Rajasthan High Court - Jaipur
Surendra Singh S/O Shri Girraj Singh vs State Of Rajasthan (2023/Rjjp/004443) on 17 March, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023/RJJP/004443]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 16789/2022
Surendra Singh S/o Shri Girraj Singh, Aged About 55 Years, R/o
Village Dayopura, Police Station Sewar, District Bharatpur
(Suspended Head Constable No. 1334)
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary Department Of
Home, Government Secretariat, Jaipur.
2. Inspector General Of Police, Bharatpur Range, Bharatpur.
3. Superintendent Of Police, Bharatpur.
----Respondents
For Petitioner(s) : Mr. Surendra Singh, in person For Respondent(s) : Mr. Rupin Kala, GC HON'BLE MR. JUSTICE SUDESH BANSAL Order 17/03/2023 Reportable
1. By way of instant writ petition filed under Article 226 of the Constitution of India, petitioner has challenged his suspension order dated 02.11.2018 as also the order dated 04.05.2022 passed by the Police Superintendent, Bharatpur, declining to revoke the suspension of petitioner.
2. The relevant facts, in brief, are that the petitioner while posted as Head Constable at Police Station, Udhyog Nagar, Bharatpur, vide order dated 02.11.2018 (Ann.4), invoking powers under Rule 13 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958 (hereinafter for short "the CCA Rules of 1958"), was placed under suspension in contemplation of disciplinary inquiry. Thereafter, on the basis of a preliminary (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (2 of 9) [CW-16789/2022] inquiry, one FIR No.323/2018 dated 05.11.2018, was registered at Police Station Udhyog Nagar, wherein petitioner was implicated as an accused on allegation of hatching conspiracy and misusing his post for implicating one person Karan Singh in a criminal case of smuggling illegal weapons. Petitioner was arrested in this criminal case but later on, released on bail. After completion of investigation of FIR No.323/2018 against petitioner, prosecution sanction was accorded and the charge sheet dated 04.01.2019 came to be filed for offences u/s 193, 195, 365 and 120-B of IPC and 3/25 & 29 of the Arms Act, 1959. At present, session case against the petitioner is pending at the stage of prosecution evidence before the Court of Additional District Judge, Bharatpur. Apart from criminal trial, it appears from record that memo of charges dated 14.05.2019 was served upon the petitioner and disciplinary proceedings under Rule 16 of the CCA Rules 1958 were initiated. It is not in dispute that after full dressed inquiry, the disciplinary proceedings have been concluded and culminated into punishment to the petitioner vide order dated 16.04.2022, with stoppage of three annual grade increments with cumulative effect. Petitioner states that he challenged the punishment order dated 16.04.2022 before the Appellate Authority, but could not pursue the appeal on merits and the same has been dismissed and the punishment, inflicted upon him, has attained finality.
3. Petitioner submits that he was placed under suspension vide order dated 02.11.2018 in contemplation of disciplinary proceedings and the same have been culminated on 16.04.2022 by imposing penalty against the petitioner with stoppage of three annual grade increment with cumulative effect. Hence, thereafter (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (3 of 9) [CW-16789/2022] continuation of his suspension is wholly illegal and unwarranted. Petitioner has placed reliance of the judgment of the Hon'ble Supreme Court in case of Union of India Vs. Ashok Kumar Agarwal [(2013) 16 SCC 147], wherein the Apex Court has observed that suspension order should be passed only where there is strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily to be served a major punishment i.e. removal or dismissal from service, or reduction in rank etc.
4. Petitioner states that denial to revoke his suspension merely drawing an apprehension against the petitioner that he might be adversely affect the witnesses of prosecution in session trial, is wholly arbitrary as there is no evidence or material before respondents to draw such an apprehension and the same is wholly arbitrary, as well as unfounded. Petitioner states that he has already suffered suspension for more than 3 years and even after filing the challan in criminal case against him, more than one year has passed, so as per circular of State Government, he deserves to be re-instated and his suspension be ended. Petitioner has further stated that his retirement is due on 31.07.2023, therefore, his suspension ought to have been revoked by respondents, however, the respondent No.3 has declined to revoke the suspension vide order dated 04.05.2022, which is arbitrary, illegal and against law. Petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in case of State of Tamil Nadu Vs. Promod Kumar, IPS [AIR (2018) SC 4060].
5. Respondents have filed reply to writ petition and have not disputed the fact that disciplinary proceedings against the (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (4 of 9) [CW-16789/2022] petitioner have been concluded with passing a punishment order dated 16.04.2022, however, it has been stated that since the trial of criminal case against the petitioner in respect of serious nature of offences is pending, therefore, revocation of suspension of petitioner has rightly been declined. An objection has also been raised in reply that petitioner has an alternative remedy of appeal/review against the order of suspension under Rules 22 & 34 of the CCA Rules of 1958, therefore, the writ petition be not entertained.
6. Heard. Considered.
7. At the outset, it would be relevant to note here that earlier too one SBCWP No.7676/2020 was preferred by petitioner, challenging his suspension order dated 02.11.2018 and the same was disposed of by the Coordinate Bench of this Court on 10.03.2022, with a direction to respondents to consider the case of petitioner for revocation of suspension in view of law laid down in the case of Ajay Kumar Choudhary VS. Union of India [(2015) 3 SCC 291] as well as in view of Rule 13(5) of the CCA Rules of 1958; simultaneously liberty was granted to the petitioner to file fresh writ petition, if need so arises.
8. Before dealing with the writ petition on merits, this Court deems it appropriate to consider the preliminary objection, raised by respondents to entertain the writ petition and to allow the petitioner to avail the alternative remedy of appeal/review under Rules 22 & 34 of the CCA Rules 1958. In this respect, it may be noted that the Appellate Authority against impugned suspension order is respondent No.2. The suspension order was challenged by petitioner previously by way of SBCWP No.7676/2020, wherein (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (5 of 9) [CW-16789/2022] respondent No.2 was also one of the party respondents and the Coordinate Bench of this Court vide order dated 10.03.2022, disposed of the writ petition with a direction to respondents to consider the case of petitioner for revocation of his suspension within a period of sixty days, simultaneously liberty was given to petitioner to file fresh writ petition, if need so arises. The order dated 10.03.2022 was passed after hearing and in presence of counsel for both parties, including respondent No.2. Thereafter, matter of petitioner was reconsidered, but the suspension order has been declined to be revoked vide order dated 04.05.2022.
9. It has been stated that the matter of petitioner was placed before the Review Committee, and was taken up in meeting dated 25.01.2022. The report of Review Committee have been placed on record as Annexure R/4. From perusal of report of review committee, it transpires that case of petitioner was shortlisted to consider for revocation of suspension by the Review Committee in view of circular dated 07.07.2010 of the Government of Rajasthan, where delinquent employee who has suffered suspension for a period of more than three years and after filing of charge-sheet in Court, a period of one year has also expired, his case can be considered for revocation of suspension. The case of petitioner, on facts, fulfills both the criteria, however, came to be deferred for the next meeting without assigning any good reason whatsoever. There is no clarification/explanation from the side of respondents that when meeting of Review Committee, was scheduled and whether the matter of petitioner was again placed before the Review Committee or not. Further, respondents failed to give any justification that in view of direction of this Court, in (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (6 of 9) [CW-16789/2022] erstwhile SBCWP No.7676/2020, to consider the case of petitioner for revocation of suspension by respondents, wherein the respondent No.2, the Inspector General of Police, the Appellate Authority, is also one of the parties, why the Appellate Authority did not consider and ponder over the issue, and the impugned order dated 04.05.2022 has been passed by the respondent No.3 only.
10. It is a case where either the Appellate Authority itself has not exercised its powers or the respondent No.3 did not choose to refer the matter before the Appellate Authority or Review Committee and then the petitioner has been made to suffer by not considering of his case by the Appellate Authority, therefore, now it does not lie in the mouth of respondents to take a plea that petitioner ought to have approached before the Appellate Authority against his suspension order & then for review. It is not in dispute that the Review Committee did not consider the matter of petitioner in its meeting on 25.01.2022, and deferred the matter for none of good reasons. It is true that the review committee exercises its jurisdiction only to give recommendation, nevertheless, in such peculiar facts and circumstances, where the Appellate Authority as well as Review Committee have not exercised their powers and jurisdiction to revoke the suspension, of petitioner, it would not be justified to relegate the petitioner, again to approach before the Appellate Authority or before the Reviewing Authority for revocation of his suspension. More particularly in previous writ petition, liberty was granted to petitioner to file fresh writ petition, if need so arises. Therefore, preliminary objection of respondents is hereby rejected. No other (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (7 of 9) [CW-16789/2022] argument in respect of alternative remedy has been raised from the side of respondents.
11. Coming to the merits of the present case, it is not in dispute that the impugned suspension order dated 02.11.2018 was passed in contemplation of disciplinary proceedings. Thereafter, memorandum of charges dated 14.05.2019 was served upon the petitioner and disciplinary proceedings under Rule 16 of the CCA Rules of 1958 have been concluded and petitioner has been punished vide order dated 16.04.2022 with stoppage of three annual grade increments with cumulative effect. Thus when for allegations due to which petitioner was placed under suspension, petitioner has already suffered with penalty and the same has been finalized, therefore, after culmination of disciplinary proceedings into the punishment order, the continuation of suspension of petitioner stands arbitrary and unwarranted.
12. As far as continuation of suspension of petitioner on account of pendency of trial of criminal case in respect of FIR No.323/2018 is concerned, in the order dated 04.05.2022, respondents have not indicated any instance, evidence or material to draw a presumption that in case of revocation of suspension of petitioner, there is possibility to temper with the prosecution evidence/witnesses in the criminal case by the petitioner. The apprehension expressed in the order dated 04.05.2022, to deny the revocation of suspension, is wholly on presumptions and hypothetical. In reply to writ petition also respondents are unable to substantiate such hypothetical apprehension, by placing any cogent or convincing evidence/material on record. (Downloaded on 11/11/2023 at 04:34:32 PM)
[2023/RJJP/004443] (8 of 9) [CW-16789/2022]
13. The Hon'ble Supreme Court in case of State of Tamil Nadu Vs. Promod Kumar, IPS [AIR 2018 SC 4060], having adverted to the previous judgment in case of Ajay Kumar Choudhary (supra) where the Hon'ble Supreme Court frowned upon the prolonged suspension, quashed the suspension even during course of continuation of criminal proceedings. In that case, the delinquent employee-Promod Kumar, IPS Officer was suspended, for remaining in custody of police for a period of more than 48 hours due to his prima facie involvement in extorting money from the Directors of M/s Paazee Forex Trading India Private Limited, who were booked for offences under Section 3 & 4 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 and Section 420 of IPC. The Hon'ble Supreme Court opined that there is no doubt that allegations made against the first respondent (delinquent employee), are serious in nature, however, the point is whether the continued suspension of the first respondent for a prolonged period is justified. In absence of any material against the first respondent to temper with evidence, the Supreme Court observed that his reinstatement would not be a threat to fair trial.
14. This Court is of considered opinion that the continuation of suspension order of petitioner dated 02.11.2018 is not justified when disciplinary inquiry has already been culminated on 16.04.2022, and thereafter, to continue the suspension of petitioner, who is at the verge of his retirement (due on 31.07.2023) can be termed arbitrary and unwarranted. Therefore, the suspension order of petitioner dated 02.11.2018 is liable to be revoked and the same is set aside. Since departmental proceedings has already been culminated on 16.04.2022 with (Downloaded on 11/11/2023 at 04:34:32 PM) [2023/RJJP/004443] (9 of 9) [CW-16789/2022] order of punishment by stopping three increments with cumulative effect, petitioner would be entitled for the due wages which were withheld during the period of suspension. It would not be out of place to note that in case any loss of any kind is caused by petitioner to the State, respondents would always be free to take appropriate action against the petitioner even after retirement of petitioner and conclusion of criminal trial pending against the petitioner.
15. The instant writ petition is allowed accordingly.
16. Stay application and other pending application(s), if any, stand disposed of.
(SUDESH BANSAL),J SACHIN/83 (Downloaded on 11/11/2023 at 04:34:32 PM) Powered by TCPDF (www.tcpdf.org)