1. Shri M.S. Murthy, a senior member of the Madhya Pradesh cadre of the Indian Administrative Service has filed this application challenging the legality, propriety and correctness of the order dated 24th April, 1999 of the second respondent, the State of Madhya Pradesh placing him under suspension in exercise of powers conferred under Section 3 of the All India Services (Discipline and Appeal) Rules, 1969 (Annexure-A1).
2. The historical background in which the impugned order was issued as alleged by the applicant is thus: During the period between September, 1997 and October, 1998 the applicant was holding the charge of Commissioner cum Director, State Lotteries and Small Savings. The State of Madhya Pradesh had by an Act known as Madhya Pradesh Lottery Pratibhandh Adhinyam banning all types of Lotteries in the State. The validity of the Act was challenged before the Supreme Court and the Court in State of Haryana v. Suman Enterprises, 1994 (4) SCC 217 inter alia directed that representation from the Organiser States of the Lotteries would be considered by the State Government of Madhya Pradesh and a speaking order would be given as to whether the schemes of the States concerned would qualify for being reckoned as State Lotteries and if it comes to that conclusion, accept and notify them in respect of those Lotteries are outside the ban contemplated by the Madhya Pradesh Lottery Prohibition Act, 1993 within 4 weeks from the date of submission of the representation. The Supreme Court had also recorded the submission of the standing Counsel for the State of Madhya Pradesh that the Director of State Lotteries in the State would be the authority who would examine the representations. The State Government had in its letter dated 9.8.84 made it clear in view of the Supreme Court direction a further vesting of power by the Government was not required for the Director of Lotteries to examine and decide the representation. While so the State of Madhya Pradesh on 23.10.1998 passed an order withdrawing the power of deciding the representation for acceptance of State Lotteries from the Director and conferring the same on the State Government. However not knowing that such an order had been passed, the applicant on 24.10.1998 disposed of a representation of the Arunachal Pradesh State Government declaring Arunachai Pradesh Lottery as a State Lottery qualifying the conditions prescribed by the Supreme Court (Annexure-A 6). The Minister of Finance displeased with the action of the applicant by order (Annexure-A9) dated 28.10.98 transferred the applicant as Commissioner of Backward Classes, M.P. Soon after the applicant's transfer his successor in office characterised the recruitments made during the tenure of the applicant as irregular. The director of State Lotteries by a telegram stopped the payment of salaries to the appointees. This was challenged by the affected appointees before the M.P. State Administrative Tribunal in O.A. No. 66/98. The Tribunal passed an order on 8.2.1999 (A 16) holding that the stoppage of pay of appointees was unjustified but observi ng that the Government might enquire into the irregularities in the appointment made in contravention of provisions of Rules. On 12.3.99 the applicant received a letter from the State Government asking him to offer his comments about the alleged irregularities in the appointments (A 10). The applicant submitted his reply stating that the appointments were done as per rules following proper procedure making selection by a duly constituted Board and that he had not committed any irregularity (All). While so, the order of the State Administrative Tribunal in O.A. 66 of 1998 was challenged by the State Government before the High Court of Madhya Pradesh in Writ Petition No.1779 of 1999. The writ petition came up for hearing on 19.4.99 and was adjourned to 22.4.99. It was between these two dates that the impugned order of placing the applicant under suspension was issued by the first respondent on 20.4.1999. The reason stated in the order of suspension is that an enquiry against him is under contemplation as (ii) Passed an order for accepting Arunachal Pradesh State Lottery as State organised Lottery not in consonance with the guidelines prescribed by Hbn'ble Supreme Court.
3. The applicant has in the application explained in details how correctly and properly the appointments were made and the order Annexure A6 was passed by him strictly in conformity with the guide lines contained in the judgment of the Supreme Court. It is alleged by the applicant that the impugned order of suspension was issued without any application of mind by the second respondent. The applicant strongly believes that some communication regarding proceedings in Writ Petition No. 1779/99 was sent to the Finance Department on 19.4.1999 on the basis of which the Finance Department submitted a note to the Chief Minister for the suspension of the applicant and obtained the Chief Minister's approval for his suspension. The applicant states that this action is contrary to the rules of business framed by the Governor under Article 166 of the Constitution. The applicant states that as the applicant is a senior member of the Indian Administrative Service, any proposal for his suspension or taking disciplinary action agaisnt him should be placed before the Chief Minister by the Secretary of the General Administration Department after obtaining the orders of the Minister, though the Chief Secretary according to Chapter IV containing instruction issued under Rule 10 of the Business Rules in regard to co-ordination cases. Since the applicant was not on the date of suspension working in the Finance Department but in the General Administration Department, the General Administration Department has been deprieved of an opportunity of objectively considering the matter with proper application of mind and therefore the impugned action, taken against the rules with undue haste is vitiated for non-application of mind and infraction of binding instructions, alleged the applicant.
4. With the allegations as above, the applicant has filed this action praying that the impugned order of suspension dated 20.4.99 may be quashed, set aside and revoked.
5. When the application came up for hearing on admission, Mr. R.Shrivastava, the learned Counsel appeared on behalf of the applicant and Mr. R.S. Jha, Deputy, Advocate General, appeared for the State of Madhya Pradesh, i.e. Respondent No. 2. We listened carefully and at length the persuasive argument of Mr. Shrivastva, the learned Counsel of the applicant. The application and the annexures appended thereto were also carefully perused. We have also heard the learned Deputy Advocate General.
6. Mr. Shrivastava opened his argument stressing the point that the reason so staled in the order of suspension for the contemplation of discipliary proceedings do not warrant any action at all and therefore palcing the applicant on that gorund is unjustified. Regarding the irregularities in the appointment, the Counsel states that there is nothing which would indicate that the applicant had committed any irregularities and that the matter is pending before the High Court and therefore, there is no reason and it is improper to take any action in that matter at this stage. Regarding the order Annexure A6 passed by the respondent on 24.10.98, the learned Counsel argued that the same was passed on that date as the applicant was not informed and therefore was unaware of the order dated 23.10.98 passed by the State Government withdrawing the authority of the Director of State Lotteries and therefore on this score also there was no misconduct committed by him justifying any disciplinary action. The learned Deputy Advocate General argued that in the order of the State Administrative Tribunal (Annexure Al 6) there is an observation that the Govrnment would be at full liberty to make an enquiry into the irregularities etc. in the appointment and take action against those who are responsible for the irregularities, that in the writ petition, thequashing of the stoppage of pay alone is challenged and therefore it cannot be said that it is either unnecessary or improper to initiate action against the applicant. He further states that on 23rd October 1998 itself the applicant was telephonically informed of the order and that it was with the knowledge that the power had been withdrawn that the applicant issued Annexure A6 order. The learned Deputy Advocate General stales that the contemplation of disciplinary proceedings agianst the applicant is therefore well-justified. We restrain ourselves from going into such details as to whether the action taken by the applicant in the mater of appointment was proper or not or whether the applicant can be found fault with for passing Annexure A6 order, because any observation made on any of those aspects may at some point of time act prejudicial to either one or the other side. Suffice to say that in the circumstances emerging from the materials placed on record, we are not inclined to accept the argument of the learned Counsel of the applicant that a disciplinary proceedings at this stage, cannot be under the contemplation of the second respondent.
7. Mr. Shrivastava next argued that suspension of a member of the Service is not automatic with the contemplation of the disciplinary proceedings against him, but can be resorted to only after a decision is taken to initiate proceedings and that as there is nothing to indicate any such decision has been taken the impugned order has to be struck down. In support of this point the learned Counsel referred us to the observations in the judgment of the Hon'ble Supreme Court in State of Orissa v. Bimal Kumar Mohanty, "13. It is thus settled law that normally when an appointing authority or the disciplinary authroity 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 investigator 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 emplyee could get away even pending inquiry without any impediment or to prevent an opportunity to the deliquent 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. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge." If an order of suspension was issued just because an enquiry against an officer was either pending or under contemplation without application of mind as to whether it was necessary or desirable to place the officer under suspension, it cannot bejustified. The rules also provide for a consideration. The relevant part of Rule 3 of the All India Services (Discipline and Appeal) Rules, 1946, which is applicable to this case read thus:-- "3. Suspension-(1) If, having regard to the cirucmstances in any case and where articles of charges have been drawn up, the nature of the charges, the Government of a State or the Central Government, as the case may be, is satisfied that it is necessary or desirable to place under suspension a member of the Service, against whom disciplinary proceedings are contemplated or are pending, that Governemnt may-- (a) if the member of the Service is serving under that Govenrment, pass an order placing him under suspension, or (b) if the member of the Service is serving under another Government, request that Government to place him, under suspension, pending the conclusion of the disciplinary proceedings and the passing of the final order in the case....." kad Mh- 2@203@98@1@6] pwafd Jh ,e-,l-ewfrZ] Hkk0 iz0 ls0 e0 iz0 1972] orZeku esa vk;qDr] fiNM+k oxZ dY;k.k] Hkksiky ds fo:) muds vk;qDr lg lapkyd] vYi cpr ,oa jkT; ykVjht] e0 iz0 ds dk;Zdky esa 1 dfri; fu;qfDr;ksa esa xEHkhj vfu;ferrk,a djus rFkk 2 loksZPp U;k;ky; }kjk fu/kkZfjr ekxZn'khZ fl)kUrksa dk ikyu fd, fcuk v:.kkpy jkT; ykWVjh dks vfu;fer :i ls jkT;&lapkfyr ykWVjh ekU; djus] ds vkjksiksa ds laca/k esa vuq'kklukRed dk;ZokbZ laLFkkfir djuk fopkjk/khu (contemplated) gSA vkSj pwafd izdj.k dh ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, jkT; 'kklu dk lek/kku gks x;k gS fd mDr Jh ewfrZ dks fuyfEcr djuk vko';d ,oa okaNuh; gSA vr% vf[ky Hkkjrh; lsok vuq'kklu rFkk vihy fu;e] 1969] ds fu;e 31 }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq, jkT; 'kklu ,rn~}kjk mDr Jh ,e0 ,l0 ewfrZ] Hkk0 iz0 ls0 e0iz0 1972] vk;qDr] fiNM+k oxZ dY;k.k] Hkksiky] dks rRdky izHkko ls fuyafcr djrk gSA Jh ewfrZ ds fo:) vkjksi i=kfn mi;qZDr fu;e 3+1 ds f}rh; ijUrqd esa mfYyf[kr vof/k es tkjh dj fn, tk,axsA fuyEcu vof/k esa Jh ewfrZ dk eq[;ky; Hkksiky jgsxk ,oa os 'kklu dh iwokZuqefr ds fcuk eq[;ky; ugha NksM+saxsA fuyEcu vof/k esa Jh ewfrZ dks mDr fu;eksa ds fu;e 4 ds izko/kkuksa ds vuqlkj fuokZg HkRrk ns; gksxk ,oa bldk Hkqxrku mUgsa lapkyuky;] fiNM+k oxZ dY;k.k] Hkksiky }kjk fd;k tk,xkA It is seen from the impugned order that the first respondent has considered the circumstances of the case, (as this is a case where charge has not been drawn up) and decided that it is necessary and desirable to place the applicant under suspension. Therefore it cannot be seriously contended that the order impugned is an automatic order of suspension without any application of mind at all. The order passed by the applicant (A6), the alleged irregularities in appointment etc. are materials which the second respondent had in its possession. The letter Annexure A10 of the second respondent and the reply Annexure A-11 regarding the alleged irregularities and the observation of the State Administrative Tribunal in Annexure A16 are also relevant materials. If the second respondent on a consideration of the circumstances of the case with reference to the materials available has taken a decision to place the applicant under suspension, we are of the consdiered view that judicial intervention, in such a case is not justified or warranted. The scope of judicial review of administrative action extends only to see whether the action has been taken bonafide considering the relevant facts and circumstances. The sufficiency or insufficiency of the materials which led to the decision is outside the scope of judicial review in such matters. We, therefore, do not find any merit in the above argument also.
8. The last limb of the argument of Mr. Shrivastava, the learned Counsel of the applicant is that the impugned order is vitiated as the approval of the Chief Minister for a note initiated by the Finance Department which was not the department in which the applicant was posted was obtained without being routed through the Department of General Administration where he stood posted as such an action is opposed to the provisions of Part IV Directions issued under Rule 10 of the Business Rules in regard to Co-ordination Cases which provide that disciplinary cases affecting officers of the All India Services should be submitted to the Chief Minister by the Secretary of the, Department concerned after approval by the Minister in charge but before the issue of the order. The learned Counsel referred us to a decision of the Madhya Pradesh State Administrative Tribunal in O.A. 2212 of 1998 Dr.
P.D. Agrawal v. State of M. P. and Ors., in which a view was expressed that if orders are to be made by the Chief Minister in Co-ordination, then the order should be made according to the rules and instructions regarding co-ordination and mere orders of the Chief Minister would not suffice. The above decision has no application in the case on hand. For one thing Rule 3 of the All India Services (Discipline and Appeal) Rules do not contemplate any order in co-ordination. Secondly the Rules of Business framed under Article 166 are meant only to assist convenient transaction of Government business which are only in the nature of guide lines, which are directory in nature and not mandatory.
The non-observance of such rules of business would not violate an action if taken otherwise bonafide and in accordance with law. We arc supported in taking this view by the ruling of the Bombay High Court in Chandrakant Sakharam v. State of Maharashtra and Ors., AIR 1977 Bombay 193. Therefore the argument based on non-observance of the instructions regarding Rules of Business also has no force.
9. From the materials placed before us and from the submissions made by the Counsel, we are satisfied that the Chief Minister has approved the suspension of the applicnat. We have no reason to believe that the Chief Minister of a State would approve suspension of a member of the Indian Administrative Service without being satisfied that it was necessary and desirable to place him under suspension. The applicant also has no case that the Chief Minister has any reaosn to take a hasty decision in his case. As the materials necessary for consideration as stated supra were available with the second respondent, we have no doubt of the fact that the competent authority took the decision to suspend the applicant having regard to the circumstances of the case.
We find no reason for interference.
10. The order of suspension under Rule 3 of the All India Services (Discipline and Appeal) Rules is an applicable order under Rule 16 of the same Rule. The applicant should have exhausted that remedy available to him before approaching this Tribunal. The reason stated in the application for not doing so is that the applicanl needs a stay.
That cannot be considered as an extra ordinary circumstance for admitting the application against the General Rules contained in Section 20 of the Administrative Tribunals Act. Learned Counsel referred us to Santosh Kumar Mohanty v. Union of India and Anr., reported in 1990 (13) ATC 517, where Cuttack Bench of the Central Administrative Tribunal had held that the bar contained in Section 20 of the Administrative Tribunals Act in regard to admission of application before exhausting departmental remedy is not an absolute bar. We agree with that view which is inconsonance with Section 20.
However, in the case under citation the application was entertained and relief granted as the applicant in that case was prevented from appearing in an examination for advancement of his career. There was thus an extra-ordinary situation which is lacking in this case.
11. In the result in the light of what is stated above, we dismiss the application in limine. We place on record our appreciation of the able assistance rendered by Mr. Shrivastava, the learned Counsel of the applicanl and Mr. R.S. Jha, the learned Deputy Advocate General to understand the facts of the case within a short time which was available. There is no order as to costs.