Chattisgarh High Court
Panchu Ram Thakur vs State Of Chhattisgarh on 21 June, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on:11.06.2021
Order delivered on:21.06.2021
Writ Petition (S) No.2062 of 2016
Panchu Ram Thakur S/o Late Rati Ram Thakur, Aged about
52 years, OccupationChild Development Project Officer
(CDPO) office at Integrated Child Development Service
(ICDS) at Mainpur, Police StationMainpur, Tahsil
Mainpur, Distt.Gariyaband, District Gariyaband (CG)
Petitioner
Versus
1. State of Chhattisgarh Through its Principal Secretary,
Department of Women and Child Welfare, Mahanadi
Bhawan, Mantralaya, Raipur (CG)
2. Commissioner, Raipur Division, Raipur (CG)
3. Collector (Women and Child Welfare) Gariyaband,
Distt.Gariyaband (CG)
Respondents
For Petitioner : Mr.Ashok Patil, Advocate
For Respondents : Mr.Sunil Otwani, Additional Advocate
General
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
1. Proceedings of this matter have been takenup through
video conferencing.
2. The short question involved in this writ petition is
whether the Commissioner, Raipur Division/respondent
No.2 (Disciplinary Authority) in exercise of his power
delegated under Section 12(2) of the Chhattisgarh Civil
Services (Classification, Control and Appeal) Rules,
1966 (hereinafter called as "Rules of 1966") is
justified in placing the petitioner (Class II gazetted
officer) under suspension by the impugned order dated
18.5.2016 (Annexure P1) and further justified in
changing his headquarter.
3. The aforesaid question has arisen in following factual
backdrop:
3.1 The petitioner was appointed on the post of Child
Development Project Officer on 26.12.1996 (Annexure P2)
by the State Government. He was placed under suspension
by respondent No.2 by order dated 18.5.2016, which is
sought to be quashed by way of this writ petition on the
ground that the petitioner's appointing authority is the
State Government and respondent No.2/Commissioner,
Raipur Division is neither his appointing authority nor
it is disciplinary authority and as such, power to
suspend under Rule 9(1) (a) of the Rules of 1966 could
not have exercised by him. It is further case of the
petitioner that the petitioner being candidate of
Scheduled Tribe, opportunity of hearing ought to have
been afforded to him by virtue of the circulars dated
12.6.2008 and 27.11.2012, as such, the impugned order is
liable to be set aside.
4. Return has been filed by the respondents stating inter
alia that power to suspend under Rule 9(1) of the Rules
of 1966 has been delegated to the Commissioner by
notification dated 4.8.2008 (Annexure R1) and the
Divisional Commissioner has been authorized to impose
minor penalties upon the members of State Civil
Services, as such, the order of suspension is justified.
It has also been pleaded that headquarter has rightly
been changed to hold the departmental enquiry fairly in
accordance with law.
5. Mr.Ashok Patil, learned counsel for the petitioner,
would submit that the petitioner being Class II Gazetted
officer his appointing authority is the State Government
and the Divisional Commissioner is not disciplinary
authority or any other authority empowered in that
behalf by the Governor, as such, by notification dated
4.8.2008 (Annexure R1) the petitioner could not have
been placed under suspension and in view of two
circulars issued by the State Government he being member
of Scheduled Tribe, opportunity of hearing ought to have
been afforded to him. He would rely upon the decision of
this Court in the matter of Anil Kumar Jain v. State of
Chhattisgarh and others1.
6. On the other hand, Mr.Sunil Otwani, learned Additional
Advocate General for the respondents/State, would
support the impugned order and submit that by virtue of
1 2015(1) CGLJ 232
notification dated 4.8.2008 (Annexure R1) the State
Government following the provisions contained in Rule
12(2) (a) & (b) of the Rules of 1966 has empowered the
Divisional Commissioners to impose minor penalties upon
a member of State Civil Services under Rule 10 of the
Rules of 1966 and therefore, by virtue of Rule 2(d) of
the Rules of 1966 he would be disciplinary authority and
Rule 9(1) of the Rules 1966 also confers the power of
suspension to the disciplinary authority and therefore,
the Commissioner is justified in placing the petitioner
under suspension and he being Class II officer covered
by the notification dated 4.8.2008. He would further
submit that power to change headquarter is justified to
ensure fair departmental proceedings, if any, against
the petitioner, as such, the writ petition deserves to
be dismissed. He would rely upon the judgment of the
Madhya Pradesh High Court in the matter of P.S.Pandey v.
State of Madhya Pradesh, decided on 27.8.2014.
7. I have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and
also went through the records with utmost
circumspection.
8. It is not in dispute that respondent No.2Commissioner
has placed the petitioner under suspension in exercise
of power conferred under Section 9(1)(a) of the Rules of
1966. It would be appropriate to notice the provisions
contained in Section 9(1)(a) of the Rules of 1966 which
states as under:
"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."
A careful perusal of Rule 9 (1) (a) of the Rules of 1966
would show that power of suspension of a Government
servant has been conferred to either the appointing
authority or any authority to which it is subordinate or
disciplinary authority or any other authority empowered
in that behalf by the Governor by general or special
order.
9. Similarly, disciplinary authority has been defined in
Rule 2(d) of the Rules of 1966 which states as under:
"2(d) "disciplinary authority" means the
authority competent under these rules to impose
on a Government servant any of the penalties
specified in rule 10."
10. Rule 10 of the Rules of 1966 provides for minor
penalties which states as under:
"10. Penalties.The following penalties may,
for good and sufficient reasons and as
hereinafter provided, be imposed on a
Government servant, namely:
Minor penalties:
(i) Censure;
(ii) Withholding of his promotion;
(ii) recovery from his pay of the whole or
part of any pecuniary loss caused by him to
the Government by negligence or breach of
order;
(iv) withholding of increments of pay or
stagnation allowance;"
11. Rule 12 of the Rules 1966 provides as under:
"12. Disciplinary authorities.(1) The
Government may impose any of the penalties
specified in rule 10 on any Government servant.
(2) Without prejudice to the provisions of sub
rule (1), but subject to the provisions of sub
rule (3), any of the penalties specified in
Rule 10 may be imposed on
(a) a member of State Civil Service by the
appointing authority or the authority specified
in the Schedule in this behalf or by any other
authority empowered in this behalf by a general
or special order of the Governor;
(b) a person appointed to a State Civil post by
the authority specified in this behalf by a
general or special order of the Governor, or by
the appointing authority or the authority
specified in the Schedule in this behalf.
(3) Notwithstanding anything contained in this
rule :
(a) no penalty specified in clauses (v) to (ix)
of Rule 10 shall be imposed by any authority
subordinate to the appointing authority:
(b) where a Government servant who is a member
of a service, is temporarily appointed to any
or post, the authority competent to impose on
such Government servant any of the penalties
specified in clauses (v) to (ix) of rule 10
shall not impose any such penalties unless it
has consulted such authority, not being an
authority subordinate to it, as would have been
competent under subrule (2) to impose on the
Government servant any of the said penalties
had he not been appointed to such other service
or post."
12. Thus, Rule 12 of the Rules of 1966 provides for
disciplinary authorities and subrule (1) of Rule 12
empowers the Government to impose any of the penalties
specified in rule 10 on any Government servant. However,
subrule (2) of Rule 12 provides that on a member of
State Civil service or a person appointed to a State
Civil post penalties specified in Rule 10 may be imposed
either by appointing authority or by any authority
specified in the Schedule or by any other authority
empowered in this behalf by a general or special order
of the Governor. Thus, the Governor can by a general or
special order empower any other authority to impose any
of the penalties specified in Rule 10 of the Rules of
1966.
13. The State Government in exercise the power under
subrule (2)(a) & b) of Rule 12 issued the notification
dated 4.8.2008 and empowered all Divisional
Commissioners to impose penalties specified in clause
(i) to (iv) of Rule 10 on Class II officers excluding
judicial and police services. Notification dated
4.8.2008 states as under:
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14. Thus, by virtue of abovestated notification dated
4.8.2008 the Divisional Commissioner has power and
jurisdiction to impose penalties specified in clause (i)
to (iv) of Rule 10 on Class II officers excluding
judicial and Department of Police in the State posted
within his jurisdiction and he would be disciplinary
authority in respect of Class II officers as mentioned
above within the meaning of Rule 9 (1) (a) of the Rules
of 1966 as he has been authorized by the competent
authority to impose any of penalties enumerated in Rule
10 (i) to (iv) of the Rules of 1966 and therefore, he is
empowered to place a Government servant under suspension
who is Class II officer posted within his jurisdiction
where a disciplinary proceeding initiated or
contemplated against him.
15. The Supreme Court in the matter of A.K.Jadhav v. State
of M.P. and others2 dealing with this Rule 9(1) of the
Madhya Pradesh Civil Services (Classification, Control &
Appeal) Rules, 1966 which has been adopted by the State
of Chhattisgarh w.e.f. 1.11.2000 has held that the
Divisional Commissioner having been empowered by
notification dated 8.8.1997 in respect of Class III
officer (Tahsildar) is justified in placing him under
suspension. Their Lordships pertinently observed as
under:
"4. Thus, it could be seen that the competent
authority to suspend an officer is the
appointing authority or any subordinate
authority on whom the power of disciplinary
authority has been conferred by the Governor by
general or special order. The Government
amended the Rules by notification dated 88
1977 which is published in the State Gazette on
7101977 empowering the subordinate officers
which reads as under:
"Class III (Ministerial): The column (3)
indicates the State Government or the
Commissioner of the Division in which the
delinquent official was posted during the
relevant period. The column (4) indicates
all powers except removal, dismissal and
reduction in rank."
16. Reverting to the facts of the present case in the
light of aforesaid statutory provision and principle of
2(1997) 9 SCC 240
law laid down by the Supreme Court in A.K.Jadhav
(supra), it is quite vivid that in the instant case, the
State Government has delegated the power to impose
penalties specified in clause (i) to (iv) of Rule 10 of
the Rules of 1966 i.e. minor penalties to the Divisional
Commissioner and as such, the Divisional Commissioner
would be disciplinary authority within the meaning of
Rule 2(d) read with Rule 9(1) of the Rules of 1966 and
he being disciplinary authority for Class II officer
which the petitioner was at the relevant point of time,
had power and jurisdiction to place him under suspension
by virtue of notification dated 4.8.2008 and has rightly
placed him under suspension in contemplation of
disciplinary proceeding, as such, no exception can be
taken by the petitioner on his suspension by the
Commissioner as the Commissioner being disciplinary
authority included in Rule 9(1) (a) of the Rules of 1966
was empowered to place a Government servant (Class II
gazetted officer) under suspension, where a disciplinary
proceeding against him is contemplated or is pending, as
such, in my considered opinion, respondent No.2
Commissioner is absolutely within its jurisdiction to
place the petitioner (Class II officer) under suspension
and it cannot be held that he has no power and
jurisdiction to place him under suspension. Argument
raised in this behalf deserves to be and is accordingly
rejected.
17. At this stage, learned counsel for the petitioner
would submit that the petitioner being member of
Scheduled Tribe, opportunity of hearing ought to have
been given before placing him under suspension in terms
of circulars dated 12.6.2008 and 27.11.2012. The
petitioner is at liberty to make a representation in
terms of the aforesaid circulars and on representation
being made, that will be considered by the competent
authority in accordance with law. However, the decision
cited by Mr.Patil in the matter of Anil Kumar Jain
(supra) is clearly distinguishable to the facts of the
present case.
18. The next question would be, whether respondent No.2
Commissioner is justified in changing his headquarter
from Mainpur to the office of District Women and Child
Development, Gariyaband ?
19. In order to place the petitioner under suspension, the
District Collector has made a proposal on 15.5.2016 to
place the petitioner under suspension. Accepting the
proposal of the Collector, the Divisional
Commissioner/respondent No.2 has passed an order of
suspension against the petitioner and at the same breath
directed for change of headquarter from Mainpur to the
office of Women and Child Development, Gariyaband.
20. As noticed hereinabove, the petitioner's appointing
authority is the State Government. By virtue of Rule 9
(1) of the Rules of 1966, the Divisional Commissioner
being disciplinary authority and power of suspension
having been delegated and as a disciplinary authority
under Rule 9(1)(a) he has placed the petitioner under
suspension.
21. Admittedly, respondent No.2 is not appointing
authority. It is the case where the petitioner has been
placed under suspension by disciplinary authority and at
the same breath he has been transferred by changing his
headquarter from Mainpur to Gariyaband as departmental
enquiry is contemplated against him.
22. Transfer in relation to service reduced to simple
terms means a change of place of employment within an
organization. It is an incidence of public service and
generally does not require the consent of the employee.
In most service rules, there are express provisions
relating to transfer. Though definitions may differ and
in many cases transfer is conceived in wider terms as a
movement to any other place or branch of the
organization, transfer essentially is to a similar post
in the same cadre. A government servant is liable to be
transferred to a similar post in the same cadre which is
a normal feature and incidence of government service and
no government servant can claim to remain in a
particular place or in a particular post unless, of
course, his appointment itself is to a specified non
transferable post. (See V. Jagannadha Rao and others v.
State of A.P. and others3).
23. Rule 218 to the Fundamental Rule governing Central
Government defines transfer in following terms:
"Transfer means the movement of a Government
servant from one headquarter/station in which he
is employed to another station either (a) to
take up a duty on a new post, (b) in consequence
of change in headquarter."
24. In the instant case, change in headquarter has been
directed by the disciplinary authority exercising the
power of suspension. In the considered opinion of this
Court, transfer along with suspension / change of
headquarter can be made only by appointing authority and
it cannot be directed to be made by disciplinary
authority. Disciplinary authority while making an order
of suspension can definitely direct to ensure fair
departmental enquiry by relieving the concerned employee
from obligation to remain in premises for entire duty
period, he can ask to report at a particular place in
3 (2001) 10 SCC 401
the office or his employment can be restricted in the
office or he can ask to go away after marking his
attendance, but there is no justification by directing
him to change his headquarter by way of transfer. Even
if he feels that his headquarter is to be changed, he
has to refer the matter to the appointing authority
which he is competent to transfer, but headquarter
cannot be changed without any justification that too by
disciplinary authority. Disciplinary authority should be
keep in mind that suspension and consequence fixation of
subsistence allowance has the effect of financial
implication and simultaneous change of headquarter adds
to the woes of the delinquent as he may not be allotted
government quarter at the new station and may have to
pay substantial allowance by way of rent. Even
otherwise, it would be advisable for the authority
competent to record reasons for bringing out clearly why
in addition to suspension change of headquarter is
necessary. Once the reasons are stated, the Court should
be able to better appreciate the executive action and
would be load to interfere with.
25. The Supreme Court in the matter of Ajay Kumar
Choudhary v. Union of India through its Secretary and
another4 has held that that the suspended person
4 (2015) 7 SCC 291
suffering the ignominy of insinuations, the scorn of
society and the derision of his department, has to
endure this excruciation even before he is formally
charged with some misdemeanour, indiscretion or offence.
26. In the considered opinion of this Court, change of
headquarter of the petitioner, in the instant case, that
too by disciplinary authority is totally arbitrary.
Firstly, disciplinary authority has no power to change
the headquarter of the concerned suspended Government
servant, he can only ensure the fair disciplinary
proceeding and in order to have fair disciplinary
proceeding, he can make alternative arrangement by
keeping the Government servant away from the office, if
any. At the best, if he feels that change of headquarter
is necessary, he has to refer the matter to the
appointing authority as the power of transfer is only
with appointing authority that too after assigning the
reasons as to why change of headquarter of the suspended
Government servant is necessary.
27. The Division Bench of the Madhya Pradesh High Court in
the matter of Hemant Kumar Vs. Managing Director K.S.S.
Sangh5 has clearly held that if the employee is duly
suspended and departmental enquiry is initiated, his
headquarter should not be changed.
5 1992(II) MPWN 299
28. As a fallout and consequence of the aforesaid
discussion, the impugned order of the Commissioner
placing the petitioner under suspension is in accordance
with law and is hereby affirmed, however, order changing
headquarter from Mainpur to Gariyaband being contrary to
law deserves to be and is hereby setaside.
29. The writ petition is partly allowed to the extent
indicated hereinabove.
Sd/
(Sanjay K. Agrawal)
Judge
B/
HIGH COURT OF CHHATTISGARH AT BILASPUR
Writ Petition (S) No.2062 of 2016
Petitioner Panchu Ram Thakur
Versus
Respondents State of Chhattisgarh and
others
(Headnote)
(English)
The Divisional Commissioner being delegated with the
powers of disciplinary authority under Rule 12(2) of the
Chhattisgarh Civil Services (Classification, Control and
Appeal) Rules, 1966 is competent to place Class II
Gazetted officer under suspension, but he cannot change
his headquarter.
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dh xbZ gS] og f}rh; Js.kh ds jktif=r vf/kdkjh dks fuyafcr djus esa l{ke gS fdUrq
og mldk eq[;ky; ugha cny ldrkA
