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Madhya Pradesh High Court · body

2012 DIGILAW 635 (MP)

Ram Naresh Tiwari v. State of M. P.

2012-06-28

K.K.TRIVEDI

body2012
JUDGMENT : This writ petition is heard along with W.P.No.1219/2012, which has been allowed and disposed of today. 2.In this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 22-3-2012 by which the petitioner has been placed under suspension under Rule 9 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'Rules') because a departmental enquiry is initiated against the petitioner.By the order of the even date, the respondent No.3 has been given the charge of the post of the petitioner during the suspension of the petitioner.It is contended that in fact an order of transfer was issued on 17-1-2012, which order the petitioner has called in question in W.P.No.1219/2012.This Court has entertained the writ petition of the petitioner and has granted an interim stay.It is contended that to circumvent the order of this Court, the petitioner has been placed under suspension by the impugned order and again the charge of the post has been delivered to the same person, who was directed to be posted in place of the petitioner by the order of transfer dated 17-1-2012.It is stated that since the order of transfer of the petitioner and posting of respondent No.3 both were stayed by this Court, virtually because of mala fide, the petitioner has been placed under suspension.It is contended that in such circumstances, the petitioner is left with no option but to file the writ petition before this Court instead of filing an appeal as provided under the Rules.The relief is, thus, claimed for quashment of the order of suspension. 3.This Court while entertaining the writ petition has passed the order on 28-3-2012 directing issuance of the notice to the respondents of the writ petition and the interim prayer and has categorically granted an interim stay of the suspension order as also the order passed in favour of respondent No.3 once again.The return has been filed by the respondents.It is contended by the respondents that soon after posting of the petitioner as Regional Additional Director, Higher Education, Rewa, reports were received that the working of the petitioner was not proper.He was not discharging the duties of his post.Certain writ petitions were filed before this Court, in which despite the notice, returns were not filed by the petitioner as a result, ex parte orders were passed against the State.This being a serious misconduct of the petitioner, lapse of discharge of duties, a decision was taken to initiate a departmental enquiry against him and for that reason the order of suspension was issued.It is contended that the writ petition filed against the order of suspension is, thus, liable to be dismissed.Vehemently it is contended in the return that the order of suspension is appealable under Rule 23 of the Rules.Since the statutory remedy of appeal is provided under the Rules, a writ petition under Article 226 of the Constitution of India is not maintainable.It is contended that the petitioner has not resorted to the remedy of appeal and straightway has rushed to this Court, therefore, the writ petition is liable to be dismissed on this count alone.It is further submitted that after suspension of the petitioner, a charge-sheet has been issued against him levelling allegations against him and thereby a departmental enquiry is initiated.It is the choice of the departmental authority to place any delinquent employee/officer under suspension during the pendency of the departmental enquiry.Even before initiation of departmental enquiry, order of suspension can be issued.For the purposes of conducting a fair and free departmental enquiry, suspension of the petitioner was necessary and, therefore, the order has been issued.It is contended that allegations of mala fide are not borne out from the record and as such the writ petition is liable to be dismissed. 4.This Court has considered it proper to call for the record of the issuance of order of suspension against the petitioner.The record is produced.Learned Counsel for the parties are heard at length. 4.This Court has considered it proper to call for the record of the issuance of order of suspension against the petitioner.The record is produced.Learned Counsel for the parties are heard at length. 5.This Court while considering whether the petitioner could be transferred in the manner he has been by the order of the Minister of the Department and whether the respondent No.3 could be posted in place of the petitioner or not as per statutory rules, has sent for the records of the transfer and has examined the same at length.The reasons have been assigned as to why the order of transfer of the petitioner and the order of posting of respondent No.3 in his place cannot be accepted in the eye of law in the said order.However, the suspension of the petitioner is something else and it is to be examined whether it is actuated on account of obtaining an interim protection from this Court or otherwise.The record indicates that some complaint was made against the petitioner by some persons addressed to the Principal Secretary of the Department and the Commissioner of the Department.One Lalaram Lodhi, a retired employee of Tikamgarh, had made some complaint with respect to some order dated 1-10-2007 by which the powers of drawing and disbursing of one Shri B.S.Rajpoot were withdrawn.By some order dated 25-6-2011 said Shri Rajpoot was again made the in-charge Principal.The allegation was made that the petitioner was aware of said complaints but was not taking any action.Similarly, various allegations in that respect were made.However, with respect to the preparation of the charge against the petitioner, only one charge was made against him in the draft note-sheet that on 17-1-2012 petitioner was transferred but he has not carried out the said order.Nothing is available in the record or file of the departmental enquiry to indicate that any other complaints were made against the petitioner and that on account of such complaints, suspension of the petitioner was necessary.On the other hand, the file contains certain proposals sent by the petitioner with respect to approval of his tour diary.In some of the tours it was said that the petitioner was required to come to Jabalpur for the purposes of filing of return in the cases filed against the department.Except this record, nothing is available in the file to show that there was material available against the petitioner to place him under suspension.On the other hand, from the record it is clear that the petitioner had challenged the order of transfer before this Court in W.P.No.1219/2012 and the order dated 17-1-2012 passed by the respondent Department was stayed by this Court insofar as it relates to the petitioner and respondent No.3 both.From the record it is clear that this order was brought to the notice of the respondents.Soon thereafter, it appears that certain reports were obtained and on the basis of the said report, the petitioner was placed under suspension.Not only this, while placing the petitioner under suspension, once again current charge of the post was given to respondent No.3, who in fact was posted in place of the petitioner at Rewa vide order dated 17-1-2012 and which order was stayed by this Court.This makes it amply clear that the suspension of the petitioner was not for any other reason but to circumvent the order of this Court by which the posting of the petitioner and respondent No.3 was stayed. 6.Now coming to the charge-sheet.As is indicated hereinabove, though there is nothing available in the departmental enquiry record, three charges are made against the petitioner.First charge is with respect to the allegation that the petitioner has not filed the returns in the petitions filed before this Court and thereby the petitioner has committed misconduct.The second charge is that the petitioner had not inspected the colleges within his jurisdiction after his posting as Regional Additional Director, Higher Education, Rewa.The third charge against the petitioner is that he has not submitted the enquiry report within time with respect to the complaints received in respect of certain colleges within his jurisdiction.The imputation of charges contains that the petitioner was made officer-in-charge in some of the cases vide different orders.However, in such cases orders against the State have been passed or not is not clear.If the return is not filed, though the petitioner has visited the office of the Advocate General, the reasons have not been ascertained nor have been referred.How could it be said that it was the lapse on the part of the petitioner without conducting a detailed enquiry.Similarly, with respect to the other charges, it is clear that the proposals were already made, reports were already sent and, therefore, it was not necessary that the petitioner should be placed under suspension for the said charges.This being so, as is held hereinabove, the order of suspension was nothing but based on mala fides of the respondents because the petitioner has challenged the validity of the order of transfer before this Court and was granted an interim protection by this Court. 7.An alternate remedy may be a ground for refusing to grant any relief in the writ petition.However, power under Article 226 of the Constitution of India is a discretionary power of this Court.Even in such cases where the alternate remedies are available, it is still open to the Court to exercise its discretion, of course in exceptional circumstances.Had it not been the case that the petitioner is placed under suspension only because he has obtained interim stay from this Court and had it not been the case that the respondent No.3 is not posted by order of posting as Regional Additional Director though for the same he is not entitled or eligible in statutory rules, this Court would not have exercised its extraordinary power of judicial review of the order passed by the respondents but in the case in hand this Court feels that if this power is not exercised and the writ petition is dismissed only on the ground of availability of statutory remedy, injustice would be caused to the petitioner.Apart from this, statutory appeal is required to be addressed to His Excellency the Governor of the State but it is always decided by the cabinet of the Ministers.The summary is required to be prepared for consideration of such an appeal by the Secretary of the Department.In such circumstances, where mala fidely the petitioner is placed under suspension, there is no possibility that the petitioner would get justice from the Appellate Authority.That being so, the objection raised by the respondents with respect to maintainability of the writ petition is rejected. 8.Consequently, the writ petition is allowed.The order dated 22-3-2012 passed in respect of the petitioner placing him under suspension and the order of the even date giving current charge of the post to respondent No.3, are hereby quashed.The petitioner has already been granted an interim stay of suspension and he is not under suspension.The petitioner would be entitled to all the benefits of service for the alleged period of suspension. 9.With the aforesaid, the writ petition is allowed.There shall be no order as to costs. Petition allowed.