State of Rajasthan & Anr. v. Chandra Shekhar Sharma

Order

: 23rd September, 2008 PRESENT HON'BLE THE CHIEF JUSTICE MR. NARAYAN ROY HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Harsh Vardhan Nandwana, Government Counsel for the appellants (Per-Hon'ble Mohammad Rafiq,J.) This appeal has been preferred by the State of Rajasthan against the judgment of learned Single Judge dated 30.5.2008 by which the writ petition filed by the respondent-writ petitioner was allowed and the order of his suspension dated 13.11.2002 was quashed. The respondent-writ petitioner challenged the order of his suspension dated 13.11.2002 inter alia on the premises that he was earlier suspended by order dated 21.5.1997 pending disciplinary enquiry but eventually that order of suspension was revoked on 06.07.1999.

The disciplinary authority on its own decided not to go ahead with the disciplinary enquiry to await the result of the criminal trial on the same charges but then there was no occasion for again placing the respondent-writ petitioner under suspension by fresh order. 2 The petitioner could not be suspended just because the challan was filed against him by the police at a belated stage after government accorded sanction of his prosecution on 6.11.2002. The order of suspension has been mechanically passed without any application of mind and the power to place a government servant under suspension has been arbitrarily exercised. There was no complaint that the respondent-writ petitioner made any attempt to interfere in the enquiry/investigation and therefore, there was no need for passing fresh order of suspension under trial.

The learned Single Judge upheld the aforesaid arguments and allowed the writ petition by the impugned judgment, which is assailed in the present appeal.

Shri Harsh Vardhan Nandwana, learned Government Counsel, argued that the petitioner was placed under suspension by order dated

13.11.02 due to policy decision of the government as reflected in its Circular dated

10.8.01. He argued that government by this Circular resolved to place under suspension all such employees, whose prosecution for offence/s under the Prevention of Corruption Act, 1988 is sanctioned and such suspension 3 was liable to be continued until acquittal of the concerned employee in the criminal case. It was argued that originally the respondent was placed under suspension by order dated

21.5.1997 which was then revoked by the disciplinary authority itself vide its order dated 6.7.1999. The government however because of the on going investigation against the petitioner on the same charges by the police decided not to continue the disciplinary proceedings and eventually when the prosecution of the respondent-writ petitioner was sanctioned, he was again placed under suspension. The learned Government Counsel in support of his arguments relied on the judgement of Supreme Court in Union of India vs. Rajiv Kumar-(2003) 6 SCC 516, Allahabad Bank & Anr. Vs. Deepak Kumar Bhola-(1997) 4 SCC 1, State of Orissa vs. Bimal Kumar Mohanty-AIR 1994 SC 2296, P.R. Nayak vs. Union of India-AIR 1972 SC 554. We have given our anxious consideration to the arguments aforenoted and perused the material on record as also the cited precedents. Evidently, the incident in relation to which the petitioner has been placed under suspension pertains to the year 1996 when he 4 was posted as Patwari in the office of Land Acquisiton Officer, Bisalpur Project, Deoli. By the impugned order, the Government has placed writ petitioner-respondent under suspension and few other government servant who were posted in the same office at the relevant time. Perusal of the impugned order and the other material reveals that the learned Single Judge was persuaded to quash the suspension order on the ground that the incident, pertaining to which the writ petitioner-respondent was suspended had taken place twelve years ago in 1996 and the criminal case was registered three years thereafter in 1999. The respondent was suspended in the year 2002 and more than nine years have gone by since the criminal case was registered against him. No progress has been made either in the disciplinary proceedings or even in the criminal trial. In the course of arguments, the learned Government Counsel could not justify why when the respondent-writ petitioner was initially placed under suspension on 21.5.1997, his suspension was revoked. When initially the disciplinary authority decided to hold disciplinary enquiry against the petitioner, nothing prevented it from going ahead with 5 such enquiry. The disciplinary authority itself decided not to hold the disciplinary enquiry to await the decision of the criminal trial, but that was in 1997. The criminal case itself was registered in the year 1999 and the sanction for prosecution was issued still three years theeafter in 2002. The trial of the case is in any case likely to be delayed. Shri Harshvardhan Nandwana, learned Government Counsel vociferously argued that it was a policy decision of the government to keep such employees under suspension who were facing prosecution under the Act of 1988. But then the policy circular of the government cannot be made basis for circumventing the judicial order and overreaching the process of Court which, we are constrained to observe, is what has been done in the present case. When already the suspension order of the respondent-writ petitioner was made on the same charges, it was wholly inappropriate for the disciplinary authority to again place the respondent-writ petitioner under suspension on the ground of subsequent sanction of prosecution. Moreover, we are inclined to agree with the view taken by the learned Single Judge that the incident in relation to which the petitioner was suspended was 12 6 years old and that 9 years have gone by since the criminal case was registered. The decision of the disciplinary authority to place a government servant under suspension has to be made on judicious application of mind to facts of a given case and notwithstanding administrative Circulars of the Government, a government servant cannot be mechanically place under suspension without having regard to the facts of the case. Also, a government servant cannot be placed under suspension just because the disciplinary authority has the power to place him under suspension. Action of the disciplinary authority in doing so has to be informed of reason or logic. When already earlier the petitioner was placed under suspension which order was revoked, the second suspension order of the respondent-writ petitioner by the disciplinary authority on the same charges in the peculiar facts of the case, amounted to arbitrary and colourable exercise of power. In view of long lapse of time from the date of incident, there was no reason to keep the petitioner under continued suspension, particularly when the completion of the trial is nowhere in sight. In so far as the cited precedents are concerned, there can be no quarrel with the proposition of law laid 7 down therein by their Lordships of the Supreme Court, but we have reached the above conclusion in the present case on account of its own peculiarities and therefore, for the fact situation emerging in the present case, the aforesaid judgements cannot be applied herein. In view of above discussion, we do not find any merit in this appeal, which is accordingly dismissed. RS/ (Mohammad Rafiq),J. (Narayan Roy), C.J.