PETITIONER: STATE OF M.P. Vs. RESPONDENT: L.P. TIWARI DATE OF JUDGMENT05/05/1994 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J) CITATION: 1994 AIR 2175 1994 SCC (4) 468 JT 1994 (4) 40 1994 SCALE (2)1109 ACT: HEADNOTE: JUDGMENT:
ORDER
1. Delay condoned. Leave granted.
2. The appellant had contemplated disciplinary proceedings
against the respondent and considered it expedient to keep
the respondent under suspension pending the said
proceedings. By proceeding dated 24-4-1990, the respondent
was suspended and it was served on him on 25-9-1990. A
charge-sheet was framed against the respondent on 5-7-1990
and was sent to the Engineer-in-Chief, at Bhopal for
effecting its service who in his letter dated 8-11-1990
requested the Chief Engineer (Central) at Jabalpur to serve
the charge-sheet on the respondent. The latter in turn
endorsed it to the Supdt. Engineer, Panna who deputed his
head clerk to serve the charge-sheet on the respondent. The
endorsement made by the head clerk on 21-12-1990, ads thus:
“The Head Clerk had gone to Pahadukodi and met Shri Tiwari,
Executive Engineer, and gave him the letters. But as
informed by the Head Clerk in writing that he refused to
accept the said letters on some pretext, the same are being
sent to you in original.”
Thereafter, the service was effected after the expiry of 90
days. The respondent challenged the order of suspension in
the Administrative Tribunal on the -round that the
disciplinary proceedings were initiated after the expiry of
90 days and that therefore, suspension was without
jurisdiction and void. That plea found favour with the
tribunal in OA No. 1056 of 1992, which by its order dated
27-8-1992 set aside the order of suspension. Thus, this
appeal by special leave.
3. The appellant’s contention is that the respondent
having had knowledge of the order of suspension and
initiation of the proceedings, made himself scarce and
evaded the receipt of the charge-sheet and all attempts made
by the appellants, within the period of limitation to serve
the chargesheet proved futile. Having successfully evaded
the receipt of the charge-
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sheet till the expiry of 90 days, the respondent approached
tile tribunal in 1992 and claimed that his suspension after
the expiry of 90 days prescribed under Rule 9 of the M.P.
Civil Services (Classification, Control and Appeal) Rules,
1966, for short ‘the Rules’ had become illegal and void, and
had stood revoked. We find force in the contention. It is
seen from the letter addressed by the Chief Engineer,
Jabalpur to the Government that the respondent, the
Executive Engineer had not given the address nor reported to
the office of the Superintending Engineer as per the
directions issued by the Government and that his whereabouts
were not known. It would thus be clear that after having
had knowledge of the suspension order the respondent
thwarted the attempt to serve the charge-sheet against him
and thereby refused to receive it. He thus evaded to
receive the charge-sheet. Rule 9 of the Rules provides
thus:
“9. (1) The appointing authority or any
authority to which it is subordinate or the
disciplinary authority or any other authority
empowered in that behalf by the Governor by
general or special order, may place a
government servant under suspension –
(a)where a disciplinary proceeding against
him is contemplated or is pending; or
(b)where a case against him in respect of
any criminal offence is under investigation,
inquiry 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.
(2)A government servant shall be deemed to
have been placed under suspension by an order
of appointing authority –
(a)with effect from the date of his
detention, if he is detained custody whether
on a criminal charge or otherwise, for a
period exceeding forty-eight hours;
(b)with effect from the date of his
conviction, if in the event of conviction for
an offence, he is sentenced to a term of
imprisonment exceeding forty-eight hours and
is not forthwith dismissed or removed or
compulsorily retired consequent to such
conviction.
Explanation.- The period of forty-eight hours
referred to in clause (b) of this sub-rule
shall be computed from the commencement of the
imprisonment after the conviction and for this
purpose, intermittent periods of imprisonment,
if any, shall be taken into account.
(2-a) Where a government servant is placed
under suspension under clause (a) of sub-rule
(1), the order of suspension shall contain the
reasons for making such order and where it
proposed to hold an enquiry against such
government servant under Rule 14, a copy of
articles of charges, the statement of
imputations of misconduct or misbehavior and a
list of documents and witnesses by which each
article of charge is proposed to be sustained
shall be issued or caused to be issued by the
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disciplinary authority to such government
servant as required by subrule (4) of Rule 16
within a period of 45 days from the date of
order of suspension.
Provided that where the disciplinary authority
is the State Government, the copy of charges
and other documents mentioned above shall be
issued or caused to be issued to such
government servant within a period of 90 days
from the date of order of suspension.
(2-b) Where the disciplinary authority fails
to issue to the government servant, a copy of
the charges and other documents referred to in
sub-rule (2-a) within the period of 45 days,
the disciplinary authority shall, before
expiry of the said period, obtain orders in
writing of the State Government for extension
of the said period of suspension.
Provided that the period of suspension shall
in no case be enhanced beyond a period of 90
days from the date of the order of suspension.
(3)Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a government servant under suspension, is
set aside in appeal or on review under these
rules and the case is remitted for further
inquiry or action or with any other
directions, the order of his suspension shall
be deemed to have continued in force on and
from the date of the original order of
dismissal, removal or compulsory retirement
and shall remain in force until further
orders.
(4)Where a penalty of dismissal, removal or
compulsory retirement from service imposed
upon a government servant, is set aside or
declared or rendered void in consequence of or
by a decision of a Court of law and the
disciplinary authority, on a consideration of
the circumstances of the case, decides to hold
a further inquiry against him on the
allegations on which the penalty of dismissal,
removal or compulsory retirement was
originally imposed, the government servant
shall be deemed to have been placed under
suspension by the appointing authority from
the date of the original order of dismissal,
removal or compulsory retirement and shall
continue to remain under suspension until
further orders.
(5)(a) An order of suspension made or deemed
to have been made under this rule, shall
continue to remain in force until it is
modified or revoked by the authority competent
to do so.
Provided that the order of suspension shall
stand revoked on expiry of the period of
forty-five days from the date of order of
suspension in case of copy of charges and
other documents referred to in sub-rule (2-a)
are not issued to such government servant by
the disciplinary authority (if it is not the
State Govt.) without obtaining the orders of
the State Government for extension of the
period for issue of the said documents, as
required under sub-rule (2-b).
Provided further that the order of suspension
shall stand revoked on expiry of the period of
90 days from the date of order of suspension,
in
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case the copy of charges and other documents
referred to in sub-rule (2-a) are not issued
to such government servant.”
4.Rule 9 thus contemplates that the disciplinary
authority or any authority empowered by the Governor by a
general or special order is authorised to place the
government servant under suspension where disciplinary
proceedings against him are contemplated or are pending or
where a case against him in respect of any criminal offence
is under investigation inquiry or trial. The order of
suspension shall contain the reasons for making such order
and where it proposes to hold an enquiry against him under
Rule 14, a copy of articles of the charges, statement of
imputation of misconduct or misbehaviour and a list of
documents and witnesses by which char-es are proposed to be
sustained shall be issued or caused to be issued by the
disciplinary authority to such government servant within a
period of 45 days from the date of order of suspension. By
operation of the proviso to sub-rule (2-a) where the
disciplinary authority is the State Government, the copy of
charges and other documents mentioned above shall be issued
or caused to be issued to such government servant within a
period of 90 days from the date of order of suspension. The
object appears to be that the competent authority having
placed a delinquent officer under suspension, cannot sit
over the case without prompt follow-up action of conducting
an inquiry into the alleged misconduct. The dereliction
thereof entails the authority with denuding the power to
continue the officer under suspension, though the power of
enquiry subsists. It would be clear from proviso to Rule
9(2-b) which says that “the period of suspension shall in no
case be continued beyond the period of 90 days from the date
of the order of suspension”. It would thus be clear that
where disciplinary proceedings are pending or contemplated,
it is open to the appointing authority, disciplinary
authority or authorised officer to keep government servant
under suspension and have the articles of charges to-ether
with the particulars mentioned hereinbefore “shall be issued
or caused to be issued” by the authority to such government
servant within the period mentioned hereinbefore. On its so
issuing the order of suspension remains in force until
revoked on reconsideration in terms of the rules based on
facts scenario or proceedings terminated by an order on
merits. It is thereby clear that service of the article of
charge is not a condition precedent. Putting it in
transmission within the period is sufficient compliance. No
doubt every endeavour has to be made to have the charge-
sheet served on the delinquent, but the delinquent who
evades receipt of it, cannot be allowed to take advantage of
such evasion.
5.This Court in a recent judgment in Delhi Development
Authority v. H.C. Khurana1 considered the effect of a
similar provision and held thus: (SCC p. 197, Headnote)
“The meaning of the word ‘issued’ has to be gathered from
the context in which it is used. The decision to initiate
disciplinary proceedings cannot be subsequent to the
issuance of the charge-sheet,
1 (1993) 3 SCC 196: 1993 SCC (L&S) 736: (1993) 24 ATC 763
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since issue of the charge-sheet is a consequence of the
decision to initiate disciplinary proceedings. The service
of the charge-sheet on the government servant follows the
decision to initiate disciplinary proceedings, and it does
not precede or coincide with that decision. The delay, if
any, in service of the charge-sheet to the government
servant, after it has been framed and despatched, does not
have the effect of delaying initiation of the disciplinary
proceedings, inasmuch as information to the government
servant of the charges framed against him, by service of the
charge-sheet, is not a part of the decision-making process
of the authorities for initiating the disciplinary
proceedings. The contrary view would defeat the object by
enabling the government servant, if so inclined, to evade
service and thereby frustrate the decision and get promotion
in spite of that decision.”
6.Thus, it could be seen that what is emphasised in the rule
is initiation of theproceedings within the period of 90
days, and not effecting the service of thearticles of charge
issued or caused to be issued when the government servant
makes himself scarce. Non-service, therefore, per se does
not render the initiation of the disciplinary proceedings
against the delinquent officer illegal, after the expiry of
90 days. As pointed out by this Court and as found on the
facts on hand that the delinquent employee successfully
evaded the receipt of charge-sheet within the period
prescribed under the rule and then claimed that initiation
of the proceedings or the order of suspension becomes
illegal or non est since the proceedings were not taken
against him within the period prescribed under Rule 9 or the
similar rule. In other words, allowing the delinquent to
put a premium on successful avoidance of receipt of charge-
sheet and plead to his advantage, the making of service
ineffectual, should never be countenanced. Hence, there is
no need to give satisfactory explanation for every day’s
delay in service of charge-sheet on the delinquent, as
opined by the tribunal. Under these circumstances, we are
clearly of the opinion that the tribunal has committed
manifest grievous error of law in allowing the petition.
7. It is contended by Mr Raju Ramachandran, the learned
counsel for the respondent, that pursuant to the order
passed by the tribunal, when the respondent had been
reinstated, such order does not call for interference. We
find no justification to accede to his contention. A
premium cannot be allowed to be put on avoidance and the
directions of the tribunal, which are found to be illegal,
cannot be made the basis to allow the respondent to main in
service when the disciplinary authority had found that it
was expedient to keep the respondent under suspension. The
mere fact that the respondent was reinstated to avoid
contempt proceedings or due compliance of the impugned order
cannot be the reason, nor a justification for us to refuse
to interfere with illegal order passed by the tribunal.
Accordingly, the appeal is allowed. The order of the
tribunal is set aside and the order of the Government is
restored. But in the circumstances we order no costs.
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