Chattisgarh High Court
Mahendra Kumar Tondon vs State Of Chhattisgarh on 10 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(S) No. 1255 of 2023
Mahendra Kumar Tondon S/o Ramlal Tondon, Aged About 39 Years
Occupation Assistant Teacher (Lb), Govt. Primary School, Khamun,
Block Korba,, District : Korba, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through Secretary, Department Of
Education, Mahanadi Bhawan Mantralaya, Atal Nagar Naya
Raipur, District : Raipur, Chhattisgarh
2. Director Public Instruction, Directorate, Indrawati Bhawan, Atal
Nagar, Naya Raipur, District : Raipur, Chhattisgarh
3. Collector, Korba, District : Korba, Chhattisgarh
4. District Education Officer, Korba, District : Korba, Chhattisgarh
5. Block Division Education Officer, Korba, District : Korba,
Chhattisgarh
---- Respondents
For Petitioner : Ms. Juhi Anguriya on behalf of
Mr. Awadh Tripathi, Advocate
For Respondents/State : Mr. Suyashdhar Badgaiya, P.L.
Hon'ble Shri Justice Parth Prateem Sahu
Order On Board
10/02/2023
1. Grievance raised by way of this petition is with regard to non-
reviewing the order of suspension dated 19.10.2022 after
completion of 90 days.
2. Learned counsel for petitioner submits that petitioner while
working on the post of Assistant Teacher (LB) at Government
Primary School Khamhun, Block- Korba, District - Korba was put
under suspension vide order dated 19.10.2022. Petitioner
thereafter was served with charge memo. She contended that
after issuance of order of suspension more than 90 days have
been elapsed and as per the decision of Hon'ble Sureme Court,
the authorities are required to review the order of suspension
after completion of 90 days from the date of issuance of order of
suspension. Respondent No.4 has not reviewed the order of
suspension of petitioner and have not passed any order in this
regard. He placed reliance on the judgment of Supreme Court in
case of Ajay Kumar Choudhary Vs. Union of India, through
its Secretary & Another, reported (2015) 7 SCC 291. She
submits that petitioner has also submitted a representation on
27.01.2023, before respondents No.4 making prayer for
revocation of his suspension but the same has not been
considered and decided till date.
3. Leaned State counsel opposes the petition and the submission
made by learned counsel for petitioner.
4. I have heard learned counsel for parties and perused the
documents placed on record.
5. Perusal of order Annexure P-1 would show that the order of
suspension is dated 19.10.2022. From the date of issuance of
order of suspension as of now more than 90 days have already
been completed. The submission of learned counsel for petitioner
that after lapse of 90 days or prior to expiry of 90 days,
competent authority respondent No.4 has not passed any order
either revocation of the suspension or extending the period of
suspension of petitioner. Hon'ble Supreme Court in case of Ajay
Kumar Choudhary (supra) has considered the issue of keeping
the employee under suspension beyond period of 90 days, and
held as under :-
"20. It will be useful to recall that prior to 1973 an
accused could be detained for continuous and
consecutive periods of 15 days, albeit, after judicial
scrutiny and supervision. The Cr.P.C. of 1973
contains a new proviso which has the effect of
circumscribing the power of the Magistrate to
authorise detention of an accused person beyond
period of 90 days where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than 10 years, and
beyond a period of 60 days where the investigation
relates to any other offence. Drawing support from the
observations contained of the Division Bench in
Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481,
and more so of the Constitution Bench in Antulay, we
are spurred to extrapolate the quintessence of the
proviso of Section 167(2) of the Cr.P.C. 1973 to
moderate Suspension Orders in cases of
departmental/disciplinary inquiries also. It seems to us
that if Parliament considered it necessary that a
person be released from incarceration after the expiry
of 90 days even though accused of commission of the
most heinous crimes, a fortiori suspension should not
be continued after the expiry of the similar period
especially when a memorandum of
Charges/Chargesheet has not been served on the
suspended person. It is true that the proviso to
Section 167(2) Cr.P.C. postulates personal freedom,
but respect and preservation of human dignity as well
as the right to a speedy trial should also be placed on
the same pedestal.
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."
6. Hon'ble Supreme Court in clear terms has observed that
employee can not be kept under suspension for inordinate period
beyond 90 days.
7. In view of above facts and circumstances, where the petitioner
was put under suspension on 19.10.2022 and no further orders
have been passed for revocation or extending the period of
suspension, as stated by counsel for petitioner, he has already
made representation, before respondent No.4 for revocation of
his suspension and also the decision of Hon'ble Supreme Court
in case of Ajay Kumar Choudhary (supra), respondent No.4 is
directed to decide the application/representation submitted by
petitioner within a period of 4 weeks from the date of receipt of
copy of order passed by this Court keeping in mind, the decision
of Hon'ble Supreme Court in case of Ajay Kumar Choudhary
(supra).
8. Accordingly, this petition is disposed off with aforesaid
observations and directions.
1. Sd/-
(Parth Prateem Sahu)
Judge
Balram
