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Madhya Pradesh High Court · body

2011 DIGILAW 103 (MP)

Vikram Patel v. M. P. State Electricity Board

2011-01-24

R.S.JHA, S.R.ALAM

body2011
JUDGMENT (1.) SHRI Rajesh Chand, learned counsel for the appellant. Heard on the question of admission. This is an intra-Court appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, against the order of the learned single Judge dated 6-12-2010, dismissing the appellant's Writ Petition No. 16498/2010, for quashing the order dated 3-11-2010, whereby his application seeking permission to join the duty and to take him back in service, has been rejected. (2.) IT appears that the appellant was working as a Paricharak Grade-II (Line) in the office of the respondent No. 2. However, he was placed under suspension with effect from 30-6-2010 and remained in custody till 3-7-2010 because of his conviction and sentence to undergo one year rigorous imprisonment and fine of Rs. 8 Lacs, 1.5 Lacs and 2 Lacs respectively, by the Judicial Magistrate First Class, Katni, in Criminal Case Nos. 1364/2010, 1365/2010 and 1366/2010. The aggrieved appellant challenged the order of suspension before this Court in Writ Petition No. 10817/2010, which was dismissed by the learned single Judge vide order dated 16-8-2010, which was also affirmed by the Division Bench in Writ Appeal No. 838/2010 vide order dated 21-10-2010. However, as a memorandum memo of charges was not served upon him within 90 days with effect from the date of suspension, he submitted his joining on 28-10-2010 (Annx. p/6) with the request to accept the same. The aforesaid request was turned down by the order dated 3-11-2010 which has been impugned in the writ petition and in this appeal. The learned counsel for the appellant, vehemently, contended that since no charge-sheet was served within the period of 90 days from the date of order of suspension, the appellant has to be permitted to join the post and perform the duties in view of the proviso to Rule 9(2) of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966 for brevity). It is submitted that the proviso to the aforesaid rule provides that a copy of the charges and the documents mentioned therein are to be served on the suspended Government servant within a period of 90 days from the date of order of suspension. It is submitted that the proviso to the aforesaid rule provides that a copy of the charges and the documents mentioned therein are to be served on the suspended Government servant within a period of 90 days from the date of order of suspension. It is contended that since till date the charge-sheet has not been issued to the appellant, the order of suspension stands revoked in view of the aforesaid proviso and, thus, the impugned order dated 3-11-2010 rejecting his application for permitting him to join his duties deserves to be quashed and consequently the respondents be directed to permit the petitioner to perform his duties. (3.) IN order to appreciate the submissions made, it would be appropriate to examine Rule 9 of the Rules of 1966, which reads as under :- "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 in ventilation, 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. (2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority - (a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. [(2-a) Where a Government servant is placed under suspension under clause (a) of sub-rule (1), the order of suspension shall contain the reasons for making such order and where it is proposed to hold an enquiry against such Government servant under Rule 14, a copy of the articles of charges, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained shall be issued or caused to be issued by the disciplinary authority to such Government servant as required by sub-rule (4) of Rule 14, within a period of 45 days from the date of order of suspension. Provided that where the disciplinary authority is the (State Government or the High Court), the copy of charges and other documents mentioned above shall be issued or caused to be issued to such Government servant within a period of 90 days from the date of order of suspension.] (2-b) Where the disciplinary authority fails to issue to the Government servant, a copy of the charges and other documents referred to in sub-rule (2-a) within the period of 45 days, the disciplinary authority shall before expiry of the said period, obtain orders in writing of the State Government for extension of the said period of suspension : Provided that the period of suspension shall in no case be enhanced beyond a period of 90 days from the date of the order of suspension. (3) xxx xxx xxx (4) xxx xxx xxx (5) (a) An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority competent to do so : [Provided that the order of suspension shall stand revoked on expiry of the period of forty-five days from the date of order of suspension in case a copy of charges and other documents referred to in sub-rule (2-a) are not issued to such Government servant by the disciplinary authority (if it is not the State Government) without obtaining the orders of the State Government for extension of the period for issue of the said documents, as required under sub-rule (2-b): Provided further that the order of suspension shall stand revoked on expiry of the period of 90 days from the date of order of suspension, in case the copy of charges and other documents referred to in sub-rule (2-a) are not issued to such Government servant.] (b) IN respect of a Government servant, whose orders of suspension stand revoked in accordance with the first or second proviso of clause (a) the authority competent may, if it considers expedient so to do, place him under suspension after a copy of charges and other documents, as required by sub-rule (4) of Rule 14, have been issued to him. 5(c) xxx xxx xxx 5(d) xxx xxx xxx (4.) FROM a perusal of the above provision, it is apparent that a Government servant can be placed under suspension in two eventualities viz. (i) where a disciplinary proceedings against such Government servant is contemplated or is pending; and (ii) where a case against such Government servant in respect of any criminal offence is under investigation, inquiry or trial. Apart from the above, it is further provided under sub-rule (2) of Rule 9 of the Rules of 1966 that a Government servant shall be deemed to have been placed under suspension by an order of appointing authority, in the event of his detention in custody on a criminal charge or otherwise for a period exceeding forty-eight hours and/or in the event of his conviction and sentence to a term of imprisonment exceeding forty-eight hours. Sub-rule (2-a) read with its proviso and sub-rule (2-b) of Rule 9 of the Rules of 1966, provides that in case a Government servant is placed under suspension under Rule 9(1)(a) i.e., where a disciplinary proceeding against him is contemplated or is pending, he shall be issued or caused to be issued a charge- sheet within a period of 45 days. However, the proviso provides that where the disciplinary authority is the State Government, the charge-sheet and the documents mentioned therein be issued to him within a period of 90 days from the date of the order of suspension. (5.) RULE 9(2-b) of the RULES of 1966, further provides that where the charge- sheet and other documents referred to in sub-rule (2-a) is not issued to on such Government servant within the period of 45 days, the disciplinary authority may obtain orders in writing of the State Government for extension of the said period of suspension which in no case can be extended beyond a period of 90 days from the date of the order of suspension. (6.) THE next provision relevant for the purposes of adjudication of the point raised before us is Rule 9(5)(a), which mandates that the order of suspension made or deemed to have been made under the rule shall continue to remain in force until it is modified or revoked by the competent authority. However, the proviso to Rule 9(5)(a) provides that the order of suspension shall stand revoked on expiry of the period of 45 days or 90 days as the case may be from the date of order of suspension, if a copy of the charges and other documents referred to in sub-rule (2-a) are not issued to such Government servant as mentioned in Rule 9(2-b) by the disciplinary authority. From a careful reading and analysis of Rule 9 of the Rules of 1966, it would be evident that it is only in cases where a Government servant is suspended under Rule 9(1)(a) on account of pendency of a disciplinary proceeding or in contemplation thereof that the disciplinary authority is required to issue a charge-sheet to the delinquent employee within a period of 45 days or 90 days as the case may be under Rule 9(2-a) or 9(a-b) as the case may be. We are constrained to say so as sub-rule (2-a) of Rule 9 specifically and clearly provides that the requirement of issuance of the articles of charges along with documents in support thereto within 45 days or within a period of 90 days under Rule 9(2-b) as the case may be is necessary only when the suspension of the employee is in exercise of power under clause (a) of sub-rule (1) of Rule 9. (7.) IT is also clear from a perusal or Rule 9(5)(a) of the Rules of 1966 that it emphatically provides that an order of suspension made or deemed to have been made under Rule 9 shall continue to remain in force until it is modified or revoked by the competent authority. The proviso to sub-rule (5)(a) of Rule 9 clarifies that if the charges and other documents referred to in sub-rule (2-a) are not issued to a Government servant who has been placed under suspension under Rule 9(1)(a) by the disciplinary authority within 45 days from the date of the order of suspension or within 90 days if extended by the State Government, the suspension shall stand revoked on expiry of the aforesaid period. Thus, the operation and applicability of the provisos appended to sub-rule (5)(a) of Rule 9 are confined to cases of suspension of a Government servant under Rule 9(1)(a) and has no applicability to cases of suspension under Rule 9(1)(b) or Rule 9(2) of the Rules. (8.) AS a result of the aforesaid analysis of Rule 9, we are of the view that the proviso appended to Rule 9(5)(a) of the Rules of 1966, which provides for revocation of suspension on expiry of period of 45 days or 90 days as the case may be will have no applicability to cases where a Government servant is placed under suspension under Rule 9(1)(b) which provides for suspension of a Government servant on account of involvement in a criminal offence at the stage of investigation, enquiry or trial or to cases where the Government servant is deemed to have been suspended under Rule 9(2), if he is detained in custody for a period exceeding forty-eight hours. The learned counsel for the appellant during the course of arguments could not place any judgment or authority before us wherein it has been held that the proviso to sub-rule (5)(a) of Rule 9 applies even to cases where the order of suspension is passed under sub-rule (b) of Rule 9(1) or under sub-rule (2) of Rule 9 of the Rules of 1966. In the instant case, the appellant was placed under suspension because of his conviction and imposition of sentence of imprisonment exceeding 48 hours apparently in view of the provisions of Rule 9(2) of the Rules of 1966, hence the proviso to sub-rule (5)(a) of Rule 9 will have no applicability and the order of suspension cannot be revoked only because the charges and documents have not been issued to him within 45 days or 90 days as contended by the learned counsel for the appellant. (9.) IN view of the aforesaid discussions, we are of the considered view that the learned single Judge rightly found that the order of suspension of the appellant being under Rule 9(2), the provisions contained in sub-rule (2-a) of Rule 9 and the proviso to Rule (5)(a) of Rule 9, are not attracted. The suspension of the appellant being under the deeming provision of Rule 9(2) of the Rules of 1966, the same will remain in force so long as it is not modified or revoked by the competent authority as provided under sub-rule (5) (a) of Rule 9. (10.) WE, therefore, do not find any reason to differ with the view taken by the learned single Judge. The appeal being without merit stand dismissed. Appeal allowed.