Dr. Tara Chand Arya vs The State Of Madhya Pradesh
2022 Latest Caselaw 8533 MP

                            1

    IN THE HIGH COURT OF MADHYA PRADESH
                 AT GWALIOR
                        BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 28th OF JUNE, 2022

             WRIT PETITION No. 14171 of 2022

 Between:-

 DR. TARA CHAND ARYA S/O LATE
 BL ARYA, AGED - 53 YEARS, OCC.-
 GOVERNMENT SERVANT, R/O-
 NAMO      NAGAR,      DISTRICT
 SHIVPURI (M.P.)
                                            .....PETITIONER

 (BY SHRI YOGESH CHATURVEDI-ADVOCATE)

 AND

 1.  STATE OF M.P. THROUGH
 PRINCIPAL SECRETARY, AAYUSH
 DEPARTMENT, VALLABH BHAWAN
 BHOPAL (MADHYA PRADESH)
 2.  DEPUTY        SECRETARY,
 AAYUSH DEPARTMENT, VALLABH
 BHAWAN,    BHOPAL   (MADHYA
 PRADESH)
 3.  THECOMMISSIONER/DIREC-
 -TOR AAYUSH MADHYA PRADESH,
 D-WING,   SATPUDA   BHAWAN,
 BHOPAL (MADHYA PRADESH)

                                        .....RESPONDENTS

 (SHRI NEELESH TOMAR-GOVERNMENT ADVOCATE FOR STATE)
                                            2

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       This petition coming on for hearing this day, the Court passed the

following:

                                       ORDER

This petition under Article 226 of the Constitution of India has been against the order dated 12.05.2022 passed by respondent No.2- Deputy Secretary, Aayush Department, Vallabh Bhawan Bhopal, thereby placing the petitioner under suspension.

2- It is submitted by counsel for petitioner that the order under challenge is a product of malafide and arbitrary action on the part of the respondents. The petitioner was holding the charge of the post of District Aayush Officer, Shivpuri. However, by order dated 02.09.2021, Dr. K.N. Mewafarosh was posted in place of petitioner. Accordingly, petitioner filed W.P. No.17870/2021, thereby challenging the posting of Dr. K.N.Mewafarosh in place of the petitioner and by order dated 15.09.2021, the effect and operation of impugned order dated 02.09.2021 was stayed. Thereafter, an application was filed by the respondents for vacating the interim relief, which was rejected by order dated 26.10.2021. Inspite of that, the petitioner was not handed over the charge of the post of District Aayush Officer and accordingly filed a contempt petition and only after receiving the notices of contempt, the charge of the post of District Aayush Officer, Shivpuri was handed over to the petitioner on 22.10.2021. It is submitted that however the respondents were out and out to hand over the charge of the post of District Aayush Officer to Dr. K.N. Mewafarosh. On 29.12.2021, a letter was issued that

a meeting has been organized under the Chairmanship of Minister for State, Aayush (Independent Charge), Water Resources, State of Madhya Pradesh. The meeting was to take place on 05.01.2022 and accordingly all the District Aayush Officers were directed to submit the information as mentioned in letter dated 29.12.2021. In compliance of the said order, the petitioner submitted the information in advance and also attended the meeting alongwith the information. However, on 20.01.2022, the petitioner was served with a show cause notice to the effect that the petitioner has not submitted the point-wise information in the meeting, and thus, it was observed that the act of petitioner is indicative of negligence, and accordingly, a notice was issued to show cause as to why a departmental inquiry may not be conducted against him as per the provisions of Rule 3 (1)(i)(ii)(iii) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965.

3- The petitioner submitted his reply dated 07.02.2022 clarifying his stand. However, by the impugned order dated 12.05.2022, it has been mentioned that the reply submitted by the petitioner is not satisfactory and accordingly he has been placed under suspension. 4- It is submitted by counsel for petitioner that the ground on which the petitioner has been placed under suspension does not find place in show cause notice dated 20.01.2022. The malafides of the respondents are clear from the fact that after placing the petitioner under suspension, the charge of the post of the District Aayush Officer has been once again handed over to Dr. K.N. Mewafarosh which is evident from order dated 17.05.2022. The petitioner has also relied upon the judgment passed by the Supreme Court in the case of State of Orissa Vs. Bimal Kumar

Mohanty reported in 1994 (4) SCC 126.

5- It is not out of place to mention here that in the beginning of arguments, the petitioner was told that petitioner has an efficacious remedy of filing a departmental appeal and this court would not like to enter into the factual controversies which are being projected by the petitioner. However, the counsel for the petitioner insisted that since the suspension order of petitioner is a product of malafide and arbitrariness, therefore, he should be heard on merits. 6- Accordingly, the submissions made by the counsel for petitioner are being considered on merits:

7- Whether suspension order is a product of arbitrariness as well as malafide intentions of the authorities.

It is well established principle of law that where malafides are alleged then the person exercising the power against whom allegations have been made must be made a party to the writ petition. In the present case, no officer in his personal capacity has been impleaded as respondent.

8- Even otherwise, the petitioner has alleged that the order of suspension has been passed with a solitary intention to bypass the interim order passed by this court in W.P. No.17870/2021 by which the order handing over the charge to Dr.K.N. Mewafarosh was stayed.

So far as the submission made by counsel for petitioner that the impugned order has been passed in order to nullify or bypass the order of High Court is concerned, the said submission cannot be accepted.

In reply dated 07.02.2022, the petitioner himself has submitted that the information which he had submitted in the meeting chaired by

Minister of State, Aayush (Independent Charge), Water Resources, State of Madhya Pradesh, was not the correct one. He admitted that the certain informations were false, however he tried to shift his responsibility to the shoulders of one Sushil Kumar Dixit, Assistant Grade II and Shivshankar Parashar. The reply dated 07.02.2022 reads as under :

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Once the petitioner has admitted that the information which was submitted by him in the meeting chaired by Minister of State, Aayush Department (Independent Charge), Water Resources, State of Madhya Pradesh was not correct, then the self imaginative impression that the order of suspension has been passed in order to nullify the order of th High Court falls on the ground.

9- The Supreme Court in the case Bimal Kumar Mohanty (Supra) has held that the settled law is that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The

Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. It has been further held that each case must be considered depending on the nature of allegations, gravity of situation and indelible impact it creates on the services for continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation.

It has also been held that it would be another thing if the action is actuated by malafides, arbitrary or for ulterior purpose. 10- In the present case, this court has already found that the petitioner has miserably failed to substantiate his allegations of malafides because he himself has admitted that the information which was submitted by him in a meeting chaired by Minister of State, Aayush (Independent Charge), Water Resources, State of Madhya Pradesh was not correct. The meetings by the Ministers are held regarding implementation of schemes, projects, law etc so that if required, certain directions can be issued. If any mis-

statement is made by an Officer, then it cannot be said that it is a mistake not of serious nature.

11- Be that whatever it may.

Whether the suspension order has been passed on the allegations disclosed in the show cause notice dated 20.01.2022 or not?

12- By referring to the suspension order, it is submitted by counsel for the petitioner that suspension order has been passed on the allegation that the petitioner was not having the point-wise information, and thus, such an act is indicative of his negligence and carelessness. As already pointed out, the petitioner himself has admitted that certain information given by him in the meeting was false. Submitting a false information is a clear indicative of the fact that the person was not having the correct issue- wise information. Further more, before passing the suspension order, the only requirement is whether the departmental inquiry is in progress or is in contemplation or not.

13- No opportunity of hearing is required to be given to the delinquent officer before passing a suspension order. Furthermore, this Court has also come to a conclusion that the ground on which the order of suspension has been passed is not substantially different from the allegations which have been alleged against him in the show cause notice.

14- At the cost of repetition, it is once again pointed out that the petitioner himself has admitted that he had submitted false information in the meeting chaired by the Minister of State, Aayush (Independent Charge), Water Resources, State of Madhya Pradesh

15- Although, this Court was not inclined to decide the defences raised by the petitioner and was inclined to give an opportunity to the petitioner to approach the departmental authority so that his grievances can be looked into by the authorities but this detailed order has been passed merely on the insistence by counsel for the petitioner. 16- Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Aman AMAN TIWARI 2022.07.01 11:45:39 +05'30'