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Madhya Pradesh High Court · body

2005 DIGILAW 1003 (MP)

SURESH KUMAR PUROHIT v. STATE OF M. P.

2005-09-22

RAJENDRA MENON

body2005
RAJENDRA MENON, J. ( 1 ) PETITIONER who is working as an Asstt. Transport inspector in the office of Transport Commissioner, Gwalior has filed this petition assailing the order of suspension Annex-ure P/ 1 dated 24-7-2004. While the petitioner was working as an Asstt. Transport Sub Inspector and was posted in jhhabua, a criminal case no. 17/2000 for having committed offence under Section 13 (1) (E) and 13 (2) of the Prevention of corruption Act was registered against him in the year 2000 and because of involvement of the petitioner in the aforesaid criminal case vide order dated 23-3-2000 annexure-P/2 petitioner was suspended by the Transport Commissioner, gwalior. However, after about two months the order of suspension was revoked on 13-4-2000 vide Annexure-P/3 and petitioner was posted at Check Post, Morena. As per the order Annexure-P/4 petitioner was working in Morena since the said date when all of a sudden he is again suspended by the impugned order. It is the case of the petitioner that now the suspension has been ordered only because certain communication is received by the department from the establishment of the Lokayukt. Inter alia contending that petitioner cannot be suspended again now after four years merely because challan has been filed in the criminal case, petitioner wants intervention by this Court. ( 2 ) SHRI Rajendra Tiwari, learned senior counsel appearing for the petitioner taking me through the proviso of rule 9 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1966") argued that an employee can be suspended by the competent authority if the authority finds that during the pendency of any departmental enquiry or a criminal proceeding permitting the petitioner to discharge the duties is deter-mental to the interest of the department. Shri Tiwari argued that in the present case, initially petitioner was suspended thereafter the suspension was revoked and now mechanically without application of mind merely because the lokayukt organization has intimated and asked for suspension of the petitioner order is passed. Inviting my attention to a judgment rendered by a bench of this court in somewhat identical situation in the case of another employee of the Department in the case of Rajesh Kumar trivedi v. State of M. P. and Anr. Inviting my attention to a judgment rendered by a bench of this court in somewhat identical situation in the case of another employee of the Department in the case of Rajesh Kumar trivedi v. State of M. P. and Anr. , decided on 13-11-2003 and the judgment of the supreme Court in the case of Commissioner of Police, Bombay v. Govardhandas bhanji and various other judgment of the supreme Court reported in para 7 of the order passed by this court in the case of Rajesh Kumar Trivedi (supra), Shri tiwari learned senior counsel argued that the order of suspension is unsustainable. Shri Tiwari also invites my attention to a similar judgment by the Indore Bench in the case W. P. (S)1408/2003 of S. D. Muley v. State of M. P. decided on 22-3-2005 in support of his contention. ( 3 ) REFUTING the aforesaid, Shri brajesh Sharma, learned counsel for the state raised a preliminary objection to the effect that the order of suspension is passed from Bhopal, petitioner was involved in a case when he was posted in jhhabua and, therefore, this Bench does not have territorial jurisdiction. That apart, it was submitted by him that against the order of suspension, petitioner can prefer an appeal to the Governor and, therefore, the petition directly before this court is not maintainable. On merit, Shri Brajesh Sharma argued that while deciding the earlier petition in the case of Rajesh Trivedi (supra) this court has not taken notice of the first proviso to Rule 9 (1) of Rules of 1986 which has been brought into force vide amendment dated 11-4-1996 and according to this rule, when a challan is filed for a criminal offence involving corruption or mortal turpitude, government servant has to be placed under suspension. Accordingly, shri Sharma argued that as suspension is consequential to the filing of the challan in a criminal case by virtue of the statutory rules brought into force w. e. f. 17-2-1996, no case for interference is made out. ( 4 ) I have heard the learned counsel for the parties at length and perused the record. Accordingly, shri Sharma argued that as suspension is consequential to the filing of the challan in a criminal case by virtue of the statutory rules brought into force w. e. f. 17-2-1996, no case for interference is made out. ( 4 ) I have heard the learned counsel for the parties at length and perused the record. ( 5 ) AS far as the preliminary objections are concerned, after revocation of the suspension on 13-4-2000 vide order annexure-P/4 date 22-4-2000 petitioner was posted in Check post, Morena and, therefore, on the date when the impugned order of suspension vide Annexure-P/1) was issued on 24-7-2004 petitioner was working in Morena and by the impugned order, he has been posted in the office of Transport Commissioner, gwalior. Under such circumstances, as the petitioner is posted in Morena and gwalior within the territorial jurisdiction of this Bench, the preliminary objection with regard to territorial jurisdiction has to be rejected. As far as the appeal to the governor is concerned, the impugned order having been passed by the State government and merely because petitioner has not exhausted the remedy of appeal, this petition can not be thrown out on this ground as important question with regard to independent application of mind by the State government requires consideration and in two other cases involving similar question, this court has interfered in the matter and a preliminary objection with regard to availability of alternate remedy has been rejected by this court as is evident from the observations made by this court in the case of rajesh Trivedi (supra ). ( 6 ) ACCORDINGLY, finding no substance in the preliminary objection raised by the learned Govt. Advocate, the same are rejected. ( 6 ) ACCORDINGLY, finding no substance in the preliminary objection raised by the learned Govt. Advocate, the same are rejected. As far as application of mind by the disciplinary authorities and taking action merely on the basis of the instructions issued by the office of lokayukt organization are concerned, all these questions have been considered by this court in the case of Rajesh Trivedi (supra) and considering the law on the question of the basis of certain judgment of the supreme court, so also of the another High Court, detailed discussion in this regard has been made from para 11 onwards of the order and it had been considered view of this court in the aforesaid case that for suspending employee independent application of mind by the disciplinary authority is required and the disciplinary authority has to act independently and can not be permitted to act in a mechanically manner, merely because the Vigilence Commissioner or any other authority want the employee to be suspended. However, the aforesaid view taken by this court is being distinguished by Sri Brajesh by inviting my attention to the amendment to Rules incorporated on 17-4-1996 vide notification annexure r/1. The aforesaid amendment to the rules was considered by Indore Bench while deciding with W. P. 1408/05 and the said argument was rejected. ( 7 ) CONTENTION of Shri Brajesh sharma is that first proviso to Rule 9 (1)mandates that immediately when challan for a criminal offence involving corruption or mortal turpitude is filed against an employee he has to be suspended as a matter of routine and there can no deviation from the aforesaid procedure. The abovesaid proviso contemplates that a government servant shall "invariably" be placed under suspension when challan is filed for criminal offence involving corruption or moral turpitude. Rule 9 (1)gives power to the appointing authority and the disciplinary authority to keep an employee under suspension. However, proviso to this rule as indicated hereinabove was incorporated on 17-4-1996 and the key words in this section "shall invariably be placed under suspension". The aforesaid amended proviso has to be read with proviso to sub rule 5 which was also incorporated by the same amendment on 17-4-1996. The provisos read as under : proviso to Sub Rule (1 ). The aforesaid amended proviso has to be read with proviso to sub rule 5 which was also incorporated by the same amendment on 17-4-1996. The provisos read as under : proviso to Sub Rule (1 ). "provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against him. "proviso to Sub Rule 5. "provided that an order of suspension made under the first proviso to sub-rule (1)of rule 9 shall not be revoked except by an order of the Government made for reasons to be recorded. " ( 8 ) A perusal of aforesaid proviso to sub Rule 5 indicates that an order of suspension made under the first proviso to sub rule (1) Rule 9 can be revoked by the state Government for reasons to be recorded. A combined reading of both these provisos i. e. proviso to rule 9 (1) and proviso to sub rule 9 (5) indicate that even though when the challan is filed for a criminal offence employee is to be invariably suspended but at the same time power of revoking the suspension is given to the Government and the Government is entitled to revoke the suspension for reasons to be recorded in writing, meaning thereby that contention of Shri brajesh Sharma to the effect that employee has to be suspended as a matter of routine immediately when the challan is filed in the criminal case is not correct. Even in such cases, discretion is given to the State Government to revoke the suspension order and permit an employee to work even after the challan is filed in the criminal case. Accordingly, it clear that the legislative intent was that normally when a challan is filed employee can be suspended but at the same time power is given to the Govt. to revoke the suspension even after filing of the challan, meaning thereby that suspension has to be ordered after considering the facts and circumstances of each case, State Government or the Competent Authority has to act independently by application of mind. In the present case for his involvement in the same criminal case at the time of investigation petitioner was suspended thereafter the disciplinary authority had revoked the suspension. In the present case for his involvement in the same criminal case at the time of investigation petitioner was suspended thereafter the disciplinary authority had revoked the suspension. Now also, if the challan is filed it is well within the right of the competent Authority or the State government to suspend the employee, but they have to act by independent application of mind and can not be permitted to take action only because some communication is received and direction is issued by the office of the Lokayukt. The direction issued by the Lokayukt is only recommendatory in nature and for the purpose of suspending an employee, independent application of mind has to be made by the State Government and thereafter a decision taken, permitting the State Government to act without application of mind mechanically merely because the organization of the Lokayukt has directed is not permissible. This question has been considered in the judgment of Rajesh Trivedi (supra) and for the reasons mentioned therein it has been held that independent application of mind has to be made by the State Government or the disciplinary authority. Accordingly, i am of the considered view that the contention of Shri Brajesh Sharma to the effect that after change of the rules suspension on filing of challan is a mandatory requirement is not correct. A combined reading of both the provisos incorporated on 17-4-1996 by the amending act as indicated herein above gives power to the State Government to take action in the matter after application of mind and it can not be said that in all cases the employee has to be suspended because challan is filed. This question has been considered in the case of S. D. Muley (supra) by the Indore Bench of this court in para 5 of the aforesaid judgment both the provisos to the rules have been considered. In view of aforesaid, I find no ground to take a different view from the one taken by my the learned Judge in the said case. In view of aforesaid, I find no ground to take a different view from the one taken by my the learned Judge in the said case. ( 9 ) IT has to be kept in mind that suspension even though not a punishment has serious repercussion on the livelihood of an employee and, therefore, it has been observed by the Supreme court in various cases that a order to suspension can not be passed lightly, an order of suspension can be passed only after the competent authority comes to the conclusion that there are sufficient reason for keeping an employee under suspension, there has to be proper application of mind and satisfaction of the authority to the effect that suspension is called for in a given case. ( 10 ) KEEPING in view the directives issued under similar circumstances in the case of S. D. Muley (supra) this petition is also disposed of in the following terms:- (i) Petitioner shall place a copy of this order before the respondent no. 1 within a period of two weeks of its receipt. (ii) Respondent No. 1 shall examine the entire case and shall pass proper orders keeping in view the facts and circumstances of the case, the necessity of suspension of the petitioner according to law laid down in the case of Rajesh Kumar (supra), respondent No. 1 shall pass speaking order in the matter within a period of one month from the date of receipt of certified copy of this order as indicated hereinabove and (iii) In case no order is passed by the respondent No. 1 within the aforesaid stipulated period the impugned order Annexure-P/1 shall stand automatically quashed. Petition stands disposed of with the aforesaid without any order as to costs. Petition disposed of. .