Madhya Pradesh High Court
Tribal Welfare Department vs Suresh Tiwari on 22 September, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 22nd OF SEPTEMBER, 2022
WRIT APPEAL No. 990 of 2020
BETWEEN:-
STATE OF M.P. THROUGH SECRETARY GOVT. OF
1. M.P. TRIBAL WELFARE DEPARTMENT VALLABH
BHAWAN, BHOPAL, M.P.
THE COMMISSIONER TRIBAL WELFARE
2. DEPARTMENT GOVERNMENT. OF M.P. SATPURA
BHAWAN BHOPAL (MADHYA PRADESH)
COLLECTOR (TRIBAL WELFARE) DHAR, DISTRICT
3.
DHAR (MADHYA PRADESH)
.....APPELLANT
(SHRI SHREY RAJ SAXENA, ADVOCATE.
AND
SURESH TIWARI S/O SHRI DEOKRISHNA TIWARI,
AGED ABOUT 79 YEARS, OCCUPATION:
UNEMPLOYED, R/O PRAKASH NAGAR DHAR
(MADHYA PRADESH)
.....RESPONDENT
(SHRI L. C. PATNE ADVOCATE.)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
The appellant/State has filed the present Writ Appeal against the order dated 16.08.2019 passed in W.P. No.3253/2005 whereby the Writ Court has remanded the matter back to His Excellency the Governor of M.P. to decide the appeal within a
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period of three months from the date of filing of certified copy of the order, by passing a reasoned and speaking order relied on the judgment of Larger Bench of this Court in case of State of M.P. & Anr. Vs. P.N. Raikwar passed in W.A. No.968/2018.
The Larger Bench of this Court in the aforesaid has concluded the reference in para 23 which is reproduced below:
''23. In view of the above, we find that no appeal shall lie to the Governor if an order is passed by him personally in terms of Rule 22 Clause (I) of the Service Rules, but since the order of punishment has not been passed by the Governor personally but has been passed in the name of the Governor, therefore, an appeal would lie under Rule 23 of the Service Rules. The appellate authority shall be Governor in terms of Rule 24(1)9(i) (b) of the Service Rules, but again 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 Rule of Business'' Vide order dated 29.08.1997, the writ petitioner was imposed punishment of dismissal from services with recovery of Rs.5,08,638/-. The aforesaid order has been passed in the name of Governor as petitioner was holding the post of Class-II at the relevant point of time. Against the aforesaid order, the writ petitioner preferred an appeal before the Governor which came to be dismissed on 19.05.2005.
Although the name of Government is there in the order dated 29.08.1997 but it was passed on advice of the department, therefore, an appeal has rightly been preferred before the Governor to be decided in the personal capacity as held by the Larger Bench in Para 23 of State of M.P. & Anr. Vs. P.N. Raikwar (supra). The Writ Court has wrongly remanded back the matter to Governor for adjudication.
Shri Patne learned counsel for the Writ Petitioner submits that the writ petitioner has assailed the impugned punishment order as well as appellate order on merit but the Writ Court has
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not dealt the issue because of remand order.
In view of the above, Writ Appeal is allowed, the order dated 16.08.2019 passed in Writ Petition No.3253/2005 is set aside. The Writ Petition No.3253/2005 is restored and same be listed before the Single Bench.
Certified copy as per rules.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen
Digitally signed by PRAVEEN
NAYAK
Date: 2022.09.23 10:55:06
+05'30'