Rajasthan High Court - Jodhpur
Jodha Ram Vishnoi vs Jvvnl Jodhpur & Ors on 9 December, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.CIVIL WRIT NO. 7520 / 2016
JODHA RAM VISHNOI SON OF SHRI MANGLA RAM, AGED
ABOUT 56 YEARS B/C VISHNOI, R/O PLOT NO. D-61, BADRI
VIHAR, LALSAGAR, JODHPUR.
----Petitioner
Versus
1. JODHPUR VIDHYUT VITRAN NIGAM LTD. THROUGH CMD
JVVNL, VIDHYUT BHAWAN, JANPATH, JAIPUR, RAJASTHAN.
2. ZONAL CHIEF ENGINEER (J.D.) JVVNL, JODHPUR.
3. MANAGING DIRECTOR, JODHPUR DISCOM, JODHPUR.
----Respondents
__________________________________________________
For Petitioners : Mr. Ankur Mathur.
For Respondents : Mr. Sidharth Kawasara for Mr. Kuldeep
Mathur.
__________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 09/12/2016 Heard learned counsel for the parties.
This writ petition has been filed by the petitioner aggrieved against the order of suspension dated 06.01.2015 (Annex.5) and the appellate order dated 17.05.2016 (Annex.10) passed by the respondents, whereby the appeal filed by the appellant against the suspension order has been dismissed.
The petitioner is serving as Junior Engineer with the respondents, an FIR No.433/2014 by Anti Corruption Bureau Jaipur under several provisions of Prevention of Corruption Act, 1988 ('the Act') was lodged against him, wherein he was accused of demanding bribe.
(2 of 5 ) [CW-7520/2016] Whereafter, by order dated 06.01.2015 on account of matter under investigation, the petitioner was placed under suspension. Thereafter, the prosecution sanction was granted on 11.12.2015.
When the suspension of the petitioner was not revoked, S.B. Civil Writ Petition No. 8468/2015 was filed wherein, this Court directed the petitioner to file appeal against the order of suspension dated 06.01.2015 to the Appellate Authority.
In view of the direction of this Court, an appeal was filed by the petitioner. The Appellate Authority by its order dated 17.05.2016, after providing opportunity of hearing to the petitioner based on Circular dated 7th July, 2010, issued by the Government of Rajasthan held that as the prosecution sanction has been given by the competent authority, he has to be compulsorily placed under suspension and as such did not find any substance to interfere in the decision taken by the Zonal Chief Engineer dated 06.01.2015 and dismissed the appeal.
It is submitted by learned counsel for the petitioner that the Circular dated 7th July, 2010, which has been relied on by the respondents, which is pari materia to the Circular dated 10 th August, 2001, has been frowned upon by this Court in Om Prakash Pandiya v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No. 4073/2001, decided on 04.05.2015, wherein it has been held that the Circular dated 10.08.2001 is bad in the eye of law and relying on the said judgment in Sunil Kumar v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.7837/2016, (3 of 5 ) [CW-7520/2016] decided on 17.11.2016, relief has been granted to the petitioner therein.
Learned counsel for the respondents submitted that the stipulation in the circular is very specific and once the prosecution sanction has been granted qua the petitioner, the petitioner cannot seek revocation of his suspension and, therefore, the writ petition filed by the petitioner deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The petitioner was placed under suspension by order dated 6th January, 2015, when the case lodged against the petitioner was still under investigation. Thereafter, based on the material, the prosecution sanction has been issued, however, the appeal filed by the petitioner seeking revocation of the order of suspension has been dismissed only on account of the stipulation in the Circular dated 7th July, 2010 of the State.
This Court in the case of Om Prakash Pandiya (supra) while dealing with the Circular dated 10.08.2001, which is pari materia to the Circular dated 7th July, 2010 held as under:
"Thus, this Court has no hesitation in holding that the circular dated 10.8.2001, whereby an arthritic and unyielding condition has been imposed upon the departmental heads for mandatorily placing the government servants covered by the situations No.1, 2 and 3 prescribed in the circular, under suspension upon the occurrence of the event described therein is (4 of 5 ) [CW-7520/2016] absolutely bad in the eye of law.
Accordingly, while allowing the writ petition, it is hereby directed that the circular dated 10.8.2001 shall henceforth be treated to be nothing further than in the nature of guideline and of advisory nature to the departmental heads in the matters pertaining to suspension of government servants in any of the situations stipulated therein."
A bare look at the findings of this Court reveals that circular has been held to be bad in the eye of law and the Court directed that circular shall be treated as nothing further than in the nature of guideline and of advisory nature pertaining to suspension of Government-servants and in view of the fact that the stipulations in the circular has been held to be in the nature of guideline and of advisory nature, the competent authority while putting any employee under suspension/appellate authority while upholding the order of suspension based on said circular is required to record reasons and cannot follow the same mechanically as the said circular, as such, has been held to be bad in the eye of law by this Court.
The Appellate Authority while passing the order in appeal has mechanically relied on Circular dated 7 th July, 2010 and no reasons have been assigned for continuing with the petitioner's suspension except for referring to the circular.
In view thereof, the order dated 17.05.2016 (Annex.10) passed by the Appellate Authority cannot be sustained. Consequently, the writ petition filed by the petitioner is allowed. The order dated 17.05.2016 (Annex.10) is quashed and set (5 of 5 ) [CW-7520/2016] aside.
The Appellate Authority would pass a fresh order as directed hereinbefore, after providing further opportunity of hearing to the petitioner, wherein petitioner would be free to make submissions other than what has been noticed hereinbefore.
The needful may be done within a period of three weeks from the date a certified copy of this order is placed before the Appellate Authority.
(ARUN BHANSALI)J. Sumit-160