Research › Search › Judgment

Orissa High Court · body

2000 DIGILAW 323 (ORI)

GAJENDRANATH SAHU v. BERHAMPUR UNIVERSITY

2000-06-26

P.C.NAIK

body2000
JUDGMENT : P.C. Naik, J. - Raising a short but interesting question, the petitioner has filed this writ application challenging the order (Annexure-6) whereby he has again been placed under suspension, though after revocation of an earlier suspension order he was permitted to resume duties. 2. Admittedly, the petitioner is working as a Junior Assistant in the Berhampur University. On 8.7.1989, he was suspended pending drawal of departmental proceedings. Charges were framed and after due inquiry, he was found to be guilty of the charge of misappropriation. The period of suspension was treated as such and four increments were stopped with cumulative effect. It was further directed that a sum of Rs. 1,03,178/-with 6?% interest thereon shall be recovered from the petitioner in 242 consecutive monthly installments. However, in terms of the order, the petitioner was reinstated vide order dated 9.7.1991. Appeal preferred by him before the Chancellor was rejected. Subsequently on 30.12.1991, an FIR was lodged by the Registrar of the University basing whereupon a case u/s 409, IPC was registered against the petitioner. He was arrested and remained in custody for a period exceeding forty-eight hours. Undisputedly, G.R.Case No. 1143 of 1991 is pending against him in the Court of the Sub-Divisional Judicial Magistrate, Berhampur. In view of the fact that the petitioner was under detention beyond the period of forty-eight hours, he was placed under suspension with effect from 1.3.1993 pending disposal of the aforesaid G.R.Case and it is this order which is the subject-matter of challenge in this writ application. 3. The contention of the learned counsel for the petitioner is that as the petitioner had already been placed under suspension and pending finalisation of the departmental proceedings which were concluded, the authorities were not justified in placing him under suspension for the second time for the self-same charge, as, according to the learned counsel, the subject-matter of the charge basing whereupon criminal proceedings are pending against him and that of the charge against him in the inquiry are the same misappropriation of public funds. The contention, though attractive, cannot be accepted for the reasons to follow. 4. A reference may be made to Rule 12 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (in short, "C.C.A. Rules") which govern the field, for, it is fairly accepted, the same have been adopted by the University by virtue of Statute 2 of 1999. The contention, though attractive, cannot be accepted for the reasons to follow. 4. A reference may be made to Rule 12 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (in short, "C.C.A. Rules") which govern the field, for, it is fairly accepted, the same have been adopted by the University by virtue of Statute 2 of 1999. Relevant extract of the C.C.A. Rules may be quoted : "12. Suspension - (I) The appointing authority or any authority to which it is subordinate or any authority empowered by the Governor or the appointing authority in that behalf may place a Government servant under suspension - (a) Where a disciplinary proceeding against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence is under investigation or trial. (2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the appointing authority and shall remain under suspension until further orders. (3) and (4) xx xx xx (5) An order of suspension made or deemed to have been made under this rule may, at any time, be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate." The aforesaid rule contemplates suspension of an employee in different contingencies - contemplation of departmental proceeding or pendency thereof, during investigation or trial of a criminal offence, or detention in custody for a period exceeding forty-eight hours. 5. Admittedly, the present suspension is not under Sub-rule (1) nor has the petitioner been suspended pending drawal of a departmental proceeding nor is it because of the pendency of a criminal case. Obviously, the suspension is under Sub-rule (2) of Rule 12 as the petitioner was under detention for a period exceeding forty-eight hours. Under this sub-rule, there is a "deemed suspension" of a Government employee. Thus, detention for a period exceeding the period prescribed results in a "deemed suspension" for which, in the present case, an order was passed by the authorities and the second suspension is, in fact, a reiteration of the fact of deemed suspension for which there is no discretion with the authorities. Thus, detention for a period exceeding the period prescribed results in a "deemed suspension" for which, in the present case, an order was passed by the authorities and the second suspension is, in fact, a reiteration of the fact of deemed suspension for which there is no discretion with the authorities. Under Sub-rule (1) they may or may not suspend an employee, but if the matter falls under Sub-rule (2), they have no choice - suspension follows. Therefore, the contention of the learned counsel that the authority concerned was not justified in placing the petitioner under suspension for the second time, cannot be accepted. 6. It was then contended that since trial is continuing since 1993 and the petitioner has been placed under suspension for a period of nearly seven years, the suspension order may be revoked. On the other hand, it is contended by the learned counsel for the University that since the petitioner is facing trial and in terms of the order under Annexure-6 he has to remain under suspension for the entire period, it is only after conclusion of the trial, the matter can be considered. 7. Sub-rule (5) of Rule 12 of the C.C.A. Rules quoted above, is self-explanatory. It provides that an order of suspension made under Sub-rule (1) or deemed to have been made under Sub-rule (2) of Rule 12 may at any time, be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. Therefore, whether or not to continue an employee under suspension, is a matter which can be considered by the appropriate authority. Admittedly, the petitioner has not moved the concerned authority for re-consideration of the matter. 8. In view of what has been stated above, it is felt that on the facts and in the circumstances of the case it would not be appropriate for the Court to issue any direction to the concerned authority with regard to revocation or continuance of the suspension order in question, as it would be within the competence of the authority to consider the same in terms of Sub-rule (5) of Rule 12 of the CCA. Rules, referred to above. 9. A grievance is also made for revision of the subsistence allowance which is being paid to the petitioner. Rules, referred to above. 9. A grievance is also made for revision of the subsistence allowance which is being paid to the petitioner. In this regard, the relevant rules which govern the field have not been brought to the notice of the Court. In view thereof, no direction can be issued except to observe that the petitioner is free to approach the concerned authority which shall consider the question of revision of the subsistence allowance in accordance with the rules governing the field and shall pass appropriate orders thereon without any undue delay. 10. With the aforesaid observations, this writ application stands disposed of.