Madhya Pradesh High Court
Balendra Yadav vs The State Of Madhya Pradesh on 24 January, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
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WA-133-2020
THE HIGH COURT OF MADHYA PRADESH
WA-133-2020
(Balendra Yadav & anr. Vs. State of M.P. & ors.)
Gwalior, Dated 24.01.2020
Shri Alok Katare, learned counsel for the appellant.
Shri Pratip Visoriya, learned Govt. Advocate for the
respondent/State.
This Intra Court Appeal u/S. 2 (A) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 07.01.2020 passed in W.P. No.26644/2020 by learned Single Judge while exercising writ jurisdiction u/Art. 226 of the Constitution dismissing the said WP by which challenge was made to the order dated 18.12.2018 placing the petitioner under suspension due to registration of offence on 14.12.2018 u/S. 419, 420, 467, 468, 471 of IPC at P.S. Khaniyadhana District Shivpuri.
Learned Single Judge has dismissed the petition by recording a finding that in his capacity as Patwari, petitioner has played fraud on various gullible agriculturists and therefore, is not entitled to any relief especially in the absence of any material to show that the delay in criminal trial is not attributed to the petitioner. Learned Single Judge has though taken note of the decision of the Apex Court in Ajay Kumar Choudhary Vs. Union of India through its Secretary and anr. (2015) 7 SCC 291 but has not given any finding as regards applicability or inapplicability of the said verdict of Apex Court to the facts of the case.
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WA-133-2020 Admittedly, petitioner/appellant is under suspension for more than one year since 18.12.2018 and there is nothing on record to indicate as to whether his subsistence allowance has been enhanced from 50% to 75% or whether the Competent Authority has applied its mind to the justifiability of further continuance of suspension and paying him 50% or 75% salary without taking any work from him thereby causing unnecessary burden on the public exchequer.
The Single Bench of this Court had an occasion to consider the aforesaid aspect in W.P. No.3353/2018 (Ramveer Sharma Vs. State of M.P. & ors.) on 04.07.2019, relevant portion of which is reproduced below:-
4. The Apex Court in the case of Ajay Kumar Choudhary (supra) has deprecated the action of employer of keeping the employee under prolonged suspension especially when there is an alternative course of posting the suspended employee elsewhere at a place away from the place where crime/misconduct is alleged to have been committed and assigning the petitioner with non-sensitive assignment. More so, the suspended employee continues to enjoy subsistence allowance @ 50% or 75% of the salary without discharging any duty causing avoidable burden on the public exchequer.
4.1 This court after relying upon the decision of Ajay Kumar Choudhary (surpa) has held in Writ Petition No. 22921/18 (Arun Meena Vs. State of M.P.) decided on 04/10/18 as under:-
"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. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the 3 WA-133-2020 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 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
WA-133-2020 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."
It is pertinent to mention here that gravity of misconduct alleged against the appellant has no relationship with the duty cast upon the competent authority to carry out periodical review of suspension, to assess the justifiability of its further continuance.
In view of above, present writ appeal stands disposed of with the following directions:-
(1) The impugned order passed in W.P. No.26644/2019 on 07.01.2020 is set-aside.
(2) The Competent Authority is directed to periodically consider the justification for further continuance of appellant's suspension. (3) The competent authority/committee is directed to carry out 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 5 WA-133-2020 prosecution by posting appellant at a place away from the place where crime/misconduct is alleged to be committed and assigning the petitioner with non-sensitive assignment ?
(c) Whether quantum of subsistence allowance needs to be enhanced ?
(4) The above said exercise in clause (i) be completed by the competent authority/committee within a period of 30 (Thirty) days from the date of communication of this order and pass a speaking order on every review and communicate the same to the appellant.
No cost (Sheel Nagu) (Rajeev Kumar Shrivastava) Judge Judge ojha YOGENDRA OJHA 2020.01.28 11:06:32 +05'30'