For Appellants/State: P.K Kaurav, Dy. Advocate General

For Respondent: Sanjay Agarwal

List of cases referred: 1. State of Orissa through its Principal Secretary, Home Dept. v. Bimal Kumar Mohanty, (1994) 4 SCC 126 (Para 4) 2. Arvind Kumar Jain v. State of M.P, 2007 (3) MPLJ 565 : 2007 (3) M.P.H.T 376 (Para 8)

The Order of the Court was delivered by

Arun Mishra, J.:— In writ appeal an order dated 26-3-2010 passed by learned Single Judge staying the operation of the order of suspension has been assailed.

2. The petitioner was holding the post of Director, Health Services, M.P Bhopal. His suspension was ordered vide order (P-1), dated 24-2-2010. It was mentioned in the order of suspension that there were six cases pending with respect to serious irregularities before the Lokayukt. In one of the cases, charge-sheet has already been issued against Dr. Ashok Sharma. Income Tax Department has also sent the report in which it was mentioned that he was possessing disproportionate assets as compared to his income. As there was possibility of influencing the enquiry adversely, he was placed under suspension.

3. It was submitted before the Single Bench by the petitioner that State Government has conducted an enquiry against the petitioner and vide Documents P-5, P-6, P-7, P-8, P-11, P-14 and P-15 nothing has been found against the petitioner. Order (P-20) passed by this Court in writ petition has also been relied upon by the petitioner. The Single Judge has granted stay of suspension order on 26-3-2010. Aggrieved thereby the instant writ appeal has been preferred.

4. Shri P.K Kaurav, learned Deputy A.G appearing for State/appellants has submitted that the order of suspension could not have been stayed in the facts and circumstances of the instant case. No clean chit has been given by the State to the petitioner. On the other hand, yet another Departmental Enquiry has been initiated in which petitioner has been placed under suspension subsequent to the instant case. Fresh suspension was ordered on 6th of May, 2010. Learned Deputy A.G has also relied upon decision of Apex Court in State of Orissa through its Principal Secretary, Home Dept. v. Bimal Kumar Mohanty, (1994) 4 SCC 126, laying down that when an investigation is likely to be affected by an incumbent, suspension is warranted. He has further submitted that remedy of appeal is also available to the petitioner as such no case for interference is made out.

5. Shri Sanjay Agarwal, learned Counsel appearing for the respondent has submitted that order of suspension was not warranted. Merely, due to the fact that investigation was pending in six cases before the Lokayukt, suspension could not have been ordered. Order (P-20) passed by this Court in writ petition has also been relied upon in which contract which was awarded to Jagran Solutions was upheld. He has further submitted that though the petitioner has been suspended subsequently in another case, but his suspension was totally unwarranted in the case in question by the impugned order. Remedy of appeal could not be said to be an efficacious remedy as the decision has been taken by the State Government to suspend him. Learned Counsel has further submitted that order being interlocutory one, interference in the writ appeal is not warranted. Writ appeal cannot be said to be maintainable against such an order of interim stay passed in a writ petition.

6. After hearing learned Counsel for the parties and going through the various documents, we are of the considered opinion that the order of stay of suspension cannot be allowed to stand in the facts and circumstances of the instant case. It is settled law that order of suspension is not that of punishment. Requirement of law is that reasons must be mentioned in the order of suspension. In the instant case, reasons have been mentioned in the order of suspension and those are found to be sufficient for ordering suspension of the petitioner. Enquiry in six cases was pending before the Lokayukt. In one of the cases, charge-sheet had already been issued to the petitioner and Income Tax Department has sent the report to the Government to the effect that petitioner was possessing the assets disproportionate to his income. In our opinion, these were the grounds which were more than sufficient to order suspension of petitioner, hence, the interim relief could not have been granted staying the operation of the order of suspension. When we refer to the documents relied upon before the Single Bench, communication (P-5), dated 17-1-2008 is a letter of the Deputy Controller with respect to the sample being as per specification. Para 3 of the communication (P-6), dated 26th November, 2009 indicates that there was no unanimity in the opinions of Technical Committee constituted for the purpose of valuation and Directorate of Health Services/Health Department. It would be advisable in the circumstances that Health Department constitute a team for rate analysis. It could not be said that petitioner was given clean chit by the aforesaid communications. Communication (P-8), dated 8-8-2007 is with respect to cancellation of certain supply orders. Communication (P-11) is with respect to the decision of the Committee for the purpose of tenders. Communication (P-12) is dated 16-12-2009 by which explanation was sought from Dr. Ashok Sharma into the various irregularities (P-13) is the reply of the petitioner (P-14) is the communication dated 12th March, 2010 written to the Legal Advisor of Lokayukta, M.P Bhopal with respect to enquiry in Case No. 178/07 pending against Dr. Ashok Sharma. The communication was with reference to letter dated 4-1-2010 written by the Legal Advisor. In communication (P-15), Para 14.7 it has been mentioned that by making payment of the tax the business man was unduly benefited. Tax was required to be deduced at the source. A reading of communications makes it clear that no clean chit was given to the petitioner. In W.P No. 8163/2008 and W.P No. 364/2009 this Court has observed that there was substantial compliance of the tender condition and this Court was not inclined to make an interference as period of contract granted in favour of petitioner Jagran Solutions was going to be over very shortly, it would be in the fitness of the things that contract continues for remaining period. Whatever, that may be the conduct of petitioner in person never came for consideration.

7. In our opinion, when Income Tax Department has sent a report that petitioner is possessing disproportionate assets as compared to his income, that by itself is a sufficient ground to place the petitioner under suspension. Apart from that there are other cases and pendency of Departmental Enquiry also in which charge-sheet was issued. Correctness of the allegations of Departmental Enquiry cannot be determined by making roving enquiry in the matter of suspension. In our opinion, the order of suspension was fully justified and its operation could not have been stayed by the Single Bench. Petitioner was having the remedy of appeal also, appeal has to be decided by an higher body as compared to the authority ordering the suspension. Thus, in view of availability of remedy of appeal also, no interference is warranted in the order of suspension. Apart from that continuance of petitioner was to adversely affect the pending enquiry hence suspension was warranted.

8. Coming to the submission raised by Shri Sanjay Agarwal, learned Counsel appearing for respondent that against an interim order staying such an order of suspension, writ appeal cannot be said to be maintainable. In our opinion, submission is baseless. A Full Bench of this Court in Arvind Kumar Jain v. State of M.P, 2007 (3) M.P.H.T 376 : 2007 (3) MPLJ 565, which has been relied upon by both the parties this Court has observed that proviso to section 2(1) of M.P Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench. An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge. When an interlocutory order has the semblance of final order or affect the rights of the parties, it can be treated as an order for all practical purposes. If an order vitally affect the rights of the parties or destroy the rights or create a situation by which the relegation to the original stage would become impossible, writ appeal would be maintainable.

In Arvind Kumar Jain v. State of M.P (supra), in Paras 18 and 31, the Full Bench of this Court held thus:—

“18. Regard being had to the aforesaid fundamental concept of the term ‘order’ it has to be understood that the statute permits an order to be appealed against. The proviso stipulates that no appeal would lie against an interlocutory order. But an eloquent and pregnant one, when an interlocutory order has the semblance of final order or affect the rights of the parties, it can be treated as an order for all practical purposes. The said exception cannot be treated in absolute terms to nullify the enactment. Therefore, the order has to be a final order by way of final disposal. It cannot be regarded as the correct interpretation of the proviso in entirety, for a Writ Court can issue directions or pass orders in its inherent jurisdiction which can assume the colour and contour of finality and, at an interim stage, can vitally affect the rights of the parties or destroy the rights or create a situation by which the relegation to the original stage would become impossible.

31. In view of the aforesaid premised reasons we proceed to record our conclusions in seriatim:—

(a) The decision rendered in the case of Arvind Kumar Jain (supra), does not lay down the law correctly and is hereby overruled.

(b) Any decision treading on the same path has to be deemed to have been overruled.

(c) The decisions rendered in Nav Nirman (Milan) Deria (supra) and Tejpal Singh (supra), enunciate the law correctly.

(d) The proviso to section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench.

(e) An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge.

(f) The guidelines given in the cases of Shah Babulal Khimji (supra), Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool and London S.P and I. Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Co-operative Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal.

(g) It should be borne in mind that instances given in the aforesaid decisions are not exhaustive but illustrative in nature, because various kinds/categories of orders may be passed in exercise of jurisdiction under Article 226 of the Constitution of India.

(h) The facts in each case, the nature and the character of the order are to be scrutinised to appreciate the trappings of the same.”

In view of aforesaid Full bench decision of this Court, we have no hesitation in holding that the writ appeal is maintainable against such an order. Effect of staying the order of suspension is that writ petition stands allowed at the initial stage itself. Thus, the order impugned falls within the purview of the orders against which appeal lies.

9. In view of aforesaid discussion, we have no hesitation in setting aside the impugned order dated 26-3-2010 passed by learned Single Judge staying the operation of the order of suspension. Writ appeal is allowed. However, parties are left to bear their own costs as incurred of the appeal.

Appeal allowed.