Chhagan Meghwal vs State Of Rajasthan ...
2023 Latest Caselaw 2358 Raj

Citation : 2023 Latest Caselaw 2358 Raj
Judgement Date : 21 March, 2023

Rajasthan High Court - Jodhpur

Chhagan Meghwal vs State Of Rajasthan ... on 21 March, 2023

Bench: Dinesh Mehta

[2023/RJJD/007046]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 929/2021

Chhagan Meghwal S/o Late Shri Ram Lal Meghwal, Aged About 55 Years, Resident Of Village Khivada, Tehsil-Desuri, District-Pali (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through The Transport Commissioner Cum Secretary, Transport Department, Parivahan Bhawan, Sahkar Marg, Jaipur (Rajasthan).

2. The Deputy Transport Commissioner (Administration), Transport Department, Parivahan Bhawan, Sahkar Marg, Jaipur (Rajasthan).

                                                                              ----Respondents


For Petitioner(s)                  :     Mr. Govind Suthar
                                         Mr. Aniket Tater for Mr. C.S. Kotwani
For Respondent(s)                  :     Mr. Sudhir Tak, AAG with Mr. Saransh
                                         Vij



                             JUSTICE DINESH MEHTA

                                              Order

21/03/2023

1. The instant writ petition preferred under Article 226 of the

Constitution of India lays challenge to the order dated

25.11.2020, passed by the Deputy Transport Commissioner

(Administration), whereby petitioner has been placed under

suspension on account of he being remained under judicial

custody.

2. The facts narrated in a nutshell are that the petitioner was

caught red handed, while accepting bribe of Rs.10,690/-, by the

Anti Corruption Bureau on 12.11.2020.

(D.B. SAW/249/2021 has been filed in this matter. Please refer the same for further orders)

[2023/RJJD/007046] (2 of 5) [CW-929/2021]

3. The petitioner remained behind the bars up to 21.11.2020

until he was released on bail.

4. The respondent-State being aware of the factum of

petitioner having remained behind bars invoked provisions of Rule

13(2) of the Rajasthan Civil Services (Classification, Control and

Appeal) Rules, 1958 (hereinafter referred to as "the Rules of

1958") and placed the petitioner under suspension with effect

from 12.11.2020, the date when the petitioner was apprehended.

5. On 18.02.2021, this Court, considering petitioner's

arguments that retrospective suspension is illegal in light of the

judgment dated 30.09.2009, rendered by this Court in Samrath

Singh Vs. State of Rajasthan & Anr. : S.B. Civil Writ Petition

No.8249/2007, passed an interim order. The relevant part of the

interim order reads thus:-

"13. But then, apparently, illegality lies in retrospectivity of the suspension. For this irregularity of giving effect to the suspension from a date anterior to the order, the suspension per-se cannot be stayed and rigours of Rule 13(2) cannot be given a go bye. Hence, effect and operation of the impugned order dated 25.11.2020, to the extent it has been made retrospective, is stayed in the meantime. In other words, the petitioner shall be deemed to have been placed under suspension w.e.f. 25.11.2020, subject to final outcome of the writ petition."

6. Mr. Sudhir Tak, learned Additional Advocate General

appearing for the respondent-State highlighted that even going by

the reasoning and ratio given in Samrath Singh's case (supra), the

(D.B. SAW/249/2021 has been filed in this matter. Please refer the same for further orders)

[2023/RJJD/007046] (3 of 5) [CW-929/2021]

petitioner is not entitled for any relief and his suspension with

effect from 12.11.2020, cannot be faulted with.

7. Learned Additional Advocate General has produced before

the Court a copy of the letter dated 02.12.2020, written by the

petitioner, whereby he gave joining. The same is taken on record.

8. Heard learned counsel for the parties. Perused the material

available on record and the applicable law, including the judgment

of this Court rendered in the case of Samrath Singh (supra).

9. The striking feature of the present case is that the petitioner

was apprehended by the Anti Corruption Bureau on 12.11.2020,

whereafter he remained behind the bars until 21.11.2020, when

the High Court enlarged him on bail.

10. The petitioner gave his joining on 02.12.2020 and much

before such date, he had already been placed under suspension

on 25.11.2020 itself.

11. As a result of the chronological events, the petitioner did not

join duties for the period between 12.11.2020 to 25.11.2020 and

he reported on duties only on 02.12.2020.

12. Such being the position, the petitioner remained

absent/unavailable to discharge his duties from 12.11.2020 till

02.12.2020.

13. Rule 13(2) of the Rules of 1958 reads thus:-

"13. Suspension.-

(2) A Government Servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Authority competent to place a Government Servant under

(D.B. SAW/249/2021 has been filed in this matter. Please refer the same for further orders)

[2023/RJJD/007046] (4 of 5) [CW-929/2021]

suspension under sub-rule (1) and shall remain under suspension until further orders."

14. A simple reading of the above quoted Rule shows that the

Rule creates a deeming fiction that in the event of an employee

remaining behind bars for 48 hours, he shall be deemed to have

been suspended.

15. As a matter of fact the order dated 25.11.2020 is a

declaration of petitioner having remained behind bars and legal

consequence of the deeming fiction given under Sub-Rule (2) of

Rule 13 of the Rules of 1958.

16. A careful reading of the judgment of Samrath Singh (supra),

particularly the following paras, leaves no room for ambiguity that

a suspension order cannot be given a retrospective effect in case

the employee has joined the services.

"From the averments made in reply to the writ petition it also appears that the respondents simply acted upon the circular dated 11.10.2007 and placed the petitioner under suspension. It also appears that the order impugned was passed with retrospective effect by treating the petitioner under suspension from the date he was arrested by the Anti Corruption Bureau. As a matter of fact the deeming provision under Rule 13(2) of the Rules of 1958 is having no role in present case as the petitioner after getting released from judicial custody was permitted to resume the duties. The work done by the petitioner while holding the post could not be undone by giving retrospective effect to the suspension. Beside that, no order placing the petitioner under suspension was passed by the competent authority when the petitioner was in

(D.B. SAW/249/2021 has been filed in this matter. Please refer the same for further orders)

[2023/RJJD/007046] (5 of 5) [CW-929/2021]

judicial custody or immediately after his release and before resuming the duties. In such circumstances, the deeming provision as relied upon by the respondents is having no consequence."

17. In the instant case since, the petitioner has reported on

02.12.2020, after passing order of the suspension it cannot be

said that the petitioner has been placed under suspension illegally

and with retrospective effect.

18. The judgment of Samrath Singh's case is based on the

principles that the work which an employee has done or

undertaken cannot be wiped out. As against this, in the instant

case, the petitioner has not even reported in the office much less

doing work. Hence the petitioner cannot claim parity on the basis

of judgment in the case of Samrath Singh (supra).