Suresh Kumar Purohit vs State of M.P. and Another

P.K. Jaiswal, J.

The petitioner, who is working as Assistant Transport Inspector in the office of Transport Commissioner, Gwalior, has filed this petition assailing the order of suspension dated 17.10.05. While the petitioner was working as Assistant Transport Sub-Inspector and was posted at pitol Check Post, District Jhabua. A criminal case as Crime No. 17/2000 for having committed offence u/s 13(1) (E) and 13(2) of the Prevention of Corruption Act was registered against him and he was arrested by Special Police Establishment Lokayukt Division Indore on 14.2.2000. Vide order dated 23.2.2000 (Annexure P/3), the petitioner was suspended by the Transport Commissioner, Gwalior. However, after about two months, the order of suspension was revoked on 13.4.2000 vide Annexure P/4 and the petitioner was posted at Check Post Morena vide Annexure P/5 dated 22.4.2000. After investigation, the matter was placed before the State Government. The State Govt, on examining the record found that the total income from the salary of the petitioner was 9.45 lacs; whereas his total assets and expenditure incurred came to Rs. 46.74 lacs which was above 370% of the income of the petitioner and the State Government found a prima-facie case against the petitioner and granted permission for his prosecution vide letter dated 12.5.04. The Lokayukt after permission, filed a challan before the Special Judge on 18.6.04 and Special Establishment Department Lokayukt vide letter dated 21.7.04 intimated the State Govt, and the respondent no. 2 immediately after filing of challan vide order dated 24.7.04 again suspended the petitioner.

The petitioner challenged the above suspension order by filing W.P. No.2330/04 before this Court on the ground that he cannot be suspended again after four years because challan has been filed in the criminal Court on 18.6.04. This Court by order dated 22.9.05 has held that the legislative intent was that normally when a challan is filed, the employee can be suspended, but at the same time the power is given to the Government to revoke suspension even after filing of challan, meaning thereby that suspension has to be ordered after considering the facts and circumstances of the each case, State Govt, or the competent authority has to act independently by application of mind. Due to his involvement in the same criminal case, the petitioner was suspended, thereafter the disciplinary authority had revoked his suspension. Now as the challan is filed, it is well within the right of the competent authority or the State Govt. to suspend the employee, but they have to act by independent application of mind and cannot be permitted to take action only because the same communication is received and direction is issued by the office of the Lokayukt. The direction issued by the Lokayukt is only recommendatory in nature and for the purpose of suspending an employee, independent application of mind has to be made by the State Govt. and thereafter a decision has to be taken. Permitting the State Government to act without application of mind mechanically merely because the organization of Lokayukt has directed to do so is not permissible. This Court held that independent application of mind has to be made by the State Govt. or disciplinary authority and first Proviso to Rule 9 (1) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1966") gives power to the State Government to take action in the matter after application of mind and it cannot be said that in all cases the employee has to be suspended because challan is filed and disposed of the petition in the following terms :

i) Petitioner shall place a copy of this order before the respondent no. 1 within a period of two weeks of its receipt;

ii) Respondent no. 1 shall examine the entire case and shall pass proper orders keeping in view the facts and circumstances of the case, the necessity of suspension of the petitioner according to law laid down in the case of Rajesh kumar (Supra), respondent no. 1 shall pass speaking order in the matter within a period of one month from the date of receipt of certified copy of this order as indicated hereinabove; and

iii) in case no order is passed by the respondent no. 1 within the aforesaid stipulated period, the impugned order Annexure P/1 shall stand automatically quashed.

The respondent no. 1 in compliance to the order of this Court dated 22.9.05 examined the matter afresh and passed a detailed order giving cogent reasons for suspending the petitioner and by holding that the charges are grave and they have come to the conclusion that during the criminal proceedings, the petitioner should not continue in employment to enable him to conduct the proceedings unhindered. It is also averred that on examining the case of the petitioner, it was found that allegations made against the petitioner were grave inasmuch as he prepared the forged document to justify his expenditure of Rs.36.80 lacs against the total income of Rs.9.94 lacs. The respondent no. 1 decided to suspend the petitioner during the pendency of the Court case and rejected his application for revoking suspension vide impugned order dated 17.10.05.

It is contended by the learned counsel for the petitioner that the petitioner can be suspended by the competent authority if the authority finds that during the pendency of any D.E. or a criminal proceedings, permitting the petitioner to discharge the duties is detrimental to the interest of the department. He invited my kind attention to a judgment rendered by a Bench of this Court in the case of W.P.S. 459/03 (Rajesh Kumar Trivedi v. State of M.P. and anr.), decided on 13.11.2003, wherein this Court has observed that:

Considering the aforesaid aspect of the matter and the reasons for suspending the petitioner in the backdrop of the discussion made hereinabove and keeping in view of the aforesaid legal position, it is crystal clear that the disciplinary authority has not applied his mind independently, but has only passed the order of suspension on the advice and suggestion given by the Lokayukt. It was further observed that in the opinion of this Court, where the exercise of power by the authority is found to be totally illegal and contrary to the provisions of law, this Court can very well exercise this power of interference and grant relief to the petitioner. In the circumstances, the order of suspension was quashed by this Court.

It was submitted that in view of the law laid down by this Court in the case of Rajesh Kumar Trivedi (Supra), the impugned order is liable to be quashed. In the instant case, the respondent no. 1 after due consideration of the independent case of the petitioner and considering the gravity of the offence levelled against the petitioner, passed the impugned order keeping the petitioner under suspension as per Proviso to Rule 9(1) of the Rules of 196 and, therefore, the contention of the petitioner that the order of suspension has been passed mechanically and without application of mind is incorrect and contrary to the detailed reasons given by the State Government while passing the impugned order dated 17.10.05. The respondent no. 1 after considering the representation dated 26.9.05 examined the matter in the light and direction issued by this Court on 22.9.05 and after reconsidering the whole matter taken a decision to suspend the petitioner and not to revoke the order of suspension.

Rule 9(1) of the Rules of 1966 reads as under:

9 (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or another 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 inventilation, 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.

A perusal of the aforesaid Proviso to sub-rule (1) indicates that even though when the challan is filed for a criminal offence employee is to be invariably suspended and the State Government is competent to pass the suspension order after considering the facts and circumstances of the case.

Learned counsel for the petitioner drew my attention to the provisions of the Proviso to the Rule 29(1) of the Rules of 1966 and Rule 9(5) (d) and (e) of the Rules of 1966 and contended that the order of second suspension amounts to review. However, on the perusal of the order of suspension dated 17.10.95 (Annexure P/1), it appears to me that the petitioner was first suspended on accounts of his arrest in a criminal case u/s 13(1) (E) and 13 (2) of the Prevention of Corruption Act, registered at Special Police Establishment Lokayukt, Bhopal. The first order of suspension was revoked on 13.4.2000 by the respondent no.2. Thereafter, the second order of suspension was passed on the pendency of criminal case of Crime No. 17/ 2000 against the petitioner. In second order of suspension, it was specifically mentioned that looking to the nature of criminal case and gravity of the offence, the second suspension order is passed. In the circumstances, I am of the opinion that it is not a review of first suspension order.

There is no restriction on the authority to pass the 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 employees was not sufficient or for some reason it did not connect with the merits of the case. Ordinarily, when the offence is serious and grave in the nature, the delinquent employee has to be kept away from the establishment till the charges are finally disposed of. Where the charges are baseless, malicious or vindicative and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no claim can be arrived at without examining the entire record in question.

In the matters of this kind, it is advisable that the concerned employee be kept out of mischief range. If he is excluded, he would be entitled to above benefits from the date of the order of suspension. Whether the employee should not continue in his office during the period of enquiry is a matter to be assessed by the authority concerned and ordinarily, the interference of this Court with the order of suspension is very slow unless they are passed malafide and that there being no prima-faice evidence on record connecting the employee with the misconduct in question. In the present case, before filing challan, the matter was investigated by the State Government and thereafter permission for prosecution against the petitioner was issued on 12.5.04. Thereafter the challan was filed on 18.6.04 and the petitioner was again suspended vide order dated 24.7.04 under Proviso to Rule 9 (1) of Rules of 1966. The said second suspension order was set aside by this Court and the respondent no. 1 was directed to examine the entire case afresh and pass a speaking order in the matter. The respondent no. 1 in compliance to the directions of this Court examined the matter afresh and came to the conclusion that for suspending the petitioner during the pendency of the criminal case on the basis of the material in their possession, no conclusion to the contrary could be drawn by this Court at this stage.

In the circumstances, I am of the considered view that no justifiable ground is made out by the petitioner to revoke the order of suspension. For the above reasons, the petition filed by the petitioner has no merit and is accordingly dismissed without any order as to costs.