^S^b- HiGH COURT OF CHHATTISGARH AT 81LASPUR ,3S40pfJ999 •i; *.il--1 PETITIONER : State of Madhya Pradesh (Novv Chhattisgarh), Through the Secretary, Govemment of Chhattisgarh, Home (Jaii) Department, D.K.S. Bhawan, Mantralaya, Raiapur (C.G.). Versus RESPONDENTS 1. Rajendra Kumar Jain (Dead) Through: A) Ani! Kumar Jain, aged about ;38 years, S/o Late Shri Rajendra Kumar Jain. 8) Surabhi Jain, aged about 12 years, D/o Shri Anii Kurriar Jain. C) Abhishek Jain, aged about 7 years, S/o Shri Suni! Jain, Parents Smt. Pushpa Jam, All persons resident of: Ward No.9, Old Tikrapara, Khairagarh, Post & Tahsil Khairagarh, Distt; Rajnandgaon (C.G.) 2. M.P. State Administrative Tribuna!, Jabalpur, through its Registrar, Jabaipur. t. -. Writ Petition under Articles226/227 of Constitution of india. Division Bench: Hon'bleShrLI.M, Quddysi & Hon'bie ShriN.K. Aaarerai. JJ. Present: ShriiVi.P.S. Bhatia, Dy. Govt. Advocate for the petitioner. Sh" Jitendra Pali, counse! for the respondents. ORAL ORDER (Passed on 29th day ofJune, 2010) Per I.M.Qucfdusi, J, This writ petition is filed against the impugned order dated 19-u2- 1999 passed by the M.P. Administrative Trjbunai, Jabaipur in T.A. No.4353/88,affirming the judgmentand decree passed bythe Civil Judge, Class-!, Rajnandgaon in Civil Suit No.37^86 dated 11-09-1986. Before re-organization of the State, the instant writ petition was filed through Secretary, CSovt.ofM.P., Home (Jaii) Departmentand after re-organisation ofState of Madhya Pradesh, since the matter relates to the newly created Chhattisgarh State, the case has been transferred to this Court. ^ ,ir" t^ i'" L • '\: 2. Brief racts of the case are that the father. of the respondent IMo.1, Rajendra Kumar Jain was working as Warder at Sub Jail, Rajnandgaon. He ioined the service on 25-08-1971 and his services were terminated v'ide order dated 01-06-1978. The order of termination was challanaed before the Clvi! Court at Rajnandaaon in Civil Suit No.37A/1S86. The Civil Court by judgment and decree dated 11-09-1986 decreed the suit in favour of the emptoyee and quashed the order oftermination. 3. Being aggrieved by the judgment and decree passed by the Civil Court, Rajnandgaon, the petitioners/State of M.P. had filed an appeal. During pendency of the appeal, the same has been transferred to ths State Administrative Tribuna!, Jabalpur, after establishment of the State Administrative Tribunai in the year 1988, where was registered as T.A. No.4353/1988. 4. Learned Dy. Government Advocate has submitted that according to Jail Manual, the appointing authority for fhe post of Warder was Superintendent, Circle Jail but all the Suoerintendents were empowered to impose punishment upon the warders. He has drawn the attention of this Court towards the note mentioned under thechart in the Jail Manua! in which it is mentioned that 'Superintendent of Jail' mentioned in Coiumn (2) and (3) includes Superintendent of Central, District and Sub Jails and also Superintendent, B.l. Narsimhapur and Superintendent Jail Training Centre, Jabalpur. Therefore, the order of dismissal passed by the Superintenaent, Sub Jail was valid as he was absolutely competent to impose all the penalties upon the Warder i.e. the respondent (deceased). However, it was not disputed that the Superintendent, Sub Jail is subordinate to Superintendent, Centra! Jai!. 5. Learned counsel appearing for fhe respondent No.1 has submitted that there are concurrent findings of facts to the effect that the Superinterident, Sub Jail was not competent to pass the impugned order of termination which has bsen affirmed by the Court of Civil Judge as well as at the appellate stage by the State Administrative Trlbuna!. 6. Before proceeding further, it is necessary to mention the relevant provisions of Jai! Manual, the provisions of article 311 of the Constitution of tndia and Schedule to M.P. Civil Services (Classification, Controi & Appeai) Rules, 1966, which are reproduced as under: v / ,.^6^ //-; JAILJVIANUAL Authortty compsterit to impose penaitles wtiich It msy jmpose (with.reference So item Nos, in pjis 9) Description of Post Appointlng AjthoriEy Au'tho.'Ety Fenaif AFpeEisS& suShority (1) • w O) (4) (5.1 Staff Posted to Jajls Chief Head Warder/ Supdt. cf Circte Superintendent Head'WaTderiLady Jaii ofJail Attendents/W'arders. All i.G. of Prtsons Note : Superintendent of Jail mentioned in Columns (2) and (3) includes Superintendent of Csntral, District and Sub Jaiis and also Superintendsnt, B.i. Narsimhapur and Superintendent Jail Training Csntre, Jabaipur. Articie 311 of the Constitution of India: "311. Dismissal, removal or reduction in rank of persons empioyed in Civil Capacities under the Union or a Stats- (1) No person who is a member of a civil service of the Union or an ali-india service or a civil service of a SSate or holds a civii post under the Union or a State sha!! be dismissed or removed by an authority subordinate to that by which he wasappointed. (2) No such person as aforesaid shali be dismissed or removed or reducsd in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect ofthose charges [Provided that where it is proposed after such inquiry, to impose upon hlm any such penaity, such penslty msy be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to gjve such person any opportunity of making representation on the penalty proposed: Provided further that this clause shail not apply - (a) where a person is dismissed or removed or reduced in rank on the ground of conduct '.vhich has !sd to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicabte to hold such inquiry; or (c) where the President or the Governor, as the cass may be, is satisfied that in the intersst of ths security of the State ii is not expediertt to hoid such !nquiry. (3) if, in respect of any such person as aforesaid, a questio" arisss whether it is reasonably practicabis to hold such inquiry as is referred to in ciause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shaii be final.j" /\ I.P. Civii Services (ClassiflcatiQn, Control & Appeai) Ruies,19S6 Schedute. Rulss 8 & 24: SCHEDULE (See Rule 8 & 24) Staff posted to Jai! Descript'on of| AppoinSng I Authority competent to jmposepenaltles which it Post . Authority | may impose (with reference to item Nos, in rule 9) Authonty Penalt'/ Apsellste adhprit; (1) i;2) (3) w (S) Ctass Supdt. CentTEii State Govanmem jaii Class II Superirrtendent, State Govsmment Dlstt. Jails Class U Super- Intendent, Borstal Instlbjte Medical Officers, Stare Bovemmsnt Cenfrai Jails I.G. of Prisons (i), (ii) and (liij S;ate Govemment All .G. Prisons Supdt. ofCenralJail I.G. of Prtscns State Govemment A,l (i), (ii) and (iilj (i),(ii)and(iii) Do Al! Siate Governmsnt Qo'/srnor itate Qovemment I.G. of Prlsons Stete Goveniment Governor \^ Class III (Non-Ministerial) Dy.Supdt.of State Govemment Factones Teachere/Phy- i.G. of Prisons slcal Insiruc- tors/LadyAsstt. Teachers/Taitor Instructors/Tent Master/Asstt. Tent Masterf Senior Carpen- try InsfructorCar- peniry Instructor/ Weavlng Masters; Biactemitt Inst- ructors/Foremsn Prsss/Super/i- sorsArtLeather Instructor/Paper Pulp Toys/Paper Machine Instru- Ctor/Music Teach8FS?Baters/ Male Nurses/Brass Instnjctore/Super- visors/Leather Insulator, Supdt. of Jail I.S. of Prisons Stete Govemment Supdt. of Jail I.G. of Prisons (ij, (ii) and (iii) 'bo M I.G. of Prisons State Govemment GcvemoF (i), fii) and (iil) 1.0. of Pnsons State Government Grassmatlnstru- Ctors/Leather /Gnass- Mat/Deml-sKilled WorK Fisher. Compounder Medical Offlcer Medical OITicer Supdt of Jail All All & .G. Prisons Do ChiefHeadWarder/ Supdt. of Cirde Superirrtendent HeadWarder/Lady Jall ofJall Attendants/Wardress. Asstt. IVledlca! Director of Supennfendent Offica^ Healtti Serwces ofJail i.G. of Prisons Dlrectorof Healtn Services All I.G. of Pnsons Senior Jaitors/ I.G. of Prlsons Chief insfructors/ Jailore/Dy. Jsltor/ Instructors/Pro- bation Officers/ WeSare Officers/ AsstfcSupctt. Supdt. B.i. Narslmhapur/ Asstt. Jaitors/ IViatrons Class III (Mlntsterial) Accountarrts/ I.G. of Prisons Lower Division Clerxs. Supdt. of Jail l.G. of Prisons Class IV PeorvCartmen/ Sweeper Supdt of Jail Supdt. of Jail I.G.ofPrisons Supdt. of Jail (i), (ii) and (iiij I.G. of Frlsons DO All Statg Govemment Do (i), (ii) and (jil) i.G. of Prisons All State Government All (i), (ii) and (lii) l.Q. of Prisons: Al! State GovemtTisnt All l.G. of prisons "8. Appointments to other service and posts;- Ail appointments to the State Civii Services Ciass iiland Class IV, shal! be made by the authoritles specified In ihis behalf in the Scheduie. 24.Appei!ate authoritses:. (1) A Government servant including a person who has ceased to be in Government service, may prefer an appeal against alf or any of the orders specified in ru!e 23 to the authority specified in this behaif eithe.'- in Scheduie or by a general or special order of the Governor or, where no such authority !S specified: (i) Where such Government servant is or was a member of a Stata Civil Service Ctess 1 or Ciass ii or hoider of a State Civji Post, Ciass I or Class I! - (a) to the appointing aurhority, where the order appeaied agsinst ;s mads by an authority subordinate to it; or (b) to the Governor, where such order is macte by any other authoriiy, where such Govemment servant is or was a member of a State Civi! Service Class iil or Class iV or holder of a State Civii Post, Class III or Class !V, to the authority to which the authorjfy making the order appsaled againsf is immediately subordinate. (2) Notwithstanding anything contained in sub-ruie (1),- (i) an appea! agalnst an order in a common proceeding he!d under rute 18 shai! lie .to the authority to which the auEhority functioning as the disciplinary authority for the purpose of that procaedirsg is imm'ediateiy subordinate; (") where the person who made the appealed against becomes by virtue of his subsequent appointment or otherwise, fhe appeliate authority in respect of such order, an appeai against such order shaii ile to the authority to which such person is immediateiy subordinate." 7. In a latest decision in the case of Goyernment oi Anahra Praaesh and another vs. N. Ramanaiah; reported in (200S) 7 SCC 165, Hon'bie the Apex Court has obsen/ed in paras 23 & 24 as under: "23. The Constitution being the transcendentai ia'A', the ruie-making authority by making Rule 14(2) took care to see that constitytionai guarantee ensnrined tn' Articie 311 (1) of the Constitution which was avaiiabte to the govemrnent servant was protected. That the construction placed by us on the expression "subordinate" is in consonance 'A'ith the meaning and import of the werd "subordinate" occurring in Articie 311(1) of the Constitution is apparent from many a decisions of this Court. We sha'l refer to some of them. In our considered opinion there is nothing in the Constitution which debars the Government from exercising the powers of appointing authority to dismiss a government servant from sen/ice. These Rules cannot be read as implymg that dismissal must be by the very authority who made the appointment or by his immediate superior. 24. in Sampuran S'mgh v. State of Punjab, reported in (1982) 3 SCC 200 : 1983 SCC fl.&S)1 : 1982 SCC (Cri) 686 thls Court observed that (SCC p. 203, psra 11) "11. ....... In viev/ of Articte 311 (1) of the Constitution the removing authority cannot be subordinate in rank to the appointing authoFity. By necessary ^ s-F1 •K- j- :'y-*' t ^' llli 1:1 Kvr impiication tfie removing authprity may be higher in Fank to ths appointing authority." (emphasissuppiisd) Therejsacompliancewithclause(1)ofAFticle311ifthe dismissing aufhoiity js not lcnyer in rank prgrade thanthe appQihting aufhority. (See State^ of U.P. v. Ram Naresh . Lal, repoMsd in (1970) 3 SGG 173 and Jai Jai Ram y. UPSRT®,reported in (1 %6) 4 SCG 727:1996 SCG fl.&S) 1071." •:'.:;'.;:1. '';i:':l ••.' •:: •."'••.•-: 8. In viewofabove, it is welisettied that no provisions/ryfes can over ruie the provisJonsGftheGonstttutiQn.ThBconstitytion is supreme and the laws made aresubject lothe j3K^isiphs (rfthe Constitutioh and cannct reacf, by passjnQ the Ri^isions €rf^rtiGle|31toftheCpnsti^ In the Gonstitutjpn, it jsctear that;th^.sut3<^ins^ person wasappointed, cannotreFno^^6r^Jsmjssthe?perSonfromseryice. Therefore, the power whieh is to'be e>©rcised, miposi^^^^ dismissal or removal;^ caff be sxeiBisedjby the authority by wham the personwasappptnteclprby;ahigheratithai'ity,ifthepowersafedelegated to him bytheGovernor in case ofState'Governmentservant. 9. In vjew of flie fact& and cireums-tanees, as the respondent No.1 was dismissedbytheauthoritysuborcfinatetofhatbywhichhe^rasappo w®are of ,the csnsidered opinibn that the disJTiissal of the iciecea^eid respondent was'iliegal and as sueh the prder passed by the Cjvjl Courtjas well as by the StateAdministratiyeTribuualareproper.whichiareaffirm^d. ''*»:'''•'.' •••••:• . •' •^•' '•• '•••''.'• '. : '.' '. . '.' ' '• '.'..'. '•,•• • '• "" ':• :. • • 11. At this stage, the leanied Deputy Gpvemment Advocate h.as submittedthatttT&GQurtmayreidyeepaymeritofarrearsofsaiaryb^ tothedeeeasedTesROndentbutweareuriabletoacceptthasubmissjons as the deceased respdndent Was a regylar Gov$rnment servant. lt<e :w:: . :".: ; ' :; .. :' : : ; : ' .': T :.: : '-:::' i'. ^ : ramained presentitp do his duties but dueto e ^ theoificer ofthe petjtipner/State,he;was pTevented^^^^ Therefore, there is no questjon of reducirig^the arrears of satary tiy this Court. : ••1 :;:.;^:1/.''': '\ '':; :'^^ i ^Yi ^ 12. In view of^abovs, the wnt petitionifilpd by the petjtibrierffita^ missed. Howetter, fliere shall Be Sd/- I.M.Quddusi Judge li h6erdieriastocosts. Sd/- N.K.Agarwal Judge is