1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 2138 of 2016 Order Reserved on: 29.11.2024 Order Delivered on: 27.02.2025 • Ajay Kumar Bajpai S/o Shri Nandan Prasad Bajpai, Aged About 51 Years R/o F/ 2 Jailor Banglo, Jail Parisar, Central Jail Durg, Civil And Revenue District Durg, Chhattisgarh, Chhattisgarh. ... Petitioner(s) versus 1. State of Chhattisgarh Through The Secretary, Home Department, Mantralaya, Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh, Chhattisgarh. 2. The Director General, Jail And Correction Services, Chhattisgarh, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh. 3. S. P. Kurre, Assistant Jail Superintendent Deputy Jailer, Sub Jail, Bemetara, District Bemetara, Chhattisgarh, District : Bemetara, Chhattisgarh. Digitally signed by RAGHVENDRA JAT 2 4. The Assistant Inspector General/ Inquiry Officer, Headquarter, Jail And Correction Services, Chhattisgarh, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh. ... Respondent(s) For Petitioner : Mr. S.C. Verma, learned Sr. Advocate along with Mr. Goutam Khetrapal and Mr. Manharan Sahu, Advocates. For Respondent/State : Mr. S. S. Baghel, Dy. G.A. Hon’ble Mr. Justice Amitendra Kishore Prasad C A V Order 1. By way of this petition, the petitioner has prayed for following reliefs:- “10.1 That, this Hon'ble Court may kindly be pleased to set- aside/quash the impugned charge sheet dated 14.08.2014 with all subsequent action/ order in pursuance of impugned charge sheet. 10.2 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.” 2. Brief facts of the case, is that, the petitioner was working as Assistant Jail Superintendent, Central Jail, Durg, he was placed under suspension on 26.06.2013 by the respondent no. 2 on the 3 allegation that he was talking in mobile under Jail and headquarter of petitioner was fixed at Central Jail, Raipur. On 11.12.2013, the respondent No. 2 has revoked the suspension order of petitioner and directed him to join at Sub-Jail, Bemetara and one S.P. Kurre posted as Assistant Jail Superintendent, Sub- Jail, Bemetara was directed to join at Central Jail, Raipur. While changing the headquarter of petitioner and further while transferring the said S.P. Kurre, the respondent No. 2 has not obtained any approval from the State Government (respondent No. 1). On 10.02.2014, the respondent No. 2 has stayed the posting/transfer order dated 11.12.2013 of S.P. Kurre. According to set-up (Annexure P/7), only one post of Assistant Jail Superintendent (Deputy Jailor) is sanctioned in Sub-Jail, Bemetara. On 13.02.2014, 11.03.2014 & 19.03.2014 petitioner made repeated requests before the respondent No. 2 as well as before the Superintendent, Sub-Jail, Bemetara regarding his posting and apprized the authorities that since the posting order of S.P. Kurrey has been stayed, therefore, appropriate posting order of petitioner be issued, so that the petitioner may be able to perform his duties. On 27.03.2014 no posting order of petitioner was issued, therefore, the petitioner filed Writ Petition (S) No. 1576/2014 before the Hon'ble Court and the Hon'ble Court was kind enough to dispose of the writ petition with a direction to the 4 petitioner to file detail representation. On 04.04.2014, petitioner filed detailed representation before the respondent No. 1, but the same was not decided. On 05.05.2014, petitioner has filed Contempt Case No. 145/2014 in non-compliance of order dated 04.04.2014. On 08.05.2014, the Hon'ble Court was kind enough to issue notice to the respondent No. 2 in contempt case. On 23.06.2014, the respondent No. 1 has cancelled the transfer/posting order dated 11.12.2013 issued by the respondent No. 2, as the same has been issued by the respondent No. 2 without any approval of the respondent No. 1. The respondent No. 1 has further given intimation in this regard to the petitioner for compliance of the order dated 23.06.2014. On 05.07.2014, in compliance of order dated 23.06.2014, petitioner gave his joining at Central Jail, Durg. On 14.08.2014, the respondent No. 2 has issued charge sheet for alleged absent from duty for the period from 12.12.2013 to 04.07.2014. The respondent no. 2 has issued charge sheet for alleged absent from duty for the period from 12.12.2013 to 04.07.2014, initiated departmental enquiry against the petitioner for alleged absent from duty for the period from 12.12.2013 to 04.07.2014, for which, the petitioner has no fault, as the respondent No. 2 himself prevented the petitioner from joining and no proper order for posting of petitioner was issued by the respondent No. 1. Without obtaining any approval from the 5 respondent No. 1, without any jurisdiction, the transfer/posting order dated 11.12.2013 was issued by the respondent No. 2 in respect of petitioner as well as S.P. Kurre, but subsequently the respondent No. 2 has stayed the execution order dated 11.12.2013 in respect of S.P. Kurre and as only one post of Assistant Jail Superintendent was sanctioned at Sub-Jail, Bemetara, therefore the petitioner was not able to join anywhere. Further vide order dated 23.06.2014 the respondent no. 1 has cancelled the transfer order dated 11.12.2013 as being illegal. 3. Learned counsel for the petitioner submits that the initiation of departmental enquiry against the petitioner is itself is not in accordance with law and subsequent framing of charge against the petitioner is an abuse of process of law which cannot be permitted to be continued. The allegation made against the petitioner was that he was unauthorizely absent from the duties which is not correct in the face of it. As vide order dated 11.12.2013, the respondent No. 2 directed the petitioner to join as Sub Jail -Bemetara and by the same order the respondent No. 2 directed the respondent No. 3 to join at Central Jail, Raipur but subsequently on 10.02.2014, the respondent No. 2 on his own stayed the order dated 11.12.2013. Later on, the State Government vide its order dated 23.06.2014 for the first time clarified order dated 11.12.2013 and has set aside the order in 6 respect of the petitioner for joining at Sub Jail, Bemetara. Since there is apparent anomaly in the order, therefore, the petitioner has prayed for a specific direction to the respondent authorities in respect of his joining and the place where the petitioner has to join. However, no order has been passed till 23.06.2014 and thereafter impugned charge sheet was issued on 14.08.2014. According to the record, it was alleged that the petitioner was absent from duty from 12.12.2013 to 04.07.2014, however, the said absence was not due to the acts of the petitioner but it was due to respondent authorities who have issued an order which was itself not clear and ambiguous. It was due to the acts of respondent No. 2 who has passed such a defective order due to which the petitioner could not join the place as directed by the respondent authorities. The transfer/ posting order dated 11.12.2013 in respect of the petitioner as well as S.P. Kurre but subsequently vide another order 11.12.2013 in respect of S.P. Kurre was stayed. There was only one post of Jail Superintendent, however two persons have been transferred on the said place as such it was not possible for the petitioner to join the place in which he was transferred as such the allegation of absent attributed to the petitioner is not at all due to his fault. It was due to the ambiguity order passed by respondent No. 2. Since the petitioner was not at all in any fault the initiation of 7 departmental enquiry based on the aforesaid facts is not tainable in the eyes of law. Even otherwise also since the respondent No. 2 has not having authority and jurisdiction in order to process and pass orders in the departmental enquiry as such the entire proceedings itself is void ab initio. 4. On the other hand learned counsel for the State submits that vide order dated 26.06.2013, the petitioner who was working as Assistant Superintendent in Central Jail, Durg was placed under suspension for an act of indiscipline. The suspension of the petitioner was revoked on 11.12.2013 and he was directed to work at Sub Jail Bemetara and one Mr. S.P. Kurrey, Assistant Jail Superintendent who was posted at Sub Jail Bemetara was directed to work at Raipur. In compliance of the order dated 11.12.2013, the petitioner gave his Joining at Sub Jail Bemetara on 12.12.2013. In the meanwhile, one Shri R.S. Dhruw, who was posted as Assistant Jail Superintendent in District Jail, Dhamtari, was selected as Civil Judge and was relieved and hence, as a stop gap measure, Shri S.P. Kurrey was directed to work at District Jail Dhamtari on 28.12.2013. He further submits that vide order dated 28.12.2013 was challenged by Shri R.S. Dhruw in W.P. (S) No. 4453/2013. In the said writ petition, the Hon'ble Court was pleased to direct the respondents to maintain status- quo for a period of one month. He further submits that on the 8 application of the petitioner with respect to the guidance, the Headquarter of Jail and Correctional Services, Chhattisgarh, Raipur, its letter dated 02.04.2014, has informed the petitioner that the petitioner would work as Assistant Jail Superintendent at Sub Jail Bemetara and Shri S.P. Kurre would work under him. In the meantime, the petitioner has preferred a contempt petition which was registered as Contempt Case (C) No. 145/2014 which was withdrawn on the count that the direction of the Hon'ble Court has been complied with and his representation has been decided. As per the notification dated 22.12.2010 issued by the Department of Home (Jail), State of Chhattisgarh, the word "Jailer" and "Assistant Jailer" has been replaced as "Assistant Jail Superintendent". In Sub Jail Bemetara, 1 post of Assistant Jailer and 1 post of Sub Jailer were sanctioned and hence, after the aforesaid notification dated 22.12.2010, both the posts were renamed as Assistant Jail Superintendent and thus, the substantive post of the petitioner being Assistant Jail Superintendent, he was directed to work at Sub Jail Bemetara. He further submits that on 06.05.2014 while the petitioner was posted and working at Sub Jail Bemetara, the Director of Jail and Correctional Services visited Sub Jail, Bemetara wherein the petitioner was found absence and hence, in the inspection note dated 07.05.2014, the Jail Headquarter directed for enquiry into 9 the unauthorized absence of the petitioner. He further submits that the Jail Superintendent, District Jail Durg was directed to conduct an preliminary enquiry into the matter. The District Jail, Durg, after conducting a preliminary enquiry in the matter, submitted his preliminary inquiry report dated 24.06.2014. From bare perusal of the said preliminary enquiry report dated 24.06.2014, it would be evident that in the preliminary enquiry, it has come that the petitioner was absent from his duty without taking any leave and he used to absent at the time of locking and unlocking of the jail and there were several other lapses on his part. Hence, a departmental enquiry was proposed and accordingly the impugned charge-sheet has been issued to the petitioner. From perusal of preliminary enquiry report dated 24.06.2014, it is apparent that based upon the preliminary enquiry report dated 24.06.2014, the departmental enquiry has been proposed and accordingly the impugned charge-sheet has been issued to the petitioner. The petitioner will have sufficient opportunity to rebut the charges at the time of departmental enquiry proceedings. Hence, no prejudice has been caused to him and therefore, there is no illegality or infirmity on the part of the answering respondents in issuing the charge-sheet impugned. In the light of the submissions made hereinabove, it is 10 apparent that the instant petition deserves to be dismissed being sans merit. 5. I have heard learned counsel for the parties and perused the material available on record. 6. In this respect the judgment passed by the Hon’ble Supreme Court in the matter of Kendriya Vidyalaya Sangathan and Others Vs. Ajay Kumar Das and Others reported in 2002 (4) SCC 503 in which it has been stated that it is an elementary principle of law that if an authority has no jurisdiction over the subject matter and in the process, if orders are passed, they are mere nullity and the effect would be that it was never in force. 7. Likewise, in the matter of Deepka Agro Foods Vs. State of Rajasthan & Others, 2008(7) SCC 748, the Hon’ble Supreme Court has held that when an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null non-est and void ab-initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. 8. The Co-ordinate Bench of this Court has also held in likewise in the matter of Ku. Girija Patel Vs. State of Chhattisgarh & Ors passed in WPS No. 2791/2017. 11 9. Now when the matter is seen in the light of aforesaid judgments it is quite vivid that the entire proceedings has been proceeded by an Officer who was not competent to proceed with. 10. In the present matter also since the proceedings of the departmental enquiry have been initiated by respondent No. 2 who does not having authority according to the Police manual as the entire departmental enquiry is polluted and its vitiated. 11. The High Court of Rajasthan in the matter of Ashok Singh Vs. State of Rajasthan & Ors reported in 2024 SCC Online Raj 2686. Paragraph 5, 6, 12 & 13 reads as under:- “5. Learned counsel also submits that in the case of petitioner, the order dated 21.06.2024 has been passed by a person who is incompetent to issue the suspension order for the reason that the appointing authority of the petitioner is the Principal Chief Conservator of Forest, (HQ), Rajasthan, whereas the order of suspension has been passed by the Additional Chief Conservator of Forest. He, therefore, prays that the writ petition may be allowed and the order dated 21.06.2024 may be quashed and setaside. 6. Per contra, learned counsel for the respondents vehemently opposed the submissions made by counsel for the petitioner and submits that the petitioner has been placed under suspension in anticipation of the Disciplinary 12 Inquiry which is likely to be instituted against him shortly. Learned counsel for the respondents submits that because of the increase in the poaching activities in the area, immediate and strict action was required to be taken in the matter, and since the petitioner was negligent in discharging his duties in preventing the illegal poaching of the Chinkaras (Deer) in the area, he was placed under suspension. Learned counsel for the respondents further submits that the order dated 21.06.2024 has been passed by the competent authority and no interference is warranted in the present case. He, therefore, prays that the writ petition may be dismissed. 12. It is for the competent authority to examine facts of each and every case and to settle desirability to place an incumbent under suspension by applying objective discretion. The suspension of an employee, looking to the facts and circumstances of the case may be desired urgently or on emergent basis but in those circumstances also the competent authority must record its satisfaction for exercising powers under Rule 13 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. If such satisfaction is not recorded and suspension is made merely on the basis of the instructions given in circulars or 13 merely by a word of mouth or by slip of pen, then that is nothing but colourable exercise of power. 13. Strangely, in the present case, the basis of the suspension order dated 21.06.2023 is the compromise deed entered into between the Revenue authorities and the Villagers which clearly reflects total non-application of mind by the Authority who has passed the suspension order. In the opinion of this Court, merely because there is a compromise entered into between the Villagers and the Revenue Officials, the same is not a sufficient ground to place a person under suspension.” 12. In view of above discussions made above, the writ petition merits acceptance and the same is allowed. The impugned charge sheet dated 14.08.2014 is hereby quashed. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat