P.S. DHANWAL Vs. STATE OF M.P.

JUDGEMENT

(1.) Petitioner has filed the present writ petition challenging order dated 24.07.19 contained in Annexure P/9. By the said impugned order, in charge Managing Director has suspended the petitioner for committing serious financial irregularity. Petitioner is presently working as Chief Executive Officer, Balaghat and he is Class-I Officer. Petitioner has challenged the impugned order dated 24.07.19 on the ground that the Board of Directors were under super session and Managing Director has been appointed as time gap arrangement on deputation and he cannot exercise the statutory function and therefore order is bad in law. It was further argued that impugned order is without jurisdiction.

(2.) Respondents had filed their reply and stated therein that appointment of Managing Director is made under provisions of Section 49-E of Cooperative Society Act 1960 and he is Competent to pass suspension order. Petitioner had filed rejoinder and stated therein that impugned order is not passed under provisions of Section 49-E of Cooperative Society Act 1960. Respondent No.3 is appointed as in charge Managing Director and incharge Managing Director could not exercise statutory functions therefore order is bad in law. The question for determination before this Court is whether Managing Director who is appointed on deputation for time being can exercise the power to suspend the petitioner. Suspension of an employee is an administrative order which is passed so that departmental enquiry can be done unhindered and without being influenced. Suspension order does not adversely effect an employee and it is not a punishment.

(3.) Learned senior counsel appearing for the petitioner has relied upon the judgment passed in W.P.No.17188/2017, Smt. Bajanti Mehra (Jharia) Vs. The State of MP. In the said judgment learned Single Judge relying on the judgment passed in Girja Shankar Shukla vs Sub-Divisional Officer and others 1970 3 MPLJ 411 has held that action of placing an employee under suspension is undoubtedly a statutory function. Person in charge of a post and not holding post substantively cannot perform statutory function and therefore Annexeure P/4 suspension order was quashed. I went through the full bench judgment passed by Madhya Pradesh High Court in case of Girja Shankar Shukla vs Sub-Divisional Officer Harda . There was contrary opinion between two division bench decisions of Ram Ratan versus State of MP 1960 4MPLJ 86, and State of MP Vs. Gokul Prasad 1970 1MPLJ60 due to said reason reference was made before Full bench with respect to meaning attached to expression "current charge of duties of a post". In this case all the three Honourable Judges has passed judgment separately. Though Justice J.S. Verma has passed separate judgment but he agreed with the interpretation put up by Justice J.S. Verma. In this case Honourable Justice J.S. Verma held that there is difference between a person who is appointed to officiate on a higher post and a person who is appointed to be in charge of current duties to that post in addition to his own. It was held on basis of Supreme Court judgment that person appointed permanently or to officiate on a post holds that ranks whereas a person who is placed only in current charge of the duties of a post does not hold that rank, accordingly function or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post. In Ram Ratan's case the emphasis was placed on the rank as contra distinguished from functions of an office in view of inhitition contained in Article 311 (1) of Constitution of India. Ram Ratan's case was in context of Article 311 of the Constitution of India and was distinguishable and had no application to the facts of Gokul Prasad's case. In Gokul's Prasad case there was no emphasis on the rank of the Officer who permitted Government Servant to retire and all that was necessary was that the officer concerned should have authority to discharge such function of appointing authority. It was further held that Ram Ratan case throws no light on the question why a person who holds current charge of the duties of an office while so discharging the function of an office is not clothed with the rank of that office. In Gokul Prasads case, it was observed that in Ram Ratan's case the person holding the current charge of the duties of a post can perform only administrative functions but not the statutory functions attached to that post but the observations being orbiter may require reconsideration in appropriate case because it is quite difficult to understand that if such person cannot perform the statutory functions of the office, what else he can do. All the functions which the holder of post performs and all the duties which he discharges whether administrative executive, judicial or otherwise owe their origin to some act, statutory rule or order, and there is no function which can legitimately perform for which there is no sanction in some statue or statutory rule or regulation. It was finally held that there is clear distinction between several functions that may be performed by an incumbent of a post and original nature of the post in each case has to be examined before deciding whether it can be exercised only by a person holding that rank or it could be exercised even by a person holding the current charge of the duties of the post. Justice J.S. Verma held that decision of Division Bench in Ram Ratan's case is correct and continues to be good authority in respect of those cases where holding a particular rank is necessary for exercise of the power and that the doubts expressed against the same in Gokul's case is unfounded. If there is delegation of function and the nature of function is such that there is no emphasis on rank and what matters is that officer concerned should be empowered to discharge such functions. In the case which was before Full Bench it was held that as DEO can preside over the election meeting though he has been in the current charge and writ petition was dismissed.