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Judgment
I.M. Quddusi, J.—This writ petition is filed against the impugned order dated 19-2-1999. passed by the M.P. Administrative Tribunal, Jabalpur in T.A. No. 4353/88, affirming the judgment and decree passed by the Civil Judge, Class I, Rajnandgaon in Civil Suit No. 37-A/86, dated 11-9-1986. Before re-organization of the State, the instant writ petition was filed through Secretary, Govt. of M.P., Home (Jail) Department and after reorganisation of State of Madhya Pradesh, since the matter relates to the newly created Chhattisgarh State, the case has been transferred to this Court.
Brief facts of the case are that the father of the respondent No. 1. Rajendra Kumar Jain was working as Warder at Sub Jail, Rajnandgaon. He joined the service on 25-8-1971 and his services were terminated vide order dated 1-6-1978. The order of termination was challenged before the Civil Court at Rajnandgaon in Civil Suit No. 37-A/1986. The Civil Court by judgment and decree dated 11-9-1986 decreed the suit in favour of the employee and quashed the order of termination.
Being aggrieved by the judgment and decree passed by the Civil Court, Rajnandgaon, the petitioners/State of M.P. had filed an appeal. During pendency of the appeal, the same has been transferred to the State Administrative Tribunal, Jabalpur, after establishment of the State Administrative Tribunal in the year 1988, where was registered as T.A. No. 4353/1988.
Learned Dy. Government Advocate has submitted that according to Jail Manual, the Appointing Authority for the post of Warder was Superintendent, Circle Jail but all the Superintendents were empowered to impose punishment upon the Warders. He has drawn the attention of this Court towards the note mentioned under the chart in the Jail Manual in which it is mentioned that ''Superintendent of Jail mentioned in columns (2) and (3) includes Superintedent of Central'', District and Sub Jails and also Superintendent, B.I. Narsimhapur and Superintendent Jail Training Centre, Jabalpur. Therefore, the order of dismissal passed by the Superintendent, Sub Jail was valid as he was absolutely competent to impose all the penalties upon the Warder, i.e., the respondent (deceased). However, it was not disputed that the Superintendent, Sub Jail is subordinate to Superintendent, Central Jail.
Learned Counsel appearing for the respondent No. 1 has submitted that there are concurrent findings of facts to the effect that the Superintendent, Sub Jail was not competent to pass the impugned order of termination which has been affirmed by the Court of Civil Judge as well as at the appellate stage by the State Administrative Tribunal.
Before proceeding further, it is necessary to mention the relevant provisions of Jail Manual, the provisions of Article 311 of the Constitution of India and Schedule to M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, which are reproduced as under:
JAIL MANUAL
-------------------------------------------------------------------------------- Description Appointing Authority competent of Post Authority to impose penalties which it may impose (with reference to item Nos. in Rule 9) ----------------------------------------------------- Authority Penalty Appellate Authority ---------------------------------------------------------------------------------- (1) (2) (3) (4) (5) ---------------------------------------------------------------------------------- Staff posted to Jails ---------------------------------------------------------------------------------- Chief Head Supdt. of Superintendent All I-G. of Prisons Warder/Head Circle Jail of Jail Warder/Lady Attendants/Warders ----------------------------------------------------------------------------------
Note : -Superintendent of Jail mentioned in columns (2) and (3) includes Superintendent of Central, District and Sub Jails and also Superintendent, B.I. Narsimhapur and Superintendent Jail Training Centre, Jabalpur.
Article 311 of the Constitution of India:
Dismissal, removal or reduction in rank of persons employed in Civil Capacities under the Union or a State.- (1) No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges : Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply:
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 Schedule, Rules 8 and 24:
SCHEDULE (See Rules 8 and 24) Staff posted to Jail
-------------------------------------------------------------------------------- Description Appointing Authority competent of Post Authority to impose penalties which it may impose (with reference to item Nos. in Rule 9) ---------------------------------------------------- Authority Penalty Appellate Authority -------------------------------------------------------------------------------- (1) (2) (3) (4) (5) -------------------------------------------------------------------------------- Class I Supdt. Central State I.G. of (i), (ii) and State Jail Government Prisons (iii) Government
State All Governor Government
Class II All
Superintendent, State I.G. Prisons (i), (ii) and State Distt. Jails Government (iii) Government Class I/ Superintendent, Borstal Institute
Medical State Supdt. of (i), (ii) and I.G. of Officers, Government Central Jail (iii) Prisons Central Jail I.G. of Do State Prisons Government
State Govt. All Governor
Class III (Non-Ministerial)
Dy. Supdt. of State Supdt. of (i), (ii) and I.G. of Factories Government Jail (iii) Prisons
I.G. of Do State Prisons Government State All Governor Government
Teachers/ I.G. of Supdt. of (i), (ii) and I.G. of Physical Prisons Jail (iii) Prisons Instructors/Lady Asstt. Teachers/ Tailor I.G. of All State Instructors/ Tent Master/ Asstt. Prisons Government Tent Master/ Senior Carpe- ntry Instructor/ Carpentry Instructor/ Weaving Maste- rs/Blacksmith Instructors/ Foremen Press/ Supervisors Art Leather Instr- uctor/ Paper Pulp Toys/Paper Machine Inst- ructor/Music -Teachers/Ba- kers/Male Nur- ses/Brass Instructors/ Supervisors/ Leather Insulator, Grassmat Instructors/Lea- ther/Grass- Mat/Demi- skilled Work Fisher. Compounder Medical Medical All I.G. Officer Officer prisons Supdt. of Jail All Do
Chief Head Supdt. of Supdt. of Jail All I.G. of Warder/Head Circle Jail Prisons Warder/Lady Attendants/ Wardress Asstt. Medical Director of Supdt. of Jail (i), (ii) and I.G. of Officers Health (iii) Prisons Services I.G. of Do State Prisons Government Director of All Do Health Services
Senior Jailors/ I.G. of Supdt. of Jail (i), (ii) I.G. of Chief Instruct- Prisons (iii) Prisons ors/Jailors/ I.G. of All State Dy. Jailor/ Prisons Government Instructors/ Probation Offic- ers/Welfare Officers/ Asstt. Supdt./ Supdt. B.I. Narsimhapur/ Asstt. Jailors/ Matrons
Class III (Ministerial) All
Accountants/ I.G. of Supdt. of Jail (i), (ii) I.G. of Lower Division Prisons and (iii) Prisons Clerks I.G. of All State Prisons Government
Class IV Peon/Cartmen/ Supdt. of Supdt. of Jail All I.G. of Sweeper Jail --------------------------------------------------------------------------------
Appointments to other service and posts:
All appointments to the State Civil Services Class III and Class IV, shall be made by the authorities specified in this behalf in the Schedule.
Appellate Authorities.- (1) A Government servant including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in Rule 23 to the authority specified in this behalf either in Schedule or by a general or special order of the Governor or, where no such authority is specified:
(i) Where such Government servant is or was a member of a State Civil Service Class I or Class II or holder of a State Civil Post, Class I or Class II:
(a) to the Appointing Authority, where the order appealed against is made by an authority subordinate to it; or
(b) to the Governor, where such order is made; by any other authority,
where such Government servant is or was a member of a State Civil Service Class III or Class IV or holder of a State Civil Post, Class III or Class IV, to the authority to which the authority making the order appealed against is immediately subordinate.
(2) Notwithstanding anything contained in Sub-rule (1),-
(i) an appeal against an order in a common proceeding held under Rule 18 shall lie to the authority to which the authority functioning as the Disciplinary Authority for the purpose of that proceeding is immediately subordinate;
(ii) where the person who made the order appealed against becomes by virtue of his subsequent appointment or otherwise, the Appellate Authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate.
In a latest decision in the case of Government of A.P. and Another Vs. N. Ramanaiah, , Hon''ble the Apex Court has observed in Paras 23 and 24 as under:
The Constitution being the transcendental law, the rule-making authority by making Rule 14 (2) took care to see that constitutional guarantee enshrined in Article 311(1) of the Constitution which was available to the Government servant was protected. That the construction placed by us on the expression "subordinate" is in consonance with the meaning and import of the word "subordinate" occurring in Article 311(1) of the Constitution is apparent from many a decisions of this Court. We shall refer to some of them. In our considered opinion there is nothing in the Constitution which debars the Government from exercising the powers of Appointing Authority to dismiss a Government servant from service. These Rules cannot be read as implying that dismissal must be by the very authority who made the appointment or by his immediate superior.
In Sampuran Singh Vs. State of Punjab, this Court observed that (SCC p. 203, Para 11)
...In view of Article 311(1) of the Constitution the removing authority cannot be subordinate in rank to the Appointing Authority. By necessary implication the removing authority may be higher in rank to the Appointing Authority.'''' (Emphasis supplied) There is a compliance with Clause (1) of Article 311 if the Dismissing Authority is not lower in rank or grade than the Appointing Authority. (See : The state of U.P. and Others Vs. Ram Naresh Lal, and Jai Jai Ram and others Vs. U.P. State Road Transport Corporation, Lucknow, and others, .
In view of above, it is well settled that no provisions/rules can over rule the provisions of the Constitution. The Constitution is supreme and the laws made are subject to the provisions of the Constitution and cannot be read, by passing the provisions of Article 311 of the Constitution of India. In the Constitution, it is clear that the Subordinate Authority by whom the person was appointed, cannot remove or dismiss the person from service. Therefore, the power which is to be exercised, imposing penalty of dismissal or removal, can be exercised by the authority by whom the person was appointed or by a Higher Authority, if the powers are delegated to him by the Governor in case of State Government servant.
In view of the facts and circumstances, as the respondent No. 1 was dismissed by the authority subordinate to that by which he was appointed, we are of the considered opinion that the dismissal of the deceased respondent was illegal and as such the order passed by the Civil Court as well as by the State Administrative Tribunal are proper, which are affirmed.
At this stage, the learned Deputy Government Advocate has submitted that the Court may reduce payment of arrears of salary by 50% to the deceased respondent but we are unable to accept the submissions as the deceased respondent was a regular Government servant. He remained present to do his duties but due to the wrong order passed by the officer of the petitioner/State, he was prevented from doing his duties. Therefore, there is no question of reducing the arrears of salary by this Court.
In view of above the writ petition filed by the petitioner/State is dismissed. However, there shall be no order as to costs.