Madhya Pradesh High Court
Arun Meena vs The State Of Madhya Pradesh on 4 October, 2018
1 WP 22921/18
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No. 22921/18
(Arun Meena Vs. State of M.P.)
Gwalior Dt. 04/10/18
Shri Nitin Agrawal, Advocate for the petitioner.
Shri A.K.Nirankari, Govt. Advocate for the State.
1. The instant petition u/Art. 226 of the Constitution of India
assails the order dated 7/6/2017, P/4 by which the services of the
petitioner have been placed under suspension on account of
registration of criminal case against him.
2. For adjudicating the issue which has been raised in support of
the challenge to the impugned order of suspension, this court will
have to go into factual disputes which ought not to be gone into in
writ jurisdiction especially when petitioner has alternative remedy of
preferring statutory appeal under Clause 274 of the M.P. Police
Regulations.
3. Admittedly, the petitioner has not yet availed the said remedy
and the dispute is such which should preferably be decided by the
appellate authority.
4. However, the aspect which is cause of concern not only for the
petitioner but also for the rule of law is that petitioner as alleged
continues to be under suspension since 7/6/2017.
4.1 The Apex court in the case of Ajay Kumar Choudhary Vs
Union of India through its Secretary & another (2015) 7 SCC
291 has deprecated the practice of an employer keeping employee
under prolonged suspension. The relevant paras of the said judgment
are quoted below:-
"11. Suspension, specially preceding the formulation of
charges, is essentially transitory or temporary in nature,
and must perforce be of short duration. If it is for an
indeterminate period or if its renewal is not based on
sound reasoning contemporaneously available on the
record, this would render it punitive in nature.
2 WP 22921/18
Departmental/disciplinary proceedings invariably
commence with delay, are plagued with procrastination
prior and post the drawing up of the Memorandum of
Charges, and eventually culminate after even longer
delay.
12. Protracted periods of suspension, repeated renewal
thereof, have regrettably become the norm and not the
exception that they ought to be. The suspended person
suffering the ignominy of insinuations, the scorn of society
and the derision of his Department, has to endure this
excruciation even before he is formally charged with some
misdemeanour, indiscretion or offence. His torment is his
knowledge that if and when charged, it will inexorably
take an inordinate time for the inquisition or inquiry to
come to its culmination, that is to determine his
innocence or iniquity. Much too often this has now
become an accompaniment to retirement. Indubitably the
sophist will nimbly counter that our Constitution does not
explicitly guarantee either the right to a speedy trial even
to the incarcerated, or assume the presumption of
innocence to the accused. But we must remember that
both these factors are legal ground norms, are
inextricable tenets of common law jurisprudence,
antedating even the Magna Carta of 1215, which assures
that - "We will sell to no man, we will not deny or defer to
any man either justice or right." In similar vein the Sixth
Amendment to the Constitution of the United States of
America guarantees that in all criminal prosecutions the
accused shall enjoy the right to a speedy and public trial.
21. We, therefore, direct that the currency of a
Suspension Order should not extend beyond three months
if within this period the Memorandum of
Charges/Chargesheet is not served on the delinquent
officer/employee; if the Memorandum of
Charges/Chargesheet is served a reasoned order must be
passed for the extension of the suspension. As in the case
in hand, the Government is free to transfer the concerned
person to any Department in any of its offices within or
outside the State so as to sever any local or personal
contact that he may have and which he may misuse for
obstructing the investigation against him. The
Government may also prohibit him from contacting any
person, or handling records and documents till the stage
of his having to prepare his defence. We think this will
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adequately safeguard the universally recognized principle
of human dignity and the right to a speedy trial and shall
also preserve the interest of the Government in the
prosecution. We recognize that previous Constitution
Benches have been reluctant to quash proceedings on the
grounds of delay, and to set time limits to their duration.
However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and
would not be contrary to the interests of justice.
Furthermore, the direction of the Central Vigilance
Commission that pending a criminal investigation
departmental proceedings are to be held in abeyance
stands superseded in view of the stand adopted by us.
4.2 The Division Bench of this court in the case of Pratipal Singh
Gurjar Vs. State of M.P. & others in WP 7247/16 decided on
17/10/2016 has taken a similar view.
4.3 It is expected of the respondents-State in terms of Executive
Instructions issued on the subject from time to time that every suspension which continues for long is required to be reviewed to assess it's justifiability of further continuance with simultaneous application of mind to the aspect of enhancement of subsistence allowance. Such periodical application of mind ought to be in writing available on record of the competent authority to be produced when called upon to do so by court testing it's legality and propriety. 4.4 If the disciplinary proceedings have not yet undertaken the exercise of periodical review of further continuance of suspension then the situation needs immediate attention of the competent authority.
4.5 Admittedly, suspension is not a penalty but it entails adverse consequences which are no less painful than penalty. Suspension besides being disadvantageous to the employee is also against the interest of the employer and public at large since subsistence allowance is paid to the suspended employee without taking any work from him.
5. In view of the above, this court without entering into merits of 4 WP 22921/18 the challenge to the order of suspension disposes of the petition in terms of the following directions:-
(i) The petitioner is at liberty to challenge legality, validity and propriety of the order of impugned suspension dated 7/6/2017 contained in Annexure
-P/4, before the higher authority u/Cl. 274 of M.P. Police Regulations which if done within 30 (Thirty) working days from today alongwith copy of this order, then representation so filed shall be entertained and decided on its own merits without being dismissed on limitation alone;
(ii) The respondents No.1 and 2, as the case may be, is directed to carry out the periodical review under the Executive Instructions to ascertain:-
(a)Whether further continuance of suspension is any more justified ?.
(b) Whether suspension can be revoked pending DE/criminal prosecution by posting petitioner at a place away from the place where crime/misconduct is alleged to have taken place and assigning the petitioner with non-sensitive assignment ?.
(c)Whether quantum of subsistence allowance to be enhanced ?.
(iii) The above said exercise in clause (ii) be completed by the respondent No. 1 and 2, as the case may be, within a period of 30 (Thirty) working days from the date of communication of this order.
No cost.
(Sheel Nagu)
DHANANJAYA BUCHAKE Judge
2018.10.04 18:05:52
+05'30' 04/10/2018
(Bu)