Fanindra Kumar Jaiswal vs State of C.G. and Others

Satish K. Agnihotri, J.—By this petition, the petitioner seeks a writ in the nature of certiorari to quash the order dated 11-12-2009 (Annexure P-l) passed by the respondent No. 2, i.e., Chief Executive Officer, Jila Panchayat, Dhamtari, whereby the petitioner has been placed under suspension.

The facts, in nutshell, as projected by the petitioner are that the petitioner was appointed as Shiksha Karmi Grade I, vide order dated 27-7-1998 at Government Higher Secondary School, Magarload. Thereafter, by the impugned order dated 11-12-2009 (Annexure P-l) the petitioner was placed under suspension.

The petitioner impugns the order dated 11-12-2009 (Annexure P-l) on the sole ground that the wrong provisions have been invoked for suspending the petitioner. Shri Pandey, learned Counsel appearing for the petitioner submits that the provisions of Rule 3 of the Chhattisgarh Civil Services (Conduct) Rules, 1965 are not applicable to service conditions of Shiksha Karmis as there is a separate rule namely Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Services) Rules, 2007 (for short ''the Rules, 2007'') framed in exercise of powers conferred under Clause (b) of Sub-section (1) of Section 53 and Sub-section (1) of Section 70 read with Sub-section (1) of Section 95 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994), governing the service conditions of the Shiksha Karmis. Thus, the impugned order is bad in law, unjust and deserves to be quashed.

On perusal of the Rules, 2007, it is found that there is no provision for suspension. Rule 3 of the Rules, 2007, which is clear, explicit and unambiguous, provides that without prejudice to the generality of the provisions contained in the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, these Rules shall apply to every member of the service.

Rule 3 of the Rules, 2007 reads as under:

Scope of application.- Without prejudice to the generality of the provisions contained in the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, these Rules shall apply to every member of the service.

Section 15 of the Rules, 2007 provides that nothing in these rules shall be construed to limit or abridge the powers of the Governor to deal with the case of any person to whom these rules apply in such manner as may appear to it to be just and equivalent. Provided that the case shall not be dealt in with in any manner less favourable to him than that provided in these rules.

The power of Governor is exercised in accordance with the Rules of Business as framed under Article 166(3) of the Constitution of India. There is no challenge in this petition with regard to the power of the Chief Executive Officer, except that the provisions referred to in the impugned suspension order is not applicable to the service conditions of the Shiksha Karmis.

The expression, ''without prejudice to the generality of the provisions contained in the Chhattisgarh Civil Services (General Conditions of Service) Rules, 1961, does not cut down the generality of the provisions of Rules, 1961.

Having considered all the provisions as aforestated, since there is no provision of suspension under the Rules, 2007, the general provision of suspension as enshrined in the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 would be applicable as it is made clear that the provisions of the Rules, 2007 would not limit or abridge the powers of the Governor to deal with the cases of any person to whom these rules apply.

Suspension is a necessary concomitant of the service conditions, which is not provided in the Rules, 2007. It does not mean that the employer does not have the power to deprive the Shiksha Karmis temporarily of the functions not amounting to any reduction of his rank of status.

It is trite that an order of suspension is temporary and does not involve punishment with civil consequences. Suspension means a temporary deprivation of the functions not amounting to any reduction of his rank or his status. The employees under suspension continues to be a Government servant, he is not permitted to work keeping in view pendency of Departmental Enquiry to avoid undue influence in the proceedings of Departmental Enquiry and likely tampering with the records.

Further, in P.L. Shah Vs. Union of India (UOI) and Another, , the Supreme Court observed as under:

An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him.

This Court, in U.K. Pambhoi v. Stale of C.G. and Ors. 2006 (1) CGIJ 229, while dealing with the similar issue, observed as under:

It is well settled principle of law that the suspension is temporary and it does not involve punishment with civil consequences. Suspension means temporary deprivation of the functions not amounting to any reduction of his rank or his status. The employee under suspension continues to be a Government servant, he is not permitted to work keeping in view pendency of Departmental Enquiry to avoid undue influence in the proceedings of the Departmental Enquiry and likely tampering with on records. At this stage, it is not necessary to go into the charges levelled against the petitioner because it may prejudice the case of the parties wherein the respondents are likely to initiate the Departmental Enquiry. Impugned order was passed on 27-5-2005 by the State Government...

In view of the foregoing and applying the well settled principles of law to the facts of the case on hand, there is no merit in this case and the writ petition is dismissed at the motion stage itself.