Hemlata Sidar vs State Of Chhattisgarh
2023 Latest Caselaw 337 Chatt

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                                                                       NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                         W.P.(S) No. 392 of 2023

Hemlata Sidar W/o Niyamish Sidar Aged About 29 Years R/o Village
Bardula, Uchbhithi Tehsil Sarangarh Disrict Raigarh Chhattisgarh

                                                               ---- Petitioner

                                Versus

1.    State Of Chhattisgarh Through Its Secretary Department Of
      School Education, Mantralaya, Mahanadi Bhawan, Naya Raipur,
      District Raipur Chhattisgarh

2.    Director Directorate Of Public Instruction Vivekanand Nagar,
      Janta Colony, Raipur, District Raipur Chhattisgarh

3.    Joint Director Education Division Bilaspur, Bilaspur District
      Bilaspur Chhattisgarh

4.    Collector Sakti District Sakti Chhattisgarh

5.    District Education Officer District Sakti Chhattisgarh

6.    Block Education Officer Maalkharoda, District Sakti Chhattisgarh

                                                        ---- Respondents

For Petitioner : Mr. Ishan Verma, Advocate For Respondents/State : Ms. Sunita Jain, G.A.

Hon'ble Shri Justice Parth Prateem Sahu Order On Board 17/01/2023

1. Grievance raised in this petition is that after issuance of order of

suspension dated 19.09.2022 and completion of period of 90

days, respondent No.5 has not reviewed or revoked the order of

suspension.

2. Learned counsel for petitioner submits that petitioner while

working on the post of Assistant Grade-III was put under

suspension under Rule 9 of Chhattisgarh Civil Services

(Classification, Control and Appeal) Rules, 1966 vide order dated

19.09.2022. Till date petitioner was not served with charge memo

or any enquiruy is initiated against her. After issuance of order of

suspension more than 90 days have been elapsed and as per

the decision of Hon'ble Supreme Court, the authorities are

required to review the order of suspension after lapse of 90 days

from the date of issuance of order of suspension. Respondent

No.5 has not reviewed the order of suspension of petitioner and

has not passed any order in this regard extending the period of

suspension. 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.

3. Leaned counsel for State would submit that petitioner was

suspended on the ground that petitioner has committed

misconduct. She further submits that if petitioner submits

representation/application before respondent No.5 for revocation/

review of order of suspension, it will be considered and decided

in accordance with law.

4. At this stage, learned counsel for petitioner would submit that she

may be permitted to submit representation before respondent

No.5 and in turn respondent No.5 be directed to consider and

decide the same expeditiously within specified time.

5. I have heard learned counsel for parties and perused the

documents placed on record.

6. Perusal of order Annexure P-1 would show that the order of

suspension was passed by respondent No.5 on 19.09.2022.

From the date of issuance of order of suspension as of now more

than 90 days have already been elapsed. Charge-memo is not

issued till date. The submission of learned counsel for petitioner

that after lapse of 90 days, competent authority respondent No.5

has not passed any order nor review or revoked the order of

suspension. 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."

7. Hon'ble Supreme Court in clear terms has observed that

employee can not be kept under suspension for inordinate period

beyond 90 days.

8. In view of above facts and circumstances, where the petitioner

was put under suspension on 19.09.2022 and no further orders

have been passed for extending the period of suspension by

respondent No.5, this petition is disposed off permitting petitioner

to submit representation for revocation of his suspension before

respondent No.5 and if such representation is filed, respondent

No.5 is directed to consider the claim of petitioner for revocation

of her suspension within a period of 4 weeks from the date of

receipt of representation along with copy of order passed by this

Court keeping in mind, the decision of Hon'ble Supreme Court in

case of Ajay Kumar Choudhary (supra).

9. Accordingly, this petition is disposed off with aforesaid

observations and directions.

Sd/-

(Parth Prateem Sahu) Judge Balram