Avinash Bharti vs The Rajasthan Marudhara Gramin ...
2023 Latest Caselaw 779 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 19104/2022

Avinash Bharti S/o Shri Suman Pal Singh, Aged About 33 Years, House No. 6/6 Bagdara Colony, Village And Post Lokarwas, Tehsil Girba, District Udaipur. (Hall - Office Scale - II ID No. 5640 (Under Suspension), Attached To Rajasthan Marudhara Gramin Bank, R.B.O. Office, Jalore (Rajasthan).

----Petitioner Versus

1. The Rajasthan Marudhara Gramin Bank, Through Its Chairman, Head Office - Tulsi Tower, 9 th 'B' Road, Sardarpura, Jodhpur, Rajasthan.

2. The General Manager (Disciplinary Authority), Rajasthan Marudhara Gramin Bank (RMGB), Head Office - Tulsi Tower, 9th 'b' Road, Sardarpura, Jodhpur, Rajasthan.

3. The General Manager (Personnel And Hr), Rajasthan Marudhara Gramin Bank (RMGB), Head Office - Tulsi Tower, 9th 'B' Road, Sardarpura, Jodhpur, Rajasthan.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Satya Prakash Sharma
For Respondent(s)        :     Mr. Anil Bhandari



                    JUSTICE DINESH MEHTA

                                    Order

20/01/2023

1. The petitioner has approached this Court, challenging

the order dated 2.12.2022 (Annexure-1), whereby, he has been

placed under suspension.

2. Mr. Sharma, leaned counsel for the petitioner argued

that the order impunged is illegal and vindictive which is evidence

from the fact that the petitioner has been suspended simply

because on 21.11.2022 he came in a T-shirt, which according to

the respondent-Bank was not according to the prescribed dress

(2 of 8) [CW-19104/2022]

code. He submitted that even after passing of 45 days, the

respondents have not even issued charge-sheet to the petitioner,

which is indicative of the fact that the suspension is being used as

a tool of punishment and harassment.

3. Mr. Bhandari, learned counsel for the respondent-Bank,

on the other hand, argued that contemplation of inquiry is not a

condition precedent for placing an employee under suspension. He

submitted that relevant Regulations 44 and 46 of the Rajasthan

Marudhara Gramin Bank (Officers and Employees) Service

Regulations, 2010 (hereinafter referred to as 'the Regulations of

2010') do not require contemplation of inquiry as a condition

precedent, hence, there is no substance in the petition.

4. In support of his contention, learned counsel relied

upon a recent judgment of co-ordinate Bench of this Court dated

8.12.2022 in the case of Kamlesh Kumar Meena Vs. The

Rajasthan Marudhara Gramin Bank & Ors. (S.B. Civil Writ

Petition No. 15204/2022).

5. Mr. Bhandari further submitted that the petitioner is

having alternative remedy of appeal under Regulation 49 of the

Regulations of 2010 and, therefore, the writ petition is not

maintainable.

6. Learned counsel for the respondent Bank navigated the

Court through various documents viz. Exhibits-R/6 to R/13 to

show that the petitioner has always been disobedient and has

failed to adhere to the dress code, that has been prescribed by the

Bank by way of circulars from time to time.

7. In this afore backdrop, leaned counsel submitted that

as the petitioner has defied the orders of higher officials and has

reported late in the Bank on various occasions, he has breached

(3 of 8) [CW-19104/2022]

Regulation 18 of the Regulations of 2010, for which, his

suspension is justified.

8. Learned counsel reiterated that in the matter of

suspension when there is a remedy of appeal, High Court should

not interfere and for such purpose he relied upon the judgment of

Hon'ble the Supreme Court in the case S.A. Khan vs. State of

Haryana & Ors. Reported in (1993) 2 SCC 327.

9. Having heard learned counsel for the parties and after

perusing the material available on record, this Court is of prima

facie view that the petitioner is being harassed unnecessarily if not

vindictively. The reasons for such opinion are not far to seek. The

petitioner has been placed under suspension on 2.12.2022, for

which the trigger point appears to be communication dated

30.11.2022, which is based upon CCTV report dated 21.11.2022

(R/12) and corresponding communication dated 30.11.2022

(R/13).

10. A perusal of above referred documents reveals that the

petitioner reported on duty in T-shirt and sports shoes and was

not having Bank ID Card on 11.10.2022, 9.11.2022, 15.11.2022

and 18.11.2022. All other documents (R/6, R/7, R/8, R/9, R10)

which have been relied upon by the learned counsel for the

respondent are of the period upto April, 2022, which in the opinion

of this Court cannot be made a basis for which the petitioner has

been placed under suspension, given that the petitioner has

already been suspended on 04.05.2022 and served with a charge-

sheet.

11. Had those earlier incidents constituted some

misconduct, the respondent Bank was not precluded from

initiating disciplinary proceedings against the petitioner. That

(4 of 8) [CW-19104/2022]

apart, the petitioner was earlier also suspended on 04.05.2022

and served with the charge-sheet where after the suspension was

revoked on 14.07.2022. It is noteworthy that the charges framed

in the disciplinary inquiry overlap with the communications and

evidence which the Bank has placed on record alongwith the reply.

That apart, in normal circumstances once the charge-sheet has

been served upon the petitioner on 18.08.2022, all the purported

misconducted upto the date of first suspension are to be treated

as ignored/condoned. Hence, Bank's reliance over petitioner's

conduct prior to July, 2022 in the instant mater is nothing but an

attempt to prejudice the mind of the Court.

12. True it is, that the petitioner cannot be expected to

come in T-shirt and sports shoes, more particularly when he is

holding the post of Branch Manager. But then, in the opinion of

this Court, such action of his cannot entail any major punishment.

13. It is settled position of law that suspension cannot be

used as a cloak or subterfuge to punishment. According to this

Court, unless the allegation or preliminary finding against an

employee is of grave nature for which he may call for major

punishment and/or there is likelihood of influencing the inquiry or

tampering with the record, an incumbent cannot be placed under

suspension, simply because it is lawful so to do.

14. It is rather surprising that since 2.12.2022, the

respondent - Bank has not been able to apprise the Court that for

what misconduct Bank proposes to proceed against the petitioner.

The preparation of charge-sheet may take some time, but till

today what respondent Bank has been able to showcase is, the

documents that have been placed alongwith the reply. Having

waded through these documents, this Court is of firm view that by

(5 of 8) [CW-19104/2022]

any stretch of imagination the same do not constitute a serious

misconduct.

15. This Court is not much persuaded with preliminary

objection about maintainability of the writ petition in the face of

provision of appeal, so vociferously put forth by Mr. Bhandari.

16. During arguments Mr. Bhandari had invited court's

attention towards Handbook with an assertion that same is having

a binding force.

17. Para-2 of the Chapter-XII of the Handbook is relevant,

according to which an employee can be placed under suspension

for his misconduct. Relevant para 2 of Chapter-XII reads thus:

"2. Grounds For Suspension:

                   2.1     Generally      the    question      of    placing     an
                   officer/employee          under      suspension         for   his

misconduct may arise on the basis of any of the following:-

(i) preliminary investigation,

(ii) evidence collected during the detailed internal investigation,

(iii) facts revealed in the FIR registered by Police/ CBI,

(iv) final report of Police/CBI"

18. A simple look at Para 2, "Grounds For Suspension"

shows that an employee can be placed under suspension for his

misconduct on the basis of (i) preliminary investigation; or (ii)

evidence collected during the detailed internal investigation. Other

two contingencies are obviously, not applicable in the case in

hands.

19. In the present case, even if the report dated

30.11.2022 (Communication R/13) is taken to be a preliminary

investigation, the same firstly does not constitute any misconduct

(6 of 8) [CW-19104/2022]

and such trivial non-compliance may be taken as violation of

Regulation 18, but a major penalty/punishment cannot be

awarded for the same.

20. The report dated 21.11.2022 and 30.11.2022 are based

on CCTV footage, and the same is more or less admitted. The

Bank has not been able to show as to how the petitioner will

temper with the record or influence the enquiry (if any). Hence,

the petitioner's suspension on the basis of purported preliminary

investigation on 30.11.2022 was clearly unwarranted and its

continuation till conclusion of the enquiry (if any) is violative of

petitioner's fundamental rights, as he will have to remain on

subsistence allowance (1/3 of this salary). That apart, even paying

him subsistence allowance without taking any work is also

unnecessary burden on the Bank.

21. The petitioner has been placed under suspension on

2.12.2022 and despite oral observation made by this Court on the

previous hearing (02.01.2023) the competent authority has not

revoked the suspension and has kept the petitioner under

suspension for unlimited period, citing a message posted by some

of the employees of the Bank on Whatsapp group (not by the

petitioner). Such being the position petitioner's apprehension that

the appeal would be a futility cannot be said to be misplaced.

22. From the additional submissions, which have been filed

by the respondent Bank on 18.1.2023, Mr. Bhandari has submitted

that show-cause notice has already been issued to the petitioner

on 5.1.2023 and on receipt of the same, the respondent Bank

shall proceed in accordance with law.

23. A perusal of the show-cause notice dated 5.1.2023

shows that allegations against the petitioner are essentially of not

(7 of 8) [CW-19104/2022]

maintaining the proper dress code and reporting in the Bank with

some delay. Petitioner is yet to file reply / response to this show-

cause notice. A perusal of the said show-cause notice does not

show that any serious misconduct to have been committed by the

petitioner for which his suspension is necessary.

24. The judgment in the case of Kamlesh Kumar Meena

(supra) relied by Mr. Bhandari, learned counsel for the

respondent-Bank is based on its own facts and clearly

distinguishable. Firstly, the petitioner therein was placed under

suspension in wake of serious allegation of fabricating documents

for the purpose of getting loan sanctioned from the higher

authorities and further because para 2 of the Handbook (noticed in

Para 17 above) was not brought to the notice of the Court. In the

case of Kamlesh Kumar Meena (supra), the Court proceeded in the

light of Regulation 42 and 46 of the Regulations of 2010, which

only provide for suspension regardless of the conditions in which

power to suspend can be exercised.

25. The judgment of Hon'ble the Supreme Court in the case

of S.A. Khan (supra) is also clearly distinguishable on facts.

26. This Court is of the opinion that placing/keeping the

petitioner under suspension deserves to be stayed during the

pendency of the present writ petition, because the matter requires

detailed hearing, particularly for the purpose of dealing with the

statutory provisions, the judgment in the case of Kamlesh Kumar

Meena (supra) and the judgment of Hon'ble the Supreme Court in

the case of S.A. Khan (supra) and other law on the subject.

27. Hence, issue notice. Issue notice of the stay application

also.

(8 of 8) [CW-19104/2022]

28. Mr. Anil Bhandari, learned counsel for the respondents

accepts notice.

29. For what has been stated herein above, the impugned

order dated 2.12.2022 placing the petitioner under suspension

shall remain stayed during the pendency of the petition.

30. As a note of caution, this Court would like to observe

that though suspension has been stayed but it would be required

of the petitioner to adhere to the dress code prescribed by the

bank and refrain from insubordination, for which he is otherwise

being proceeded with.

31. Stay petition stands disposed of.

List this case for admission in the second week of April,

2023.

(DINESH MEHTA),J 16-Mak/-

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