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Rajasthan High Court · body

2005 DIGILAW 2273 (RAJ)

Ashutosh Rawal v. Uttari Rajasthan Sahkari Dugdh Utpadak Sangh Ltd. , Bikaner

2005-08-26

R.P.VYAS

body2005
Honble VYAS, J.–The instant petition has been filed by the petitioner with the prayer that the suspension order dtd. 16.5.2005 (Annex. 4) may kindly be quashed and set aside and the charge-sheet dtd. 16.6.2005 (Annex. 5) issued to the petitioner may also be quashed and set aside and the departmental enquiry initiated against the petitioner may also be dropped and the respondents may be directed to pay the subsistence allowance to the petitioner as payable to him. (2). Brief facts of the case are that while the petitioner was working as Assistant Accounts Officer, he was placed under suspension vide order dtd. 16.5.2005 (Annex. 4) on account of pendency of departmental enquiry. The petitioner was also served with a charge-sheet on 16.6.2005 containing six charges against the petitioner. (3). In this writ petition, the petitioner has challenged the validity of order of suspension as well as initiation of departmental enquiry against him. (4). In this writ petition, the main contention of the learned counsel for the petitioner is that the petitioner is not at all responsible for realisation of the cheques or collection of cheques. The learned counsel for the petitioner has also raised contention on merits of the each charges and submitted that no prima facie charge is disclosed against the petitioner, therefore, suspension of the petitioner is not justified. It has also been alleged by the petitioner that non-supply of the material documents in the enquiry also vitiates the entire enquiry proceedings and it is well settled law that a person cannot be penalized unheard and more particularly, when the petitioner is asking for the documents time and again and the respondents are sitting tight over the documents and are not making available the copies of the documents to the petitioner. In that view of the matter also, the impugned order of suspension as well as impugned departmental enquiry is in utter Breach of principles of natural justice as well as full of malafides. (5). Before proceeding further, the legal position in respect of suspension has to be seen. (6). The power of suspension has been provided under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958, which reads as under: ``13. (5). Before proceeding further, the legal position in respect of suspension has to be seen. (6). The power of suspension has been provided under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958, which reads as under: ``13. Suspension:- (1) The Appointing Authority or any other authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) where a disciplinary proceedings 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; Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority, the circumstances in which the order was made. (7). The general principle for suspension is that an employer can suspend an employee pending and enquiry into his conduct and on this general principle, the Government like any other employer, would have a right to suspend a public servant in one or two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings. This is called interim suspension. (8). It is settled law that normally when an appointing authority of the disciplinary authority seeks to suspend an employee, pending enquiry or contemplated enquiry or pending investigation into grave charges of misconduct of defecation of founds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority or on application of mind by the disciplinary authority. (9). It may also be stated that an order of suspension during the pendency of a departmental enquiry is ordinarily not interfered by the High Court in exercise of its jurisdiction under Article 226 of the Constitution until and unless the Court comes to a conclusion that the order has been malafide passed or that the appointing authority has not passed the order of suspension. (10). (10). It is also stated that the provisions of Article 311(1) of the Constitution of India does not apply to suspension as the interim suspension is not a punishment and an order of suspension can be passed not only be the appointing authority but also by any authority empowered to do so. (11). The constitution Bench of the Honble Supreme Court in Mohd. Ghouse vs. The State of Andhra, AIR 1957 SC 246 propounded that order of suspension is neither one of dismissal nor removal from service within the meaning of Article 311 of the Constitution of India. (12). In the case of State of M.P. vs. State of Maharashtra reported in 1977 (2) SCC 288 , their lordship of the Honble Supreme Court held that the order of suspension does not put an end to the service of an employee. Suspension merely suspends the claim of salary. During suspension, there is suspension allowance. Real effect of the order of suspension is that though he continues to be a member of service, he is not permitted to work and is paid only subsistence allowance which is less than his salary. (13). Now the legal position in respect of malafides has to be seen. (14). It is for the person seeking to invalidate an order to establish the charge of bad faith. Such a charge may be made easily or without a sense of responsibility and that is why it is necessary for the courts to Examine it with care and attention. (15). The Honble Supreme Court in the case E.P. Royappa vs. State of Tamil Nadu reported in AIR 1974 SC 555 has observed that the burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility. (16). Keeping in view of the above principles, the question which arises for consideration is whether in the facts and circumstances of the order of suspension dtd. 16.5.2005 (Annex. 4) is liable to be quashed and set aside or not. (17). Admittedly, the petitioner has been placed under suspension vide order dtd. 16.5.2005 (Annex. 4) under Rule 13 of the Rules of 1958 during the pendency of departmental enquiry. 16.5.2005 (Annex. 4) is liable to be quashed and set aside or not. (17). Admittedly, the petitioner has been placed under suspension vide order dtd. 16.5.2005 (Annex. 4) under Rule 13 of the Rules of 1958 during the pendency of departmental enquiry. There is no argument on behalf of the petitioner that the order of suspension has not been passed by the competent authority. The charges levelled against the petitioner in the enquiry includes the charges of serious financial irregularities and thus, looking to the gravity of charges, the petitioner has rightly been placed under suspension during pendency of departmental enquiry. So far as violation of principles of natural justice as well as Article 311 of the Constitution of India is concerned, it is stated that the provisions of Article 311(1) of the Constitution of India does not apply to suspension as the interim suspension is not a punishment and the suspension order has not been passed as a punitive measure. The petitioner has been placed under suspenion in conformity with Rule 13 of the Rules of 1958. (18). It has also been argued by the counsel for the petitioner the impugned order of suspension has been passed with malafide intention. (19). As stated above, the petitioner has not been able to substantiate his allegation of malafides by any cogent evidence. The burden to prove malafides lies on the person alleging it. Such a charge may be made easily or without a sense of responsibility and that is why, it is necessary for the Courts to examine it with care and attention. In the present case there are no necessary particulars or the charge making out a prima facie case of malafides in the writ petition, therefore, I do not find any force in the allegation of malafide levelled by the petitioner. Accordingly, this argument raised by the petitioner stands rejected. (20). For the reason mentioned above, the order dtd. 16.5.2005 does not require any interference by this Court. (21). The next argument raised by the petitioner is that the charge sheet dtd. 16.5.2005 and the enquiry initiated against him are illegal and the same be quashed. (22). In this respect, the learned counsel for the petitioner has tried to meet out the each charges on merits. (23). 16.5.2005 does not require any interference by this Court. (21). The next argument raised by the petitioner is that the charge sheet dtd. 16.5.2005 and the enquiry initiated against him are illegal and the same be quashed. (22). In this respect, the learned counsel for the petitioner has tried to meet out the each charges on merits. (23). It may be stated that the petitioner has full opportunity to defend his case before the Disciplinary Authority by leading cogent evidence (documentary as well as oral) and while exercising the powers under Article 226 of the Constitution of India such questions of facts cannot be gone into which are highly disputed. So far as non-supply of the relevant documents is concerned, this plea is also available to the petitioner before the Disciplinary authority as well as in appeal if punishment is imposed on him. This plea cannot be appreciated at this stage. Therefore, this argument raised by the petitioner also stands rejected. (24). For the reasons mentioned above, the instant petition is dismissed. However, the respondents are directed to make payment of subsistence allowance to the petitioner as admissible to him as per law. (25). No order as to costs.