Panchu Ram Thakur vs State Of Chhattisgarh

Proceedings of this matter have been takenÂ​up through video conferencing.

The short question involved in this writ petition is whether the Commissioner, Raipur Division/respondent No.2 (Disciplinary Authority) in exercise

of his power delegated under Section 12(2) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called as

“Rules of 1966â€) is justified in placing the petitioner (Class II gazetted officer) under suspension by the impugned order dated 18.5.2016

(Annexure PÂ​1) and further justified in changing his headquarter.

The aforesaid question has arisen in following factual backdrop:Â​

3.1 The petitioner was appointed on the post of Child Development Project Officer on 26.12.1996 (Annexure PÂ2) by the State Government. He was

placed under suspension by respondent No.2 by order dated 18.5.2016, which is sought to be quashed by way of this writ petition on the ground that

the petitioner's appointing authority is the State Government and respondent No.2/Commissioner, Raipur Division is neither his appointing authority nor

it is disciplinary authority and as such, power to suspend under Rule 9(1) (a) of the Rules of 1966 could not have exercised by him. It is further case of

the petitioner that the petitioner being candidate of Scheduled Tribe, opportunity of hearing ought to have been afforded to him by virtue of the

circulars dated 12.6.2008 and 27.11.2012, as such, the impugned order is liable to be set aside.

Return has been filed by the respondents stating inter alia that power to suspend under Rule 9(1) of the Rules of 1966 has been delegated to the

Commissioner by notification dated 4.8.2008 (Annexure RÂ1) and the Divisional Commissioner has been authorized to impose minor penalties upon

the members of State Civil Services, as such, the order of suspension is justified. It has also been pleaded that headquarter has rightly been changed to

hold the departmental enquiry fairly in accordance with law.

Mr.Ashok Patil, learned counsel for the petitioner, would submit that the petitioner being Class II Gazetted officer his appointing authority is the

State Government and the Divisional Commissioner is not disciplinary authority or any other authority empowered in that behalf by the Governor, as

such, by notification dated 4.8.2008 (Annexure RÂ1) the petitioner could not have been placed under suspension and in view of two circulars issued

by the State Government he being member of Scheduled Tribe, opportunity of hearing ought to have been afforded to him. He would rely upon the

decision of this Court in the matter of Anil Kumar Jain v. State of Chhattisgarh and others 2015(1) CGLJ 232.

On the other hand, Mr.Sunil Otwani, learned Additional Advocate General for the respondents/State, would support the impugned order and submit

that by virtue of notification dated 4.8.2008 (Annexure RÂ1) the State Government following the provisions contained in Rule 12(2) (a) & (b) of the

Rules of 1966 has empowered the Divisional Commissioners to impose minor penalties upon a member of State Civil Services under Rule 10 of the

Rules of 1966 and therefore, by virtue of Rule 2(d) of the Rules of 1966 he would be disciplinary authority and Rule 9(1) of the Rules 1966 also

confers the power of suspension to the disciplinary authority and therefore, the Commissioner is justified in placing the petitioner under suspension and

he being Class II officer covered by the notification dated 4.8.2008. He would further submit that power to change headquarter is justified to ensure

fair departmental proceedings, if any, against the petitioner, as such, the writ petition deserves to be dismissed. He would rely upon the judgment of the

Madhya Pradesh High Court in the matter of P.S.Pandey v. State of Madhya Pradesh, decided on 27.8.2014.

I have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with

utmost circumspection.

It is not in dispute that respondent No.2ÂCommissioner has placed the petitioner under suspension in exercise of power conferred under Section

9(1)(a) of the Rules of 1966. It would be appropriate to notice the provisions contained in Section 9(1)(a) of the Rules of 1966

which states as under:Â​

“9.(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 suspensionÂ​

(a) where a disciplinary proceeding against him is contemplated or is pending.â€​

A careful perusal of Rule 9 (1) (a) of the Rules of 1966 would show that power of suspension of a Government servant has been conferred to either

the appointing authority or any authority to which it is  subordinate or disciplinary authority or any other authority empowered in that behalf byÂ

the Governor by general or special order.

Similarly, disciplinary authority has been defined in Rule 2(d) of the Rules of 1966 which states as under:Â​

“2(d) “disciplinary authority†means the authority competent under these rules to impose on a Government servant any of the penalties

specified in rule 10.â€​

Rule 10 of the Rules of 1966 provides for minor penalties which states as under:Â​

“10. Penalties.ÂThe following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant,

namely:Â​

Minor penalties:Â​

(i) Censure;

(ii) Withholding of his promotion;

(ii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;

(iv) withholding of increments of pay or stagnation allowance;â€​

Rule 12 of the Rules 1966 provides as under:Â​

“12. Disciplinary authorities.Â​(1) The Government may impose any of the penalties specified in rule 10 on any Government servant.

(2) Without prejudice to the provisions of sub rule (1), but subject to the provisions of sub rule (3), any of the penalties specified in Rule 10 may be

imposed onÂ​

(a) a member of State Civil Service by the appointing authority or the authority specified in the Schedule in this behalf or by any other authority

empowered in this behalf by a general or special order of the Governor;

(b) a person appointed to a State Civil post by the authority specified in this behalf by a general or special order of the Governor, or by the appointing

authority or the authority specified in the Schedule in this behalf.

(3) Notwithstanding anything contained in this rule :Â​

(a) no penalty specified in clauses (v) to (ix) of Rule 10 shall be imposed by any authority subordinate to the appointing authority:

(b) where a Government servant who is a member of a service, is temporarily appointed to any or post, the authority competent to impose on such

Government servant any of the penalties specified in clauses (v) to (ix) of rule 10 shall not impose any such penalties unless it has consulted such

authority, not being an authority subordinate to it, as would have been competent under subÂrule (2) to impose on the Government servant any of the

said penalties had he not been appointed to such other service or post.â€​

Thus, Rule 12 of the Rules of 1966 provides for disciplinary authorities and subÂrule (1) of Rule 12 empowers the Government to impose any of

the penalties specified in rule 10 on any Government servant. However, subÂrule (2) of Rule 12 provides that on a member of State Civil service or a

person appointed to a State Civil post penalties specified in Rule 10 may be imposed either by appointing authority or by any authority specified in the

Schedule or by any other authority empowered in this behalf by a general or special order of the Governor. Thus, the Governor can by a general or

special order empower any other authority to impose any of the penalties specified in Rule 10 of the Rules of 1966.

The State Government in exercise the power under subÂrule (2)(a) & b) of Rule 12 issued the notification dated 4.8.2008 and empowered all

Divisional Commissioners to impose penalties specified in clause (i) to (iv) of Rule 10 on Class II officers excluding judicial and police services.

Notification dated 4.8.2008 states as under:Â​

Thus, by virtue of aboveÂstated notification dated 4.8.2008 the Divisional Commissioner has power and jurisdiction to impose

penalties specified in clause (i) to (iv) of Rule 10 on Class II officers excluding judicial and Department of Police in the State posted within his

jurisdiction and he would be disciplinary authority in respect of Class II officers as mentioned above within the meaning of Rule 9 (1) (a) of the Rules

of 1966 as he has been authorized by the competent authority to impose any of penalties enumerated in Rule 10 (i) to (iv) of the Rules of 1966 and

therefore, he is empowered to place a Government servant under suspension who is Class II officer posted within his jurisdiction

where a disciplinary proceeding initiated or contemplated against him.

The Supreme Court in the matter of A.K.Jadhav v. State of M.P. and others (1997) 9 SCC 240 dealing with this Rule 9(1) of the Madhya Pradesh

Civil Services (Classification, Control & Appeal) Rules, 1966 which has been adopted by the State of Chhattisgarh w.e.f. 1.11.2000 has held that the

Divisional Commissioner having been empowered by notification dated 8.8.1997 in respect of Class III officer (Tahsildar) is justified in placing him

under suspension. Their Lordships pertinently observed as under:Â​

“4. Thus, it could be seen that the competent authority to suspend an officer is the appointing authority or any subordinate authority on whom the

power of disciplinary authority has been conferred by the Governor by general or special order. The Government amended the Rules by notification

dated 8Â​8Â​ 1977 which is published in the State Gazette on 7Â​10Â​1977 empowering the subordinate officers which reads as under:

“Class III (Ministerial): The column (3) indicates the State Government or the Commissioner of the Division in which the delinquent official was

posted during the relevant period. The column (4) indicates all powers except removal, dismissal and reduction in rank.â€​

Reverting to the facts of the present case in the light of aforesaid statutory provision and principle of law laid down by the Supreme Court in

A.K.Jadhav (supra), it is quite vivid that in the instant case, the State Government has delegated the power to impose penalties specified in clause (i)

to (iv) of Rule 10 of the Rules of 1966 i.e. minor penalties to the Divisional Commissioner and as such, the Divisional Commissioner would be

disciplinary authority within the meaning of Rule 2(d) read with Rule 9(1) of the Rules of 1966 and he being disciplinary authority for Class II officer

which the petitioner was at the relevant point of time, had power and jurisdiction to place him under suspension by virtue of notification dated 4.8.2008

and has rightly placed him under suspension in contemplation of disciplinary proceeding, as such, no exception can be taken by the petitioner on his

suspension by the Commissioner as the Commissioner being disciplinary authority included in Rule 9(1) (a) of the Rules of 1966 was empowered to

place a Government servant (Class II gazetted officer) under suspension, where a disciplinary proceeding against him is contemplated or is pending, as

such, in my considered opinion, respondent No.2Â Commissioner is absolutely within its jurisdiction to place the petitioner (Class II officer) under

suspension and it cannot be held that he has no power and jurisdiction to place him under suspension. Argument raised in this behalf deserves to be

and is accordingly rejected.

At this stage, learned counsel for the petitioner would submit that the petitioner being member of Scheduled Tribe, opportunity of hearing ought to

have been given before placing him under suspension in terms of circulars dated 12.6.2008 and 27.11.2012. The petitioner is at liberty to make a

representation in terms of the aforesaid circulars and on representation being made, that will be considered by the competent authority in accordance

with law. However, the decision cited by Mr.Patil in the matter of Anil Kumar Jain (supra) is clearly distinguishable to the facts of the present case.

The next question would be, whether respondent No.2Â Commissioner is justified in changing his headquarter from Mainpur to the office of

District Women and Child Development, Gariyaband ?

In order to place the petitioner under suspension, the District Collector has made a proposal on 15.5.2016 to place the petitioner under suspension.

Accepting the proposal of the Collector, the Divisional Commissioner/respondent No.2 has passed an order of suspension against the petitioner and at

the same breath directed for change of headquarter from Mainpur to the office of Women and Child Development, Gariyaband.

As noticed hereinabove, the petitioner's appointing authority is the State Government. By virtue of Rule 9 (1) of the Rules of 1966, the Divisional

Commissioner being disciplinary authority and power of suspension having been delegated and as a disciplinary authority under Rule 9(1)(a) he has

placed the petitioner under suspension.

Admittedly, respondent No.2 is not appointing authority. It is the case where the petitioner has been placed under suspension by disciplinary

authority and at the same breath he has been transferred by changing his headquarter from Mainpur to Gariyaband as departmental enquiry is

contemplated against him.

Transfer in relation to service reduced to simple terms means a change of place of employment within an organization. It is an incidence of public

service and generally does not require the consent of the employee. In most service rules, there are express provisions relating to transfer. Though

definitions may differ and in many cases transfer is conceived in wider terms as a movement to any other place or branch of the organization, transfer

essentially is to a similar post in the same cadre. A government servant is liable to be transferred to a similar post in the same cadre which is a normal

feature and incidence of government service and no government servant can claim to remain in a particular place or in a particular post unless, of

course, his appointment itself is to a specified non transferable post. (See V. Jagannadha Rao and others v. State of A.P. and others (2001) 10 SCC

401).

Rule 218 to the Fundamental Rule governing Central Government defines transfer in following terms:Â​

“Transfer means the movement of a Government servant from one headquarter/station in which he is employed to another station either (a) to take

up a duty on a new post, (b) in consequence of change in headquarter.â€​

In the instant case, change in headquarter has been directed by the disciplinary authority exercising the power of suspension. In the considered

opinion of this Court, transfer along with suspension / change of headquarter can be made only by appointing authority and it cannot be directed to be

made by disciplinary authority. Disciplinary authority while making an order of suspension can definitely direct to ensure fair departmental enquiry by

relieving the concerned employee from obligation to remain in premises for entire duty period, he can ask to report at a particular place in the office or

his employment can be restricted in the office or he can ask to go away after marking his attendance, but there is no justification by directing him to

change his headquarter by way of transfer. Even if he feels that his headquarter is to be changed, he has to refer the matter to the appointing authority

which he is competent to transfer, but headquarter cannot be changed without any justification that too by disciplinary authority. Disciplinary authority

should be keep in mind that suspension and consequence fixation of subsistence allowance has the effect of financial implication and simultaneous

change of headquarter adds to the woes of the delinquent as he may not be allotted government quarter at the new station and may have to pay

substantial allowance by way of rent. Even otherwise, it would be advisable for the authority competent to record reasons for bringing out clearly why

in addition to suspension change of headquarter is necessary. Once the reasons are stated, the Court should be able to better appreciate the executive

action and would be load to interfere with.

The Supreme Court in the matter of Ajay Kumar Choudhary v. Union of India through its Secretary and another (2015) 7

SCC 291 has held that that the suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to

endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence.

In the considered opinion of this Court, change of headquarter of the petitioner, in the instant case, that too by disciplinary authority is totally

arbitrary. Firstly, disciplinary authority has no power to change the headquarter of the concerned suspended Government servant, he can only ensure

the fair disciplinary proceeding and in order to have fair disciplinary proceeding, he can make alternative arrangement by keeping the Government

servant away from the office, if any. At the best, if he feels that change of headquarter is necessary, he has to refer the matter to the appointing

authority as the power of transfer is only with appointing authority that too after assigning the reasons as to why change of headquarter of the

suspended Government servant is necessary.

The Division Bench of the Madhya Pradesh High Court in the matter of Hemant Kumar Vs. Managing Director K.S.S. Sangh 1992(II) MPWN

299 has clearly held that if the employee is duly suspended and departmental enquiry is initiated, his headquarter should not be changed.

As a fallout and consequence of the aforesaid discussion, the impugned order of the Commissioner placing the petitioner under suspension is in

accordance with law and is hereby affirmed, however, order changing headquarter from Mainpur to Gariyaband being contrary to law deserves to be

and is hereby setÂ​aside.

The writ petition is partly allowed to the extent indicated hereinÂ​above.