Rajasthan High Court - Jaipur
Dalip Kumar Targ S/O Shri Taru Ram vs State Of Rajasthan Through Principal ... on 15 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 22187/2018
Dalip Kumar Targ S/o Shri Taru Ram, Aged About 51 Years,
Resident Of H. No. A2/12, Sector-22, Pratap Nagar, Jaipur-
302033(Raj.)
----Petitioner
Versus
1. State Of Rajasthan Through Principal Secretary, Public
Health Engineering Department, Government Secretariat,
Jaipur
2. The Chief Engineer (Administration), Public Health
Engineering Department, 2 Civil Lines, Jal Bhawan, Jaipur
3. The Secretary, Department of Personnel Government of
Rajasthan, Jaipur, Rajasthan
----Respondents
For Petitioner(s) : Mr. Dilip Kumar Targ, Executive
Engineer present in person
For Respondent(s) : Mr. Shrawan Singh Shekhawat, DOP
present in person
Mr. Mukesh Bhagia, AEN, Litigation on
behalf of Mr. M. M. Rawat, EE,
Litigation, PHED present in person
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
15/02/2019
The petitioner challenges his suspension order dated
31.03.2018, whereby the Joint Secretary, PHED has suspended
the petitioner in terms of Rule 13 (1) of the Rules, 1958
allegations levelled are of seepage of Raw Water Reservoir at
village Malsisar under the Taranagar jhunjhunu Sikar joint project.
Petitioner submits that he is holding the post of Executive
Engineer and was posted up to 3rd November, 2015 and the work
of the Reservoir as per the order dated 31.03.2018 was completed
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by November, 2017. He has taken this court to the report
submitted by the Technical Committee of the three Chief
Engineers which was found to submit the report relating to the
breach of the Reservoir at village Malsisar. As per the conclusions
of the Committee, the responsibility of slackness of Departmental
Officers apart from contractor has been fixed on the Executive
Engineer and Assistant Engineer posted in the month of February-
March, 2017 at the said place. The petitioner has stated that the
then Executive Engineer Narsidhar Jangid had been allowed
voluntary retired while no action has been taken against the
Assistant Engineer, who was posted in February-March, 2017.
Petitioner also submits that no charge-sheet has been issued
to him while he is under suspension for last 11 months. It is
submitted that he is under the control of the DOP which is the
authority having power to suspend him. The order passed by the
Joint Secretary, PHED has not yet been approved by the DOP.
Officer In-charge of DOP is present and AEN on behalf of the
PHED is also present. The Officer In-charge DOP states that no
approval has been granted by DOP and the DOP has returned
several letters to the department for providing draft charge-sheet
or proposal relating to the action proposed to be taken vide letter
dated 3rd January, 2019, however, the PHED has not reverted
back.
The AEN representation of the department, submits that he
has no information relating to the case. Petitioner raise that he
has already submitted the several representations but no decision
has been taken thereto.
I have considered the submissions find that the Rajasthan
Civil Services (CCA) Rules, 1958 provide as under:-
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"13. Suspension.-
(1) The Appointing Authority or any authority
to which it is subordinate or any other
authority empowered by the Government in
that behalf may place a Government servant
under suspension. (a) Where a disciplinary
proceedings against him is contemplated or
is pending, or (b) Where a case against him
in respect of any criminal offence is under
investigation or trial: Provided that where the
order of suspension is made by an authority
lower than the Appointing Authority, such
authority shall forthwith report to the
Appointing Authority the circumstances in
which the order was made.
(2) A Government Servant who is detained in
custody, whether on a criminal charge or
otherwise, for a period exceeding forty-eight
hours shall be deemed to have been
suspended with effect from the date of
detention, by an order of the Authority
competent to place a Government Servant
under suspension under sub-rule (1) and
shall remain under suspension until further
orders.
(3) Where a penalty of dismissal, removal or
compulsory retirement from Service imposed
upon a Government Servant under
suspension is set aside in appeal or on
review under these rules and the case is
remitted for further inquiry or action or with
any other directions, the order of his
suspension shall be deemed to have continue
in force on and from the date of the original
order of dismissal, removal or compulsory
retirement and shall remain in force until
further orders.
(4) Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a Government Servant is set aside or
declared or rendered void in consequence or
by a decision of a Court of Law and the
disciplinary authority, on a consideration of
the circumstances of the case, decides to
hold a further inquiry against him on
allegations in which the penalty of dismissal,
removal or compulsory retirement was
originally imposed, the Government Servant
shall be deemed to have been placed under
suspension by the Appointing Authority from
the date of the original order dismissal,
removal or compulsory retirement and shall
continue to remain under suspension until
further orders.
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(5) Any order of suspension made or deemed
to have been made under this rule may at
any time be revoked by the authority which
made or is deemed to have made the order
or by any authority to which that authority is
subordinate."
As per the proviso to Rule 13(1) of the Rules of 1958 it is
apparent that while suspension order can be passed by the
authority lower then appointing authority, the same has to be
reported to the appointing authority the circumstances in which
the order was made and the same, therefore, has to be approved
by the appointing authority but here is the case for last 11 months
the DOP having information of the suspension, has failed to pass
any further order and at the same time charge-sheet has not also
been issued. The report submitted by the Board of Chief Engineer,
does not indict the petitioner who was admitted and not posted at
that relevant time when the breached occurred. The respondents
in their reply have also not stated that the petitioner was in any
manner at fault so far as which part is considering. However, the
submissions of the respondents in their reply is that the very
construction of the said Reservoir was party and thus, the
petitioner was responsible for the lapse. Taking into consideration
the reply, it is apparent that the respondents department was
required to submit its proposal for initiating departmental
proceedings and Officers or Government employee cannot be
allowed to remain under suspension without further taking any
decision with regard to the departmental proceedings as of the
apparent provisions of Rule 13(1) as quoted hereinabove, the
Government servant who is placed under suspension is with the
purpose of initiating departmental proceedings so that he may not
effect or influence the departmental proceedings suspension is not
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treated as a punishment. However, in public image and society it
does cause a bolt on the service carrier of the concerned individual
and therefore, it is of the more necessary that the department
should immediate take steps after suspending a Governmental
employee for initiating departmental action if they so proposed it
is another thing that the a Criminal case made have been
registered and suspension is issued with regard to the same. Thus
viewed, this court finds that they has been compete in action on
the part of the respondents after having suspended the petitioner
this court in case of Manvendra Singh Vs. State of Rajasthan &
Ors., it has been held as under:-
"1. The brief facts which need to be
referred for the purpose of disposal of the
present writ petition are that the petitioner
was holding the post of Head Constable,
Sawaimadhopur while he was investigating
one case registered at Police Station, Choth
Ka Barwara arising out of FIR No.82/2017
dated 29th April, 2017 for the offences under
Section 323, 341, 143 & 336 IPC. A
complaint was registered with the Anti
Corruption Bureau, Sawaimadhopur on
15.05.2017 by one Ram Singh Gurjar
alleging demand of bribe by the petitioner
and Anti Corruption Bureau conducted the
trap. However, as per the statement of the
complainant the petitioner declined to
receive the amount of bribe and went away
from the spot. On the basis thereof, a case
for an offence under Section 7 of the
Prevention of Corruption Act, 1988
demanding bribe by the petitioner was
registered by the Anti Corruption Bureau
authorities against the petitioner on
12.07.2017. The petitioner submits that the
allegations levelled against him were false
and baseless and with a view to pressurise
him as he was not ready to submit a report
in favour of the accused Ram Singh Gujar. An
application had also been submitted by the
said person seeking transfer of investigation
of the case from the petitioner. Be that as it
may, the petitioner was placed under
suspension vide order dated 17.07.2017
invoking provisions of Rule-13 of the
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Rajasthan Civil Services (Classification,
Control & Appeals) Rules, 1958 (for short'
Rules of 1958') and the petitioner thereafter
moved an application under Rule 13(5) of the
CCA Rules, 1958 seeking revocation of the
suspension order but the same was declined
on the ground that there is a circular issued
by the State Government of not interfering
with the suspension in cases of Anti
Corruption Bureau matters for atleast three
years or where one year has lapsed from the
date of submission of the charge-sheet.
The petitioner has, therefore, preferred
this writ petition seeking revocation of the
suspension.
2. Learned Counsel for the petitioner
submits that chargesheet has already been filed in the said case by the Anti Corruption Bureau authorities on 06th April, 2018 under Section 7 of the PC Act, 1988 and there is a likelihood of the criminal case to take long time. Learned Counsel submits that power of suspension cannot be exercised as a punitive action and the petitioner ought not to be continued to remain under suspension.
3. Per contra, learned Counsel for the respondents have relied upon the circular issued on 07.07.2010 by the Department of Personnel which lays down that if any public servant is caught red-handed by the Anti Corruption Bureau he shall be placed immediately under suspension. Secondly, in cases apart from trap cases, if the prosecution sanction has been granted in ACB matters apart from trap cases, then too the concerned public servant is necessarily required to be suspended and thirdly in cases where allegations of public servant having committed offence of dowry death or grievous offences or offences relating to moral turpitude the concerned public servant is required to be necessarily suspended. It is further stated that question regarding revocation of suspension of such public servants would be examined only after three years of period has elapsed or where charge- sheet has been filed and one year has elapsed and such cases shall be placed before the Committee who will examine the same. It further states that on acquittal by competent Court at the first instance the concerned public servant should be reinstated. Learned Counsel has further relied upon another circular dated 23.02.2015 that in cases where one year has (Downloaded on 06/06/2021 at 01:37:44 AM) (7 of 17) [CW-22187/2018] elapsed from the date of charge-sheet, then only the case can be examined only for revocation by the Committee and a speaking order in this regard is required to be passed.
4. I have considered the submissions of the learned Counsels.
5. Rule 13 of the CCA Rules, 1958 provides the power to the disciplinary authority to suspend an employee against whom there is an allegation of misconduct for which enquiries or where criminal case is registered, the same reads as under:-
"13. Suspension.-
(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) Where a disciplinary proceedings against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence is under investigation or trial: Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.
(2) A Government Servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Authority competent to place a Government Servant under suspension under sub-rule (1) and shall remain under suspension until further orders.
(3) Where a penalty of dismissal, removal or compulsory retirement from Service imposed upon a Government Servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continue in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant is set aside or declared or rendered void in consequence or by a decision of a Court of Law and the disciplinary authority, on a consideration of (Downloaded on 06/06/2021 at 01:37:44 AM) (8 of 17) [CW-22187/2018] the circumstances of the case, decides to hold a further inquiry against him on allegations in which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government Servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
(5) Any order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate."
Thus, upon an FIR having been registered against an individual, the authority is empowered to suspend him. The power under Rule 13(5) of the Rules of 1958 is an independent power of the disciplinary authority taking revocation order of suspension passed by it. There is no pre- condition in regard to the said revocation.
6. That apart under Rule 22, appellate authority is also entitled to decide an appeal against order of suspension and the same reads as under:-
"22. Appeals against orders of suspension: A Government servant may appeal against order of suspension to the authority to which the authority made or is deemed to have made the order, is immediately subordinate."
Thus, if the aforesaid provisions are examined the Rule Making Authority has not provided for curtailing the power of the disciplinary authority with regard to revocation in terms of Rule 13(5) nor there is any fetter or curtailment to the powers of the appellate authority. Both the disciplinary authority as well as the appellate authority are required to examine all the binding circumstances to reach to the conclusion that where the suspension order passed earlier is required to be revoked or to be set aside in appeal, as the case may be.
7. Having said so, it would be apposite to refer to certain judgments passed by the Supreme Court as well as High Court in relation to the suspension orders, its effect and the effect of long continuation of suspension.
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8. In O.P. Gupta Vs. Union of India & Ors.: (1987) 4 Supreme Court Cases 328 the Supreme Court has held in para 15 as under:-
"15. We have set out the facts in sufficient detail to show that there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, [1958] SCR 1080 is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance- generally called subsistence allowance-which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is "to remain alive as on food; to continue to exist". "Subsistence" means- means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in r. 11 of the rules, an order of suspension is not to be lightly passed against the government servant. In the case of Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni & Ors., [1983] 1 (Downloaded on 06/06/2021 at 01:37:44 AM) (10 of 17) [CW-22187/2018] SCR 828 the Court held that the expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fairplay in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Art. 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."
9. In Ashok Gaur Vs. State of Rajasthan & Anr.- 1987(II) Rajasthan Law Reporter 1987 Page 63 it has been held by the Division Bench of this Court in para 10 & 11 as under:-
"10. In view of Rule 13, it is clear that the Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government Servant under suspension. A Government Servant may be placed under suspension where a disciplinary proceeding against him is contemplated or is pending, or where a case against him in respect of any criminal offence is under investigation, or trial, or a Government Servant is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention by an order of the Appointing Authority and shall remain under suspension until further orders. A careful study of Rule 13 would also reveal that it is not obligatory on the part of the Appointing Authority to place a Government Servant under suspension under the contingencies referred to above. It is discretionary with the (Downloaded on 06/06/2021 at 01:37:44 AM) (11 of 17) [CW-22187/2018] Appointing Authority to place a Government Servant under suspension or not. Rule 16 provides procedure for imposing major penalties. Rule 17 provides procedure for imposition of minor penalties and the penalties which may be imposed on a Government Servant have been enumerated in Rule 14. In a case, where in any disciplinary proceeding it is contemplated to impose a minor penalty, generally suspension order is not passed. Even there is no provision which gives a mandate to the disciplinary authority to place a Government Servant under suspension during disciplinary proceeding. When a Government Servant who is detained in custody, whether on a criminal charge or otherwise, and the period of detention continues exceeding 48 hours, there is a deeming clause that the Government Servant shall be deemed to have been suspended with effect from the date of detention and, this suspension shall remain until further order. Sub-Rule (5) of Rule 13 provides that an order of suspension made or deemed to have been made under Rule 13 may at any time be revoked by the Authority which makes or is deemed to have been made, the order by the Authority to which that authority is subordinate. From the above discussions, it is apparent that an order of suspension should not be passed by invoking powers under Rule 13 simply because a disciplinary proceeding is contemplated, or criminal case is under investigation or trial against a Government Servant. The Appointing Authority has to exercise his discretion in this regard. A Government Servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross misconduct or corruption which, if approved, will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for a longer period, or where there are reasons to believe that a Government Servant if allowed to continue in active service, might tamper with the evidence, he may be suspended or, in case a Government Servant is facing trial in a criminal court he should be suspended, if he has been refused bail and committed to prison. But simply because a criminal case is under investigation, or trial against a (Downloaded on 06/06/2021 at 01:37:44 AM) (12 of 17) [CW-22187/2018] Government Servant though, he may be put under suspension but (he question arises what should be the nature of the offence? If an interpretation is put that in each and every criminal offence which is under investigation or trial, a Government Servant should be put under suspension, then such a power may be termed as arbitrary power. A Government servant may be facing trial of a minor offence under the Motor Vehicles Act. Would it mean that he should be placed under suspension because he is facing trial? Thus it leads us to infer that Government servant could be placed under suspension with regard to a case which involves a misconduct for which a criminal proceeding may be lodged, or which may also become a subject-matter of disciplinary proceeding. A rational meaning will have to be given to Sub-clause (b) of Rule 13. Sub-rule (2) of Rule 13 is quite specific which says that in case a person remains under custody exceeding 48 hours he may be suspended with effect from the date of detention and such suspension shall continue till further orders. It is enacted for the simple purpose that while under detention a Government servant may not earn his wages. Sub-Rules (2) and (5) of Rule 13 make it clear that the Appointing Authority which has exercised the power of suspension under Rule 13, has a duty to see that the order of suspension may be revoked, if the same is not needed at any time subsequently. 11. There may be other circumstances also and the power to suspend a Government employee will remain unimpaired if there are special circumstances warranting such action. Although, suspension during the pendency of an inquiry or during the continuation of the investigation, or trial is not a punishment, there is always a stigma attached to it, which is not wholly removed even if the officer is later on exonerated. In such circumstances, an order of suspension should, therefore, be passed only after very careful consideration. It is also expected that the period of suspension is not unduly prolonged."
10. In Nand Lal Verma Vs. State of Raj. & Ors.-RLR 1989(1) Page 601 the Division Bench of this Court has held in para 6 as under:-
"6. It is true that the Government has a right to suspend its employees in contemplation of departmental proceedings (Downloaded on 06/06/2021 at 01:37:44 AM) (13 of 17) [CW-22187/2018] or pending investigation. After the service of the charge-sheet if the charges are of a serious nature a Government employee may be suspended pending inquiry. It is now well settled principle that suspension connotes temporary cessation of right to work or temporary deprivation of the office, position or privilege. The real effect of the order of suspension is that though an employee continues to be in service he is not permitted to work and during the period of his suspension he is paid only some allowance which is generally called subsistence allowances. Thus, suspension does not dissolve 'vinoulamjuris' of the employment relationship. Government has right to suspend an employee pending department enquiry or pending criminal investigation. But it is also equally true that such power of suspension cannot be exercised arbitrarily and without any reasonable ground. The power of suspension is to be sparingly exercised and should not be exercised in vindictive manner and it is expected of an authority passing the order to take into account all the relevant materials, nature of the charge, the attendant circumstance and the necessity or desirability of placing the public servant under suspension. The Government is also conscious of the fact that the power of suspension should not be exercised in an arbitrary manner and without any reasonable grounds, therefore, guidelines have been laid down by the Government. In the writ petition the petitioner has reproduced guidelines which have been issued by the Government through difference circulars. The following are some of the guidelines issued by the Government stating that they should be strictly observed in all the cases of suspension of Government employees pending department enquiries :-
i. Suspension should be resorted to with caution and only when one of the major penalties prescribed under the CCA Rules, 1958 is ultimately likely to be imposed on the delinquent.
ii. Ordinarily a government servant should be suspended when there is a strong prima facie case against him and the allegations involve moral turpitude, grave misconduct or indiscipline or willful refusal to carry out orders of superior authority;(Downloaded on 06/06/2021 at 01:37:44 AM)
(14 of 17) [CW-22187/2018] iii. Where there is a strong prima facie case against him which, if proved, would ordinarily result in his dismissal or removal from service and either:-
(a) it is inadvisable that he should continue to perform the duties of his office or
(b) his retention in office is likely to hamper or frustrate the enquiry."
11. In Beni Ram Kushwaha Vs. State of Rajasthan & Ors.- 2001(3) WLC 334 the Division Bench of this Court held in para 13 as under:-
"(13). In our opinion, the authorities, passing an order of suspension, should lake, into consideration, the gravity of misconduct, sought to be enquired into or investigated on the nature of a evidence, placed before the authority. It should not be an administrative routine or an automatic order, to suspend an employee. The appropriate authority has to apply his mind as to whether a public servant should be placed under suspension or not, taking into consideration the prevailing circumstances and also public interest. 11 is not as if in every case, the employee concerned should automatically be suspended. The stigma and ignominy, attached to the temporary cessation of work, by placing the employee under suspension also should be a prime consideration. The documents and evidence relating to the allegation against the appellant, are already in the custody of the officers concerned and also available. The appellant is now working in another placed and there cannot also be an apprehension that the appellant may tamper the evidence. It is also not the case of the management that the continuation of the appellant In office, would be detrimental to public interest and if the appellant is allowed to continue in office, he will tamper the investigation."
12. In Shaukat Ali Vs. State of Rajasthan & Ors. reported in WLR 1992 (S) Raj.855 it has been observed by the Division Bench of this Court in para 4 as under:-
"4. This is true that under Rule 22 of the aforesaid rules, a right of appeal has been conferred on the suspended official to challenge the same by filing an appeal. This Rule reads as follows :-
"22. Appeals against orders of suspension:- A Government Servant may appeal against an order of suspension to the authority to which the authority which made or is deemed (Downloaded on 06/06/2021 at 01:37:44 AM) (15 of 17) [CW-22187/2018] to have made the order, is immediately subordinate".
This is also true that by passing the suspension order, the Government has taken away this right of appeal. But, if this right of appeal has been taken away by a valid order passed by a competent authority, no grievance can be made on this score. Hence, merely because this right has been taken away the order of suspension cannot be said to be bad. Hence, this contention is also without merit."
13. Technically in backdrop thereto, if we examine the circulars issued by the department, it has uniformly placed all the Government servants in such a situation where for no good reason, if a person has been suspended and even in the cases where allegations are under Section 7 of the PC Act and not a case where person has been alleged to have received bribe, the person has to wait for three years till his case can be taken up or made or one year after the charge-sheet is filed for seeking revocation.
14. As noticed in the aforesaid judgments, it is a settled law that suspension cannot be used as a tool for punishing a person. It is not a punitive action at all. However, its ramifications which affect the moral of the concerned individual servant, his status in the society is also seriously affected. There is no time limitation for disposal of the criminal case after the charge sheet is filed. In a criminal case the yardstick adopted by the StateGovernment for examining revocation of suspension only after one year does not seem to have any basis. The circular issued by the State government dated 07.07.2010 and 12.01.2011 so far as it lays down the limitation to examine the revocation of suspension order after a period of three years from the date of suspension and after a period of one year from the date the charge sheet having been filed in hurry impinging on the independent power available to the disciplinary authority as well as to the appellate authority under the Rules of 1958 and to that extent the circulars deserve to be ignored by considering the application seeking clarification under Section 13(5) of the CCA Rules of 1958 or while considering an appeal under Rule 22 of the Rules of 1958.
15. The disciplinary authority/appellate authority has to consider independently the (Downloaded on 06/06/2021 at 01:37:44 AM) (16 of 17) [CW-22187/2018] facts and circumstances, nature of offence alleged, circumstances in a given case and also whether keeping the person under suspension would be necessary for the purpose of continuance of the case. In other words, if the concerned individual is likely to affect the departmental proceedings or the criminal case pending before the authority or the Court by influencing the witnesses, then the suspension may be continued, otherwise the departmental authorities ought to have taken into consideration that 50% / 75% of the salary is being paid to a suspended employee by way of subsistence allowance without taking any work from him. Thus, the concerned person is receiving amount without work. There is other aspect if the concerned authorities are of the view that such a person on account of his alleged misconduct departmental or criminal, is likely to affect the atmosphere of the Officer where he is posted, a decision can always be taken to post the said individual at a different place or transfer him to some other place so that he cannot in any manner disturb or affect the working at other place. Such individuals against whom departmental action is being sought to be taken and are reinstated ought not to be placed in sensitive posting place. They ought to be given work wherein there is no direct public involvement and they should continue to work at such place till a verdict is given by competent Court deciding the criminal case or in the departmental enquiry.
16. In light of the aforesaid observations, this Court examined the facts of the present case. It is noticed that the petitioner has remained under suspension since 17.07.2017 and almost one and a half year has elapsed. The said Constable has been receiving subsistence allowance without performing any duty.
17. Taking into consideration that the charge-sheet has been filed on 6.4.2018 and there is likelihood of the criminal case to continue for years together and also taking into consideration the allegations levelled, this Court is of the view that no purpose would be served in prolonging the suspension of the petitioner further and the suspension order is accordingly revoked.
18. However, keeping in view the observations made hereinabove, the respondents are directed to post the (Downloaded on 06/06/2021 at 01:37:44 AM) (17 of 17) [CW-22187/2018] petitioner at a place where he would not be having any public dealings and would not be in a position to affect in any manner the witnesses in the criminal case. If so required, the petitioner may be posted in any other District than Sawai Madhopur under the same range. 19. With the said observations the writ petition is allowed to the aforesaid extent. The question regarding intervening period of suspension shall be decided only after the decision of the criminal case. However, the petitioner would be entitled for pay fixation upon his reinstatement."
Accordingly, while the respondents would be allowed to take any departmental action if they so proposed as per the proposal sent by the department PHED to DOP, petitioner cannot be allowed to remain under suspension. In view thereof the suspension order dated 31.03.2018 is revoked with directions to the respondents to reinstate the petitioner. However, he shall not be allowed to be posted on a field posting if a departmental action is proposed against him and during the period when departmental proceedings are continued.
The petitioner shall be entitled for his pay fixation and under the present pay scale, however, the question regarding the period suspended under suspension taken in terms of Rule 13 (1) of the Rajasthan Civil Services (CCA) Rules, 1958.
With the said observations, writ petition is allowed.
No Costs.
(SANJEEV PRAKASH SHARMA),J Anand/ Jatin- 54 (Downloaded on 06/06/2021 at 01:37:44 AM) Powered by TCPDF (www.tcpdf.org)