Madhya Pradesh High Court
A.P. Singh Gaharwar vs The State Of Madhya Pradesh on 7 May, 2012
Author: R.S. Jha
Bench: R.S. Jha
1 W.A No.372/2012
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT APPEAL NO.372/2012
APPELLANT : A. P. SINGH GAHARWAR
Vs.
RESPONDENTS : STATE OF MADHYA PRADESH
AND OTHERS.
Present : Hon'ble Shri Ajit Singh &
Hon'ble Shri R.S. Jha, JJ.
For the appellant : Shri Manoj Sharma, Advocate.
For the respondent/State : Shri Naman Nagrath, Addl. A.G
--------------------------------------------------------------------------------
ORDER
(07/05/2012) The following Order of the Court was delivered by Shri R. S. Jha, J:
The appellant has filed this writ appeal under the provisions of Section 2(1) of the M.P Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order dated 23.01.2012 passed by the learned Single Judge in W.P No.20970/2011 whereby the petition, filed by the petitioner/appellant against the orders dated 28.10.2010 and 8.11.2011 suspending the appellant, has been dismissed as well as against the order dated 27.2.2012 passed in Review Petition No.112/2012 affirming the same.
2. The brief facts leading to the filing of the present 2 W.A No.372/2012 appeal are that certain complaints were filed against the appellant while he was posted as Chief Municipal Officer, Municipal Corporation, Ratlam, pursuant to which investigation was conducted by the Economic Offences Bureau and Crime No.1/2002 was registered by them. Subsequently, a charge sheet was filed against the appellant on 4.2.2010 after obtaining sanction on 31.10.2006 before the First Additional Sessions and Special Judge, pursuant to which he has been suspended by order dated 28.10.2010 which order has also been affirmed in appeal by the appellate authority by order dated 8.11.2011.
The appellant being aggrieved by the order of suspension filed W.P No.20970/2011 which has been dismissed by order dated 23.1.2012. The appellant thereafter filed an application for review which has also been dismissed by order dated 27.2.2012, being aggrieved by which he has filed the present appeal.
3. It is submitted by the learned counsel for the appellant that the impugned order of suspension dated 28.10.2010 was passed by the authority concerned on the behest of and in view of the directions issued by the Economic Offences Bureau and is, therefore, unsustainable and illegal in view of the decision of this 3 W.A No.372/2012 Court in the case of Suresh Kumar Purohit vs. State of M.P. and another, 2005 (4) MPLJ 524, wherein it has been held that an order of suspension issued on the behest of the Lokayukt without application of mind by the authority is illegal. It is further submitted that in fact the allegation and charges on the basis of which the appellant has been placed under suspension are also unsustainable as the appellant was not responsible for any financial misappropriation or loss to the State.
4. We have heard the learned counsel for the parties at length. From a perusal of the record it is clear that the allegations against the appellant are in respect of irregularities and misappropriation of an amount of Rs.32,30,000/- and consequently, a case under section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and Sections 420, 409, 467 and 120-B IPC, has been instituted against him by filing a challan before the competent Criminal Court after obtaining sanction from the authorities. From the record it is further clear that inspite of a charge sheet being filed against him on 4.2.2010 he was not placed under suspension by the authorities and that the information regarding filing of the charge sheet and pendency of the criminal proceedings against the appellant was placed before the authorities of 4 W.A No.372/2012 the State by the Economic Offences Bureau by communications dated 17.9.2010 and 12.10.2010 and thereafter the authorities of the State have placed the appellant under suspension by order dated 28.10.2010 by clearly stating that he is being placed under suspension on account of the fact that a charge sheet has been filed against him before the competent criminal court on 4.2.2010. It is further clear that the appellant had raised all these issues that he has raised before this Court before the Appellate Authority who has examined the aforesaid aspect and has dismissed the appeal filed by the appellant by recording a finding to the effect that the appellant has not been placed under suspension on the dictates of the Economic Offences Bureau but has been placed under suspension in view of the filing of a charge sheet against him before the competent court as required by the first proviso to Rule 9(1) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the circular to that effect issued by the State Government dated 15.10.2005.
5. To properly appreciate the contention of the learned counsel for the appellant, it would be appropriate to examine the relevant provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 5 W.A No.372/2012 (hereinafter referred to as the "Rules of 1966'). Rule 9(1) of the Rules of 1966 which makes provision for placing a Government Servant under suspension is in the following terms:-
"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
inventilation, inquiry of 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 after sanction of prosecution by the Government 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." Rule 9(5)(d) of the Rules of 1966 which is relevant for the purposes of suspension made under the first 6 W.A No.372/2012 proviso to Rule 9(1) of the Rules of 1966 is to the following effect:-
"9(5)(d). An order of suspension made or deemed to have been made under this Rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
[Provided that an order of suspension made under the first proviso to sub-rule 1 of Rule 9 shall not be revoked except by an order of the Government made for reasons to be recorded.]"
6. A bare reading of the aforesaid provisions of the Rules makes it clear that while Rule 9(1) of the Rules of 1966 provides that a Government Servant against whom a disciplinary proceedings is contemplated or is pending or against whom any criminal offence is under investigation, enquiry or trial "may" be placed under suspension, the first proviso to Rule 9(1) of the Rules of 1966 provides that a Government Servant "shall invariably" be placed under suspension where a challan for a criminal offence involving corruption or moral turpitude is filed against him after obtaining sanction for prosecution from the Government. To put it differently, while Rule 9(1) of the Rules of 1966 provides that the 7 W.A No.372/2012 competent authority "may" place a Government Servant under suspension in cases falling under clauses (a) and
(b) of Rule 9(1) of the Rules of 1966, the first proviso appended thereto mandates that in case a challan for a criminal offence involving corruption or moral turpitude is filed against the Government Servant after sanction for prosecution by the Government, he "shall invariably" be placed under suspension.
7. The use of the word "may" in the first part of Rule 9(1) of the Rules of 1966 in relation to clause (a) and (b) and the use of the words "shall invariably" in the first proviso is a clear and sure indication of the fact that while the requirement for placing a Government Servant under suspension under Rule 9(1) (a) and (b) of the Rules of 1966 is directory, the requirement of placing a Government Servant whose case falls under the first proviso to Rule 9(1) of the Rules of 1966 is mandatory. In view of the clear words used in the Rule no other interpretation is either possible or permissible.
8. We are fortified in the view taken by us in view of the decision of the Supreme Court rendered in the case of Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178, wherein the use of the word "may" in 8 W.A No.372/2012 the first part of Section 540 of the Code of Criminal Procedure, 1898 was held to be discretionary while the use of the word "shall" in the latter part of the Section was held to be mandatory in the following terms:-
"10. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. ..."
Similar view has been taken by the Supreme Court in the case of T. R. Sharma vs. Prithvi Singh and Others, (1976) 1 SCC 226, while interpreting Rule 3 of the Punjab Civil Services Rules in para-6, in the following terms:-
"6. ....... A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a government 9 W.A No.372/2012 servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word "shall" in clause (a) as against the use of the word "may" in clause (b) of that rule.........."
The Supreme Court has taken a same view while interpreting Section 45 of the Banking Regulation Act, 1949, in the cases of The Chairman, Canara Bank, Bangalore vs. M. S. Jasra and others, AIR 1992 SC 1100 and AIR 1992 SC 1341.
9. In the case of Mahaluxmi Rice Mills and others vs. State of U.P. and others, (1998) 6 SCC 590, the Supreme Court while considering the provisions of Section 17(iii)(b)(3) of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964, wherein the word "may" has been used in the first part and "shall" in the latter, has again held that in such cases the use of the word "shall" indicates the mandatory nature of the provision in the following terms:-
"9. It is significant to note that the word used for the seller to realise market fee from his purchaser is "may" while the word used for the seller to pay the market fee to the Committee is "shall". Employment of the said 10 W.A No.372/2012 two monosyllables of great jurisprudential import in the same clause dealing with two rights regarding the same burden must have two different imports. The legislative intendment can easily be discerned from the frame of the sub-clause that what is conferred on the seller is only an option to collect market fee from his purchaser, but the seller has no such option and it is imperative for him to remit the fee to the Committee. In other words, the Market Committee is entitled to collect market fee from the seller irrespective of whether the seller has realised it from the purchaser or not."
Similar view has also been taken by the Supreme Court in the cases of Godrej Pacific Tech. Limited vs. Computer Joint India Limited, (2008) 11 SCC 108 and Rama Paswan vs. State of Jharkhand, (2007) 11 SCC
191.
10. The aforesaid law laid down by the Supreme Court compells us to only one conclusion that a Government Servant whose case falls under the first proviso to Rule 9(1) of the Rules of 1966, is mandatorily required to be placed under suspension in view of the use of the word "shall" in the said proviso. In fact it is pertinent to note that the said proviso uses the word "shall" in conjunction with the word "invariably" which has been defined in the 11 W.A No.372/2012 Oxford Advanced Learner's Dictionary to mean always the same; without fail, as under:-
Invariable (Verb/Adj) - always the same; never changing; (Syn.) unchanging. Invariably (Verb/Adj.) - always; (Syn.) without fail.
Similarly in The Random House Dictionary of the English Language, 1970 Edition, the word "invariable"
has been defined as:-
Invariable (Adj) - not variable or capable of being varied; unchangeable; static or constant;
Invariable (Noun) - that which is
invariable; constant. (Syn.) unalterable;
unchanging; changeless; invariant; unvarying; immutable; uniform.
and, therefore, the word "shall invariably" used in the first proviso to Rule 9(1) of the Rules of 1966 means that the Government Servant whose case falls within the preview of the first proviso to Rule 9(1) of the Rules of 1966, shall without any variation, always, without fail, be placed under suspension.
11. In fact the mandatory requirement of placing a Government servant under suspension whose case falls under the first proviso to Rule 9(1) of the Rules of 1966, in view of the use of the word "shall invariably" becomes 12 W.A No.372/2012 further clear when the Hindi Version of the first proviso is taken into consideration, which is in the following terms:-
"4. [ijUrq 'kkldh; lsod dks lSno fuyafcr fd;k tk,xk tcfd Hkz"Vkpkj ;k vU; uSfrd iru esa vUroZfyr nkf.Md vijk/k esa [ljdkj }kjk vfHk;kstu Lohd`fr ds i'pkr] mlds fo:) pkyku izLrqr fd;k x;k gks]"
12. We may, at this stage, also fruitfully consider the legislative history of the aforesaid provisions of Rule 9(1) of the Rules of 1966. In the Rules that were initially notified, the first proviso to Rule 9(1) of the Rules of 1966, was not in existence and, therefore, the State Government by circular dated 15.10.1985 of the General Administration Department had issued instructions that in cases where a challan is filed against the concerned Government Servant in cases involving corruption by the Lokayukt organization or the Economic Offences Bureau, the concerned Government Servant should, without exception, be immediately placed under suspension. The extract of the aforesaid notification is reproduced at page 43 of the book titled Suspension and Revocation, 2009 Edition, published by Suvidha Law House, in the following terms:-
"(7) yksdk;qDr@jkT; vkfFkZd vijk/k vUos".k C;wjks ds vfHk;kstu ds izdj.kksa esa 'kkldh;@v)Z&'kkldh;
deZpkfj;ksa dk fuyEcu & bl foHkkx ds Kkiu dzekad bZ- 1 13 W.A No.372/2012 (2)/1974/5/1, fnukad 431976 dh vuqo`fRr esa jkT; 'kklu }kjk ;g fu.kZ; fy;k x;k gS fd Hkz"V vkpj.k ds laca/k esa e/;izns'k yksdk;qDr laxBu vFkok jkT; vkfFkZd vijk/k vUos".k C;wjks] e/;izns'k }kjk 'kkldh;@v)Z 'kkldh; deZpkfj;ksa ds fo:) vfHk;kstu ds fy;s U;k;ky; esa pkyku izLrqr fd;s tkus ij lacaf/kr 'kkldh;@v)Z 'kkldh; deZPkkfj;ksa dks fcuk fdlh viokn ds rRdky izHkko ls fuyafcr fd;k tk;sA
-----lkekU; iz'kklu foHkkx dzekad ,Q 12 (2)85@izldks@,d] fnukad 151085."
13. However, inspite of the aforesaid circular of the Government, as several matters were taken up before the Court of Law in which it was held that orders of suspension on the dictates of the Executive Instructions were contrary to law as the authority was precluded and prevented from applying its independent mind to each case, therefore, the State Government by notification dated 27.5.1996 amended the provision of Rule 9 of the Rules of 1966, by inserting the first proviso to Rule 9(1) and the proviso to Rule 9(5)(d) of the Rules of 1966, saggregating and separately classifying cases of those Government Servants against whom challan before the competent criminal court had been filed in cases involving corruption or moral turpitude clearly mandating that the cases of such Government Servant, shall without 14 W.A No.372/2012 variation, always and without fail, be placed under suspension.
14. The aforesaid object and reasons for incorporating the amendment in the Rules was clearly specified and stated by the State Government in its circular dated 27.5.1996 withdrawing its previous circular dated 15.10.1985 as it was no longer required. The aforesaid circular of the State Government dated 27.5.1996 is published at page nos.43 & 44 in the above referred book, clearly clarifying the reasons and objects of the aforesaid amendment, in the following terms:-
"fo"k;%& yksdk;qDr laxBu@jkT; vkfFkZd vijk/k vUos"k.k C;wjks ds vfHk;kstu ds izdj.kksa esa 'kkldh;@v)Z&'kkldh;
deZpkfj;ksa dk fuyEcu A
lkekU; iz'kklu foHkkx ds ifji= dzekad
12(2)/85@izldks@,d] fnukad 15.10.1985 }kjk 'kklu ds leLr foHkkxksa dks vkSj foHkkxk/;{kksa dks funsZ'k tkjh fd;s x;s Fks fd Hkz"Vkpkj ds laca/k esa e0iz0 yksdk;qDr laxBu vFkok jkT; vkfFkZd vijk/k vUos"k.k C;wjks e0iz0 }kjk 'kkldh;@v)Z&'kkldh; deZpkfj;ksa ds fo:) vfHk;kstu ds fy;s U;k;ky; esa pkyku izLrqr fd;s tkus ij lacaf/kr 'kkldh;@v)Z&'kkldh; deZpkfj;ksa dks fcuk fdlh viokn ds rRdky izHkko ls fuyafcr fd;k tk;sA
2. mijksDr funsZ'kksa ds vk/kkj ij ikfjr fd;s x, fuyacu vkns'k dks e/;izns'k iz'kklfud vf/kdj.k ds le{k dqN ekeyksa esa pqukSrh nh xbZ vkSj vfHkdj.k us ;g fu.kZ; fn;k fd lacaf/kr 'kkldh; deZpkjh dk fuyacu Lofoosd ds 15 W.A No.372/2012 vk/kkj ij ugha gqvk cfYd 'kklu ds dk;Zikfyd funsZ'kksa ls mRiUu nokc ds vk/kkj ij fd;k gS A vf/kdj.k us ,slk fuyacu nckoo'k fd;k x;k fuyacu ekuk gS A
3. jkT; 'kklu }kjk Kkiu dzekad lh 6-2/96/3/,d] fnukad 17.4.1996 }kjk e0iz0 flfoy lsok (oxhZdj.k] fu;a=.k rFkk vihy) fu;e] 1966 ds fu;e 9(1) ,oa 9(5)(?k) esa la'kks/ku dj fuEu O;oLFkk dh gS%& (,d) mifu;e (1) ds fo|eku ijUrqd esa 'kCn 'ijUrq' ds LFkku ij 'kCn 'ijUrq ;g vkSj Hkh fd' LFkkfir fd;s tk;sa] vkSj (nks) mifu;e (1) ds fo|eku ijUrq ds iwoZ fuEufyf[kr vUr% LFkkfir fd;k tk;] vFkkZr~%& "ijUrq 'kkldh; lsod dks lSno fuyafcr fd;k tk;sxk tcfd Hkz"Vkpkj ;k vU; uSfrd iru esa vUroZfyr nkf.Md vijk/k esa mlds fo:) pkyku izLrqr fd;k x;k gks A"
(rhu) mifu;e (5) ds [kaM (?k) ds LFkku ij fuEufyf[kr tksM+k tk;s] vFkkZr~%& "ijUrq fu;e 9 ds mifu;e (1) ds izFke ijUrqd ds v/khu fd;k x;k fuyacu vkns'k rc rd izfrlagr ugha fd;k tk;sxk tc rd mlds ckjs es ljdkj }kjk dkj.k Li"V djrs gq, vkns'k ikfjr ugha dj fn;k tk;s A"
4. vr,o e0iz0 flfoy lsok (oxhZdj.k] fu;a=.k rFkk vihy) fu;e] 1966 esa Åij fyf[kr la'kks/ku ds ifjizs{k esa dk;Zikfyd funsZ'k dh vko';drk ugha jg tkrh gS A 16 W.A No.372/2012
5. vr% lkekU; iz'kklu foHkkx dk ifji= dzekad ,Q 12(2)/85 izldks@,d] fnukad 15.10.1985 dks rRdky izHkko ls fujLr fd;k tkrk gS A
------lkekU; iz'kklu Kki dzekad ,Q 21 (72)92/110] fnukad 2751996."
On 26.2.1998, the State Government on finding that the concerned authorities were not properly implementing the first proviso to Rule 9, again issued a circular directing the authorities to immediately place the Government Servant under suspension whose case falls under the first proviso to Rule 9(1) of the Rules of 1966 failing which strict action shall be taken against the responsible authority, in the following terms:-
"fo"k;%& yksd vk;qDr laxBu@jkT; vkfFkZd vijk/k vUos"k.k C;wjks ds vfHk;kstu ds izdj.kksa esa 'kkldh;@v)Z&'kkldh; deZpkfj;ksa dk fuyEcu A jkT; 'kklu dh vf/klwpuk dzekad lh.6-2-96-3-1 fnukad 17.4.1996 }kjk e0iz0 flfoy lsok (oxhZdj.k] fu;a=.k rFkk vihy) fu;e] 1966 ds fu;e 9 esa fuyacu ds ekeyksa esa fo'ks"k :i ls ;g O;oLFkk dh xbZ gS fd Hkz"Vkpkj ;k vU; uSfrd iru vUroZfyr nkf.Md vijk/k esa mlds fo:) pkyku izLrqr djus dh fLFkfr esa 'kkldh; lsod dks lnSo fuyafcr fd;k tk;sxk A 'kklu ds /;ku esa vk;k gS fd ,d izdj.k esa yksd vk;qDr laxBu dh vuq'kalk izkIr gksus ij vkjksih vf/kdkjh ds vfHk;kstu ds fy, Lohd`fr nsus ds ckn U;k;ky; esa pkyku izLrqr gksus ij vkjksih vf/kdkjh dk fuyacu ugha fd;k x;k A 17 W.A No.372/2012 'kklu }kjk leLr foHkkxksa dks iqu% Li"V fd;k tkrk gS fd yksd vk;qDr@ jkT; vkfFkZd vijk/k vUos"k.k C;wjks ds Hkz"Vkpkj laca/kh ekeyksa esa vfHk;kstu dh Lohd`fr nsus esa vFkok vkjksih vf/kdkjh dks fuyafcr djus dh dk;Zokgh esa fdlh Hkh izdkj dk foyac ugha fd;k tkuk pkfg, A vfHk;kstu Lohd`fr ds fy, foHkkx dks vf/kdre ,d ekg dk le; fn;k x;k gS vkSj pkyku ds ckn fuyacu rks rRdky fd;k tkuk pkfg, A Hkfo"; esa ;fn fdlh foHkkx@vf/kdkjh }kjk bl izdkj dk iqujko`fRr dh tkrh gS rks lacaf/kr foyacdrkZ vf/kdkjh ds fo:) dBksj dk;Zokgh dh tkosxh A
-lkekU; iz'kklu foHkkx Kki dzekad ,Q 115898110] fnukad 2621998."
15. While considering the provisions of the first proviso to Rule 9(1) of the Rules of 1966, it would also be appropriate, at this stage, to consider the import of the proviso inserted below to Rule 9(5)(d) of the Rules of 1966, which provides that an order of suspension issued under the first proviso to Rule 9(1) of the Rules of 1966, shall not be revoked except by an order of the Government made for reasons to be recorded. In our considered opinion, the insertion of the aforesaid proviso further indicates that orders of suspension issued under the first proviso to Rule 9(1) of the Rules of 1966 should not be casually revoked and in case such revocation is required, then the said power can only be exercised by the State Government after recording reasons for such 18 W.A No.372/2012 revocation. However, as inspite of the aforesaid requirement of law as orders of suspension issued under the first proviso to Rule 9(1) of the Rules of 1966, were being casually revoked, the State Government again issued a circular on 30.9.1999 in respect of the manner of exercise of the powers for revocation, in the following terms which is quoted below:-
"fo"k;%& vkijkf/kd@Hk"Vkpkj ds izdj.kksa esa fuyacu ls cgky djus fo"k;dA lanHkZ%& jkT; 'kklu dh vf/klwpuk dzekad 62/96/3/,d] fnukad 1741996.
3. bl izdkj e0iz0 flfoy lsok (oxhZdj.k] fu;a=.k rFkk vihy) fu;e] 1966 esa fd;s x, la'kks/ku ds vuqlkj ;fn 'kkldh; lsod ds fo:) Hkz"Vkpkj ;k uSfrd iru esa vUroZfyr nkf.Md vijk/k esa vfHk;ksx i= izLrqr fd;k x;k gS rks mls fuyafcr fd;k tkuk vfuok;Z gS A lkFk gh] ,slk fd;k x;k fuyacu rc rd izfrlagr ugha fd;k tk,xk tc rd mlds ckjs esa ljdkj }kjk dkj.k Li"V djrs gq, vkns'k ikfjr ugha dj fn;k tkos A
4. jkT; 'kklu ds /;ku esa vk;k gS fd dqN izdj.kksa esa iz'kkldh; foHkkxksa@l{ke izkf/kdkfj;ksa }kjk mDr fu;eksa dk Bhd ls ikyu ugha fd;k tk jgk gS vkSj fcuk xq.k nks"k ij fopkj fd, ,oa fcuk leqfpr dkj.k crk;s lacaf/kr 'kkldh; lsodksa dks fuyacu ls cgky dj fn;k tkrk gS A ;g fLFkfr vR;ar [ksntud gS A
5. ftl O;fDr ds fo:) Hkz"Vkpkj ;k uSfrd iru dk vkijkf/kd izdj.k py jgk gks mlds fuyacu ls cgky djuk vkSipkfjdrk ek= ugha gS A ,sls izdj.kksa ij iw.kZ 19 W.A No.372/2012 xaHkhjrk ls fopkj fd;k tkuk pkfg;s vkSj cgqr viokfnd izdj.kksa esa gh fuyacu lekIr fd;k tkuk pkfg,A fu;eksa ds bl Li"V izko/kku dk Hkh iw.kZ ikyu fd;k tkuk pkfg, fd fuyacu lekIr djus ds dkj.k vafdr fd, tk;saA ;g dkj.k Hkh cgqr Bksl gksus pkfg, A bl ckr dk Hkh /;ku j[kk tkuk pkfg, fd vipkjh vf/kdkjh lk{; izHkkfor djus dh fLFkfr esa u gks A ;g Hkh /;ku j[kuk vko';d gS fd bl izdkj ds fuyacu vkns'k dks izfrlagr djus dk vf/kdkj dsoy ljdkj dks gS vU; fdlh vf/kdkjh dks ugha A
6. d`Ik;k mijksDr funsZ'kksa dk ikyu lqfuf'pr djsa A
-lkekU; iz'kklu foHkkx Kki dzekad lh 6-10/99/3/,d] fnukad 3091999.
The State Government has also issued a consolidated circular dated 30.8.2002 which is in similar terms in respect to the aforesaid Rule.
16. Subsequently, the State Government with a view to further specify and clarify the limit and import of the applicability of the first proviso to Rule 9(1) of the Rules of 1966, inserted the words "after sanction of prosecution by the Government" in the proviso as it stands today by notification dated 26.2.2007.
17. In view of the aforesaid analysis of the provisions of Rule 9(1) of the Rules of 1966, and its legislative history, we are of the considered opinion that the provisions of the first proviso to Rule 9(1) of the Rules of 1966 20 W.A No.372/2012 mandates that a Government Servant shall without variation, always, without fail, be placed under suspension in case of a charge sheet been filed against him for offences involving corruption or moral turpitude after obtaining sanction for prosecution. Similar view has been taken by a Division Bench of this Court in the case of Rajendra Singh Dasondhi and another vs. State of M.P. and others, ILR (2009) M.P. 2766.
18. In the instant case the charge sheet was filed against the appellant after sanction before the competent court on 4.2.2010 and, therefore, in view of the mandate of the first proviso to Rule 9(1) of the Rules of 1966, he was required to be placed under suspension but the competent authority did not do so and it was in such circumstances that the Economic Offences Bureau has brought to the notice of the competent authority the provisions of the first proviso to Rule 9(1) of the Rules of 1966 and the competent authority on realizing the mandate of law has placed the appellant under suspension by order dated 28.10.2010 specifically stating therein that he is being placed under suspension on account of filing of a charge sheet against him on 4.2.2010 before the Special Judge under the Prevention of Corruption Act, which is perfectly in conformity with the 21 W.A No.372/2012 provisions of the first proviso to Rule 9(1) of the Rules of 1966.
19. It is clear from a perusal of the impugned order of suspension that the appellant has not been placed under suspension on the dictates of the Economic Offences Bureau as alleged by the appellant but has been placed under suspension in view of the mandate of law and in such circumstances we do not find any merit in the submission of the appellant to the contrary. In fact we are of the considered opinion that as the case of the appellant falls under the first proviso to Rule 9(1) of the Rules of 1966 which is mandatory in nature, he was required to be and has rightly been placed under suspension immediately on filing of a charge sheet against him.
20. In view of the fact that the appellant is required to be placed under suspension in accordance with the provision of the proviso to Rule 9(1) of the Rules of 1966 and the authority has no discretion in the matter, the other issues raised by the appellant regarding veracity of the charges levelled against him, etc., need not be looked into by us as no useful purpose shall be served in doing so. Quite apart from the above, the Supreme Court in the 22 W.A No.372/2012 case of U.P Rajya Krishi Utpadan Mandi Parishad and others vs. Sanjiv Rajan, 1993 Supp.(3) SCC 483 and this Court in the case of Deepa Dubey (Mrs.) vs. Union of India, 2010 (4) MPHT 191, have also stated that while dealing with cases of suspension, the Courts are not required to look into the correctness or authenticity of the charges levelled against a Government Servant.
21. We are also of the considered opinion that in view of the aforesaid analysis of the Rules and the facts and circumstances of the present case, the reliance placed by the appellant on the decision of this Court rendered in the case of Suresh Kumar Purohit (supra) is also misplaced and misconceived as the factual background and backdrop in which the aforesaid decision was rendered is totally different from the factual matrix of the present case.
22. In the case of Suresh Kumar Purohit (supra) the petitioner who was working as Assistant Transport Sub Inspector, was placed under suspension on 23.3.2000 on account of a challan being filed against him under the provisions of Section 13(1)(E) and 13(2) of the Prevention of Corruption Act. However, subsequently the suspension 23 W.A No.372/2012 was revoked by order dated 13.4.2000. Thereafter the authorities again suspended the petitioner by order dated 24.7.2004 only on account of the fact that the Lokayukt had directed his suspension and it was in those circumstances and in the backdrop of the facts prevailing in that case that the observations in respect of Rule 9 of the Rules of 1966 were made by the learned Single Judge in the case of Suresh Kumar Purohit (supra) which have to be understood and limited to the facts of that case and cannot be taken to be a precedent in respect of all cases falling under the provision of Rule 9 of the Rules of 1966. In fact the Supreme Court in the case of Uttaranchal Road Transport Corporation vs. Mansaram Nainwal, AIR 2006 SC 2840, has observed that placing reliance on a decision without looking into the factual background of the case before it is impermissible in the following terms:-
"13....Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is 24 W.A No.372/2012 important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647 and Union of India v. Dhanwanti Devi, (1996) 6 SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem, (1901) AC 495(HL); Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law 25 W.A No.372/2012 but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides."
23. We are, therefore, constrained to clarify that the decision rendered in the case of Suresh Kumar Purohit (supra) was and is confined to the facts of that particular case and cannot and shall not be treated as laying down the law or as a precedent for the purposes of interpreting the provisions of Rule 9 of the Rules of 1966, in any other case specifically in view of the analysis and interpretation of Rule 9(1) and 9(5)(d) of the Rules of 1966, as made by us in the present case.
24. In view of the aforesaid facts and circumstances of the case we find no reason to interfere with the order passed by the learned Single Judge. The appeal, filed by the appellant, fails and is, accordingly, dismissed.
25. There shall be no order as to the costs.
( AJIT SINGH ) ( R. S. JHA )
JUDGE JUDGE
07/05/2012 07/05/2012
mms/-
26 W.A No.372/2012