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2004 DIGILAW 1625 (RAJ)

Prem Narain Gupta v. Union of India

2004-11-04

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - The petitioner has filed the present writ petition under Article 226 of the Constitution of India on 9.6.2004 against the respondents with a prayer that by an appropriate writ, order or direction order dated 27.4.2004 (Annexure-12) passed by the respondent No. 3, General Manager, Telecom Dist. Pali, Rajasthan, by which suspension of the petitioner was further extended for a period of 180 days, be quashed and set aside. 2. It arises in the following circumstances : (i) That the petitioner was appointed on the post of JTO in the Department of Telecom in the year 1995. He was transferred from Samdari to the office of BSNL at Jaitaran under command and control of General Manager, Telecom Pali, Marwar Dist. Pali, Rajasthan (respondent No. 3) on 10.9.2001 vide order dated 10.9.2001 (Annexure-1). (ii) Further case of the petitioner is that an FIR under the Anti Corruption Act for bribery of Rs. 1,500/- was lodged against the petitioner on the complaint of one Suresh Puri on 13.1.2003 and the same was registered by Anti Corruption Bureau (C.B.I.) Jodhpur. Thereafter, the petitioner was served a memorandum along with statement of allegation (Annexure-2) on 30.12.2003 wherein respondent No. 3 (GMTD, Pali) proposed to hold an enquiry against the petitioner. (iii) Further case of the petitioner is that he was suspended under Rule 10(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as the Rules of 1965) by order dated 25.2.2003 (Annexure-3). (iv) That further case of the petitioner is that unamended Rule 10 of Rules of 1965 provides for suspension of an employee, but without any time limit, therefore the Government of India amended the Rule 10 of the Rules of 1965 and Hon'ble President of India in exercise of power conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India amended the Rule 10 of Rules of 1965 and new Rules were called as the Central Civil Services (Classification, Control and Appeal) Amendment Rules, 2003 (hereinafter referred to as the Amendment Rules of 2003) and accordingly the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) issued gazette notification on 23.12.2003 (Annexure-4). (v) That the further case of petitioner is that the Amendment Rules of 2003 were made effective after expiry of ninety days from the date of their publication in the official gazette. (vi) Further case of the petitioner is that Amendment Rules of 2003 were published in official gazette on 3.1.2004 and it came into force w.e.f. 3.4.2004. (vii) Further case of the petitioner is that after coming into force Amendment rules of 2003, the respondent No. 3 (GMTD, Pali) passed a fresh order of suspension vide order dated 27.4.2004 (Annexure-12) and this order has been challenged in this writ petition by the petitioner. 3. In this writ petition, the following submissions have been made by the learned counsel for the petitioner : (i) That new amended Rules of 2003 became effective w.e.f. 3.4.2004 and according to learned counsel for the petitioner before 2.4.2004, the case of the petitioner should have been reviewed by the competent authority and but after 2.4.2004, the suspension was required to be extended by the Review Committee and since through order dated 27.4.2004 (Annexure-12), suspension of the petitioner was extended for a period of 180 days by the respondent No. 3 (GMTD, Pali) without referring the matter to the Review Committee, therefore, the order dated 27.4.2004 (Annexure-12) is unjust, unreasonable, arbitrary and anti-thesis to mandate of Article 14 of the Constitution of India. (ii) That upto 2.4.2004 since suspension of the petitioner was not extended by the respondents and after 2.4.2004, no review committee was constituted to consider the case of the petitioner for extension of suspension, therefore, the impugned order dated 27.4.2004 by which suspension of the petitioner was extended by respondent No. 3 (GMTD, Pali) is without jurisdiction. 4. Reply to the writ petition was filed by the respondents and a preliminary objection has been taken by the respondents that since after passing of the impugned order dated 27.4.2004 (Annexure-12), a fresh order of extension of suspension dated 21.9.2004 (Annexure R-1) has been passed, therefore, the impugned order dated 27.4.2004 (Annexure-12) has been superseded now and thus, this writ petition deserves to be dismissed as having become infructuous. It has also been submitted by the respondents in the reply that the petitioner was first suspended vide order dated 25.2.2003 (Annexure-3) and thereafter he was served with charge-sheet on 30.12.2003 (Annexure-2) for which an enquiry for major penalty is going on. It has also been submitted by the respondents in the reply that the petitioner was first suspended vide order dated 25.2.2003 (Annexure-3) and thereafter he was served with charge-sheet on 30.12.2003 (Annexure-2) for which an enquiry for major penalty is going on. It has further been submitted by the respondents in the reply that since notification dated 23.12.2003 (Annexure-4) had come into force on the expiry of 90 days from the date of its publication in the official gazette and since it was published on 3.1.2004 in the official gazette, it had come into force on 3.4.2004 and since the Amended Rules of 2003 have come into force w.e.f. 3.4.2004, therefore 90 days would be counted from 3.4.2004 and from this point of view also the order dated 27.4.2004 (Annexure-12) could not said to have been passed without any authority by the respondent No. 3 (GMTD, Pali) and thus, the impugned order dated 27.4.2004 (Annexure-12) does not suffer from basic infirmity or illegality and hence the writ petition be dismissed. 5. Heard. 6. There is no dispute in this case that the petitioner was appointed on the post of JTO in the year 1995.7-8. There is also no dispute on the point that an FIR under the Anti Corruption Act was registered against the petitioner.9. There is also no dispute on the point that the petitioner was served with a charge-sheet dated 30.123.2003 (Annexure-2).10. There is also no dispute on the point that the petitioner was suspended under Rule 10(1) of the Rules of 1965 vide order dated 25.2.2003 (Annexure-3) passed by the GMTD, Pali (respondent No. 3). In Rule 10(5a) of the Old Rules of 1965, no time limit was prescribed for the life of order of suspension, but under the Amended Rules of 2003, it was provided that an order of suspension made under this Rules shall be reviewed by the authority competent to modify or revoke the suspension before expiry of 90 days from the date of order of suspension, on the recommendation of the Review Committee and extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.11. There is also no dispute on the point that vide notification dated 23.12.2003, the Amended Rules of 2003 were framed and the Notification dated 23.12.2003 was published in the official gazette on 3.1.2004.12. There is also no dispute on the point that vide notification dated 23.12.2003, the Amended Rules of 2003 were framed and the Notification dated 23.12.2003 was published in the official gazette on 3.1.2004.12. There is also no dispute on the point that the Amended Rules of 2003 would come into force after expiry of 90 days from the date of its publication, meaning thereby that they have come into force w.e.f. 3.4.2004.13. There is also no dispute on the point that vide order dated 27.4.2004 (Annexure-12), the suspension of the petitioner was extended for a period of 180 days by the respondent No. 3 (GMTD, Pali).14. There is also no dispute on the point that vide order dated 21.9.2004 (Annexure R-1) the suspension of the petitioner has been further extended for a period of 180 days.15. There is also no dispute on the point that under Rule 10(6) of the Rules of 2003, the suspension of an employee can be extended by the competent authority for 180 days on the recommendation of the Review Committee.Now the question which arises for consideration is whether in the facts and circumstances of the present case just mentioned above, the order dated 27.4.2004 (Annexure-4) can be sustained or not ?For convenience, Clause 1(2) of the notification dated 23.12.2003 (Annexure-4) is quoted hereunder : "(2) They shall come into force on the expiry of ninety days from the date of their publication in the official gazette." 16. Since in this case, the notification dated 23.12.2003 was published in the official gazette on 3.1.2004 and thus, the Amended Rules of 2003 would come into force after expiry of 90 days from the date of its publication i.e. w.e.f. 3.4.2004.17. It may be submitted that under Rule 10(5) the Old Rules of 1965, there was no time limit for life of an order of suspension of an employee and now in the Amended Rules of 2003 time limit has been prescribed and when Amended Rules of 2003 came into force w.e.f. 3.4.2004 i.e. after expiry of 90 days from the date of its publication, the period of 90 days would be counted from 3.4.2004 and when this being the position, the order dated 27.4.2004 (Annexure-12) by which suspension of the petitioner was extended for a period of 180 days by the respondent No. 3 cannot be said to have been passed against the statutory Rules.18. So far as question whether there was any merit for extension of suspension of the petitioner or not is concerned, this Court does not want to go into that controversy as after that a fresh order dated 21.9.2004 (Annexure R-1) has already been passed by which suspension of the petitioner was further extended for a period of 180 days and that order (Annexure R-1) has not been challenged in this writ petition.19. Apart from this, the Courts are always reluctant to interfere with the order of suspension and do so only when a clear cut case of breach of statutory provision or mala fide is made out. In this case, as stated above, no statutory provision has been violated nor it can be said that the order dated 27.4.2004 (Annexure-12) by which the suspension of the petitioner was extended for a period of 180 days was mala fide one as a case under the provisions of Prevention of Corruption Act was registered against the petitioner and charge-sheet dated 30.12.2003 (Annexure-2) on that count had already been served on him and therefore order dated 27.4.2004 (Annexure-12) could not be said to be mala fide, arbitrary and illegal.20. It may further be stated that appointing authority or disciplinary authority should generally consider whether it is expedient to keep an employee under suspension pending departmental enquiry or pending investigation into grave charges of misconduct or looking to the gravity of the misconduct on the part of the employee. For that law laid down in the case of State of Orissa v. Bimal Kumar Mohanty, 1994(2) SCT 625 (SC) : 1994(2) SLR (SC) 384 may be referred to. In the present case, the petitioner has been charged with the serious misconduct of demand of bribe and a criminal case under the Prevention of Corruption Act was also registered against the petitioner by the Anti Corruption Bureau, therefore, the order dated 27.4.2004 (Annexure-12) by which suspension of the petitioner was extended during the pendency of enquiry can be justified and the petitioner is not entitled to the relief sought for.21. The Hon'ble Supreme Court in the case of Allahabad Bank v. Deepak Kumar Bhola, 1997(2) SCT 643 (SC) : 1997(4) SCC 1 has observed that suspension of an employee pending criminal trial for offences involving moral turpitude is valid. The Hon'ble Supreme Court in the case of Allahabad Bank v. Deepak Kumar Bhola, 1997(2) SCT 643 (SC) : 1997(4) SCC 1 has observed that suspension of an employee pending criminal trial for offences involving moral turpitude is valid. Thus, the order dated 27.4.2004 (Annexure-12) by which suspension of the petitioner was extended for a period of 180 days could not be said to invalid or unjustified. Not only this, suspension of the petitioner has further been extended by the order dated 21.9.2004 (Annexure R-1) and if the petitioner is of the view that the order dated 21.9.2004 (Annexure R-1) was not justified, he can approach the concerned authority and from that point view also, the petitioner is not entitled to any relief in this writ petition.22. For the reasons mentioned above, no interference is called in this writ petition and this writ petition is liable to be dismissed.Accordingly, the present writ petition is dismissed. No order as to costs.Petition dismissed. *******