Ashok Kumar Bhosley vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—The petitioner, by this petition filed under Article 226 of the Constitution of India challenges the validity of the communication dated 15-11-2007 (Annexure P-4), whereby the petitioner was informed that the decision on his representation dated 14-11-2007 would be taken after the receipt of the departmental enquiry report. The petitioner sought for a further direction to the respondents to permit the petitioner to join the post and further payment of back wages with interest.

The indisputable facts, in nutshell, are that the petitioner is an Assistant Grade-II employee, working in the office of the Transport Commissioner, Chhattisgarh, Raipur. The petitioner was placed under suspension vide order dated 9-10-2006 (Annexure P-1) on the ground that 43 original forged challan, with regard to the payment of monthly tax by the owner of the passengers vehicle, were missing from the office. The petitioner was served a charge sheet on 15-12-2006 (Annexure P-2). According to learned Counsel appearing for the petitioner, the charge-sheet dated 15-12-2006, which was served on the petitioner on 2-1-2007, was beyond limitation of 45 days, as the suspension order dated 9-10-2006 stands revoked after completion of 45 days period, in accordance with the Rule 9(2-a) and 9(5-a) of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ''the Rules, 1996'').

The petitioner submitted a letter to permit the petitioner to join the office on 14-11-2007 (Annexure P-3) on the ground that since the charge-sheet was not served within a period of 45 days, therefore, the suspension is automatically revoked. The petitioner be permitted to join the office. The Additional Transport Commissioner, in the office of the Transport Commissioner Chhattisgarh, Raipur, informed to the petitioner vide communication dated 15-11-2007 (Annexure P-4) that the application dated 14-11-2007 cannot be decided in absence of the departmental enquiry report. The petitioner by his application dated 7-12-2007 (LA. No. 2) further brought into the notice of the Court that the application of the petitioner regarding permission to join duties as the suspension stands revoked beyond 45 days of the order of suspension, was subsequently rejected by the Regional Transport Officer, Raipur vide order dated 1-12-2007 (Annexure A). Thus, this petition.

Shri Utkarsh Verma, learned Counsel appearing for the petitioner would submit that the letter dated 15-11-2007 (Annexure P-4) as well as the order dated 1-12-2007 (Annexure A) are bad as the letter dated 14-11-2007 was not for the purpose of revocation of the suspension but for the purpose of joining the service after suspension order automatically stood revoked in terms of Rule 9(5)(a) of the Rules, 1966. Thus, learned Counsel seeks for quashing of the impugned communication dated 15-11-2007 (Annexure P-4) and order dated 1-12-2007 (Annexure A) on the ground that once suspension stands revoked with the passage of time, the petitioner cannot be kept under suspension till the report of the departmental enquiry is submitted. He further submits that the stand of the respondent No. 4 is contrary to the cannons of the well established principles of law on suspension, as well as in contravention of the Rule 9(2)(a) and 9(5)(a) of the Rules, 1966.

Per contra, Shri Ajay Dwivedi, learned Deputy Govt. Advocate appearing for the respondent/State would submit that under proviso to Rule 9(2-a) of the Rules, 1966, where the Disciplinary Authority is the State Government, the copies of the charges and other documents shall be issued or shall be caused to be issued to such employee within a period 90 days from the date of the order of suspension. It was further submitted that since the order has been passed by the Additional Chief Secretary, the limitation of serving charge-sheet is 90 days, not 45 days from the date of the order of suspension.

It was next contended that after deemed revocation of the suspension order the petitioner had submitted his joining after a lapse of 11 months, without assigning any reason. Thus, the petitioner does not deserve any sympathy. The interpretation of the petitioner that the Additional Chief Secretary has not issued a suspension order or on behalf of the Governor under Article 166 of the Constitution of India is without any basis. The charges are serious therefore the suspension cannot be deemed to have been revoked after completion of the 45/90 days from the date of the order of suspension.

I have heard learned Counsel for the parties, perused the pleadings and the documents, appended thereto.

For ready reference Section 9(1), 9(2-a) and 9(5)(a) are quoted here under:

(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the Governor by general or special order, may place a Government servant under suspension--

(a) where a disciplinary proceeding against him is contemplated or is pending, or

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against him:

Provided further 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.

(2-a) Where a Government servant is placed under suspension under Clause (a) of Sub-rule (1), the order of suspension shall contain the reasons for making such order and where it is proposed to hold an enquiry against such Government servant under Rule 14, a copy of the articles of charges, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained shall be issued or caused to be issued by the Disciplinary Authority to such Government servant as required by Sub-rule (4) of Rule 14, within a period of 45 days from the date of order of suspension:

Provided that where the Disciplinary Authority is the State Government or the High Court, the copy of charges and other documents mentioned above shall be issued or caused to be issued to such Government servant within a period of 90 days from the date of order of suspension.

(5)(a) An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority to competent to do so:

Provided that the order of suspension shall stand revoked on expiry of the period of forty-five days from the date of order of suspension in case a copy of charges and other documents referred to in Sub-rule (2-a) are not issued to such Government servant by the Disciplinary Authority (if it is not the State Government) without obtaining the orders of the State Government for extension of the period for issue of the said documents, as required under Sub-rule (2-b):

Provided further that the order of suspension shall stand revoked on expiry of the period of 90 days from the date of order of suspension, in case the copy of charges and other documents referred to in Sub-rule (2-a) are not issued to such Government servant.

The suspension order was issued by the Transport Commissioner who happens to be in the rank of the Additional Chief Secretary. The order was not issued on behalf of the Government in the name of the Governor under Article 166 of the Constitution. Thus, the contention of the respondent that since the order of suspension was issued by the State Government, under proviso to Rule 9(2-a), the limitation is 90 days deserves to be rejected. The contention of learned Counsel appearing for the respondents/State is contrary to the facts on records and the provisions of law.

The next contention made by learned Counsel appearing for the respondents/State that the petitioner has failed to join the duty, immediately after completion of 45 days, is also not relevant for the purpose of declaring the suspension order as deemed revoked. Whether or not charge-sheet was served within 45 days from the date of the order of suspension, has no basis. So far as the revocation of the suspension after a period of 45 days is concerned, the suspension is deemed to have been revoked on completion of 45 days from the date of the order of suspension. The impugned order dated 15-11-2007 (Annexure P-4) appears to have been passed without applying mind as the representation dated 14-11-2007 (Annexure P-3) of the petitioner states that the petitioner''s suspension stands revoked, therefore, the petitioner be permitted to join the office. The subsequent order dated 1-12-2007 (Annexure A), rejecting the application of the petitioner for joining the office is also without any basis, as however serious the charge may be, if the petitioner is not served charge-sheet within the limitation period prescribed under the provisions of Rule 9(2-a) of the Rules, 1966, the suspension order stands revoked automatically. The concerned officers have not been careful in serving the charge-sheet within a period of 45 days, thus the continuation of suspension beyond 45 days of the order of suspension is in contravention of the provisions of Rule 9(2-a) and 9(5)(a) of the Rules, 1966.

Hon''ble the Supreme Court in the matter of State of M.P. Vs. L.P. Tiwari, , observed as under:

The object appears to be that the Competent Authority having placed a delinquent officer under suspension, cannot sit over the case without prompt follow-up action of conducting an inquiry into the alleged misconduct. The dereliction thereof entails the authority with denuding the power to continue the officer under suspension, though the power of enquiry subsists.

Applying the well established principle of law to the facts of the case, the petitioner was placed under suspension on 9-10-2006, the charge-sheet was prepared on 15-12-2006 and the same was served to the petitioner on 2-1-2007. The date of suspension order, i.e., 9-10-2006 and the date of preparation of the charge-sheet, i.e., 15-12-2006 are relevant dates, not the date of service of the charge-sheet on the petitioner. From the date of suspension order 45 days comes to an end on 23rd November, 2006 and the charge-sheet was prepared after completion of the 45 days. Thus, the suspension order dated 9-10-2006 stands revoked after completion of 45 days. Consequently, the communication dated 15-11-2007 (Annexure P-4) and the order dated 1-12-2007 (Annexure A) are also quashed. The petitioner is entitled to all consequential benefits flowing from this order.

The petition is accordingly allowed. No order as to costs.