Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 460 (RAJ)

SHARWAN KUMAR v. STATE OF RAJASTHAN

2010-02-24

PRAKASH TATIA

body2010
TATIA, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THE petitioner, who was posted as Assistant Engineer in the department of Water Resources, was suspended vide order dated 29. 11. 2009 (Annex. 1 ). The petitioner has challenged the said order dated 29. 10. 2009 by filing this writ petition. ( 3 ) IT appears that the allegation against the petitioner is that he did not comply with the directions of the higher authorities of removing the pipes. However, in the order of suspension, there is no mention of any charge against the petitioner nor it has been mentioned that the petitioner has been suspended in contemplation of any enquiry. The order of suspension is simply an order conveying the petitioner that under Rule 13 of the Rajasthan Civil services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules of 1958'), he is being suspended. The petitioner's contention is that he complied with the directions of the higher authorities and has not committed any misconduct. To challenge the order dated 29. 10. 2009, learned counsel for the petitioner vehemently submitted that the authorities cannot in routine manner suspend an officer/government employee which results into only burden upon the State exchequer and the Government will not be in a position to take work of the suspended employee. It is also submitted that in the order dated 29. 10. 2009, there is no mention that the petitioner has been suspended contemplating any enquiry. Learned counsel for the petitioner relied upon, the judgment of this Court delivered in S. B. Civil Writ Petition No. 8249/2007 (Samrath Singh vs. State of Rajasthan and Anr. = 2010 (2) RLW 1870)decided on 30. 9. 2009. ( 4 ) THE respondents in reply to the writ petition stated that the petitioner did not comply with the order dated 10. 2. 2009 till 21. 10. 2009 and thereby extended undue benefit to the agriculturist and, therefore, the enquiry under rule 16 of the Rules of 1958 has been initiated against the petitioner. ( 5 ) THE petitioner submitted a rejoinder affidavit stating therein that he did not receive the letter reference of which is given in Annex. R/1 and he on telephonic instructions dated 21. 10. 2009 removed the pipes on 21. 10. ( 5 ) THE petitioner submitted a rejoinder affidavit stating therein that he did not receive the letter reference of which is given in Annex. R/1 and he on telephonic instructions dated 21. 10. 2009 removed the pipes on 21. 10. 2009 itself and send the information to the concerned Executive Engineer on the same day and submitted copy of register wherein entry of that letter is there. He also stated on oath that it has been stated in the reply that the disciplinary proceedings have been initiated but he has not received any charge-sheet and the reply filed by the respondents is totally lie and the petitioner has been suspended wrongly. ( 6 ) I considered the submissions of learned counsel for the parties and perused the facts of the case. ( 7 ) THIS Court is Samrath Singh's case (supra), after considering the facts of that case where the petitioner, an Additional Block Primary Education officer, was trapped for alleged involvement in corrupt practices and, therefore, a criminal case was registered against him for the offences punishable under different provisions of the Prevention of Corruption Act, 1988 wherein, he was also arrested and was kept in judicial custody for a period of more than 48 hours. The incident happened in the month of April, 2007. The commissioner, Secondary Education, Government of Rajasthan, Bikaner, while exercising powers under Rule 13 of the Rules of 1958 passed the order dated 11. 10. 2007 placing the petitioner under suspension w. e. f. 3. 4. 2007. The said order was challenged principally on two grounds :- (l) the order impugned is bad being passed in mechanically; and (2) the order placing the petitioner under suspension is bad being essentially an administrative order and that could have not been passed with retrospective effect. ( 8 ) THIS Court also considered the Government circular dated 11. 10. 2007 wherein instructions were given that if a civil servant is caught red-handed while taking bribe by the anti corruption bureau, he should be placed under suspension without any exception and the petitioner was placed under suspension as per the thrust of the circular aforesaid. ( 8 ) THIS Court also considered the Government circular dated 11. 10. 2007 wherein instructions were given that if a civil servant is caught red-handed while taking bribe by the anti corruption bureau, he should be placed under suspension without any exception and the petitioner was placed under suspension as per the thrust of the circular aforesaid. ( 9 ) THIS Court while considering whether it is mandatorily required to place a government servant under suspension on lodging a case for the offences punishable under Prevention of Corruption Act or the competent authority is required to apply its mind objectively, held as under:- "in general sense suspension means, a temporary deprivation of the employee's functions or right to discharge his duties, but that does not amount to lower down or reduction of his rank or status. Such employee, though continuous to be in employment but he is not permitted to work and is paid only a subsistence allowance which is less than salary and other admissible allowances for which he would have been entitled in normal course. The suspension is an interlocutory disciplinary measure to ensure free and fair conduct of the inquiry or the prosecution, as the case may be. It would be appropriate to place a person under suspension if, (i) his continuance to the office is likely to prejudice inquiry, investigation or trial; or (ii)where his continuance in office is likely to seriously subvert discipline in the office concerned; (iii) where his continuance in the office will be against the wider public interest; (iv) where a prima facie case is found to initiate criminal/departmental proceedings which are likely to lead to his conviction and/or dismissal, removal or compulsory retirement from service; or (v) where he is suspected to have engaged himself in activities prejudicial to the interest of the security of the state. Beside the above general eventualities, a public servant may also be suspended for misdemeanor like; (i) an offence or conduct involving moral turpitude; (ii) corruption, embezzlement or misappropriation of the government funds, possession of disproportionate assets, misuse of official powers; (iii) serious negligence in discharging duty resulting in considerable loss to the government or public at large; (iv)desertion from duty; or (v) refusal or deliberate failure to carry out return or other just orders of the superior officers. " ( 10 ) THEN it has been observed by this Court in Samrath Singh's case (supra) that the concept of suspension during the inquiry or trial is an important and larger objective of ensuring free and fair conduct of proceedings. Where serious allegations of misconduct are imputed or the employee is undergoing trial for the grave charges, it may be undesirable in the interest of service to continue him on the post. Thereafter, this Court held that suspension is a mode for fair and free inquiry as otherwise it would be difficult to facilitate free investigation. Even after examining the issue in detail referred above, this Court further observed that in every case of suspension, its desirability is required to be examined by the competent authority by taking into consideration existing facts. So has been held after noticing that although the suspension is not a punishment specified, an order of suspension is not required to be passed lightly or mandatorily in every case of the circumstances referred above. ( 11 ) IN Samrath Singh's case (supra), this Court further held that the circular dated 10. 8. 2001 cannot take away the power of the authority to take a decision as per his own satisfaction and the suspension is not mandatory in the facts and circumstances of the case referred in the circular dated 10. 8. 2001. ( 12 ) THERE is no dispute about various powers of employer to suspend the employee but at the same time, it is the satisfaction of the employer that matters heavily as the employer is to run the administration smooth and to maintain the discipline in the Government service: Learned counsel for the petitioner stretched too for the ratio of Samrath Singh's case and that is to the extent that the order of suspension of employee must contain the above grounds referred in Samrath Singh's case. If the order of suspension contains no reason or any of the reasons referred in Samrath Singh's case, that itself is no presumption that the authority has arbitrarily exercised its power under rule 13 or any power under which right has been given to the employer to suspend the employee. If the order of suspension contains no reason or any of the reasons referred in Samrath Singh's case, that itself is no presumption that the authority has arbitrarily exercised its power under rule 13 or any power under which right has been given to the employer to suspend the employee. If the order of suspension is challenged, then it is primary duty of the person who challenges the suspension order to satisfy the court on facts and may on the basis of legal pleas that there is a possibility of abuse of power for some reasons. There may be cases of malafide action and the malafide action may be malafide in facts or malafide in law. The law to prove these two issues is clear and the petitioner certainly can demonstrate the appellate authority or to the High Court in the writ petition that the order has been passed by the authority is wholly without jurisdiction or in gross violation of any statutory rule or has been passed malafide or under colourable exercise of power or for no reason and further if reason has been shown, then that reason is non-existent. The suspension order itself need not to contain one or all of the reasons for suspending the employee. What authorities are required to do is that they should have reasons for passing the order of suspension which can be gathered from the facts of each case and it is desirable that in the note sheet or file kept by the employer, the reasons may be mentioned so that they cannot be concocted to frustrate the legitimate claim and case of the suspended employee but it is desirable only and not a mandatory condition for passing order of suspension. There cannot be any presumption that the authority has passed the order of suspension in colourable exercise of power nor there can be any assumption that the employee has been suspended without any reason. Contrary to it, the presumption of fairness is attached to all the official acts and that the official acts has been done fairly without any malice and it is for the petitioner to challenge the order on the basis of the facts and pleadings that at least prima-facie evidence for those conditions. Contrary to it, the presumption of fairness is attached to all the official acts and that the official acts has been done fairly without any malice and it is for the petitioner to challenge the order on the basis of the facts and pleadings that at least prima-facie evidence for those conditions. ( 13 ) IT is true that the suspension of an employee may be burden on State exchequer but continuation of the person in the office who deserves to be suspended, may not only be a burden on State exchequer but may also be a burden on office as well as public and some times, it results into indiscipline and insubordination in the office. Therefore, interference of the Courts in the matter of suspension normally is not appreciated and at the same time, the orders of suspension of the employees in fit cases like Samrath Singh's case not only have been quashed but conduct of the wrong doers is condemned by the Courts. It depends upon the facts of each case. Therefore, the principles which have been stated in. the judgments are sufficient guidelines for the employer in dealing the matters where the order of suspension is passed. ( 14 ) IN Samrath Singh's case (supra), it is clear from the two questions formulated that the Court itself observed that the order of suspension was passed mechanically and by following the directions of the State Government given in circular dated 10. 8. 2001 which virtually is a complete attack on the power of the employer who is the only competent authority to pass the order of suspension and the Government order dated 10. 8. 2001 compels the authority to mechanically pass the order and that too without any application of mind. Therefore, the Court had to deal with the matter in detail to show the authorities the consequence of indiscriminate suspension of the employees. The second issue before the Court in Samrath Singh's case (supra) was that whether the suspension order can be from the retrospective effect and on that issue also, there was no defence with the employer. ( 15 ) HERE in this case, the petitioner himself pleaded in his own writ petition that there were directions for doing some work of removing the pipes. ( 15 ) HERE in this case, the petitioner himself pleaded in his own writ petition that there were directions for doing some work of removing the pipes. The allegation against the petitioner is that he did not comply with that direction whereas the petitioner's contention is that the instantaneously complied with the orders and removed the pipes. The consequence of instant non-removal of the pipes would have benefited the cultivators obviously at the cost of other cultivators. The delinquency alleged against the petitioner is for the period from 23. 1. 09 to 21. 10. 2009. The respondents have submitted reply stating therein that the enquiry under Rule 16 of the Rules of 1958 has been initiated. The initiation of the enquiry is in the knowledge of the respondents and the petitioner may not have been served with the charge-sheet yet but that does not mean that there is no contemplation of the enquiry against the petitioner. ( 16 ) LEARNED counsel for the respondents orally submitted that because of the election process for some period, the matter was delayed. Be it as it may, the petitioner was suspended on 29. 10. 2009 and he preferred writ petition on 9. 11. 2009 and reply to the writ petition has been filed on 5. 2. 2010, therefore, it cannot be said that the initiation of the enquiry against the petitioner under the Rules of 1958 is delayed one also. ( 17 ) IN the facts of the case, the non-mentioning of the fact that the petitioner is suspended in contemplation of any enquiry is absolutely irrelevant because the petitioner himself pleaded that there is allegation of delinquency against the petitioner and the same is plea in the reply to the writ petition. ( 18 ) CONSEQUENTLY, this writ petition, having no merits, is hereby 5 dismissed.