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2025 DIGILAW 1016 (HP)

Shashi Bala v. State of Himachal Pradesh

2025-05-14

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:- “i) Issue a writ in the nature of Certiorari to quash the impugned suspension order dated 29.06.2019 (Annexure P-5), which is has lost its significant after exoneration the petitioner from all the charges levelled against her and impugned loner dated 03.03.2022 (Annexure P-20). which communicated to the petitioner through a registered letter, being illegal, invalid, wrong, unwarranted, unjustified, unsustainable in law and have been issued in violation of the H.P. Primary Agriculture Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001 and in violation of principle of natural justice. (ii) Issue a writ of Mandamus thereby directing the respondents, to reinstate the petitioner into service with continuity of her service and with all consequential benefits and further direct the respondent No. 3, to decide the appeal of the petitioner against the demotion order dated 22.10.2020 within the stipulated period, to be granted by this Hon'ble Court. iii) Arrear of consequential benefits on account of filing the present writ petition may kindly be ordered to be paid with interest at the rate of 12% per annum till the date of his reinstatement of the petitioner.” 2. This Court is not dwelling on any other issue except the grievance of the petitioner qua Annexure P-5, dated 29.06.2019, in terms whereof, the petitioner has been placed under suspension since the year 2019. 3. Brief facts necessary for the adjudication of the present petition are that the petitioner, who is working as an Assistant Secretary, was placed under suspension on 29.06.2019 vide Annexure P-5, in contemplation of disciplinary proceedings initiated against her. As per the petitioner, inquiry held in the disciplinary proceedings, culminated into filing of a report, in terms whereof, the petitioner was not found guilty of the charges levelled against her, yet no action till date has been taken by the Disciplinary Authority on the said Inquiry Report, nor the suspension order has been revoked. 4. As per the petitioner, inquiry held in the disciplinary proceedings, culminated into filing of a report, in terms whereof, the petitioner was not found guilty of the charges levelled against her, yet no action till date has been taken by the Disciplinary Authority on the said Inquiry Report, nor the suspension order has been revoked. 4. On the other hand, learned counsel appearing for the Society has, inter alia, submitted that the writ petition is not maintainable as the respondent-Society is neither “Other Authority” nor “State” within the meaning of Article 12 of the Constitution of India and though the Society has acted upon the report of the Inquiry Officer, but as it is Assistant Registrar, Cooperative Societies, who in terms of the provisions of the Himachal Pradesh Co- Operative Societies Act, 1968, has to accord necessary approval in the matter, therefore, in the absence of such approval coming from the Authority, the Society is helpless. Learned counsel for the petitioner, on the other hand, has stated that the approval sought for by the Society was declined by the Assistant Registrar in terms of Annexure P-32. 5. Be that as it may, having heard learned counsel for the parties, this Court is of the considered view that this is a fit case wherein this Court should exercise its jurisdiction vested under Article 226 of the Constitution of India to ensure that justice is done to the petitioner. 6. Though, during the course of hearing of this petition, it could not be demonstrated by the petitioner that there is deep and pervassive control over the functioning of the respondent-Society of the State, but fact of the matter remains that the disciplinary proceedings which have been initiated against the petitioner are in terms of the provisions of the H.P. Primary Agriculture Co-operative Credit Societies Employees (terms of employment & working conditions) Rules, 2001 (hereinafter to be referred as "the 2001 Rules") which Rules have been framed in terms of Rule 56 of the H.P. Cooperative Societies Rules, 1971. After the initiation of disciplinary proceedings against the petitioner and the order of suspension being passed against her, said order cannot be allowed to remain in force for perpetuity. 7. In terms of Rule 18 of the 2001 Rules (supra), an employee can be placed under suspension in case circumstances mentioned therein do exist. For ready reference, Rule 18 is quoted hereinbelow:- “18. 7. In terms of Rule 18 of the 2001 Rules (supra), an employee can be placed under suspension in case circumstances mentioned therein do exist. For ready reference, Rule 18 is quoted hereinbelow:- “18. Suspension (1) If during the course of an audit, inspection or enquiry it is brought to the notice of the managing committee that an employee had committed or has been otherwise found responsible for misappropriation, breach of trust of other offence in relation to the society or has willfully neglected or failed to discharge his duties and functions as assigned to him by the society or under the bye-laws or is otherwise responsible for any act or omission thereby adversely affecting the interest of the society, the managing committee, if in its opinion there is a prima facie evidence against such employee, and the suspension of such employee is necessary in the interest of the society, order suspension of the employee pending the investigation and disposal of the matter as the case may be. (2) The managing committee shall within a period of 30 days from the date of suspension of an employee, serve a charge sheet upon him containing articles of charges. (3) If the employee is convicted and sentenced for any of the offence his services shall be deemed to have been terminated from the date of conviction and in such case it will not be necessary to give him any charge sheet. In case he is honorably acquitted he may be reinstated in the service of the society. (4) An employee shall be entitled for subsistence allowance shall be paid equivalent to 25% of his basic pay during the period of his suspension upto a maximum of one year after the expiry of this period the disciplinary authority will review the cue and take a decision regarding continuance or otherwise of the subsistence allowance and the rate at which it will be paid.” In terms of sub-rule (4) thereof, an employee shall be entitled for subsistence allowance pay equivalent to 25% of his basic pay during the period of suspension upto a maximum of one year and after the expiry of said period, the disciplinary authority is to review the case and take a decision regarding continuance or otherwise of the subsistence allowance and the rate at which it will be paid. 8. 8. Generally, the Courts are reluctant in interfering in the matter of suspension, for the reason that it is settled law that suspension is not a punishment. This is for the reason that in terms of the CCS (CCA) Rules, 1965, which otherwise deal with suspension, as they stand interpreted by Hon’ble Supreme Court of India, suspension has to be reviewed before the completion of ninety days as from the date of suspension, failing which, consequences ensue. In fact, Hon’ble Supreme Court has categorically held that the review has to be made before ninety days and if the same is done after ninety days, then the suspension is invalid. (See: Union of India and others vs. Dipak Mali, (2010) 2 SCC 222 ) 9. Though, the provisions of CCS (CCA) Rules stricto sensu may not be applicable as far as facts of this case are concerned, but fact of the matter remains that an incumbent like the petitioner cannot be allowed to continue to remain under suspension for a period of six years awaiting the fate of the disciplinary proceedings, over which she has no control. The Court was informed that after the initial order of suspension was passed, it was never reviewed by the concerned Authority. 10. Therefore, in the peculiar facts of this case, but without making any observation on the merit of the disciplinary proceedings initiated against the petitioner, this petition is disposed of with the direction that the order of suspension dated 29.06.2019 (Annexure P-5) shall stand revoked forthwith and the respondents shall allow the petitioner to perform her duties of the post against which she was appointed (i.e. the post of Assistant Secretary). 11. At this stage, learned counsel for the respondent-Society submits that it be clarified that the Society can assign such work to the petitioner, which shall ensure that the petitioner does not access to the documents relating to the disciplinary proceedings. Ordered accordingly. However, it is clarified that no job shall be assigned to the petitioner which is less in demeanour to the post being held by her. 12. Pending miscellaneous applications, if any, also stand disposed of.