^)^?2 ^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. ^6) No. ...%3j.....OF 2010 IN THE MATTER OF: 8issfll8'iesi£t& PETITIONER: ^. ^y/< ^yy 9"% D.K. Jain, S/o Shri Chotelal Jain, aged about 63 years, Superintending Engineer (Retd.), Public Works Department, Raipur (Chhattisgarh), Presently residing at 7, Kachnar Residency, Near Jabalpur Hospital, Napier Town, Jabalpur (M.P) VERSUS 1. State of Chhattisgarh, through its Principal Secretary, Public Works Department, Mantralaya, Dau Kalyan Singh Bhawan, Raipur (C.G.). 2. Engineer in Chief, Public Works Department, Chhattisgarh, Raipur »^-" PETITION UNDER ARTICLES 226 OF THE CONSTITUTION OFINDIA ^s^ ^ ^' >4^ RESPONDENTS: ,^^ A^ ^' ft -\' HIGH COURT OF CHHATTISGARH AT BiLASPUR WR[TPETIT!ONJSL_No_2231.ot2010^ PETITiONER : D.KJain VERSUS EES.PONDENTS : Stats of Chhattisgarh & another. Writ Petition Under Articie 225 Of The Constitution Of Jndia SBiHon;bJe.Shri.^MsXK,_Afin|hotri,J_, Present: Shri H.S. Patei, Advocate Shri Varunendra IVIIshra, Advocate for the petitioner. Shri V.V.S.Mo-orthy, Dy. A.G. wjth Shrl P.K. Bhaduri, Panel Lawyer for the State/respondents. ORDgRlORAy (Passed on 06^ day of May.2010) 1. Chailenge in thls petltion is to the order 16/1/2008 (Annexure P-3), whereunder a charge-sheet of serioys aliegations of flnanda! irreguiarities has been' issued agalnst the petitioner, - 2. Learned counsel appearing for the. petitioner subrTilts that the petltloner has aiready retlred from sen4ce by order SO/1'1/2007 (Annexure P-1). After retirement, a charge has been inltjated, which cannot be done under the provision of Ruie 9 (2) (b) of the Chhattisgarh Civll Semces (Pension) RySes, 1976, (for short "the Rules, 1976"). Provision of Ru!e 9 (2) (b) of the.Rujes, 1976 makes it clear a departmental proceedings, if not during time ofthe ennployee, the may not be wlthout sanctlon of the Governoi or In respect of any events, which is taiken for more than four years before the institytioo. 3. The contention of the petitioner that the sanction of the Governor has not been takers is v^ell settied in case of provisions under Rule 9 of the Rules, 1976 in State of M.P. and Others v. Dr. Yashwant Trlmbak , whereln it has held that sanction granted by the State in exercise of its power under Article 166 (3) is sufficient compiiance of the sanction under provjsion of Ruie 9 of the Rules, 1976. The dispute /event is atso wlth reaard to the period October 2005 to 24/9/2007, i»e»wlthin 4 years from the date of the insfrcution of the proceedings, 1 ^n 1996) 2 SCC 305 ^<X) On the other hand, Mr, yoorthy, Searned Dy. Advocate Generai, submlts that there Is no bar under statutorv provjslon of Ru!e 9 of the Rules, 1976 to initiate departmenta! proceedjngs after retlrement as certain conditions whlch has been fulfiiied in this case. The interpretation ofRule 9 (2) (b) (i) of the Ruies, 1976 came into consideration before the Supreme Court in Dr» Yashwant Trimbak (supra). In the said decision the SuDfeme Court observed as und.er: 14« The Rute in question no 'doubt provldes that departmenta! proceedings if not instituted whiie the government ser^ant awas In service whether before .his retirement or dyring his re-empioymeot, shail not be jnstituted save with the sanction of the Governorc The question that arises for coosideration ss whether it reg'uires the sanction of the Governor himself or the Councli of yinisters in whose favour the Governor under 'the Ruies of Business has aiiocated the iTiatter, can also sanction. It is undisputed that under Article 166(3) of the Coiistltution the Governor has ruie for convenient transaction of the business of the Government and the auestion of sanction to prosecute in the case in hanti was deait with by. the Councii of Minlsters in accordance with the Rules of Business. Under ArtlcSe 154 of the Constitution, the executlve power of the State vests In the Govemor and ss exercised by him elther dlrectiy or through offlcers subordlnate to him In accordance with the Constitutlon. The expresslon "executlve powef Is wlde enough to connote t'he residue of the govemmenta! functlon that remains the segisiative and judicjai functjons are taken away« 17. The order of sanction for prosecution of a retired government ser^ant is iindoubtedly an executive action of the Govei'nment. A Gov.ernor in exsrclse of his pov/ers under Articie 166(3) of the Constitution may aiiocate ali his fynctions to different Ninisters by framlng rules of business except those in which the Govsmor Is required by the Constitutiosi to exercise hls own discrefion. The expresslon "business of the Government ofthe State" in Artlc.ie 16S(3) of the Constltution, comprises fynctions which the Govemor is to with the aid and advice of the Council of ft/linisters incSuding those which he is empowered to exerclse. on his subjective.satjsfaction and f -A -A, v^:;:.;- '""•^^^^•" p' inciuding statutory functions of the State Government. The Court has heJd in Godavari Shamrao Parulekar v. State of Maharashtra even the functions and duties vvhich are vested m a State Government by a statute may be aiiocated to Ministers by the Rules" of Business framed under ArtlcJe _166(3) of _the Constitution. In State of Bihar v. Rani Sonabati Kumari, wiiere power of issuing notification under Section'3(1) ofthe Bihar Land 'Reforms Act, 1950 ha.ve· been conferred on the Qovernor of Eihar, this Court'heid: lSection 3(1) of the Act confers the powsr of jssuing notifications under it, not on any officer but on the State Government •as such though the exercise of that power be governed by the rules of business framed by the Governor under Article 166(3) of the ConstJtutlon/ 18. Therefore, excepting the rnatters with respect to whJch the 'Governor is required by or under the Constltution to act in hls dlscretion, the personai . satisfaction ofthe Governor is not required and any function may be ajiocated to yinisters. 19» MT Jainss contention is soiely based OR th.e ground that in the Rule itself both the expressions 'Governor' and 'Govemment' have been used and therefore the expression "sanctlon of the Governof in Rule 9 (2) (b) (i) would mean the personai sanctlon ofthe Governor.We are ynable to accept this contention. The power to sanctlon is nothing. but an executive actlon of the G.overnment provided under the RuJes. This is not a matter with respect to whjch the Governor Is requlred under the Constjtution to act in his discrQtion. In this view of the when the Govemor has framed Rules of Business under Articie 166(3) of the Constitutjon ailocating hls fiinc-tlons and it is the CounclJ of h4inisters which has Isken the decision to sanction prosecution ofthe respondent, we see no legal infirmity in the same.. The Tribunai erred in law jn eoming to the conclusion that the sanctjon requlred under t5ie ruie is a sanction of th© Govemor;' in view of clear provlsion of Rule 9 (2) (b) of the Ryies, 1976 and further expiained by the Supreme Court in Dr. Yashwant Trimbak (supra), no interference is warranted, as the event for which ^' •-' .0 Ashok 8. departmentai enquiry was initiated, was wjthin 4 years from the date of initiation of the proceedl'ngs .and proper sanction was granted by the State Governnnient in exercise of ite power under Article 166 (3) of the Constitution of India. The law is weii setUed by a series of decisions that ordinarily no writ !les against a charge sheet or show cause notice, as the show cause notice or charge sheet does not give rise to any cause of action, because it does not amount to an adverse order v^hlch affects the rights of any party unless the same has been Issued by a person havlng no jyrisdictlors to do so, (See Executive Engiraeer, Bihar State Housing • Board v. Ra.mesh Ku.mar Slngh2, Specia! Director v. Mohd. Gu!am Ghouse3. Ulagappa v. Divisiona! Commr., IVIysore4, State of U.P. v. Brahm Datt Sharma5 and Union of India and Another v. Kunisetty Satyanarayana6.,) Appiylng the we!i settled principles of law and t'or the reasons mentloned hereinabove, the writ petition fai!s and is hereby dismissed^ There shail be no order asto costs. Sd/- SatishK.Agnihotri Judge ^(1996)1 SCC327 3 (2004) 3 SCC 440 4 (2001)108cc 539 5 (1987) 2 SCC 179 6 (2006)128cc 28