Rajasthan High Court - Jodhpur

Laxman Panwar vs The State Of Rajasthan on 21 September, 2022

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15917/2021 Laxman Panwar S/o Poosa Ram, Aged About 55 Years, Resident Of 10-A, Pal Road, Sardarpura, Near Panwar Dairy Farm, Jodhpur, District Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary, Department Of Urban Development, Government Of Rajasthan, Jaipur.

2. The Joint Secretary-Iii, Department Of Urban Development, Jaipur.

----Respondents

For Petitioner(s) : Mr. Sushil Solanki. For Respondent(s) : Mr. Piyush Bhandari for Mr. Sunil Beniwal, AAG.

HON'BLE MR. JUSTICE ARUN BHANSALI Order 21/09/2022

In the present matter, advance copy of the petition was

supplied to learned AAG, who had put in appearance on behalf of

the respondents on 16.3.2022. Whereafter, the matter was listed

on 20.4.2022 & on 7.5.2022 when again time was granted to file

the reply.

When the matter came up before the Court on 17.8.2022

and no one was present on behalf of the respondents, it was

noticed that reply was awaited since March, 2022, and last

opportunity was granted.

On 12.9.2022, again none was present for the respondents

and on noticing that on 17.8.2022 last opportunity was granted to

file the reply and that reply has not been filed, the matter was

ordered to be listed on 21.9.2022 and it was ordered that, in case,

(2 of 6) [CW-15917/2021]

by then reply is not filed, the matter shall proceed without the

reply of the respondents.

Today again, learned counsel for the respondents prays for

time to file the reply.

Learned counsel for the petitioner has serious objection to

that.

It is submitted that the petitioner is under suspension since

18.5.2017, the petitioner had earlier approached this Court by

filing SBCWP No.2399/2019, which came to be decided on

1.9.2021, wherein, the respondents were directed to decide the

representation made by the petitioner in light of judgment in the

case of Manvendra Singh v. State of Rajasthan & Ors.: SBCWP

No.4276/2018, decided on 21.12.2018 at Jaipur Bench.

Pursuant thereto, the order impugned dated 4.10.2021

(Annex.7) has been passed, wherein, after noticing the sequence

of events, it has been observed by the authority as under:-

"izLrqr izdj.k esa Jh y{e.k iaokj ds fo:) ntZ vijk/k la[;k [email protected] esa pkyku is"k ugha fd;k x;k gSA dkfeZd foHkkx ds ifji= fnukad 07-07-2010 ,oa uxjh; fodkl foHkkx ds vkns"k fnukad 25-06-2012 }kjk vkijkf/kd izdj.kksa esa yksd lsodksa ds fuyEcu ls cgkyh ds laca/k esa iqujkoyksdu gsrq lEcfU/kr dkfeZd ds fuyEcu ds 3 o'kZ ,oa pkyku izLrqr dj fn;s tkus ds 1 o'kZ i"pkr~ iqujkoyksdu ds funsZ"k iznku fd;s gSA leLr rF;ksa ij fopkj foe"kZ djus ds mijkUr Jh y{e.k iaokj rRdkyhu v/kh{k.k vfHk;Urk dks fuyEcu ls cgky fd;k tkuk mfpr ugha ik;s tkus ds dkj.k Jh iaokj dks fuyEcu ls cgky ugha fd;s tkus dk fu.kZ; fy;k tkrk gSA"

From perusal of the order dated 4.10.2021, It would be

observed that the authority by referring to the Circulars dated

(3 of 6) [CW-15917/2021]

7.7.2010 and 25.6.2012, without adding anything further, has

rejected the representation made by the petitioner.

This Court in the case of Manvendra Singh (supra), had inter

alia specifically observed as under:-

"13. Technically in backdrop thereto, if we examine the circulars issued by the department, it has uniformly placed all the Government servants in such a situation where for no good reason, if a person has been suspended and even in the cases where allegations are under Section 7 of the PC Act and not a case where person has been alleged to have received bribe, the person has to wait for three years till his case can be taken up or made or one year after the charge-sheet is filed for seeking revocation.

14. As noticed in the aforesaid judgments, it is a settled law that suspension cannot be used as a tool for punishing a person. It is not a punitive action at all. However, its ramifications which affect the moral of the concerned individual servant, his status in the society is also seriously affected. There is no time limitation for disposal of the criminal case after the charge sheet is filed. In a criminal case the yardstick adopted by the State Government for examining revocation of suspension only after one year does not seem to have any basis. The circular issued by the State government dated 07.07.2010 and 12.01.2011 so far as it lays down the limitation to examine the revocation of suspension order after a period of three years from the date of suspension and after a period of one year from the date the charge sheet having been filed in hurry impinging on the independent power available to the disciplinary authority as well as to the appellate authority under the Rules of 1958 and to that extent the circulars deserve to be ignored by considering the application seeking clarification under Section 13(5) of the CCA Rules of 1958 or while considering an appeal under Rule 22 of the Rules of 1958.

15. The disciplinary authority/appellate authority has to consider independently the facts and circumstances, nature of offence alleged, circumstances in a given case

(4 of 6) [CW-15917/2021]

and also whether keeping the person under suspension would be necessary for the purpose of continuance of the case. In other words, if the concerned individual is likely to affect the departmental proceedings or the criminal case pending before the authority or the Court by influencing the witnesses, then the suspension may be continued, otherwise the departmental authorities ought to have taken into consideration that 50% / 75% of the salary is being paid to a suspended employee by way of subsistence allowance without taking any work from him. Thus, the concerned person is receiving amount without work. There is other aspect if the concerned authorities are of the view that such a person on account of his alleged misconduct departmental or criminal, is likely to affect the atmosphere of the Officer where he is posted, a decision can always be taken to post the said individual at a different place or transfer him to some other place so that he cannot in any manner disturb or affect the working at other place. Such individuals against whom departmental action is being sought to be taken and are reinstated ought not to be placed in sensitive posting place. They ought to be given work wherein there is no direct public involvement and they should continue to work at such place till a verdict is given by competent Court deciding the criminal case or in the departmental enquiry."

Further, in the case of Om Prakash Pandiya v. State of

Rajasthan & Anr.: S.B. Civil Writ Petition No.4073/2001, decided

on 4.5.2015, qua similar Circulars, it was observed as under:-

"From a bare look at the language of the circular, it is evident that the circular tends to issue a mandate to the competent authority that, in the three situations stipulated therein, the public servant concerned has to be placed under suspension without fail and the suspension is to be continued till the matter is pending in the court and such public servant is not acquitted. The circular thus, conveys a mandate of almost automatic suspension in the situations stipulated therein.

(5 of 6) [CW-15917/2021]

Rule 13 stipulates only one situation wherein, the suspension is automatic. Such action is prescribed where a government servant is detained in custody whether on a criminal charge or otherwise for a period exceeding 48 hours. Thus, plainly seen, the language of Rule 13 in entirety, does not contemplate automatic suspension of a government servant, save for the situation stipulated in Rule 13(2), which deals with suspension pursuant to custody beyond 48 hours. As the statutory provision does not provide for any automatic suspension upon the employee being trapped red-handed, sanction being granted to prosecute him for the offence under the Prevention of Corruption Act or a criminal case for the offences involving murder, rape, dowry death etc. being registered against him, such a mandate obviously cannot be imposed through an administrative circular The issuance of such a circular would amount to a direct encroachment upon the powers of suspension conferred upon the appropriate authority by the statute i.e. Rule 13 of the CCA Rules. Rule 13 provides that in appropriate situation, where a disciplinary proceeding is contemplated or pending against a government servant or a criminal case is under investigation or pending trial against such government servant, then he may be placed under suspension. Thus, the rule gives a discretion to the appropriate authority, who may in its discretion decide whether or not to place a government servant under suspension. On the other hand, the plain language of the circular imposes a mandate upon the appropriate authority for taking such a decision. Evidently and apparently, the language of the circular runs totally contrary to the letter and spirit of the statutory rule and directly encroaches upon the discretionary power of the appropriate authority."

From the above, it is apparent that the authority, which has

passed the order dated 4.10.2021, has passed the order in a

wholly mechanical manner without even going through the order

(6 of 6) [CW-15917/2021]

in the case of Manvendra Singh (supra) and applying his

independent thought to the circumstances of the case, wherein,

FIR pertains to the year 2014 and the petitioner has been placed

under suspension in the year 2017 and till now the charge-sheet

has not been filed, as to whether such a prolonged suspension

was justified or not.

In that view of the matter, the matter requires consideration.

Admit. Issue notice. As the respondents are already