JUDGMENT
D.D. Sinha, J.
1. Rule returnable forthwith. Heard finally by consent of Shri Gordey, learned Counsel for the petitioner, Shri Fulzele, learned Assistant Government Pleader for the respondent Nos. 1, 3 and 4, and Shri Tambde, learned Counsel for the respondent No. 2.
2. The petition is directed against the order dated 31-10-2001 passed by the respondent No. 1 Divisional Joint Registrar, Co-operative Societies, Nagpur whereby preliminary objection raised by the petitioner Agricultural Produce Market Committee to the maintainability of the appeal preferred by the respondent No. 2 under Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 came to be rejected.
3. Shri Gordey, learned Counsel for the petitioner, states that by order dated 11-9-2001 the respondent No. 2 was suspended pending enquiry. It is contended that this suspension is an interim suspension and cannot be treated as penalty contemplated under Rule 102 of the said Rules. It is further contended that the appeal, which is provided under Rule 104, is against the final penalty of suspension after enquiry and, therefore, impugned order passed by the respondent No. 1 Divisional Joint Registrar, Co-operative Societies rejecting the preliminary objection of the petitioner in this regard is not sustainable in law. In order to substantiate his contentions, the learned Counsel has placed reliance on the judgment of the Apex Court in R.P. Kapur v. Union of India and another, .
4. Shri Tambde, learned Counsel for the respondent No. 2, supports the impugned order passed by the respondent No. 1 and states that as far as Rule 102 is concerned, though it deals with penalties required to be imposed on the officer or servant of the Market Committee Clause (v) of Rule 102 does not provide various categories of suspension, such as interim suspension or suspension as a penalty after enquiry. It is contended that Clause (v) of Rule 102 only contemplates suspension simplicitor and, therefore, appeal preferred by the respondent No. 2 under Rule 104 of the said Rules is maintainable. It is submitted that all these aspects are considered by the respondent No. 1 Divisional Joint Registrar and he has rightly rejected the preliminary objection raised by the petitioner.
5. We have considered the contentions canvassed by the learned Counsel for the parties and perused the relevant provisions and ratio of the above referred judgment of the Apex Court. It is no doubt true that Clause (v) of Rule 102 refers to word “suspension”. However, in view of ratio laid down by the Apex Court in the above referred judgment, it has to be understood in its proper perspective. The Apex Court in para (11) of the above referred judgment has observed thus:
“(11) ……..On general principles therefore the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being find guilty, order suspension as a punishment if the Rules so permit. This will be suspension as a penalty……….”
6. In the instant case, it is not in dispute that suspension of the respondent No. 2 is pending enquiry and undoubtedly can be termed as interim suspension and cannot be considered in any eventuality a suspension, which is after conclusion of the enquiry as a measure of punishment or penalty. The entire approach of the respondent No. 1 Divisional Joint Registrar appears to be misconceived in the facts and circumstances of the present case and hence, same cannot be sustained.
7. Rule 104 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 deals with appeal and Clause (1) thereof contemplates that any person aggrieved by an order imposing any of the penalties referred to in Rule 102 may, subject to the provisions of this Rule, appeal to Director and any such person aggrieved by the order of the Director may appeal to the State Government. The appeal provided in Rule 104 is the appeal against the order of imposition of suspension as penalty and not against the interim suspension. In view of the undisputed facts in the present case, suspension of respondent No. 2 is pending enquiry and undoubtedly same is interim in nature and cannot be treated as a penalty after enquiry and, therefore, appeal, which is preferred by the respondent No. 2 against the said order of suspension under Rule 104 of the 1967 Rules, in our opinion, is not maintainable.
8. For the reasons stated hereinabove, the impugned order passed by the respondent No. 1 Divisional Joint Registrar, Co-operative Societies is quashed and set aside and preliminary objection of the petitioner as to maintainability of the appeal preferred by the respondent No. 2 is upheld.
9. The Rule is made absolute in the above terms. No order as to costs.