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2002 DIGILAW 103 (RAJ)

Dr. Mohanlal v. State of Rajasthan

2002-01-14

B.S.CHAUHAN

body2002
JUDGMENT 1. - The instant writ petition has been filed for quashing the impugned order dated 24.4.2001 (Annx. 4) by which the petitioner has been put under suspension on the ground that a criminal case under Section 304-A IPC is pending against him. 2. The facts and circumstances giving rise to this case are that petitioner while working as a Junior Surgeon-cum-Medical Officer in Udaipur had conducted a Tubactomy (Female sterlization) on 5.11.99 and it is alleged that in that operation, the condition of the woman deteriorated and subsequently she died. An F.I.R. was lodged against him on 6.11.99 alongwith a nurse under Section 304-A IPC. The petitioner was transferred on 5.5.2000 from Udaipur to Chittorgarh and as after investigation of case the police has filed the challan against the petitioner, the impugned suspension order 24.4.2001 (Annx. 4) under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter called 'the Rules') has been passed. Hence this petition. 3. Shri Vijay Bishnoi, learned counsel appearing for the petitioner has contended that as the matter relates to the incident dated 5.11.99 and the impugned suspension order has been was passed after efflux of a long period and trial of the case may take a very long time, the impugned suspension order is unwarranted. Moreso, mere pendency of the criminal case is not a ground for suspension as held by this Court in Ashok Guar v. State of Rajasthan & ors., 1987 (2) RLR 63 . On the other hand, Mr. PC. Sharma, learned counsel appearing for the respondents has submitted that as there has been a complete investigation by the Investigating Agency and sanction had been obtained under Section 197 Cr.PC. for prosecution of the petitioner, his suspension has also been approved by the highest authority i.e. by Hon'ble the Chief Minister, thus in view of this impugned suspension order does not require any interference. Hence petitioner is liable to be rejected. 4. I have considered the rival contentions made by the learned counsel for the parties. 5. It is settled legal proposition that during suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Hence petitioner is liable to be rejected. 4. I have considered the rival contentions made by the learned counsel for the parties. 5. It is settled legal proposition that during suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot be treated as a punishment even by stretch of imagination in strict legal sense. 6. A Constitution Bench of the Supreme Court in R.P. Kapur v. Union of India & ors., AIR 1964 SC 787 , observed that the Authority entitled to appoint a public servant would be entitled to suspends him during pendency of the departmental enquiry into his conduct or pending a criminal case. 7. While reiterating a similar view in Balvantray Ratilal Patel v. State of Maharashtra, AIR 1968 SC 800 , The Apex Court held as under : "It is now well settled that the power to suspend, in the sense of a right to forbid to work, is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either by the Statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute, would mean that the master would have no power to suspend a workman..... Where, however, there is a power to suspend either in the contract of employment or in the Statute or the rules framed there under, the order of suspension has the effect of temporary suspending the relationship of master and servant with the consequence that servant is not bound to render services and the master is not bound to pay." 8. Where, however, there is a power to suspend either in the contract of employment or in the Statute or the rules framed there under, the order of suspension has the effect of temporary suspending the relationship of master and servant with the consequence that servant is not bound to render services and the master is not bound to pay." 8. In Management of Hotel Imperial, New Delhi v. Hotel Workers Union, AIR 1959 SC 1342 ; T. Cajee v. Jormit Sienu, AIR 1961 SC 276 ; and V.P. Gindorniya v. State of M.P., AIR 1970 SC 1494 , the Hon'ble Apex Court held that putting a Government servant under suspension during the pendency of Departmental Proceedings or Criminal trial, means that the Government merely issued a direction that he must not do any thing in discharge of the duties of his office and the employee is bound by the said order. 9. The scope of interference by the Court with the order of suspension in the case where a delinquent employee faces the criminal charges has been examined by this Court in D.R. Kalla v. State of Rajasthan & ors., 1998(1) RLW 19 , wherein reliance has been placed on a large number of judgments of the Hon'ble Supreme Court, particularly in State of M.P. v. Sardul Singh, (1970) 1 SCC 108 ; E.V. Srinivas Shastri v. Comptroller & Auditor General of India, 1993 (1) SCC 419 ; Inspector General of Police & Anr v. Thavasiappan, 1992 (2) SCC 145 ; Director General, ESI & Anr. v. E. Abdul Fiazak, JT 1996 (6) SC 502 ; Scientific Adviser to the Ministry of Defence v. S. Denial etc., 1995 (Suppl.) SCC 374 ; Kusheshwar Dubey v. M/s. Bharat Cooking Coal Ltd., & ors., AIR 1988 SC 2118 ; Delhi Cloth General Mills v. Kushan Bhan, AIR 1960 SC 806 ; U.P. Krishi Utpadan Mandi Parishad v. Sajeev Rajan 1993, (Supp.) 3 SCC 483 ; State of Rajasthan v. B.K. Meena & Ors., (1996) 6 SCC 417 ; and Secretary to Govt., Prohibition and Excise Department v. L. Srinivasan, 1996(3) SCC 157 , and came to the conclusion that even if a criminal trial takes a long time, it is not open to the Court to interfere in case of suspension as it is the exclusive domain of the competent authority who can always review its order of suspension as it is an inherent power conferred upon him by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case would be concluded after an unusual delay for no fault of the employee concerned. 10. In State of Orissa v. Vimal Kumar Mohanty, AIR 1994 SC 2296 , the Hon'ble Supreme Court observed as under : "......when an appointing authority or the disciplinary authority seeks to suspend the employee.. .the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not he 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. It would not he 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 should be laid down in that behalf ...In other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact, it creates on the service for the continuation of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by malafide, arbitrarily or for ulterior purpose. The suspension must be a step in add to the ultimate result of the investigation or inquiry. The Authority also should keep it mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge." 11. In Allahabad Bank & Anr v. Deepak Kumar Bhola, 1997 SCC (L&S) 897 , the Hon'ble Supreme Court held that in case involving serious charges, for which the sanction of the prosecution in a criminal court has been obtained, suspension order should not generally be interferred. However, the decision of the competent authority should be based on material collected during investigation/inquiry. 12. If the instant case is examined in the light of the aforesaid proposition of law, the suspension is based on the material collected during investigation by the police. The department has already granted the sanction to prosecute the petitioner as required under Section 197 Cr.PC. Original record produced by Mr. PC. Sharma shows that the Competent Authority has applied its mind and passed the order of suspension after considering the entire evidence on record. The department has already granted the sanction to prosecute the petitioner as required under Section 197 Cr.PC. Original record produced by Mr. PC. Sharma shows that the Competent Authority has applied its mind and passed the order of suspension after considering the entire evidence on record. The charges against the petitioner are of grave nature. 13. The ratio of the judgment of this Court in Ashok Gaur (supra), relied upon Mr. Bishnoi, has no application in the instant case as the facts are quite distinguishable. The case does not present any special features warranting interference by this Court in a limited jurisdiction of judicial review under Article 226/227 of the Constitution. 14. The petition is, therefore, dismissed. The petitioner, if aggrieved, may move a representation under Clause (5) of rule 13 of the Rules asking the Competent Authority to revoke its order on the ground that the trial may take a long time. There shall be no order as to costs.Writ Petition dismissed. *******