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2009 DIGILAW 443 (MP)

RAJENDRA SINGH v. STATE OF M P

2009-04-08

A.K.PATNAIK, A.M.SAPRE

body2009
Judgment ( 1. ) THIS is an appeal under Section 2 (1) of the M. P. Uchcha niyayalaya (Khand Peeth Ko Appeal) Adhiniyam 2005, against the order dated 1. 4. 2009, passed by the learned Single Judge in Writ Petition No. 5473/08 (S ). ( 2. ) THE facts in brief are that the appellant was working as Assistant Manager in m. P. Khadi Gramodyog Board, Badwani. He has been placed under suspension by an order dated 4th March 2008 on the ground that criminal proceedings under Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act read with Sections 120-B and 406 of the I. P. C. , have been initiated against the appellant. Aggrieved by the order of suspension, the appellant filed W. P. No. 5473/08 (S) before this Court and the learned single Judge dismissed the writ petition by the impugned order dated 1. 4. 2009. ( 3. ) MR. N. S. Bhati, learned counsel for the appellant submitted that a reading of the impugned order dated 1. 4. 2009, passed by the learned Single Judge would show that the learned Single Judge has accepted the stand taken by the respondents in the writ petition that the appellant has been placed under suspension, in view of the mandatory provision under proviso to Rule 9 (1) of the M. P. Civil Service (Classification, Control and Appeal) Rules, 1966, as amended with effect from 17th april, 1996 (for short the Rules ). He submitted that the proviso to Rule 9 (1) of the Rules provides that the Government servant has to be placed under suspension where the prosecution is sanctioned by the Government, but in this case the government is yet to sanction prosecution against the appellant and, therefore, the suspension order is illegal and liable to be quashed and this aspect of the matter has not been considered by the learned Single Judge. He also cited a copy of the order dated 26. 05. 08 in W. P. No. 6501/08 in which the learned Single Judge has stayed the order of suspension of two persons working as Dy. Director and assistant Manager of Khadi Gramodyog. ( 4. ) RULE 9 (1) of the Rules, as amended with effect from April 17, 1996 is quoted herein below: - "9. 05. 08 in W. P. No. 6501/08 in which the learned Single Judge has stayed the order of suspension of two persons working as Dy. Director and assistant Manager of Khadi Gramodyog. ( 4. ) RULE 9 (1) of the Rules, as amended with effect from April 17, 1996 is quoted herein below: - "9. (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order, may place a Government servant under suspension (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial; [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;] provided further 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. " ( 5. ) A perusal of Rule 9 (1) (b) of the Rules quoted above would show that where a case against a government servant in respect of any criminal offence is under investigation, inquiry of trial, the authority may place the government servant under suspension. The word may used in this proviso makes it clear that the authority has discretion to place a government servant under suspension where a case against him in respect of criminal offence is under investigation, inquiry or trial. ( 6. ) BUT, a reading of the first proviso, as introduced by way of an amendment with effect from 26th February, 1982 shows that a government servant shall be placed under suspension when a challan for criminal offence involving corruption or other moral turpitude by the government is against hint. Thus, under this proviso only after challan for criminal offence involving corruption is filed against the government servant after sanction of prosecution by the government that a government servant shall be placed under suspension. Thus, under this proviso only after challan for criminal offence involving corruption is filed against the government servant after sanction of prosecution by the government that a government servant shall be placed under suspension. The word "shall" in this proviso indicates that where a challan for criminal offence involving corruption or other moral turpitude is filed after sanction of prosecution by, the government, the government servant has to be invariably placed under suspension and there is very little discretion with the authorities. ( 7. ) IN the present case, it is not disputed that investigation of a criminal case has been completed and the challan has also been filed under Sections 13 (1) (d)and 13 (2) of the Prevention of Corruption Act read with Sections 120-B and 406 of the I. P. C. , but the government is yet to sanction the prosecution of the appellant. Hence, Mr. Bhati is right that the first proviso to rule 9 (1) of the Rules 1966 is not attracted and, therefore, it is not mandatory for the authority to place the appellant under suspension. But even, it was not mandatory for the authority to place the appellant under suspension under the first proviso to Rule 9 (1) of the Rules, the authority had a discretion under Rule 9 (1) (b) of the Rules to place the appellant under suspension, as the challan against the appellant and a case of criminal offence was under trial. Considering the fact that the offences for which challan was filed against the appellant are under Sections 13 (1) (d) and 13 (2) of the Prevention of corruption Act read with Sections 120-B and 406 of the IPC, it is difficult for us to hold that this discretion by the authority to place the appellant under suspension under Rule 9 (1) (b) of the Rules has been arbitrarily exercised. ( 8. ) FOR the aforesaid reasons, we do not find any merit in this appeal and we accordingly dismiss the same. In case, however, the appellant moves the competent authority against the order of suspension for revocation of the order of suspension under the relevant rules it would be open for the competent authority to consider the same on its own merits without being influenced by this order. Appeal dismissed.