Madhya Pradesh High Court
Sanjay Kumar Jain vs The State Of Madhya Pradesh on 27 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:7393
1 WP-9945-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 27 th OF MARCH, 2025
WRIT PETITION No. 9945 of 2025
SANJAY KUMAR JAIN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. D.P.Singh - Advocate for the petitioner.
Mr. Vivek Khedkar - Additional Advocate General with Mr. Vijay
Sundaram - Government Advocate for the State.
ORDER
1. This petition takes exception to the order dated 13.03.2025, (Annexure P/1) whereby the petitioner, In-charge District Programe Officer, Women & Child Development Department, District Bhind, has been placed under suspension by the order passed in the name of and by the order of Governor. He has been attached during suspension to the office of Divisional Joint Director, Women & Child Development Department, Shahdol Division, Shahdol. The impugned order of suspension has been passed under Rule 9 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966.
2 . The learned counsel for petitioner submitted that information furnished by him was correct and the same was approved by the Collector as also by Commissioner of the Department. He, therefore, cannot be held responsible. Alleging malafide, he submitted that the respondent no.4 is working as OSD to the Minister concerned and in order to accommodate his near one, he has got the petitioner suspended. The learned counsel further submitted that the impugned order has been passed on instructions Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 2 WP-9945-2025 from Minister concerned and further that without considering the seriousness of the allegations, he has been placed under suspension casually.
3 . On the other hand, the learned Additional Advocate General appearing on advance notice has raised a preliminary objection that the impugned order of suspension is appealable under Rule 23 of Rules of 1966 and, therefore, this petition is not maintainable. He submits that at this stage there is no occasion with this Court to examine the correctness or gravity of the charges. He further submits that the impugned order of suspension has been passed by the authority after having prima facie found petitioner guilty of lapses on his part as mentioned in the impugned order. He thus prayed for dismissal of the writ petition.
4 . Considered the submissions of counsel for both the sides and perused the records.
5. The General Administration Department, State of Madhya Pradesh, issued a circular, dated 13.01.2005, whereby certain guidelines have been issued to be followed by its departments before placing an employee under suspension. The circular is reproduced as under:
" वषय- अनुशासानक मामलेा मे शासक य सेवको का अनाव यक िनल बन नह करना तथा लघुशा त अिधरो पत होने क थित म िनल बन अविध को कत य अविध मा य कया जाना।
म य दे श िस वल सेवा (वग करण, िनयं ण तथा अपील) िनयम, 1966 के िनयम 9 म शासक य शेवक के िनल बन के वषय म ावधान है तथा वे थितयाँ व णत ह जनम शासक य सेवक को िनल बत कया जा सकेगा।
2. सामा य पु तक प रप भाग-एक, मांक 13 म उ ल खत है क कसी ऐसे शासक य सेवक को जसके व वभागीय जांच क जाना हो, सामा यतः िनल बत नह ं कया जाना चा हये। जब आरोप गंभीर व प के ह या जब शासिनक से या अ य सुिन त कारण से ऐला करना आव यक/अप रहाय हो, तभी उसे िनल बत कया जाना चा हये। य द जांच पर ितकूल भाव पड़ने क संभावना है , तो उसे िनल बन के बदले अ य थान पर थाना त रत करने पर वचार कया जाना चा हये ।
3. सामा य शासन वभाग के प रप .माक 12-38-91-3-1, दनांक 7-6- Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 3 WP-9945-2025 91 म िनदश दए गए ह क, जहाँ िनयम 9 (1) (क) के अंतगत अनुशासना मक कारवाई के दौरान िनल बत कया जाता है , तो िनल बन आदे श म प एवं सुिन त कारण दशाए जाना चा हये। अनाव यक प से शासक य सेवक को िनल बत कए जाने क पर परा को िन सा हत कए जाने के उ े य से मानव अिधकार आयोग क अनुशंसा पर सामा य शासन वभाग के ाप मांक सी-6-4/97/3/एक, दनांक 19-3-1997 ारा िनदश जार कए गए ह क छोट -छोट ु टय के िलये िनल बन क कारवाई नह ं क जाए।
4. शासन के यान म बार-बार यह त य लाया गया है क स म ािधका रय ारा ायः बना ममुिचत आधार के शासक य सेवक को िनल बत कए जाने क कारवाई क जाती है । जांच म संबंिधत शासक य सेवक या तो िनद ष पाया जाता है अथवा उसे साधारण चेतावनी या कोई लघुशा त अिधरो पत क जाती है । इस कार क कारवाई से शासक य सेवक तो ता ड़त होता ह है , बना काय कए िनल बन अविध के िलये पूण वेतन-भ े, दोषमु शासक य सेवक को दे ना पड़ते ह।
5. वचारोपरा त शासन ने अब यह िनणय िलया है क कसी शासक य सेवक के व जांच म आरोप के व प को दे खते हुए थम या यह तीत हो क संबंिधत शासक य सेवक पर पद युित, सेवा से हटाया जाना अथवा अिनवाय सेवािनवृ जैसी कोई मु य शा त अिधरो पत क जा सकती है , तभी उसे िनलं बत कया जाय। अथात ् लघुशा त के मामल म उसे िनलं बत नह ं कया जाना चा हये।
6. मु य शा त हे तु सं थत वभागीय जांच म य द कसी िनलं बत शासक य सेवक पर जांच उपरांत लघु शा त ह अिधरो पत क जाती है तो उसका िनल बन औिच यपूण नह ं माना जा सकता। अतः रा य शासन ने िनणय िलया है क ऐसे मामल म संबंिधत शासक य सेव त क िनल बन अविध को मूलभूत िनयम 54-बी के प र े य म कत य अविध मा य कर िनत बन अविध के स पूण वेतन-भ े (शासक य सेवक को िनल बन अविध म भुगतान कए गए "जीवन िनवाह भ े" क रािश का समायोजन कर) दए जाएं। यह िनणय इस ापन के सा रत होने क ितिथ से लागू होगा तथा जन करण म िनणय िलया जा चुका है , वे पुनः नह ं खोले जाएंगे। 7 उपयु िनदश का पालन कंड़ाई से सुिन त कया जाए।"
6 . From reading the contents of aforequoted circular, it is evident that before passing a suspension order, the competent authority is required to consider the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 4 WP-9945-2025 following aspects:
i. the Government employee, against whom departmental enquiry is contemplated, shall normally be not placed under suspension unless the charges against such employee are serious and putting him under suspension is unavoidable;
ii. if required the concerned employee may be transferred to any other place instead of suspending him;
iii. on trivial lapses, the action of suspending an employee should not be taken;
iv. after examining the allegations against the employee, if prima facie it is found that such employee can be dismissed or removed from service, then alone action for suspending such employee should be taken.
7 . Thus, the instructions issued by GAD vide aforesaid circular are loud and clear that the suspension in respect of any officer/employee should not be resorted to casually and without examining the necessity of such an action in the facts and circumstances of the case considering seriousness of allegations made against him.
8 . The issue regarding putting an employee under suspension has been examined by the Apex Court in the case of State of Orissa vs. Bimal Kumar Mohanty reported in (1994)4 SCC 126 wherein the Apex Court held as under:
"13. It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393
5 WP-9945-2025 allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.
9. In yet another case of M. Paul Anthony vs. Bharat Gold Mines Ltd. reported in (1999)3 SCC 678, the Apex Court held as under:
"29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nickname of "subsistence allowance", so that the employee may sustain himself. This Court, in O.P. Gupta v. Union of India [(1987) 4 SCC 328 : 1987 SCC (L&S) 400 : (1987) 5 ATC 14] made the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 6 WP-9945-2025 following observations with regard to subsistence allowance: (SCC p. 340, para
15)...."
10. Further, in the case of Union of India vs. Ashok Kumar Agrawal reported in (2013)16 SCC 147, the Apex Court considered the issue and held as under:
"27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as to which version is true when there are claims and counterclaims on factual issues. The court cannot act as if it is an appellate forum de hors the powers of judicial review."
11. The substance of enunciation of law by Apex Court in aforesaid cases is that the suspension of an employee should be resorted to in exceptional cases where the circumstances of the case so warrants based upon seriousness of charges leveled against the incumbent. It has been opined on more than one occasion that the tendency to act under 'suspension syndrome' must by eschewed.
12. The issue now arises as to whether in the instant case, the petitioner has been placed under suspension in a routine manner? The allegation made against the petitioner is that in answer to Question No.1517 & 2764 raised during Vidhan Sabha Session of March' 2025, he has furnished incorrect information. The petitioner has tried to explain that he has furnished correct information and that the same was examined by Collector and Commissioner of the Department. It is his submission that it is only after the information was found correct by Collector and Commissioner, the same was forwarded and, therefore, he cannot be held responsible for furnishing incorrect information. On the other hand, the learned Additional Advocate General refuted the aforesaid submission and submitted that the information furnished by petitioner has been found to be incorrect.
13. Considered, the submissions made by counsel for parties. As has been held by Apex Court in the case of Ashok Kumar Agrawal (supra), it is not desirable that this court Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 7 WP-9945-2025 may find out as to which version is true when there are claims and counterclaims on factual issues. The court cannot act as if it is an appellate forum de-hors the powers of judicial review. However, since the purpose to place an officer under suspension is to keep him away from the mischief range and also keeping in view the instructions issued by GAD and law laid down by Apex Court in aforementioned cases, this court can examine the manner in which the suspension order has been passed.
1 4 . Pursuant to the order, dated 20.03.2025 passed by this court, the learned Additional Advocate General has produced copy of relevant note sheets preceding passing of the impugned order. A bare perusal of the same reveals that the authorities have not considered desirability of placing the petitioner under suspension vis-a-vis the seriousness of the allegations made against him. In view of the specific instructions issued by GAD vide circular, dated 13.01.2005, and the law laid down by Apex Court in the cases referred hereinabove, the authority is required to consider the matter of placing the petitioner under suspension keeping in view the seriousness of allegations and the fact as to whether he is in a position to influence the enquiry. It is also to be considered by the authority as to whether placing petitioner under suspension is inevitable or situation can be handled by posting him somewhere else.
1 5 . At this stage, the preliminary objection raised by learned Additional Advocate General needs to considered. As state above, the impugned order has been passed in the name of and by the order of Governor. The Full Bench of this Court in the case of State of M.P. & another vs. P.N. Raikwar reported in 2018 SCC Online MP 1752 has examined this issue and has held in para 23 as under:
"23. In view of the above, we find that no appeal shall lie to the Governor if an order is passed by him personally in terms of Rule 22 Clause (i) of the Service Rules, but since the order of punishment has not been passed by the Governor personally but has been passed in the name of the Governor, therefore, an appeal would lie under Rule 23 of the Service Rules. The appellate authority shall be Governor in terms of Rule 24(1)(i)(b) of the Service Rules, but again it is not the power to be exercised by the Governor personally, but in terms of Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:7393 8 WP-9945-2025 Rule of Business by the 'Council of Ministers' or the 'Minister' as may be warranted in the Rule of Business."
16. Thus, since the impugned order has not been passed personally by the Governor but has been passed in the name of and by the order of Governor, an appeal would lie under Rule 23 of Rules of 1966 against the impugned order. The Appellate Authority shall be the Governor and shall be considered by the Council of Ministers or the Minister in terms of Business Allocation Rules. In view of the aforesaid, the preliminary objection raised by learned Additional Advocate General is upheld.
1 7 . The perusal of note sheets produced by learned Additional Advocate General, it is revealed that the issue regarding desirability to suspend the petitioner is not considered by the competent authority and is found to have been passed in routine manner. Therefore, instead of relegating the petitioner to resort to remedy of appeal, the petition is disposed off directing the respondent no.2 to reconsider the matter of suspension of petitioner keeping in view the guidelines issued by GAD and also the law laid down by Apex Court in aforementioned cases. Let the decision in this regard be taken by respondent no.2 within a period for 15 days from the date of submitting certified copy of this order. The petitioner is given liberty to make a representation explaining his conduct while placing certified copy of this order before respondent no.2.
18. Petition stands disposed off in above terms.
(ASHISH SHROTI) JUDGE bj/-
Signature Not Verified Signed by: BARKHA SHARMA Signing time: 04/02/2025 05:15:04 PM