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Rajasthan High Court · body

1992 DIGILAW 389 (RAJ)

Har Bhajan Lal v. R. S. R. T. C.

1992-04-20

G.S.SINGHVI

body1992
JUDGMENT : 1. The petitioner was working as Booking Clerk in Booking Office of R.S.R.T.C. at Kherligani. A criminal case was registered against him for mis-appropriation of a sum of 4184-50, which he had acquired by sale of tickets between 1.2.84 to 6.2.84. The petitioner was challaned under Section 409 Indian Penal Code. The Trial Court convicted him for offence under Section 409 Indian Penal Code and sentenced to imprisonment till the rising of the Court and a fine of Rs. 10,000/- and to undergo one year's simple imprisonment in case of failure to pay the fine. In appeal the sentence of fine was reduced from Rs. 10,000/- to 1,000/- and the alternative sentence from one year to six months. The petitioner filed a revision petition before the High Court. In S.B. Criminal Revision No. 11/91 (decided on 27.1.91) this Court took notice of the fact that the learned counsel for the petitioner was not assailing the judgment of the Courts below on merits. The Court however observed that the petitioner is said to have used the Corporation's money by incurring expenses in his ailment and in his daughter's marriage when his arrears became outstanding with the Corporation. This he did on account of alleged poverty. The money was redeposited with the Corporation during the trial. The Court also took notice of the report of Probation and Social Welfare Officer wherein it was stated that there was nothing adverse on the record to show that the petitioner had repeated his offence and the petitioner is not a person with shady past. On that premise, a learned Single Judge of this Court granted the benefit of the Probation of Offenders Act to the petitioner. 2. At the time of initiation of criminal proceedings the petitioner was placed under suspension by an order dated 27.12.84 of the Divisional Manager of the R.S.R.T.C., Bharatpur. He was also served with charge-sheet for departmental enquiry but no enquiry has in fact been held against him. He continued under suspension even when he had been convicted and his appeal was dismissed by the learned Sessions Judge. After the order of the High Court, the petitioner made an application (Annexure-3) before the Divisional Manager, R.S.R.T.C., Bharatpur for revocation of the order of suspension and for payment of full salary. He repeated this request by representations, Annexure-4 and Annexure-5. After the order of the High Court, the petitioner made an application (Annexure-3) before the Divisional Manager, R.S.R.T.C., Bharatpur for revocation of the order of suspension and for payment of full salary. He repeated this request by representations, Annexure-4 and Annexure-5. He made another representation to the Director (Traffic) for revocation of the order of suspension. Then he served a notice for demand of justice dated 3.7.91 though his counsel. However, despite of service of the notice no action has been taken by the Respondent-Corporation for revocation of the suspension order. 3. The petitioner's case is that his suspension was founded on the allegation which constituted part of his prosecution in the criminal case. Once the High Court has extended the benefit "the Probation of Offenders Act, there was no justification for his continued suspension. As far as the departmental enquiry is concerned, no enquiry has effectively been held for the last eight years. 4. This Court had admitted the writ petition on 9.8.91 and then issued a notice to the Respondent. After service of notice the case was adjourned on 3.12.91 because none of the parties were present. On 3.3.92 the Court observed that the case needs disposal at an early date. The case was ordered to be fixed on 26.3.92. On 26.3.92 the Court noted that despite service of notice on 18.11.91 the Respondents have not filed any reply. The Court gave a last opportunity to the Respondent to file reply by 16.4.92 with a clear stipulation that in case reply is not filed, it will be presumed that the Respondents do not want to contest the petition on facts. On 16.4.92 the case was adjourned at the request of counsel for the Respondents. Despite all these opportunities, reply has not been filed to the writ petition. 5. The only argument advanced by Shri G.C. Garg, learned counsel for the petitioner is that even though there might be some justification for suspension of the petitioner on 27.12.84, continued suspension for more than eight years and about two months was without any reason or rhyme. The petitioner was being harassed on account of prolonged suspension. Shri Garg argued that once this Court has in the criminal revision thought it proper to extend the benefit of the Probation of Offenders Act, the stigma of conviction stands whiped off. The petitioner was being harassed on account of prolonged suspension. Shri Garg argued that once this Court has in the criminal revision thought it proper to extend the benefit of the Probation of Offenders Act, the stigma of conviction stands whiped off. Shri Garg submitted that at least after 21.1.91 there was no justification for continuing the suspension of the petitioner. Shri Bhandari, learned counsel for the Respondents on the other hand argued that the Respondent have initiated an enquiry against the petitioner and, therefore, the suspension was continued During the pendency of the departmental enquiry the petitioner cannot claim reinstatement in service. Shri Bhandari argued that the petitioner was found guilty by the two court, below of an offence under Section 409 Indian Penal Code and therefore, there is every justification for continuing his suspension. When asked by the Court, Shri Bhandari stated that there is no record of previous misconduct of the petitioner. He also could not show as to what steps had been taken for conduct of the enquiry after 21.1.91. 6. Although suspension of the contract of employment is one of the prerogatives of the employer, the right to place the employee under suspension or to continue him under suspension is not an absolute right of employer. If an order of suspension is passed arbitrarily or for extraneous reasons, such an order is liable to be quashed by a Court of competent jurisdiction. Similarly suspension, though initially justified, may be rendered unlawful and arbitrary in case it is continued for long time without any justification. 7. In the present case, I find that the petitioner had been suspended on 27.12.84 on account of registration of a criminal case. At that time passing of the order of suspension was fully justified. The Respondents were free to take any appropriate action against the petitioner on his conviction by a competent court of law but they did not consider it necessary to pass any order after conviction of the petitioner. The High Court, as already noted hereinabove, found that it was a fit case for extending the benefit of the Probation of Offenders Act. While doing so the High Court took notice of the fact that the petitioner has used the Corporation's money for incurring expenses for his own ailment and for the marriage of his daughter. The High Court, as already noted hereinabove, found that it was a fit case for extending the benefit of the Probation of Offenders Act. While doing so the High Court took notice of the fact that the petitioner has used the Corporation's money for incurring expenses for his own ailment and for the marriage of his daughter. It is also a fact that the suspension is now almost eight years and two months old. The Respondents have not placed any material on record which is suggestive of previous. misconducts having been committed by the petitioner. His conduct has otherwise not been adversely criticised by the Respondents. In his view of the matter, there could be little doubt that the continuance of the suspension of the petitioner after more than eight years cannot be held as just and proper. It cannot be ignored that the petitioner has to be paid 3/4th of wages despite of the fact that he has not been doing any duty. Thus, continued suspension is a drain on public exchequer as well. 8. In Shankar Dass v. Union of India and another, 1985 (2) SLR 109, their Lordships of the Supreme Court were considering a case of dismissal from service after an employee had been prosecuted under Section 409, Indian Penal Code and who had been convicted by a Court of competent jurisdiction but was extended the benefit of the Probation of Offenders Act. He was dismissed from service under Article 311(2) of the Constitution on the ground of his conviction. A Single Judge of Delhi High Court interfered with the order of dismissal. A Division Bench of the same High Court however felt otherwise and it reversed the judgment of the Single Bench. Their Lordships of the Supreme Court observed that although the appellant may not be entitled to be heard on the question of penalty in view of clause (a) of the second proviso to Article 311(2) but the right to impose a penalty carries with it the duty to act justly. The Supreme Court held that when the learned Magistrate has extended the benefit of the Probation of Offenders Act to the appellant, there was little justification for the imposition of penalty of dismissal on the appellant. The Court held that punishment of dismissal imposed on the appellant was whimsical. 9. The Supreme Court held that when the learned Magistrate has extended the benefit of the Probation of Offenders Act to the appellant, there was little justification for the imposition of penalty of dismissal on the appellant. The Court held that punishment of dismissal imposed on the appellant was whimsical. 9. Although that was a case of dismissal but the rationale of that judgment is that merely on the basis of conviction by a Court an employee cannot be thrown out of service. The Govt. has to act reasonably and fairly and the decision in such matters must be taken justly. 10. When in such a case of dismissal from service, has also been found by the Supreme Court, as arbitrary, in my opinion, there is little justification for continuing the suspension of the petitioner after this Court has extended the benefit of the Probation of Offenders Act. It is true that even after the High Court has extended the benefit of the Probation of Offenders Act to the petitioner, the Respondents are not completely debarred from proceeding with the disciplinary action but the observations made by the Supreme Court in the case of Shankar Dass cannot altogether be ignored. Whatever may be the result of the disciplinary action, I find that there is no ground for further continuance of suspension of the petitioner after eight years and about two months. 11. As a result of the above discussion, this Writ Petition diserves to be allowed and it is hereby allowed. It is declared that the continued suspension of the petitioner is unlawful. The petitioner shall be reinstated in service forthwith. Question as to what treatment should be meted out to the period between 27-12.84 to this date, will have to be decided by the competent authorities at the time of taking a final decision in the departmental enquiry which may be held against the petitioner. Parties are left to bear their own costs.Petition allowed.