Rajasthan High Court - Jaipur
Bhimsen Grover vs State Of Raj & Anr on 20 August, 2010
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
1-Civil Writ Petition No.3635/2010
Bhimsen Grover Vs. State & Ors.
(against Order dt.15/09/2001-Ann.2)
2-Civil Writ Petition No.3642/2010
Bhimsen Grover Vs. State & Ors.
(against Order dt.01/03/2001-Ann.1)
Date of Order ::: 20/08/2010
Hon'ble Mr. Justice Ajay Rastogi
Mr. HV Nandwana, for petitioner
Mr. M.F.Baig, Dy. Govt. Counsel for respondents
Matter has come upon application (NO.29650/dt.17/07/2010) seeking interim relief. However, at joint request, matter has been heard finally at this stage.
Both the petitions having been filed by one and the same petitioner, hence are being decided by the present order.
Petitioner while holding the post of Junior Engineer (Irrigation), was placed under suspension vide two different orders - dt.15/09/2001 (a) on account of criminal case (FIR-9/99) being registered for offences U/Ss 13(1)(d), 13(2) of Prevention of Corruption Act, 1988 & S.467/468/471, & 120-B, IPC; and (b) upon contemplation of disciplinary inquiry vide order dt.01/03/2001. In disciplinary inquiry, charge sheet was served upon petitioner U/r 16 of CCA Rules after almost five years alongwith memo of charges & statement of allegations on 23/01/2006 (Ann.3) to which he submitted his explanation cum reply, on which comments were called upon and pursuant to which Executive Engineer submitted his comments vide communication dt.20/04/2009(Ann.5) in which it has been pointed out that allegations imputed against petitioner are not sustainable and in fact he was satisfied with explanation furnished by the delinquent and the disciplinary authority took a decision that judgment in criminal case pending against petitioner be awaited and only thereafter, further action would be taken against him. At the same time, it has also been averred that petitioner who is under suspension for last nine years is going to retire on attaining the age of superannuation in November, 2010.
Counsel for petitioner submits that keeping the petitioner under suspension any further is not in public interest while no progress has taken place either in judicial proceedings pending against him and disciplinary inquiry has been put in abeyance awaiting fate of criminal case - in absence of the charge being framed, pending trial for last nine years having rolled by now; and when the petitioner is going to retire in Nov. 2010, action of respondents for continuing the petitioner under suspension is wholly arbitrary and in violation of Art.14 of the Constitution; and so also in contravention of R.13(5) of CCA Rules, as per which the disciplinary authority is under obligation to review order of suspension from time to time while examining as to whether continuing a delinquent under suspension is in public interest in regard to the petitioner in whose case, his prolonged suspension for last nine years have never been considered for review U/r 13(5) at any point of time only for the reason of Circular dt.10/08/2001, as per which an employee facing criminal trial is not required to be reinstated till acquittal of the charged imputed against him. In support, Counsel placed reliance upon decisions of this Court in Prem Pra. Mathur Vs. State (2005(9) RDD 3962 (Raj.); Jai Prakash Soni Vs. State (CWP-6492/2006 decided vide judgment dt. 17/12/2007 at principal seat, Jodhpur), having been taken note of by this Court in Vishnu Kr. Gupta Vs. State (CWP-5350/2006 & 6196/2006 (Suresh Chand Vs. State) decided vide judgment dt.23/01/2009). Taking assistance of judgments (supra), Counsel further submits that case of present petitioner is a rare & exceptional case of prolonged suspension at no fault on his part; inasmuch as it is not the case of respondents that in judicial or disciplinary proceedings, petitioner is not co-operating or the delay in either of proceedings are attributable to him - in absence whereof, continuance of his suspension is unreasonable and deserves to be quashed & set aside.
Government Counsel while supporting the action of placing and continuing the petitioner under suspension, submits that because of criminal case being instituted under Prevention of Corruption Act and pending trial, the suspension is not required to be further examined and action of respondents cannot be said to be arbitrary particularly when judicial proceedings in criminal case are still pendente final outcome whereof and in the facts of instant case, continuance of petitioner's suspension is in the interest of public, warranting no interference by this Court in a limited scope of judicial review.
This Court has considered rival contentions of Counsel for parties and with their assistance, examined the material on record. It has come on record that after the challan being filed by investigating agency, it is pending at the stage of framing of charge. It is not the case of respondents that the delay in any manner is attributable to the petitioner or because of his non-cooperation, the charges could not have been framed in criminal case (FIR-9/99). This fact cannot be ruled out that petitioner is facing agony of suspension for last nine years having rolled by now and is going to retire in Nov. 2010.
It is settled law that order of suspension is not an order inflicting punishment upon a person found to be guilty. Object behind is that before employee is found to be guilty, it may ensure smooth disposal of disciplinary proceedings or criminal case, as the case may be, initiated against him; but at the same time, proceedings should be completed expeditiously in public interest and which is in the interest of employee, as well.
It is also not in dispute at the bar that after Government servant being placed under suspension U/r 13(1) of CCA Rules, the authority U/r 13(5) is under obligation to review its decision of suspension of an employee at a later stage and to independently examine as to whether continuance of suspension any further would be in public interest; however, discretion vested U/r 13(5) has to be judiciously exercised.
As regards administrative Circular dt.10/08/2001, on which reliance has been placed by Govt. Counsel, it cannot over-reach statutory power of the authority vested U/r 13(5) of CCA Rules, as has been held by co-ordinate Bench of this Court in Prem Pra. Mathur Vs. State (supra) ad infra:
"7. ....The proceedings so initiated should be completed expeditiously. In event the disciplinary proceedings or the criminal trial, as the case may be do not reach to their logical consequence within a reasonable period then tit is required that the appointing authority or the authority competent to place public servant under suspension should review the decision to continue such servant under suspension.
In the present case there is no allegation against the petitioner that he has in any way delayed the trial of criminal case. The only reason given by the respondents is that the circular dated 10.08.2001 restrains reinstatement of a Government servant by revoking his suspension till he gets acquittal from the criminal charges. In my considered opinion the circular dated 10.08.2001 cannot curtail the discretion vested with the appointing authority with regard to placing, continuing or revoking suspension of a Government servant. The appointing authority or the authority competent under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal), Rules, 1958 is required to exercise the powers vested with him independently by taking into consideration all the facts, circumstances and the legal position existing.
It has further been considered in Jai Prakash Soni Vs. State (supra) while observing ad infra:
Without commenting on the merits of the case pending against the present petitioner, this Court is of opinion that when there has not been even a remote allegation against the petitioner that the had in any manner delayed the progress of the criminal case of that his suspension was requisite for a fair trail of the case; and further more, when no departmental proceedings have at all been initiated against him, it would have been discreet and reasonable if the Department itself had revoked his suspension. As noticed above, from the month of February 2005 when the challan was put up, till 13.06.2007, the petitioner has continuously attended every date of hearing before the court concerned and then seems to have developed cardiac problems and had undergone angioplasty on 20.10.2007.
Even the charges in the criminal case have not been framed so far; and then, the petitioner is due for retirement on 31.12.2007. There appears no reason or justification from any angle that the petitioner is required to be continued on suspension.
Ordinarily, this Court wold have remitted the matter to the authorities for reconsideration for the purpose of revocation of the suspension order but in view of the fact that the petitioner is due for retirement by the end of this month itself, it appears appropriate to direct the respondents to pass a revocation of the suspension of the petitioner within seven days from today.
and so also in Vishnu Kr.Gupta Vs. State (supra) ad infra:
"Now adverting to merits of instant case in the opinion of this Court, when there is no allegation against petitioners that they had in any manner at all delayed the progress in criminal case or their continuance under suspension is requisite for a fair trial of criminal case pending against them and more-so there is no departmental proceeding initiated against them while at the same time, the authority has failed to exercise its powers U/r 13(5) of CCA Rules to review its decision for sufficient long time of 4 & half years having elapsed by now and petitioners are continuously attending criminal proceedings in court concerned where they have been requesting not to adjourn the case for one or the other reason but where after challan being filed long back on 06/05/06, charges have not yet been framed, there appears to be no reasonable justification from any angle which may considerably require to continue their suspension any further.
As taken note of (supra), in instant case, criminal case initiated against petitioner is pending for last nine years, and after the charge sheet being filed, charges have not yet been framed against him so far; in as much as it is not the case of respondents that it is the petitioner who has delayed progress of criminal case or disciplinary proceedings or that his continued suspension is required for fair trial in criminal case or in disciplinary proceedings. On the contrary, it has come on record that comments having being sought from Executive Engineer are in favour of petitioner - on the basis whereof, disciplinary authority has not proceeded further in disciplinary inquiry and awaited the fate of criminal case, in which charges have yet to be framed even after a lapse of nine years having taken place after filing of the challan way back in the year 2000.
Taking note of the facts on record (supra), without commenting upon merits of criminal case pending against petitioner, it was required for the department itself to review prolonged suspension of petitioner while he is facing agony whereof for last nine years and is going to retire on attaining age of superannuation in November, 2010. In the light thereof, there appears to be no justification to continue the petitioner under suspension any further. Ordinarily, this Court would have remitted the mater to the authority for consideration U/r 13(5) of CCA Rules but keeping in view the fact that the petitioner being at the verge of retirement in November, 2010, it appears to be appropriate to direct the respondents for revocation of suspension impugned herein.
Consequently, writ petitions succeed and are hereby allowed. Continuance of suspension of the petitioner any further vide impugned orders dt.15/09/2001 (Ann.2-CWP-3635/10) & dt.01/03/2001 (Ann.1-CWP-3642/2010) is declared to be illegal and the respondents are directed to reinstate the petitioner in service within one month from today. However, the period of suspension be awaited till final outcome of criminal case and necessary orders in this regard may be passed by the authority subsequently at appropriate stage. No costs.
(Ajay Rastogi), J.
K.Khatri/p.10/ 3635CW2010RsrAug20SuspRvok(2).do