Chattisgarh High Court
G S Dewangan vs State Of Chhattisgarh & Others on 15 February, 2012
Author: Satish K. Agnihotri
Bench: Satish K. Agnihotri
HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT APPEAL No 80 of 2012
G S Dewangan
...Petitioners
VERSUS
State of Chhattisgarh & Others
...Respondents
! Shri T K Tiwari Advocate for the appellant
^ Shri M P S Bhatia Deputy Government Advocate for the State
CORAM: Honble Shri Satish K Agnihotri & Honble Shri Radhe Shyam Sharma JJ
Dated: 15/02/2012
: Judgement
J U D G M E N T
(Delivered on 15th day of February, 2012)
APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT
(APPEAL TO DIVISION BENCH) ACT, 2006
Per SATISH K. AGNIHOTRI, J
1. The instant intra court appeal arises from the order dated 30.12.2012 passed by the learned Single Bench in W.P.(S) No. 102/2012 (G.S.Dewangan v. State of Chhattisgarh & Others) whereunder, the writ petition filed by the appellant was dismissed.
2. The facts, in brief, as projected by the appellant are that the appellant, working as Executive Engineer in the Department of Panchayat and Rural Development, was caught red handed accepting illegal gratification of Rs. 10,000/- by the Anti Corruption Bureau, Raipur. Thereafter, he was arrested and placed under detention. Accordingly, the petitioner was placed under suspension vide order dated 09.09.2010 under the provisions of Rule 9(2) of the C.G. Civil Services (Classification Control & Appeal) Rules, 1966 (for short `the Rules, 1966'). The said suspension was revoked on 25.10.2011 on the ground that conclusion of the trial of the case may take some time. The Additional Director General of Police, Anti- Corruption Bureau, Raipur, recommended to the Principal Secretary, Government of Chhattisgarh, Panchayat & Rural Development Department, Raipur, vide communication dated 08.11.2011, to place the appellant under suspension on the ground that Challan has been filed before the Court of Special & Ist Additional Sessions Judge, Raipur in Special Case No. 09/2011. On the basis of the said recommendation, the appellant was again placed under suspension on 02.12.2011 for the second time. The order dated 02.12.2011 was challenged before the learned Single Judge in a petition being W.P.(S) No. 102/2012. The State/respondents contested the matter on the ground of availability of alternative remedy against the order passed by the competent authority.
3. Shri Tiwari, learned counsel appearing for the appellant would submit that the order passed by the learned Single Judge is contrary to the facts. As per Article 166(2) of the Constitution of India, the order was passed in the name of Governor and as such, it was an order executed by the Governor himself, thus, under Rule 23 of the Rules, 1966, no appeal would lie to the Governor in view of bar as prescribed under Rule 22 of the Rules, 1966. Shri Tiwari would further submit that the writ petition was dismissed without issuing notice to the respondent authorities only on the ground that alternative remedy was available to the appellant. In support of his contention, Shri Tiwari would rely on a decision of the Madhya Pradesh Administrative Tribunal, Jabalpur, in Aziz Qureshi v. State of Madhya Pradesh & another1. The appellant has not questioned the validity of the impugned suspension order dated 02.12.2011 on any other ground, except the ground of availability of alternative remedy.
4. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State/respondents would submit that the order passed by the learned Single Judge is just and proper warranting no interference. Thus, this appeal may be dismissed.
5. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
6. Contention of learned counsel appearing for the appellant before the learned Single Judge was that since the order was passed in the name of the Governor, thus, no appeal against the said order was maintainable under the provisions of Rule 22 of the Rules, 1966. The learned Single Judge, relying on a judgment in the matter of Common Cause, A registered Society v. Union of India & Others2, dismissed the petition holding that the impugned order of suspension was appeallable under the provisions of Rule 23 of the Rules, 1966.
7. Rule 9 of the Rules, 1966 reads as under:
"SUSPENSIONS
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) 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:
Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against him:
Provided further that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction."
8. Under Rule 9(2) of the Rules, 1966, a Government servant shall be deemed to have been placed under suspension with effect from the date of his detention, if he is detained in custody, whether in a criminal charge, for a period exceeding forty-eight hours.
9. The main contention of learned counsel appearing for the appellant, it appears, is that the alternative statutory remedy of appeal as provided under Rule 23 of the Rules, 1966 is not available to the appellant as the impugned order was passed in the name of the Governor. Thus, the same may be deemed to have been passed by the Governor himself. Under Rule 22 of the Rules, 1966, no appeal lies against the order passed by the Governor.
10. The Supreme Court, in State of M.P. & Others v. Dr. Yashwant Trimbak3, while considering provisions of Rule 9(2)(b)(i) of the M.P. Civil Services Pension Rules, 1976, wherein, it is provided that the departmental proceedings, if not instituted while the government servant was in service whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Governor. The Supreme Court observed as under:
"14. The Rule in question no doubt provides that departmental proceedings if not instituted while the government servant was in service whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the Governor. The question that arises for consideration is whether it requires the sanction of the Governor himself or the Council of Ministers in whose favour the Governor under the Rules of Business has allocated the matter, can also sanction. It is undisputed that under Article 166(3) of the Constitution the Governor has made rule for convenient transaction of the business of the Government and the question of sanction to prosecute in the case in hand was dealt with by the Council of Ministers in accordance with the Rules of Business. Under Article 154 of the Constitution, the executive power of the State vests in the Governor and is exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The expression "executive power" is wide enough to connote the residue of the governmental function that remains after the legislative and judicial functions are taken away.
17. The order of sanction for prosecution of a retired government servant is undoubtedly an executive action of the Government. A Governor in exercise of his powers under Article 166(3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the State" in Article 166(3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. The Court has held in Godavari Shamrao Parulekar v. State of Maharashtra that even the functions and duties which are vested in a State Government by a statute may be allocated to Ministers by the Rules of Business framed under Article 166(3) of the Constitution. In State of Bihar v. Rani Sonabati Kumari, where power of issuing notification under Section 3(1) of the Bihar Land Reforms Act, 1950 have been conferred on the Governor of Bihar, this Court held:
"Section 3(1) of the Act confers the power of issuing notifications under it, not on any officer but on the State Government as such though the exercise of that power would be governed by the rules of business framed by the Governor under Article 166(3) of the Constitution."
Finally, it was held that excepting the matters with respect to which the Governor is required by or under the Constitution to act in his discretion, the personal satisfaction of the Governor is not required and any function may be allocated to the ministers. In the said decision, contention of the learned counsel for the respondent therein that in the Rule itself both the expressions "Governor" and "Government" have been used and therefore the expression "sanction of the Governor" in Rule 9(2)(b)(i) would mean the personal sanction of the Governor, did not find favour with the Hon'ble Judges in the matter.
11. Rule 23(iii) of the Rules, 1966 provides that subject to the provisions of Rule 22 of the Rules, 1966, a Government servant may prefer an appeal against an order of suspension made or deemed to have been made under Rule 9 of the Rules, 1966. Indisputably, the order of suspension was passed under Rule 9(2) of the Rules, 1966 which is an appellable as the order was not passed by the Governor himself, but in the name of the Governor which is the requirement of Article 166(2) of the Constitution of India, wherein the allocation of work has been done and business of the Government has been allocated to various departments in respect of the employees of the same department. Thus, the order passed in the name of the Governor was an executive order and not the order passed by the Governor himself. Thus, bar under Rule 22 of the Rules, 1966 is not applicable in the case.
12. A Seven Judges Bench of the Supreme Court, in Samsher Singh v. State of Punjab & Another4, held as under:
"30. In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business, in accordance with Articles 77(3) and 166(3) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(3) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The Rules of Business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the Rules of Business made under these two articles viz. Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.
57. For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.
88. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor."
13. Further, a three Judges Bench of the Supreme Court in Union of India & Others v. Sripati Ranjan Biswas & Another5, held as under:
"8. The question which is raised in this appeal relates to the domain of appointment or dismissal of a government servant. Such a question falls within the ambit of a purely executive function of the President in the case of the Union Government and of the Governor in the case of a State. In the present case, such a function being ultimately an executive function of the President, the fact that the final order is preceded or accompanied by a quasi- judicial enquiry held by the Minister does not affect the character of the exercise of that function by the President. There is, therefore, nothing in principle which can be distinguished in this appeal from the ratio of the decision in Samsher Singh's case (supra)."
14. Reliance of the appellant on Aziz Qureshi1, also reiterates the ratio laid down by the Supreme Court in the cases cited hereinabove as has been observed by the Tribunal in the following terms:
"9.It will suffice to say that appeal to the Governor against, the order of the State Government under M.P.C.S. (CCA) Rules, 1966, is an effective remedy and the Governor acts on the aid and advice of the Council of Ministers under the Constitution."
15. Applying the well settled principles of law to the facts of the case, it is evident that the order of suspension passed under Rule 9(2) of the Rules, 1966 is an executive order of the State against which, an appeal is maintainable and the same is effective remedy.
16. In view of the above and for the reasons stated hereinabove, we are of the considered opinion that there is no infirmity or illegality in the order passed by the learned Single Judge.
17. Resultantly, the appeal is dismissed.
JUDGE