State Of Madhya pradesh & Others vs Ashok Kumar Gupta

The challenge in the present appeal is to an order passed by the learned Single Bench on 22.8.2017 whereby the writ petition was allowed and the

order dated 28.1.2017 suspending the writ petitioner was quashed. Consequently, the writ petitioner was ordered to be granted all consequential and

monetary benefits.

The respondent/ the writ petitioner was arrested for the offences under Section 420, 467, 471, 120B of IPC on 20.10.2013. He was released on bail on

20.1.2014. Subsequently, he filed an application for becoming an approver which was allowed on 6.1.2015 in terms of Section 307 of the Code of

Criminal Procedure. However, an order of suspension of the writ petitioner was communicated on 28.1.2017. It is the said order which has been set

aside by the learned Single Bench.

The learned Single Bench found that since the writ petitioner has been tendered pardon, therefore, he is not an accused, and as a witness, it cannot be

said that criminal proceedings can be pending against him and consequential continuous suspension is unjustified.

Learned counsel for the appellant refers to Rule 9 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short ‘the

Rules’) to contend that if a Government Servant remains in custody for a period more than 48 hours, then there is a deemed suspension in terms

of sub rule (2) of Rule 9 and such deemed suspension can be modified or revoked by the Competent Authority or by the Higher Authority in terms of

sub rule (5)(d) of Rule 9 of the Rules. Therefore, the status of the Government Servant, in respect of pendency of the criminal trial, is not relevant to

determine as to whether the writ petitioner was validly suspended or not. It is pointed out that the order of suspension could be issued on 20.1.2017 for

the reason that the writ petitioner was already under suspension in another pending departmental enquiry. Therefore, the fact that the writ petitioner

was in custody could not come to the notice of the competent authority.

On the other hand, Mr. Manoj Sharma, learned counsel for the writ petitioner submits that as on now, the status of the Government servant is of a

witness and no adverse inference can be drawn against the writ petitioner on account of the pendency of criminal proceedings in which his status is

that of witness. It is also argued that in terms of Clause (c) of Rule 9(5) of the Rules, there has to be positive order passed by the Government to

continue the Government servant to be under suspension but since no order has been passed, therefore, the order passed by the learned Single Bench

cannot be said to be unjustified.

We have heard learned counsel for the parties and find that the order of the learned Single Bench cannot be sustained in law.

The criminal trial in which the writ petitioner is a witness in terms of Section 307 of the Code, is not determinative of the status of a Government

servant to be under suspension or not. The suspension of a Government servant is governed by Rule 9 of the Rules. The relevant portion of Rule 9

reads as under :-

“9 Suspensions

(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 after sanction of prosecution by the Government 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 incustody 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 ofconviction 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.

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(5)(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. (5)(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 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.]

Rule 9(2) of the Rules contemplates that the Government servant shall be deemed to be under suspension with effect from the date of his detention, if

a Government Servant is detained in custody whether on a criminal charge or otherwise for a period exceeding 48 hours. The fact is that the writ

petitioner was in custody for almost three months. Therefore, in terms of sub rule (2) of Rule 9 of the Rules, he is deemed to be under suspension

from the date of his detention. The subsequent grant of pardon is not determinative of the status of the Government servant to be under suspension or

not as there is deemed suspension.

The Rule 9(5)(c) of the Rules would be applicable if the Government Servant is suspended or shall be deemed to have been suspended, or any other

disciplinary proceedings is commenced against him, then an order is required to be passed regarding continuation of suspension until the termination of

all or any of such proceedings. The said Rule is not helpful to the argument raised by the learned counsel for the writ petitioner as a positive order is

required for suspension, if another departmental proceeding was pending. The present is case of suspension on account of arrest of the writ petitioner

for more than 48 hours by virtue of deemed provision of Rule 9(2)(a) of the Rules. But under Rule 9(5)(d) of the Rules, the suspension order can be

modified or revoked by the competent authority.

In terms of Rule 9(1) of the Rules, a Government servant can be suspended when disciplinary proceedings against him is contemplated or is pending

or where a case against him in respect of any criminal offence is under investigation, inquiry of trial. In view of the facts on record, neither any

disciplinary proceedings are pending nor, the case against him in respect of any criminal offence can be said to be under investigation, inquiry of trial.

Therefore, in terms of clause (d) of Rule 9(5), the competent authority is to consider as to whether the order of suspension is required to be modified

or revoked but that decision has to be of competent authority and not of the Court. The petitioner cannot be kept under suspension, when neither the

departmental Inquiry nor criminal proceedings are pending against him.

In view thereof, we set aside the order passed by the learned Single Bench and direct the competent authority to pass an order as to whether

suspension of the writ petitioner is required to be modified or revoked as neither the disciplinary proceedings are said to be contemplated or pending

against him nor any criminal case is said to be under investigation, inquiry of trial.

We hope the competent authority shall pass necessary orders within a period of two months from today.

With the aforesaid directions, the writ appeal stands disposed of.