Babu Lal Gaur @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition is directed against the order dated 25/9/2017 passed by the Deputy Director, Secondary Education, Ajmer Division, Ajmer, whereby,

the petitioner has been placed under suspension w.e.f. 19/8/2016.

The petitioner was serving as Senior Teacher at Government Upper Primary School, Chui, Degana when a complaint under Section 151 Cr.P.C. was

filed against the petitioner and other persons by sister-in-law (brother’s wife) of the petitioner, and subsequent thereto an FIR was also lodged

against the petitioner. Another complaint under Section 190 Cr.P.C. was also filed against the petitioner and others before the court of Addl. Judicial

Magistrate, Jayal on 78/6/2016, wherein, order was passed under Section 156(3) Cr.P.C. with a direction to register an FIR, whereby, the FIR was

registered. The petitioner was arrested on 19/8/2016 and remained in judicial custody till 3/9/2016. Whereafter, the order dated 25/9/2017 (Annex.4)

was issued placing the petitioner under suspension and pursuant thereto, the petitioner was relieved on 4/10/2017 (Annex.5). Feeling aggrieved, the

present writ petition has been filed by the petitioner.

It is submitted by learned counsel for the petitioner that action of the respondents in placing the petitioner under suspension with retrospective effect

i.e. from 19/8/2016 is clearly indicative of non-application of mind on the part of respondents. It was submitted that none of the requirements of Rule

13 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (‘the Rules of 1958’) were fulfilled and, therefore, the

suspension of the petitioner is bad in law.

Further submissions were made that the criminal proceedings pending against the petitioner in which he was arrested, were not in connection with his

official duties and as the same was outcome of some private dispute among the family members, there was no occasion for the respondents to place

the petitioner under suspension and, therefore, the order impugned deserves to be quashed and set aside.

Learned counsel for the respondents supported the order impugned. It was submitted that the order of suspension does not call for any interference in

the present circumstances. It was submitted that admittedly the petitioner remained in police/judicial custody for more than 48 hours and looking to the

seriousness of the allegations, the petitioner was rightly placed under suspension.

Submissions were also made that as under Rule 13(2) of the Rules of 1958 a Government servant is deemed to have been suspended with effect from

his detention, the order impugned placing the petitioner under suspension with retrospective effect cannot be faulted. It is also submitted that the

petitioner despite remaining in judicial custody for over 48 hours did not inform the disciplinary authority regarding the said fact and as such the order

could not be passed at the relevant time and, therefore, the order impugned does not call for any interference and the writ petition deserves to be

dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It may be noticed that the impugned order dated 25/9/2017 placing the petitioner under suspension was stayed by a coordinate bench of this Court by

order dated 10/11/2017.

The impugned order dated 25/9/2017 placing the petitioner under suspension reads as under:

“fuyEcu&vkKk

Jh ckcwyky xkSM ofj""B v/;kid jkmekfo pqbZ ¼Msxkuk½ ds fo:) Qkstnkjh izdj.k Fkkuk cMh[kkVw tk;y esa ntZ gks dj vUos{k.k py jgk gSA

Jh ckcwyky xkSM ofj""B v/;kid dks QkStnkjh izdj.k la[;k&141@2016 vUrxZr /kkjk&341 o 323@34 Hkkjrh; n.M lafgrk esa iqfyl }kjk fnuakd%& 19-

08-2016 dks fxj¶rkj fd;k tkdj 48 ?k.Vs ls vf/kd iqfyl@U;kf;d vfHkj{kk esa j[ks tkus ds dkj.k fuEugLrk{kjdrkZ Jh ckcwyky xkSM ofj""B v/;kid dks

jktLFkku flfoy lsok ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;e&1958 ds fu;e&13 ds rgr fxj¶rkjh fnukad%& 19-08-2016 ls fuyfEcr djrs gSA fuyEcu dky

esa budk eq[;ky; jktdh; mPp ek/;fed fo|ky;] Msxkuk ¼ukxkSj½ jgsxkA fuyEcu dky esa budks jktLFkku lsok fu;e&53¼1½ ds fu;ekuqljk 50%

fuokZg HkRrk ns; gksxkAâ€​

A perusal of the order would indicate that it was noticed in the order that the petitioner was arrested on 19/8/2016, he remained in policy/judicial

custody for over 48 hours and, therefore, under Rule 13 of the Rules, 1958, from the date of arrest i.e. 19/8/2016 the petitioner was suspended.

Passing of the order dated 25/9/2017 retrospectively w.e.f. 19/8/2016 i.e. after over 13 months clearly indicates a knee jerk reaction on the part of

disciplinary authority as apparently though the petitioner remained in policy/judicial custody during the period 19/8/2016 to 3/9/2016, though no

information in this regard was received by the disciplinary authority and/or no action in this regard was taken against the petitioner and when after

over 13 months, when this aspect came to the notice of disciplinary authority, the order impugned has been passed with retrospective effect.

Admittedly, after the petitioner was released from police/judicial custody on 3/9/2016 he has been discharging his official duties with the respondents

and, therefore, there was no reason whatsoever for the respondents to pass the order suspending the petitioner with retrospective effect after such a

long lapse of period.Â

Provisions of Rule 13(2) of the Rules of 1958 reads as under:

“(2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be

deemed to have been suspended with effect from the date of detention, by an order of the Authority competent to place a Government Servant under

suspension under sub-rule (1) and shall remain under suspension until further orders.â€​

The above Rule provides that if a Government servant is detained in custody for a period exceeding 48 hours, he shall be deemed to have been

suspended w.e.f. the date of detention by the order of competent authority. The purpose of the provision is that while the employee is still in judicial

custody, he is deemed to have been suspended, however order in this regard needs to be passed by the competent authority, however, such an order

only under Rule 13(2) of the Rules cannot be passed after more than 13 months and that also after the person has been released from the

police/judicial custody and has been discharging his official duties for a long time.

So far as the submission made by learned counsel for the respondents that the petitioner did not inform the fact of his having remained in police/judicial

custody is concerned, suffice it to say that there is no obligation under the Rules for the delinquent employee to inform regarding his having remained

in police/judicial custody. Further, lack of information cannot justify exercise of power after 13 months.

Further, as the only reason indicated in the order impugned is the fact of detention of petitioner for more than 48 hours, it is apparent that the

respondent have not applied their mind to the necessity of suspending the petitioner on account of nature of allegations made against him regarding

which the criminal proceedings are said to be pending. As already noticed, the criminal proceedings pertained to some private dispute between the

family members of the petitioner and has nothing to do with the official discharge of duties by the petitioner and in view thereof, it cannot also be

assumed that the petitioner has been placed under suspension irrespective of his remaining in judicial custody for more than 48 hours i.e. on account of

pendency of criminal proceedings.

In view of the above discussion, the exercise of powers under Rule 13(2) of the Rules of 1958 in the facts and ircumstances of the case is apparently

not justified and otherwise also the nature of allegations does not make out a case for suspending the petitioner during the pendency of criminal

proceedings, the order impugned dated 25/9/2017 (Annex.4) placing the petitioner under suspension cannot be sustained.

Consequently, the writ petition filed by the petitioner is allowed, the order dated 25/9/2017 (Annex.4) passed by the respondents is quashed and set

aside.

No order as to costs.