Dheerendra Pandey vs State of M.P. and Others

Hon''ble Shri Justice Sujoy Paul

In this petition filed under Article 226 of the Constitution, petitioner has challenged the suspension order dated 30/09/2011 Annexure-P/1 on the singular ground that he has been placed under suspension by Chief-Engineer under the dictate of the superior authorities/Principal Secretary, which is impermissible in law. Shri Kushwah learned counsel for the petitioner submits that Annexure-P/1 and the document at page 14 of writ petition makes it crystal clear that petitioner is placed under suspension pursuant to order dated 23/09/2011 passed by the Principal Secretary. On the strength of this learned counsel submits that there is no independent application of mind by the Chief-Engineer and he has merely acted on the dictate. He submits that suspension order can very well be passed by any of the authorities empowered under Rule 9(1) of Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short, "CCA Rules"), but while exercising such power, the competent authority has to apply its mind and cannot act under the dictate of superior authority.

Per Contra, Shri Newaskar learned Dy. Government Advocate submits that even Principal Secretary is competent to pass the order of suspension and, therefore, there is no illegality in the order. Shri Newskar has not disputed that the order of suspension is passed at the direction of the Principal Secretary.

I have heard learned counsel for the parties and perused the record.

It is stated that the petitioner is facing a disciplinary proceedings, wherein serious allegations are made against him. On that basis he was placed under suspension. However, the question is whether Annexure-P/1 is justified when it is passed pursuant to some direction of the higher authority. In the considered opinion of this Court, a simple reading of 9(1) of the CCA Rules aforesaid, makes it crystal clear that the following authorities can place an employee under suspension:-

The appointing authority;

The authority, to which appointing authority is subordinate/inferior;

Disciplinary Authority; and

The authority, who has been empowered by a general or special order by Governor.

There is no doubt that the Principal Secretary was competent to place the petitioner under suspension. However, it is also clear that the said authority has not chosen to exercise the said power. If the suspension order would have been passed by the Principal Secretary or higher authority, the matter would have been different.

This is a case where the higher authority directed the inferior authority to place the employee under suspension. It is crystal clear that the inferior authority although is competent to place the petitioner under suspension, had no occasion and chance to apply his mind independently and was bound to follow the order of the superior authority. Rule 9 does not envisage such a situation. It independently gives power to various authorities to exercise their discretion and decide whether an employee can be placed under suspension. Thus, either the Principal Secretary or the Chief-Engineer, who has placed the petitioner under suspension could have exercised their independent discretion and could have passed the independent order.

In the opinion of this Court, Rule 9(1) does not permit the higher authorities to direct the lower authorities to place an employee under suspension. In that event, the lower authority even if competent to place an employee under suspension, will have no option but to follow the order of the superior and therefore, there would be no application of mind by the lower authority. In other words, under Rule 9(1) any of the authorities, which are competent to place a Government employee under suspension can place him under suspension by independent and dispassionate application of mind. However, this would not mean to give power to the higher authorities to partially exercise the powers and then dictating the lower authority to act in a particular manner. On the basis of this analysis, I am unable to approve the suspension order Annexure-P/1, inasmuch as it is passed under the dictate of the superior authority. The Apex Court in The Joint Action Committee of Airlines Pilots Associations of India and Others Vs. The Director General of Civil Aviation and Others, held as under:-

In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner.

The Apex Court in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, held as under:-

In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion.

In the light of aforesaid, the impugned order Annexure-P/1 is set aside. However, liberty is reserved to the competent authority to place the petitioner under suspension in accordance with law. Interference is not made on the merits of the case. The competent authority will be at liberty to take action against the petitioner in accordance with law. Petition stands disposed of. No costs.