Pradeep Kumar Sharma vs State Of M.P. & Another

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been considered and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

The present petition is being filed being aggrieved by the order dated 31.07.2020 by the respondent No.2, whereby the petitioner has been placed under suspension. It is argued that the rules namely M.P. Municipal Council (Executive) Rules 1973 has wrongly been applied in the case of the petitioner. It is submitted that the petitioner is working as a Revenue Sub-Inspector and is governed by the rules namely M.P. Municipal Council Employees (Recruitment & Service Conditions) Rules 1968. It is submitted that the aforesaid aspect was considered and dealt with by this Court in the earlier round of litigation in Writ Petition No.5699/2017 (Pradeep Kumar Sharma Vs. State of M.P. & Another) vide order dated 23.02.2018, wherein the charge sheet was issued to the petitioner under the Rules of 1973 but subsequently the petition was disposed off holding that the petitioner's services were governed by the Rules of 1968. It is argued that the aforesaid order was duly put to challenge before the Division Bench by the State Authorities and the writ appeal was rejected. It is argued that although the remedy of the appeal is available to the petitioner but owing to the fact that by application of wrong rules, the petitioner has been placed under suspension, therefore, as the respondent No.2 was having no authority to place the petitioner under suspension as the petitioner is only holding a current charge and his lien is in the parent department.

Per contra, learned Panel Lawyer for the State has opposed the arguments advanced by the counsel for the petitioner and has argued that the remedy of appeal available to the petitioner as the order impugned is only with respect to suspension of the petitioner. The petitioner in para 3 of the petition has submitted that he has availed all the statutory and other remedies available to him but the fact remains that the remedy of appeal is available with the petitioner against the suspension order available to the petitioner. He has relied upon the judgment passed by the Division Bench of this Court in the case of Anand Sharma vs. State of M.P. & Anr. reported in 2007 (1) MPJR 122 wherein it has held that in similar circumstances, the State Authorities were having right to place the similarly situated person like the petitioner under suspension even if he is holding a current charge considering the Rule of 1973. It is submitted that the petitioner may avail the alternative efficacious remedy available to him. The aforesaid judgment was not brought to the consideration of the Court in the earlier round of litigation. He has prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that the petitioner is only placed under suspension. In such similar circumstances, the Division Bench of this Court in the case of Anand Sharma vs. State of M.P. & Anr. reported in 2007 (1) MPJR 122 has held as under :-

"10. Admittedly, in this case, there is no dispute about the facts of the case. Vide order dated l8.5.05, the appellant was made as Incharge C.M.O. of Nagar Panchayat, Phoopkalan, and he was continuously working on that post and performing the duties and exercising all powers of C.M.O.; and for committing some irregularities, he was placed under suspension vide order dated 19.7.2006, i.e., after a period of 14 months, which also clearly indicates that his additional charge was not of a temporary in nature for a particular period, but he was continuously enjoying the powers of Chief Municipal Officer. As has been argued by the learned Counsel for the appellant, the question in this case is whether, under these circumstances, the order passed by the commissioner-cum-Secretary for placing him under suspension can be covered within the provisions of sub-section (1-A) of Section 89 under the power of control and sub-section (4) of Section 90 of the Act of 1961. Though Shri M.P.S. Raghuwanshi vehemently argued, but considering the aforesaid provisions and the background of the facts, and the clear meaning of word "power of control" we are also of the same view that if an Officer though not promoted under the cadre of C.M.O., but if he was given additional charge or was made Incharge C.M.O. and was exercising the powers of the post, was under the "control" of the state Government as provided in sub-section (1-A) of Section 89 read with sub-section (4) of Section 90 of the Act of 1961. Sub-section (1-A) of Section 89 provides the powers to the State Government to "control over" the person and the person so appointed shall exercise all the powers and perform the duties imposed on him under the Act and he shall be subject to the same liabilities, restrictions and conditions to which the Chief Municipal Officer is liable. The plain and simple interpretation of the aforesaid provisions is that if a person is exercising the powers and performing the duties, the State Government shall have the powers to control over the person, therefore, at this stage, he cannot argue that his suspension is illegal or without jurisdiction. In fact, power of suspension is included in power to control. Admittedly, the order Annexure P/2 for posting him as an Incharge C.M.O. has been passed by the State Government and during that period he was under the control of the Government, therefore, for committing irregularities the Commissioner-cum-Secretary of the Urban administration and Development M. P. was fully competent not only to recall the aforesaid order but to place him under suspension because when the order was passed by the State Government to permit him to perform the duties as a C.M.O., the order was under same liabilities, restrictions and conditions and in that case it cannot be argued that the State Government shall have no powers to suspend him and for that purpose looking to his original cadre or the original post it is the only Nagar Panchayat which can pass orders. Though the learned Counsel for the respondents could not point out whether the order was approved by the president or not nor any such order has been filed or placed on record before us, but even otherwise even if the order is not approved by the President or by Nagar Panchayat, Phoopkalan, the order passed by the Commissioner-cum-Secretary will not be illegal and without jurisdiction because he, for that purpose when he was working on the post of Incharge CMO, was directly under the control of the State Government for all purposes including for disciplinary action and suspension."

Considering the aforesaid judgment passed by the Division Bench in the case of Anand Sharma (supra) and the fact that the impugned order is only with respect to suspension of the petitioner against which the remedy of appeal is available to him. In such circumstances, this Court is not inclined to entertain the writ petition. The petition is accordingly dismissed for want of alternative remedy.

The petitioner may avail the remedy of appeal available to him under law.

E-copy of this order be provided to the petitioner and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.