Point of Law: Order of punishment of withholding of three increments with cumulative effect - Order passed by the Hon’ble Governor - executive functions of the State are carried out in the name of the Governor, but are not exercised by the Governor personally, as it is not a function which is required to be exercised by him in his personal capacity.

ORDER :

Hemant Gupta, CJ.

The present appeal arises out of an order passed by the learned Single Bench on 11.10.2017. It was held that an order of punishment of withholding of three increments with cumulative effect though communicated by Deputy Secretary of the State, but for all practical purposes it is an order passed by the Hon’ble Governor himself, therefore, the alternative remedy is not available to the appellant. After returning such finding, the Court granted opportunity to the writ petitioner to submit reply to the show-cause with a further direction to the respondents to decide the same in accordance with law. Aggrieved against such judgment, the writ petitioner has filed Writ Appeal No.1146/2017, whereas the State has filed Writ Appeal No.968/2018.

2. Writ Appeal No. 1144/2017 arises out of order-dated 20.11.2017, passed in Writ Petition No. 14259/2015 (A.D. Chaturvedi Vs. State of MP and another), following the order passed in the case of P.N. Raikwar, subject matter of other two appeals.

3. Since the issue is common in all these appeals, they have been taken up for hearing together.

4. The matter came up for hearing before Division Bench of this Court on 30.7.2018. In view of the divergent views of two Division Benches of this Court in Writ Appeal No. 487/2017 (Ravi Saxena Vs. The State of Madhya Pradesh and others) decided on 9.8.2017; and, a Division Bench at Gwalior in Writ Appeal No. 510/2018 (Virendra Kumar Vs. The State of Madhya Pradesh and others) decided on 8.5.2018, the following question was referred to the Larger Bench:

“Whether authentication of an order of punishment in the name of Governor is an order of the State Government against which an appeal would lie to the Governor or there is no statutory remedy against such an order.”

5. It may be stated that the order in Ravi Saxena’s case is not quoting any judgment, but in Virendra Kumar’s case, the Division Bench has relied upon the judgment of the Hon’ble Supreme Court in Brajendra Singh Yambem Vs. Union of India and another, (2016) 9 SCC 20, while over-ruling the Single Bench order in Sanjeev Kumar Dubey Vs. Commercial Tax Department (Writ Petition No. 5906/2017) decided on 12.9.2017.

6. The Rule in question is Rule 22 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 [for short the ‘Service Rules’]. Such Rules provide for the punishment to be imposed upon an employee and also the imposition of penalty and the remedy of appeal. The sole question is whether the order of punishment authenticated in the name of Governor is the order of the Governor and, therefore, the right of appeal provided under Rule 22 of the Rules is not available. The relevant extract of the Rules read as under:-

“22. Orders against which no appeal lies.-Notwithstanding anything contained in this part, no appeal shall lie against,-

(i) any order made by the Governor;

(ii) any order of an interlocutory nature or of the nature of a step-in-aid for the final disposal of a disciplinary proceeding;

(ii-a) any order passed under rule 11; and,

(iii) any order passed by an inquiring authority in the course of an inquiry under rule 14.

(iv) any order passed by the High Court as an Appellate Authority.

23. Orders against which appeal lies.-Subject to the provisions of rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely-

(i) an order imposing any of the penalties specified in rule 10 whether made by the disciplinary authority or by any appellate or reviewing authority;

(ii) an order enhancing any penalty, imposed under rule 10;

(iii) an order of suspension made or deemed to have been made under rule 9. Explanation.-In this rule the expression "Government servant" includes a person who has ceased to be in Govt. service.

24. Appellate authorities.-(1) A Government servant including a person who has ceased to be in Government service, may prefer an appeal against all or any of the orders specified in rule 23 to the authority