Dhara Singh Patel vs State Of M.P. & Ors.

Sujoy Paul, J

This intra -court Appeal assails the order dated 02.04.2019 passed by the Writ Court in WP. No.4064/19 whereby the petition filed by the petitioner against the order of Commissioner Bhopal Division, Bhopal dated 18.02.2019 was dismissed.

Draped in brevity, the relevant facts are that in the year 1993 a criminal case based on the FIR No.279 dated 16.07.1993 for committing offences under Section 420, 467, 468, 471, 259 and 34 of IPC and Section 25 of the Arms Act was registered against the appellant. Indisputably, this case is still pending before the Court. During the pendency of said criminal case, the appellant was elected as Office Bearer (Sarpanch) in the year 2004-05. He completed his previous tenure pursuant to said election. Thereafter, he was again elected in March 2015 and was working as President, Janpad Panchayat Ashta (District Sehore).

The respondent No.5 preferred an application under Section 39 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'Adhiniyam') before the Collector Raisen seeking suspension of the appellant because of said criminal case. The learned Collector by order dated 07.12.2015 rejected the said application of respondent No.5. Feeling aggrieved, the respondent No.5 preferred an Appeal No.0074/Appeal/18-19 before the learned Commissioner, Bhopal Division, Bhopal. The learned Appellate Authority allowed the said appeal by order dated 18.12.2019, set aside the order of Collector dated 07.12.2015 and directed him to place the petitioner under suspension and proceed further as per the Adhiniyam. In the writ petition, the appellant assailed this order dated 18.12.2019. The learned Single Judge opined that if the charges in a criminal case were framed prior to the election of Office Bearer, in view of judgment of Division Bench in the case of Balu Singh vs. State of M.P. 2006 (2) Vidhi Bhasvar 90, the Office Bearer can be placed under suspension. It was further held that as per Sub-section (2) of Section 39 of Adhiniyam, 1993, the order of suspension shall be intimated to the State Government within 10 days of passing of order and thereupon State Government shall pass necessary orders. If the order of suspension is not confirmed within 90 days, it shall be deemed to be revoked. The learned Single Judge was apprised by State Government that because of interim order passed in writ petition, it could not take a decision regarding confirmation after getting intimation of suspension. Learned Single Judge opined that the petition is premature because order of suspension is subject to confirmation by State Government, which is still pending.

Shri K.C. Ghildiyal, learned counsel for the petitioner contended that; (i) Section 39 of Adhiniyam, 1993 gives discretion by using the word 'may' to the Prescribed Authority to take decision regarding suspension of an Office Bearer. The Prescribed Authority/Collector by exercising its discretion passed a detailed order dated 07.12.2015, which could not have been interfered with by the Appellate Authority. The Appellate Authority cannot direct prescribed Authority to act in a particular manner. Reliance is placed on (2011) 5 SCC 435 (Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Others vs. Director General of Civil Aviation & Others) and judgment of this Court reported in 2014 (1) MPLJ 308 (Swati Singh vs. M.P. Kshetra Vidyut Vitran Co. Ltd.); (ii) the order of suspension/ Appellate Authority will have an adverse impact on the appellant in the teeth of Sub-section 4 of Section 39; and (iii) the Collector passed the order under Section 39 (1) by applying his discretion in a judicious manner. The appellant indisputably completed two terms as Office Bearer of Panchayat after lodging of criminal case in the year 1993. In this factual backdrop, placing the petitioner under suspension would be travesty of justice.

Shri R.K. Verma, learned Additional A.G. and Shri Sanjay K. Agrawal, learned counsel for the respondent No.5 supported the impugned orders. Shri Agrawal urged that; (i) the word 'may' used in Section 39 (1) of Adhiniyam, 1993 must be read as 'shall'. He relied upon AIR 1963 SC 1618 (State of U.P. vs. Jogendra Singh) and (2007) 10 SCC 528 (Deewan Singh & Others vs. Rajendra Pd. Ardevi & Others); (ii) the order of suspension is confirmed by State Government in March, 2019 and the said order is not subject matter of challenge; and (iii) present term as Office Bearer of appellant is already over in January, 2020 and hence for all practical purposes, this appeal has rendered infructuous.

In the rejoinder submissions, Shri Ghildiyal pointed out that the order of confirmation of suspension passed by State Government dated 23.03.2019 was not available during the pendency of writ petition. This consequential order of confirmation was supplied by the State Government later on, which has been called in question in this writ appeal.

No other point is pressed by the parties.

We have heard the learned counsel for the parties at length and perused the record.

Section 39 (1) of Adhiniyam, 1993 reads as under:-"39. Suspension of office-bearer of Panchayat. - (1) The prescribed authority may suspend from office any office-bearer,-

(a) against whom charges have been framed in any criminal proceedings under [Chapters V-A, VI, IX], IX-A, X, XII, Sections 302, 303, 304B, 305, 306, 312 to 318, 366-A, 366-B, 373 to 377 of Chapter XVI, Sections 395 to 398, 408, 409, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) or under any Law for the time being in force for the prevention of adulteration of food stuff and drugs, [suppression of immoral traffic in women and children, Protection of Civil Rights and Prevention of Corruption]; or"

[Emphasis Supplied]

Section 39(1) of the Adhiniyam permits the prescribed authority to suspend any office bearer when charges are framed in any criminal proceedings relating to certain provisions of IPC or other laws mentioned therein. The legislature in its wisdom has used the word "may" while giving power to prescribed authority to place an office bearer under suspension. Interestingly, the first proviso to Rule (1) of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 reads as under:

"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."

[Emphasis Supplied]

The language employed in the aforesaid proviso shows the clear intention of legislature that if a charge for criminal offence involving corruption or other moral turpitude is filed, the employee shall invariably be placed under suspension whereas a discretion is given to prescribed authority in sub section (1) of Section 39 of Adhiniyam to place an office bearer under suspension. In the case of Jogendra Singh (supra), it was poignantly held that the word "may" generally does not mean "must" or "shall". The meaning has to be gathered in the light of the context. In Deewan Singh (supra), while interpreting Section 53 of the Rajasthan Public Trust Act, 1959, the Apex Court held that if the expression "shall" is read as "may" although there does not exist any reason therefor, the statute provides for a power coupled with duty. It is profitable to remember the words of Chinappa Reddy, J: "interpretation must depend on the text and context.

They are the bases of interpretation. One may well say if the text is the texture, context is what gives it colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. [See: 1987 (1) SCC 424, (Reserve Bank of India Vs. Pearless General Finance and Investment Co.)]. As stated by Krishna Iyer J: "to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite preception of the deha and dehi of the provision. [See: AIR 1977 SC 965 (Chairman, Board of Mining Examination & Chief Inspector of Mines Vs. Ramjee)].

In the context, the expression "may" is used in sub-section (1) of Section 39, we are unable to hold that it must be read as "shall" or "must". The judgment cited by Shri Agrawal are based on different statutes having different contextual backdrop and cannot be pressed into service in the present case.

In 2011 (5) SCC 435 (Joint Action Committee Air Line Pilots' Association of India (Alpai) and others Vs. Director General of Civil Aviation and others), the Apex Court opined as under:

"It is settled legal proposition that the authority which has been conferred with the competence under the statue alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has not statutory role to play, the same would be patently illegal. (Vide Purtabpore Co. Ltd.v. Cane Commr. of Bihar, reported in (1969) 1 SCC 308, Chandrika Jha v. State of Bihar, reported in (1984) 2 SCC 41, Tarlochan Dev Sharma v. State of Punjab, reported in (2001) 6 SCC 260 and Manohar Lal v. Ugrasen, reported in (2010) 11 SCC 557."

[Emphasis Supplied]

As per ratio decidenti of this case, it is clear like cloudless sky that if a power is conferred with the prescribed authority, as per the Adhiniyam, he alone is entitled to pass the order. Even his superior authority cannot direct him to act in a particular manner. Moreso, when discretion was exercised in a judicious manner. At the cost of repetition, it is noteworthy that in this case, FIR was lodged against the appellant in the year 1993. Thereafter, he has been elected on two occasions as office bearer. Considered this backdrop, the prescribed authority rightly opined that it will not be justifiable to place the appellant under suspension. The prescribed authority, in our opinion, took the relevant factual backdrop into account while taking a decision whether the appellant is required to be placed under suspension. The Appellate Authority/Commissioner was not justified in interfering with said order by directing the Collector to act in a particular manner i.e. by placing the appellant under suspension. This direction of learned Commissioner clearly runs contrary to the principles laid down in the case of Joint Action Committee Air Line Pilots' Association of India (supra).

We are not oblivious of the fact that in the case of Balu Singh (supra), the Division Bench was examining an interlocutory order of learned Single Bench wherein interim order was not granted against suspension of office bearer of Panchayat. An objection was raised by the respondents therein regarding the maintainability of writ appeal on the ground that it is not maintainable against an interlocutory order. The Division Bench opined that as per sub-section (4) of Section 39 of the Adhiniyam, once officer bearer is placed under suspension, such person shall also be disqualified for being elected during the period of suspension. Since the consequences of such suspension order was of a final nature, the writ appeal was held to be maintainable. Interestingly, in the case of Balu Singh (supra) the criminal case was instituted against him way back in 1999 and matter was pending before the JMFC, Ratlam. In 2004, Panchayat elections took place and Balu Singh was elected. The Division Bench opined that it is not the case of the respondents that after his assuming charge as office bearer, some criminal charges have been framed against him. The order of suspension therein was accordingly stayed.

Aforesaid finding of Division Bench takes care of argument of Shri Sanjay K. Agrawal that since appellant has completed his term in January, 2020, the present appeal has rendered infructuous. On a specific query from the Bench, Shri Agrawal fairly admitted that even if appellant contests next election and is again elected, he will be required to be placed under suspension again. Since the order of suspension has a drastic and recurring effect, in our view, this appeal, by no stretch of imagination can be thrown overboard by treating it as "infructuous".

The argument of Shri Agrawal that order of confirmation of suspension is not called in question is factually incorrect. Admittedly, the confirmation order was served on the appellant after decision of writ petition and, therefore, it is called in question in this writ appeal. The confirmation order is only a consequential order founded upon the order of learned Commissioner. Hence this hypertechnical objection of respondent No.5 deserves to be rejected.

In view of foregoing analysis, the learned Single Judge has erred in dismissing the writ petition. Resultantly, the order of learned Commissioner dated 18.02.2019, the order of State Government confirming the suspension dated 23.03.2019 and order dated 02.04.2019 passed in W.P. No.4064/2019 are set aside.

Writ Appeal is allowed.