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HIGH COURT OF MADAHYA PRADESH : AT JABALPUR
W.A.No.292/2010
State of M.P. and others
Vs.
Dr.Ashok Sharma
For Appellants/State:
Shri P.K.Kaurav, Deputy Advocate General.
For respondent:
Shri Sanjay Agarwal, Advocate.
DB: Hon'ble Mr. Justice Arun Mishra&
Hon'ble Mr. Justice S.C.Sinho
Order passed on :18/05/2010
Whether approved for reporting :Yes/No.
O R D E R
As Per:- 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, MP, Bhopal. His
suspension was ordered vide Order (P/1) dated
24.02.2010. 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 case, charge sheet
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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 26.3.10.
Aggrieved thereby the instant writ appeal has
been preferred.
4. Shri P.K.Kaurav, learned Deputy AG
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
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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 AG has also
relied upon decision of Apex Court in State of
Orissa Through its Principal Secretary, Home
Dept. vs. 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 Lokayukta,
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
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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
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those are found to be sufficient for ordering
suspension of the petitioner. Enquiry in six
cases was pending before the Lokayukta. In
one of the case 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 17.1.08 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
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circumstances that health department
constitute a team for rate analysis. It could
not be said that petitioner was given clean
chit by the aforesaid communication.
Communication (P/8) dated 8.8.07 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, MP, 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 deducted at the source.
A reading of communications makes it clear
that no clean chit was given to the
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petitioner. In WP No.8163/2008 and WP
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
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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 and
others vs. State of M.P. and others
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.
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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 and others vs. State
of M.P. and others (supra) in para 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 is
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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 Nyaylaya (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 againt
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’
Cooperative 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
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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 scrutinized 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 26/03/2010 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.
(Arun Mishra) (S.C.Sinho)
Judge Judge