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1995 Supreme(MP) 1016
1996 JLJ 322
(SUPREME COURT)
S.C. Agrawal and G.B. Pattanaik, JJ.
State of M.P. v. Dr. Yashwant Trimbak
CA. No. 11536 of 1995; Decided on 4.12.1995.
A.K. Chitale with Niraj Shanna and Satish Kumar Agnihotri for appellant;
S.K. Jain and A.P. Dhamija for respondent.
Headnote:(1) Civil Service Pension Rules, 1976 (M.P.) -- R. 9 (2) (b) (i) -- order of initiating departmental proceedings issued in the name of Governor though signed by Under Secretary -- such order is immune from judicial review. AIR 1961 SC 221 and AIR 1968 SC 1232 relied on. [Paras 11 & 13
(2) Constitution of India -- Art.162 (2) -- order issued in name of Governor though signed by Under Secretary -- such order is immune from judicial review. AIR 1961 SC221 and AIR 1968 SC 1232 relied on. [Paras 11 & 13
(3) Constitution of India -- Arts. 166 (3) and 163 (1) -- executive function of the State Government -- may be exercised by Governor through Council of Ministers -- such function even can be delegated by rules of business.
The order of sanction for prosecution of a retired government servant is undoubtedly an executive action of the Government. A Governor in exercise of his powers under Article 166 (3) of the Constitution may allocate all his functions to different Ministers by framing rules of business except those in which the Governor is required by the Constitution to exercise his own discretion. The expression "business of the Government of the State" in Article 166 (3) of the Constitution, comprises functions which the Governor is to exercise with the aid and advice of the Council of Ministers including those which he is empowered to exercise on his subjective satisfaction and including statutory functions of the State Government. (1974) 2 SCC 831 and AIR 1964 SC 1128 relied on. [Paras 15 & 17
¼1½ flfoy lsok isa‘ku fu;e] 1976 ¼e-ç-½ & fu-9¼2½ ¼[k½ ¼,d½ & foHkkxh; tk¡p çkjaHk djus dk vkns‘k jkT;iky ds uke ls ;|fi voj lfpo }kjk gLrk{kfjr & ,slk vkns‘k U;kf;d iqufoZyksdu ls mUeqDr gSA , vkb vkj 1961 ,l lh 221 rFkk , vkb vkj 1968 ,l lh 1232 voyafcrA ¿iSjk 11 rFkk 13
¼2½ Hkkjr dk lafo/kku & vuq-162¼2½ & vkns‘k jkT;iky ds uke ls ;|fi voj lfpo }kjk gLrk{kfjr & ,slk vkns‘k U;kf;d iqufoZyksdu ls mUeqDr gSA , vkb vkj 1961 ,l lh 221 rFkk , vkb vkj 1968 ,l lh 1232 voyafcrA ¿iSjk 11 rFkk 13
¼3½ Hkkjr dk lafo/kku & vuq-166 ¼3½ rFkk 163¼1½ & jkT; ljdkj dk dk;Zikyd ÑR; & jkT;iky }kjk eaf=ifj"kn~ ds ek/;e ls fd;k tk ldrk gS & ,slk ÑR; dk;Z lapkyu fu;e }kjk çR;k;ksftr Hkh fd;k tk ldrk gSA
lsokfuo`Ùk ljdkjh lsod ds vfHk;kstu dh eatwjh dk vkns‘k fuLlansg ljdkj dh dk;Zikyd dkjZokbZ gSaA lafo/kku ds vuq-166 ¼3½ ds v/khu viuh ‘kfDr;ksa dk ç;ksx djrs gq, jkT;iky] muds flok; ftuesa lafo/kku }kjk jkT;iky dks Lo;a dk foosdkf/kdkj ç;qDr fd;k tkuk visf{kr gS] vius leLr ÑR;] dk;Zlapkyu fu;e fojfpr dj fofHkUu eaf=;ksa dks vkcafVr dj ldrk gSA lafo/kku ds vuq-166 ¼3½ ds in ^^jkT; dh ljdkj dk dk;Z** esa og ÑR; lekfo"V gSa tks jkT;iky }kjk eaf=ifj"kn dh lgk;rk vkSj ijke‘kZ ls fd, tkuk gksrs gSa vkSj muesa og ÑR; Hkh lfEefyr gSa ftUgsa viuk oLrqfu"B lek/kku gksus ij djus ds fy, l‘kDr gS rFkk jkT; ljdkj ds dkuwuh ÑR; Hkh lfEefyr gSaA 1974 ¼2½ ,l lh lh 831 rFkk , vkb vkj 1964 ,l lh 1128 voyafcrA ¿iSjk 15 rFkk 17
G. B. Pattanaik, J. -- 1. Leave granted.
2. This appeal is directed against the order dated 30.4.1993 of the Madhya Pradesh Administrative Tribunal (Indore Bench) in the Transfer Application No.3551 of 1988. By the impugned order the Tribunal has held that the departmental enquiry against the respondent was instituted without a proper and valid sanction as contemplated by Rule 9 (2) (b) (i) and (ii) of the Madhya Pradesh Civil Services Pension Rules, 1976 (hereinafter as 'Pension Rules') and as such it is not sustainable and deserves to be quashed. Being aggrieved by the aforesaid order of the Tribunal the State of Madhya Pradesh has approached this Court.
3. The respondent had retired from the post of Director, Institute of Animal Health and Veterinary Biological Products, Mhow on 31.7.1983. His retiral benefits had been sanctioned by the appropriate authorty. At that point of time, gross financial irregularities having come to the notice of the Secretary to the Government of Madhya Pradesh, Department of Animal and Cattle Wealth during the period while the respondent was continuing in the post of Director, Institute of Animal Health and Veterinary Biological Products from 1977 onwards, a letter was issued to the said respondent proposing an enquiry against him on 6.4.1985. Thereafter a charge-sheet was served upon the respondent on 2.4.1986 and a departmental enquiry was ordered against him. The appropriate authority further withheld 50 per cent of his pension and a part of the gratuity amount of the respondent. The respondent being aggrieved by the said order moved the High Court of Madhya Pradesh for quashing the aforesaid enquiry as well as for quashing the order of withholding a part of the pension and gratuity, inter alia on the ground that without the sanction of the Governor as contemplated under Rule 9 (2) (b) (i) of the Pension Rules, the proceeding is vitiated and also the consequential order withholding a part of the pension and gratuity. During the pendency of the application before the Madhya Pradesh High Court, the State Tribunal having been constituted, the proceeding was transferred to the Administrative Tribunal and the Tribunal finally disposed of the matter.
4. In the return filed by the State and its officers it was contended that the respondent had committed grave financial irregularities during his tenure relating to the period of 1977 onwards. The said financial irregularities came to the notice of the appropriate authority after the pension case of the respondent was forwarded by the Director of Veterinary Services. In fact the respondent before his superannuation got the no-demand and no-enquiry certificate issued in his favour on misrepresentation of facts. When the financial irregularities and embezzlement committed by the respondent came to the notice of the appropriate authority; as a result of the investigation started by the Economic Wing of the Police, the appropriate authority took the decision to initiate the departmental proceedings. Before initiation of the departmental proceedings against the respondent under the provision of Pension Rules of 1976, due sanction of the Council of Ministers had been obtained and the order in question was communicated to the respondent by a duly authenticated order purported to have been passed by order of the Governor of Madhya Pradesh. The order in question though had been signed by the Under-Secretary to the Government of Madhya Pradesh, Department of Animal Husbandry, but it has been clearly stated:
"IN THE NAME AND BY ORDERS OF THE GOVERNOR OF MADRYA PRADESH"
5. The Tribunal on examining the provisions of Pension Rules more particularly Rule 9 (2) (b) (i), came to the conclusion that the sanction of the Governor himself is necessary and therefore departmental proceedings could not be initiated under the orders of the Council of Ministers. Accordingly, the Tribunal quashed the departmental proceedings initiated against the respondent and also the or
