State Of Rajasthan vs Omprakash
2021 Latest Caselaw 12973 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                   D.B. Spl. Appl. Writ No. 517/2020

1.     State   of    Rajasthan,        Through         Joint     Director,   School
       Education, Bikaner Division, Bikaner (Raj.).
2.     The District Education Officer, Head Office, Secondary
       Education, Sri Ganganagar.
                                                                    ----Appellants
                                    Versus
Omprakash S/o Sh. Sahdev Sharma, Aged About 42 Years, R/o
Village Mirzewala, Tehsil And District Sri Ganganagar.
                                                                  ----Respondent


For Appellant(s)          :     Mr. Pankaj Sharma, AAAG with Mr.
                                Deepak Chandak
For Respondent(s)         :     Dr. RDSS Kharlia



           HON'BLE MR. JUSTICE SANGEET LODHA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                 Judgment

19th August, 2021

Per Hon'ble Mr. Sangeet Lodha,J.

1. This intra-Court appeal is directed against the order dated

07.01.2020 passed by the learned Single Judge, granting interim

relief in favour of the respondent-writ petitioner and the order

dated 03.11.2020, rejecting the application preferred by the

appellants under Article 226(3) of the Constitution of India,

seeking vacation of interim order dated 07.01.2020.

2. The facts relevant are that the respondent holding the post

of Physical Teacher was posted in the office of Chief Block

Education Officer, Sri Ganganagar. He was found indulged in

embezzlement of Rs.37,38,66,055 by withdrawing the money

against 172 fake bills raised for encashment of earned leave of the

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persons, shown to have retired from service. An FIR was

registered against the respondent on 31.07.2018 at Police Station,

Purani Abadi, Sri Ganganagar for offences under Sections 420,

409, 120B IPC. The respondent was arrested and was later sent to

the judicial custody. The respondent was placed under suspension

vide order dated 01.08.2019 with immediate effect and his

headquarter was fixed at Government Senior Secondary School

(Multi Purpose), Sri Ganganagar. However, vide order dated

24.12.2019, the headquarter of the respondent during suspension

was changed from Government Senior Secondary School (Multi

Purpose), Sri Ganganagar to Government Senior School, 2 RKM,

Kundal, Gharsana, District Sri Ganganagar. The legality of the

order issued as aforesaid has been challenged by the respondent

by way of writ petition before this Court.

3. The learned Single Judge, while issuing notices of the writ

petition to the appellant herein, vide order dated 07.01.2020

passed an interim order in favour of the writ petitioner in the

following terms:

"Meanwhile, effect and operation of the order dated 24.12.2019, the extent of changing petitioner's headquarter from Govt. Senior Secondary School (Multi Purpose), Sriganganagar to Govt. Senior Secondary, 2 RKM Kundal, Gharsana, Sriganganagar, shall remain stayed."

4. In response to the notice served, reply to the writ petition

was filed on behalf of the appellants herein, on 20.03.2020. The

appellants also filed an application under Article 226(3) of the

Constitution for vacating the interim order.

5. On 14.08.2020, learned Additional Advocate General

appearing for the appellants submitted before the Court that as

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per the information received by him from concerned officer, the

writ petitioner is trying to influence the witnesses including the

probable witnesses, hence, the interim order passed by the Court

needs to be vacated/modified. The appellants were granted time

to file affidavit to this effect. Accordingly, the additional affidavit

was filed on behalf of the appellants.

6. After due consideration, the application preferred by the

appellants under Article 226(3) of the Constitution has been

dismissed and interim order stands confirmed by the learned

Single Judge by order under appeal, with the observations as

under:

"12. Having regard to the facts and circumstances of the case, particularly the manner in which petitioner's headquarter has been changed and taking into consideration the desperation of respondents to justify the impugned order by way of supplementing the self serving letters, this Court has reason to believe that all is not well at respondents' end. Hence, without observing much on merit, lest it would prejudice the case of either of the parties, this Court is of the prima facie opinion that there was no compelling reason that could have necessitated the change of headquarter from Government Senior Secondary School (Multi Purpose), Sriganganagar to Government Senior Secondary, 2 RKM Kundal, Gharsana, Sriganganagar.

13. True it is, that while placing an incumbent under suspension the State can change the headquarter. But one cannot lose sight of the fact that while placing the petitioner under suspension on 01.08.2019 the petitioner's headquarter had been changed to Government Senior Secondary School (Multi Purpose), Sriganganagar, but no palatable or justifiable reason has come forth for which petitioner's headquarter has been changed to Government Senior Secondary, 2 RKM Kundal, Gharsana, Sriganganagar.

14. A lame order cannot be made to stand by way of subsequent affidavit or material. Respondents' attempt to justify the order dated 24.12.2019 by way of additional affidavit hardly cuts any ice."

7. Learned Additional Advocate General appearing for the State

contended that none of the grounds taken in the writ petition were

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substantiated inasmuch as, the statement regarding serious liver

ailment was absolutely false; no case of malice was made out and

thus, the learned Single Judge has seriously erred in granting the

interim order in favour of the respondent. The stand taken by the

appellants in the reply to the writ petition and the additional

affidavit filed was not even controverted by the respondent by

filing a counter thereto and thus, the inference drawn by the

learned Single Judge while passing the order impugned is not

justified. Learned AAG urged that the respondent was found

indulged in embezzlement of Rs.37.38 crores and therefore, on

the facts and in the circumstances of the case, the respondent

could not have been continued at the same place. It is submitted

that so as to ensure fair investigation in the criminal case and that

the disciplinary proceedings could proceed unhampered, it was

absolutely necessary to shift the headquarter of the respondent.

Learned AAG submitted that in the additional affidavit filed, it was

specifically pleaded by the appellants that the respondent has

attempted to influence the probable witnesses and the material

substantiating the allegations, was also placed on record, which

were not controverted by the respondent by filing any counter

thereto and thus, ignoring the specific stand of the State, the

observations made by the learned Single Judge that there was no

compelling reasons necessitating the change of headquarter of the

respondent, were not warranted. Relying upon decision of the

Supreme Court in U.P.Rajya Krishi Utpadan Mandi Parishad & Ors.

vs. Sanjiv Rajan: 1993 Supp (3) SCC 483 and Bench decision of

this Court in Gamer Lal Regar vs. The State of Rajasthan & Ors.

(D.B.Spl. Appl. Writ No.1154/2019, decided on 20.01.2020),

(5 of 7) [SAW-517/2020]

learned AAG submitted that when there are allegations of

embezzlement of money, the delinquent employee has to be kept

away from the establishment till the charges are finally disposed

of and thus, in such matters, change of headquarter should not

ordinarily be interfered with by this Court in exercise of its extra

ordinary jurisdiction under Article 226 of the Constitution. Learned

AAG also relied upon Bench decision in Prabhatbhai Kamabhai

Miatra vs. District Superintendent of Police: (1990) 2 GLR 983 of

Gujarat High Court and in Jagdish Narayan Tiwari vs. State of M.P.

& Ors. (W.P. No.7719/2015, decided on 10.9.2015) of Madhya

Pradesh Court. Relying upon the decision of the Supreme Court in

Dalip Singh vs. State of Uttar Pradesh & Ors.: (2010) 2 SCC 114,

learned AAG contended that the respondent who has approached

the Court with tainted hands and had taken absolutely false pleas,

was not entitled to any indulgence by this Court in exercise of its

extra ordinary jurisdiction.

8. On the other hand, counsel appearing for the respondent

while supporting the order impugned passed by the learned Single

Judge, submitted that the documents filed by the appellants

alongwith the additional affidavit before the learned Single Judge

were created documents and therefore, the learned Single Judge

has rightly refused to rely upon the same and the conclusion

drawn that there was no compelling reason that could have

necessitated the change of headquarter of the respondent, is

absolutely justified.

9. We have considered the rival submissions and perused the

material on record.

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10. Undoubtedly, if a Government servant is found indulged in

the activity of embezzlement of public money or illegal

gratification, he can be placed under suspension and his

headquarter also can be changed by the Government. Even where

an employee is placed under suspension but his headquarter is not

changed, if he is later found indulged in interfering with the course

of inquiry or tampering with the evidence of witnesses, it may

become necessary for the Government to change his headquarter.

The change of headquarter of an employee during the pendency of

the disciplinary proceedings for justifiable reason is well within the

authority of State Government and ordinarily, the same cannot be

interfered with by this Court.

11. It is true that the material placed on record by the appellants

by way of additional affidavit was not controverted by the

respondent by filing a counter thereto. But the fact remains that

the respondent was placed under suspension vide order dated

01.08.2019 and thereafter, his headquarter was changed after a

lapse of more than four months. The respondent has already been

served with the charge sheet vide memorandum of charges dated

17.02.2020 and thus, the disciplinary proceedings has already

commenced against him. The interim order staying the change of

headquarter was passed by the learned Single Judge on

07.01.2020, which was confirmed vide order under appeal dated

03.11.2020. It is noticed that while staying the change of

headquarter, the learned Single Judge has specifically directed the

respondent to cooperate in inquiry and not to threaten/influence

the witnesses or tamper with the evidence.

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12. Thus, on the facts and in the circumstances noticed above,

we are not inclined to interfere with the interim order passed by

the learned Single Judge exercising his judicial discretion, at this

stage. The appellants have already filed their reply to the writ

petition and therefore, we would request the learned Single Judge

to finally hear the writ petition and dispose of the same

expeditiously. If the writ petition remains pending for a long and

the respondent does not cooperate with the inquiry or makes

attempt to influence the witnesses or to tamper with the evidence,

the appellants shall be at liberty to make fresh application before

the learned Single Judge for vacating the interim order.

13. The special appeal stands disposed of with the observations

as above.

                                   (MANOJ KUMAR GARG),J                                     (SANGEET LODHA),J
                                    112-Aditya/-









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