Madhya Pradesh High Court
Ashok Kumar Shrivastava vs The State Of M.P. on 9 June, 2021
Author: Atul Sreedharan
1 WP-3005-2020
The High Court Of Madhya Pradesh
WP-3005-2020
(ASHOK KUMAR SHRIVASTAVA Vs THE STATE OF M.P. AND OTHERS)
9
Jabalpur, Dated : 09-06-2021
Heard through Video Conferencing.
Shri Rahul Diwaker, learned counsel for the petitioner.
Shri Piyush Bhatnagar, learned PL for the respondent/State.
The present petition has been filed by the petitioner, who is aggrieved
by the order dated 06-01-2020 passed by the respondent No. 2 placing the
petitioner under suspension. The said order has been challenged by the
petitioner on the ground of lack of authority. In other words, learned counsel
for the petitioner contends that the impugned order has been passed by an
authority incompetent to pass it.
Learned counsel for the petitioner has drawn the attention of this court
to Annexure P/1, which is the order of appointment dated 04-10-2008, by
which the petitioner was appointed on the post of Executive Engineer, in
Sidhi Division of the Public Works Department. He was posted at the time of
his appointment in the Public Works Department, Sub-division Umaria.
Under the circumstances, there is no dispute that the petitioner is an employee
of the State Government, the Parent Department being the Public Works
Department.
Annexure P/2 is an order dated 23-01-2017, by which, the petitioner, in
addition to his duties as the office of the SDO, Public Works Department,
Division Umaria was given additional charge of supervising the electrical
works of the under construction buildings of the Municipal Council at
Chandia, Pali, Norazabad and Umaria. The said order was passed by the
Collector who was the Project Officer in the Department of District Urban
Development Authority. The said order is very clear that it is not an order of
posting or appointment of the petitioner to the Municipal Council, Chandia
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and the other three Municipal Councils. It very clearly reflects that the
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Date: 2021.06.11 11:18:54 IST
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petitioner, in addition to his duties as SDO of the Public Works Department
at Umaria was to supervise the electrical fittings of the buildings under
construction in the four Municipal Councils mentioned hereinabove.
Vide the impugned order dated 06-01-2020, the petitioner was placed
under suspension for an alleged defalcation of Rs. 24,46,727/- relating to
electrical and civil works being supervised by him in Municipal Council,
Chandia. The impugned order was passed by the Commissioner of Shahdol
Division and which, according to the petitioner, is an incompetent authority as
the petitioner was not serving on deputation under the Urban Administration
Department.
Learned counsel for the respondent/State has drawn the attention of
this Court to the reply filed by them with specific reference to paragraphs- 5
and 6. The State has relied upon Rule 20 and Rule 9 of the Civil Services (
Classification, Control and Appeal Rules), 1966 ( hereinafter referred to as
'Rules of 1966').
Learned counsel for the State has argued that the Commissioner of the
Urban Development Department could have legitimately passed the impugned
order in view of Rule 20. According to the learned counsel for the State,
Rule- 20 provides that where the services of a government servant are lent by
one department to another or to the Union Government or to any other State
Government or any authority sub-ordinate thereto or to a local or other
authority which the rule refers to as the "borrowing authority", the borrowing
authority shall have the powers of the appointing authority for the purpose of
placing the government servant under suspension. Learned counsel for the
State has also referred to Rule 9 of the Rules of 1966. Where Rule 9(1)
provides that a government servant may be placed under suspension by the
appointing authority or any authority to which, it is sub-ordinate or the
disciplinary authority or to any other authority empowered in that behalf by
the Governor by general or special orders.
Learned counsel for the State has also referred to the judgment of the
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Division Bench of this court in WA No. 727/2020 ( State of M.P. and others
Vs. Ramesh Gir -the lead case. ) Learned counsel for the State has impressed
upon this court that where the Rules are silent about the powers of
suspension, then the general principle of suspension will apply under the
ordinary law based upon master and servant relationship. He has further
argued that in such cases, the authority which has the power to appoint an
employee, has the implicit power to place him under interim suspension,
which can be on account of contemplated or pending departmental inquiry or
due to registration of the criminal case or for any other justifiable reasons.
Per contra, learned counsel for the petitioner has argued that the State
has misread the ambit and scope of application of Rule 20 in the Rules of
1966. Drawing the attention of this court once again to the said Rules,
learned counsel for the petitioner has argued that Rule-20 would only be
applicable where the services of a government servant are lent. In other words
it is contended, that there has to be an order of deputation by which, the
government servant moves from his parent department ( the lending
department to the borrowing department/authority to the department
borrowing his services). In order to strengthen his argument, he has referred
to Rule 20 sub-rule (1), which clearly stipulates that the "borrowing authority"
shall have the powers of the appointing authority for the purposes of placing
such government servant under suspension. In other words, learned counsel
for the petitioner has argued that a strong implication of Rule- 20 is that there
has to be a lending by the lending authority of the services of the government
servant to the borrowing department.
Learned counsel for the petitioner has also submitted that the law
relating to deputation is very clear and that the same cannot not happen
without the consent of the officer, who is sought to be sent on deputation
from the parent department to any other. In that background, learned counsel
for the petitioner submits that the order dated 23-01-2017 (Annexure P/2)
does not mention that the consent of the petitioner was ever taken, while
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giving him charge of four Municipal Councils for supervising/overseeing the
electrical work of the buildings being constructed there. In other
words,learned counsel for the petitioner states that the order dated 23-01-
2017, cannot be considered as an order posting him to Municipal Council,
Chandia but, has merely given him additional charge of the said Municipal
Council and the Public Works Department continued to remain his parent
Department.
He has thereafter, referred to the order dated 06-01-2020, which is the
impugned order and has assailed the wordings in the said order, which
reflects that 'he was posted to Municipal Council, Chandia'. There is no such
order of posting and neither has the State Government averred that such an
order of posting exits. Learned counsel for the petitioner thereafter refers to
the judgment passed by the Division Bench of this Court in WA No.
727/2020 with specific reference to paragraph-17, in order to show as to why,
the said judgment is not applicable in the facts circumstances of the present
case.
In paragraph-17, the Division Bench of this Court held that applying the
general principles of master-servant relationship, the authority, who has power
to appoint an employee, has the implicit power to place the employee under
interim suspension, even if the rules are silent about such power of the
appointing authority. However, the petitioner in the present case was never
"lent" or sent on deputation.
Having heard the learned counsel for the parties, this Court is in
agreement with the submissions putforth by the learned counsel for the
petitioner. This court is of the opinion that Rule-20 of the Rules, 1966 would
only apply, where the services of the government servant is lent by one
department to another. The documents putforth by both the sides, do not
reflect that there was ever any kind of lending of the services of the petitioner
by the Public Works Department to the Municipal Council, Chandia. On the
contrary, Annexure P/2, clearly reflects that it was merely an additional charge
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given to the petitioner and the same was not a posting to the Municipal
Council, Chandia. While giving additional charge, the consent of the
employee is not necessary which would be required if his services were being
lent.
Likewise,Section 9 of the Rules of 1966, would also not be applicable
in the facts circumstances of the present case, as the impugned order has not
been passed either by the appointing authority, which was the Engineer-in-
Chief of the Public Works Department. An authority, who is superior to the
appointing authority, would have been in a position to pass the impugned
order. However, the impugned order has been passed by the Commissioner
of Shahdol Division, who is not the superior authority of the Engineer-in-
Chief of the Public Works Department, renders the impugned order unlawful
as the same has been passed by an incompetent authority.
Under the circumstances, the petition succeeds and the impugned
order dated 06-01-2020 is set aside. However, the appropriate authority,
who may be empowered to pass the order of suspension has the liberty to
consider and pass an order of suspension of the petitioner, if need be.
With the above, the petition is finally disposed of.
ATUL SREEDHARAN)
JUDGE
PG
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Digitally signed by PARMESHWAR GOPE
Date: 2021.06.11 11:18:54 IST
