Madhya Pradesh High Court
Mahavir Prasad Jain vs The State Of Madhya Pradesh on 25 February, 2016
Author: Sushil Kumar Palo
Bench: Sushil Kumar Palo
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No. : 3454 OF 2016
Mahavir Prasad Jain
- V/s -
State of M.P. & Others
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice Sushil Kumar Palo.
----------------------------------------------------------------------------------------
Shri Prashant Singh, learned counsel for the petitioner. Shri Deepak Awasthy, learned Government Advocate for respondent Nos.1, 2 & 3.
Shri Pankaj Dubey, learned counsel for respondent No.4.
----------------------------------------------------------------------------------------
ORDE R (25-02-2016) Petitioner was working as In-charge, Chief Executive Officer, Janpad Panchayat, Tamiya. A trap was organized by Lokayukt Organization and based on the same an offence under Section 7 r/w Section 13(1) (d) and 13(2) of Prevention of Corruption Act, 1988 was registered against the petitioner. Due to registration of the aforesaid offence by the impugned order dated 16.12.2014 petitioner has been kept under suspension and challenging his suspension, this writ petition has been filed.
2. Shri Prashant Singh, learned counsel for the petitioner argued that merely because the petitioner has been trapped and criminal case is pending, he has been suspended. He invites our attention to Rule 9(1) and proviso thereto, as contemplated under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and tried to indicate that as challan in criminal case has not been filed, his suspension at this stage is not warranted. He also 2 invites our attention to a circular issued by the Superintendent of Police Lokayukt, vide annexure P-2 dated 5.12.2014 stipulating that in cases pertaining to trap of an officer there is only a provision for transferring him within three days from the place where he was performing duties at the time of trap and it is submitted that in this circular there is no provision for suspension of an employee. That apart, it is argued that in the earlier writ petition being W.P. No.16852/2015 a Coordinate Bench of this Court vide annexure P-4 on 14.10.2015 had directed the appellate authority to decide the appeal of petitioner and even after contempt applications were filed, the appeal has not been decided. That apart, Shri Prashant Singh points out that in Writ Petition No.20198/2015 vide order dated 20.01.2016 annexure P-6 the departmental enquiry pending against the petitioner has been stayed by this Court and, therefore, he argued that it is a fit case where suspension of the petitioner should be quashed and he should be directed to taken back on duty.
3. Shri Prashant Singh tried to emphasize that the petitioner has been kept under suspension since 16.12.2014, till date the Lokayukt Organization has not concluded the investigation and even the charge sheet has not been filed in the criminal case and, therefore, on account of his prolonged suspension and delay in filing charge- sheet, petitioner's suspension should be revoked and he should be taken back on duty.
4. Shri Deepak Awasthy, learned Government Advocate refuted the aforesaid and invites our attention to Rule 9(1) (b) and argued that the statute confers a discretionary power on the disciplinary authority to suspend an employee against whom in respect of criminal offence, if the matter is under investigation enquiry or trial. Accordingly, Shri Deepak Awasthy, Govt. Adv. argued that as the suspension of petitioner is undertaken by the disciplinary authority 3 on the basis of statutory power in the absence of their being any illegality in exercise of discretion by the disciplinary authority no interference should be made in the matter. As far as circular Annexure P-2 for transferring an employee is concerned, Shri Deepak Awasthy submits that it is only a guideline of the Lokayukt Organization in the matter of shifting of a person, who is involved in the trap case and does not curtail the powers, statutory in nature available to disciplinary authority under Rule 9 of the CCA Rules. Shri Awasthy, Govt. Adv. further argues that in this case stay of departmental enquiry by this Court is on account of the law governing the stay of departmental enquiry when a criminal case on identical fact is pending and if prima facie considering the same the departmental enquiry is stayed, that cannot be a ground for interfering with the order of suspension. Shri Deepak Awasthy, learned counsel argues that even in the matter of stay of departmental enquiry, the department is free to seek vacation of stay and opposes the writ petition, as the departmental proceedings and criminal case are based on different sets of circumstances and merely on the basis of ex-parte stay of departmental enquiry, at this stage he argues that interference should not be made. Finally he submits that statutory appeal filed by petitioner against the suspension Annexure P-12 still pending before the disciplinary authority and, therefore, at this stage indulgence into the matter is not called for.
5. We have heard learned counsel for the parties at length and we have also considered the rival contentions. We find that the petitioner was proceeded against and a trap was laid, a criminal case has been registered against him for offences under Section 7, 13(2) and various other provisions of the Prevention of Corruption Act. Rule 9(1)(b) of the M.P. Civil Services (Classification, Control and Appeal) Rules contemplates that the appointing authority or any other 4 authority to which it is subordinate or the disciplinary authority may place a Government Servant under suspension where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Proviso to sub-section 1 of Section 9 provides that a Government Servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filled against him. If we analyze the entire provision of Rule 9 i.e. sub-clause (a), (b) and the proviso to Rule 9 (1) we find that three eventualities have been indicated therein which empowers the authority contemplated under sub-Section 1 to suspend an employee, the first eventuality is under clause 9(1)(a), which empowers the authority to suspend an employee where a disciplinary proceeding against him is contemplated or is pending. The second eventuality under sub-clause (b) is a case where against the delinquent employee in respect of any criminal offence is under investigation, enquiry of trial is in progress. Apart of these two eventualities which empower the competent authority to suspend an employee proviso to rule 9(1) mandates that when the charge sheet is filed against a government servant with regard to commission of criminal offence involving corruption or an offence under Moral turpitude invariably he has to be kept under suspension. If we analyze the three eventualities which are detailed in rule 9, we have no iota of doubt in our mind that in the present case suspension of the petitioner falls under sub clause (b) of Rule 9(1) and if the discretion has been exercised by the disciplinary authority or competent authority exercising the aforesaid power when admittedly petitioner is facing investigation or enquiry into criminal offence contention of Shri Prashant Singh, counsel for the petitioner to say that the disciplinary authority cannot suspend the petitioner is unsustainable.
56. Apart from the aforesaid, we are of the considered view that the arguments advanced by Shri Prashant Singh, learned counsel to say that petitioner can be suspended only after the challan is filed, as contemplated under proviso to sub-clause 1 of Rule 9 is wholly misconceived, as the proviso is a separate enabling provisions for suspension in all case where a challan has been filed for criminal offence involving corruption or moral turpitude. That being so, we find that the power exercised in the present matter by the disciplinary authority is well within the statutory power conferred on the authority by Rule 9 and we see no reason to interfere into the matter only because the investigation is prolonged or circular annexure P-2 issued by the Lokayukt Organization contemplates a provision for transfer of employee who is involved in trap cases. The circular of Lokayukt Organization will not curtail the statutory power available to the disciplinary authority or competent authority under rule 9(1) of the CCA Rules, it is only a guiding fact or with regard to action to be taken in case where an employee is involved in trap case, the mandate of circular Annexure P-2 only recommends to the disciplinary authority or the competent authority in the matter of posting of an employee who is facing a criminal case and who has been trapped but in no way prevents the disciplinary authority from exercising its independent statutory power under Rule 9. The purpose of issuing of the circular annexure P-2 is a totally different administrative or executive consideration like removing the delinquent employee from place where he has committed offence, so that he does not influence the witness or to facilitate a proper enquiry into the matter. It does not deal with power of suspension available to the disciplinary authority. That apart, merely because the investigation into the matter has been delayed or the departmental enquiry is already commenced and there is stay by this Court, a writ court exercising jurisdiction under article 226 of the Constitution cannot interfere. These are all administrative 6 and executive decisions to be taken by the competent departmental authority or competent authority after evaluating various administration and execution consideration and the power enables the authority to revoke the suspension in a given set of cases, this Court cannot step into shoes of executive authorities and exercise their discretion power. This Court can interfere only if statutory rules or constitutional powers are found to be violated in the matter of suspension of the petitioner and as no such provisions are found to be violated in the instant case, we see no reason to interfere. However as appeal filed by the petitioner in the matter is still pending, the petitioner may file certified copy of this order before the statutory appellate authority before whom the appeal is filed along with copy of memorandum of appeal and on same being done the appellate authority shall consider and decide the appeal in accordance with law within a period of forty five days from its presentation.
7. With the aforesaid, the petition stands disposed of.
(RAJENDRA MENON) (SUSHIL KUMAR PALO)
JUDGE JUDGE
ss