Chattisgarh High Court
Vijay Narayan Tiwari vs State Of Chhattisgarh on 6 December, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 8343 of 2022
Vijay Narayan Tiwari S/o Shri K.L. Tiwari Aged About 60 Years Working As Chief
Executive Officer, Janpad Panchayat, Bhopalpatnam, District - Bijapur
Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through The Secretary, Scheduled Caste And Scheduled
Tribe Development Department, Mantralaya Atal Nagar, New Raipur, District -
Raipur Chhattisgarh.
2. The Secretary Government of Chhattisgarh, Panchayat And Rural Development
Department, Mantralaya Atal Nagar, New Raipur, District - Raipur Chhattisgarh.
3. The Commissioner, Bastar Division, Jagdalpur, District - Bastar Chhattisgarh.
4. The Collector Bijapur, District - Bijapur Chhattisgarh.
5. The Chief Executive Officer Zila Panchayat, Bijapur, Distt - Bijapur Chhattisgarh..
--- Respondents
For Petitioner : Mr. Gautam Khetrapal, Advocate.
For Respondent/State : Mr. Vaibhav Singh, PL.
Hon'ble Shri Parth Prateem Sahu, Judge
Order on Board
06/12/2022
1. Learned counsel for petitioner submits that petitioner has filed this writ petition seeking revocation of order of suspension and not for quashment of order of suspension, hence, writ petition may be considered for relief of revocation of order of suspension on the ground that Competent Authority even after lapse of more than 90 days has not reviewed order of suspension and passed an order extending period of suspension. Vide order dated 18.08.2022 (Annexure P-1), petitioner who is holding the post of Chief Executive Officer was put under suspension. Subsequent to passing of an order of suspension, petitioner was served with charge memo. Departmental enquiry initiated against the petitioner is not concluded and is pending. From the date of issuance of order of suspension as of now more than 90 days has been elapsed, but respondent No.3/Commissioner (Authority who issued order of suspension), has not reviewed suspension order, as to whether order of suspension to be revoked or suspension of petitioner is to be extended, after lapse of 90 days. It is boundant duty of Competent Authority to review the order of suspension passed against Government employee which has not been done in this case. 2
2. Learned State Counsel opposes submission of counsel for petitioner and submits that petitioner has not approached the Competent Authority after lapse of period of 90 days and directly filed this writ petition before this Court, if he approaches before the Competent Authority by way of filing a representation, it will be considered and decided in accordance with law.
3. Heard learned counsel for the parties and perused record.
4. Submission of counsel for petitioner is that petitioner was suspended on 18.08.2022, departmental enquiry is pending against him and as of now, period of more than 90 days has already been completed. Hon'ble Supreme Court in case of Ajay Kumar Choudhary vs Union of India through its Secretary & Anr report in (2015) 7 SCC 291, has considered the issue of keeping a government employee under suspension beyond period of 90 days, and held as under :-
"20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the 4 proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.3
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 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."
5. Considering entire facts and circumstances of case, submissions of learned counsel for respective parties, decision of Hon'ble Supreme Court in case of Ajay Kumar Choudhary (supra), this writ petition is disposed of permitting petitioner to submit representation before respondent No.3 raising all grounds as raised in this writ petition within 'two weeks' from today. If such representation is submitted by petitioner, respondent No.3 is directed to consider and decide the same within an outer limit of 'three weeks' from the date of receipt of copy of representation keeping in mind the decision in case of Ajay Kumar Choudhary (supra). CC as per rules.
Sd/-
(Parth Prateem Sahu) JUDGE J/-