JUDGMENT
S.J. Mukhopadhaya, J.
1. The petitioner, a Chief Engineer, Water Resources (Minor Irrigation) Department, Jharkhand having placed under suspension under Rule 49-A (1) (a) of the Civil Services (Classification, Control and Appeal) Rules in contemplation of departmental proceedings, has challenged the said order of suspension.
2. The petitioner has challenged the order of suspension on amongst the following grounds :
v(a) The authority, who has passed the order of suspension, has no jurisdiction to suspend the petitioner being subordinate to the appointing authority of the petitioner;
(b) It has been passed to deprive his promotion/posting against higher post of Engineering-in-Chief, five months prior to his retirement; and
(c) No charge can be framed against the petitioner for the alleged act of omission and commission, all steps for work in question having started prior to petitioner’s posting.
3. According to petitioner, by notification dated 12th December, 2001, the petitioner was made Chief Engineer (In-charge) in his own scale of pay. In respect to Kodai Bank Dam, the work had already been given on 19th March, 2002 to one M/s. Topper Construction Pvt. Ltd. with stipulation that it shall commence the work and complete it by 19th March, 2003. Subsequently, by letter No. 839 dated 8th May, 2002, the Engineering-in-Chief instructed the petitioner with regard to review of the Kodai Bank Dam by the Hon’ble the Chief Minister on 3rd and 4th May, 2002 from which one can find the progress of work as reviewed by the Hon’ble Chief Minister. The Engineering-in-Chief, Water Resources Department also inspected the work on 10th May, 2002 alongwith petitioner and four other officers and submitted a report. Meetings were also held and discussion made on 17th May, 2002 with the Hon’ble Chief Minister in which petitioner was also present. A letter was issued on 15.6.2002 that during the Chief Minister’s visit in the district of Giridih on 21st June, 2002, he
will inaugurate Kodai Bank Water Reservoir and therefore necessary action/step was ordered to be taken. It appears that the reservoir was not completed and it caused a breach during rain submerging the adjoining areas.
Further, according to petitioner, the rain fall in the Tisri Block as recorded on 4th and 5th July, 2002 shows heavy, torrential and calamitous rain i.e. 132.6 ram. and 47.4 mm. It was beyond human control which caused breach of the dam. In fact, on the very day i.e. 4th July. 2002, the Chief Minister had visited the site of the dam and unfortunately he being displeased and frowned at the pace of the work of the dam for which there was enormous pressure and the torrential rains caused breach in the hillocks’ tagging point.
According to petitioner, he having no hand in the matter, cannot be accused, nor a departmental proceeding can be initiated against him much-less an order of suspension.
4. Counsel for the petitioner while referred the order of suspension dated 6th July. 2002, submitted that the Secretary who issued the order has no jurisdiction to suspend the petitioner, a member of the Engineering Service Class-I. It was pointed out that the order was not issued “by the order of the Governor of the State of Jharkhand”.
5. Counsel for the respondents submitted that all the procedures followed before issuance of order of suspension. Inadvertently the word “by the order of the Governor of Jharkhand” could not be mentioned in the draft order, which was ultimately typed and was issued.
6. This Court called for the original record which has been produced by the State. It appears that the files containing the decision to suspend the petitioner moved in the department through the Secretary, Chief Secretary and ultimately it was placed before the Hon’ble Minister In-charge of the department and thereafter before the Hon’ble the Chief Minister of the State. The Hon’ble Chief Minister finally ordered to place the petitioner under suspension alongwith some others and thereafter the order contained in Memo No. 2978 dated 6th July, 2002 was issued.
7. It is true that an order of the State is required to be issued in the name of Governor of the State as per the Rules of Executive Business. In fact, all executives action of a State required to be expressed and to be taken in the name of the Governor as per Article 166(1) of the Constitution of India. Such orders and other instrument made and executed required to be authenticated in such a manner as may be prescribed in the rules, known as rules of Executive Business. The constitution, however, does not require any particular formula of “words” for compliance with Article 166(1) of the Constitution of India. What the Court has to see is whether the substance of its requirement has been complied with or not, the provisions being only directory. In the case of State of Rajasthan v. Sripal Jain, AIR 1963 SC 1323, the Supreme Court noticed an order of compulsory retirement issued under Rule 244 (2) of the Service Rules without submitting the matter to the Governor of the State. The Supreme Court held the order “not in valid” and further held that any defect of form in the order by the Government would not necessarily make it legal and the only consequence of the order not being in proper form as required by Article 166 is that the burden is thrown on the Government to show that the order was in fact passed by it.
Similar view was expressed by the Supreme Court in the case of Chitralekha v. State of Mysore. AIR 1964 SC 1823, wherein the Apex Court held that the provisions of Article 166 is directory and not mandatory in character and if they were not complied with it could still be established as a question of fact that the impugned order was issued in fact by the State Government or Governor.
8. In the present case, as it is evident from the original file that the file routed through the officers and Ministers and the order was passed following the procedure prescribed under the Rules of Executive Business, the petitioner cannot assail the order of suspension merely on the ground that the sentence “by the order of the Governor of Jharkhand” has not been mentioned therein.
Further, from the resolution having Memo No. 2839 5th September, 2002 is-
sued by the order of the Governor of Jharkhand, it will be evident that while the State communicated the charge-sheet, mentioned that the petitioner is under suspension.
So far as the facts highlighted by the petitioner to suggest that he had no hand in the matter and the charges are non est, it is not desirable to give any finding at this stage under Article 266 of the Constitution of India as the matter be enquired by the Enquiry Officer and petitioner can raise all the questions in his defence.
This apart, there being noting on the record to suggest, nor any individual person having impleaded as party, I am not inclined to hold mala fide either in law or fact merely on the ground that the petitioner is to superannuate in near future.
9. There being no merit, the writ petition is dismissed.