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2014 DIGILAW 1507 (RAJ)

Rajiv Acharya v. State of Rajasthan

2014-09-04

MOHAMMAD RAFIQ

body2014
Hon'ble RAFIQ, J.—This writ petition has been filed by petitioner challenging the order of his suspension dated 30.07.2012 passed by respondent no.2 - the Registrar, Board of Revenue for Rajasthan at Ajmer. 2. The petitioner was initially appointed on the post of Naib Tehsildar in the Rajasthan Tehsildar Service of the State. He was then promoted to the post of Tehsildar. He was posted as Sub Registrar-II, Jaipur on 21.03.1994 and continued in that posting till July, 1995, wherefrom he was transferred to the post of Sub Registrar, Bundi. A news item was published in media on 01.06.1998. The ACB registered a complaint against the petitioner in 1998 on the basis of the said news item and on that basis an FIR was registered in the year 1998. The allegation against the petitioner was that he for registration of conveyance deed charged at the rate applicable to residential plot whereas the disputed land was commercial in nature. 3. Contention of petitioner is that he was suspended for the reason of pendency of departmental enquiry and lodgment of anti-corruption case in connection with an incident that took place in the year 2007. The regular First Information Report was registered fourteen years before the date of his suspension in the year 1998. Challan in that case was filed in court in the year 2007. Even though challan was filed seven years ago, charges have not been framed by the court of Special Judge till date. Argument of petitioner is that respondents have mechanically placed him under suspension five years after filing of challan, there being no new cause of action or additional reason. One more reason, which could be the basis for suspension, is pendency of joint departmental enquiry in regard to which the charge-sheet was served on the petitioner in the year 1998. In that enquiry too, the enquiry officer submitted the report in 2006 exonerating the petitioner of all the charges. But the Disciplinary Authority i.e. the Board of Revenue, has so far not taken any final decision on the enquiry report. 4. Respondents have contested the writ petition and submitted that the petitioner was placed under suspension in view of the Circular of the Department of Personnel dated 10.08.2001 because of seriousness of allegations against him. But the Disciplinary Authority i.e. the Board of Revenue, has so far not taken any final decision on the enquiry report. 4. Respondents have contested the writ petition and submitted that the petitioner was placed under suspension in view of the Circular of the Department of Personnel dated 10.08.2001 because of seriousness of allegations against him. Assertion of petitioner that the enquiry officer in departmental enquiry has submitted enquiry report in 2006 exonerating him of the charge is not disputed. However, it is submitted that the petitioner was not exonerated honourably. He was merely given benefit of doubt considering it to be a case of bona-fide mistake. 5. Justification of suspending the petitioner and continuation thereof has to be considered from both the aspects, namely, the aspect of pendency of criminal trial and departmental enquiry. Challan in criminal trial against the petitioner pertaining to the incident which took place in 1998, was filed in 2007 and till date the charges have not been framed by the trial court. There appears to be no justification for passing the order of suspension much belatedly on 30th July, 2012 fourteen years after the date of lodgment of the FIR and five years after filing of the challan. Only reason that is given in the order of suspension is that the petitioner was suspended in view of the Circular of the Department of Personnel dated 10.08.2001. Even that Circular itself was issued eleven years before the date of suspension. The Circular dated 10.08.2001 has been issued by the Department of Personnel for placing those under suspension against whom anti-corruption cases are registered but the challan against the petitioner in that case too was filed way back on 18.07.2007. The respondents in para 4 of their reply themselves have submitted that sanction for prosecution of the petitioner was granted to the ACB by the Board of Revenue vide order dated 24.02.2006 and challan was filed by the ACB and petitioner was duly informed on 13.07.2007 to appear before the Court on 18.07.2007 when challan would be filed. Examined from the standpoint of gravity of allegations, it is not a case where the petitioner has been caught red handed. It was not a trap case. Examined from the standpoint of gravity of allegations, it is not a case where the petitioner has been caught red handed. It was not a trap case. The allegation against the petitioner is that while he was posted as Sub Registrar-II, Jaipur, along with other office staff was found involved in charging less stamp duty on the registration of a certain conveyance deed. He registered a conveyance deed with regard to commercial land at the rate of residential plot. 6. With regard to same incident, the petitioner was served with charge-sheet and a joint departmental enquiry under Rule 18 read with Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was conducted. The enquiry officer in his report submitted in disciplinary proceedings, has exonerated the petitioner of the charges. The respondents have though not disputed this fact, but qualified the same by stating that exoneration was not honourable but it was by extending benefit of doubt that the petitioner did so due to bona-fide mistake. The respondents have stated that it was for the petitioner to have got the report of the clerk verified and he should not have blindly followed the same. Had the plot been registered at commercial rate, the State Government would have earned more revenue. However, at the same time, it is also submitted that subsequently the conveyance deed was impounded and an additional stamp duty in the sum of Rs.4,15,824/- was recovered. Even if that be so, the factum of exoneration of the petitioner by the enquiry officer is not in dispute. The enquiry report was submitted by the enquiry officer way back on 05.02.2006 and it is surprising that no final view has been taken on the report by the Chairman of the Board of Revenue, which clearly show that not much significance has been attached to the kind of allegation against the petitioner. 7. Although it is true that disciplinary authority is empowered to place an employee under suspension for any of the reasons enumerated under Rule 13 of the CCA Rules, 1958, but such order ought to be passed after due application of mind and on considerations, which are germane, and not mechanically and selectively. 7. Although it is true that disciplinary authority is empowered to place an employee under suspension for any of the reasons enumerated under Rule 13 of the CCA Rules, 1958, but such order ought to be passed after due application of mind and on considerations, which are germane, and not mechanically and selectively. In the present case, when the enquiry report exonerating the petitioner by the enquiry officer was submitted in the year 2006 and charge-sheet in regard to incident of the year 1998 was filed in the court in the year 2007, there was no valid justification for passing the order of suspension much thereafter on 30.07.2012 relying on a Circular of the Department of Personnel, which too was issued 11 years there-before on 10.08.2001. The order of suspension thus apparently has been passed arbitrary manner in colourable exercise of power without there being any valid justification. The impugned order of suspension dated 30.07.2012 cannot be sustained in the eyes of law. 8. In Gurpal Singh vs. High Court of Judicature of Rajasthan (2012) 13 SCC 94, the Supreme Court has stated relevant considerations for placing a Govt. servant under suspension during departmental proceedings, namely, (a) stage of criminal proceedings, (b) nature/gravity of offence, (c) nature of evid-ence, (d) findings of trial court and appellate court, and (e) facts of each case. While stating so, the Supreme Court held that no hard and fast rule can be laid down in this regard and each case will have to be judged on its own facts. 9. In Union of India and Another vs. Ashok Kumar Aggarwal – JT 2013 (15) SC 200, the Supreme Court has revisited almost all its previous major decisions on the question of suspension of an employee and scope of interference therein by the court and held as under: “9. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry. 10. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee's continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.” 10. The Supreme Court in Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel and Others – (2006) 8 SCC 200 , while dealing with the power of judicial review in administrative matters, has observed thus, "18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogi-cal or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” 11. In State of H.P. vs. B.C. Thakur – (1994) SCC (L&S) 835, the Supreme Court held that long period of suspension does not make the order of suspension invalid but where for any reason it is not possible to proceed with the domestic enquiry, the delinquent may not be kept under suspension for an unduly long period. 12. The Supreme Court in Union of India and Others vs. Udai Narain – (1998) 5 SCC 535 , while dealing with the case arising out of the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, held that the Rules of 1965 are self contained code and the order of suspension can be examined in the light of the statutory provisions to determine as to whether the suspension order was justified. Undoubtedly, the delinquent cannot be considered to be any better off after the charge sheet has been filed against him in the court on conclusion of the investigation than his position during the investigation of the case itself. 13. In the present case also, the position of the petitioner cannot be taken to have undergone any change when he was placed under suspension. That is because he was not placed under suspension not only during investigation but also even for a period of six years subsequent to date of filing of challan and now suddenly there could be no valid reason why he has been placed under suspension vide impugned order. 14. In Union of India and Another vs. Ashok Kumar Aggarwal, supra, also made following observations: “14. ....... 14. In Union of India and Another vs. Ashok Kumar Aggarwal, supra, also made following observations: “14. ....... even if a criminal trial or enquiry takes a long time, it is ordinarily not open to the court to interfere in case of suspension as it is in the exclusive domain of the competent authority who can always review its order of suspension being an inherent power conferred upon them by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case pending would be concluded after an unusual delay for no fault of the employee concerned. Where the charges are baseless, mala fide or vindictive and are framed only to keep the delinquent employee out of job, a case for judicial review is made out. But in a case where no conclusion can be arrived at without examining the entire record in question and in order that the disciplinary proceedings may continue unhindered the court may not interfere. In case the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results in prolongation of sufferings for the delinquent employee, the court may issue directions. The court may, in case the authority fails to furnish proper explanation for delay in conclusion of the enquiry, direct to complete the enquiry within a stipulated period. However, mere delay in conclusion of enquiry or trial can not be a ground for quashing the suspension order, if the charges are grave in nature. But, whether the employee should or should not continue in his office during the period of enquiry is a matter to be assessed by the disciplinary authority concerned and ordinarily the court should not interfere with the orders of suspension unless they are passed in mala fide and without there being even a prima facie evidence on record connecting the employee with the misconduct in question. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review.” 15. Examined in the light of aforesaid observations of the Supreme Court, it must be observed that though placing an employee under suspension is exclusive domain of the competent authority who can always review its order of suspension, when satisfied that the criminal trial is likely to be concluded with unusual delay for no fault of the employee concerned. But the power of judicial review cannot be denied to the court when the charges are baseless, mala-fide or vindictive or are framed only to keep the delinquent employee out of job. In a case where the court comes to the conclusion that the authority is not proceeding expeditiously as it ought to have been and it results prolonged suffering of the delinquent employee, the court may step in. In the present case, the facts speaks for themselves. When the charges against the petitioner were not considered to be grave enough even by the competent authority itself, which decided him not to place under suspension as (a) when the first information report was registered against the petitioner, (b) when the sanction for prosecution was issued, (c) when the challan was filed in the court, and (d) finally when the charge-sheet was issued under Rule 16 of the CCA Rules in the disciplinary proceedings, how suddenly on 30.07.2012, the necessity to place the petitioner under suspension arose, has not been explained. Moreover, the proceedings in the criminal case are getting unduly delayed. The investigation has taken undoubtedly a long time inasmuch as the first information report was registered in the year 1998 but the challan was belatedly filed eight years thereafter in 2007 and till date the charges have not been framed. Moreover, the proceedings in the criminal case are getting unduly delayed. The investigation has taken undoubtedly a long time inasmuch as the first information report was registered in the year 1998 but the challan was belatedly filed eight years thereafter in 2007 and till date the charges have not been framed. Recording of evidence after framing of the charges would be consuming long time as ACB cases generally have too many witnesses, which process is likely to take unusually long time. The disciplinary proceedings is also not likely to be concluded in near future because no final view has been taken by the Disciplinary Authority despite exoneration of the petitioner at-least up to the stage of the report of the enquiry officer, which again highlights the lackadaisical approach of the authorities leading to enormous delay in completion of the proceedings. 16. In the light of view that this court has taken of the matter, the writ petition succeeds and the same is allowed. Impugned order of suspension dated 30.07.2012 is quashed and set aside. The petitioner is held entitled to reinstatement. However, appropriate order with regard to regulating the period of suspension under Rule 54 of the Rajasthan Service Rules, shall be passed by the competent authority on conclusion of the trial and/or passing of final order in the disciplinary proceedings. 17. Writ petition accordingly stands allowed. This also disposes of stay application.