ORDER 1. "We hold these truths to he self-evident" observed by Thomas Jefferson in 'The Declaration of Independence', "that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life liberty and the pursuit of happiness. "Petitioners five in number in W.P. No. 1201/97 and one in W.P. No. 1283/97, have taken recourse to umbrella of Article 226 of the Constitution of India, deeming it to be protective, in pursuit of happiness, to seek mortality concerning them of order dated 31.8.96 (Annexures P-2 in W.P. No. 1201/97), flogging suspension from service on petitioner No.3, (Narendra Kumar Surana -- Sahayak Shilpagya) and petitioner No.5 (Amritlal Patel-- Upyantri) and another, on the ground of judicial custody in Crime No. 205/92 and of order dated 2.9.96 (Annexure P-3 in W.P. No. 1201/97) directing suspension from service of petitioner No.4 (Ashok Baizal-Sahayak Shilpagya), petitioner No.2 (Prabhakar Kale -- Upyantri), petitioner No.1 (Manmohan Singh Bayas -- Kshetramapak) and petitioner (Nityanand Joshi -- Sahayak Shilpagya) of W.P. No.1 283/97 (Annexure P-2) and another, concerning them, on the ground of registration of Criminal Case and administrative reasons on the linchpin of invalidity and arbitrariness. 2. Factual matrix is in a narrow compass. These six petitioners are employees of respondent No.1. respondent No.3 has passed impugned orders (Annexures P-2 and P-3 in W.P. No. 1201/97 and Annexure P-2 in W.P. No. 1283/97) of suspension from service. Annexure P-2 of W.P. No. 1201/97 mentions Bye-law No.7 whereas Annexure P-3 does not mention any provision and does not even particularise administrative reasons. Challenge by the petitioners, inter alia, is on the fulcrum that registration of crime preceded the departmental enquiry which ended in exoneration (Annexure-P/1) and that enquiry against petitioner of W.P. No. 1283/97 was dropped after explanation in pursuance of Annexure P-1 3. On allegations of 1978 and 1984 relating to construction work, case came to be registered in 1992 and action is taken in 1996 on directions by Division Bench of this Court in W.P. No. 305/96 (Vikram Singh and another v. State of M.P. and others). 4. Respondents have filed return in oppugnation. 5. I have heard Shri CL Yadav and Shri Y.K. Joshi, learned counsel for the petitioners in W.P. No. 120]/97 and W.P. No. 1283/97 respectively and Shri S.J. Dhanji, learned counsel for respondents in both these petitions for final disposal on 1.9.97. 4. Respondents have filed return in oppugnation. 5. I have heard Shri CL Yadav and Shri Y.K. Joshi, learned counsel for the petitioners in W.P. No. 120]/97 and W.P. No. 1283/97 respectively and Shri S.J. Dhanji, learned counsel for respondents in both these petitions for final disposal on 1.9.97. Shri Saraf, learned counsel is also heard on LA. No. 4044/97 for intervention. 6. Certain facts are taken from W.P. No. 305/96 to appreciate the controversy. Crime No. 205/92 is registered by Police Station M.G. Road, Indore under sections 409, 420, 467, 468, 471 and 201 of the Indian Penal Code and section 13 (1) (c) (ii) of Prevention of Corruption Act, 1988 in regard to allegations of 1978 and 1984. Investigation was lukewarm and manifestly nil or negligible. Shri Vikram Singh Chauhan and Shri Manish Kumar Vyas, acting pro bono publico, filed W.P. No. 305/96 on 28.2.96 under Article 226. On 22.4.96, the Court directed issuance of show-cause notices against admission and on 16.5.96 ordered that investigation be completed, and result be reported, in three months. On 19.8.96, the Government Advocate reported that investigation is completed and papers are forwarded to Bhopal for sanction for prosecution. Petitioners were not imp-leaded as respondent in the petition. Notices under Contempt of Courts Act, 1971 were issued on 22.8.96 to Police Officers. It is thereafter, that arrests were effected and orders of suspension were passed. The petition was finally disposed of by order dated 28.10.96. Counsel for the petitioner of that petition had urged that petition had become in fructuous because of action having been taken. Yet the Courts issued certain directions in public interest and in the interest of Indore in particular. S.L.P. filed against the order dated 28.10.96, was rejected by the Apex Court on 25.4.97. 7. The under-noted features are vividly visible – (a) Allegations, leading to registration of Crime No. 205/92 and arrests, are of 1978 and 1984. (b) Mayor of respondent No.1 had written to Police after 16.5.96 that no action is warranted against the petitioners and others. (c) Petitioners of W.P. No. 1201/97 were exonerated in departmental enquiry and enquiry against petitioner of W.P. No. 1283/97 was dropped. Crime No. 205/92 is said to be grounded on same set of facts. (d) Investigation was completed only after directions from the Court in 1996 although the case was registered, though belatedly, in 1992, on direction from Lokayukta office. (c) Petitioners of W.P. No. 1201/97 were exonerated in departmental enquiry and enquiry against petitioner of W.P. No. 1283/97 was dropped. Crime No. 205/92 is said to be grounded on same set of facts. (d) Investigation was completed only after directions from the Court in 1996 although the case was registered, though belatedly, in 1992, on direction from Lokayukta office. (e) Orders, as impugned, do not spell out grounds/reasons on which discretion was exercised to effect suspension from service. 8. Dictionary meaning of the word "suspension" is the act of suspending or interruption. Suspension is not punishment ( 1959 JLJ 370 = 1959 MPLJ 1168 . Laxman Pandharinath Hirway v. State of M.P.), but all the same is a stigma for the time being in society and denies the employee his right to work and receive salary. He is consigned to receive ''allowance" during period of suspension and is forbidden to perform his duties. But employer must have discretion to order suspension in appropriate cases. 9. The inbred question is whether orders XXX in the instant cases are sustainable in law? 10. Nagar Palik Nigam Services (Classification, Control and Appeals) Bye-laws, 1971 govern the services. Bye-law No.7 (1) (b) confers power to suspend. This enabling power, however, does not mean that suspension is automatic. Rule 53 of M.P. Municipal Employees Recruitment and Conditions of Service Rules, 1968 (For short 'Rules') provides as under- (1) If having regard to nature of the charges and the circumstances in any case the disciplinary authority which initiates any disciplinary proceeding is satisfied that it is necessary or desirable to place under suspension a municipal employee against whom such proceedings are started, it may pass an order placing him under suspension. (2) A municipal employee who is detained in custody whether on a criminal charge or otherwise, for a period longer than forty-eight hours shall be deemed to have been suspended under this rule. (3) A municipal employee against whom criminal charge is pending may, at the discretion of the disciplinary authority, be placed under suspension until the termination of the proceedings if the charge is connected with his position as a municipal employee or is likely to embarrass him in the discharge of his duties in the Council or involves moral turpitude:" -x- -x- -x- 11. In case of detention in custody for a period longer than forty-eight hours, employee is deemed to have been suspended under rule 53 (2) of the Rules. Rule 53 (3) speaks about "discretion". 12. Deeming situation in terms of rule 53 (2) is not to last for all time to come. Rule 53 (3) of the Rules comes into play on pendency of criminal charge. Indisputably, challan is filed and criminal charge is pending in Court. Suspension in such situation is regulated by the- discretion of the disciplinary authority. 13. Lord Mansfield stated in classic terms in John Wilkes Case (1770) 4 Burr 2528 that discretion means sound discretion, guided by law. It has to be governed by rule, not by humour. It cannot be arbitrary, vague or fanciful. 14. The position between an employer and employee is no longer in tenebrosity. Employer's dominion over his employees was in tune with rustic simplicity of by-gone days, but is in compatible with current pattern. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union, (1971) 1 All E.R. 148 and Supreme Court stated in Khudi Ram's case, (1975) 2 SCR 832 = AIR 1975 SC 550 that in a Government of laws "there is nothing like unfettered discretion immune from judicial review-ability". Fairness founded on reason, is the essence of the guarantee epitomised in Articles14 and 16 (1). If the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then Courts must so declare. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver Sidge v. Anderson (1942) AC 206 is instructive and indicator of the amplitude of the power available with the Courts. 15. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver Sidge v. Anderson (1942) AC 206 is instructive and indicator of the amplitude of the power available with the Courts. 15. It may be added that sub-rule (5) (a) of rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 provides that – (5) (a) An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority competent to do so: [Provided that the order of suspension shall stand revoked on expiry of the period of forty-five days from the date of order of suspension in case a copy of charges and other documents referred to in sub-rule (2-a) are not issued to such Government Servant by the disciplinary authority (if it is not the State Government) without obtaining the orders of the State Government for extension of the period for issue of the said documents, as required under sub-rule (2-b) : Provided further that the order of suspension shall stand revoked on expiry of the period of 90 days from the date of order of suspension, in case the copy of charges and other documents referred to in sub-rule (2-a) are not issued to such Government servant]." -x- -x- -x- Two factors emerge. One order of suspension can be modified or revoked by competent authority. Two on failure to issue charge-sheet within specified period of 45 days, order of suspension shall stand revoked. The implication is that action after suspension should be swift and speedy and cannot be made to hibernate. 16. Identical position as regards modification or revocation is embraced by Bye-law 7 (5) (a) of the aforesaid Bye-laws. 17. Rule 53 (3) permits suspension also in the event when criminal charge is likely to embarrass him ill discharge of his duties. As regards connection with position as a municipal employee or involvement of mortal turpitude, suffice it to say that department has recorded exoneration or dropped enquiry and till conclusion of guilt by Criminal Court, employees should be presumed to be innocent. 18. As regards connection with position as a municipal employee or involvement of mortal turpitude, suffice it to say that department has recorded exoneration or dropped enquiry and till conclusion of guilt by Criminal Court, employees should be presumed to be innocent. 18. The orders do not manifest or reflect as to -(a) Why it was considered just or necessary to order suspension in respect of allegations of 1978 and 1984, despite finding of impeccability at departmental level? (b) How it is concluded that charge is likely to cause embarrassment in discharge of duties? (c) On what ground or reasons, discretion can be said to be properly exercised? 19. In AIR 1994 Supreme Court 2296 (State of Orissa v. Bimal Kumar Mohanty), it is held that – "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 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'. -x- -x- -x- 20. The orders under attack seem to be administrative routine or as automatic ones without consideration whether it is expedient to keep employees under suspension in regard to allegations of 1978 and 1984 when they continued to perform duties till 1996 without any embarrassment? 21. Prosecution is permissible because there in no bar to taking cognizance in terms of section 468 of the Code of Criminal Procedure as some of the offences, as charged, are punishable with imprisonment for a term exceeding three years and it may thus, continue without any fetters despite the order in these petitions. if material prima facie justified and sufficient ground existed. but principal question is whether or not it was expedient to foist suspension in terms of rule 53 (3) and Bye-law 7 and whether or not there was a case to resort to Bye-law 7 (5) in any case. 22. if material prima facie justified and sufficient ground existed. but principal question is whether or not it was expedient to foist suspension in terms of rule 53 (3) and Bye-law 7 and whether or not there was a case to resort to Bye-law 7 (5) in any case. 22. The order of suspension in somewhat similar fact-situation was not upheld by this Court in W.P. No. 1176/96 (Vimal Kumar and others v. State of M.P. and another) on 4.10.96 (Annexure P-4) on the ground of exhaustion of remedy on departmental side despite Criminal Case in the same matter and order of Single Bench was not interfered with in L.P.A. No. 160/96 (State of M.P. and another v. Shri Vimal Kumar and others) (Annexure P-5) on conclusion that the order ''cannot be said to be erroneous" in the face of earlier exoneration by the department. The aforesaid orders (Annexures P-4 and P-5) however, do not seem to make reference to relevant service Rule. L.P.A. was filed without proper sanction and authority. Each case has to be decided on its own facts and is authority for what it actually decides as is held in Krishnadas v. Shravan Kumar ( 1976 JLJ 554 ) and observations while dismissing case summarily are not binding proceedings as is held in Ramlal alias Laltoo v. Bhagunti ( 1968 JLJ 706 ). In the face of rule 53 (2) and (3) and Bye-law 7 (1) and (5) the principal question in my view, is of discretion rather than jurisdiction and main plank is likelihood or otherwise of embarrassment in performance of duties while Criminal Case continued and of impact on society. Proviso to Article 311 (2) of the Constitution of India also permits departmental action on the ground of conduct leading to conviction on a criminal charge. 23. Proviso to Article 311 (2) of the Constitution of India also permits departmental action on the ground of conduct leading to conviction on a criminal charge. 23. So the main question, flung in the face, is whether it is expedient to keep employees under suspension in respect of allegations as old as of 1978 and 1984 and after exoneration at departmental level on the ground of judicial custody in Crime No. 205/92 or registration of Criminal Case on same facts and prosecution in Criminal Court or on unparticularised and undisclosed administrative reasons without focus on situations envisaged by rule 53 (2) read with Bye-law 7 (5) or by Rule 53 (3) and whether orders under challenge marked Annexure P-2 dated 31.8.96 and Annexure P-3 dated 2.9.96 (which is Annexure P-2 in W.P. No.1283/97), ex-facie bereft of reasons envisaged by Service Rules/Bye-laws and situations permitting such a course, in the face of criminal charge of which conclusion is likely to take considerable time, cannot be sustained in law or need to be dubbed as arbitrary, vague or fanciful vitiating discretion? 24. Annexure P-2 embodies the reason of judicial custody in August, 1996 (which is non-existent now) and Annexure P-3, which is Annexure P-2 in W.P. No. 1283/97, vaguely refers to registration of criminal case and unspecified administrative reasons. It does not, even impliedly, deal with the question of embarrassment as is contained in rule 53 (3) of the Rules. So can it be said that this is appropriate case to impose or continue suspension from service? Features chronicled in para 7 above, tell a different tale. Such matters must receive serious consideration. At the same time, employees must bear in mind that probity in life and in performance of duties should punctuate the course. When employees are on the job, corruption must be on holiday. The urge should be to "hate money and love harmony". Impartiality and Integrity should call the tone and tune. System ought to be corruption-free. Like Ceaser's wife, employees too should be above suspicion. 25. "Men will do the rational thing", observed Lord Keynes, "but only after exploring all other alternatives''. And old Testament Ecclesiastes, VII, 29 echoed that "God hath made man upright. but they have sought out many inventions". Impartiality and Integrity should call the tone and tune. System ought to be corruption-free. Like Ceaser's wife, employees too should be above suspicion. 25. "Men will do the rational thing", observed Lord Keynes, "but only after exploring all other alternatives''. And old Testament Ecclesiastes, VII, 29 echoed that "God hath made man upright. but they have sought out many inventions". This Court, however, always desired that men should refuse to be lulled by other alternatives or inventions and should always maintain uprightness and do the rational things spurning and shunning such exploration or inventions. Men born to die some day should lead life in right and upright manner. Let head form and heart perform. There is never a holiday in morality. Elements like fear or favour, ill-will or affection can never be on agenda when reactitude is the desired goal. 26. It is surprising that the Mayor of respondent No. I desired no action at one stage and respondent No. 3 of respondent No.1 passed orders without focusing serious attention on relevant provisions. There cannot be a classical song on a light tune. Employees should remember that there should be no blot on the escutcheon. Felecity is not one-way traffic. 27. Now I come to I.A. No. 4044/97 presented on 29.8.97 in W.P. No. 1201/97. The petitioners of W.P. No. 305/96. filed as Public Interest Litigation (PIL). have sought intervention to oppose the prayer for quashment of orders of suspension. The fulcrum of this application is that quashment will seriously prejudice the Sessions Trial pending in the Court of I Addl. Sessions Judge. Indore against them. The public at large wants serious action against the petitioners including their suspension." (Para 6). 28. The present litigation here is bipolar. PIL is an action for judicial redress for public injury like actio popularis of Roman Law. The position is as under- (a) Petitioners were not parties in W.P. No. 305/96 of applicants. (b) Particulars of assumed prejudice in trial are not stated. (c) There is no whisper, much less specific averment, of public injury. All that is stated is that public at large wants serious action. There is no indication that there would be embarrassment as envisaged by rule 53 (3). (d) Basis of application is that "Corporation is supporting the cause of petitioner" (para 8). This is NOT so because petitions are opposed. All that is stated is that public at large wants serious action. There is no indication that there would be embarrassment as envisaged by rule 53 (3). (d) Basis of application is that "Corporation is supporting the cause of petitioner" (para 8). This is NOT so because petitions are opposed. (e) The order being passed here should serve the purpose. 29. In view of the aforesaid features, I find no proper ground to permit intervention in a bipolar lis. Accordingly I reject the application. 30. Shri Yadav questioned the validity of orders on two grounds. One: respondent No.3, being not the appointing authority, lacked competence and jurisdiction to pass and clamp orders of suspension in terms of Bye-law 7 (1) (b) because such a power is available to appointing authority or other authority authorised for the purpose. He also referred to rule 9 (1) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 to highlight the word "appointing authority" employed therein. He has placed reliance on AIR 1997 SC 2394 (A.K. Jadhav v. State of M.P. and others). According to him, "Standing Committee" is the appointing authority. Reference is made to section 58 of the Municipal Corporation Act. Two: Orders are administrative routine and such orders are not sustainable in law. 31. Shri Dhanji supported the orders and contended that control and power vest in respondent No.3 (Commissioner). Reference is made to section 69 of the aforesaid Act and reliance is placed on AIR 1984 SC 626 (Corporation of City of Nagpur Civil Lines. Nagpur and another v. Ramchandra G. Modak and others). Shri Saraf, in an urge to assist, submitted that there is no material to show that Standing Committee is the appointing authority and respondent No.3 had no jurisdiction. Rule 53 (3) of the Rules used the expression as "disciplinary authority". 32. Shri Yadav was unable to explain the delay of one year in impugnment when orders are dubbed as without jurisdiction. 33. However, in view of infirmity on the basis of ground No.2, noted above, I do not deem it proper to answer ground No.1, more so in the absence of adequate material. 34. The orders under challenge are to be judged on their own language as employed. In AIR 1978 SC 851 (Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others), it is held that. 34. The orders under challenge are to be judged on their own language as employed. In AIR 1978 SC 851 (Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others), it is held that. – "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out". -x- -x- -x- Manifestly, orders are in the nature of administrative routine and automatic orders. Such orders, as held by the Apex Court in Bimal Kumar's case (supra), are luculently untenable in law. But as held in this decision, the appropriate authority has discretion to consider gravity of the alleged misconduct or nature of the allegations and situations (Connection with position as employee vis-a-vis earlier exoneration; involvement of moral turpitude - vis-a-vis pendency of criminal case likely embarrassment in discharge of duties vis-a-vis performance till long period) enumerated in rule 53 (3) of the Rules along with likely impact on or claim of society on such accusations and to reach satisfaction whether or not it is necessary or desirable to place under suspension municipal employees, so accused and lugged into trial, till conclusion of the trial. The orders, however, do not reflect such consideration and satisfaction. Bye-law 7 (1) (b) makes it clear that the authority has power to suspend (Nilamban Kar Sakega), but does not ordain that it shall suspend (Nilamban Karega). Orders should thus, show exercise of discretion with reference to challan in Court about each employee in conformity with relevant provisions. 35. Ex consequenti, I allow these petitions, but without impairment of right to exercise discretion in reasonable and legal manner. Accordingly, I direct as under :- (a) Orders of suspension (Annexures P-2 and P-3 in W.P. No. 1201/97 and Annexure P-3 in W.P. No. 1283/97 concerning the petitioners only are quashed and revoked on the ground of vitiation as being only administrative routine and automatic orders bereft of due application of mind to existence or non-existence of necessity or desirability as indicated in para 34 above, but with liberty as in succeeding sub-clause. (b) The appropriate authority shall still have liberty to act under rule 53 (3) and Bye-law 7 (1) (b), if so desired, and consider the matter afresh in accordance with facts and law and pass speaking orders showing due application of mind only in case of necessity or desirability till 8.9.97. if desired. (c) Till 8.9.97, the direction of quashment and revocation issued in these petitions shall, however, be under ‘eclipse' and in 'abeyance' for maintenance of' status quo' and shall be operative from 9.9.97 in absence of fresh orders. (d) If no fresh orders of suspension are passed till 8.9.97, the petitioners shall report to proper authority and be permitted to join their duties and perform their functions in lawful manner from 9.9.1997. (e) If fresh orders of suspension are passed and assumed to be unsustainable, the petitioners may resort to appropriate remedy against the same on proper grounds. (f) Respondent may extend benefit of this order to other employees of Annexures P-2 and P-3, if applicable in view of AIR 1984 Supreme Court 629 (Iron & Metal Traders Pvt. Ltd. Bombay v. M.S. Haskiel and another etc.) to ensure absence of discrimination. 36. These petitions are thus, allowed with liberty as noted above, but without any orders as to costs. This order shall be retained in W.P. No. 1201/97 and its copy shall be placed in the record of W.P. No. 1283/97. Certified copy be supplied to parties on charges, in three days.