1986 Supreme(MP) 759

IN THE HIGH COURT OF MADHYA PRADESH
Faizan Uddin, J.
Keshav - Appellant
Vs.
State of M. P. - Respondent
M. P. No. 3282 of 1985 (J)
Decided On : 14-07-1986

Headnote:(1) Civil Services (Pension) Rules, 1976 (M. P.) – R. 9 (2) (b) (i) – initiation of departmental enquiry alter retirement – sanction of Governor is condition precedent.

       (2) Constitution of India – Art. 166 (3) – Governor statutorily required to perform an act – such act cannot be allocated to minister of the State.

       (3) Constitution of India – Arts. 226 and 227 – petition under – averment not specifically denied – conclusion of admission can be drawn.

        Short Note

       1. The respondents have opposed the petition by contending that the departmental enquiry can be initialed even against the retired Government servant in view of the provisions of Rule of the Madhya Pradesh Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'the Rules'). As regards the fixation of his revised pension as per Choudhary Pay Commission, it has been stated in the return that his pension case has been forwarded to the Accountant General, Madhya Pradesh, Gwalior for sanction of pension at revised rate.

       2. Held; There is no dispute that the provisions of the Madhya Pradesh Civil Services (Pension) Rules 1976 apply to the petitioner in relation to the institution of alleged departmental enquiry against him. The provisions of clause (b) (i) of sub – rule (2) of Rule 9 of the Rules unequivocally provides that departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re – employment shall not be instituted save with the sanction of the Governor. In the present case admittedly the petitioner had retired on 1st July, 1982. The Government had taken the decision to initiate the departmental enquiry against the petitioner by order dated 28th July, 1984 (Annexure I) when the petitioner was neither in service nor was re – employed. That bring so, the order for institution of the departmental enquiry proceedings can be validly made only after obtaining the sanction of the Governor.

       3. The petitioner in paragraph 14 (b) of the petition bas specifically alleged that there was no sanction of the Governor of Madhya Pradesh in regard to initiation of the departmental enquiry but the respondent neither in the relevant paragraph 14 nor anywhere else in the return made a denial of this specific allegation. All that has been stated in paragraph 14 of the return is that the dep'1ftmental enquiry has been ordered against the petitioner by the competent authority. The order for initiation of the departmental enquiry cannot be construed as sanction of the Governor within the meaning of clause (b) (i) of sub – rule (2) of Rule 9 of the Rules. In these circumstances, the only conclusion that can be drawn is that the institution of the departmental enquiry was ordered without any sanction of the Governor in that behalf, consequently in the absence of such a sanction which is the statutory requirement, the order for initiation of the departmental enquiry proceedings cannot be sustained.

       4. Learned counsel for the respondent – State submitted that the order dated 28th July, 19R4 (Annexure I) is the order of the State Government passed in the name of the Governor and, therefore, according to the Rules framed for the transaction of the business of the Government of the State under article 166 (3) of the Constitution of India, the said order should be deemed to be an order passed by the Governor. Having regard to the facts of the case, the contents of the said order and the provision contained in clause (b) (i) of sub – rule (2) of Rule 9 of the Rules, it is difficult to accept this contention. Firstly it may be pointed out that the sanction of the Governor for the purpose of the institution of an enquiry against delinquent Government – servant will not be an executive action of the Government of the State so as to attract the provisions of article 166 (3) of the Constitution because in the present case, the function of the grant of sanction for institution of the departmental enquiry bas been enjoined upon the Governor by the statutory rules – Rule 9 (2) (b) (i) which is the condition precedent for the institution of the departmental enquiry. By Rules of business made under clause (3) of article 166 of the Constitution, the Governor may allocate all his functions to the Ministers except those which be is required by or under the Constitution to exercise in his own discretion and in relation to the business allocated to perform such function as may be assigned to him, But the provisions of Rule 9 do not contemplate the allocation of function by the Government in regard to the grant of sanction for the initiation of the departmental enquiry against a Government servant who has already retired. In view of the provisions contained in the Rules function regarding sanction to initiate the enquiry has to be performed by the Governor himself. Petition allowed.