Chandra Mohan Saxena vs State of U.P.and others

R A. Sharma, J.—Being aggrieved by order of his suspension dated 2271994, passed by the Chief Engineer, the appellant, who is a Junior Engineer in U. P. Rajkiya Nirman Nigam Ltd. Gomti Nagar, Lucknow filed a writ petition before this court, which was dismissed by learned Single Judge on 1081994. Dissatisfied with the said judgment, the appellant has filed this special appeal.

We have heard the learned counsel for the appellant and the learned Standing counsel.

The only contention raised by the learned counsel for the appellant in this case is that the impugned order of suspension has been passed by the Chief Engineer at the dictate of the State Government and not in exercise of his own discretion. In support of this submission, learned counsel has placed reliance on Nagraj Shivarao Kariagi v. Syndicate Bank H. O. and another (1991 (63) FLR 133. Sant Raj and another v. O. P. Singla and another (1985 SCC (L&S) 435), Ratanpal Singh v. Deputy Director of Education, VI Region, Lucknow and others (1982 UP Service Cases 506) Smt. S. R. Venkataraman v. Union of India (1979(1) SLR 130). The Government of India, Ministry of Home Affairs and others v. Tarak Nath Ghosh (1971 SLR 264), the Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others (AIR 1970 SC 1896), Ram Narain Tewari v. the Joint General Manager and another (1984 (2) LCD 298). Ram Nath Tripathi v. Commissioner, Lucknow Division, Lucknow and others (1992) 2 UPLBEC 1181) and Ram Ujagar Tripathi v. State of U. P. & others (Writ Petition No. 760 of 1983), decided on 331983.

After certain constructions have fallen to the ground, Government of U. P. decided to suspend those employees of the Public works Department, who were responsible for those constructions and to initiate proceedings against them. The Chief Engineer was accordingly required by the Government vide its letter dated 671994 to take necessary action against the concerned officials and in pursuance thereof the impugned order of suspension was passed on the ground that the inquiry is contemplated against the appellant.

Rule 49A of U. P. Civil Service (Classification, Control and Appeal) Rules (hereinafter referred to as the Rules) empowers the appointing authority to place a Government servant, against whose conduct an inquiry is contemplated or is proceeding, under suspension pending conclusion of the inquiry. Under the proviso to the said Rule the Governor can authorise any other authority to suspend the Government servant. It is admitted by the learned counsel for both the parties that the Chief Engineer is the appointing authority of a Junior Engineer, the post which the appellant holds. The question is as to whether the order of suspension is vitiated, because it has been passed at the instance of the State Government.

Article 310(1) of the Constitution lays down that except as expressly provided by the Constitution, Government Servants hold their posts during the pleasure of the Governor, which means the State Government. The State Government is the appointing authority of the State Government Servants, who hold their posts during the pleasure of the Governor and except as expressly provided by the Constitution of India, their services are terminable at the will of the Government. Government can delegate its power of appointment and termination of service of the Government servant to any other authority by or under the Rules framed under the proviso to Article 309 of the Constitution. But the Rules framed under proviso to Article 309 of the Constitution are subject to Article 310(1) of the constitution and, therefore, they cannot affect or impair the pleasure of the Government. In this connection reference may be made to Union of India v. Tulsi Ram Patel (AIR 1985 SC 1417) and Union of India v. K. Subramaniam (AIR 1989 SC 662). By delegating its power of appointment and termination of service, the State Government does not denude itself of its power to appoint and terminate the services of its employees. As such the Government continue to retain its power of appointment and termination of services of its employees inspite of the delegation of those powers to other authorities/officers. In Karnail Singh v. State of Punjab (1975 Labour 1C 646), Full Bench of Punjab High Court in this connection has laid down as under :

"The appointing authority of a State Government Servant is ordinarily and necessarily the State Government which is the same thing as the Governor of the State. Merely because by rules of business or by the rules framed under the proviso to Article 309 of the Constitution or even by an executive order (in the absence of any Legislative enactment or statutory rules), the State Government empowers one of its officers to appoint Government Servants of a particular rank in a particular Department does not, in our opinion, divest the State Government itself of its own power to appoint. It is well known that the delegation of the principal''s authority to his agent does not by itself result in the abdication of the principal''s power in favour of the agent. Even after a principal delegates his power to an agent, he can nevertheless exercise the same himself unless the agent has already exhausted the power by virtue of the authority vested in him by the principal."

In Sampuran Singh v. State of Punjab (AIR 1982 SC 1407), the question involved was as to whether the Chief Minister was competent to sanction the prosecution of the State Government Servant under Prevention of Corruption Act when the said Act require the sanction by an authority competent to remove him from service. Under the relevant rules in that case the Chief Engineer, being the appointing authority of the Government Servant concerned, was competent to remove him from the office. Supreme Court relying on Article 310(l)of the Constitution held that pleasure of the Governor cannot be fettered by the rules framed under the proviso to Article 309 of the Constitution. As the power of the Governor under Article 3l0( 1) is overriding power subject to the provisions of Article 311 of the Constitution, it was held that the State Government has full power to remove its servants inspite of the fact that by the rules such a power has been conferred on another authority. Treating the order passed by the Chief Minister as the order of the State Government, the sanction to prosecute under Prevention of Corruption Act was accordingly upheld

State Government being the employer of the Government servants of the State has the power to appoint them and to terminate their services. Being the appointing authority it can also suspend its servants. The Government being the ultimate employer, it can also direct the appropriate authority, which has been designated as the appointing authority by the relevant rules, to place the Government servant under suspension. No exception can be taken to such an order.

The cases relied upon by the learned counsel for the appellant do not deal with the controversy involved in the instant case. In the case of Nagraj Shivarao Karjagi v. Syndicate Bank H O. and another (1991(63) FLR 133), the question was as to whether the disciplinary authority of the Syndicate Bank can act under the dictate of the Central Vigilance Commission or the Central Government in the matter of awarding punishment to its officer. Supreme Court after analysing the relevant provisions of the Act and the Service Rules held that Central Vigilance commission or the Central Government has no power under law to issue any such direction for inflicting punishment to the officer of the Bank. If the Central Government or the Central Vigilance Commission does not have any power under law to issue any direction for awarding punishment to the particular Bank employee, any punishment awarded to such employee under their dictate would obviously be illegal. The case of Sant Raj and another v. O. P. Singla and another (1985 SCC (L & S) 435) is also not relevant for the present case. Same is the case with the decision of the Division Bench of this Court in Ratanpal Singh v. Deputy Director of Education (1982 U. P. Service Cases 5(6). The case of Smt. S. R. Venkataraman v. Union of India (1979(1) SLR 130) deals with the compulsory retirement of a Government servant and the controversy raised therein was different. In the case of the Government of India, Ministry of Home Affairs v. Tarak Nath Ghosh (1971 SLR 264) the question involved was as to at what stage a Government servant can be placed under suspension. In Purtabpur Company Ltd v. Cane Commissioner of Bihar (AIR 1970 SC 1896) the question involved was as to whether the order of Cane Commissioner altering the reserved area of a sugar factory at the instance of the Chief Minister of the State is valid, Supreme Court held that order/direction of the Chief Minister, who is not a recognised authority under the Sugarcane (Control) order, 1966 for altering the reserved area of the sugar factory cannot be made the basis by the Cane Commissioner for changing the reservation of the cane area. Order of the Cane Commissioner was accordingly held invalid. Ratio of this case cannot be extended to the instant case, because here the State Government is fully empowered not only to issue direction for suspension of its servant but also has the power to pass such order itself. Law laid down by Division Bench of this Court in Ram Narain Tewari v. Joint General Manager (1984(2) LCD 298) will also sot be applicable to the instant case. There the matter was governed by the Service Rules under which the order of suspension could have been passed either by the appointing authority or by any other authority whom the power was delegated. There was no provision like Article 310(1) of the Constitution in the State Road Transport Corporation Act or the relevant service rules. In the case of Ram Ujagar Tripathi v. State of U. P. (Writ Petition No. 760 of 1983), decided on 331983, the question of applicability and the effect of Article 310(1) of the Constitution and the doctrine of ''pleasure'' contained therein was neither raised nor decided. This case, as such, cannot be used as Precedent for deciding the question of power of the Government to suspend or remove a Government servant or issue direction lo the subordinate authorities in connection therewith:

For the reasons given above, no exception can be taken to the impugned order of suspension.

This appeal is accordingly dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs.

(Appeal dismissed.)