G.S. Dewangan vs State of C.G. and Others

Prashant Kumar Mishra, J.—The petitioner, an Executive Engineer in the Department of Panchayat and Rural Development, Government of Chhattisgarh has called in question the impugned order of suspension passed by the Joint Secretary of the Department on 2-12-2011 on the ground that after he was caught red handed for accepting illegal gratification of Rs. 10,000/- by the Anti Corruption Bureau, Raipur, a charge sheet has been filed against him, therefore, he is suspended under Rule 9(2) of the C.G. Civil Services (C.C.A) Rules, 1966 (for short the Rules, 1966). It has been argued that the petitioner was once suspended on 9-9-2010 vide Annexure-P/1 and was reinstated on 25-10-2011 vide Annexure-P/2, therefore, his fresh suspension order is illegal.

However, when confronted with availability of remedy of filing an appeal, learned counsel would submit that such an appeal is required to be filed before His Excellency, the Governor of Chhattisgarh, however, since the impugned order has been expressed to be passed in the name of Governor. the said remedy of appeal is in fact not available.

This Court has heard learned counsel for the petitioner at length and perused the papers annexed with the writ petition.

This Court shall first examine the issue regarding availability of alternative remedy to challenge the order of suspension.

Admittedly, the petitioner was allegedly caught red handed for accepting illegal gratification of Rs. 10,000/-. He was suspended on 9-9-2010 on the ground that he was detained and sent to the judicial custody for more than 48 hours, therefore, he is suspended. The present impugned suspension order has been passed on a different ground inasmuch as the present suspension order is not only on account of having remained in judicial custody for more than 48 hours but is also on account of filing of charge sheet against him.

Rule 9(1) and 9(2) of the Rules, 1966 are reproduced hereunder for ready reference:-

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor, by general or special order, may place a Government servant under suspension :-

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

[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 against him]: Provided further that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-

(a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation: The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.;

The first proviso to Rule 9 (1) says that when a charge sheet has been filed against a Government servant for a criminal offence, he shall invariably be placed under suspension when the offence involves charges of corruption or other moral turpitude. Clause (iii) of Rule 23 of the Rules, 1966 provides that subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the orders mentioned therein which includes under clause (iii), an order of suspension made or deemed to have been made under Rule 9. However, under clause (i) of Rule 22, it is provided that ''Notwithstanding anything contained in this Part, no appeal shall lie against any order made by the Governor''. Rule 24 mentions as to who are appellate authorities. It says, a Government servant, including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in Rule 23 to the authority specified in this behalf either in the Schedule or by a general or special order of the Governor, or where no such authority is specified. Under clause (i), it is provided that where such Government servant is or was a member of a State Civil Service, Class I or Class II or holder of a State Civil Post, Class I or Class II, to the appointing authority, where the order appealed against is made by an authority subordinate to it; or "to the Governor" where such order is made by any other authority.

In the Schedule appended to the Rules, 1966, the appointing authority of Executive Engineer, Class I Officer, is the State Government. In column 5 of the said Schedule, the appellate Authority is mentioned as Governor and thus, an appellate authority has been provided under the Rules for filing an appeal.

It has been put forth by the petitioner that under the rules of business. Joint Secretary of the State Government has passed the order on behalf of the State Government and it has been expressed to have been passed in the name and by order of the Governor of Chhattisgarh, therefore, the order having been passed by the Governor, an appeal would not lie before His Excellency, the Governor himself. Learned counsel for the petitioner has not been able to place before this Court any judgment in support of his submission.

The argument raised by learned counsel for the petitioner appears to be on the premises that since under Article 166 of the Constitution of India every executive action of the Government is required to be expressed to be taken in the name of the Governor, all such orders becomes an order passed by the Governor, therefore, in view of the provisions contained in Article 166 of the Constitution of India, an appeal before His Excellency, the Governor would not lie. However, it is required to be seen that under the scheme of the Rules, 1966, the Schedule provides for an action/order under Rule 9 of the Rules, 1966 to be taken by the authorities mentioned in columns 3 & 4 thereof and the appellate authority is mentioned in column 5. The rules itself prescribe that when an order is passed by the State Government, an appeal would lie before His Excellency, the Governor, because otherwise every order imposing penalty under Rule 9 or putting a Class I Officer under suspension, which is required to be taken by the State Government would always be expressed to have been taken in the name and by order of the Governor and an appeal would not lie before the Governor.

The requirement of executive action to be expressed to have been taken in the name of Governor is a requirement of rules of business because every file in which executive action is taken is not required to be seen by the Governor, but in view of the provisions of Article 166, it is required to be expressed in that manner. However, the Rules, 1966 is a case of delegation/ sub delegation where the legislature has conferred power under Rule 9 to impose penalty and suspend certain officers and at the same time, providing an appellate remedy for all Class I or other specified officers to file an appeal before His Excellency, the Governor. The rules of business and sub delegation operate independently of each other in two separate dimensions. When executive action is taken and expressed in the name of Governor, such files are not actually sent to the Governor, yet it becomes an order of the State Government by virtue of Article 166 of the Constitution of India. The argument that when authority has seen the file, an appeal to the same authority is not an effective remedy is not available and is not applicable in the instant case because every order passed and it is authenticated to satisfy the requirement of Article 166 of the Constitution is not actually seen by the Governor, therefore, appeal is not before the same authority, but before the different authority who would be acting as an appellate authority under the statute. When the Government is conferred some powers by a statute, the Government may either function under the rules of business and/or resort to technique of sub delegation. Therefore, when the particular matter is dealt with and covered under the rules and the order complained of is passed by the authority competent under the Rules to pass such an order and machinery of appeal is provided in the rules itself, the principle of availability of alternative remedy would be squarely applicable and the petitioner cannot be allowed to resort to or take shelter of Article 166 of the Constitution to bypass the said alternative remedy. If the arguments is accepted, then thousands of orders passed by the State Government and expressed in the name of Governor would be directly entertainable by the Writ Court even though an appellate remedy is provided under the relevant service rules.

The argument raised by the petitioner is otherwise also fallacious when it is examined and considered in the light of the judgment of the Supreme Court in the matter of Common Cause, A Registered Society Vs. Union of India and Others, . In the said matter, an argument was raised before the Supreme Court that when a Minister passes an order as Member of the Union Cabinet, it actually performs the function on behalf of the President of India and not merely as a Minister individually. While dealing with the argument and after referring to the provisions contained in Articles 73 to 77 of the Constitution concerning the executive power of the Union as also with respect to executive power of the State contained in Article 166 of the Constitution, it has been held in para-26 of the judgment that though an order is issued in the name of the President, it does not become an order of the President passed by him personally, but remains, basically and essentially, the order of the Minister on whose advice the President had acted and passed that order. It was further held therein that as required by Article 77(1), all executive actions of the Government of India have to be expressed in the name of the President; but this would not make that order an order passed by the President personally.

In the opinion of this Court, the above judgment of the Supreme Court is complete answer to the argument raised by learned counsel for the petitioner. Accordingly, this Court holds that even if the impugned order of suspension is issued after expressing the same to have been passed for and on behalf of the Governor of Chhattisgarh, it does not become an order passed by the Governor himself and remedy of filing an appeal before His Excellency, the Governor is available to the petitioner under Rule 23 of the Rules, 1966. Consequently, this writ petition is not maintainable and it is accordingly dismissed.