R.P. Parihar vs State of Chhattisgarh and Others

P. Sam Koshy, J—With the consent of the learned Counsel for the parties, the present Writ Petition was taken up for disposal at the motion stage itself. The question which arises for determination through the present Writ Petition is as to whether the Commissioner is empowered to place the Petitioner, who is posted as Assistant Superintendent in the office of Project Officer, Integrated Child Development, Bilaspur, which is a Class in ministerial post, under suspension.

Facts relevant for adjudicating the aforesaid issue are that the Petitioner is posted as Assistant Superintendent in the office of Project Officer, Integrated Child Development Project, Bilaspur. Vide impugned order dated 12.11.2014 (Annexure P-1), the Commissioner, Bilaspur Division, i.e., Respondent No. 2 who is also impleaded by name as Respondent No. 3, has placed the Petitioner under suspension on an allegation of committing serious negligence and financial irregularities. The said impugned order (Annexure P-1) was issued invoking the provisions of Rule 9 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1966").

The contention of the learned Counsel for the Petitioner is that the disciplinary authority in respect of the Petitioner is the Director of Integrated Child Development Project and the appellate authority under the service rules is the State Government and hence the order of suspension could not have been therefore issued by the Divisional Commissioner. Learned Counsel for the Petitioner further submits that under the Rules of 1966, the State Government has issued a notification whereby the State Government has delegated powers to the Collectors of the respective Districts to exercise the powers under Rule 9 to suspend and under Rule 10 to impose minor penalty on all the employees of Class IH and Class IV of all the departments (except Policemen) posted in their Districts.

Learned Counsel for the Petitioner has relied upon the recent decision rendered by the High Court of Chhattisgarh in the case of Anil Kumar Jain Vs. State of Chhattisgarh . Counsel for the Petitioner referred to the said judgment and stated that vide the said judgment the High Court in very categorical terms held that if a particular officer has not been authorized under the approved rules and the person issuing the order of suspension not being the competent authority inasmuch as he is neither the appointing authority nor the disciplinary authority or even the appellate authority, under such circumstances the order of suspension is liable to be set aside.

Learned Counsel for the Petitioner further submits that even if the notification by the State Government delegating powers to the Collectors for exercising the powers under Rule 9 and Rule 10 of the Rules of 1966 it would show that there is a deliberate exclusion of the superior officer to the Collector being empowered or being also empowered to exercise the powers under Rule 9 and Rule 10, thus once when there is a deliberate exclusion then the Court should not read into something which is not present in the substantive rule nor is there any subsequently supplemented notification delegating powers to a specific officer.

On the other hand, learned counsel for the state has taken a preliminary objection about the maintainability of the instant Writ Petition on the ground of there being a statutory alternative remedy available to the Petitioner that of preferring an appeal under Rule 23 of the Rules of 1966 to the appellate authority.

Opposing the Petition, learned Dy. Advocate General for the State submits that once when the power has been delegated upon the Collector by the notification of 1966 empowering the Collector to exercise the powers under Rule 9 and Rule 10 of the Rules of 1966 and the Additional Commissioner being the superior officer to the Collector, he is also equally competent to exercise the powers under Rule 9 and Rule 10 for all those employees to whom the Collector has been delegated to exercise the powers. The State''s Counsel further submitted that in the instant case the office where the Petitioner is working is in the same campus where the Commissioner has his office and that the Integrated Child Development Project, Bilaspur, is a department under the Commissioner and therefore also in the capacity of a supervising authority on finding certain grave irregularities and negligence on the part of the Petitioner, the Additional Commissioner has issued the impugned order.

Learned Counsel for the State further referred to an office order dated 27.3.2009 issued by the Secretariat of the Women and Child Development Department, wherein it has been stated that the Commissioner shall have the powers to supervise and inspect the schemes being carried out by the Women and Child Development Department in the Division under the said Commissioner and on the basis of the said instructions, the learned Counsel for the State tried to emphasize the fact that since the Commissioner has been authorized to supervise and inspect all the schemes under the Women and Child Development Department and in the process of a supervision and inspection, if certain negligence and serious irregularities have been detected, under the said circumstances, the Commissioner in the capacity of a supervising authority has exercised the powers under Rule 9 and has placed the Petitioner under suspension and since the Commissioner is undisputedly a superior officer in rank than the Collector and therefore the Commissioner is competent to exercise the powers under Rule 9 and Rule 10 of the Rules of 1966 with which has been delegated upon the Collector.

Learned Counsel for the State further brought to the notice of the Court a notification of December, 2008 whereby the Divisional Commissioner is empowered under the Rules of 1966 to exercise the powers under Rule 10 against the employees under the State Government posted in all the departments belonging to the Class II category (except for the persons working in the police department and officers in the judicial services). Thus, the learned Counsel for the State emphasized on the fact that by such instructions being issued by the State Government empowering the Commissioner under Rule 10 of the Rules of 1966 would justify the fact that since the Commissioner is as an officer superior than the Collector in me Division and therefore the power which could otherwise be exercised under the Rules of 1966 by the Collector can also be exercised by the Commissioner and thus the State''s Counsel submitted that the order passed by the Commissioner cannot be said to be without authority and without the powers under the Rules of 1966 and the Petition being devoid of merits, the same deserves to be rejected.

Having considered the rival contentions put forth by the Counsel appearing from either side, it would be trite to refer to the provisions of sub-rule (1) of Rule 9 of the Rules of 1966 dealing with suspension, which reads as under:

"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 suspension."

A plain perusal of this Rule by itself would demonstrate that the Rule envisages the different authorities who can exercise the power under Rule 9. On a plain reading of the provision would reveal that the following are the persons or the categories of persons who can exercise the powers under Rule 9 and they are:

(i) the appointing authority;

(ii) any authority to which it (appointing authority) is subordinate;

(iii) the disciplinary authority;

(iv) any other authority empowered in that behalf by the Governor by general or special order.

As such except for the four categories of officers as reflected above, there cannot be a fifth category of person who could exercise the powers under Rule 9 of the Rules of 1966 for passing the order of suspension.

The admitted position in the instant case is that the impugned order has not been issued by the appointing authority nor is the authority who has passed the order under Rule 9 an authority to which the appointing authority is subordinate. Thirdly, the authority issuing the suspension order is also not the disciplinary authority. Under such circumstances, the only alternative left is to verify as to whether the authority who has issued the order of suspension would fall within the fourth category, i.e., an authority empowered in that behalf by the Governor by a general or a special order, that is to say, the Commissioner as in the instant case who has imposed the order of suspension is duly authorized or empowered by a general or special order by the Governor for issuing an order under Rule 9 for placing an officer under suspension.

In the context of the above referred provision it is noteworthy to again reproduce the notification dated 23.5.1996 whereby the Collectors have been empowered to exercise the powers under Rule 9 and Rule 10 of the Rules of 1966 to suspend as well as to impose minor penalty:

"(1) The State Government has delegated powers to Collectors to exercise powers under Rule 9 to suspend and under Rule 10 to impose minor penalty on all the employees of Class III and Class IV of all the departments (except police workers), posted in their District, with effect from 23rd May, 1966."

This notification very clearly stipulates that the power to pass an order of suspension has been by way of delegation of powers conferred upon the Collectors of the Districts and the powers of the Collectors have been restricted for only the employees of Class III and Class IV of all the departments in the Districts (except police workers).

Reading of the said notification gives light on two or three aspects. Firstly, exercising the fourth alternative under the provision of Rule 9, the Government has empowered the Collectors also to exercise the powers under Rule 9 and Rule 10 for placing an employee of Class in and Class IV categories within their respective Districts. Secondly, the notification reflects that it is by way of delegation of powers that the Collectors have been empowered to exercise the powers under Rule 9 and Rule 10. Thirdly, the said notification does not say that the powers under Rule 9 and Rule 10 can also be exercised by any of the officers to whom the Collector is subordinate. Thus, what is evidently clear is that firstly the Commissioner of a Division would not automatically fall within the fourth category of authority who can exercise the powers under Rule 9 as has been stipulated in Rule 9. Secondly, the notification of 1996 does not have a rider clause of a superior officer than the post of Collector could also exercise the powers under Rule 9. Lastly, the Collector itself has been provided the power by way of delegation of power as is reflected from notification of 1996 and what has been delegated to the Collector could not be presumed to stand delegated to the Commissioner also.

The over all perusal of the factual scenario as has been enumerated in the preceding paragraphs would clearly lead us to draw an inference that the Commissioner has been deliberately excluded, from exercising the powers under Rule 9 and Rule 10 in respect of Class III and Class III categories of employees within the Districts. Further, there is no express order directly or indirectly by way of a general order or by way of a specific order by which it could be said that the Commissioner also derives the powers automatically under Rule 9 and Rule 10, as is the requirement of law under the provisions of Rule 9. The notification, which was relied upon by the State''s Counsel, of December, 2003 empowering the Commissioner for exercising the powers under Rule 10 on me Government servants of Class II would also make it more clear that the said notification only empowers the Commissioner to exercise the powers under Rule 9 and Rule 10 only against the Government servants of Class II category. This by itself also would substantiate the fact that the Commissioner has not been conferred with a power to pass an order under Rule 9 and Rule 10 of the Rules of 1966 against a Government servant of Class in and Class IV rank.

The Hon''ble Supreme Court in the case of Marathwada University Vs. Seshrao Balwant Rao Chavan, AIR 1989 SC 1582 : (1989) 2 JT 276 : (1989) LabIC 1532 : (1989) 2 LLJ 161 : (1989) 1 SCALE 996 : (1989) 3 SCC 132 : (1989) 2 SCR 454 : (1989) 3 SLJ 50 : (1989) 2 UJ 403 states as under:

"20......It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated....."

Statutory power must be exercised only by the body or the officer in whom it has been confided and unless there is an expressed power by way of sub-delegation it cannot be exercised by any other officer.

In addition, the document dated 23.7.2009 referred to by the learned Counsel for the State in reference to the supervisory powers of the Commissioner over the affairs of the Women and Child Development Department is to the limited extent of the works which have been executed or implemented by such department. The order does not in any manner reflect that the Commissioner shall also have all administrative and disciplinary powers over the employees of Class III and Class IV categories in the said department.

In the case of Scientific Adviser to the Ministry of Defence and Others Vs. S. Daniel and Others, (1990) 2 JT 544 : (1990) 2 LLJ 295 : (1990) 1 SCALE 731 : (1990) 1 SCC 374 Supp : (1990) SCC 374 Supp : (1990) 2 SCR 440 : (1991) 3 SLJ 29 , the Hon''ble Supreme Court in very categorical terms has held that when the Act or Regulation envisage the Dower of appointment conferred by them on certain authorities being delegated, the power conferred on the delegates is circumscribed by the instrument of such delegation and cannot be extended beyond its ambit.

Taking into consideration the entire facts and circumstances of the case, this Court has no hesitation in reaching to the conclusion that the Commissioner being neither the appointing authority of the Petitioner nor the authority to whom the appointing authority is subordinate and also the fact that the Commissioner has not been by any expressed order of the Governor empowered to pass an order under Rule 9 of the Rules of 1966, the order so passed by the Commissioner in the instant case is per se illegal and as such is an order issued by an officer incompetent to pass such an order and is therefore unsustainable and deserves to be set aside/quashed.

As a consequence, the instant Writ Petition is allowed. The impugned order of suspension passed against the Petitioner is set aside. No order as to cost. Needless to mention that this order should not be presumed to preclude the competent authority from initiating appropriate proceeding by the competent authority afresh for the misconduct, if any, committed by the Petitioner.