Rajasthan High Court - Jodhpur

Prakash Mali vs State Of Rajasthan (2024:Rj-Jd:43433) on 22 October, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:43433]

             HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                              JODHPUR
                           S.B. Civil Writ Petition No. 14688/2024

    Prakash Mali S/o Sh. Manak Ram Mali, Aged About 41 Years, R/o
    Malpani Pada, Jaisalmer. At Present AME (Assistant Mining
    Engineer) (Vigilance), Jaisalmer.
                                                                                          ----Petitioner
                                                     Versus
    1.           State Of Rajasthan, Through Joint Secretary, Mines And
                 Petroleum Department, Secretariat, Jaipur.
    2.           Director, Mines And Geology Department, Udaipur.
    3.           Mining        Engineer,           Mines        And       Geology          Department,
                 Jaisalmer.
                                                                                        ----Respondents


For Petitioner(s)                         :     Mr. C.S. Kotwani
For Respondent(s)                         :     Mr. Mahaveer Bishnoi, AAG
                                                Mr. Harshwardhan



                          HON'BLE MR. JUSTICE FARJAND ALI

Order

22/10/2024

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

of India has been preferred by the petitioner being aggrieved by

the action of the respondent in suspending him without reasonable

and probable cause and same not being in accordance with Rule

13 of The Rajasthan Civil Services (Classification, Control and

Appeal) Rules, 19581. It has also been prayed that the Mines and

Petroleum Department, Secretariat, Jaipur2 has wrongly

mentioned the post of the petitioner to be Mining Engineer

(Vigilance) instead of his original post i.e., Assistant Mining

Engineer3 and therefore the same may also be taken note of. 1 For brevity hereinafter to be referred as "CCA Rules, 1958". 2 For brevity hereinafter to be referred as "respondent department". 3 For brevity hereinafter to be referred as "AME".

[2024:RJ-JD:43433] (2 of 13) [CW-14688/2024]

2. Bereft of elaborated details, the brief facts of the instant writ

petition are as under:-

2.1 The petitioner has been appointed on the post of AME on

30.12.2014 (Annexure 1) and while working on the post of AME in

the office of Mining Engineer, Bundi II was transferred to AME

(Vigilance), Jaisalmer on 22.02.2024 (Annexure 2).

2.2 During the petitioner's tenure at Bundi, an additional charge

of Mining Engineer, Bijolia was assigned to him on 28.02.2024

(Annexure 3). He despite being transferred was not relieved by

the Mining Engineer, Bundi. Eventually, he was relinquished from

the charge on 04.03.2024 (Annexure 4).

2.3 After joining at Jaisalmer, the petitioner was served a show-

cause notice by the Additional Director (Admn.) to which the

petitioner responded within the stipulated time. Subsequently, the

petitioner was served with a charge-sheet under Rule 17 of the

CCA Rules, 1958 on 16.08.2024 (Annexure 5) and on the same

day he was suspended vide order dated 16.08.2024 (Annexure 6).

2.4 The order incorrectly mentioned the petitioner as a Mining

Engineer (Vigilance) while he was holding the post of AME. The

suspension order did not specify any ongoing disciplinary or

criminal proceedings. Further the petitioner's headquarters was

changed from Jaisalmer to Udaipur and therefore, aggrieved by

the above, he preferred a writ petition before this Court

challenging the above action of the respondent.

2.5 On 23.08.2024, the Hon'ble Court allowed the writ petition

filed by the petitioner and quashed the suspension order dated

[2024:RJ-JD:43433] (3 of 13) [CW-14688/2024]

16.08.2024 issued by the respondent department and this order

has invalidated the suspension. Following the court's order, the

suspension order dated 16.08.2024 was set aside and

consequently the petitioner resumed his services and assumed the

position of Assistant Mining Engineer (Vigilance) at Jaisalmer on

28.08.2024. The copy of the order dated 23.08.2024 and

28.08.2024 respectively are annexed with the writ petition

(Annexure 7 and Annexure 8 respectively).

2.6 The department sought an advice from Additional Advocate

General (AAG) on 28.08.2024 (Annexure 9) to which he advised

that the suspension order is invalid as it is not in accordance with

Rule 13 of the CCA Rules, 1958. On 29.08.2024, a new

suspension order was issued by the respondent department where

the post of the petitioner was wrongly mentioned by the

respondent department and he was suspended according to the

Rule 13 (1) (a) of the CCA Rules, 1958 (Annexure 10). On

30.08.2024, a clarification order was issued correcting the

designation error in the previous suspension order (Annexure 11).

3. Learned counsel for the petitioner submits that the actions of

respondents in suspending the petitioner from the post of AME

without providing any reason is illegal and arbitrary. The order

issued on 29.08.2024 stated that disciplinary proceedings under

the CCA Rules, 1958 were being considered against him ( dk;Zokgh

fd;k tkuk fopkjk/khu gSA). As a result of which the petitioner was

suspended with immediate effect under Rule 13 (1) (a) of the CCA

Rules, 1958.

[2024:RJ-JD:43433] (4 of 13) [CW-14688/2024]

3.1 On the very next day i.e., 30.08.2024, a clarifying order was

issued regarding the previous order dated 29.08.2024 where the

post of the petitioner has been corrected from Mining engineer

(Vigilance) to Assistant Mining Engineer (Vigilance). It is not in

accordance to the Rule 13 of the CCA Rules, 1958 as the order

dated 29.08.2024 (Annexure 10) does not reflect any reason to

suspend the petitioner from the post and further it has been

contended that the petitioner's headquarters has been changed

from Jaisalmer to Udaipur.

3.2 It is further argued that respondent department has

committed a grave error of law as well as fact while passing the

impugned order. The counsel for the petitioner further contented

that the incident of his misconduct occurred when he was posted

at Bundi and currently he is posted in Jaisalmer which is a totally

different geographical and administrative jurisdiction and his past

conduct should not be considered to suspend him from his current

posting. He cannot influence or obstruct any investigative process

as he is transferred to a new place, so suspending without giving

any valid reasons appears to be both unwarranted and punitive in

nature rather than preventive or corrective.

3.3 The suspension order states that it is according to the Rule

13 (1) (a) of the CCA Rules, 1958 which provides for suspension

only when a disciplinary proceeding is contemplated or pending

but in this case, this order does not specify that any disciplinary

proceedings were either initiated or currently pending against the

petitioner at the time of issuing the suspension order.

[2024:RJ-JD:43433] (5 of 13) [CW-14688/2024]

3.4 It was further pointed out by the counsel that neither the

charge-sheet was served nor any disciplinary proceeding is

contemplated and no investigation or trial to any criminal offence

is pending against the petitioner. The petitioners approached this

Court with the prayer that the impugned order dated 29.08.2024

(Annexure 10) may be quashed and set aside.

4. Per contra, learned counsel for the respondent's department

vehemently opposed the submissions made by the counsel for the

petitioner.

4.1 He submits that the instant petition is not maintainable and

sustainable as the petitioner has approached this Court directly

while having alternative remedy so also it is urged that it is well

settled principle of law that suspension is not a punishment and

therefore, it cannot be challenged under extra ordinary jurisdiction

of Hon'ble High Court through preferring a writ petition rather he

should have attended the proceedings initiated and pending before

the competent authority of the State in the present matter and

submit his response there and get the matter concluded. If the

conclusion is found against him then he has equally efficacious

statutory remedy to challenge the same before the proper forum

available under the relevant law.

4.2 It is further contended that enquiry has been contemplated

against the petitioner and which is evident from the charge-sheet

dated 05.09.2024 issued to the petitioner (Annexure R/1). The

respondents are competent to issue an order of suspension under

Rule 13 of the CCA Rules, 1958 owing to the fact that some

complaints were there with the respondent department.

[2024:RJ-JD:43433] (6 of 13) [CW-14688/2024]

4.3 It is further submitted by the counsel that Rule 22 of the

CCA Rules, 1958 states Appeal against the order of suspension, so

the petitioner had an alternative remedy available with him and

therefore this writ petition is not maintainable.

4.4 In support of the above submissions, learned counsel

appearing for the petitioner has placed reliance on the judgments

Jagdish Prasad v. State of Rajasthan & Ors. decided on

22.10.2007 in (S.B. Civil Writ Petition No. 5901/2007) and

Pramod Kumar Pathak v. State of Rajasthan & Ors. decided

on 07.11.2008 in (S.B. Civil Writ Petition No. 8324/2008).

5. Heard learned counsel for the petitioner as well as the

learned counsel for the respondents and perused the material

placed on record.

6. After perusing the record and pondering upon the

submissions and materials made available to the Court, prima

facie, it is revealed that the petitioner was initially appointed as a

AME and frequently he was transferred at different places and also

were given different charge at different places. Further, it has

been noticed that the charge-sheet given to him was not relating

to his present place of posting as the allegations levelled in the

charge-sheet are of inquiry under Rule 17 of the CCA Rules, 1958.

The allegations as mentioned in the charge-sheet are regarding

the act which was done in the month of February 2024 at Bijolia

which was his previous place of posting and that also relates to

some variation in the weights of loaded mineral gravel which is

trivial in nature. Nothing concrete has been found against the

petitioner relatable to his present place of posting.

[2024:RJ-JD:43433] (7 of 13) [CW-14688/2024]

7. The order dated 29.08.2024 (Annexure 10) has also been

questioned on the ground that the post of the petitioner was

wrongly mentioned which reflects that due application of mind was

not exercised. The claim of the petitioner is sustainable as the

post of the petitioner working was the post of Assistant Mining

Engineer and not Mining Engineer (Vigilance). It is pertinent to

mention here that the order passed by the respondent department

was passed in a casual manner or in an unscrupulous way that

they did not even checked the post of the employee whom they

are suspending. The way of approach adopted by the respondent

department in committing a grave error needs due diligence and

procedural propriety while issuing the suspension orders.

8. This Court has also examined Rule 13 (1) (a) of CCA Rules,

1958 which allows suspension in two situations where the

disciplinary proceeding is contemplated or pending or where

the case of criminal offence is under investigation or trial.

For ready reference Rule 13 (1) of the CCA Rules, 1958 is

reproduced as under: -

13. Suspension. -

(1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension.

(a) Where a disciplinary proceedings against him is contemplated or is pending, or

(b) Where a case against him in respect of any criminal offence is under investigation or trial:

Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.

[2024:RJ-JD:43433] (8 of 13) [CW-14688/2024]

In this case, no proceeding was under contemplation or

pending against the petitioner when he was ordered to be

suspended and so also no criminal offence was under investigation

or trial and therefore the action of the respondent department is

not fulfilling the requirements needed under Rule 13 (1) (a) of the

CCA Rules, 1958. The petitioner was transferred to Jaisalmer

which is far from his previous place of posting where the alleged

misconduct was done and there is no reasonable possibility that

the petitioner's presence in Jaisalmer can interfere with any

potential inquiry or investigation related to his previous place of

posting.

9. The provision of placing an employee under suspension is

not punitive but preventive. As a precaution that the employee

may not influence/hamper the course of inquiry or temper with

the material related to it; an order under Rule 13 can be passed,

however when the alleged misconduct is of a trivial nature and

that is relatable to his previous place of posting which is around

700 kms away from his present place of posting still passing an

order of suspension seems to be punitive instead of a preventive

one. It cannot be ignored that the alleged inquiry is to be

commenced under Rule 17 of the CCA Rules, 1958 which is

commonly known as less grave then to a proceedings under Rule

16 of the CCA Rules, 1958.

10. I have perused the judgments provided by the counsel for

the petitioner delivered by the co-ordinate bench and Division

bench of this Court in the case of Jodharam Bishnoi v. State of

Rajasthan & Ors. decided on 01.09.2022 in (S.B. Civil Writ

[2024:RJ-JD:43433] (9 of 13) [CW-14688/2024]

Petiiton No. 11696/2022) and in Division bench State of

Rajasthan & Ors. v. Jodharam Bishnoi decided on 13.03.2023

in (D.W. Civil Writ Petition No. 979/2022). It has been

observed by the Court in above matters that the charge-sheet

which was issued to the petitioner was in relation to another

misconduct not relatable to the charge-sheet. For ready reference

the relevant parts of the orders dated 01.09.2022 and 13.03.2023

are reproduced herein below:-

11. The relevant para of the order dated 01.09.2022 is

reproduced herein below:-

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The order impugned dated 29.7.2022 (Annex.6) inter alia reads as under:-

**vkns'k

pwafd Jh tks/kkjke fo'uksbZ] rRdkyhu vk;qDr] uxj ifj"kn] ukxkSj ds gky vk;qDr] uxj ifj"kn] fd'kux<+ ds fo#) ,d foHkkxh; tkap fopkjk/khu gSA

vr% jktLFkku flfoy lsok ¼oxhZdj.k] fu;U=.k ,oa vihy½ fu;e] 1958 ds fu;e 13¼1½ esa iznRr 'kfDr;ksa ds rgr Jh tks/kkjke fo'uksbZ] vk;qDr] uxj ifj"kn] fd'kux<+ dks rqjUr izHkko ls fuyfEcr fd;k tkrk gSA

fuyEcudky esa budk eq[;ky; uxj ifj"kn] tSlyesj esa jgsxk vkSj budks fu;ekuqlkj thou fuokZg HkRrs dk Hkqxrku uxj ifj"kn] fd'kux<+ ls ns; gksxkA**

(emphasis supplied)

A perusal of the order impugned indicates that on account of pending departmental inquiry, which pertained to the period while the petitioner was posted as Commissioner, Municipal Council, Nagaur, exercising powers under Rule 13(1) of the Rules of 1958, the petitioner has been placed under suspension

[2024:RJ-JD:43433] (10 of 13) [CW-14688/2024]

The charge-sheet, which has formed the basis and regarding which the departmental inquiry is pending against the petitioner, was issued under Rule 17 of the Rules of 1958 on 1.10.2021 (Annex.5), as to what prompted the respondents to place the petitioner under suspension after almost 10 months of issuing the charge-sheet to the petitioner and that also when he was working at Kishangarh i.e. not at Nagaur, cannot be deciphered from the response filed by the respondents. It is besides the fact that the petitioner had already responded to the charge-sheet.

The reliance on the purported inquiry report dated 11.3.2021 (Annex.R/2) is of no consequence, inasmuch as, the same has not formed the basis of passing of the order dated 29.7.2022, that also after over 15 months of submission of the report.

The submission made that the suspension of the petitioner was in contemplation of inquiry which culminated into issuing of charge-sheet under Rule 16 of Rules of 1958 on 10.8.2022 (Annex.R/4) is baseless, as noticed hereinbefore, the impugned order of suspension does not talk of 'inquiry in contemplation' and it only referred to 'the pending inquiry'.

In view of the above fact situation, the submission made by learned counsel for the petitioner that the order of suspension dated 29.7.2022 (Annex.6) has been passed only with a view to frustrate the order dated 15.7.2022 passed by this Court staying the petitioner's transfer from Kishangarh to Banswara, appears to be justified.

In view of the above, the action of the respondents in placing the petitioner under suspension by order dated 29.7.2022 (Annex.6) in relation to the pending inquiry pursuant to charge- sheet dated 1.10.2021 (Annex.5), cannot be sustained.

Consequently, the petition filed by the petitioner is allowed. The order dated 29.7.2022 (Annex.6) is quashed and set aside.

12. The relevant para of the order dated 13.03.2023 is

reproduced herein below:-

We find that while the respondent was posted at Nagaur, a charge sheet was issued to him on 01.10.2021. However, at that time, the disciplinary authority did not consider it appropriate to place the respondent under

[2024:RJ-JD:43433] (11 of 13) [CW-14688/2024]

suspension. Thereafter, the respondent was transferred from Nagaur. However, while he was posted and working at Kishangarh, the impugned order came to be passed on 29.07.2022 placing the respondent under suspension. All that the order states is that there is one departmental inquiry pending against the respondent. The order obviously refers to the charge sheet dated 01.10.2021, which was issued against the respondent and the departmental inquiry was pending.

No doubt the State has the power to place an employee under suspension either in contemplation of departmental inquiry or even during the pendency of the departmental inquiry. However, it is settled law that power of suspension is required to be exercised in a reasonable manner and cannot be allowed to be exercised capriciously or arbitrarily.

The order impugned is a statutory order passed by the authority in exercise of the powers conferred under the applicable Service Rules. As is well settled in the decision of the Supreme Court in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. [AIR 1978 SC 851], the validity of statutory order has to be adjudged from the contents of the order. The impugned order of suspension nowhere speaks as to what impelled the authority to suddenly place the respondent under suspension after having initiated inquiry wayback on 01.10.2021.

We also notice that the respondent was also transferred from Nagaur i.e. the place where he was posted during the alleged delinquency. While he was posted at Kishangarh, the impugned order came to be passed.

Though learned counsel for the State seeks to justify the action by submitting that subsequently also a charge sheet has been issued to the respondent in relation to another alleged misconduct committed subsequently and a fresh order of suspension has been issued, we find that the reasons which have been assigned by the learned Single Judge to set aside the order of suspension are in accordance with law. In absence of any proper justification for placing the respondent under suspension after nine months of the initiation of the departmental inquiry, without any other reason assigned to take recourse to the power of suspension, the order of suspension appears to be arbitrary.

In view of the above, we are not inclined to interfere with the impugned order of the learned Single Judge.

[2024:RJ-JD:43433] (12 of 13) [CW-14688/2024]

Accordingly, the present special appeal (Writ) is dismissed. We may however hasten to add that this order shall not come in the way of the State in defending the suspension order which has been subsequently issued by it in the matter of alleged delinquency of the respondent during his posting at some other place.

13. In view of the above discussions and judgments passed

by the coordinate bench and Division bench of this Court it is

felt that the order passed by the respondent authority

suspending the petitioner was passed in a casual manner as

the suspension order which was initially issued to the

petitioner was not in accordance with Rule 13 of the CCA

Rules, 1958. When the order was not found sustainable in

the eye of law then a fresh order was passed on 29.08.2024

in which the post of the petitioner was wrongly mentioned.

Then, finally after all the corrections, on 30.08.2024 it was

again issued. The manner of dates and events showing that

the order of suspension was not in accordance with the spirit