Madhya Pradesh High Court
Pramod Kumar Shukla vs The State Of Madhya Pradesh Thr on 11 October, 2018
1 WP 6813/16
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No. 6813/16
(Pramod Kumar Shukla Vs. State of M.P.)
Gwalior Dt. 11/10/18
Shri V.S.Kushwah, Advocate for the petitioner.
Shri Kamal Jain, Govt. Advocate for the State.
Shri A.S.Sikarwar, Advocate for the respondent No.4.
1. The present petition filed u/Art. 226 of the Constitution assails Annexures P/1,dated 26/7/16, P/2 dated 6/4/2016, P/3 dated 9/3/2016 and further seeks issuance of a direction to the respondents to supply relevant documents relied upon by the employer in support of the charge-sheet dated 28/7/2015 (Page 24 of the petition).
2. Annexure P/1 is an order passed in appeal by the Commissioner (Revenue) Division Gwalior rejecting appeal preferred by the petitioner against placing the petitioner under suspension. While P/2 dated 6/4/2016 is the order of Additional Collector, Guna (M.P.) declining to entertain appeal preferred against the order of suspension for want of jurisdiction. Lastly, Annexure P/3 is an order placing the petitioner under suspension on 9/3/2016 passed by the Chief Executive Officer, Zila Panchayat, Guna (M.P.) on the ground of petitioner having failed to respond to the charge-sheet dated 28/7/2015.
3. The challenge in this petition, as aforesaid, is primarily based on the ground of denial of reasonable opportunity of being heard before suspending the petitioner and non-supply of documents relied upon by the employer in support of charges alleged in the charge- sheet issued against the petitioner on 28/7/2015 initiating disciplinary proceedings.
4. The respondent No.4, i.e., Zila Panchayat which appears to be the employer of petitioner has filed return justifying placing of the 2 WP 6813/16 petitioner under suspension by enumerating a few instances of misconduct which were found to be serious enough not to permit the petitioner to discharge his duties. The said reply is conspicuously silent as regards present state of disciplinary proceedings commenced pursuant to charge-sheet dated 28/7/2015.
5. It seems that the petitioner continues to be under suspension for more than 2 and ½ years. The Apex Court in the case of Ajay Kumar Choudhary Vs Union of India through its Secretary & another (2015) 7 SCC 291 has deprecated the action of employer of keeping the employee under prolonged suspension especially when there is an alternative course of posting the suspended employee elsewhere at a place away from the place where crime/misconduct is alleged to have been committed and assigning the petitioner with non-sensitive assignment. More so, the suspended employee continues to enjoy subsistence allowance @ 50% or 70% of the salary without discharging any duty which causes avoidable burden on the public exchequer.
6. This court after relying upon the decision of Ajay Kumar Choudhary (surpa) has held in Writ Petition No. 22921/18 (Arun Meena Vs. State of M.P.) decided on 04/10/18 as under:-
"4.1 The Apex court in the case of Ajay Kumar Choudhary Vs Union of India through its Secretary & another (2015) 7 SCC 291 has deprecated the practice of an employer keeping employee under prolonged suspension. The relevant paras of the said judgment are quoted below:-
"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 3 WP 6813/16 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 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 4 WP 6813/16 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 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.
4.2 The Division Bench of this court in the case of Pratipal Singh Gurjar Vs. State of M.P. & others in WP 7247/16 decided on 17/10/2016 has taken a similar view.
4.3 It is expected of the respondents-State in terms of Executive Instructions issued on the subject from time to time that every suspension which continues for long is required to be reviewed to assess it's justifiability of further continuance with simultaneous application of mind to the aspect of enhancement of subsistence allowance. Such periodical application of mind ought to be in writing available on record of the competent authority to be produced when called upon to do so by court testing it's legality and propriety.
4.4 If the disciplinary proceedings have not yet undertaken the exercise of periodical review of further 5 WP 6813/16 continuance of suspension then the situation needs immediate attention of the competent authority.
4.5 Admittedly, suspension is not a penalty but it entails adverse consequences which are no less painful than penalty. Suspension besides being disadvantageous to the employee is also against the interest of the employer and public at large since subsistence allowance is paid to the suspended employee without taking any work from him."
7. In view of the above, this court without entering into merits of the challenge to the order of suspension disposes of the present petition in terms of the following directions:-
(i) The respondents No.1 and 2, as the case may be, is directed to carry out periodical review under the Executive Instructions to ascertain the justification of further continuance 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.
(ii) The enquiry proceedings commenced pursuant to the charge-sheet dated 28/7/2015 be completed within an outer limit of six months.
(iii) The above said exercise in clause (i) be completed by the respondent No. 1 and 2, as the case may be, within a period of 30 (Thirty) working days from the date of communication of this order.
No cost.
(Sheel Nagu)
DHANANJAYA Judge
BUCHAKE
2018.10.15
12:54:34 +05'30'
(Bu)