Nitin Upadhyay vs State Of M.P. & Ors

The writ and supervisory jurisdiction of this Court under Article 226 and 227 of the Constitution of India is invoked to assail the order dated 6/5/17

and 18/11/14 (Annexure P/1 and P/2) of deemed suspension due to filing of chargesheet in criminal case arising out of crime No. 17/14 alleging

offences punishable u/Ss. 419, 420, 467, 468, 471 and 120 B of IPC and 3 dh (1) (9) 4 of Madhya Pradesh Manyta Prapt Pariksha Adhiniyam, 1937

and the representation seeking revocation of suspension, is rejected.

This is second round of litigation.

The petitioner initially approached this court in W.P. No. 8498/16 assailing the order of deemed suspension dated 18/11/14 Annexure P/2. The said

petition was disposed of finally on 16/12/6 vide Annexure P/8 after relying upon the decision of the Apex Court in Ajay Kumar Choudhary Vs. Union

of India through its Secretary and Anr. (2015) 7 SCC 291 and P.L Shah Vs. Union of India AIR 1989 SC 985 extending liberty to the petitioner to

assail the legality and validity of the order of suspension before the appellate authority with further direction to the official respondents to consider the

justifiability and feasibility of continuing the petitioner under prolonged suspension with no hope of the trial coming to an end in the near future and for

enhancement of subsistence allowance in terms of executive instructions issued by the Government in that regard.

It is not disputed at the bar that the deemed suspension of the petitioner is continuing since 18/11/14 and also that the subsistence allowance of the

petitioner has since been enhanced to 75% of the salary.

Pursuant to the first round of litigation when the representation was submitted by the petitioner same came to be dismissed by impugned order dated

6/5/17 (Annexure P/1) declining the prayer for revocation of suspension on the ground of gravity of criminal charges against the petitioner.

Though the disciplinary authority/appointing authority is competent to decide about the justifiability of continuing an employee under suspension for a

limited or long period of time during pendency of criminal trial, however the competent authority should also realize that criminal trial ordinarily takes

long to be concluded. The offence for which the government servant is kept under deemed suspension is normally serious in nature, as is the case

where the petitioner is an accused in the trial emanating from Vyapam scam.

However, the disciplinary authority/appointing authority should not be oblivious of the fact that by keeping a government servant under suspension

for an indefinite period of time gives rise to the following adverse effects:-Â

(I) The suspended employee has to be paid 50% or 75% of salary as subsistence allowance without discharging any duties which amounts to burden

on the public exchequer. (ii) The employee who is under deemed suspension on account of chargesheet in criminal offences involving moral turpitude

may or may not be found guilty in the trial/appeal/revision, but the period spent under suspension brings with it ignominy and loss of fame/reputation of

the suspended employee in the eyes of the public.

The aforesaid adverse effects can be avoided by transferring the suspended employee to a different place to keep him away from the place of trial.

The assignment given to such transferred suspended employee may not be of sensitive nature. In this manner, the disciplinary/appointing authority

would not only save the loss of public exchequer but also relieve suspended employee to some extent of the ignominy being faced by him and his

family members.

It is always better to revoke the suspension and allow the employee to discharge his official duties and pay him salary rather than paying 50% or 70

% of subsistence allowance without taking any work from the suspended employee.

The aforesaid proposition of this court is supported by the view taken by the Apex Court in the case of P.L. Shah (supra) and Ajay Kumar

Chaudhary (supra).

On testing the legality and validity of the impugned order dated 6/5/17 (Annexure P/1) on the anvil of the law laid down by the Apex Court in the

case of P.L. Shah (supra) and Ajay Kumar Chaudhary (supra) and the discussion made herein-above, this court has no manner of doubt that the

aforesaid two adverse effects which are the natural consequence of prolonged suspension as is the case herein, have not been considered by the

competent authority. No mind has been applied by the competent authority to work out a reasonable and practical solution to avoid the aforesaid two

adverse effects of prolonged suspension. Thus this court is compelled to direct for reconsideration in the matter at the level of competent authority.

Consequently, this petition is allowed to the extent that the impugned order dated 6/5/17 (Annexure P/1) is set aside and the competent authority

among the respondents No. 1 to 4 is directed to reconsider the justifiability of continuing the petitioner under suspension after taking into account the

law laid down by the Apex Court in the case of P.L. Shah (supra) and Ajay Kumar Chaudhary (supra) and the discussion made herein-above and

pass speaking order as expeditiously as possible preferably within a period of two months from the date of receipt of copy of this order.

Before parting it is apt to observe that this court has deemed it appropriate to partly allow this petition without issuing any notice in view of

apparent illegality in the impugned order dated 6/5/17 (Annexure P/1) of non consideration of relevant aspects of directions issued by this court in the

first round of litigation in order dated 16/12/16 passed in W.P. No. 8498/18 and of the Apex Court.

This court before parting hastens to add that the order of suspension of the petitioner dated 18/11/14 Annexure P/2 has not been disturbed by

this court and therefore it's sustainability shall remain subject to the decision taken by the competent authority pursuant to this order, or of the appellate

authority in appeal if any preferred by the petitioner.

No cost.