1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Samrath Singh v. State of Rajasthan & Anr.
S.B.CIVIL WRIT PETITION NO.8249/2007
under Article 226 of the Constitution
of India.
Date of Order :: 30th September, 2009
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. PP Choudhary, for the petitioner.
Mr. GR Kalla, for the respondents.
....
BY THE COURT :
REPORTABLE
The petitioner, an Additional Block Primary
Education Officer, was trapped for alleged involvement
in corrupt practices and, therefore, a criminal case
was registered against him for the offences punishable
under different provisions of the Prevention of
Corruption Act, 1988. He was also arrested and was
kept in judicial custody for a period of more than 48
hours. The incident of trap occurred in the month of
April, 2007.
2
The Commissioner, Secondary Eduction,
Government of Rajasthan, Bikaner, while exercising
powers under Rule 13 of the Rajasthan Civil Services
(Classification, Control & Appeal) Rules, 1958
(hereinafter referred to as “the Rules of 1958”)
passed the order dated 11.10.2007 placing the
petitioner under suspension w.e.f. 3.4.2007. To
question validity of the order aforesaid, this
petition for writ is preferred on following grounds:-
(1) the order impugned is bad being passed in
mechanical exercise of powers; and
(2) the order placing the petitioner under
suspension is bad being essentially an
administrative order, that could have not been
passed with retrospective effect.
As per counsel for the petitioner, the order
impugned placing the petitioner under suspension was
passed without examining the need to do so. It is
asserted that the suspension though is not a
punishment but is required to be effected with due
caution and vigilance and a civil servant could not be
placed under suspension without due application of
mind and without examining the need to do so. Reliance
is placed by counsel for the petitioner upon a
3
judgment of this Court in the case of Ashutosh Dashora
v. State of Rajasthan & Ors., SBCivil Writ Petition
No.473/2007, decided on 29.4.2008, holding therein
that “in every case, where the government servant is
facing trial for criminal charges, including the
charges relating to the Prevention of Corruption Act,
suspension is not must. The competent authority,
before placing an incumbent under suspension, must
consider its necessity. The unwarranted suspension of
a government servant not only deprives the employer
from utilizing his services but also put a burden on
public fund in the form of payment of subsistence
allowance. The Government must review the suspension
of the government servant time to time, and if it is
found that the suspension is not required, it should
be revoked.”
The argument is also substantiated by the law
laid down by this Court at Jaipur Bench, Jaipur in
Vishnu Kumar Gupta v. State of Rajasthan & Ors.,
SBCivil Writ Petition No.5350/2006, decided on
23.1.2009, laying down therein that “when there is no
allegation against petitioners that they had in any
manner at all delayed the progress in criminal case or
their continuance under suspension is requisite for a
fair trial of criminal case pending against them and
more-so there is no departmental proceeding initiated
against them while at the same time, the authority has
failed to exercise its powers U/r 13(5) of the CCA
4
Rules to review its decision for sufficient long time
of 4 & half years having elapsed by now and
petitioners are continuously attending criminal
proceedings in court concerned where they have been
requesting not to adjourn the case for one or the
other reason but where after challan being filed long
back on 06/05/06, charges have not yet been framed,
there appears to be no reasonable justification from
any angle which may considerably require to continue
their suspension any further.”
By placing reliance upon the judgment of this
Court in Chandan Mal Nawal v. State of Rajasthan &
Anr., reported in RLR 1987(1) 47, it is also argued
that the order of suspension is an administrative
order and no effect to that could have been given
retrospectively.
In reply, the stand of the respondents is
that as per Rule 13(2) of the Rules of 1958 a
government servant who is detained in custody whether
on a criminal charge or otherwise, for a period of
exceeding 48 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 suspension and shall remain
under suspension until further orders. In view of the
provision aforesaid the petitioner as a matter of fact
was facing suspension since remaining under judicial
5
custody for a term beyond 48 hours. It is also stated
that the Government of Rajasthan vide its circular
dated 11.10.2007 instructed that if a civil servant is
caught red-handed while taking bribe by the anti
corruption bureau, he should be placed under
suspension without any exception and the petitioner
was placed under suspension as per the thrust of the
circular aforesaid.
I have considered rival submissions.
Precisely the issue deserves consideration in
the instant matter is that whether the competent
authority under Rule 13 of the Rules of 1958 is
mandatorily required to place a government servant
under suspension on lodging a case for the offences
punishable under Prevention of Corruption Act or the
competent authority is required to apply its mind
objectively before taking any such action?
In general sense suspension means, a
temporary deprivation of the employee’s functions or
right to discharge his duties, but that does not
amount to lower down or reduction of his rank or
status. Such employee, though continuous to be in
employment but he is not permitted to work and is paid
only a subsistence allowance which is less than salary
and other admissible allowances for which he would
have been entitled in normal course. The suspension is
6
an interlocutory disciplinary measure to ensure free
and fair conduct of the inquiry or the prosecution, as
the case may be. It would be appropriate to place a
person under suspension if, (i)his continuance to the
office is likely to prejudice inquiry, investigation
or trial; or (ii)where his continuance in office is
likely to seriously subvert discipline in the office
concerned; (iii)where his continuance in the office
will be against the wider public interest; (iv)where a
prima facie case is found to initiate criminal/
departmental proceedings which are likely to lead to
his conviction and/or dismissal, removal or compulsory
retirement from service; or (v)where he is suspected
to have engaged himself in activities prejudicial to
the interest of the security of the State.
Beside the above general eventualities, a
public servant may also be suspended for misdemeanor
like; (i) an offence or conduct involving moral
turpitude; (ii) corruption, embezzlement or
misappropriation of the government funds, possession
of disproportionate assets, misuse of official powers;
(iii) serious negligence in discharging duty resulting
in considerable loss to the government or public at
large; (iv) desertion from duty; or (v) refusal or
deliberate failure to carry out return or other just
orders of the superior officers.
7
The concept of suspension during the inquiry
or trial is an important and larger objective of
ensuring free and fair conduct of proceedings. Where
serious allegations of misconduct are imputed or the
employee is undergoing trial for the grave charges, it
may be undesirable in the interest of service to
continue him on the post. In such circumstances,
suspension is a mode for fair and free inquiry as
otherwise it would be difficult to facilitate free
investigation. However, in every case of suspension
its desirability is required to be examined by the
competent authority by taking into consideration
existing facts. Although the suspension is not a
punishment specified, an order of suspension is not
required to be passed lightly or mandatorily in every
case of the circumstances referred above. Suspension
is not required to be resorted unless the allegations
against government servant are so serious that those
shakes public confidence in governance, if such
employee is permitted to continue in office till
establishment of his innocence. Before placing an
incumbent under suspension, various eventualities are
required to be taken into consideration by the
competent authority.
With the conceptual philosophy of suspension
as discussed above its application under Rule 13 of
the Rules of 1958 is required to be examined. As per
Rule 13-
8
“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 proceeding 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. [Government of Rajasthan’s Decision–In exercise
of the powers conferred by sub-rule(1) of Rule 13 of
the Rajasthan Civil Services (Classification, Control
& Appeal) Rules, 1958 the State Government hereby
empowers the authority competent to impose any one of
the minor penalties specified in Rule 14 of the said
rules to place a Government Servant under 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 suspension under sub-
9
rule(1) and shall remain under suspension until
further orders.
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 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 in 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.
10
5.An order of suspension made or deemed to have been
made under this rule may at any time be revoked by the
authority which made or is deemed to have made the
order by any authority to which that authority is
subordinate.”
Sub-rule(1) of Rule 13 empowers competent
authority with a broad discretion to place a
government servant under suspension in the event of
contemplation of pendency of disciplinary proceedings
or where a case against him in respect of criminal
offences under investigation or trial. The Government
of Rajasthan by circular dated 10.8.2001 provided
certain instructions to the competent authorities to
exercise powers under Rule 13 referred above. As per
circular dated 10.8.2001, it is clarified that if a
public servant is caught red-handed accepting bribe by
the Anti Corruption Bureau, then he should be placed
under suspension without any exception and the
suspension of such public servant should not be
revoked till his exoneration by the competent court.
The circular further provides that in any case where
sanction is granted for prosecution of a public
servant in a case relating to corruption, such public
servant should be placed under suspension compulsorily
and that should not be revoked till pendency of
criminal case before the court concerned. According to
circular dated 10.8.2001 a public servant should be
mandatorily placed under suspension, if a challan has
11
been filed before the competent court by the
prosecution against him relating to the offences of
murder, dowry, dowry death, rape and other offences
involving moral turpitude and the public servant
placed under suspension for the reasons aforesaid
should be continued as such till his exoneration.
It is pertinent to note here that the circular in question at the one hand restricts
discretion of the competent authority as given under
Rule 13 to place an incumbent under suspension and at
the same time also snatches away the power of the
competent authority to revoke such suspension as
prescribed under Rule 13(5) of the Rules of 1958. True
it is, suspension of a civil servant is an
administrative action and the government is having
ample power to provide necessary guidelines to the
competent authorities for exercising powers as per
Rule 13, but at the same time it is also well settled
that the administrative instructions can always be
given to fill up the unoccupied field, however, such
instructions in no way encroach the space already
under occupation of an statute. In the present case
the circular dated 10.8.2001 nowhere provides
instructions to the competent authority as to how
powers under Rule 13 are required to be exercised, but
it imposes mandate upon the discretion of the
competent authority. Such imposition of a mandate over
statutory discretion is not permissible under
12
administrative jurisprudence. The State Government
would have been right in providing guidelines or a
mode to exercise discretion under Rule 13 of the Rules
of 1958. The State Government could have given
instances and instructions to the competent authority
to exercise its discretion to place an incumbent under
suspension in particular circumstances but not an
order to place government servant under suspension
mandatorily in specific cases. It is for the competent
authority to examine facts of each and every case and
to settle desirability to place an incumbent under
suspension by applying objective discretion. The
suspension of an employee, looking to the facts and
circumstances of the case may be desired urgently or
on emergent basis but in those circumstances also the
competent authority must record its satisfaction for
exercising powers under Rule 13. If such satisfaction
is not recorded and suspension is made merely on basis
of the instructions given in circulars or merely by a
word of mouth or by slip of pen, then that is nothing
but colourable exercise of power. In the present case
it is nowhere said by the respondents that before
placing the petitioner under suspension the
desirability to do so was objectively considered. It
is specific case of the competent authority that he
placed the petitioner under suspension as per
instructions of the Government of Rajasthan.
13
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 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.
In view of whatever discussed above, it
appears that the order impugned has been passed
without proper application of mind. Consequently, this
petition for writ succeeds and further continuation of
the petitioner under suspension in pursuant to the
order dated 11.10.2007 is declared unwarranted. The
respondents are directed to revoke suspension of the
petitioner forthwith. It shall be open for the
14
competent authority to examine all the existing
circumstances and to place the petitioner under
suspension by proper exercise of the powers as per
Rule 13 of the Rules of 1958, if so is desirable and
required in interest of service.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.