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Madhya Pradesh High Court · body

2017 DIGILAW 1051 (MP)

Rajendra Giri Goswami v. State of M. P.

2017-10-04

SUBODH ABHYANKAR

body2017
ORDER 1. The petitioner has filed this petition under Article 226 of the Constitution of India against the order dated 2.1.2017 passed by the respondent No.3/Commissioner, Jabalpur Division, Jabalpur whereby the Commissioner has affirmed the order passed by the Collector dated 8.1.2015 whereby the petitioner has been suspended allotting his headquarter at the Office of Assistant Commissioner, Tribal Development, Balaghat. 2. In brief the facts of the case are that on 8.1.2015 the petitioner was suspended by the respondent No.4 on the ground that a criminal case under sections 409, 467, 468, 471 and 120B of IPC read with sections 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been registered by the Police Station, Baihar, District Balaghat wherein allegations were made against the petitioner that under the scheme of the Government the amount which was to be distributed to the beneficiaries for construction of residential accommodation has not been properly distributed and instead of beneficiaries, the same has been paid to persons other than Baiga community, hence proceedings under rule 9(1) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'the Rules of 1966') were also initiated and subsequently the petitioner was kept under suspension on 8.1.2015. In an appeal, the same was also affirmed vide order dated 2.1.2017 by the Commissioner, Jabalpur. The appeal preferred by the petitioner has also been dismissed on the ground that the investigation is still pending before the Economic Offence Bureau, Jabalpur. Although, the charge sheet in the departmental enquiry has already been issued to him on 16.1.2015. 3. The petitioner's contention is that the impugned order has been passed on the basis of allegations only and no opportunity of hearing was given to the petitioner. The petitioner has also relied upon the decision of the apex Court in the case of Anant R. Kulkarni v. Y.P. Education Society and others [ (2013)6 SCC 515 ]. 4. In return, it is submitted by the respondents that the proviso 2 of the rule 9 (1)(b) of the Rules of 1966 is justifiable in the facts and circumstances of the case. 4. In return, it is submitted by the respondents that the proviso 2 of the rule 9 (1)(b) of the Rules of 1966 is justifiable in the facts and circumstances of the case. It is further submitted that from the record, it is apparent that a case was registered against the petitioner under sections 409, 467, 468, 471 and 120B of IPC read with section 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988 and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and because of the registration of the aforesaid case, the petitioner has been suspended. A charge sheet has also been directed to be issued to the petitioner. 5. Heard. Admittedly, the aforesaid departmental enquiry is still pending and the issue before this Court, as already pointed out above is that whether the petitioner's suspension order can be sustained or not. Rule 9 under which the petitioner has been suspended 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 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 : 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." (Emphasis supplied) 6. A bare perusal of the aforesaid rule reveals that a Government servant shall be placed under suspension only when a charge sheet is filed against him after obtaining the sanction to prosecute. 7. So far as mere registration of criminal case against the petitioner is concerned, a discretion is provided to the State Government whether to suspend the Government employee or not. 7. So far as mere registration of criminal case against the petitioner is concerned, a discretion is provided to the State Government whether to suspend the Government employee or not. In the present case, the allegations were levelled against the petitioner in the year 2015, i.e. on 8.1.2015and thereafter, as apparent from the order dated 2.1.2017, the matter is still pending and no progress appears to have been made. 8. In the circumstances, when the petitioner is being given the subsistence allowance since 2015, no purpose would be served to keep the petitioner under suspension in anticipation of the conclusion of criminal case or filing of the charge sheet against him. Since the department enquiry is also pending as the record is seized by the police, in the considered opinion of this Court, no purpose would be served by keeping the petitioner suspended for an indefinite period of time. 9. In the result, the petition is allowed and the impugned order dated 2.1.2017 is hereby quashed. However, in case the charge sheet is filed against the petitioner in the criminal case, then the respondents are free to pass a fresh order of suspension in accordance with law.