Vishal Kumar Chidar vs The State Of Madhya Pradesh
2021 Latest Caselaw 7071 MP

                                                                  1                               WP-21856-2021
                                        The High Court Of Madhya Pradesh
                                                 WP No. 21856 of 2021
                                         (VISHAL KUMAR CHIDAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                                Jabalpur, Dated : 08-11-2021
                                      Shri K.C.Ghildiyal, learned counsel for the petitioner.

                                      Shri   Vijay   Kumar     Shukla,    learned   Panel    Lawyer        for   the
                                respondent/State.

This writ petition is filed seeking quashing of the impugned order dated 24.9.2021 and also the order dated 29.9.2021 on the ground that petitioner

has been placed under suspension vide order dated 29.9.2021 passed by the Commandant of 7th Battalion, SAF, Bhopal on the dictates of the Director General of Police, who had directed him to place the petitioner under suspension vide order dated 24.9.2021 on registration of criminal case for the offences under Sections 420, 467, 468, 471, 120B, 201 of the Indian Penal Code, 1860 and Section 3Gha(1,2)/4 of the Madhya Pradesh Recognized Examination Act, 1937 and also under Section 13(1)(d) and Section 13(2) of Prevention of Corruption Act, 1988 in which case charge sheet was filed on 25.7.2018.

Learned counsel for the petitioner has placed reliance on the proviso below Rule 9(1)(b) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter shall be referred to as "MPCSCCA Rules, 1966") and submitted that suspension is warranted when Challan for a criminal offence involving corruption or other moral turpitude after sanction of prosecution by the Government against him. It is also submitted that there is no act of moral turpitude involved and, therefore, there was no need for the petitioner to have been placed under suspension.

In support of his contention, petitioner's counsel has placed reliance on the judgment of the Supreme Court in the case of Commissioner of Income Tax, Shimla versus Greenworld Corporation, Parwanoo reported in (2009) 7 SCC 69 and a reading from said judgment, it is submitted that since Signature Not Verified SAN the disciplinary authority placing a person under suspension is exercising a Digitally signed by AMIT JAIN Date: 2021.11.10 18:15:02 IST 2 WP-21856-2021 quasi judicial function, therefore, that authority has to pass an order and that order cannot be coloured or dictated by any other authority. Similarly, reliance is placed on the judgment of the Supreme Court in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Others versus Director General of Civil Aviation & Others reported in

(2011) 5 SCC 435 wherein it is held that if any decision is taken by a statutory authority at the behest or on suggestion of a person, who has no statutory role to play, the same would be patently illegal. Thus, placing reliance on the aforesaid judgments, it is submitted by learned counsel for the petitioner that since the order of suspension has been passed at the behest of Director General of Police, the order is vitiated and deserves to be set aside. Reliance is also placed on a Division Bench Order of this Court passed on 26.10.2021 in Writ Petition No.09371/2019 (Alok Gupta versus State of Madhya Pradesh) wherein respondents have been directed to not to terminate the services of petitioner(s) till next date (if not already terminated). Placing reliance on this order of the Division Bench, it is submitted by learned counsel for the petitioner that similar matters involving similar issues are already attracting attention of Division Bench, therefore, the impugned order of suspension may be set aside.

Shri Vijay Kumar Shukla, learned Panel Lawyer for the respondent/State in his turn submits that there is a provision of appeal against the order of suspension. It is also submitted that as per Annexure P/5 issued by the Directorate of Public Instructions and by the Chairman of Sheeghra Lekhan Mudralekhan Pariksha Parishad, it is evident that manipulations in answer books of 2947 examinees were found against whom criminal cases have been registered after investigation by the Special Task force constituted for the said purpose. It is further submitted that petitioner is one of them and the act of causing manipulations in the examination system by manipulating the answer books through various mechanism as have been briefly noted in

Signature Not Verified SAN Annexure P/5, it cannot be said that petitioner is not guilty of an act involving

Digitally signed by AMIT JAIN Date: 2021.11.10 18:15:02 IST 3 WP-21856-2021 moral turpitude.

After hearing learned counsel for the parties and going through the record, it is evident that a charge sheet has been filed against the petitioner under various provisions of law enumerated above. Rule 9(1) of the MPCS(CCA) Rules, 1966 provides that 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. Clause (b) of Rule 9(1) of the MPCS(CCA) Rules, 1966 provides for suspension where a case in respect of any criminal offence is under investigation, inquiry or trial. Proviso below Rule 9(1)(b) of the MPCS(CCA) Rules, 1966 provides for

compulsorily placing the Goverment servant under suspension when Challan for a cirminal offence involving corruption or other moral turpitude is filed.

Thus, first argument put forward by Shri K.C.Ghildiyal that the impugned order has been passed at the dictates of Director General of Police is not made out inasmuch as the Director General of Police being a statutory authority to the appointing authority/disciplinary authority is empowered to issue directions and even empowered to pass an order of suspension directly in terms of the provisions contained in Rule 9 of the MPCS(CCA) Rules, 1966. Secondly, it is evident from the impugned order dated 24.9.2021 that the Commandant was only informed that since a charge sheet had been filed under the provisions of Prevention of Corruption Act, 1988 as well as under other provisions of Indian Penal Code, 1860 and the Madhya Pradesh Recognized Examination Act, 1937, therefore, the provisions contained in Rule 9(1) of the MPCSCCA Rules, 1966 are to be invoked and information is to be sent.

It is evident from the language used in Rule 9(1)(b) and proviso below it of the MPCS(CCA) Rules, 1966 that it is mandatory for the authorities to place a Government servant under suspension against whom a criminal case is either being investigated or filed, therefore, reliance placed by the petitioner Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2021.11.10 18:15:02 IST 4 WP-21856-2021 on the judgment of the Supreme Court in the csae of Commissioner of Income Tax, Shimla versus Greenworld Corporation, Parwanoo (supra) is not applicable to the facts and circumstances of the present case inasmuch as once it is mandatory to place a Government servant under suspension upon filing of a charge sheet then there is no scope for exercise of any discretion, which could have been said to have been violated by issuance of reminder by the Director General of Police as contained in Annexure P/9 dated 24.9.2021.

Similarly, the law laid down in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Others versus Director General of Civil Aviation & Others (supra) is that the statutory authority cannot take a decision at the behest or on suggestion of a person, who has no statutory role to play and if action is taken at the behest of a person, who has no statutory role to play then the same would be patently illegal but in the present case, it cannot be said that the Director General of Police, who had issued communication dated 24.9.2021, will come within the definition of a person, who has no statutory role to play. Infact a plain and simple reading of Rule 9 of the MPCS(CCA) Rules, 1966 reveals that the Director General of Police, being a statutory authority to the appointing authority/disciplinary authority, has a definite statutory role in the matter, therefore, even the law laid down in the case of Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Others versus Director General of Civil Aviation & Others (supra) will not be applicable to the facts and circumstances of the present case.

The Supreme Court in the case of Union of India & Others versus Udai Narain reported in (1998) 5 SCC 535 has held that the expression "investigation, inquiry or trial" would include the stage of filing of charge sheet in the Court and would authorize imposing suspension at that stage since delinquent cannot be considered to be any better off after the charge sheet had been filed than his position during investigation of the case itself Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2021.11.10 18:15:02 IST 5 WP-21856-2021 and since it is mandatory to place a Government servant under suspension in terms of proviso below Rule 9(1)(b) of the MPCS(CCA) Rules, 1966 upon filing of a Challan for a criminal offence involving corruption or other moral turpitude, the impugned order cannot be said to have been passed without authority and communication dated 24.9.2021 is just a reminder by one statutory authority to another to act in accordance with law and nothing much can be read into it calling for interference into the impugned order.

Accordingly, this writ petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE

amit

Signature Not Verified SAN

Digitally signed by AMIT JAIN Date: 2021.11.10 18:15:02 IST