (2.1) The petitioner is a Sub Engineer working in the office of Executive Engineer, Rural Engineering Services Division, Baikunthpur, District Korea. (2.2) The State of Chhattisgarh by its order dated vide Annexure P/5 sent the petitioner on deputation to the Department of Panchayat and Rural Development, thereafter, the Department of Panchayat and Rural Development, by its order dated (Annexure P-6) posted him as Sub Engineer at Janpad Panchayat, Manendragarh, District Koria. (2.3) Third respondent Collector, Koria, by its order dated vide (Annexure P-1) placed the petitioner under suspension and further instituted departmental enquiry against him in accordance with Rule 14 of the Rules, 1966 vide (Annexure P-2). (2.4) The petitioner has questioned the legality and validity of the order passed by the Collector placing him under suspension and instituting regular departmental enquiry against him under the Rules, 1966 in this writ petition filed on the sole ground that Collector is neither his Disciplinary authority nor Appointing Authority and, therefore, the Collector was not empowered either to place him under suspension or institute departmental enquiry and, therefore, the order of suspension (Annexure P-1) and order instituting departmental enquiry (Annexure P-2) against him deserves to be quashed as passed by the incompetent authority, and accordingly,

3 3 prayed for appropriate writ be issued against the respondents quashing both the orders i.e. Annexure P-1 & Annexure P-2. (2.5) On rule being issued, the respondent-state has filed its return stating inter alia that petitioner is a Class III employee; and vide Annexure R-1 by notification dated , the State Government has delegated the power to the Collectors to place the Class III & IV employees under suspension and to impose minor penalty under Rule 10 of the Rules, 1966 and, therefore, 3 rd respondent has rightly placed the petitioner under suspension and instituted departmental enquiry against him and, as such, the writ petition deserves to be dismissed. (2.6)Questioning the orders dated (Annexure P-1) & (Annexure P-2), instant writ petition has been filed by the petitioner herein. (2.7)The petitioner, after filing of the instant writ petition, has filed application for taking documents on record and filed copy of order dated (Annexure P-10) passed by the then State of Madhya Pradesh directing that Sub Engineer appointed on the pay scale of Rs. 2, declaring them as Gazetted Officer, Class II and copy of the same has been endorsed to the petitioner herein; and the petitioner has also filed copy of service Book (Annexure P/11), in which, there is an endorsement to the effect that pursuant to the order dated passed by the then, State of

4 4 Madhya Pradesh, the petitioner (Sub Engineer) is declared as Gazzetted Officer, Class-II. (3) Appearing for the petitioner, Shri V.G. Tamaskar, learned counsel would submit that the petitioner was appointed on the pay scale of Rs. 2,000-2,900 by the then competent authority with effect from , which was duly recorded in his service record and, as such, by order dated , Sub Engineers appointed on the pay scale of Rs has been declared as Gazzetted Officer, Class II by the then State of Madhya Pradesh, which has duly been endorsed on his service record vide Annexure P-12 and, therefore, the order of the State Government dated 23 rd May, 1995 vide Annexure R-1 delegating the power to the Collectors to place Class III & IV employees under suspension and to impose minor penalty under Rule 10 of the Rules, 1966 is not applicable to him and, as such, the order passed by the Collector placing him under suspension and directing holding of the departmental enquiry against him deserve to be quashed as the same has been passed by the in-competent authority having no jurisdiction to pass such orders. (4) Appearing for the respondent/state, Shri R.K. Gupta, learned Deputy Advocate General would submit that the order passed by the 3 rd respondent placing the petitioner under suspension and instituting the departmental enquiry is in accordance with the power delegated to Collector under the Rules of 1966 by order dated 23 rd

5 5 May, 1996; and looking to the misconduct committed by the petitioner, departmental enquiry pending against him and due to which, petitioner has been placed under suspension. Therefore, the writ petition being devoid of merit deserves to be dismissed. (5) I have heard learned counsel for the parties and considered the rival submissions made therein and also gone through the relevant record including service book of the petitioner with utmost circumspection. (6) The sole question is to be considered is whether the petitioner, on the date of passing of the impugned orders dated (Annexure P-1) & (Annexure P-2), was holding Class-II (Gazzetted) post for which under the Rules of 1966, the Collector was empowered to place him under suspension and to institute departmental enquiry. (7) Admittedly, the petitioner was initially appointed on the post of Sub Engineer in the Department of Water Resources in the then State of Madhya Pradesh on on the pay scale of Rs /- and time to time his pay scale was revised and ultimately with effect from , his pay scale was fixed as Rs.2,000-2,900/-. It would be proper to extract the remarks made and the order passed in that regard appointing the petitioner on the pay scale of Rs /- duly entered in his service record which states as under:-

6 6 Pay of Shri A.K. Jain, Sub-Engineer is fixed as sanctioned vide M.P. Govt. Employees Welfare and Administration and Development Department and Pay Commission 1990 Order No.136/209/11 Pay Commission/90 Bhopal dated and Accordingly, his pay fixed in the revised pay scale ` /- due to completion of 12 years service in one post as Sub Engineer w.e.f to = 12 years. He is drawing pay Rs. 1,800 w.e.f which (the basic pay is not crossed the minimum of higher pay scale Rs. 2000/- p.m.. As per provision given in F-R 22 AG.1 and F.P., 2 his pay scale fixed w.e.f at stage Rs. 2,000/- pm and his date of next increment fall on Sd/- Executive Engineer Water Resources Division Baikunthpur, Sarguja (M.P.) (8) The order dated (Annexure P-10), Department of Water Resources, State of Madhya Pradesh directed as under:- e/;izns k kklu ty lalk/ku fohkkx ea=ky; cyyhk Hkou] Hkksiky vkns k dzekad 20@5@97@ih@13 Hkksiky fnukad jkt; kklu e/;izns k kklu] ty lalk/ku fohkkx ds v/khu izoj Js.kh osrueku :Ik;s 2000&2900 esa fu;qdr mi;af=;ksa dks,rn~ }kjk jktif=r Js.kh nks?kksf"kr djrk gs A

7 7 e/;izns k ds jkt;iky ds uke ls rfkk vkns kkuqlkj ts-,u-oekz voj lfpo e/;izns k kklu] ty lalk/ku fohkkx (9) In compliance of the aforesaid order, Executive Engineer, Department of Water Resources, has made an entry in the service record of the petitioner on vide Annexure P-12 to the following effect:- ße-iz- ty lalk/ku fohkkx ea=ky; Hkksiky ds vkns k dzekad 20@5@97@ih@31 fnukad }kjk jkt; kklu e-iz- ty lalk/ku fohkkx ds v/khu izoj Js.kh osrueku :Ik;s 2000&2900 esa fu;qdr mi;a=hs dks,rn~ }kjk jktif=r Js.kh nks?kksf"kr fd;k x;k gsaþ (10) Thus, on the basis of the order passed by the State Government, it is quite vivid that on the date of passing the impugned order, according to the order passed by the then State of Madhya Pradesh, the petitioner duly appointed on the pay scale of Rs /- was holding Class II Gazzetted post with effect from (11) Respondent No.1 has placed implicit reliance on the order dated (Annexure R-1), by which the State Government has delegated the power to the Collectors to place the Class III & IV employees under suspension and impose minor penalty under Rule 10 of the Rules, 1966, which reads as under :- Hkk siky] fnukw ad 23 ebz 1996

8 8 dzekad lh- 6µ7µ96µ3µ,dµ ¼1½ jkt; 3kklu,rn }kjk dysdvjksa dks muds ftys esa inlfk lhkh fohkkxksa ds r`rh;,oa prqfkz Js.kh dezpkfj;ksa ¼iqfyl dfez;ksa dks NksM+dj½ dks e-iz-flfoy lsok ¼oxhZdj.k rfkk vihy½ fu;e 1966 ds fu;e ds varxzr fuyfecr djus,oa,sls dezpkfj;ksa ij mijksdr fu;e 10 ds varxzr y?kq vf/kjksfir djus ds vf/kdkj izr;k;ksftr djrk gs A ;g vkns k tkjh gksus ds fnukad ls izhkko khy gksxk A (12)In light of foregoing discussion, it is clear that the petitioner became Class-II officer holding Class-II Gazzetted post with effect from and petitioner ceased to be Class III employee and, therefore, delegation made to the Collector vide order dated 23 rd May, 1996 to place the Class III & IV employee was clearly not applicable to the petitioner and the Collector was not the competent authority to place the petitioner as the Collector is neither his appointing authority nor his disciplinary authority, who is working as Sub Engineer holding Class-II post, to place him under suspension and to initiate the department enquiry against him and, thus, such orders passed by the Collector was clearly without jurisdiction and without authority of law as the Collector, Koria was incompetent to pass such orders. (13) In Steel Authority of India, Successor of Bokaro Steel Limited Vs. Presiding Officer, Labour Court at Bokaro Steel City, Dhanbad, and another 1, their Lordship of the Supreme Court has clearly held that if the particular Officer has not been authorised under the approved Rules, then the charge-sheet served and Enquiry Committee constituted by such officer being unauthorized and the order passed is invalid. 1 (1980) 3 SCC 734

9 9 (14) Following the principles of law laid down by their Lordship s of the Supreme Court in the above quoted cases and taking into consideration the fact that the Collector was neither the appointing authority nor the disciplinary authority of the petitioner and petitioner being the Gazzetted Officer holding class II post, the Collector was incompetent to place the petitioner under suspension and to hold departmental enquiry against him, this Court is of the opinion, the order passed by the Collector (Annexure P-1) placing the petitioner under suspension and holding department enquiry (Annexure P-2) is clearly unsustainable and bad in law. (15) As a fall out and the consequence of the aforesaid discussion, the writ petition is allowed. Order dated (Annexure P-1) placed the petitioner under suspension & the order dated (Annexure P-2) directing institution of departmental enquiry liable to be and is hereby quashed. (16) No order as to costs. (17) However, the respondents are at liberty to proceed against the petitioner in accordance with law. Judge Dubey

10 10 Head Note English (1) Collector of a District is not empowered under Chhattisgarh Civil Services (Classification Control & Appeal) Rules, 1966 to place the Class II Officer (Gazzetted) under suspension and to institute departmental enquiry against him. HINDI (1) ftkyk dysdvj] fu;e] 1966 ds v/khu oxz nks vf/kdkjh ¼jktif=r½ dks fuyfecr djus rfkk mlds fo:) fohkkxh; tkwap laflfkr djus ds fy, vf/kd`r ugha gs A (Amit Kumar Dubey) Private Secretary

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