Kishore Kumar @ K. Kumar, son of Dr. R. L. Deo v. State of Chhattisgarh through the Secretary, School Education Department
2023-12-14
ARVIND SINGH CHANDEL
body2023
DigiLaw.ai
ORDER : 1. With the consent of Learned Counsel appearing for the parties, the matter is heard finally. 2. Since a common issue is involved in all the present four writ petitions, they are heard together and disposed of by this common order. 3. In Writ Petitions (S) No.9074 of 2023, 9088 of 2023 and 9251 of 2023 the respective Petitioners have assailed the order of their suspension dated 1.8.2023 and in Writ Petition (S) No.9182 of 2023 the Petitioner has assailed the order of his suspension dated 19.7.2023 on the ground that even after completion of 90 days of their suspension no order of extension of their suspension has been passed by the Respondent/competent authority and suspension of the Petitioners have not been revoked. 4. Facts of the case, in short, are that the Petitioners in Writ Petitions (S) No.9074 of 2023, 9088 of 2023, 9251 of 2023 and 9182 of 2023 were posted as Joint Director (Education), Raipur, Incharge Divisional Joint Director (Education), Durg, Incharge Joint Director (Education), Surguja and Incharge Divisional Joint Director (Education), Bilaspur, respectively. The Assistant Teachers and the Teachers were promoted to the post of Teachers/Head Masters. After issuance of their posting orders, the concerned promotees, i.e., Teachers/Head Masters made applications for modification of their posting orders. The Petitioners herein also received various proposals for modification of the places of posting of the Teachers/Head Masters from Members of Legislative Assembly, Ministers, Joint Director (Public Instructions) and Leader of Opposition. Pursuant to the above proposals and the applications submitted by the Teachers/Head Masters, the Petitioners herein issued amended posting orders of the Teachers/Head Masters. After issuance of the amended posting orders, complaints were filed before the Secretary and higher authorities. On the basis of the said complaints, question was also raised during assembly meeting. Thereafter, on the basis of the complaints and the report of preliminary inquiry made on the said complaints, the Petitioners in Writ Petitions (S) No.9074 of 2023, 9088 of 2023 and 9251 of 2023 have been suspended vide order dated 1.8.2023 and the Petitioner in Writ Petition (S) No.9182 of 2023 has been suspended vide order dated 19.7.2023. After issuance of their suspension orders, separate charge-sheets were issued against all the Petitioners on 15.9.2023.
After issuance of their suspension orders, separate charge-sheets were issued against all the Petitioners on 15.9.2023. Even after completion of 90 days of their suspension, when no order of extension of suspension has been issued against the Petitioners, they filed the instant writ petitions on 20.11.2023 and after filing of the instant petitions the Respondent/State issued the order of extension of suspension of the Petitioners on 22.11.2023. 5. Shri Goutam Khetrapal, Learned Counsel appearing for the Petitioners submits that though the charge-sheets have been issued to the Petitioners within 90 days of their suspension, no order of extension of their suspension has been issued by the Respondent/State within 90 days of their suspension as mandated by the Supreme Court in Ajay Kumar Choudhary v. Union of India through its Secretary, (2015) 7 SCC 291 . He further submits that the Respondent/State, after filing of the instant writ petitions, passed the order of extension of suspension of the Petitioners on 22.11.2023, i.e., after 90 days of their suspension. Therefore, in the light of Ajay Kumar Choudhary (supra) and the judgment dated 9.9.2022 passed by a Division Bench of this Court in Smt. Manisha Pathak v. State of Chhattisgarh, Writ Appeal No.456 of 2022, the Petitioners are entitled to get revocation of their suspension order. 6. Shri Sandeep Dubey, Learned Deputy Advocate General appearing for the Respondents/State, opposing the arguments raised on behalf of the Petitioners, submits that there is no mandate given by the Supreme Court as relied on and argued by Learned Counsel for the Petitioners regarding issuance of order of extension of suspension. He further submits that to the present Petitioners charge-sheets have duly been served within 90 days of their suspension and the order of extension of their suspension has also been passed on 22.11.2023 and, therefore, now, the Petitioners are not entitled to get any relief in the light of Ajay Kumar Choudhary (supra) and Smt. Manisha Pathak (supra). He further submits that Petitioner Hemant Upadhyay in Writ Petition (S) No.9251 of 2023 has already assailed his suspension order dated 1.8.2023 before this Court by a petition, being Writ Petition (S) No.5893 of 2023 and this earlier petition has already been disposed of by a Co-ordinate Bench of this Court on 25.8.2023 directing Petitioner Hemant Upadhyay to prefer an appeal under Rule 23 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.
Since the order of suspension dated 1.8.2023 has already been assailed in Writ Petition (S) No.5893 of 2023 and this earlier petition has been disposed of by this Court, now, his second petition, i.e., Writ Petition (S) No.9251 of 2023 challenging the same suspension order dated 1.8.2023 is not maintainable. 7. I have heard the rival contentions put-forth on behalf of the parties and perused the writ petition, the return and the documents annexed to them with due care. 8. In the instant case, the Petitioners, who are arrayed as delinquent by their department, have been issued charge-sheets within 90 days and their suspension has been extended after 90 days. It has been vehemently contended by Learned Counsel for the Petitioners that the order of extension of suspension is not permissible after completion of the stipulated period of 90 days. On the contrary, the Learned Counsel for the State held the ground that the State enjoys the power to extend the suspension of the delinquent if the charge-sheet is filed and extension order of suspension is served at any point of time, without limit, even beyond 90 days, placing reliance on Ajay Kumar Choudhary (supra). 9. At this juncture, it is incumbent for the Court to decipher the intention of the Hon’ble Supreme Court while observing directions in the content. Therefore, the only question which arises for consideration is whether an order of extension of suspension of the delinquent must be passed within the period of 90 days of his suspension. 10. Since both the Learned Counsel appearing for the respective parties placed reliance on Ajay Kumar Choudhary (supra), it would be appropriate to reproduce the relevant paragraph of the said judgment passed by the Hon’ble Supreme Court, which reads thus: “21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him.
As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us. ” 11. Taking in the proper perspective, this direction can be divided into parts viz: (i) a main clause, i.e., “direct that the currency of a suspension order should not extend beyond three months”, (ii) sub-clause: “if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee”; (iii) sub-clause: “if the memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension”. 12. Analysing the language expressions including the punctuation used by their Lordships, it can be categorically stated that the main clause, being mandatory and the two sub-clauses, distinctly marked with the help of the punctuation semi colon (;) and the insertion of the conjunction ‘if’ to being with the two sub-clauses, clearly indicate that the direction in entirety is continuous in nature and is contained within 90 days essentially. Therefore, it clearly shows that the currency of suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee. Meaning thereby, serving of memorandum of charges/charge-sheet within 90 days of suspension is mandatory.
Therefore, it clearly shows that the currency of suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee. Meaning thereby, serving of memorandum of charges/charge-sheet within 90 days of suspension is mandatory. Further, it is also clear that if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for extension of the suspension. In view of this Court, in Ajay Kumar Choudhary (supra), the intent of the Hon’ble Supreme Court is clear that if the memorandum of charges/charge-sheet is served, an order of extension of the suspension must also be passed. 13. Now, the question is whether the stipulation directed by the Hon’ble Supreme Court in Ajay Kumar Choudhary (supra) is applicable in the event when the ingredients on which the stipulation ought to be applied goes beyond the limited period of 90 days, as raised in the instant case. For the purpose, the case has to be understood in its entirety. The Hon’ble Supreme Court is very specific on two important aspects viz: (a) safeguard the interest of the person arrayed as delinquent; (b) not to allow protracted suspension, affecting the liberty. Relevant para 11 of the judgment of the Hon’ble Supreme Court in Ajay Kumar Choudhary (supra) is emphasised, which reads as under: “11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.” 14. It is pertinent to note that the Hon’ble Supreme Court in its wisdom has drawn an analogy on the subject matter in hand with the statutory right envisaged in Section 167 of the Code of Criminal Procedure. Therefore, it can never be understood that the Hon’ble Supreme Court ever meant to condone the stipulated period of 90 days if the department acts contrary to the directions as observed in para 21 of Ajay Kumar Choudhary (supra).
Therefore, it can never be understood that the Hon’ble Supreme Court ever meant to condone the stipulated period of 90 days if the department acts contrary to the directions as observed in para 21 of Ajay Kumar Choudhary (supra). Moreover, the application of check and balance has to be applied by way of natural justice failing which the actions of the department to extend the proceedings along with the suspension is likely to cause arbitrariness in the system. Thus, in view of the above, it is clear that in Ajay Kumar Choudhary (supra), the intent of the Hon’ble Supreme Court is clear that even after the issuance of charge-sheet, an order of extension of the suspension must be passed within the period of 90 days of the date of suspension. 15. In conclusion, it is held that the order of extension of the suspension must be passed within the period of 90 days of the suspension. Since in all the present writ petitions, the orders of extension of the suspension of the Petitioners have been passed on 22.11.2023, i.e., after 90 days of their suspension, the suspension orders of the Petitioners in Writ Petitions (S) No.9074 of 2023, 9088 of 2023 and 9251 of 2023 issued on 1.8.2023 and in Writ Petition (S) No.9182 of 2023 issued on 19.7.2023 are quashed. Similarly, since the extension orders of their suspension dated 22.11.2023 have also been issued after 90 days of their suspension, they are also quashed. The Petitioners are directed to be reinstated in their service forthwith. 16.
Similarly, since the extension orders of their suspension dated 22.11.2023 have also been issued after 90 days of their suspension, they are also quashed. The Petitioners are directed to be reinstated in their service forthwith. 16. As regards maintainability of the second petition, i.e., Writ Petition (S) No.9251 of 2023 filed by Petitioner Hemant Upadhyay, though his earlier petition, i.e., Writ Petition (S) No.5893 of 2023 has been disposed of by the Co-ordinate Bench of this Court directing Petitioner Hemant Upadhyay to prefer an appeal under Rule 23 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, in his earlier petition, i.e., Writ Petition (S) No.5893 of 2023 the challenge was to his suspension order dated 1.8.2023 on various grounds and in his said earlier petition he had not taken the ground of non-issuance of charge-sheet within the period of 90 days of his suspension and in his present/second petition, i.e., Writ Petition (S) No.9251 of 2023 he has assailed the order dated 1.8.2023 only on the ground that the order of extension of his suspension has not been passed within the period of 90 days of his suspension. Therefore, his second petition, i.e., Writ Petition (S) No.9251 of 2023 is maintainable. 17. In the result, all the four writ petitions are allowed.