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2010 DIGILAW 502 (ALL)

RAMA SHANKAR v. STATE OF U. P.

2010-02-08

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard learned counsel for the petitioner and learned Standing Counsel. 2. The petitioner is a Junior Assistant with the respondent - NOIDA. He was taken into custody on account of being involved in a criminal case and was put behind bars. The petitioner moved an application before the authority for revoking the suspension order after his release from detention. Having failed to get any relief, he has filed this writ petition for quashing of the suspension order dated 20.8.2007 on the ground that the Service Regulations 1981 clearly mandate the authorities to pass appropriate orders in such a situation. 3. Sri Anil Kumar Bajpai, learned counsel for the petitioner, has relied on the decision of this Court in the case of Radhey Shyam v. The Chairman, NOIDA, and another, Writ Petition No. 17132 of 2002, decided on 25.4.2002 and the subsequent decision in relation to the same employee in Writ Petition No. 42220 of 2002, decided on 30.9.2002. Sri Bajpai, on the strength of the said decisions, contends that the respondent - authority has to consider the representation of the petitioner, apply its mind and pass a reasoned order for either accepting or rejecting the request of the petitioner. He submits that even though under the Regulations, the petitioner will be deemed to have been suspended, yet the respondents still continue to enjoy the power to revoke the same and which power has to be exercised in accordance with the Regulations aforesaid. 4. Sri Ramendra Pratap Singh, on the other hand, contends that the petitioner has several criminal cases on his head and he has been placed under suspension keeping in view the aforesaid facts. He further submits that there is no occasion for the authority to revoke the suspension order and that the nature of the crime in which the petitioner is involved, does not entitle him for any such relief. 5. Having heard learned counsel for the parties, Regulation 59, which undisputedly governs the aforesaid issue, is quoted herein below : “59. (1) The Authority or the Appointing Officer or any officer empowered by the Authority in that behalf may place an employee under suspension. 5. Having heard learned counsel for the parties, Regulation 59, which undisputedly governs the aforesaid issue, is quoted herein below : “59. (1) The Authority or the Appointing Officer or any officer empowered by the Authority in that behalf may place an employee 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 involving moral turpitude is under investigation or trial : Provided that where the order of suspension is made by an Officer lower than the appointing Officer such Officer shall forthwith report to the Appointing Officer the circumstances in which the order was made. (2) An employee who is detained in custody, whether on a criminal or other charge 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 Officer and shall remain under suspension until further orders. (3) Where an employee has been placed under suspension and the inquiry into his conduct results in his dismissal or removal from services, the order of the dismissal or removal shall take effect from the date of such suspension. (4) Where a penalty of dismissal or removal from service imposed upon an employee under suspension is set aside in appeal under these regulations and the case is remitted for further inquiry or action or with any directions the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal and shall remain in force until further orders. (5) An order of suspension made or deemed to have been made under this regulation may at any time be revoked by the Officer who made or is deemed to have made the order or by an officer to whom that officer is subordinate or by the Authority.” Sub-Regulation 5 of Regulation 59 clearly provides for the power to the authority to revoke the suspension order in any of the contingency including the contingencies of deemed suspension. It is, therefore, clear under the Rules itself that there is a provision of deemed suspension but simultaneously the authority has been given the discretion to revoke such deemed suspension. 6. It is, therefore, clear under the Rules itself that there is a provision of deemed suspension but simultaneously the authority has been given the discretion to revoke such deemed suspension. 6. Notice may be taken of the Apex Court decision in the case of Union of India v. Rajiv Kumar, (2003) 6 SCC 516 . In paragraph Nos. 14 to 17 of the said decision, the Apex Court has clarified that once a person has been placed under deemed suspension then the same does not get automatically revoked upon release and a fresh order has to be passed. The view expressed by the Full Bench in the case of Chandra Shekhar Saxena and etc. v. Director of Education (Basic), U.P., Lucknow and another, 1997 ALJ 963, to the effect, that the legal fiction by which the deemed suspension operates will cease to be effective upon release, was reversed. 7. Keeping in view the aforesaid position of law, there is no occasion for this Court to interfere with the suspension order but the respondent - authorities are obliged to pass an appropriate order keeping in view the provisions of Sub-Regulation 5 of Regulation 59. 8. Sri Ramendra Pratap Singh relied on the decision in the case of Deputy Inspector General of Police v. G. Pandian, (1998) 8 SCC 578 , to contend that the provision of deemed suspension applies and the petitioner has no right to get the suspension order revoked. I have perused the said judgment and the same in paragraph No. 5 considers the impact of a Rule under Tamil Nadu Subordinate Services (Discipline and Appeal) Rules, 1955. The said decision was nowhere concerned with the power given to the authority to revoke the suspension as in the present case under sub-regulation 5 of Regulation 59. The aforesaid decision, therefore, does not apply on the rules that are presently under consideration and on the facts and circumstances of the present case. 9. Having concluded as above, the writ petition is disposed of with a direction to the respondent No. 2 to pass appropriate orders on the application of the petitioner within a period of 2 months from the date of production of a certified copy of this order before him. ————