Ramsevak Halwai vs State Of Madhya Pradesh And Others

S. A. Dharmadhikari, J

The petitioner by the instant petition filed under Article 226 of the Constitution of India is questioning the legality, validity and propriety of order dated

04.01.2022 (Annexure P/1) whereby the petitioner has been placed under suspension attributing certain allegations and irregularities committed by him

causing loss to the Government and as such, his conduct comes under misconduct and, therefore, exercising power provided under Rule 36(1) of

Madhya Pradesh State Municipal Service (Executive) Rules, 1973, (For short, 'Rules of 1973') placed him under suspension by the respondent no.2.

The challenge is founded mainly on the ground that the order of suspension has been passed by the authorities, not competent to do so.

Shri Praveen Dubey, learned counsel for the petitioner has submitted that Rule 36 of Rules of 1973 under which the petitioner has been placed under

suspension is not applicable for the petitioner because the said rule is applicable for the persons who are the member of M.P. State Urban

Administrative Services. He has submitted that Rule 36 is very specific, which reads as under:-

Suspension pending disciplinary proceedings. -(1) If having regard to the nature of charges and the circumstances in any case, [appointing

authority or the Disciplinary authority] is satisfied that it is necessary or desirable to place, under suspension the member of the service against whom

disciplinary proceedings is contemplated or is pending, it may subject to the provisions of sub-section (2) of section

86 of the Act pass an order placing him under suspension.

(2). A member of the service detained in police custody, whether on a criminal charge or otherwise for a period longer than forty-eight hours, shall be

deemed to have been suspended with effect from the date of detention under this rule.

(3) A member of service against whom a criminal charge is pending may at the discretion of the appointing authority, be placed under suspension until

the termination of the proceedings, if the charges are connected with his duties as a municipal servant or is likely to embrace him in the discharge of

his duties in the Municipality or involves moral turpitude.

He has further drawn attention on the definition provided under sub- rule (f) of Rule 2, which reads as under:-

(f). 'Member of the service' means a member of the Madhya Pradesh State Urban Administrative Service.

Learned counsel for the petitioner has further submitted that the order o f suspension can be passed by the Appointing Authority and the Disciplinary

authority prescribed under the Rules of 1973 and as per the definition provided of Appointing Authority and Disciplinary Authority, in sub-rules (b) and

(d-i) of Rule 2, which read as under:-

(b). 'Appointing Authority' means the State Government in respect to Additional Director, Joint Director, Chief Municipal Officer class-A, Chief

Municipal Officer, class-B, and Chief Municipal Officer class-C.

(d - i) . ""Disciplinary Authority' means the authority competent under these rules to impose upon a member of the service any of the penalties

specified in rule 31.

Learned counsel for the petitioner has very categorically submitted that petitioner is not an employee of Urban Administrative Department and as

such, he is not 'Member of the service' and, therefore, his services are not governed with Rule 36 of the Rules of 1973. According to the learned

counsel, petitioner is the employee of the Council and vide order passed by the Joint Director, Urban Administration and Development, approved by

the Collector on 03.11.2020, he was appointed as In-charge, Chief Municipal Council, Nagar Parishad, Bakaho and also he was one of the members

of the Committee against whom irregularities have been alleged. According to the learned counsel, petitioner can be suspended exercising the power

provided under Section 329 of Madhya Pradesh Municipalities Act, 1961. Section 329 provides as under:-

Power to demand punishment and dismissal.-Not-withstanding anything contained in this Act, if in the opinion of the State Government, any

officer or servant of the Council is negligent in the discharge of his duties the Council shall, on the requirement of the State Government, suspend, fine

or otherwise punish him and if in the opinion of the State Government he is unfit for his employment the Council shall dismiss him from service:

Provided no such order shall be passed until reasonable opportunity has been given to the person concerned to furnish his explanation and the same

has been considered.

In view of the aforesaid provision and as urged by Shri Dubey, learned counsel for the petitioner that it is the Council which can exercise the power of

suspension and for which reasonable opportunity should also be given to the petitioner but the rules under which power has been exercised is not

applicable and under such power, petitioner cannot be placed under suspension by the respondent no.2.

Shri H.S. Hora, learned Panel Lawyer appearing for the respondents on the other hand has opposed the submission and submits that as per Section 89

of the M.P. Municipalities Act, 1961, the State Government is fully empowered to control over the person appointed or working under the Municipal

Council and if control is of the State Government, the power can be exercised by the State Government for the alleged irregularities committed during

the period when the person is working under the Municipal services. He has also submitted that there is no document available on record indicating

that the petitioner was appointed by a Council and he is a member of Municipal services and, therefore, at this stage, it is not proper to hold that the

impugned order has been passed an authority, not competent to do so.

Considering the aforesaid, prima facie, it appears that the submission made by learned counsel for the petitioner has some substance and, therefore, as

State is also on caveat, no notice is required to be issued to respondents no.1 to 4.

Let notices be issued to respondents no.5 and 6 only on payment of process fee within seven days by registered mode.

B y way of interim measure, it is directed that till the next date of hearing, order of suspension in respect of the petitioner shall remain stayed.

Certified copy as per rules.