Madhya Pradesh High Court
Sobran Singh Jatav vs The State Of Madhya Pradesh on 18 November, 2016
1 WP.8043/2016
Sobran Singh Jatav Vs. State of M.P. & others
18/11/2016
Shri Gaurav Mishra, Advocate for the petitioner.
Mrs. Ami Prabal, Dy. Advocate General for the
respondents/State.
1. The challenge in this petition under Article 226 of the Constitution of India is to the order of suspension contained in Annexure-P/1 of placing the services of the petitioner under suspension under the provisions of Rule 9 (1) of the Madhya Pradesh Civil Services (Classification, Control and Appeal), Rules 1966, for brevity the Rules 1966 for having been arrested on 18.12.2014 in connection with Crime No. 354/2014 alleging offences punishable under Sections 420, 419, 467, 468, 471, 201, 120-B of I.P.C. and section 3/4 of M.P. Recognize Examination Act, 1937.
2. Learned counsel for the rival parties are heard.
3. When confronted with the objection raised by the learned counsel for the State that an alternative efficacious remedy of preferring an appeal is provided under Rule 23 of the said Rules 1966, learned counsel for the petitioner submits that the petitioner is visited with great prejudice on account of prolonged suspension, which is continuing till date since 18.12.2014. In this regard, it is submitted that despite Executive Instructions issued by the State for periodical review of suspension to assess the justification for further continuance of suspension, no such review has been done and therefore the petitioner has suffered prolonged suspension.
4. Learned counsel for the petitioner drawing attention of this court to decisions of the coordinate bench of this court rendered in W.P.No. 1395/16 (Dr. Rajkumar Dubey Vs. State of M.P. & others), dated 21/9/2016, W.P.No.7154/16 (Kamlesh Singh Niranjan Vs. State of M.P. & others), dated 6/10/2016, Suresh Kumar Purohit Vs. State of M.P. [2005(4) MPLJ 524 as 2 WP.8043/2016 Sobran Singh Jatav Vs. State of M.P. & others well as the decision of the Apex Court in the case of P.L.Shah Vs. Union of India (AIR 1989 SC 985) submits that the petitioner shall be satisfied if a direction is given to the respondents to consider the desirability of further continuance of the suspension period.
5. That, realizing and appreciating the adverse affect of prolonged suspension on the suspended employee, the Apex court in the case of Ajay Kumar Choudhary Vs Union of India through its Secretary & another (2015) 7 SCC 291 has observed thus:-
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 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 3 WP.8043/2016 Sobran Singh Jatav Vs. State of M.P. & others 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 4 WP.8043/2016 Sobran Singh Jatav Vs. State of M.P. & others 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.
6. This court hopes and trust that the above said law of the land is kept in mind by the authorities while deciding question of justification of further continuance of suspension in case of the petitioner.
7. However, the aspect of justification of passing of the order of suspension and as well as its continuance can very well be raised in the statutory appeal under Rule 23 of the Rules 1966 but in view of the decisions of the Apex court in the cases of P.L.Shah (supra) and Ajay Kumar Choudhary (supra), as well as the the above said decisions of this court cited by the petitioner, it would be appropriate if the petitioner is left alone to avail remedy of appeal to assail the legality and validity of the order of his suspension and this petition is disposed of with direction in regard to justification of further continuance of suspension period.
8. Accordingly, the petition is disposed of in terms of the following directions:-
(i) The petitioner is at liberty to challenge legality, validity and propriety of the order of impugned 5 WP.8043/2016 Sobran Singh Jatav Vs. State of M.P. & others suspension dated 15.01.2015 contained in Annexure
-P/1, before the appellate authority which if challenged within 30 working days from today alongwith a copy of this order, then the appeal so filed shall be entertained and decided on its own merits without being dismissed on limitation alone;
(ii) The respondents No.1 and 3, as the case may be, is directed to carry out the periodical review prescribed under the Executive Instructions to ascertain the justification of further continuance of period of suspension and also in regard to the claim for enhanced subsistence allowance, if due under the Executive Instructions by keeping the decisions referred to above, in mind.
(iii) The above said exercise be completed by the respondent No. 1 and 3, as the case may be, within a period of 60 working days thereafter.
No cost.
(Sheel Nagu) (Rajeev Kumar Dubey)
Judge Judge
sarathe