Madhya Pradesh High Court
Bharat Singh Baghel vs The State Of Madhya Pradesh on 15 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 15 th OF FEBRUARY, 2024
WRIT PETITION No. 3634 of 2024
BETWEEN:-
BHARAT SINGH BAGHEL S/O SHRI MAHAVIR SINGH
BAGHEL, AGED ABOUT 42 YEARS, OCCUPATION:
SERVICE ASSISTANT GRADE 2 (SUSPENDED) SURENRA
NAGAR BHIND DISTRICT BHIND (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.P. SINGH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY MANTRALAYA VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL / DIRECTOR, PUBLIC
PROSECUTION M.P. O/O PUBLILC PROSECUTION
DIRECTORATE M.P. BHADBHADA ROAD, BHOPAL
(MADHYA PRADESH)
3. DISTRICT PUBLIC PROSECUTION OFFICER,
BHIND DISTRICT BHIND (MADHYA PRADESH)
4. DISTRICT PUBLIC PROSECUTION OFFICER,
DHINDHORI DIST. DHINDHORI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VIVEK KHEDKAR - ADDITIONAL ADVOCATE GENERAL)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
The Petitioner is aggrieved by non-revocation of suspension even after
expiry of period of 90 days. He has drawn attention of this Court to the order
passed in the case of Balendra Yadav & Anr. Vs. State of M.P. & Ors.
passed in W.A. No.133/2020 dated 24.01.2020, wherein Division Bench of
this Court after relying on the case of Ajay Kumar Choudhary Vs Union of
India through its Secretary and anr. (2015) 7 SCC 291 has held as under:
"Admittedly, petitioner/appellant is under suspension
for more than one year since 18.12.2018 and there is
nothing on record to indicate as to whether his
subsistence allowance has been enhanced from 50%
to 75% or whether the Competent Authority has
applied its mind to the justifiability of further
continuance of suspension and paying him 50% or
75% salary without taking any work from him thereby
causing unnecessary burden on the public exchequer.
The Single Bench of this Court had an occasion to
consider the aforesaid aspect in W.P. No.3353/2018
(Ramveer Sharma Vs. State of M.P. & ors.) on
04.07.2019, relevant portion of which is reproduced
below:-
4. The Apex Court in the case of Ajay Kumar
Choudhary (supra) has deprecated the action of
employer of keeping the employee under
prolonged suspension especially when there is an
alternative course of posting the suspended
employee elsewhere at a place away from the
place where crime/misconduct is alleged to have
been committed and assigning the petitioner with
non-sensitive assignment. More so, the suspended
employee continues to enjoy subsistence
allowance @ 50% or 75% of the salary without
discharging any duty causing avoidable burden on
the public exchequer.
4.1 This court after relying upon the decision of
Ajay Kumar Choudhary (surpa) has held in Writ
Petition No. 22921/18 (Arun Meena Vs. State of
M.P.) decided on 04/10/18 as under:-
"4.1 The Apex court in the case of Ajay Kumar
Choudhary Vs Union of India through its
Secretary & another (2015) 7 SCC 291 has
deprecated the practice of an employer keeping
employee under prolonged suspension. The
relevant paras of the said judgment are quoted
below:-
" 1 1 . Suspension, specially preceding the
formulation of charges, is essentially transitory
or temporary in nature, and must perforce be of
short duration. If it is for an indeterminate
period or if its renewal is not based on sound
reasoning contemporaneously available on the
record, this would render it punitive in nature.
Departmental/disciplinary proceedings
invariably commence with delay, are plagued
with procrastination prior and post the drawing
up of the Memorandum of Charges, and
eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated
renewal thereof, have regrettably become the
norm and not the exception that they ought to be.
The suspended person suffering the ignominy of
insinuations, the
s c o r n of society and the derision of his
Department, has to endure this excruciation even
before he is formally charged with some
misdemeanour, indiscretion or offence. His
torment is his knowledge that if and when
charged, it will inexorably take an inordinate
time for the inquisition or inquiry to come to its
culmination, that is to determine his innocence
or iniquity. Much too often this has now become
an accompaniment to retirement. Indubitably the
sophist will nimbly counter that our Constitution
does not explicitly guarantee either the right to a
speedy trial even to the incarcerated, or assume
the presumption of innocence to the accused. But
we must remember that both these factors are
legal ground norms, are inextricable tenets of
common law jurisprudence, antedating even the
Magna Carta of 1215, which assures that - "We
will sell to no man, we will not deny or defer to
any man either justice or right." In similar vein
the Sixth Amendment to the Constitution of the
United States of America guarantees that in all
criminal prosecutions the accused shall enjoy
the right to a speedy and public trial.
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
a nd 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
t i me 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.
4.2 The Division Bench of this court in the case of
Pratipal Singh Gurjar Vs. State of M.P. & others in
WP 7247/16 decided on 17/10/2016 has taken a
similar view.
4.3 It is expected of the respondents-State in terms
of Executive Instructions issued on the subject
from time to time that every suspension which
continues for long is required to be reviewed to
assess it's justifiability of further continuance with
simultaneous application of mind to the aspect of
enhancement of subsistence allowance. Such
periodical application of mind ought to be in
w riting available on record of the competent
authority to be produced when called upon to do
so by court testing it's legality and propriety.
4.4 If the disciplinary proceedings have not yet
undertaken the exercise of periodical review of
further continuance of suspension then the situation
needs immediate attention of the competent
authority.
4.5 Admittedly, suspension is not a penalty but it
entails adverse consequences which are no less
painful than penalty. Suspension besides being
disadvantageous to the employee is also against
the interest of the employer and public at large
since subsistence allowance is paid to the
suspended employee without taking any work from
him."
I t is pertinent to mention here that gravity of
misconduct alleged against the appellant has no
relationship with the duty cast upon the competent
authority to carry out periodical review of
suspension, to assess the justifiability of its further
continuance. In view of above, present writ appeal
stands disposed of with the following directions:-
(1) The impugned order passed in W.P.
No.26644/2019 on 07.01.2020 is set-aside.
( 2 ) The Competent Authority is directed to
periodically consider the justification for further
continuance of appellant's suspension.
(3) The competent authority/committee is directed to
carry out periodical review under the Executive
Instructions to ascertain:-
(a) Whether further continuance of suspension is any
more justified?
( b ) Whether suspension can be revoked pending
DE/criminal prosecution by posting appellant at a
place away from the place where crime/misconduct
is alleged to be committed and assigning the
petitioner with non-sensitive assignment ?
(c) Whether quantum of subsistence allowance needs
to be enhanced ?
( 4 ) The above said exercise in clause (i) be
completed by the competent authority/committee
within a period of 30 (Thirty) days from the date of
communication of this order and pass a speaking
order on every review and communicate the same to
the appellant."
It is further submitted that the petitioner has filed several representation to
the concerned authority, however, the same has not been decided yet. He prays
for direction to the authority to decide the representation submitted by him.
Learned counsel for the respondents/State has no objection to such
innocuous prayer made by the petitioner.
Accordingly, petition stands disposed of with the direction to the
petitioner to submit fresh detailed representation/application before the
concerned authority, who in turn shall decide the same by speaking order within
a period of six weeks from the date of receipt of certified copy of the order
passed today. Outcome of the representation be communicated to the
petitioner.
With the aforesaid direction, this petition stands disposed of.
CC as per rules/directions.
(MILIND RAMESH PHADKE)
JUDGE
neetu
