c .f.' Ssnyle 'Bencls IN THE HIGH COURT OF JUDICATURE AT BILASPUR LCHHATTISGARH1 W.P.NO. BS /2005 ^^ PETITIONER > ^.,w A/y/ ^A?^' ^RESPONDKNTS ^'^^y^' ^ ^-;' 1 ^.^^^ v ^^^€^ "',^^ </" ?AA^^^ /^ Suraj Lal Daheriya, Son of Bharosa Daheriya, aged 42 years, Sub Engineer, Water Resources Department, Rajnandgaon (C.G.), R/o. New Adarsh Nagar, Zone- I, Road-I, Plot no.33, Borsi Road, Durg (C.G.) VERSUS d) State of through Secretary, Water resources department, Bhopal (M.P.) 2) State of Chhattisgarh, through Secretary Water Resources Department, Raipur(C.G.) -3) Engineering in chief, Water Resources Department, Vindhyachal Bhawan, Bhopal (M.P.) 4) Engineering in chief, Water Resources Department, D.K.S. Bhawan, Raipur C.G. 5) Chief Engineer, Banganga basis Water Resources Department, Seoni (M.P.) ^- -L_._ WRIT PETITION UNDER ARTICLE 226 /227 OF THE CONSTITUTION OF INDIA. FOR ISSUNCE OF APPROPRIATE WRITS / ORDERS AND DIRECTION 73 HIGH COURT OF CHHAT-TISGARH : BILASPUR W^^PBTmQNNO,»50F2Q05 SuraJ Lal Daheriya Vs. State of Mad&ya Pradesii & Ottters ORDER (Dated l'7th Jaauary, 2006) ^b HiGH COURT OF CHHATTISGARH : BILASPUR WRIT PBTITION N0. 85 OF 20QS SuraJ Lal Daheriya Vs. State of Madhya Pradesh & Others Freseiit ;- Mrs. Anju Ahuja, c'ounsel for tlie petitioner. Shri Yashwant Sm.gh, Govt. Advocate aad Shri A,S. Kachhawaha, Dy, Govt Advocate for tlie State of Chhatdsgarh. O RD E R (Dated 17th January, 2.006) Per Hon?ble Shri Fakhruddia. J Heard. 2. By this petitiou under Article 226/227 of fhe ConstitLition of India Uie petitioner challenges ttie suspension orderdated 26-6-2002 (Annexurc-P/5). 3. Leaaied counsel for fh.e petitioner submits tihLat fhe petitioner was appoiated as Sub Engiaeer (CivU) vide order dated 27-8-1984 (Annexure-P/1). She further submits that the petitiouer was posted ia fhe of&ce of Executive Engiaeer, Bargi, Caaal Division, Narsiaghpur aad thereafter also posted at various places froBi time to time. She also submits fhat Uie petitioner was selected for Class-II grade of Sub Engiaeers vide order dated 2-5-1999 (Annexure-P/2). Leanied cozuisel subniits mat when me petitioner was posted as Sub Engiaeer, Water Resources Department, Barghat Sub Talisil, Bai'ghat, ^Distdct Seoni some complaiats were niacle agauist the ^ petitioner aad one Diaesh Chandra Agrawal, who was workiag as Sub Divisional Ofiticer, Water Resources Departiaent, Talisil Barghat, Distdct Seoni. Leanied coimsel submits that both the petitioner aad Diaesh Chaadra Agrawal were suspended by the Commissioner, Jabalpur Division, Jabalpur, vide order dated 6-4-2000 (Aiinexure-P/3) aad the departinental enquuy was iaitiated. After coinpletuig fhe enqiiiry vide order dated 16-7-2001 (Annexure-P/4) fhe Commissioner exonerated fheia and the petitioner and said Diaesh Chaadra Agrawal were reiastated iii seivices. Leaaied coiinsel subinits fhat me PoUce of PoUce Station Laidiaawada, Distorict Seoni registered on. offence under crmie No.50/2000 on fhe basis ofa coBiplaint it was alleged ia fhe said complamt fhat the total work done wortti Rs.85000/- only, iiistead of Rs.3.21 lakhs. It is subnutted tliiat the said valuation has been done by Rural Engiiieeriiig Services Deparbtnent withoiit giviag due notice to the Water Resources Department aiid no opportunity was afforded to explaia fhe staad of the Department, however, on the basis of First Iiiforoiation Report fhe petitioner aiid Duiesh Chaiidra Agrawal were once agam suspended vide order dated 26-6-2002 (Annexure-P/5), Leamed coiinsel siibmits fhat Dinesh Chaiidra Agrawal chaUenged fhe suspension order dated 26-6-2002 (Annexure-P/5) before the State Adniiaistrative Tribunal at Jabalpur because at that tmie the State Admirdstrative Tribunal was functioniag aad as such the service niatters were dealt with by the Tribunal, The case preferred by Diaesh Chaadra Agrawal before tiie Tribunal was ^registered as O.A.No.310/2003 (D.C. Aeirawal vs. State of •A M»P. ami ofhersj. The Tribunal disposed of fhe said matter vide its order dated 7-2-2003 (Annexiire-P/6) and quashed the iaipugned order dated 26-6-2002 (Annexure-A/ 1) beiag issued by the nicoinpetent authority. It was also observed fhat tiie Trlbunal's order shaU. not conie ia Uie way of respondents ia issuiag fresh order, if required, by a coinpetent autiiority, as per rules. Leanied coiinsel for Uie petitioner subniits fhat Diaesh Chandra Agrawal pursuaiit to the Tribunal's order was reinstated aad has not been suspended, 4. Leanied counsel appeariiig for fhe petitioner pouited out that Uie petitioner was aUocated to fhe State of Chhattisgarh vide order dated 24-10-2002 (Annexure-P/7). It is fuillier contended fhat subsequenUy postin.g orders were issiied aad he was regularly posted aiid at no pouit of tinxe shown as suspended. It is on 28-8-2004 fhat he is snown to be suspended iii view of the information received froni Uie Madhya Pradesh on Uie basis oforder dated 26/6/2002. It is contended fhat fhe suspension order dated 26-6-2002 (Aunexure-P/5) was quashed by the State Adinuiistarative Tribuiial vide its order dated 7-2-2003 (Aunexure-P/6) by holdiag fhat the suspension order was passed by the incoiapetent aufh.ority. 5. Learaed counsel for the petitioner raised a contentiou fhat Uie pnnciple of res judiciata apply ui fuU force as Uie issue has already been adjudicated iipon by fhe conipetent aufhority which at fhe relevaat tinie was exercisiag the jurisdiction uuder Article 226 of fhe Constitution of India, It is ^':'- s further conteuded tliat tiie action is discnoiin.atory aad there caanot be selective suspension. 6. Leamed counsel appearing for the State of Chhattisgarh subimt fhat fhough the Chief Engiaeer is not a coiiipetent auUiority for issuaiice of suspension order as he is au authority lower fhaa fhe appoiatmg aiifh.ority. He however contended Uiat proviso of Rule-9(l)fb) pennits tliat where the order of suspension is m.ade by an. aufhority lower tliao. tlie apporating aumonty, such azifhority shaU forthwim report to the appoiatuig authority, fhe circunistajices in. which tiie order was passed. Leamed cozinsel also submit Uiat tlie endorseiiient Diade goes to show that Uie information was sent to fhe Principal Secretary, Water Resources Departaient, Govemiiient of Madhya Pradesh as well as to the Engiaeer-ia" Chief, Water Resources Departnient, Bhopal, tlierefore, the suspension order is legal aad ia accordaiice wifh. Uie Riiles, 7. Learaed counsel for me petitioner on the other hand conteuded that perasal of tlie iaipugned order does not show Uiat tlds has been passed ia Uie capacity of an aufiionty lower Uiaa the appouitmg aufhoiity. At no poiat of tmie, Uie appouitiag autliority I'atified. 8. Penised fhe record, The ChiefEugmeer passed the order as if he is conipetent whereas ui law he was not competent. This has been held by tlie Tribunal. The posiUon that the Chief Enguieer was not coiiipetent is even admitted today. ^iere Uie defence taken by the respondents is fhat even S4-- iaconipetent officer caa suspend, biit he has to report about Uie saoie to concemed coinpetent authority. However, fh.at was not stand of me respondents before the Tribuual. There is also nothiag to iadicate that tlie order of suspension has beeii passed under the proviso of Rule-9(l)(b). The authority passed Uie order being the lower autiiority aad did not report the niatter for confirmation. 9. So far as fhe contention tliat tiie action is discriBiiaatory aad fhere caanot be selective suspension is conceraed, fhe Apex Court in tiie case of K. SukhendGr Reddff ys. Stafe <?f A.P. & Another f19991 6 SCC 257 in paras 6 & 8 held as uiider: !{6. The appellant ivas placed under suspension on 6-3-1997 by an order passed by the Chief Secretary to the Govemniem of Andhra Pradesh zinder szib-rtile (1) of Pj.ile 3 till the coTnpletion of ihe disdplinajy proceedings against him. This order ivas suhserfiiently replacjed by another order passed on 12-3-1997, iri u)hich u u/as clearly spelt out that disciplinary proceedings aganzst the appellant were not at all contemplated, but since he was involved in Crime Case No.3'27 of 1996 registered zmder section^ 468, 471, eta by Anakaplli Town Police Station, he ivas being placed under sv.spension Tfvs matter is still under inve^ugution by ihe CID and a charge sheei hczs not yet beenfiled in the case. 8. We, therefore, alloiu this appeal mzd set aside ihe suspension order daied 12-3-1997 with the direction that the appeiiant shall be put back to dtity and shall be paid all his o^n^ears ofsalaiy up io date minus the suspension allowance, if any, already paid to hirn, leaving it open to the Sicae Govemrfieni con^ider the fewsibilily of placing the appellant under susperzsion, if and when a charge-sfzeet isfiled by CIDn 10. From. fhe above, it is apparent tbLat tlie question Uiat fhe ^suspension order has been passed by the Chief Enguieer, who 6 ^- is not coinpetent aufhLori^^has already been adjudicated by the State Adiniaistrative Tribiuial, The order passed by fhe Tribunal has not been chailenged by Uie authorities aiiy where aad even fresh order has also not been passed by Uie competent auUiority. 11. Haviag Uius considered Uie facts azicl circuinstauces of tlie case, niaterial available on record aad fzirther the fact that this veiy order is ah'eady adjiidicated by fhe State Admiaistrative Tribunal holdiag mat it was passed by the auuiority lower maa the competent auUiority, the suspension order dated 26-6-2002 (Annexure-P/5) is quashed. It is made clear tliat this order shall not corae ui the way of the respondents ia issuiag fresh order, if required by a conipetent auUiority as per rules. 12. Accordingly, fhe petition is allowed wifh costs. Counsel fee as per scale. Gown/'H Sd/- Fakhruddin Judge