Rameshwar Prasad Verma vs State of Bihar and Others

Tapen Sen, J.—Heard the parties.

The writ petitioner in the instant case has prayed for quashing the order dated 29.1.1992 as contained at Annexure-4 (wrongly typed in paragraph 1 as 28.1.1992) by reason whereof a departmental proceeding has been initiated against the petitioner by the respondent No. 3 (Divisional Commissioner, South Chotanagpur Division, Ranchi). The petitioner has further prayed for quashing the charge-sheet issued by the Commissioner on 14.8.1991 (Annexure 4/A) issued by the said Commissioner by which charges have been framed on the ground that the said Commissioner has no jurisdiction to do so.

According to the petitioner, he is a Block Supply Officer and a Gazetted Officer having been appointed by the State Government. According to the petitioner by reason of a resolution dated 9.10.1990, the post of Block Supply Officer has been declared to be the post of Gazetted Officer. The petitioner has also relied upon Annexure-2 which is a Notification dated 10.5.1990 and which shows that the petitioner was transferred to the Chanho Block under the orders of the State Government and as per the order of the Governor of Bihar. According to the learned counsel for the petitioner, this document is another evidence to prove that the appointing and disciplinary authority is the State Government. Similarly, the petitioner has also relied upon Notification dated 11.7.1988, again issued as per the order of the Governor of Bihar, by reason whereof the petitioner has been given time bound promotion. According to the petitioner, therefore, it was the Government which could have framed charges and proceeded against the petitioner depart-mentally and the framing of charges at the instance of the Commissioner, South Chotanagpur Division, Ranchi, as contained at Annexure 4/A is, therefore, clearly without jurisdiction.

The learned counsel for the petitioner has further drawn the attention of this Court to Annexure (sic) which is a letter of the Government of Bihar, Department of Personnel and Administrative Reforms, by reason whereof it has, inter alia been Intimated that the Divisional Commissioner will not initiate any departmental proceedings nor suspend Class-II Officers of the State. According to the learned counsel, the petitioner Class-II Gazetted Officer and therefore, the Commissioner could not have proceeded to either frame the charge-sheet or direct the Deputy Director (Foods) to proceed departmentally on the basis of the aforementioned charge-sheet.

The learned counsel has further stated that In relation to one Pancham Ram, the Supply Inspector, Silli, the Commissioner had sought approval from the Government by Annexure-6 to proceed departmentally against him. According to the learned counsel, this was a correct procedure and it should have been adopted in the case of the petitioner also, i.e. the prior approval of the Government should have been taken and the Commissioner, at his own level, could not have proceeded to frame charges and initiate proceedings against the petitioner.

Mr. Pradeep Modi, learned counsel for the petitioner, while referring to the counter affidavit has on the other hand, stated that the petitioner in a non-gazetted officer and Annexure-1 relates only to the recognition of officers in the capacity of Gazetted Officer in matter relating to entry, search and seizure.

The aforesaid argument of Mr. Pradeep Modi is rejected and it is held that Annexures-4 and 4/A are illegal and without jurisdiction. The observation of the Court is based upon a Judgment of a Division Bench of Patna High Court In the case of Kamta Prasad Singh and others v. State of Bihar 1987 PLJR 1042 wherein, while referring to the Civil Services (Classification, Control and Appeal) Rules, 1930 and with reference to Rule 49-A, it was held that delegation of power to Divisional Commissioner to place Class II Officers under suspension and initiate departmental proceedings is a procedure which is contrary to Rule 49-A. The Civil Services (Classification, Control and Appeal) Rules of Class I and Class II, and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 of Class III and Class TV employees have been adopted Notification No.''III/Rl- 101/63-8051-A dated 3rd July, 1963, published in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India w.e.f. 22.12.1956.

On the basis of the aforesaid factual positiqn, the Division Bench observed at paras 5 to 8 as follows :

Civil Services (Classification, Control and Appeal) Rules of Class I and Class II, and the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 of Class III and Class IV employees have been adopted Notification No. III/R 1-101/63-8051-A dated 3rd July, 1963, published in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the State Government to be effective from 22nd December, 1956. The rules came to govern Class I and Class II employees of the State Government. On 8th August, 1973, vide Notification No. 12110-P, Rule 49-A was introduced. The relevant extract is as hereunder :

"49-A. (1) The appointing authority or any authority to which it is subordinate or 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."

According to learned counsel for the petitioner Rule 49-A does not empowers any other person than the persons identified in Rule 49-A, namely, the appointing authority or any authority to which the appointing authority is subordinate or the Governor, to suspend the petitioners. The Commissioner who passed the order of suspension is neither the appointing authority nor an authority superior to such an authority nor the Governor has passed or special order placing the petitioners under suspension. According to learned counsel, the impugned letter of the Chief Secretary dated 28th December, 1985 has no sanction of law, since Rule 49-A does not confer the power of delegation to another authority. The impugned executive order does not seek to supplement Rule 49-A, a rule made under Article 309 of the Constitution of India. On the other hand, by the executive order Rule 49-A is intended to be amended which is impermissible.

Learned counsel appearing for the State, on the other hand, contended that the direction issued conferring power on the Commissioner is wholly in consonance with the scheme of Rule 49-A. According to learned State Counsel, if this power is denied to the head of a division who is bound to be a senior and matured officer of the Government, the administration is bound to suffer particularly when large schemes and development works are being carried out in his division. In spite of having observed grave irregularities in the discharge of duties of Class II Officers, if the Commissioner has merely to act as a complaining officer even in a case requiring immediate suspension of such Class II Officer, it will result in great administrative difficulties and inconveniences. This was the motivation which resulted in the issuance of the Government decision dated 28th December 1985. Learned counsel also contended that the words "Governor by general order may place a Government servant suspension" authorize the Government to issue executive order to confer the power of interim suspension on such other officers as it decides within scope of Rule 49-A. In elaboration of his argument, the learned Government Pleader No. IV asks us to read Rule 49-A(1) as follows by reading the works in Rule 49-A(1) :

''The appointing authority or any authority to which it is subordinate or (as) the Governor by a general or special order (may direct), may place a Government servant under suspension."

In order to appreciate the rival contentions, a reference to Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is worth observing :

"10, Suspension-(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 President, 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

(aa) where in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State, or

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

In substance, the learned Government Pleader No. IV wants us to read Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in place of Rule 49-A of the rules in order to give same meaning to Rule 49-A as envisaged by Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rule, 1965. But there is a marked difference between to two rules. In Rule 10 the persons noticed to pass an order of suspension are the appointing authority, the authority superior to it, the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, who may place a Government servant under suspension. The words "any other authority empowered in that behalf by the President" are significantly lacking in Rule 49-A of the Rules.

The other question seriously canvassed by the learned Government Pleader is that the Governor by general order may place a Government servant under suspension implies a power of delegation to any other authority to pass an order of suspension. This argument does not appeal to me. It is now well-established that in absence of a power of delegation in a statutory provision, the ultimate power required to be exercised by a particular officer can not be delegated. A functionary who has to decide an administrative matter or the nature involved in the case can obtain the material on which he is to act in such manner as may be feasible and convenient but he cannot delegate the ultimate responsibility for the exercise of such power except where the law specifically so provides. Rule 49-A does not contemplate any person other than those designated to place a Government servant under suspension. It does not envisage further delegation of power by the person authorized to take action. Our attention has been drawn to a large number of cases in this connection but a reference to the decisions of the Supreme Court in Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, and A.K. Roy and Another Vs. State of Punjab and Others, is sufficient for the purpose. In this connection another well known rule of construction to be remembered is where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The intention of the rule making authority in enacting Rule 49-A was to confer a power on the specified authorities and, therefore, the power had to be exercised by those authorities and not otherwise.

Thus from a perusal of the aforesaid Judgment of the Division Bench, it is, therefore, apparent that the Commissioner could not have either framed charges or ordered for the proceedings to be issued against the petitioner. The only proper course was to seek the approval of the Government as had been done in the case of Pancham Ram, is evident from Annexure-G.

In that view of the matter An-nexures-4 and 4/A are held to be without jurisdiction and consequently are set aside. The matter is remanded to the authorities for a fresh consideration and if at all they wish to proceed departmentally against them, then they must do so in accordance with law and in the light of the observations made above.

With the aforementioned observations and direction this Writ Application is allowed. There shall however be no order as to costs.