JUDGMENT 1. - Heard learned counsel for the parties. 2. The appellant-petitioner was serving as Medical Officer at Community Health Centre, Vallabh Nagar (Udaipur). A complaint against him was lodged on 6.11.1999 that one patient Smt. Sunder Devi, resident of village Thmabla was admitted in Community Centre, Vallabh Nagar for Tubactomy and other treatments and while performing operation due to negligent act of the petitioner the uterus punctured, resulting in haemorrhage, which ultimately resulted in death of the patient after she was shifted to Udaipur. The complaint WF, lodged at Police Station, Vallabh Nagar and a case was registered under Section 304-A, IPC against the petitioner-appellant. After the said incident, petitioner was transferred from Vallabh Nagar to Community Health Centre, Kapasan (Chittorgarh). On completion of investigation sanction was accorded for prosecuting the petitioner. As a prima facie case of negligence in discharge of his duty as Surgeon was revealed as per the investigation report, the petitioner was put under suspension vide order dated 24.4.2001 which according to petitioner was received by him on 16.5.2001. The petitioner challenged, by filing the Writ Petition No. 4000 of 2001, the said order of suspension. 3. Writ Petition has been dismissed by the learned Single judge on the ground that the impugned order of suspension is not liable to be judicially reviewed as the respondent has lawful authority to suspend the petitioner under Rule 13, as undisputedly a case against him in respect of criminal offence under Section 304-A IPC has reached the stage of completion of investigation and prosecution has been sanctioned by the State as required under the Code of Civil Procedure. 4. Learned counsel for the appellant has urged that the petitioner is undisputedly a qualified doctor having specialisation in Gyanaecology and for any accident that occurs during the course of his discharging duties as a surgeon, by itself cannot lead to any conclusion about negligence on his part. A distinction has to be made between the quack practising medicine and a duly qualified doctor discharging his duties as the medical practitioner. A distinction has to be made between the quack practising medicine and a duly qualified doctor discharging his duties as the medical practitioner. In discharge of his duties if something happens, the petitioner-appellant cannot be held responsible either for criminal liability or be subjected to departmental enquiry, consequently the order of suspension passed against him was wholly unjustified in the facts and circumstances of the case as no prima facie case of negligence on his part is made out unless contrary is proved. 5. Learned counsel for the appellant submitted with emphasis that setting in motion of investigation or even commencement of a trial in respect of any criminal offence does not necessarily result in suspension of the incumbent. Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules is only an enabling provision and not a statutory mandate to suspend a person as soon as a disciplinary proceeding against him is contemplated or is pended or where a case against him in respect of any criminal offence is under investigation or under trial. It rests within the discretion of the appointing authority or any authority to whom he is subordinate or any other authority empowered by the Govt. in this behalf to make an order of suspending a Govt. servant during the pendency of an enquiry or contemplation of an enquiry or in a case where any investigation or trial is held against such incumbent. As it rests within the discretion of the competent authority, like any other discretion, it has to be exercised judiciously on well known principles applicable to judicious exercise of any discretion having adverse affect on the person subjected to exercise of such power. In this connection, learned counsel for the appellant relied on a Bench decision of this Court in Ashok Gaur v. State of Raj. & Anr., ( 1987(2) RLR 63 ), and B.R. Patel v. State of Maharashtra, AIR 1968 SC 800 and State of Orissa v. Bimal Kumar Mohanty, 1994 SC 2296 wherein the Supreme Court has said that 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 misconduct sought to be inquired or investigated and the nature of evidence placed before the appointing authority and on application of mind by the disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep a person suspended pending aforesaid action. It would not be 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 Tribunal must consider each case on its own facts and no principle of universal application can be laid down in that behalf. 6. Relying on this principle, emphasis has been laid that the offence under Section 304-A ordinarily cannot be made out against medical practitioner, who is duly qualified, simply for the reason that the patient has not been cured; as divinity is not conferred on doctors. They are meant only to make human endeavour but the end result may not always be as desired. 7. It has been contended on the other hand by learned counsel for the respondent Shri Sharma that there being no lack of inherent jurisdiction on the part of suspending authority, the exercise of power by the Govt. in suspending a person who is under investigation or trial of a criminal offence, the Courts would not ordinarily subject the order of suspension in such circumstance to judicial review unless a case of grave miscarriage of justice or want of any nexus between the order of suspension and the subject matter under enquiry, investigation or trial is made out. Otherwise, it is domain of the competent authority under Rule 13 to exercise his power to suspend or not to suspend a person during the pendency of criminal trial or investigation, which is not liable to be interfered with by invoking extraordinary jurisdiction. 8. Neither the power of the competent authority in the contingencies envisaged under Rule 13 of the CCA Rules, nor the authority of this Court to judicially review the administrative orders in appropriate cases can be doubted as observed by the Supreme Court in Bimal Kumar's case (supra) Each case has to be considered by the Court on its own facts and no general law and principle can be formulated to apply as a strait-jacket in all circumstances. 9. 9. What really is contended before us on the basis of certain decided cases is that on the basis of allegation like the present one, no criminal prosecution against a qualified doctor under Section 304-A is likely to succeed and therefore the suspension which is otherwise a stigma on the career of the person ought not to be resorted to notwithstanding pendency of inquiry, investigation or trial on the alleged negligence on the part of the petitioner-appellant. 10. We are unable to accept such a broad proposition which in terms amounts to telling that in the case of duly qualified doctor in no circumstances power under Rule 13 for suspending him can be invoked on the ground of negligence in performance of his duties as a doctor because he is a qualified doctor in the subject. At best it can be said that negligence on the part of a qualified person may not be an automatic presumption when death of a patient results during the course of or after the treatment. Yet it shall depend on attending circumstances and other material that may come to light. 11. To err is human and to be negligent is human folly. The relation between the alleged misconduct and the employment has been aptly stated by their Lordships Lopes, L.J. in Pearce v. Foster, (1886) 17 Queens Bench Decision 536 ) : "If a servant conducts himself in a way inconsistent with the faithful discharge of his duties in the service, it is misconduct which justifies immediate dismissal." 12. In the case of Ashok Gaur (supra), relied on by the learned counsel for the appellant also, the Court has clearly made out distinction between misconduct relating to duty, misconduct relating to discipline and misconduct relating to morality. The case which their Lordships was considering was one in which the concerned Govt. servant was under investigation of a charge for abetting suicide committed by his wife. Apparently, the charge was not related to discharge of his duties or misconduct relating to insubordination or indiscipline there being no direct allegations of misconduct relating to morality except the circumstance that he was being prosecuted for abetting suicide committed by his wife. 13. In the aforesaid circumstances, when the Govt. Apparently, the charge was not related to discharge of his duties or misconduct relating to insubordination or indiscipline there being no direct allegations of misconduct relating to morality except the circumstance that he was being prosecuted for abetting suicide committed by his wife. 13. In the aforesaid circumstances, when the Govt. servant was suspended simply because of the pendency of investigation into the charges about abetting the suicide of his wife, the Court said : "Misconduct may be broadly dealt with under three different heads : (a) misconduct relating to duty; (b) misconduct relating to discipline; and (c) misconduct relating to morality. In the instant case, there is no case against the appellant so far as misconduct relating to duty, or misconduct relating to discipline is concerned." 14. Commenting upon invoking power of jurisdiction in cases where misconduct does not relate to duty or to discipline but is allegedly relating to morality, the Court said by relying on decision of Supreme Court in Aganani (W.M.) v. Eadridas, (1963) 1 LLJ 684 ) that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of the employees' conduct in relation to stranger not employed in his concern by use of coercive process of disciplinary jurisdiction. 15. From the aforesaid, it is apparent that so far as misconduct in which enquiry is to be conducted by the employer or in respect of which a criminal charge, investigation or trial is to be conducted, relates to discharge of duty under the employer or relates to discipline under the employer, they do have direct rational connection with the exercise of power to suspend which temporarily removes the incumbent from the sphere of discharge of his duty under the employer. In such circumstances, it cannot be said that there is no rational connection between the employer's decision to suspend a person from discharging his duties under him on the alleged misconduct. 16. In the present case, it cannot be doubted that the alleged misconduct is directly related to negligence while performing surgery on patient. After filing a complaint, the matter has been investigated and on the conclusion of investigation, the investigating agency has prima facie reached the conclusion that it is a fit case in which the incumbent should be prosecuted. 16. In the present case, it cannot be doubted that the alleged misconduct is directly related to negligence while performing surgery on patient. After filing a complaint, the matter has been investigated and on the conclusion of investigation, the investigating agency has prima facie reached the conclusion that it is a fit case in which the incumbent should be prosecuted. Under the Code of Criminal Procedure as the misconduct directly related to negligence in discharge of duties, the criminal proceeding could not take place unless it is sanctioned by the Govt., therefore, on submission of the investigation report, the Govt. has also accorded sanction for prosecution. In these circumstances, the condition required under clause (b) of sub-rule (1) of Rule 13 in which appointing authority or other competent authority duly empowered in this behalf could place the petitioner under suspension, undoubtedly existed in the present case. 17. It cannot be said that the decision to suspend the petitioner has been made without application of mind. The suspension has not come automatic in the wake of filing a complaint against the incumbent about negligence in discharge of his duties at Community Health Centre, Vallabh Nagar nor such power was exercised during the continuance of enquiry. It is only after the investigation was completed, the findings of the investigation reached against the petitioner and the matter was placed before the Govt. alongwith the report and the Govt. on the basis of material before it agreed with the conclusion about prosecution of the petitioner accorded sanctioned for prosecution that the power of putting the petitioner under suspension has been invoked. 18. This clearly goes to show that the competent authority has waited until it was apprised of the finding of the investigation and when the findings went prima facie against the petitioner that it has exercised its discretion when agreeing with those findings the State Govt. has accorded sanction to suspend the petitioner. 19. The merit of the prosecution, to which learned counsel for the appellant eluded, cannot be examined in these proceedings. In these proceedings by collaterally examining, we shall not attempt to prejudice the case of either party before the Court in which criminal proceedings are pending. has accorded sanction to suspend the petitioner. 19. The merit of the prosecution, to which learned counsel for the appellant eluded, cannot be examined in these proceedings. In these proceedings by collaterally examining, we shall not attempt to prejudice the case of either party before the Court in which criminal proceedings are pending. If the petitioner or appellant is aggrieved with any order passed as a consequence of the investigation, he ought to avail his remedies in appropriate forums as are provided under the Code of Criminal Procedure but this Court while exercising extraordinary jurisdiction will not be justified in making remarks on the merit of the prosecution or defence case collaterally while examining the exercise of other powers under different rules for different purposes and therefore we have not eluded to such arguments nor we be taken to have expressed any opinion on the prosecution case or the defence case which is pending in the court. 20. As a result of the aforesaid, we do not find any merit in this appeal and the same is hereby dismissed. 21. Before parting with the case, it is brought to our notice by the learned counsel for the appellant that since sanction has been accorded at the time of issuing an order of suspension, no further progress has taken place in the criminal proceedings and according to his information even charge has not been framed. If that is so, the criminal court is directed to expedite the proceedings in that connection and the petitioner-appellant is free to avail his remedies against any order that may be passed by trial Court. This will also not preclude the petitioner to approach the Govt. and the Govt. to make an appropriate order if the criminal proceedings are unduly delayed and not completed for reviewing the order of suspension and revoke the same. This decision shall not be read to the prejudice of the petitioner while considering his request in this regard.No orders as to costs.Appeal Dismissed - Dismissal of Writ Petition Upheld. *******