Madhya Pradesh High Court
Parag Bhartiya vs The State Of Madhya Pradesh on 20 September, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION NO. 4852 of 2024
PARAG BHARTIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
.........................................................................................................
Appearance:
Shri Sanjay K. Agrawal - Senior Advocate with Shri Mihir Agrawal - Advocate for
the petitioner.
Shri Aditya Narayan Sharma - Advocate for respondent No.2.
Shri Prabhanshu Shukla - Govt. Advocate for respondents / State.
..........................................................................................................
WITH
WRIT PETITION NO.4848 of 2024
DEEPAK BILLORE
Versus
THE STATE OF MADHYA PFADESH AND OTHERS
.........................................................................................................
Appearance:
Shri Sanjay K. Agrawal - Senior Advocate with Shri Mihir Agrawal - Advocate
for the petitioner.
Shri Aditya Narayan Sharma - Advocate for respondent No.2.
Shri Prabhanshu Shukla - Govt. Advocate for respondents / State.
..........................................................................................................
ORDER
(Reserved on 14.08.2024) (Pronounced on 20.09.2024) Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 2 These two petitions involve common questions of law and revolve on similar facts, hence, are being decided by this common order. For the sake of convenience, the reference to facts and documents is taken from WP 4852-2024. In WP 4852/2024, copy of suspension order is placed on record as Annexure P-6.
2. Challenge is made in the present petitions to suspension order issued under the orders of the President, M.P. State Consumer Disputes Redressal Commission, Bhopal (for short, referred to as "State Commission"). The petitioners in both petitions are Ministerial Cadre employees and the President is undisputedly the competent authority, but the sole dispute that arises is that whether the Officiating/Incharge President could exercise disciplinary powers, and whether the disciplinary powers are statutory powers, or are mere executive or administrative powers.
3. The learned senior counsel for the petitioner argued that the General Administration Department of the State Government has issued a circular (Annexure P-2) dated 01.2.1964 wherein it is provided that the officer placed in current charge of the post cannot exercise statutory powers of the post like the one derived from M.P. Civil Services (Classification Control and Appeal) Rules, Fundamental Rules, etc. Therefore, it is argued that disciplinary power is a statutory power that cannot be exercised by the officer holding current charge of duties of Higher post.
4. It is further argued that the regular President completed his tenure on 22.10.2023 and demitted office after which the charge has been given to Judicial Member Shri Ashok Kumar Tiwari by order Annexure P-1 dated 22.11.2023. It is contended that the said order Annexure P-1 has not been passed by the Governor himself but is issued only in the name of the Governor. By referring to the M.P. Consumer Disputes Redressal Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 3 Commission Officer/Employees Service Recruitment Rules 2021, it is contended that Rule 2 (c) thereof defines President as the President or officiating President authorized under Section 42 of the Consumer Protection Act 2019 (for short referred to as "Act 2019) by the Madhya Pradesh Governor, therefore, in absence of the order annexure P-1 being issued by the Governor himself, the Incharge President cannot be said to be President in terms of Rule 2 (c) of the State Rules 2021. Therefore, though he may be disciplinary authority as per Rule 21 (1) (a) of the State Rules 2019, yet in absence of order personally signed by the Governor, such Incharge/officiating President will get no powers. In sum and substance, the argument is that if the officiating President is the President in terms of Rule 2 (c), then he has to be appointed by Governor as per mandate of Rule 2
(c).
5. The learned senior counsel by referring to Rule 3(1) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Rules, 2020 (for short referred to as "Central Rules 2020"); has further stated that the Incharge President ought to be a present or former Judge of the High Court, and for this reason also, the Incharge President being a retired District Judge, is not qualified to hold the post of President even on Incharge basis.
6. Thus, it is argued that the Incharge President who has issued the suspension order is absolutely disqualified, being disqualified to hold the post of Incharge President, and also that being Incharge, otherwise could not have exercised disciplinary powers.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 47. Per contra, it was argued by learned counsel for the respondent that as per Rule -6 of the M.P. Consumer Protection (Salary, Allowances and conditions of Service of President and Members of the State Commission and District Commission) Rules 2021, the State Government can appoint a Member to officiate as President if he is a retired Judicial Officer of the State. It is further contended that process has been initiated to appoint a regular President but that process is being delayed for one reason or the other beyond control of the respondents on account of unavoidable circumstances.
8. It is also contended that the Supreme Court has already relaxed the requirement of the President of State Commission to be a sitting or retired Judge of the High Court. Therefore, the officiating President is the President in terms of Rule 2 (c) of the M.P. Consumer Disputes Redressal Commission Officer/Employees Service Recruitment Rules 2021 to be duly competent to take disciplinary actions against the employees.
9. Heard.
10. So far as the argument of the learned counsel for the petitioner that the Incharge President not being a sitting or former Judge of the High Court is concerned, the relevant Provision in the Central Rules is as under :-
3. Qualifications for appointment of President and members of the State Commission.--
(1) A person shall not be qualified for appointment as President, unless he is, or has been, a Judge of the High Court;
(2) A person shall not be qualified for appointment as a member unless he is of not less than forty years of age and possesses--
(a) an experience of at least ten years as presiding officer of a Signature Not Verified Signed by: NAVEEN district court or of any tribunal at equivalent level or KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 5 combined service as such in the district court and tribunal:
Provided that not more than fifty percent of such members shall be appointed; or
(b) a bachelor's degree from a recognised university and is a person of ability, integrity and standing, and has special knowledge and professional experience of not less than twenty years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine:
(3) At least one member or the President of the State Commission shall be a woman.
11. As per Rule 3 (1) aforesaid, the requirement is to be a sitting or former Judge of the High Court. However, the said issue was raised before the Hon'ble Supreme Court in the case of Secretary, Ministry of Consumer Affairs Vs. Dr. Mahindra Bhaskar Limaye & Ors., reported in 2023 SCC Online SC 231. The Hon'ble Supreme Court has held as under :-
"46. The Central Government and the concerned State Governments have also to come with an amendment in the Rules, 2020 to provide 10 years' experience to become eligible for appointment of President and Member of the State Commission as well as the District Commission instead of 20 years and 15 years respectively, provided in Rule 3(2)(b) and Rule 4(2)(c) which has been struck down to the extent providing 20 years and 15 years of experience, respectively. Till the suitable amendments are made in Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 as above, in exercise of powers under Article 142 of the Constitution of Signature Not Verified India and to do complete justice, we direct that in future and Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 6 hereinafter, a person having bachelor's degree from a recognized University and who is a person of ability, integrity and standing, and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the State Commission. Similarly, a person of a person of ability, integrity and standing, and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the District Commissions. We also direct under Article 142 of the Constitution of India that for appointment of President and Members of the State Commission and District Commission, the appointment shall be made on the basis of performance in written test consisting of two papers as per the following scheme .. .. .."
(Emphasis supplied)
12. Therefore, the issue raised in terms of Central Rules is now no longer res-integra and deserves to be rejected, that not being a present or former Judge of the High Court, the officiating President is disqualified to hold the post.
13. Coming to the other issue raised, i.e. the order Annexure P-1 not having been issued personally by the Governor and issued only in the name of Governor in terms of Rule 2 (c) of the M.P. Consumer Disputes Redressal Commission Officer/Employees Service Recruitment Rules 2021, hence, the Incharge President being not competent under those Rules. The Signature Notsaid Rule 2 (c) is as under :-
Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 7 "President" (Chairperson) means the President of the Commission or officiating President authorized under Section 42 of the Adhiniyam by the Madhya Pradesh Governor.
On the contrary is the provision in the Central Rules, whereby Rule- 6 clearly authorizes the "State Government" to appoint the President in the following terms :-
6. Procedure of appointment.--
(1) The President and members of the State Commission and the District Commission shall be appointed by the State Government on the recommendation of a Selection Committee, consisting of the following persons, namely .. .. ..
(Emphasis supplied)
14. The M.P. Consumer Protection (Salary, Allowances and conditions of Service of President and Members of the State Commission and District Commission) Rules 2021, specially enacted in the matter of appointment etc. of the President, also in Rule-6 thereof clearly authorizes the State Government to fill casual vacancy from amongst the existing members in the following terms :-
"6. Casual Vacancy :- (1) In case of casual vacancy in the office of President in the State Commission, the State Government shall have the power to appoint the senior most Member to officiate as President.
Provided that where a retired Judicial Officer of the State is a Member of the State Commission, or where the member of such members is more than one, the senior-most person amongst such members, shall be appointed by the State Government to officiate Signature Not Verified Signed by: NAVEEN as President."KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 8
15. Hence, in terms of the aforesaid, it is no longer in doubt that the "State Government" has the power to appoint the President and to fill casual vacancy by appointing officiating President. Even the order (Annexure P-1) has been issued in terms of the aforesaid provision of Rule-
6.
16. Even otherwise, it is no longer res-integra that wherever something is required to be done by the Governor, then it has not to be done personally by the Governor and the decision can be taken in name of Governor as per the Rules of business of executive government framed under Article 166 (3) of the Constitution of India. A Full Bench of this Court in the case of State of Madhya Pradesh Vs. P.N. Raikwar, reported in 2018 IPR MP 2696 (FB) considered this issue and held that where power has been vested In Governor, it is not the power to be exercised by the Governor personally, but in terms of Rule of Business by the 'Council of Ministers' or the Minister as may be warranted in the Rules of Business.
17. The Apex Court had the occasion to deal with this issue in detail in the case of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 as under :-
153. Though the debate could be endless, yet we would consider it apposite to advert to the decisions rendered by this Court in Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] and Samsher Singh case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] . Insofar as Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] is concerned, this Court had held therein that the President or the Governor, as the case may be, would pass an order only on his personal satisfaction. In the above case, this Court while examining the case of an employee under Article 311(2) [more particularly, under Signature Not Verified Signed by: NAVEEN proviso (c) thereof], recorded its conclusions, in the manner KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 9 expressed above. The same issue was placed before a seven-
Judge Bench constituted to re-examine the position adopted in Sardari Lal case [Sardari Lal v. Union of India, (1971) 1 SCC 411] . The position came to be reversed. This Court in Samsher Singh case [Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974 SCC (L&S) 550] declared that wherever the Constitution required the satisfaction of the President or the Governor, for the exercise of any power or function, as for example under Articles 123, 213, 311(2), 317, 352(1), 356 and 360, the satisfaction required by the Constitution was not the personal satisfaction of the President or the Governor "... but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet system of Government". It is, therefore, clear that even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion.
154. We are, therefore, of the considered view that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the constitutional provision concerned, could not be construed otherwise. We, therefore, hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Signature Not Verified Governor in the discharge of his functions, takes a decision in Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 10 his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e. where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms.
155. We may therefore summarise our conclusions as under:
155. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1). Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.
155.2.Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.
155.3.Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwise. Fourthly, in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interest. 155.4.Fourthly, in situations where this Court has declared that the Governor should exercise the particular function at his own and without any aid or advice because of the impermissibility of the other alternative, by reason of conflict of interest.Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 11
155.5.Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163 (2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163 (2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor's jurisdictional authority, would certainly be subject to judicial review.
155.6.Sixthly, in view of the conclusion drawn at Fifthly above, the judgments rendered in the Mahabir Prasad Sharma case20, and the Pratapsing Raojirao Rane case12, by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163 (2), is accordingly hereby set aside.
18. Adverting to facts of the present case, there is nothing in any constitutional provision that the Governor should act to his personal satisfaction to appoint an officiating President of the State Consumer Commission. A provision in the M.P. Consumer Disputes Redressal Commission Officer/Employees Service Recruitment Rules 2021 is a general power that can be exercised by the executive government in name of Governor as per Rules of Business. Therefore, the challenge to the authority of the President on the ground of order not being issued personally by the Governor, stands rejected.
19. Now coming to the third ground of the order not having been issued by substantive President Commission and issued only by the Incharge or Officiating President. The said issue though is insignificant in view of Rule 2 (c) of the M.P. Consumer Disputes Redressal Commission Signature Not Verified Officer/Employees Service Recruitment Rules 2021 that makes a Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 12 officiating President duly competent. However, since the issue was raised relying on GAD Circular of 01.2.1964, it is being decided. Reliance was placed on the judgement of the Full Bench in the case of Girja Shankar Shukla Vs. Sub Divisional Officer, Harda, reported in 1973 MPLJ 411.
20. The Full Bench was constituted as there was a judgement of this Court in Ramratan Vs. Sate of M.P., reported in 1964 MPLJ 86, wherein it was held that holding the rank of appointing authority was necessary for the purpose of Article 311 of the Constitution. Since it could not be said that the Deputy Inspector-General of Police was clothed with the rank of Inspector-General of Police, hence, the order passed by him in current charge of post of Inspector General was held bad in law. This judgement was doubted in State of M.P. Vs. Gokul Prasad, reported in 1971 MPLJ 609 by another Bench of this Court. Therefore, the matter was referred to Full Bench.
21. The aforesaid judgment of the Full Bench in the case of Girja Shankar Shukla (supra) was thereafter delivered based on the judgement of Supreme Court in the case of Hari Chand Aggrawal Vs. Batala Engineering Co. Ltd. and others AIR 1969 SC 483 and Ajaib Singh Vs. Gurbachan Singh and others Vs. AIR 1965 SC 1619.
22. However, both the aforesaid judgments of the Supreme Court in Hari Chand Aggrawal Vs. Batala Engineering Co. Ltd. and others AIR 1969 SC 483 and Ajaib Singh Vs. Gurbachan Singh and others Vs. AIR 1965 SC 1619 (on which the Full Bench based its conclusions) have subsequently been distinguished by the Supreme Court in Gopalji Khanna Vs. Allahabad Bank and others (1996) 3 SCC 538.
23. The Hon'ble Supreme Court in Gopalji Khanna (supra) had the occasion to examine the issue whether a person who holds for the time Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 13 being, charge of office of higher post can exercise the powers of disciplinary authority vested in the said higher post. The said issue has been decided by the Hon'ble Supreme Court holding that the current charge holder is entrusted with the charge of office of higher post and thus, he becomes entitled to exercise all executive powers, perform duties and discharge functions attached to such office and, therefore, the order of penalty passed by him as disciplinary authority remains legal and valid. The Hon'ble Supreme Court in the case of Gopalji Khanna (supra) has held as under:
"7. Shri Wadhwa while exercising the power of review was really discharging the functions of Chairman and Managing Director as he was then placed in charge of those of ices and was therefore entitled to perform all the duties and functions of those of ices. He did not exercise that power on the basis that it was delegated to him. Therefore, the decisions in Barnard v. National Dock Labour Board [(1953) 1 All ER 1113 : (1953) 2 WLR 995] , Krishna Kumar v. Divisional Asstt. Electrical Engineer [(1979) 4 SCC 289 : 1980 SCC (L&S) 1] and Marathwada University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 : 1989 SCC (L&S) 436] , relied upon by the learned counsel in support of his contention that statutory power can be exercised by the named authority only and cannot be further delegated, require no further consideration. So also, Ramakant Shripad Sinai Advalpalkar v. Union of India [1991 Supp (2) SCC 733 : 1992 SCC (L&S) 115 : (1992) 19 ATC 85] and State of Haryana v. S.M. Sharma [1993 Supp (3) SCC 252 : 1993 SCC (L&S) 1072 : (1993) 25 ATC 594] cited by the learned counsel have no relevance. The question which arose for consideration in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as promoted to that higher post. This Court held that entrustment Signature Not Verified of current duties charge of a higher post does not amount to Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 14 promotion and in such cases the person continues to hold his substantive lower post and only discharges the duties of higher post essentially as a stopgap arrangement.Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 15
8. It was next submitted that when a person is entrusted with charge of current duties of a higher post, he can exercise only those powers and perform those functions which are available to the person holding the higher post under executive orders and not those which are conferred by statutory provisions. In support of this submission the learned counsel relied upon the decision of this Court in Ajaib Singh v. State of Punjab [(1965) 2 SCR 845 : AIR 1965 SC 1619 : (1965) 2 Cri LJ 553] . In that case what had happened was that the Additional District Magistrate, Amritsar was invested with powers of a District Magistrate under Section 10(2) of the Code of Criminal Procedure, 1898 and was also put in charge of the office of the District Magistrate Amritsar, who was transferred. No order appointing him as a District Magistrate under Section 10(1) was passed. While in charge of the office of the District Magistrate, he passed an order of detention under the Defence of India Act and Rules, 1962. That order was challenged on the ground that as the Additional District Magistrate was not appointed as District Magistrate under Section 10(1) he did not have the power to pass a detention order and, therefore, the order passed by him was without any authority of law and liable to be set aside. This Court after considering the relevant provisions of the Defence of India Act and Rules, 1962 and the drastic nature of the power and the consequences following from it, observed that the power of detention could only be exercised by the State Government or an officer or authority to whom it was delegated and that the said power could be delegated to an officer or authority who was not lower in rank than the District Magistrate. It was then held that even though the Additional District Magistrate was exercising the powers of the District Magistrate on there being a vacancy in the of ice of the District Magistrate, he was still not the District Magistrate as he was not appointed as such under Section 10(1) of the Code and therefore, he had no power to pass the order of detention. Even though invested with the powers of a District Magistrate he did not become an officer of the rank of Signature Not Verified Signed by: NAVEEN a District Magistrate. In this case we are not concerned with KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 16 such a provision and therefore are not required to consider whether Executive Director of the Bank when entrusted with the charge of duties of the offices of Chairman and Managing Director became an officer of the rank of Chairman and Managing Director. Moreover the power of the employer to take disciplinary action against his employee including the power to review an order of penalty, has to be distinguished from the statutory power to detain a person. Therefore, on the basis of this decision it cannot be held that the Executive Director who was merely entrusted with the charge of duties of the offices of Chairman and Managing Director could not have exercised the power of reviewing the order of penalty passed by the disciplinary authority."
24. In the aforesaid case, the Hon'ble Supreme Court has also held that a person holding the current duty charge of higher post was really discharging the functions of that higher post as he was placed in charge of both offices and was therefore, entitled to perform all duties and functions of those offices. It was further held that the judgments in the matter of exercise of statutory powers have no relevance because disciplinary powers cannot be deemed to be statutory powers but are really executive powers. In the aforesaid case, the Hon'ble Supreme Court has considered and distinguished the case of Hari Chand Aggrawal Vs. Batala Engineering Co. Ltd. and others AIR 1969 SC 483 and Ajaib Singh Vs. Gurbachan Singh and others Vs. AIR 1965 SC 1619, on which the Full Bench decision of this Court in the case of Girja Shankar Shukla (supra) was based.
25. The circular of the GAD of the year 1964 seems to have been issued immediately after the decision of this Court in Ramratan (supra) was passed in the year 1964. However, as the said view has been diluted by the Supreme Court in 1996 after considering and distinguishing all earlier Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 17 views taken even by the Supreme Court in similar terms. Therefore, even the GAD circular dated 01.2.1964 is now insignificant.
26. In the present case, it is not the case of petitioner that the person was placed in charge of current duties of President of State Commission as a stop gap arrangement. It is not in a dispute that he was regularly holding the current charge of President. It is not a case where a person having come in charge as a stop gap arrangement has exercised the powers vested in the higher office but it is the case in which the officiating President was in fact regularly holding the current charge of higher post. Thus, in the opinion of this Court Shri Ashok Kumar Tiwari was having the power to act as disciplinary authority and discharge the functions of disciplinary authority vested in President of the State Commission, be it in the matter of suspension or issuing chargesheet or passing penalty order.
27. The aforesaid issue also cropped up before Division Bench of this Court in WA No.157/2017. It was a case where the Superintending Engineer holding current charge of Chief Engineer in an electricity distribution company of Madhya Pradesh, suspended an employee discharging the functions of disciplinary authority vested in Chief Engineer. The aforesaid matter ultimately went to the Division Bench and the Division Bench in WA No.157/2017, M.P. Madhyak Kshetra Vidyut Vitran Company Vs. Vikas Gupta and others decided on 06/04/2017 has held that a person holding the lower post was given current duty charge of the post of Chief General Manager by the competent authority. Thus, he was competent to act as Chief General Manager and pass an order of suspension. The Division Bench held as under :
"The challenge in the present appeal is to an order passed by the learned Single Bench on 15.02.2017 in W.P.No.6335/2016 Signature Not Verified Signed by: NAVEEN whereby an order of suspension of the respondent herein on KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 18 01.09.2016 was found to be passed by a person who was not substantively working as Chief General Manager and thus not competent to pass an order of suspension.
The petitioner was working as Assistant Engineer, Baraghat City Circle, Gwalior. He was suspended by Shri S.K. Upadhyay said to be working as Chief General Manager, Gwalior Region. The challenge to the suspension was on the ground that Shri S.K. Upadhyay was holding substantive rank of the Deputy Chief General Manager. Though on 26.02.2016 he was given current duty charge of the post of Chief General Manager but after his substantive promotion as Deputy Chief General Manager on 24.06.2016, there was no order of their current duty charge of the post of Chief General Manager, therefore, order of suspension is illegal.
The learned Single Bench allowed the writ petition holding that the present appellants could not clarify as to how the Managing Director of the appellant-Corporation could have delegated the authority of discharging of the function of the Chief General Manager on Shri Upadhyay. After observing so, the learned Single Bench held as under:
"In view of this fact, it is apparent that when the delegation of powers exercising the disciplinary authority is clearly vested in a Chief General Manager or the Executive Director or the Chief Engineer of the region and admittedly the person who issued impugned suspension order was not substantively working as Chief General Manager and who admittedly misrepresented himself to be Chief General Manager in the impugned order inasmuch as he was vested with the authority power as Dy. Chief General Manager and was only authorized to exercise the powers of Chief General Manager by the Managing Director, the impugned order cannot be said to have been passed by a competent authority and, therefore, it deserves to be quashed and is hereby quashed."
Before this Court, learned counsel for the appellant refers to Signature Not Verified Signed by: NAVEEN Annexure-R/1 dated 26.02.2016 wherein Shri S.K. Upadhyay KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 19 was posted against the post of Deputy Chief General Manager on current charge basis. He was also directed to look after the work of Chief General Manager. The relevant extract from the order reads as under:
"Shri S.K. Upadhyay, GM(O&M), Hoshangabad is hereby posted on current charge basis as Dy. Chief General Manager, O/o CGM(GR), Gwalior, till further orders. The posting of Shri S.P. Upadhyay, GM on current charge basis as Dy. Chief General Manager is without prejudice to af ecting the seniority of any order GM-SE(T&D). He is directed to look after the work of Chief General Manager (GR), Gwalior and is authorized to exercise the powers of Chief General Manager, with ef ect from 01.03.2016 till further orders. Sd/- (Vivek Porwal) Managing Director".
It is thereafter Shri S.K. Upadhyay was substantively posted as Deputy Chief General Manager by an order passed by the Chief General Manager but there is no order of revocation of order passed by the Managing Director authorizing Shri S.K. Upadhyay to exercise the powers of Chief General Manager as well. The relevant part of order dated 24.06.2016 reads as under:
"Shri S.K. Upadhyay, Dy Chief General Manager (T&D) on current charge and presently looking after the work of Chief General Manager (GR), Bhopal is hereby appointed temporarily to of iciate until further orders as Dy. Chief General Manager-Addl. Chief Engineer and posted at the present place of posting w.e.f. the date of assuming charge. 2. The above appointment will be on probation and shall be governed by the provisions contained in Circular No.01-05/58 dtd 29.04.89 read with 01-05/1/93 dated 18.07.1989, No.01- 05/1/1-25473 dtd 21.04.90 No.01-13/1 dtd 09.01.95 and read with Circular No.01-13/3422/19 dated 01.07.05."
The appellants have referred to the delegation of powers on behalf of Corporation including upon its Managing Director.
Signature Not Verified Signed by: NAVEENPart-A Section-III Clause 7 empowers the Managing Director KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 20 to entrust current charge of higher office in the post of Class-I and Class-II without prejudice to the seniority of the of icers. It is thus contended that the Managing Director has passed an order to authorize Shri S.K. Upadhyay to exercise the powers of Chief General Manager by the order dated 26.02.2016, which order has not been superseded or 5 Writ Appeal No.157/2017 varied in any manner by Chief General Manager when Shri S.K. Upadhyay was promoted on substantive basis as the Deputy Chief General Manager. Since the current duty charge was granted by the Managing Director of the Corporation in terms of statutory delegation, therefore, it cannot be said that Shri S.K. Upadhyay was not competent to pass an order of suspension.
We find that the order passed by the learned Single Bench is not sustainable. Shri Upadhyay was given current duty charge of the post of Chief General Manager. The said order has not been varied in any manner after Shri Upadhyay was promoted substantially on the post of Deputy Chief General Manger. Therefore, he was competent to act as Chief General Manger and pass an order of suspension. We do not find any error in the order of suspension passed by Shri S.K. Upadhyay on 01.09.2016. Therefore, the order of the Learned Single Judge cannot be said to be legal. The same is accordingly set aside. At this stage, learned counsel for the writ petitioner (respondent herein) states that he has remedy of filing an appeal against the order of suspension.
If it is so, the respondent may avail such remedy in accordance with law.
With the aforesaid liberty, writ appeal stands allowed and disposed of."
28. The law therefore, is now clear that a person holding lower post but having entrusted with regular charge of higher post can exercise powers of disciplinary authority.
Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM 2129. In the result, the petitions stand dismissed.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 22-09-2024 2.04.09 PM