Harbhajan Singh vs State of M. P. And Others

The petitioner before this Court under suspension (Superintending Engineer) has filed present petition being aggrieved by order dated 16/06/2020

(Annex.-P/8) by which the petitioner has been placed under suspension, order dated 18/06/2020 (Annex.-P/9) by which the headquarter of the

petitioner has been fixed at Rewa and the order dated 19/06/2020 (Annex.-P/10) by which the petitioner has been relieved to join at Rewa.

02- Learned Senior Counsel Shri Bagadiya along with Shri Rohit Saboo has argued before this Court that the petitioner was earlier placed under

suspension by an order dated 23/09/2019 and as no charge sheet was issued within 45 days, the petitioner has approached this Court by filing a writ

petition and the same was registered as Writ Petition No.7554/2020 (Harbhajan Singh Vs. The Indore Municipal Corporation). This Court has allowed

the writ petition revoking their suspension. It was also held that the petitioner shall be entitled for payment of salary after completion of Department

Enquiry for the period beyond 45 days from the date of suspension i.e. 23/09/2019.

03- Learned Senior Counsel has argued before this Court that the petitioner has been victimized by the respondents and in order to circumvent the

earlier order passed by this Court dated 03/06/2020 the petitioner has been placed under suspension and the respondents have gone ahead in fixing the

headquarter of the petitioner at Rewa. It has been stated that their cannot be a second suspension as done by the respondents and the impugned

orders are bad in law.

04- The respondent â€" Corporation has filed a reply and it has been stated that the order of suspension is an appealable order and the petitioner can

prefer an appeal under Rule 23 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The respondents have also

stated that the petitioner is an employee of Municipal Corporation, Rewa. He was on deputation for 10 years at Indore and as he is an employee of

Rewa Municipal Corporation, after placing him under suspension, he has been posted with his parent organization and his headquarter has been fixed

at his parent organization. The respondents have also stated that the petitioner has been relieved and the question of grant of any relief to the petitioner

does not arise.

05- A rejoinder has also been filed in the matter and it has been stated that the order fixing the headquarter is not an appealable order and the

petitioner is in fact a victim and he has lodged an FIR against certain persons, who were blackmailing him and the respondents are now victimizing the

petitioner.

06- This Court has carefully gone through the writ petition, reply as well as the rejoinder. Undisputedly, the petitioner was earlier placed under

suspension on 23/09/2019. The aforesaid suspension order was subject to judicial scrutiny and only on a technical ground that charge sheet was not

served within 45 days of suspension, the suspension order was set aside.

07- The respondents have thereafter, served a charge sheet on 13/06/2020 and the petitioner, who was reinstated pursuant to the order passed by this

Court, has again been placed under suspension. Rule 9 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 reads

as under:-

“9. (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 of 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 Government servant shall be deemed to have been placed under suspension by an order of appointing authority-

(a) with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours;

(b) with effect from the date of his conviction, if, in the event of conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and

is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

Explanation. - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the

conviction and for this purpose, intermittent periods of imprisonment,, if any, shall be taken into account.

[(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.]

(2-b) Where the disciplinary authority fails to issue to the Government servant, a copy of the charges and other documents referred to in sub-rule (2-a) within the

period of 45 days, the disciplinary authority shall, before expiry of the said period, obtain orders in writing of the State Government for extension of the said period of

suspension :

Provided that the period of suspension shall in no case be enhanced beyond a period of 90 days from the date of the order of suspension.

(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension, is set aside in appeal or on

review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have

continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant, is set aside or declared or rendered void in

consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry

against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed

to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall

continue to remain under suspension until further orders.

(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

competent to do so :

[Provided that the order of suspension shall stand revoked on expiry of the period of forty-five days from tire 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.]

[(b) In respect of a Government servant, whose orders of suspension stand revoked in accordance with the first or second proviso of clause (a) the authority

competent may, if it considers expedient so to do, place him under suspension after a copy of charges and other documents, as required by sub-rule (4) of Rule 14,

have been issued to him.]

[(c) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any

other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for

reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such

proceedings.

[(d)] An order of suspension made or deemed to have been made under this Rule may at any time be modified or revoked by the authority which made or is deemed to

have made the order or by any authority to which that authority is subordinate :]

[Provided that an order of suspension made under the first proviso to sub-rule (1) of Rule 9 shall not be revoked except by an order of the Government made for

reasons to be recorded.]â€​

In light of the aforesaid statutory provisions of law and the liberty granted by this Court to proceed ahead in accordance with law, in the considered opinion of this

Court, the petitioner has rightly been placed under suspension by the respondents.

08- This Court has never held that the petitioner cannot be placed under suspension, his suspension was quashed only on a technical ground. The

petitioner is an employee of Municipal Corporation Rewa and in those circumstances his headquarter has been fixed at Rewa and he has been

relieved also.

09- The apex Court in the case of U. P. Rajya Krishi Utpadan Mandi Parishad and Others Vs. Sanjiv Rajan reported in 1993 Supp (3) SCC 48 i3n

paragraphs No.4, 5 and 10 has held as under:-

“4. The investigation into the defalcation was, however, in progress. In April, 1991, special auditors were appointed to audit the accounts of the Market Committee.

They submitted their -report in May, 1991 in which it was stated that several lakhs of rupees had been embezzled from the funds of the Market Committee. On 4th

May, 1991, an order was passed appointing an inquiry officer to inquire into the conduct of various officers of the Market Committee. Upon preliminary inquiry, it was

found that the defalcation was done either with the active involvement of the respondent or at his connivance and in any case he was guilty of dereliction of duty for

not scrutinising the accounts of the Market Committee, properly. With this prima facie ""case against the respondent made out in the auditors' report, a fresh order of

suspension along with a charge-sheet was served upon the respondent on 26th March, 1992. The respondent again approached the High Court and the High Court

by the impugned order, stayed the order of suspension on the ground that it was not competent for the appellants to pass the order of suspension second time in the

same matter. The High Court, however, directed the appellant to complete the inquiry expeditiously.

The ground given by the High Court to stay the operation of the suspension order, is patently wrong. There is no restriction on the authority to pass a suspension

order second time. The first order might be withdrawn by the authority on the ground that at that stage, the evidence appearing against the delinquent employee is

not sufficient or for some reason, which is not connected with the merits of the case. As happened in the present case, the earlier order of suspension dated 22nd

March, 1991 was quashed by the High Court on the ground that some other suspended officer had been allowed to join duties. That order had nothing to do with the

merits of the case. Ordinarily, when there is an accusation of defalcation of the monies, the delinquent employees have to be kept away from the establishment till the

charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the

employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question-and hence it is always

advisable to allow the disciplinary proceedings to continue unhindered. It is possible that in some cases, the authorities do not proceed with the matter as

expeditiously as they ought to, which results in prolongation of the sufferings of the delinquent employee. But the remedy in such cases is either to call for an

explanation from the authorities in the matter, and if it is found unsatisfactory, lo direct them to complete the inquiry within a stipulated period and to increase the

suspension allowance adequately. It is true that in the present case, the charge-sheet was filed alter almost a year of the order of suspension. However, the facts

pleaded by the appellants show that the-defalcations were over a long period from 1986 to 1991 and they involved some lakhs, of rupees. It also appears that the

authorities have approached the police and in the police investigation, the amount of defalcation is found to be still more. Since the matter is of taking accounts

which are spread over from 1986 to 1991 and of correlating the entries with the relevant documents, and several individuals are involved, the framing of charges was

bound to take some time. The Court has to examine each case on its own facts and decide whether the delay in serving the charge -sheet and completing the inquiry

is justified or not. However, in the present case the High Court has not quashed the order of suspension on the ground of delay in framing of the charges. As stated

earlier, it has set aside the order of suspension on the ground that the authority had no power to pass the second order of suspension in the same case. We are afraid

that the High Court has misconstrued the nature and purpose of the power of suspension vested in the management. It is not disputed that at present all officers

concerned are served with the charge-sheets and have been suspended. There is no discrimination between the officers on that account. The charges are also grave

and the authorities have come to the conclusion that during the disciplinary proceedings, the officers should not continue in employment to enable them to conduct

the proceedings unhindered. Hence, we are satisfied that the order in appeal was not justifed.

We find from the charge-sheet that the allegations against the 1st respondent are grave in as much as they indicate that the amounts mentioned there in are not

deposited in the bank and forged entries have been made in the pass book of the relevant accounts and the amounts are shown as having been deposited. In the

circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. The Division Bench has given no reason for

upholding the learned Single Judge's order revoking the suspension order. In matters of this kind, it is advisable that the concerned employees are kept out of the

mischief's range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. Whether the employees should or should

not continue in their office during the period of inquiry is a matter to be assessed by the concerned authority ordinarily, the Court should not interfere with the orders

of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in

question. In the present case, before the preliminary report was received, the Director was impressed by the 1st respondent-employee's representation. However after

the report, it was noticed that the employee could not he innocent. Since this is the conclusion arrived at by the management on the basis of the material in their

possession, no Conclusions to the contrary could be drawn by the Court at the interlocutory stage and without going through the entire evidence on record In the

circumstances, there was no justification for the High Court to revoke the order of suspension.

In light of the aforesaid judgment, as there is no restriction on the part of the authority to pass pass an order of suspension second time especially

when the first one was quashed on a technical ground, this Court does not find any reason to interfere with the order of suspension.

10- In the case of Ajay Kumar Choudhary Vs. Union of India through Its Secretary and Another reported in (2015) 7 SCC 29 1t,he Hon'ble Supreme

Court in paragraph No.21 has under as under:-

“21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of

Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/ Chargesheet is served a reasoned order must be passed for

the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or

outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The

Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this

will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government

in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to

their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of

justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance

stands superseded in view of the stand adopted by us.â€​

The apex Court has held that a reasoned order can be passed for extension of suspension and the government is also free to transfer the person concerned to any

department and its offices. In light of the aforesaid judgment, a reasoned order has already been passed by the respondents placing the petitioner under suspension

and he has been posted at his parent organization i.e. Municipal Corporation Rewa and his headquarter is fixed at Rewa and therefore, this Court does not find any

reason to interfere with the order of suspension and the order fixing the headquarter.

11- The issue of placing a government employee under suspension again in similar circumstances has been considered by the Full Bench of Patna

High Court i.e. LPA No.778 of 2009 (The State of Bihar and Others Vs. Gyan Kumar Ram )and the Full Bench in paragraphs No.21 and 22 has held

as under:-

“21. It is apprehended that a matter relating to framing of charge-sheet within the prescribed period of three months and the subsequent renewal of the order of

suspension may be deliberately kept out of the purview of the competent authority by not placing the relevant papers/files before the concerned authority in time by

the subordinate staff thereby facilitating the revocation of the order of suspension. Such an apprehension can be considered as a very remote one. First of all, the

disciplinary authority is expected to be vigilant in such matters and cannot simply afford to be indolent. Moreover, even assuming that it may so happen

occasionally, the disciplinary authority is not rendered irrelevant because such authority shall always have the discretionary power of passing a fresh order of

suspension if the circumstances so warrant after framing of charge-sheet. Even if an order of suspension is revoked on account of non-compliance with Rule 9(7) or

by virtue of the proviso to Rule 9(7), there is ample power available to the competent authority to exercise the power of placing a Government servant under

suspension under Rule 9(1)(a) because a suspension order can always be passed when a disciplinary proceeding is pending. There is no embargo anywhere that a

suspension order which is revoked for any reason whatsoever, including on account of non-compliance with Rule 9(7), would stand as a bar in exercising the power

of suspension afresh once a disciplinary proceeding is initiated, if the facts and circumstances so warrant. It is not as if revocation of the suspension order, whether

deemed or otherwise, can be used as a protective shield by the errant employee in thwarting permanently any possible order of suspension in future. The provision

contained in Rule 9(7) can at best be a temporary reprieve to the concerned employee, since the avowed object of Rule 9(7) is to ensure that no person, who is

suspended in contemplation of a disciplinary proceeding, should be kept under indefinite suspension. It is the solemn duty of the employer to ensure compliance

with the provisions. Such provision saves the right of the employer to extend the period of suspension for a further period of four months for reasons to be recorded

in writing. It also gives a temporary protection to the employee for not being kept under suspension for indefinite period, even though charge- sheet has not been

framed within the period of three months.

For the aforesaid reasons, we are of the opinion that on failure of the competent authority to frame charge-sheet within the period of three months if an order of

suspension is passed in contemplation of a disciplinary proceeding, in the absence of any order of extension of the suspension for reasons to be recorded in writing,

the concerned employee has a right to claim that he should be reinstated and at this stage, the competent authority is bound to reinstate such person in service.

However, thereafter, it will always be open to the competent authority to pass a fresh order of suspension once the charge-sheet is framed.â€​

This Court in light of the aforesaid, is again of the opinion that the competent authority has rightly passed the order of suspension placing the petitioner

under suspension and the headquarter of the petitioner has rightly been fixed at Rewa, which is his parent department.

12- Resultantly, no case for interference is made out in the matter, however, as the order of suspension is an appealable order, the petitioner shall

certainly be free to prefer an appeal before the appellate authority against the order of suspension as well as the order fixing the headquarter. The writ

petition stands dismissed.

Certified copy as per rules.