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Madhya Pradesh High Court · body

2017 DIGILAW 876 (MP)

Dayaram Khare v. State of M. P.

2017-08-01

VIVEK AGARWAL

body2017
ORDER 1. Petitioner has filed this petition being aggrieved by the order dated 23.6.2015 (Annexure P-1) passed by the District Education Officer, District- Guna, M.P., wherein it is mentioned that the Block Education Officer, Guna, vide communication dated 20.5.2015, had apprised the District Education Officer, Guna, that petitioner had refused to accept the charge-sheet and has not filed reply to said charge sheet, therefore, he is again placed under suspension and his Headquarters are fixed as the office of Block Education Officer, Chachoda. 2. It is petitioner's contention that he was placed under suspension earlier vide order dated 18.3.2015, copy of which has been enclosed by the petitioner as (Annexure P-3). In said suspension order, allegation on the petitioner was that once Vaishnodevi Swasahayata Samooh had made an allegation against the petitioner that he had not issued letter of release in favour of said Swasahayata Samooh within the prescribed time-limit and the attendance of the students for the academic session 2014-15 was less than 50%. It is petitioner's contention that in fact the District Education Officer himself had conducted an inquiry against the petitioner in regard to the complaint made by one- Smt. Anjana Jain, member of said Vaishnodevi Swasahayata Samooh and had found that complaint to be without basis and had enclosed the Inquiry Report and had forwarded it to the Collector, Guna, vide memo dated 27.11.2014, which has been enclosed by the petitioner as (Annexure P-4). It is petitioner's further contention that as no charge sheet was issued against the petitioner within a period of 45 days after issuance of suspension order dated 18.3.2015, therefore, he had submitted his joining on 18.5.2015 vide (Annexure P-5). Learned counsel for the petitioner further submits that no charge sheet was served on him and in fact to cover-up the lapse of the respondent District Education Officer in not issuing the charge-sheet within the prescribed period of 45 days, an allegation has been levelled against the petitioner that he had refused to accept the charge sheet and has been placed under suspension again. 3. It is petitioner's contention that respondents have not enclosed any document in the form of communication dated 20.5.2015 along with their return to substantiate their allegation that Block Education Officer, Guna, had sent any letter addressed to the District Education Officer informing him about non-acceptance of the charge sheet by the petitioner. 3. It is petitioner's contention that respondents have not enclosed any document in the form of communication dated 20.5.2015 along with their return to substantiate their allegation that Block Education Officer, Guna, had sent any letter addressed to the District Education Officer informing him about non-acceptance of the charge sheet by the petitioner. Learned counsel for the petitioner submits that he has categorically raised this issue and there is no additional return even to the rejoinder which was filed by the petitioner on 13.1.2017. 4. In this backdrop, he has assailed the impugned order and submits that making an allegation in regard to non-acceptance of charge sheet gave a fresh cause of action and therefore, without substantiating such allegation, petitioner could not have been placed under suspension vide impugned order dated 23.6.2015 and also could not have continued under suspension after expiry of 45 days of issuance of this suspension order. 5. On the other hand, learned counsel for the State has drawn attention of this Court to the fact that there is provision under rule 9(5)(b) of the Classification, Control and Appeal Rules, 1966 [hereinafter referred to as CCA Rules, 1966], which provides that in respect of a Government servant whose order of suspension stoood 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. He submits that since there is no bar on second suspension, therefore, a Government servant could have been placed under suspension again in terms of the provisions contained in rule-9(5)(b) of the CCA Rules, 1966. 6. He submits that since there is no bar on second suspension, therefore, a Government servant could have been placed under suspension again in terms of the provisions contained in rule-9(5)(b) of the CCA Rules, 1966. 6. To appreciate this contention of learned counsel for the State, it will be appropriate to reproduce the suspension order dated 23.6.2015, which is as under:- ^^dk;kZy;hu vkns'k Øekad@lkekU;@2015@1161 xquk fnukad 18-3-2015 ds }kjk vkidks rRdky izHkko ls fuyfEcr fd;k x;k Fkk ijUrq vkjksi i= le; lhek esa tkjh u gksus ds dkj.k vki fnukad 18-5-2015 dks viuh ewy laLFkk esa mifLFkr gq,A fodkl [k.M f'k{kk vf/kdkjh xquk ds i= Øekad@f'kdk;r@2015@545 xquk fnukad 20-5-2015 ds }kjk voxr djk;k x;k fd vkids }kjk vkjksi i= ysus ls bUdkj dj fn;k x;k lkFk gh vkids fo#) tkjh vkjksi i= dk tcko Hkh vkids }kjk dk;kZy; esa izLrqr ugha fd;k x;kA dk;kZy;hu Kki Øekad 1668 xquk fnukad 14-05-2015 esa layXu vkjksi i=ksa esa mYysf[kr vkjksiksa ds Øe esa vkidks iqu% rRdky izHkko ls fuyafcr fd;k tkrk gSA fuyEcu dky esa vkidk eq[;ky; dk;kZy; fodkl[k.M f'k{kk vf/kdkjh pkpkSM+k fu;r fd;k tkrk gSA fuyEcu dky esa lacaf/k dks fu;ekuqlkj thou fuokZg HkRrs dh ik=rk jgsxhA izdj.k esa iqu% vkids fo#) vkjksi i=kfn tkjh ugha fd, tk,axsA** 7. Thus, reading of the aforesaid portion of the order reveals that there is a fresh allegation on the petitioner of not accepting the charge sheet, as was sent to the Block Education Officer, but this allegation has neither been proved nor substantiated by the respondents by filing any documentary evidence. As far as the requirements of rule 9(5)(b) is concerned, it authorizes the competent authority to place a Government servant under suspension if such suspension stood revoked in terms of proviso to rule 9(5)(a) of the CCA Rules, 1966, if it considers, “expedient so to do”. 8. The emphasis is on the words “if it considers, expedient so to do”. Thus, if a government servant is required to be again placed under suspension after issuance of the charge sheet after expiry of the prescribed period of 45 days or 90 days, as the case may be, then such authority is required to record reasons for such expediency to place such Government servant under suspension, but in the impugned order, no such expediency has been explained or mentioned. Thus, it cannot be said that the order dated 23.6.2015 is in terms of the authority bestowed on the District Education Officer in terms of rule 9(5)(b) of the CCA Rules, because expediency also means there should be an explanation as to why the disciplinary authority deems it proper to place the concerned Government servant under suspension again. 9. In absence of any such explanation in the order, such order cannot be sustained. This Court is not left with any option but to accept the proposition put-forth by the petitioner that this suspension order has been issued so to cover-up the lapse of the District Education Officer in not issuing the charge sheet within the prescribed period of 45 days after issuance of first order of suspension i.e. dated 18.3.2015. 10. This Court is also willing to accept the second limb of argument that there is a fresh allegation in the impugned suspension order dated 23.6.2015 and if that is the reason for suspension i.e. the petitioner had refused to accept the charge sheet, then the respondents were required to substantiate that reason and since the cause of action for issuance of second suspension order is not the pendency of the earlier departmental inquiry but the reason is fresh indiscipline shown by the petitioner in not accepting the charge sheet, then again fresh charge sheet should have been issued levelling the charge of indiscipline against the petitioner within a further period of 45 days from the date of issuance of the impugned order dated 23.6.2015, but none of the contingencies mentioned above are present in the present case, therefore, this Court is of the opinion that since the requirements of rule 9(5)(b) of the CCA Rules, 1966, are not fulfilled, therefore, the impugned order (Annexure P-1) is not sustainable in the eyes of law and is, therefore, quashed. 11. Respondents to bear cost of this litigation, which is quantified at Rs.5,000/-.