1. This is fifth visit of the petitioner to this Court regarding his grievance against the suspension order dated 14.05.2010. The petitioner has fought a long drawn battle in the corridors of the Court against the said suspension order.
2. In short, the facts are that while working as Registrar, Vikram Vishwa Vidyalaya, Ujjain, the petitioner was placed under suspension vide order dated 14.05.2010 (Annexure-P/8). Admittedly, the petitioner was placed under suspension because the State Economic Offence Bureau filed challan against the petitioner under various provisions of Indian Penal Code and Prevention of Corruption Act, 1988. The petitioner filed the first petition W.P. No.6322/2010 challenging the suspension order. This writ petition was disposed of on 25.10.2010 (Annexure-P/9). This Court directed the respondents to examine the entire issue and review the order of suspension keeping in view the provisions of Rule 9 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as ''the Rules of 1966''). The petitioner accordingly preferred a detailed representation dated 18.11.2010 (Annexure-P/10). This representation was considered as per the order passed in W.P. No.6322/2010. The representation was rejected by the order dated 16.12.2010.?
3. Shri Sanjay K. Agrawal, learned counsel for the petitioner contends that only reason assigned for rejecting the representation is that the criminal case based on the challan is still pending before the Court of competent jurisdiction. University is a sensitive work place where officers of suspicious background cannot be posted. If petitioner is reinstated, it may create instability in the University. Keeping in view the serious consequences of reinstatement, the prayer for revocation of suspension is rejected.
4. The petitioner filed second petition W.P. No.20686/2012 against the suspension order. This writ petition was disposed of on 10.12.2012. This Court opined that the petitioner has sought revocation of suspension only on the ground of delay in conclusion of criminal case. Hence, this aspect needs to be looked into by the competent authority in view of the circulars issued by the State Government. This Court observed that the competent authority shall take note of ground of delay in conclusion of criminal case and in addition, shall examine whether any benefit can be granted to the petitioner on the ground that suspension has been revoked in cases of similarly situated employees. The petitioner preferred a detailed representation in this regard (Annexure-P/17). This representation submitted through Counsel was rejected on 01.04.2013 (Annexure-P/18). It is pointed out that the reasons for rejection are : (i) criminal case is still pending against the petitioner; (ii) the petitioner is unable to make out a case for revocation of suspension order. This rejection was came to be challenged in third Writ Petition No.19326/2013. This writ petition was decided on 12.12.2014. By taking this Court to this order, Shri Sanjay K. Agrawal, learned counsel for the petitioner urged that this Court has given specific finding that the petitioner is not responsible for protracting the trial. It is further demonstrated that the impugned order was interfered with because no reason was assigned for the conclusion that revocation is not possible/justifiable. By this order, this Court directed the respondents to reconsider the application for revocation of suspension by taking into account the circular dated 06.11.2002 as well as the ground referred to by the petitioner in the application for revocation of suspension. Thereafter, by order dated 27.02.2015 (Annexure-P/21), the respondents rejected the representation on the ground that after framing of charges, the period of three years is still not over and hence as per Clause 5 of Circular dated 06.11.2002, it will not be proper to revoke the suspension order. This rejection order is called in question in the fourth round in Writ Petition No.4005/2015, which was disposed of in admission stage on 08.03.2016. The petitioner was directed to file a fresh representation relating to his grievance and in turn, the competent authority was directed to consider and decide the said representation by speaking order within stipulated time. In turn, the petitioner filed representation dated 11.03.2015 (Annexure- P/23) which was rejected by respondents on 26.10.2016 (Annexure-P/25). It is pointed out that the rejection order contains following reasons:
(i) The petitioner is placed under suspension under
Rule 9(1) of the Rules of 1966, and as per Rule 9 of
the Rules of 1966, because of delay in criminal
case, there is no provision of revocation of
suspension.
(ii) The Government Circular dated 06.11.2002 may
not be examined/seen in the light of the binding
Rule 9(1) of the Rules of 1966, particularly, when
the suspension is made under proviso to Rule 9(1)
of the the Rules of 1966.
(iii) The petitioner has not established that he is
not responsible for delay in conclusion of the trial
and in absence thereto, the benefit of circular
dated 06.11.2002 cannot be granted to the
petitioner.
5. This rejection order dated 28.01.2013 (Annexure-P/24)
is assailed in the present round of litigation. Criticizing this order,
Shri Sanjay K. Agrawal advanced three fold contentions viz. (i) The
protracting trial violates Article 14 & 21 of the Constitution. Such
prolonged suspension are deprecated by Supreme Court in the
case reported in 1987 (4) SCC 328 (O.P. Gupta Vs. Union of
India) and 2015 (7) SCC 291 (Ajay Kumar Choudhary vs.
Union of India). (ii) As per the findings given by this Court in W.P.
No.19326/2013, it can be safely concluded that the petitioner is
not responsible for delaying the proceedings of the criminal case.
Hence the burden which was shifted on the petitioner''s shoulder
cannot be said to be justifiable. (iii) The petitioner is subjected to
hostile discrimination. Along with petitioner, four other persons
were made accused. In para 5.27, petitioner has given details of
such persons. It is urged that the respondents have not rebutted
the said averments in their reply. Thus, uncontroverted averments
make it clear that the petitioner was singled out for the purpose of
placing him under suspension which amounts to giving him
treatment of hostile discrimination. On the strength of Para 5.44 of
writ petition, it is submitted that in obedience of Court''s order
passed in W.P. No.19326/2013, the petitioner''s case was
considered by the competent Committee. The Committee opined
that the petitioner''s order of suspension should be revoked. The
said decision of the Committee was approved by the Minister Incharge
of the Department but before formal order of revocation
could be issued, an administrative reshuffle took place and another
person joined as Principal Secretary of the respondent Department.
In view of the change of the Officer, no order was passed for
revoking the suspension. Shri Agrawal has taken pains to contend
that this para of petition was also not replied by the respondents.
On the strength of aforesaid contentions, it is submitted that the
action of the respondents in keeping the petitioner under
suspension is wholly impermissible. The respondents are paying
Rs.77,539/- as subsistence allowance to the petitioner every
month. The petitioner''s service can be utilized in any other
University. In case he is posted at a different place, he will not be
in a position to influence the material or witnesses. There is no
justification at all in not revoking the suspension order.
6. Per contra, Shri Pushpendra Yadav, learned Government Advocate submits that proviso to Rule 9(1)(b) makes it clear that whenever a challan is filed in relation to a criminal case relating to corruption or moral turpitude, the employee has to be placed under suspension invariably. Reliance is placed on 2012 (3) MPLJ 567 (A.P. Singh Gaharwar Vs. State of M.P. and others), wherein a Division Bench of this Court has examined the words used in Rule 9(1), namely, ?shall invariably be placed under suspension?. As per this judgment, Shri Yadav submits that no fault can be found in the action of the respondents in placing the petitioner under suspension.
7. So far the revocation is concerned, Shri Yadav contends that when Writ Petition No.19326/2013 was decided, three years period from the date of framing of charges was not over. Thus, any finding given about protracting of trial is not of much consequence. Shri Yadav submits that after rejection of representations, the last Writ Petition No.4005/2015 was decided on 08.03.2016. The petitioner was directed to file a ?fresh representation?. It was obligatory for the petitioner to take all possible objections/grounds in this representation. By taking this Court to the representation (Annexure-P/23), Shri Yadav submits that it does not contain any factual foundation and grounds relating to discrimination in placing the petitioner under suspension. Learned Government Advocate further submits that the suspension cannot be revoked automatically after completion of three years of time. It can be revoked only when a conscious decision is taken by the competent authority as per Rule 9(5) of the Rules of 1966.
8. Learned counsel for the State submits that the last rejection order does not contain any ground about alleged decision taken by the Committee and the concerned Minister for revocation of suspension. In absence thereto, no fault can be found in the impugned rejection order.
9. Shri Yadav lastly submits that in view of serious allegations against the petitioner, it will not be in the interest of justice to revoke the suspension order.
10. No other point is pressed by learned counsel for the petitioner.
11. I have heard learned counsel for the parties and perused the record.
12. In view of rival contentions advanced, following questions emerged for consideration viz. (i) Whether in the facts and circumstances of this case, a writ of mandamus can be issued directing the authorities to revoke the order of suspension; (ii) Whether suspension order can be assailed on the ground of discrimination; (iii) Whether suspension order can be called in question on the basis that the petitioner is not responsible for delay in the proceedings of criminal case; and (iv) Whether rejection order dated 28-01-2013 is in accordance with law.
- As to Question No. 1 & 3
14. This judgment delivered in Ashok Kumar Aggrawal (supra) was not considered by subsequent Division Bench in the case of Ajay Kumar Choudhary (supra) . However, it is relevant to note that the Apex Court emphasized the need of speedy trial and deprecate the practice of keeping the employees under suspension for a long period. The Apex Court opined that government is free to transfer the employee to any other department or to a different office so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation/trial against him. The Apex Court emphasized the need of upholding human dignity and expected that employee should not be kept under suspension for indefinite period.
15. In view of aforesaid legal position, it is not a fit case for issuing a writ of mandamus by directing the respondents to revoke the suspension. The allegations against the petitioner are very grave and in that situation merely because the petitioner remained under suspension for a considerable longtime, mechanically suspension order cannot be directed to be revoked. The department is required to examine the need to keep the petitioner under suspension. No doubt, as per Rule 9 (i) of CCA Rules, an employee against whom challan has been filed for the offences involving moral turpitude/corruption is required to be placed under suspension invariably, the said rule does not require that such employee should be kept under suspension till completion of trial. As per General Clauses Act, the authority who has placed the employee under suspension can revoke his suspension. Thus, the department is required to undertake following exercise- (i) the department shall examine whether the petitioner is still required to be kept under suspension; (ii) Whether the petitioner is responsible for the delay in the proceedings of criminal case; (iii) Whether the petitioner can be posted elsewhere so that he is not able to influence the material/evidence etc.
- As to Question No.2
- As to Question No.4
18. As analyzed above, even if the petitioner is placed under suspension because of filing of challan, such suspension order passed under Rule 9 (1) of CCA Rules will not preclude the competent authority to revoke it. The competent authority as per the principles laid down in Ashok Kumar Aggrawal and Ajay Kumar Choudhary (supra) can recall its order and revoke the suspension order. The competent authority is required to apply its mind on this aspect. The impugned order is passed without taking into account the relevant factors based on the principles of law laid down in said two cases referred in this para.
19. In this view of the matter I deem it proper to dispose of this petition with following directions:-
(I) the impugned order dated 26-10-2016 (Annexure P/25) is
set aside.
(ii) the department shall examine whether the petitioner is still
required to be kept under suspension.
(iii) Whether the petitioner is responsible for the delay in the
proceedings of criminal case.
(iv) Whether the petitioner can be posted elsewhere so that his
services can be utilized and he is not able to influence the
material/evidence etc.
(v) Whether petitioner is subjected to discrimination ?
(vi) The petitioner may file a comprehensive representation
containing specific grounds in support of his contentions and
submit it before the respondent No.1. It will be lawful for the
petitioner to file order sheets of the criminal trial before the
respondent No.1 in order to show that he is not responsible for the
delay caused in the criminal trial.
(vii) In turn, the respondent No.1 shall pass a fresh and reasoned
order by taking into account the directions given hereinabove. The
respondent No.1 is also required to examine the aspect of
discrimination (if raised) by the petitioner. The entire exercise of
reconsideration shall be completed within 60 days from the date of
communication of this order.
20. This petition is disposed of. No cost.
