Madhya Pradesh High Court
Sanjeev Kumar Dubey vs Commercial Taxes Department on 12 September, 2017
WP-5906-2017
(SANJEEV KUMAR DUBEY Vs COMMERCIAL TAXES DEPARTMENT)
12-09-2017
Shri Piyush Mathur, learned Sr. Counsel along with Shri Mukesh
Sharma, counsel for the petitioner.
Shri Manoj Dwivedi, learned Additional AG along with Shri Umesh
Gajankush, Dy AG for the respondent / State.
Heard on the question of admission & interim relief. The petitioner has filed present writ petition being aggrieved by the order dated 06/09/2017, by which, he has been placed under suspension. The petitioner is working as Assistant Commissioner, Excise Department, Indore.
2 According to him, in the month of August' 2017 he found that certain liquor contractors of Indore have committed forgery while submitting treasury challan in his office. Vide note-sheet dated 08/08/2017, he has brought this fact to the knowledge of the Collector, Indore. The Collector, Indore vide order letter dated 08/08/2017 has requested D.I.G, Indore to register FIR against 11 liquor contractors and two others namely Raju Dashwant & Ansh Trivedi. In pursuant to the aforesaid letter, an FIR under sections 420, 467, 468, 471, 406 and 34 of IPC has been registered in police station â Rawaji Bazar, Indore on 11/08/2017 against all those persons named in the letter of the Collector. Thereafter, the petitioner has brought the entire incident to the knowledge of Secretary, Commercial Tax Department. Thereafter, vide order dated 06/09/2017, the petitioner has been placed under suspension alongwith five others, hence the present writ petition before this Court.
3 The writ petition came up for admission on 08/09/2017. The State Government took time to file certain documents / inquiry report. The State Government filed return by submitting that the petitioner is having alternate remedy of appeal against the order of suspension, therefore, the petition is not tenable. Before placing the petitioner under suspension, preliminary enquiry in respect of the revenue losses and forgery in treasury challan was conducted by five members committee headed by the Joint Director, Finance. The committee inquired the conduct of each and every officers posted in the Excise Department at Indore and after scrutiny of the entire documents submitted its report against the petitioner. On the basis of the said inquiry report, the State Government decided to suspend the petitioner in contemplating of the departmental enquiry. That the suspension order was issued by the Competent Authority. Prima facie, the petitioner failed to follow the provisions of Rule 52(5) of the M.P. Treasury Code and he has failed to discharge the power of District Excise Officer. The entire forgery was done during his tenure, therefore, no interference is called in the writ petition.
4 Shri Piyush Mathur, counsel for the petitioner submits that the petitioner is having unblemished and excellent service report, twice, his name was recommended for IAS Award. In fact, the petitioner has discovered the forgery and brought to the knowledge of the Collector, Indore and in turn, the Collector has requested D.I.G to register FIR against liquor contractors, therefore, the petitioner cannot be held responsible for forgery done in the treasury challan by the liquor contractors. The impugned order is passed in the name of Governor, therefore, under Rule 22 of the M.P. Civil Services ( Classification, Control and Appeal ) Rules, 1966 he is not having any remedy of appeal. Out of the loss of Rs. 41,73,73,670/-, due to efforts made by the petitioner, the amount of Rs. 21,90,67,080/- has been recovered from the liquor contractors and for recovery of the balance amount, RRC have been issued to them, therefore, there is no loss to the government. The Suspension order would be blur on his career. Hence the interference is called in this petition. 5 In support of his contention, he has placed reliance over the judgments delivered in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd and another reported in (1999) 3 SCC 679; Arvind Dattatraya Dhande Vs. State of Maharashtra and others reported in (1997) 6 SCC 169 and G.S. Dewangan Vs. State of Chhattisgarh and others passed in W.A no. 80/2012 decided on 15/02/2012. 6 Per contra, Shri Manoj Dwivedi, AAG for the respondent / State submits that prima facie, enough material was available before the placing the petitioner under suspension. Under 52(2) of the M.P. Treasury Code, it was his duty to attest the treasury challan after verification of the payment to Govt Treasury Office. The allegations are serious in nature. In support of his contention, he has placed reliance over the judgment delivered in the case of Dr. Brajesh Singh Vs. State of M.P. and others reported in 2015(4) MPLJ 195 and State of M.P and others Vs. Ashok Sharma (Dr. ) reported in 2011(2) MPLJ 206.
7 That the petitioner has been placed under suspension under Rule 9 of Rules, 1966. Rule 9 is reproduced below :
"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 That Rule 23 of Rules, 1966 provide the remedy of appeal before the Appellate Authority. The provision of Rule 22 would not be not applicable in the case, as suspension order is not passed by the Governor. In the present case, the order of suspension is passed only in the name of Governor but issued by the Additional Secretary. 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 as the case may be.
9 Similar issue came up for consideration before the Division Bench of High Court of Chattisgarh in the case of G.S. Dewangan ( W.A. no. 80/2012 decided on 15/02/2012 )( supra ), wherein it has been held that the order passed in the name of Governor is an executing order and not the order passed by the Governor himself, therefore, employee / officer is having remedy of appeal and the power under Rule 22 of Rule 1966 would not apply. Relevant Para nos. 9 to 14 are reproduced below :
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."
10 In view of the above, the petitioner is having alternate efficacious remedy of appeal against the order of suspension, therefore, present petition is dismissed for want of alternate and efficacious remedy.
C c as per rules.
(VIVEK RUSIA) JUDGE