Madhya Pradesh High Court
Janved Singh Yadav vs The State Of Madhya Pradesh Thr on 19 August, 2015
WP.2049/2015 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 2049/2015
Janved Singh Yadav
Vs.
State of M.P. & Ors.
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Shri Vivek Jain, Advocate for the petitioner.
Shri Vishal Mishra, Dy. Advocate General for the
respondents / State.
Shri S.S. Rawat, Advocate for the respondent No.3.
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ORDER
( 19 / 08 / 2015 ) This petition filed under Article 226 of the Constitution takes exception to the order dated 17.03.2015 whereby the petitioner, a Assistant Development Extension Officer, working in Janpad Panchayat Guna is placed under Suspension by Collector.
2. Shri Vivek Jain, Advocate for the petitioner, assailed this order on singular ground. He submits that Collector has no authority, jurisdiction and competence to place the petitioner under suspension. It is contended that the appointing authority of petitioner as per Madhya Pradesh Rural Development Department Class III (Ministerial and Non-Ministerial) Service Recruitment Rules, 1992, is Development Commissioner , M.P. Collector is not one of those authorities who are empowered to place him under suspension. Initially, he contended that petitioner is not an employee of State Government but in fact is an employee of Janpad Panchayat. During the course of argument, he had given up the said argument and fairly admitted that cadre strength of the post of Assistant Development Extension Officer is 4590. Since it is a State cadre post, it is clear that petitioner is a State Government employee and not an employee of Japad WP.2049/2015 2 Panchayat. Reliance is placed on notification No. C-6-7- 96-3-I dt. 23.05.1997 published in Gazette on 10.01.1997 to submit that it is a special notification empowering the Chief Executive Officer of concerned Zila Panchayat to suspend or to impose minor penalty on the petitioner. The petitioner's services have been placed under the control of Panchayat. He submits that earlier notification dated 23rd May, 1996 was a general notification. Thus, general notification cannot be made applicable when a special notification came into being on 10.01.1997. Reliance is placed on (2004) 9 SCC 512 ( Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I and Another), (2012) 3 SCC 64 ( Subramanian Swamy Vs. Manmohan Singh and Anr.) & AIR 1952 SC 369 ( Aswini Kumar Khose and Anr. Vs. Arbinda Bose and Anr.).
3. Prayer is opposed by Shri Vishal Mishra, Dy.A.G. for State and Shri S.S. Rawat, Advocate for the respondent No.3. They submitted that the Collector is empowered to inflict minor punishment on class-III and class-IV employees. Hence, he is a competent authority under Rule 9 of MPCS (CCA) Rules, 1966 to place the petitioner under suspension. Impugned order is appealable and petitioner may be directed to prefer an appeal.
4. No other point is pressed by learned counsel for the parties.
5. I have heard learned counsel for the parties and perused the record.
6. As per Rule 9 of Madhya Pradesh Civil Services (Classification, Control and Appeal Rules), 1966 Rules following officers can place a Government employee under suspension :- (I) appointing authority (ii) any authority to which appointing authority is subordinate ( iii) disciplinary authority (iv) or any other authority empowered in that behalf by the Governor by general or special order. Undoubtedly, by notification dated 23 rd WP.2049/2015 3 May, 1996 the Collector was empowered to exercise power Rule 9 to suspend class-III and class-IV employee. This notification reads as under :-
"(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 employees of all the department (except Police workers), posted in their District, with effect from 23rd May, 1996.
7. Another notification which is heavily relied upon by Shri Vivek Jain, reads as under :-
"(2) Notification No. C-6-9(A)-99-3-Ek, dated 21.02.2000, Pub. In M.P. Rajpatra, Pt. I, dated 03.03.2000, p. 476-without prejudice to the generality of the powers conferred under the Madhya Pradesh Civil Services (Classification, Controal and Appea) Rules, 1996 and in exercise of the powers conferred by sub-rule (1) of Rule 9, sub-
rule (2) of Rule 12 and Rule 24 of the said rules, the Governor of Madhya Pradesh, hereby empowers the Chief Executive Officer of the concerned Zila Panchayat to suspend or impose minor penalties as are specified in clause (i) to clause (iv) of Rule 10 of the said rules, in respect of such class III and class IV Government servants of the department of the Scheduled Caste or Scheduled Tribe Welfare, Agriculture, Panchayat and Rural Development, Veterinary, Fisheries, Women and Child Development, Public Health and Family Welfare, Medical Education, School Education, Social Welfare and Rural Industries whose services have been placed by the State Government under the control of Panchayats under the provisions of clause (xii) of sub-section (1) of section 52 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 ( No. 1 of 1994) and such Government servant may prefer prefer an appeal against the order of the Chief Executive Officer to the head of the concerned department."
8. Shri Jain contended that second notification dated 10.01.1997 being special one will prevail and therefore, WP.2049/2015 4 Collector cannot exercise his power under earlier notification which is general in nature. I do not see any merit in this contention. Notification dated 10.01.1997 begins with the words " without prejudice to the generality of the powers conferred under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966" First notification of 23rd May, 1996 is passed under the said powers flowing from Rule 9 of the said Rules. The said opening words of notification dated 10.01.1997 make it clear that second notification is enacted " without prejudice" to another provision which was already existing. The Apex Court in 1994 (2) SCC 647 (A.P. State Financial Corporation Vs. M/s Gar Re-Rolling Mills and Anr.) opined as under:-
"The Intention of the Legislature in using the expression "without prejudice" to the provisions of Section 29 of the Act" clearly appears to be that recourse to the provisions of Section 29 of the Act is not prohibited, where an order or decree under Section 31 obtained by the Corporation has not been complied with or honoured by the defaulting concern or is otherwise insufficient to satisfy the dues of the Corporation and the Corporation withdraws and abandons to pursue further proceeding under Section 31"
(Emphasis supplied)
9. In view of aforesaid judgment, it is clear that when the expression " without prejudice to the provision ..." is used, it is clear that recourse of earlier provision is not prohibited. Thus, argument that earlier provision was general and later one is special, has no application in the present matter. In view of language employed in the second notification dated 10.01.1997, it is clear that Collector is not barred in exercising the power of suspension pursuant to earlier notification dated 23 rd May, 1996. Thus, I am unable to hold that Collector is not competent authority to place the petitioner under suspension.
WP.2049/2015 510. The judgments cited by Shri Jain have no application in the facts and circumstances of this case. Order of suspension is otherwise appealable. This petition is therefore not entertained. It is open to the petitioner to prefer an appeal in accordance with law. Time consumed before this Court shall not be counted for the purpose of counting limitation by the competent appellate authority.
11. With the aforesaid observations, petition is dismissed. No costs.
(Sujoy Paul)
sarathe Judge