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Madhya Pradesh High Court · body

2014 DIGILAW 1589 (MP)

Harnam Singh v. State of M. P.

2014-12-03

SUJOY PAUL

body2014
JUDGMENT : Sujoy Paul, J. 1. This petition filed under Article 226 of the Constitution challenges the order dated 11.2.2013 (Annexure P-1), whereby the petitioner was placed under suspension. The order dated 25.3.2014 (Annexure P-2) is also called in question, whereby petitioner's appeal is rejected by the appellate authority. 2. The petitioner has challenged the suspension order on the ground that he is placed under suspension on filing challan against him before the competent court. Shri Jitendra Sharma submits that as per proviso to Rule 9(1) of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, the said power can be invoked only when challan is filed after obtaining sanction by competent authority to prosecute the petitioner. It is submitted that in the present case, admittedly, no such sanction is given by the competent authority and, therefore, the suspension is bad in law. Another ground of challenge is that an FIR was registered against the petitioner which was challenged by him in M.Cr.C. No. 323/13. On 21.1.2013, this Court directed that no coercive steps be taken against the petitioner. Thus, in view of this interim protection, issuance of suspension was impermissible. It is submitted that certain co-accused also challenged the FIR by filing similar petitions. Similar interim protection was given to them. They were not placed under suspension. Thus, petitioner is subjected to discriminatory treatment. The appellate order is challenged on the ground that the appellate authority has not decided the appeal on merits and matter was directed to be decided by a Committee constituted as per G.A.D's circular dated 28.1.2013. Lastly, it is submitted that the said Committee has not done anything and, therefore, suspension order needs to be interfered with by this Court. 3. Shri A.S. Rathore, PL opposed the petition. 4. Lastly, it is submitted that the said Committee has not done anything and, therefore, suspension order needs to be interfered with by this Court. 3. Shri A.S. Rathore, PL opposed the petition. 4. It is apposite to quote Rule 9(1) before dealing with the rival contentions of the parties, 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- (i) where a disciplinary proceeding against him is contemplated or is pending, or (ii) where a case against him in respect of any criminal offence is under investigation, 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 after sanction of prosecution by the Government against him." 5. The bone of contention of Shri Sharma is that the petitioner can be placed under suspension on filing of challan under aforesaid proviso only when there exists a valid sanction for prosecution by the competent authority. In absence of sanction, suspension order is bad in law. A plain reading of sub-rule (1) makes it crystal clear that a Government servant can be placed under suspension in following eventualities:- "(i) where a disciplinary proceeding against him is contemplated or is pending, or (ii) where a case against him in respect of any criminal offence is under investigation, inquiry or trial". 6. The suspension order clearly shows that petitioner is placed under suspension because Crime No. 302/08 is registered against him for trying the offences under Sections 420, 467, 468, 471, 120-B, 167 & 201 IPC. A Criminal Case No. 2196/12 is registered against the petitioner. Challan has been filed on 21.12.2012. 7. The basic enabling provision for the purpose of placing an employee under suspension is Rule 9(1). It is crystal clear that if a criminal case is under investigation, enquiry or trial, employee can be placed under suspension. The proviso makes it obligatory for the department to place the employee under suspension when a challan is filed after obtaining sanction from the Government in cases involving offences relating to moral turpitude or corruption. It is crystal clear that if a criminal case is under investigation, enquiry or trial, employee can be placed under suspension. The proviso makes it obligatory for the department to place the employee under suspension when a challan is filed after obtaining sanction from the Government in cases involving offences relating to moral turpitude or corruption. Thus, the proviso leaves no option and makes it mandatory for the Government to place the employee under suspension if conditions mentioned in the proviso are satisfied. However, proviso does not take away or disturbs the basic enabling provision to place an employee under suspension if condition mentioned U/R 9(1) (a) or (b) are available. 8. It is settled in law that, "except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the enacting portion of the section so as to exclude something by implication which is embraced by clear words in the enactment." (See AIR 1944 PC 71 (Madras & Southern Maharatta Rly. Co. Lt. v. Bezwada Municipality) & AIR 1959 SC 713 (S. Sundaram Pillai v. P. Pattabiraman). 9. This is also settled in law that when on a fair construction the principle provision is clear, a proviso cannot expand or limit it. (See AIR 1975 SC 1758 (Dwarka Prasad v. Dwarka Das Saraf) and (2004) 6 SCC 672 (Maulvi Hussain Haji Abraham Umraji v. State of Gujarat). 10. As analyzed above, the Government is competent to place the petitioner under suspension because of pendency of the criminal case. These powers are directly flowing from Rule 9(1) (b). Thus, even if the conditions of proviso are not satisfied, it cannot be said that suspension order is without authority of law or de horse the rules. Thus, this contention of Shri Shrama must fail. 11. So far the contention regarding protection flowing from interim relief passed in M.Cr.C. No. 323/123 is concerned, in my view, this contention is also bereft of merits. In the said M.Cr.C., admittedly, FIR was under challenge. Thus, the interim protection given in the said petition filed under Section 482 Cr.P.C. deals with any coercive action which is arising out of any criminal law. Putting it differently, the said interim protection may be applicable for the purpose of investigation, trial etc. but has no impact on the action of placing the petitioner under suspension, which is arising out of CCA rules. Putting it differently, the said interim protection may be applicable for the purpose of investigation, trial etc. but has no impact on the action of placing the petitioner under suspension, which is arising out of CCA rules. Thus, this contention is also rejected. Even otherwise, suspension is not treated as punishment. Shri Jitendra Sharma, although contended that the respondents have construed interim order passed in similar M.Cr.Cs. in respect of similarly situated persons in a different manner and they have not been placed under suspension, I am unable to hold that any such interim protection is available to the petitioner in relation to suspension order. If respondents have interpreted the similar order in different manner in other cases, it cannot be applied in petitioner's case. Parity can be claimed when it flows from a legal right. The petitioner is claiming negative equality which is not acceptable. 12. The last contention is regarding decision of appellate authority. The appellate authority is under a statutory duty to decide the appeal. However, the appellate authority has not decided the same by taking assistance of circular dated 28.1.2013. In the said circular, the Government has constituted Committees to examine the necessity to continue the employees under suspension. It is canvassed that said Committee has not yet taken decision. In the opinion of this Court, respondents are bound to act in consonance with GAD circular dated 28.1.2013. 13. Resultantly, I deem it proper to direct the respondents to review the aspect of suspension of the petitioner within 30 days from the date of production of copy of this order. After undertaking the exercise of review, the outcome shall be communicated to the petitioner within 30 days. 14. Petition is disposed of. No cost.