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2008 DIGILAW 1946 (RAJ)

Gopal Lal Sharma v. State of Rajasthan

2008-08-18

MOHAMMAD RAFIQ

body2008
Honble RAFIQ, J.—This writ petition seeks to challenge the order of suspension of the petitioner dated 22.12.2005. 2. Petitioner was working as Agriculture Supervisor in the Directorate of Agriculture, Government of Rajasthan, Jaipur. The real elder brother of the petitioner Bhanwar Lal passed away on 24.8.1981. Since he had died intestate, according to the petitioner, he performed his last rite and even the turban was tied on his head as per the customs prevalent in his community. Wife of the petitioners elder brother started living with her parents and then there arose certain disputes between them with regard to partition of the ancestral properties in so far as share of Bhanwar Lal was concerned. His wife filed two civil suits in Sambhar Lake in the year 2003. However, no interim order of injunction was passed in the civil suits. She thereafter filed two criminal complaints in the Court of Magistrate at Jobner, District Jaipur which were sent to Police Station for investigation and were registered as FIR No.148/2003 u/s. 420, 471 & 192 IPC and FIR No.180/03 u/s 420, 467 & 468 IPC. 3. Shri Arvind Sharma, learned counsel for the petitioner has argued that the petitioner was mechanically placed under suspension by the respondents on the premise that police eventually filed challan against the petitioner in the criminal cases which have taken cognizance of by the Court in both the matters on 19.1.2004. It was contented that the dispute essentially is of civil nature which has been converted into criminal one and that the petitioner has a valid defence to offer. The trial of the aforesaid criminal cases is in any case likely to take long. None of the alleged offences involves moral turpitude. Even though the cognizance was taken about four and half years ago the trail court has even not framed charges against the petitioner so far. The petitioner could not be placed under suspension even by invoking deeming clause because in one of the cases, he was granted anticipatory bail and in the other case upon arrest, he was granted bail by the Magistrate on the same day. The petitioner could not be placed under suspension even by invoking deeming clause because in one of the cases, he was granted anticipatory bail and in the other case upon arrest, he was granted bail by the Magistrate on the same day. Learned counsel referred to the Circular of the Government in its Department of Personnel dated 10.1.2001, especially to that part of the Circular, which provides that Officers should not be placed under suspension in routine manner and that in matters of criminal cases, suspension should be resorted to only in cases involving moral turpitude, embezzlement of funds or some grievous offences pending investigation or trail. Learned counsel also relied on the division bench judgment of this Court in Ashok Gaur vs. State of Rajasthan & Anr., RLR 1987 (II) 63. 4. Shri B.L. Avasthi, learned Additional Government Counsel opposed the writ petition and argued that Government has the right to place the petitioner under suspension in view of the provisions contained in Rule 13 of the Rajasthan Civil Services (Classification Control & Appeal) Rules of 1958 which inter alia empowers the appointing authority or any authority to which the government servant is subordinate or empowered by the government in that behalf, to place him under suspension where a criminal case is under investigation or is pending trial against him. Learned Additional Government Counsel submitted that two FIRs were registered against the petitioner and in both of them, the police has filed challan against him and cognizance has been taken by the trial court. In one case, the petitioner was arrested on 24.11.2003, although it is another matter that he was enlarged on bail, but factual foundation of the order is not disputed even by this petitioner. The competence of the appointing authority in placing the petitioner under suspension, in this view of the matter, cannot be questioned. 5. Upon hearing the learned counsel for the parties and perusing the material forming part of record, I find that though the order of suspension was based on the cognizance taken against the petitioner by the trial court in two criminal cases, one for offence under Section 420, 471 & 192 IPC and another under Section 420, 467 and 468, but the cognizance was taken as far back on 19.1.2004 and 21.1.2004. But the impugned order indicates that the cognizance was taken in January, 2004 and the Government has woken up to the necessity of exercising its powers almost 23 months thereafter on 22.12.2005. But that is one aspect of the matter. The other aspect, which is more significant, is that merely because the Government/competent authority has been empowered to place a government servant under suspension, such power cannot be exercised in a mechanical manner and as and when it decides to do so. The Government itself in the Circular issued by DOP dated 10.1.2001 states that “it has been observed that in some cases officers are being placed under suspension in a routine manner on account of minor lapses”. It is further stated therein that “where a criminal case involving moral turpitude, embezzlement of funds or some other grievous offence is pending investigation or trial against an officer” only then the officers should be nor-mally placed under suspension. Moreover, the said Circular further provides as under: “Before placing any person under suspension, the competent authority should personally study the facts and circumstances of the case and satisfy himself/herself that in the facts and circumstances of the case a prima facie case is made out for initiating disciplinary action under Rule 16 of the CCA Rules and that the gravity of the charge is such that, if proved, it will most probably lead to his removal or dismissal from service. The competent authority should pass a speaking order stating that he/she has personally examined the facts and circumstances of the case and that he/she is personally satisfied that suspension is justified in the facts and circumstances of the case. Contrary to normal belief, suspension is a very harsh step and, except in rare cases, suspension should not be resorted to except after charge-sheet has been served upon the concerned officer and, to the extent possible, after giving an opportunity to the concerned officer to state his case with respect to the charges against him.” 6. According to the aforesaid Circular all concerned were required to review the case of such employees who are presently under suspension keeping in view the observations made above. No doubt the government circulars do not confer any enforceable right but they nonetheless provide guidelines for functioning of the government authorities and cannot be ignored completely in situations for which they provide for. 7. No doubt the government circulars do not confer any enforceable right but they nonetheless provide guidelines for functioning of the government authorities and cannot be ignored completely in situations for which they provide for. 7. The division bench of this Court in Ashok Gaur vs. State of Rajasthan & Anr., supra while defining the scope of Rule 13 observed as under: 10. In view of Rule 13, it is clear that the Appointing Authority or any 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 Government Servant may be placed under suspension where a disciplinary proceeding against him is contemplated or is pending, or where a case against him in respect of any criminal offence is under investigation or trial, or a Government Servant is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Appointing Authority and shall remain under suspension until further orders. A careful study of Rule 13 would also reveal that it is not obligatory on the part of Appointing Authority to place a Government Servant under suspension under the contingencies referred to above. It is discretionary with the Appointing Authority to place a Government Servant under suspension or not. Rule 16 provides procedure for imposing major penalties. Rule 17 provides procedure for imposition of minor penalties and the penalties which may be imposed on a Government Servant have been enumerated in Rule 14. In a case, where in any disciplinary proceeding it is contemplated to impose a minor penalty, generally suspension order is not passed. Even there is no provision which gives a mandate to the disciplinary authority to place a Government servant under suspension during disciplinary proceeding. When a Government Servant who is detained in custody whether on a criminal charge or otherwise, and the period of detention continues exceeding 48 hours, there is a deeming clause that the Government Servant shall be deemed to have been suspended with effect from the date of detention and, this suspension shall remain until further order. When a Government Servant who is detained in custody whether on a criminal charge or otherwise, and the period of detention continues exceeding 48 hours, there is a deeming clause that the Government Servant shall be deemed to have been suspended with effect from the date of detention and, this suspension shall remain until further order. Sub-Rule (5) of Rule 13 provides that an order of suspension made or deemed to have been made under Rule 13 may at any time be revoked by the Authority which makes or is deemed to have been made, the order by the Authority to which that authority is subordinate. From the above discussions, it is apparent that an order of suspension should not be passed by invoking powers under Rule 13 simply because a disciplinary proceeding is contemplated, or criminal case is under investigation or trial against a Government Servant. The Appointing Authority has to exercise his discretion in this regard. A Government Servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross-misconduct or corruption which, if approved, will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for a longer period, or where there are reasons to believe that a Government Servant if allowed to continue in active service, might tamper with the evidence, he may be suspended or, in case a Government Servant is facing trial in a criminal court he should be suspended, if he has been refused bail and committed to prison. But, simply because a criminal case is under investigation, or trial against a Government Servant, though, he may be put under suspension but the question arises what should be the nature of the offence? If an interpretation is put that in each and every criminal offence which is under investigation or trial, a Government Servant should be put under suspension, then such a power may be termed as arbitrary power. A Government servant may be facing trial of a minor offence under the Motor Vehicles Act. Would it mean that he should be placed under suspension because he is facing trial? A Government servant may be facing trial of a minor offence under the Motor Vehicles Act. Would it mean that he should be placed under suspension because he is facing trial? Thus, it leads us to infer that Government servant could be placed under suspension with regard to a case which involves a misconduct for which a criminal proceeding may be lodged, or which may also become a subject-matter of disciplinary proceeding. A rational meaning will have to be given to sub-clause (b) of Rule 13. Sub-rule (2) of Rule 13 is quite specific which says that in case a person remains under custody exceeding 48 hours he may be suspended with effect from the date of detention and such suspension shall continue till further orders. It is enacted for the simple purpose that while under detention a Government servant may not earn his wages. Sub-Rules (2) and (5) of Rule 13 make it clear that the Appointing Authority which has exercised the power of suspension under Rule 13, has a duty to see that the order of suspension may be revoked, if the same is not needed at any time subsequently.” 8. Considering the facts of the present case, in the light of law settled above, it would be evident that though there can be no dispute with regard to the fact that cognizance against the petitioner has been taken in the criminal cases, but at the same time, the fact is that the criminal cases were preceded by civil litigation and that dispute is about the ancestral property in which the widow of the brother of the petitioner is claiming a share which is resisted by the petitioner. This nature of offence can be hardly said to fall within the ambit of an offence involving moral turpitude, although independently if ultimately proved, it may attract severe penalty but as of now there is no basis to presume so because the offences alleged against the petitioner emerge out of the family dispute and his continuation in office pending trial would not in any case affect his working efficiency or otherwise impair his performance in the said office. Moreover when the cognizance had already been taken by the courts in January, 2004 and the petitioner continued in office for as long as 23 months thereafter, nothing is reflected from the counter affidavit filed by the respondents as to what necessitated suspension of the petitioner at such a belated stage. The respondents themselves have the policy to review a suspension order after every six months. Nothing is brought on record, even otherwise, to show that any such exercise has been undertaken by them in the case of the petitioner. Continued suspension of the petitioner could not be justified in the face of the fact that even though cognizance was taken in January, 2004, charges have been yet been framed against him in either of the cases in spite of the lapse of more than four and a half years. Besides, the impugned order indicates the date of cognizance to be 19.1.2004 in both the cases whereas the actual dates in these two cases are 19.1.2004 and 21.1.2004. All these circumstances, thus make it evidently clear that the order of suspension has been passed in a routine and mechanical manner and reflects non application of mind. The order of suspension, just because the respondents have the authority to do so, cannot be passed in the manner in which it has been done. Even if the respondents had received certain complaints from the complaint party in the criminal case in which the petitioner is accused, that by itself would not justify suspension of the petitioner at such a belated stage. The suspension of the petitioner in the peculiar circumstances of the case has thus been made in colourable exercise of power and not in the interest of the administration. Such an order is therefore cannot be sustained in law. When the trial of the case is proceedings at such a slow pace that even though the cognizance was taken in January, 2004 and charges have not yet been framed, it is unlikely to be completed in near future. The petitioner who was 53 years of age when the writ petition was filed is 55 years now. He cannot be continued under suspension for an indefinite period particularly when his continued suspension cannot sub-serve any purpose in the interest of administration. 9. In the light of above discussion, the order of suspension dated 22.12.2005 is quashed and set aside. 10. He cannot be continued under suspension for an indefinite period particularly when his continued suspension cannot sub-serve any purpose in the interest of administration. 9. In the light of above discussion, the order of suspension dated 22.12.2005 is quashed and set aside. 10. Consequently, the writ petition stands allowed.