Rajasthan High Court - Jodhpur
Jodha Ram Vishnoi vs Jvvnl & Ors on 7 December, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2678 / 2017
Jodha Ram Vishnoi S/o Shri Mangla Ram, Aged About 57 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 (JD), Jd.VVNL, Jodhpur.
3. Managing Director, Jodhpur DISCOM, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Ankur Mathur.
For Respondent(s) : Mr. Kuldeep Mathur
Mr. D.S.Sodha
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 07/12/2017 This writ petition has been filed by the petitioner aggrieved against the order of suspension dated 6/1/2015 (Annex.6) and the appellate order dated 8/2/2017 (Annex.14) passed by the appellate authority, whereby, the appeal filed by the petitioner has also 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 (2 of 7) [CW-2678/2017] of demanding bribe.
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 7 th 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.
Another writ petition being S.B.Civil Writ Petition No.7520/2016 was filed by the petitioner inter alia with the submissions that Circular dated 7/7/2010,which has been relied on by the respondents is pari materia to the Circular dated 10/8/2001, which has been frowned upon by this Court in Om Prakash Pandiya vs. State of Rajasthan & Ors. : 2015 (3) RLW 2228, wherein, the Circular had been held to be bad in law. Based on the submissions made, the writ petition No.7520/2016 came to be decided by order dated 9/12/2016, wherein, after noticing the fact that the appeal filed by the petitioner seeking revocation of (3 of 7) [CW-2678/2017] order of suspension was dismissed only on account of stipulation in the Circular dated 7/7/2010 and noticing the observations of this court in the case of Om Prakash Pandiya (supra) and finding that the appellate authority had passed the order in appeal mechanically relying on the Circular dated 7/7/2010 without assigning any reasons for continuing with the petitioner's suspension, allowed the writ petition filed by the petitioner, the appellate order dated 17/5/2016 was quashed and the appellate authority was directed to pass fresh order based on the direction contained in the judgment after providing further opportunity of hearing to the petitioner.
By the impugned order dated 8/2/2017, the appellate authority again dismissed the appeal.
It is submitted by learned counsel for the petitioner that respondent appellate authority has passed the order dated 8/2/2017 in a most cursory manner and has not cared to even go through the judgment of this court dated 9/2/2016, wherein, the appellate authority was directed to pass fresh order in terms of the direction contained in the judgment and has simply referred to Regulation No.9(1)(b) of the Regulations of 1962. It is submitted that the appellate authority was required to look into the justification for keeping the petitioner under continued suspension, qua which not a word has been indicated in the order impugned.
Further submissions were made that the respondents are keeping a discriminatory approach towards the petitioner inasmuch as number of officers against whom criminal cases are pending in various courts are working in the department and (4 of 7) [CW-2678/2017] without distinguishing the case of such officers with that of the petitioner, the petitioner is being subjected to continued suspension without any justification, therefore, the order impugned deserves to be quashed and set aside.
Reliance was again placed on the judgment in the case of Om Prakash Pandiya (supra).
Learned counsel appearing for the respondents supported the impugned order. It was submitted that the authorities are competent to place an employee under suspension where a case against him in respect of criminal offence is under investigation or trial and as admittedly, investigation in the matter is pending by ACB, the petitioner has been rightly placed under suspension, which order does not call for any interference and 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.
It would be noticed that the petitioner has approached this Court on third occasion. Initially, he challenged the validity of the order of suspension by filing writ petition, wherein, he was directed to first avail the remedy of appeal, the petitioner filed appeal, which appeal was rejected relying on the Circular dated 7/7/2010 of Government of Rajasthan. When the petitioner approached this Court against the said order, this Court noticing the judgment/observations made in the case of Om Prakash Pandiya (supra), quashed the appellate order, which was based on the Circular dated 7/7/2010 and directed the appellate authority to re-decide the appeal.
(5 of 7) [CW-2678/2017] The appellate authority on remand has decided the appeal inter alia observing as under:
"Being aggrieved by the order passed by the Appellate Authority on dt.17-05-2016 Shri Jodha Ram Vishnoi filed another Writ Petition no. 7520/2016 and an order was passed by Hon'ble Rajasthan High Court on dt.09-12-2016 directing Sh. Jodha Ram Vishnoi Jen (U/S) to prefer another appeal on dt.13-12-2016 and was heard personally by the Appellate Authority on dt.11.01.2017 by the Appellate Authority & after going through all the facts related to the case, it has been found that the Zonal Chief Engineer (JZ) Jd.VVNL. Jodhpur has rightly placed Shri Jodha Ram Vishnoi, JEn and Shri Gomand Ram, Helper under suspension vide his orders dt.06.01.2015 and 31.12.2014 respectively in light of the Regulation No.9(1)
(b) of Erstwhile RSEB CC&A Regulations of 1962.
Therefore, the undersigned do not find any substance in the appeal filed by Shri Jodha Ram Vishnoi, JEn (U/S) and hereby dismisses the said appeal."
A bare look at the above order would reveal that the appellate authority has passed the order in a most slip shot and cursory manner inasmuch as the directions issued by this Court dated 9/12/2016 though have been noticed, no attention has been paid to the said observations. While the appeal was earlier decided relying on the Circular dated 7/7/2010, in the present order the appellate authority has not even cared to refer to said Circular and has simply observed that the petitioner has been rightly placed under suspension in light of Regulation No.9(1)(b) of the Regulations, 1962. As already noticed hereinbefore, this Court in the case of Om Prakash Pandiya (supra) after coming to the conclusion that the competent authority while putting any employee under suspension/appellate authority while upholding the order of suspension is required to record reasons and cannot follow the provisions of Regulations/Circular mechanically.
(6 of 7) [CW-2678/2017] However, the order impugned passed by the appellate authority is nothing but a mechanical upholding of the order passed by the competent authority, which placed the petitioner under suspension. The appellate authority has not even cared to indicate the requirement of Regulation 9(1)(b) and has simply referred to the same, thus, the action of the appellate authority cannot be sustained which is essentially in negation of the powers as such appellate authority.
The petitioner in the writ petition, while filing Annex.12, has raised contention about several officers of the respondent Nigam working despite pendency of criminal cases, no response to the said averment made in the writ petition has been given in reply and even the reply filed by the respondents is in a standard format without making any attempt to deal with the averments made in the writ petition. As such, on that count also the order passed by the appellate authority cannot be sustained.
Further, the action of the respondents in keeping the petitioner under suspension since 6/1/2015 i.e. for about 3 years now without providing any justification either in the order of appellate authority/the reply to the writ petition and/or during the course of submissions before this court also cannot be sustained.
Consequently, the writ petition filed by the petitioner is allowed. The order dated 8/2/2017 (Annex.14) passed by the appellate authority is quashed and set aside, the order dated 6/1/2015 (Annex.6) passed by the respondents placing the petitioner under suspension is also quashed and set aside. The petitioner would be reinstated back in service forthwith, however, (7 of 7) [CW-2678/2017] payment of pay and allowances for the period of suspension would follow the final outcome of criminal proceedings initiated against the petitioner. No order as to costs.
(ARUN BHANSALI)J. Baweja-88