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Judgment
The issue which needs adjudication in the present Writ Petition is, when an employee is placed under suspension by an officer competent under the
service rules and if the same authority at a later stage reconsiders the suspension of the delinquent employee and revokes the order of suspension,
whether the employee has to be posted back at the same place from where he was suspended or whether he can be posted at a different place.
The facts involved in the present case is that, the petitioner was placed under suspension on 08.09.2017 on the charges of irregularities.
Departmental proceedings were also initiated against the petitioner. The Departmental Enquiry is still undergoing. Meanwhile, on 12.10.2017, the
respondent No.3 (the same authority who had issued the order of suspension) has passed an order revoking the order of suspension of the petitioner
and transferring him to the office of respondent at Sukma.
The petitioner through the present writ petition has only assailed that portion of the order by which he has been transferred to a different place upon
revocation of suspension. The contention of the petitioner is that the same could not have been done as it is illegal and bad in law in the light of the
judgment of this court passed in WPS No.3146 of 2015, decided on 08.09.2015 (Khadanand Patanwar Vs. State of Chhattisgarh & Ors.). He further
submits that once when the order of suspension stood revoked, the natural consequence should be of putting him back at the same place from where
he was suspended and thereafter, if required, he could have sent/posted/transferred elsewhere.
The counsel for the State opposing the writ petition submits that the two judgments referred to by the petitioner would not be applicable in the
instant case. According to him, it is a case where the order of revocation of suspension has been issued by the same authority who had issued
suspension order also. The authority who has issued an order of suspension also has the power of posting the petitioner at some other place. Thus, if
on revocation of suspension, the authority finds it fit for posting the petitioner at a different place, the same is within his power and domain. Therefore,
it cannot be said to be in any manner illegal or bad in law.
He further submits that the case of the petitioner stands squarely covered by the decision of the Full Bench judgment of MP High Court in case of
Asif Mohd. Khan Vs. State of MP & Ors., 2015 (4) MPLJ 406. The Full Bench considered the aspect of the power of the authority who could place
an employee under suspension could also to post the employee to a different place on revocation of suspension. The Full Bench was of the view that
the appellate authority did not have the power to decide the place of posting of the employee on the revocation of suspension but the disciplinary
authority does have the power.
Having heard the counsel for the parties, what is necessary to deal certain situations under which a suspension order of an employee are
reconsidered. There can be a situation where the revocation of suspension is after a considerable period and in between the place where the
employee was discharging his duties, some other officer is posted and there is no vacancy available at the same place and if under such circumstances
the employee on revocation of suspension is posted elsewhere, can it be said to be bad.
The situation would be different in case if the appellate authority while deciding the appeal against the order of suspension revokes the order of
suspension. Under such circumstances, the only order which the appellate authority could issue is to hold whether the order of suspension is justified
or not. If not, the delinquent employee has to be taken back in employment on revocation of suspension at the same place. On the contrary, if the
order of suspension has been revoked by the authority who has placed the employee under suspension and also has the power to post the employee to
a different place, then the situation would be different. Under such circumstances, the revocation of suspension and posting of an employee on a
different place made by the authority can also be by a composite order.
The situation can be different in a case where against the order of suspension an appeal was preferred and the appellate authority on considering
the contents of the appeal allows the same and quashes the order of suspension. Under such circumstance since the order of suspension stands
quashed, the employee becomes entitled to report back to the same place of posting from where he was suspended. This was the situation under
which the judgment of Kendriya Vidyalaya Sangathan & Ors. v. Dr. R.K. Shashtri & Anr., 2005(4)MPHT 352 (DB) stood decided by the Division
Bench of MP High Court.
The Single Bench of this High Court in case of Khadanand (Supra) relying upon the judgment of Division Bench of MP High Court in case of
Kendriya Vidyalaya Sangathan (Supra) has held that once when the order of suspension stands revoked, the delinquent has to be permitted to resume
his duties at the same place from where he was placed under suspension. Thereafter, the employer would be at liberty to pass a fresh order of posting
the employee elsewhere in the event of administrative exigency. So far as the facts of the present case is concerned, the same is quite different from
the facts in case of Kendriya Vidyalaya (Supra).
Based on the said judgment in the case of Khadanand (Supra), the another Single Bench of this High Court in WPS No.5039 of 2015, Khelendra
Kumar Singh Vs. State of Chhattisgarh & Ors, and other analogous writ petitions, passed an order on 03.08.2016 re-iterating the view of this court in
case of Khadanand (Supra).
In the instant case the petitioner was placed under suspension on 08.09.2017 on contemplation of a departmental enquiry. Later on departmental
enquiry also was initiated, but till date the same could not be concluded and is still undergoing. However, subsequently, the Disciplinary authority i.e.
the authority, who had placed the petitioner under suspension, thought it fit that no fruitful purpose would be served in continuing the suspension of the
petitioner and therefore pending the departmental enquiry the order of suspension was revoked. However while revoking the order of suspension, the
petitioner was asked to perform his duties henceforth at the office at Sukma.
What is also to be borne in mind is that there is no dispute so far as the competency of the authority who had revoked the order of suspension,
could also transfer the petitioner to a different place. The revocation of suspension was not by virtue of an order passed in the departmental appeal. It
was a pure administrative decision. The authority who had placed the employee under suspension later felt that the services of the petitioner could be
taken at a different place and therefore revoking the suspension posted the petitioner at a different place, which again was within the power which
was conferred upon the authority who had issued the order. Moreover, the possibility of the present petitioner tempering with the evidence both oral as
well as documentary available at the place, where he was posted earlier, cannot be ruled out. It could also be a situation where the petitioner having
being placed under suspension must have been replaced by another employee. These are some of the issues or situations, which have not been
deliberated upon or discussed by the Hon’ble Single Bench while deciding the case of “Khadanand†(supra).
The aforesaid views get strengthened by the Full Bench judgment of the Madhya Pradesh High Court in the case of “Asif Mohammed Khanâ€
(supra). With all humilities at my command, this Court respectfully would like to defer with the view expressed by the Hon’ble Single Bench in the
case of “Khadanand†(supra) and would like the said issue to be reconsidered. Judicial propriety demands that the matter be placed for
consideration before the larger bench.
Rule 32(2)(ii) of the Chhattisgarh High Court Rules, 2007 envisages a provision wherein a Single Judge shall refer any proceedings pending before
him to Hon'ble the Chief Justice for placing the matter before the Bench of two Judges if it is considered that the decision in the proceeding involves
reconsideration.
The views taken by this Court in the case of Khadanand (Supra) and which was further concurred in a bunch of petitions leading amongst which
was Khalendra Kumar Singh (Supra) needs reconsideration particularly in the light of the Full Bench decision of MP High Court in the case of Asif
Mohd. (Supra) to support the view of this court.
Given the aforesaid facts and circumstances of the case, this Court is of the opinion that the principle of law laid down in the case of Khadanand
(Supra) requires reconsideration in the factual matrix of the case where the order of suspension and the order of revocation is by the same authority.
The revocation order was not pursuant to an appeal. The departmental enquiry against the petitioner is still underway.
Accordingly, let the present writ petition be placed before Hon'ble the Chief Justice for an appropriate orders placing the present petition, if he so
considers, before a larger Bench.