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2022 DIGILAW 2762 (RAJ)

Bhawani Shanker Vyas v. State Of Rajasthan

2022-11-16

ARUN BHANSALI

body2022
JUDGMENT Arun Bhansali, J. - This writ petition has been filed by the petitioner aggrieved against the order dated 31.10.2022 (Annex. 6) by which the petitioner has been placed under suspension. 2. The petitioner was working on the post of Executive Officer, Municipal Board, Sri Dungargarh. It is, inter-alia, indicated that by order dated 20.10.2022 (Annex. 1) the petitioner was placed Awaiting Posting Order ('APO'), on 21.10.2022 the order was stayed by this court in second stay petition filed by the petitioner in SBCWP No. 6185/2020. Whereafter, the petitioner was transferred to Municipal Board, Bayana on 27.10.2022. On 31.10.2022 the petitioner, who was performing his duties as Executive Officer, was severally manhandled by the officer, who was posted in place of petitioner when the petitioner was placed APO alongwith his team of supporters, regarding which the petitioner lodged an FIR. 3. As a result, by way of a wholly malafide exercise of powers by making reference to Rule 13 (1) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 ('Rules of 1958'), the impugned order dated 31.10.2022 (Annex. 6) has been passed placing the petitioner under suspension. 4. Submissions have been made that power under Rule 13 (1) of the Rules of 1958 can only be exercised in case an enquiry is pending or the same is in contemplation. Though an enquiry under Rule 17 or the Rules of 1958 initiated on 24.01.2020, under Rule 16 of the Rules of 1958 initiated on 25.09.2020, another enquiry under Rule 17 of the Rules initiated on 01.06.2022 are pending against the petitioner, the same after passage of sufficiently long time since the issuance of the charge sheets, cannot form the basis for placing the petitioner under suspension. 5. Submissions have been made that the entire action of the respondents has been in response to the action taken by the petitioner while working as Executive Officer, Municipal Board, Sri Dungargarh, whereby he had cancelled illegal Patta(s) and initiated action against the wrong doers and therefore, the exercise of power placing the petitioner under suspension being ex-facie illegal, deserves to be quashed and set aside. Submissions have also been made that in the order impugned, the petitioner has been addressed as AAO-II, whereas the petitioner is Revenue Inspector and on that count also the order impugned is bad. 6. Reliance has been placed on Jodharam Bishnoi v. State of Rajasthan & Anr. Submissions have also been made that in the order impugned, the petitioner has been addressed as AAO-II, whereas the petitioner is Revenue Inspector and on that count also the order impugned is bad. 6. Reliance has been placed on Jodharam Bishnoi v. State of Rajasthan & Anr. : S.B. Civil Writ Petition No. 11696/2022 decided on 01.09.2022. 7. A reply to the writ petition has been filed by the respondents, inter-alia, indicating that a communication dated 31.10.2022 (Annex. R/1) was received from the District Collector, Bikaner inter-alia indicating that the S.D.O., Sri Dungargarh has reported that the officer, who was posted while placing the petitioner APO i.e. Sh. Lalit Singh Detha, had taken the charge of the post on 21.10.2022 and the petitioner was transferred on 27.10.2022, however, he has not been relieved so far, which action of the petitioner amounts to violation of Government orders and therefore, action be initiated against the petitioner. Based on which, a note-sheet was drawn by the Assistant Administrative Officer for placing the petitioner under suspension, which was approved by the Additional Director and the Director, based on which the order impugned was passed. 8. Submissions have been made that the claim made that the petitioner is Revenue Inspector and has been shown as Assistant Accounts Officer-II, is factually incorrect, as in seniority list for the post of Assistant Accounts Officer-II dated 29.06.2022 (Annex. R/3), the petitioner has been shown as the senior most officer in the said cadre as on 01.04.2022. Further submissions have been made that on 17.08.2022 again a charge sheet (Annex. R/4) under Rule 17 of the Rules of 1958 has been issued to the petitioner. It was submitted that in the circumstances of the case, wherein the petitioner instead of following the directions whereby he was transferred on 27.10.2022, did not hand over the charge and had indulged in the activities, which were not in consonance with the conduct of a responsible officer and as such he has rightly been placed under suspension, which order does not call for any interference. 9. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 10. The order impugned dated 31.10.2022 (Annex. 9. I have considered the submissions made by the counsel for the parties and have perused the material available on record. 10. The order impugned dated 31.10.2022 (Annex. 6) whereby the petitioner has been placed under suspension, inter-alia, reads as under:- vkns'k Jh Hkokuh 'kadj O;kl&lgkd ys[kkf/kdkjh f}rh; gky LFkkukUrj.kk/khu uxjikfydk c;kuk ds fo:) uxj ikfydk JhMwaxjx<+ ls lEcfU/kr foHkkxh; tkap dk;Zokgh fopkjk/khu gSA vr% jktLFkku flfoy lsok oxhZdj.k] fu;U=.k ,oe~ vihy fu;e] 1958 ds fu;e 13 ¼1½ esa iznRr 'kfDr;ksa ds rgr Jh Hkokuh 'kadj O;kl & lgk;d ys[kkf/kdkjh f}rh; dks rqjUr izHkko ls fuyfEcr fd;k tkrk gSA fuyEcu dky esa bu dk eq[;ky; uxj fuxe] uxj ikfydk Árkiqjx<+h ckalokM+k jgsxk rFkk budks fu;ekuqlkj ns; thou fuokZg HkRrs dk Hkqxrku uxj ikfydk JhMwaxjx<+ }kjk fd;k tkosxkA 11. A bare look at the order would reveal that reference has been made that departmental proceeding is pending against the petitioner and therefore, exercising power under Rule 13 (1) of the Rules of 1958 the petitioner has been placed under suspension. 12. The provisions of Rule 13 (1) of the Rules of 1958 inter-alia reads as under: "13. Suspension.- (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) Where a disciplinary proceedings against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence is under investigation or trial: Provided 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." 13. A perusal of the above provisions would reveal that in case where the disciplinary proceedings are pending, or are contemplated against an employee, he can be placed under suspension. 14. As noticed hereinbefore, the departmental proceedings though are pending against the petitioner, the same were initiated on 24.01.2020, 01.06.2022 and 17.08.2022 under Rule 17 of the Rules and on 25.09.2020 under Rule 16 of the Rules. As the enquiry proceedings were initiated long back i.e. in the year 2020/in the month of June-2022 and August-2022, the pendency of said disciplinary proceedings cannot justifiably become the basis for placing the petitioner under suspension. 15. As the enquiry proceedings were initiated long back i.e. in the year 2020/in the month of June-2022 and August-2022, the pendency of said disciplinary proceedings cannot justifiably become the basis for placing the petitioner under suspension. 15. This Court in the case of Jodharam Bishnoi (supra) inter-alia took into consideration the aspect of placing somebody under suspension after lapse of time from issuance of the charge sheet. 16. The response filed by the respondents alongwith documents Annex. R/1 and Annex. R/2 bring out the telltale status of the working of the respondents. As noticed, the District Collector by his communication dated 31.10.2022 (Annex. R/1) communicated the fact of petitioner not relieving charge as Executive Officer, Municipal Board, Sri Dungargarh despite his order of transfer dated 27.10.2022 and on the same day, the following note-sheet (Annex. R/2) was drawn by the respondents for the purpose of placing the petitioner under suspension: Lok;Rr 'kklu foHkkx Øfed fVIi.kh d`i;k ftyk dysDVj] chdkusj ls izkIr i= dk i=koyh esa i`"B 01&07@lh ij voyksdu djkos ftlds ek/;e ls Jh Hkokuh'kadj O;kl] lgk;d ys[kkf/kdkjh f}rh; ,oe~ rRdkyhu vf/k'kklh vf/kdkjh uxj ikfydk JhMwaxjx<+ ds fo:) vko';d dk;Zokgh djus dk vuqjks/k fd;k x;k gSaA ftyk dysDVj }kjk vius i= esa vafdr fd;k x;k gS fd mi[k.M vf/kdkjh Jh Mwaxjx<+ us voxr djk;k gS fd vkids foHkkx ds vkns'k Øekad 15734 fnukad 20-10-2022 ds vkns'kksa dh ikyuk esa Jh yfyr falg nsFkk] vf/k'kk'kh vf/kdkjh & prqFkZ us uxj ikfydk JhMwaxjx<+ esa fnukad 21-010-2022 dks dk;Zxzg.k dj fy;k ijUrq Jh Hkokuh'kadj O;kl tks fd vkids foHkkx ds vkns'k Øekad 15822 fnukad 27-10-2022 }kjk lgk;d ys[kkf/kdkjh f}rh; uxj ikfydk c;kuk ds in ij inLFkkfir fd;s x;s Fks] us vkfnukad fnukad rd Hkh dk;ZeqDr ugha gq, gSA vr% mudk ;g d`R; jkT; dh vkns'kksa dh vogsyuk dh Js.kh ds vUrxZr vkrk gSA vr% Jh Hkokuh'kadj O;kl] lgk;d ys[kkf/kdkjh f}rh; ds fo:) l[r dk;Zokgh djkus dk vuqjks/k fd;k x;k gSA izdj.k esa izkIr funsZ'kksa dh ikyuk esa Jh Hkokuh'kadj O;kl] lgk;d ys[kkf/kdkjh f}rh; dk fuyEcu vkns'k ckn voyksdu o vuqeksnu gLrk{kjkFkZ izLrqr gSA ,lMh@& c`ts'k of'"B 31-10-2022 lgkŒ iz'kkŒ vf/kdkjh vfrfjDr funs'kd egksn; ,lMh@& 31-1020-22 funs'kd egksn; ,lMh@& 31-10-2022 vkns'k tkjh 4578 @31@x 17. A perusal of the above note-sheet would reveal that a reference has been made to the communication received from the District Collector requesting for action against the petitioner. A perusal of the above note-sheet would reveal that a reference has been made to the communication received from the District Collector requesting for action against the petitioner. Whereafter, the communication made by the District Collector has been quoted and it has been indicated that in compliance of the directions received in the case, the order of suspension of the petitioner is placed for signatures after perusal and approval, on which note-sheet drawn by the Assistant Administrative Officer, the same was approved by the Additional Director and the Director and the order was issued on 31.10.2022. 18. The note-sheet, based on which the order impugned has been passed, nowhere makes any reference of any pending enquiry or contemplation of any enquiry; and only and only on account of communication received from the District Collector, the petitioner has been placed under suspension. 19. There is apparently no basis for indication of 'the pending enquiry' against the petitioner as the basis for his suspension in the order impugned dated 31.10.2022 for invoking the provisions of Rule 13 (1) of the Rules as in note-sheet, there is no such reference and therefore, apparently the order dated 31.10.2022 (Annex. 6) has been prepared and signed in a mechanical manner without reference to the note-sheet and the indication of provisions of Rule 13 of the Rules in the order impugned, is only an eyewash. 20. In view of the above, as the order impugned dated 31.10.2022 placing the petitioner under suspension, is dehors the note-sheet produced as Annex. R/2 and in gross violation of provisions of Rule 13 (1) of the Rules of 1958, the same cannot be sustained. 21. Consequently, the writ petition filed by the petitioner is allowed. The order impugned dated 31.10.2022 (Annex. 6) placing the petitioner under suspension is quashed and set aside.