Madhya Pradesh High Court
Shivsharan Singh Narwariya vs The State Of Madhya Pradesh on 20 December, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 20 th OF DECEMBER, 2023
WRIT PETITION No. 30562 of 2023
BETWEEN:-
SHIVSHARAN SINGH NARWARIYA S/O SHRI BABU
SINGH, AGED ABOUT 41 YEARS, OCCUPATION:
SERVICE, RESIDENT OF VILLAGE AND POST NUNHAAD,
TEHSIL GORMI DISTRICT BHIND (MADHYA PRADESH)
.....PETITIONER
(BY MS. SMRATI SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, GOVT. OF MADHYA
PRADESH, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. C O L L E C T O R DISTRICT BHIND (MADHYA
PRADESH)
3. SUB-DIVISIONAL OFFICER (REVENUE) GOHAD,
DISTRICT BHIND (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHIRAJ QURESHI - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition, under Article 226/227 of the Constitution of India,
has been directed against order dated 22.09.2023 passed by Respondent No.3;
whereby, while invoking the provisions of Rule 9 of the Madhya Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1966, the petitioner has
been placed under suspension.
2. The aforesaid order of suspension has been assailed on various
grounds which touch on merits of the matter. No ground with regard to fact as
to whether the authority who has issued the suspension order was incompetent
or was passed at the instance/instigation of some higher official, has been raised
or could be pointed out by counsel for the petitioner.
3. Counsel for the petitioner while arguing the matter on merits of the
matter had placed reliance in the matter of K. Sukhedra Reddy vs. State of
A.P. & Another reported in (1999) 6 SCC 257 and had contended that the
authorities cannot be discerning and cannot be permitted to resort to the
selective suspension and also cannot be permitted to place an officer under
suspension just to exhibit and feign that action against the officers.
4. Further reliance has been placed in the matter of Dr. Rashmi Rekha
Mishra vs. State of Madhya Pradesh and Other passed in Writ Petition
No.6957 of 2023 dated 11.10.2023, wherein this Court in the facts and
circumstances of the case has held that alternate efficacious remedy of appeal
would not be a bar in directly approaching this Court under writ jurisdiction, as
the suspension order therein was arbitrary and hits the right of an individual as
envisaged under Article 14 of the Constitution of India.
5. Per contra, Shri Shiraj Qureshi - Government Advocate appearing on
advance copy submits that the petitioner had not narrated the correct facts in
the petition and had mentioned therein that all the remedies which are available
to him have already been availed, whereas the legal position so far as the
availability of alternate remedy available to the petitioner is concerned, it is very
well settled that against the order of suspension primarily, an appeal lie as per
Rule 23 of the Rules of 1966 and since without availing the aforesaid remedy,
the present petitioner has directly approached this Court by way of present
petition, which in absence of malafides or incompetent of the person issuing the
said suspension order cannot be said to be maintainable.
6. It was further submitted that even in para 3 of the petition, it has been
mentioned that the petitioner has availed all the remedies available to him.
7. On the basis of the above arugments, it was prayed that the present
being devoid of any substance deserves to be dismissed.
8. After hearing rival contentions of the parties this Court before
addressing upon the availablity of writ jurisdiction deems it fit to discuss the
judgment which has been cited by counsel for the petitioner. So far as the
judgment of K. Sukhedra Reddy vs. State of A.P. (supra) is concerned, the
facts therein were that the appellant therein who was a member of the Indian
Administrative Service, was placed under suspension invoking the provisions
of Section 3(1) of All India Services (Discipline & Appeal) Rules, 1969, in
contemplation of disciplinary proceedings which were proposed to be initiated
against him. The said order was passed on the letter of the Additional Director
General of Police, C.I.D., Andhra Pradesh, addressed to the Chief Secretary to
Government of Andhra Pradesh, in which it was suggested that the Government
may consider taking suitable action against the appellant therein and if
considered desirable, he may be placed under suspension in public interest
pending inquiry into the matter. Thereafter, a criminal case was registered
against the appellant therein vide Crime No.326 of 1996 under Sections 468,
420, 406 and 120-B of the IPC and in the light of Rule 3 of the Rules of 1969
wherein it is provided that on registration of a crime, a member of the All India
Services may be placed under suspension, the appellant therein was placed
under suspension on 06.02.1997 by an order passed by the Chief Secretary to
the Government of Andhra Pradesh and that order was subsequently replaced
by another order passed on 12.03.1997, in which it was clearly spelt out that
disciplinary proceedings against the appellant therein were not at all
contemplated, but since he was involved in the criminal case, he was being
placed under suspension. In that context, the Honb'le Supreme Court held that
the officer of the rank of the appellant therein, against whom it has now come
out that the disciplinary proceedings are not contemplated, cannot be kept
under suspension for an indefinite period, particularly in a situation where many
more senior Officers may ultimately be found involved, but the appellant therein
alone has been placed under suspension and the Government, therefore, cannot
be permitted to resort to the selective suspension. Further, it has been observed
by the Hon'ble Supreme Court that it cannot be permitted to place an Officer
under suspension just to exhibit and feign that action against the officers,
irrespective of their high status in the service hierarchy, would be taken.
9. The facts situation of the present matter are all together different, as the
disciplinary proceedings against the petitioner have already been initiated and
from the order impugned, it is not reflected that it was at the instance of any
higher authority; thus, the judgment is not applicable to the facts of the present
matter.
10. So far as the judgment cited by counsel for the petitioner in the matter
o f Dr. Rashmi Rekha Mishra vs. State of Madhya Pradesh (supra) is
concerned, the case of the petitioner therein was that suspension order doesn't
contain any reason for placing the petitioner under suspension and it was
passed in a routine manner without application of mind, subsequently while
issuing the charge-sheet, certain subsequent events were taken into account
which were not available at the time of issuance of suspension order and
therefore, suspension order was liable to be interfered with.
11. After discussing the aforesaid facts, this Court has held that the
appellate remedy available to the petitioner under the Rules of 1966 cannot be
treated as an efficacious and meaningful remedy and it was found that the order
of suspension was arbitrary which hits the Article 14 of the Constitution of
India and could itself be a reason to interfere by the Court without relegating the
employee to avail the remedy of appeal.
12. The facts of the aforesaid case are also altogether different, as
challenge to the suspension order therein was on different grounds, no grounds
akin to the grounds which have been taken by the petitioner in the aforesaid
judgment, has been raised by the counsel for the petitioner in the present
petition or has been taken, thus the said judgment is also not applicable to the
present facts of the case.
13. Since the entire grounds which have been raised by the petitioner are
on merits and non-availability of alternate efficacious remedy is assailed on the
ground of discrimination made against him as he alone was made the scapegoat
and others were left out which according to this Court cannot be a ground for
by-passing the alternate remedy of appeal provided under Rule 23 of the Rules
1966. Further as neither any malafide has been shown to any of the authorities
nor the authority who was passed the order of suspension was argued to be
incompetent or the said order was at the instance of some higher Official, this
Court doesn't find any reason to interfere with the order impugned herein.
14. Accordingly, the present petition being devoid any substance is
hereb y dismissed. However, the petitioner is at liberty to approach the
Appellate Authority under Rule 23 of the Rules of 1966 for necessary relief. If
the said appeal is preferred within seven days from today, the Appellate
Authority without going to the aspect of limitation, shall decide the appeal on
merits.
(MILIND RAMESH PHADKE)
JUDGE
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