Harbhajan Singh vs State Of MP & Ors.

Prakash Shrivastava, J

[1] This Writ Appeal u/S.2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is directed against the order of the learned Single Judge dated 15/7/2020 whereby WP No.9172/2020(s) has been dismissed by giving liberty to the appellant to file an appeal against the order of suspension.

[2] Short facts are that the appellant was working as Superintendent Engineer in the Rewa Municipal Corporation and was sent on deputation to the respondent No.2 Municipal Corporation, Indore in 2002. The appellant was placed under suspension by order dated 23/9/2019. This order was subject matter of challenge at the instance of the appellant in WP No.7554/2020. Learned Single Judge by order dated 3/6/2020 had allowed the writ petition on the technical ground and had found the order of suspension to be non-est because the charge sheet was not served upon the appellant within 45 days. The appellant was thereafter served with the charge sheet vide covering memo dated 14/6/2020 and thereafter the appellant was placed under suspension vide order dated 16/6/2020 and his head quarter was fixed at Trenching Ground, Indore by the Commissioner, Municipal Corporation, Indore, but subsequently State government vide order dated 18/6/2020 had fixed the head quarter of the appellant during the suspension period at Municipal Corporation, Rewa. In pursuant thereto the Addl. Commissioner, Municipal Corporation, Indore had passed the relieving order dated 19/6/2020 for joining at Rewa. Aggrieved with the second order of suspension, order fixing the headquarter at Rewa and the relieving order, appellant had filed WP No.9172/2020(s) which has been dismissed by the learned Single Judge vide order under appeal.

[3] Learned counsel for appellant submits that it is not a case where suspension of the appellant was required, therefore, having regard to the nature of allegations the suspension is required to be set aside. He further submits that fixing the headquarter of the appellant at Rewa is arbitrary because the departmental enquiry is pending at Indore and criminal case at the instance of the appellant is also pending at Indore. He has submitted that remedy of appeal in the facts of the present case is illusory.

[4] Learned Advocate General controverting the argument has submitted that the departmental enquiry has already been initiated against the appellant, therefore, in the administrative interest it became necessary to place him under suspension and order of suspension has been passed after due application of mind. He further submits that the headquarter of the appellant has been fixed at Rewa because Rewa Municipal Corporation is the principal employer of the appellant and that remedy of appeal before the State government is effective remedy because issue of suspension has not been considered by the State earlier.

[5] Having heard the learned counsel for parties and on perusal of the record, it is noticed that the learned Single Judge has duly taken into account the legal position in respect of power to suspend and scope of interference in such matters. The learned Single Judge has also found that the order of suspension is an appealable order and granted liberty to the appellant to file an appeal against the suspension order. So far as the issue of fixing the headquarter at Rewa is concerned, no error in this regard has been found by the learned Single Judge.

[6] The suspension order dated 16/6/2020 reveals that the appellant has been placed under suspension under Rule 9 of the M.P. (Classification, Control and Appeal) Rules, 1966 (for short "Rules of 1966"). Rule 23 of the Rules of 1966 provides for remedy of appeal against such an order of suspension and reads as under:-

"23. Orders against which appeal lies.- Subject to the provisions of Rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely-

(i) an order imposing any of the penalties specified in Rule 10 whether made by the disciplinary authority or by any appellate or reviewing authority;

(ii) an order enhancing any penalty, imposed under Rule 10;

[(iii) an order of suspension made or deemed to have been made under Rule 9;]

Explanation.- In this rule the expression "Government servant" includes a person who has ceased to be in Government service.

[7] Rule 24 of the Rules of 1966 specified the appellate authority and reads as under:-

Appellate authorities.- (1) 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 m this behalf either in Schedule or by a general or special order of the Governor or, where no such authority is specified ;

(i) 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

(a) to the appointing authority, where the order appealed against is made by an authority subordinate to it; or

(b) to the Governor, where such order is made by any other authority.

where such Government servant is or was a member of a State Civil Service Class III or Class IV or holder of a State Civil Post, Class III or Class IV, to the authority to which the authority making the order appealed against is immediately subordinate.

(2) Notwithstanding anything contained in sub-rule (1),-

(i) an appeal against an order in a common proceeding held under Rule 18 shall lie to the authority to which the authority functioning as the disciplinary authority for the purpose of. that proceeding is immediately subordinate;

(ii) where the person who made the order appealed against becomes by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate."

[8] As per Rule 24(1)(i)(b), the appeal will lie to the Hon'ble Governor as the order of suspension is not by an authority subordinate to the appointing authority.

[9] The submission of learned counsel for appellant is that the remedy of appeal is illusory because the State government has already considered the issue of suspension and passed the order dated 18/6/2020 fixing the headquarter at Rewa. We do not find any merit in that submission because the order dated 18/6/2020 does not reflect that the State government/Hon'ble Governor has applied the mind on the validity or correctness of the order of suspension. Hence, we are of the view that the appellant has an alternative efficacious remedy of appeal against the order of suspension.

[10] So far as the judgment in the matter of Ajay Kumar Choudhary Vs. Union of India through its Secretary and another (2015) 7 SCC 291 relied upon by the learned counsel for appellant is concerned, the main issue in that matter was in respect of extension of the suspension period, but the said issue at this stage is not involved in the present case. Learned counsel has placed reliance upon the para 7 and 14 of this judgment, but in the present case the order of suspension contained adequate reason for placing the appellant under suspension.

[11] Learned counsel for appellant has also placed reliance upon the judgment in the case of State of Tamil Nadu Vs. Pramod Kumar & another AIR 2018 SC 4060 (2018) 17 SCC 677 but that was a case of prolonged suspension for more than six years but that is not so in the present case.

[12] So far as the issue of fixing the headquarter of the appellant at Rewa is concerned, it is undisputed before this court that the Municipal Corporation Rewa is the principal employer of the appellant and the appellant was on deputation at Indore. By the impugned order, the headquarter of the appellant has been fixed at his principal employer at Rewa. The said Headquarter has been fixed after due application of mind and considering the sensitivity of the matter by the State government by order dated 18/6/2020. Such an order is neither arbitrary nor it suffers from non application of mind.

[13] Learned counsel for State has rightly relied upon the judgment of the Supreme Court in the matter of Ajay Kumar Choudhary (supra) wherein it has been held that the government/department concerned is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing investigation against him. Even otherwise the appellant has been granted liberty to file appeal against the order of suspension and the headquarter has been fixed only during the suspension period.

[14] Having regard to the aforesaid, we are of the opinion that no case for interference in the order of the learned Single Judge is made out. The writ appeal is accordingly dismissed. Needless to say if the appellant files the appeal against the order of suspension, then it will be decided on its own merit without being influenced by any observations made in this order or the order of the learned Single Judge.