Shailendra Pandey vs State Of M.P. & Others

Heard on the question of admission and interim relief.

By the instant petition, the petitioner is questioning the validity of order dated 19.08.2020 (Annexure-P/9) whereby he has been directed to be placed under suspension by respondent No.2 i.e. Chief Executive Officer, Zila Panchayat-Rewa, District-Rewa.

The sole ground of challenge is that there is no provision of suspension under the Recruitment Rules governing the service conditions of the petitioner, those rules are known as the Madhya Pradesh Panchayat Service (Gram Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011 [hereinafter referred to as 'the Rules, 2011']. Learned counsel for the petitioner submits that from perusal of the order impugned, it reveals that the petitioner has been placed under suspension by exercising the provision provided under the Madhya Pradesh Panchayat Service (Discipline and Appeal) Rules, 1999 [hereinafter referred to as 'the Rules, 1999'] as alleged conduct of the petitioner comes within the category of misconduct as per the provisions of the Madhya Pradesh Panchayat Services (Conduct) Rules, 1998 [hereinafter referred to as 'the Rules, 1998'], but according to learned counsel for the petitioner, after enforcement of the Rules, 2011, the power provided under the Rules, 1999, cannot be invoked by the authority in respect of Secretary of the Gram Panchayat.

Learned counsel for the petitioner has placed reliance upon a decision passed by the Indore Bench in W.P. No.15511/2019 (Satish Joshi Vs. State of M.P. & Others) and other connected petitions decided by a common order dated 13.02.2020, in which similar issue has been dealt with by the Court and it was finally held that under the provision of Rule 7 of the Rules, 2011, there was no specific provision for placing a Secretary under suspension though the circular has been issued by the State Government on 21.01.2020 supplementing such an arrangement empowering the authority to place a Secretary under suspension, but as per the Court, such statutory function cannot be performed under the garb of circular unless the Rules are amended. The Court has also observed that so far as the Rules, 1999, are concerned, the provision of suspension though available in the same, but would not be available after enforcement of the special enactment governing the disciplinary control in regard to Secretary of Gram Panchayat and as such, the provision of Rules, 2011, being special rules, would prevail over the Rules, 1999.

The Indore Bench finally held that a Secretary cannot be placed under suspension unless the amendment is made in the Rules, 2011, inserting specific provision of suspension.

In the facts and circumstances of the present case, without entering into the fact that whether the State Government can supplement the provision of suspension in the Rules, 2011, by way of circular dated 21.01.2020 or not, I can only say that the order passed by the Indore Bench in W.P. No.15511/2019 is "per incuriam" for the reason that the said Court has not considered the earlier judgment of this Court passed in the case of Mahesh Kumar Gupta Vs. State of M.P. & Others reported in 2013(4) MPLJ 55, in which, the co-ordinate Bench at Jabalpur followed the decision of the Apex Court passed in the case of R.P. Kapur Vs. Union of India & Another reported in AIR 1964 SC 787, in which five Judges Bench opined as under:-

"The authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceedings, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in section 16 of the General Clauses Act which is in consonance with the general law of master and servant. But what amount should be paid to the public servant during interim suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. AIR 1959 SC 1342 and AIR 1961 SC 276, Rel. on." (Emphasis supplied)"

Thus, in view of the decision of the Supreme Court followed by this Court in the case of Mahesh Kumar Gupta (supra), even in absence of specific provision of suspension under the respective statute, as per Section 16 of the General Clauses Act, the authority entitled to appoint a public servant would be entitled to suspend him, meaning thereby that in absence of any enabling provision of suspension, the same can be done by the appointing authority.

Further, in the case of L.K. Verma Vs. HMT Ltd. & Another reported in (2006) 2 SCC 269, the Supreme Court in paragraph-17 has observed as under:-

"17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exists in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein."

As such, the view taken by the Indore Bench in W.P. No.15511/2019 is not binding upon this Court as the same is "per incuriam" in view of the Full Bench judgment of this Court passed in the case of Jabalpur Bus Operators Association Vs. State of M.P. & others reported in 2003 (1) MPLJ 531.

Furthermore, the Indore Bench has also not considered the Full Bench decision of this Court passed in W.A. No.651/2013 parties being Chandrapal Yadav Vs. State of M.P. & Others decided by order dated 06.01.2016, in which the Full Bench dealing with the similar situation and also taking note of the provisions of Rules, 2011, Rules, 1999 and also of Rules, 1998, has observed as under:-

"30. After the Rules of 2011, the post of Gram Panchayat Secretary has been made a substantive post. The incumbent may be absorbed or freshly appointed against that substantive post, as the case may be. For being appointed to that post, the procedure prescribed in the said Rules will have to be followed. As regards discipline and control, Rule 7 of the Rules of 2011 stipulates that Rules of Madhya Pradesh Panchayat Services (Conduct) Rules, 1998 would apply. The Rules of 1998, however, do not provide for the situation in which the incumbent can be placed under suspension or for imposing penalty. For that, the principle underlying Discipline and Appeal Rules of 1999 may have to be invoked - which apply to all persons employed in connection with the affairs of Zila Panchayat, Janpad Panchayat and Gram Panchayat and discharge the functions of Zila Panchayat, Janpad Panchayat and Gram Panchayat. The exception is only of officers and servants of the State service who are posted under the Panchayats under Section 69 or are on lone service to the Panchayats under Section 71 of the Act of 1993. Any person, if appointed as Panchayat Karmi or Gram Panchayat Secretary, may be considered as a member of Panchayat service or Panchayat servant to whom Rules of 1999 would apply in respect of action of suspension or disciplinary proceedings, as the case may be. However, as aforesaid, withdrawal of charge bestowed on any employee of the Gram Panchayat to discharge the duties and functions of Secretary of the Gram Panchayat cannot and does not result in disciplinary action or for that matter reduction in rank or suspension. In the present case, the appointment of the appellant is on the substantive post of Panchayat Karmi with investure of charge of Gram Panchayat Secretary after coming into force of Rules of 2011; and for which reason, it was always open to the Authority to withdraw the said charge for which prior notice was not required to be given." (Emphasis supplied)

In view of the above, let notices be issued to the respondents on payment of process-fees.within seven days by RAD mode,However,returnable within six week

since charge-sheet has already been issued to the petitioner and the same is also under challenge, I do not find that the petitioner is entitled to get any interim relief in pursuance to the order passed by the Indore Bench, therefore, the interim relief claimed by the petitioner is hereby rejected.

List after six weeks