CW 5350/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.5350/2006 Vishnu Kr. Gupta Versus State & Ors. 2-Civil Writ Petition No.6196/2006 Suresh Chand Versus State & Ors. Date of Order ::: 23/01/09 Hon'ble Mr. Justice Ajay Rastogi Mr. NK Singhal, for petitioners Mr. JK Agrawal, Addl.Govt. Counsel, for respondents-State At joint request, since instant petitions involve identical controversy, were heard together and are being disposed of by this order at admission stage. By instant petitions assailing common order (Ann.1), petitioners (Vishnu Kumar Gupta & Suresh Chand) have questioned their prolonged suspension ordered on 07/08/04 for the allegations of their involvement in criminal cases registered for offences punishable under the Prevention of Corruption Act, 1988 (“the Act”). Against petitioners, (1) Vishnu Gupta &d (2) Suresh Chand while working as Forest Ranger & Forester respectively under Divisional Forest Officer Bharatpur, FIR-164/2004 was registered on 24/07/04 for commission of criminal offences punishable U/Ss 7, 13(1)(2) 7 of the Act, 1988 read with S.120-B, IPC & 201, IPC – as a CW 5350/06 //2// consequence whereof, both of them were placed under suspension vide common order dt.07/08/04 (Ann.1). After completion of investigation, and sanction for their prosecution was accorded on 10/04/06 and challan was filed on 06/05/06 but no charges have been framed against them, as yet; despite the fact as alleged that petitioners moved application before competent court of jurisdiction on 12/03/07 that their case should not be adjourned and they be heard while framing of the charges. Order sheets have been placed on record that earlier case was adjourned on the request of petitioner's Counsel and after their application submitted on 12/03/07, the case stood adjourned after recording that because of paucity of time, matter could not be heard and stood adjourned from time to time. However, ultimate fact remains that charges has not yet been framed against petitioners while four & half years have rolled by now. Counsel for petitioners submits that U/r 13(5) of Raj. Civil Services (Classification, Control & Appeal) Rules, 1958 (“CCA Rules”), competent authority is under obligation to review order of suspension from time to time but this power has never been exercised after CW 5350/06 //3// placing petitioners under suspension vide order impugned (Ann.1). Counsel also contended that challan has already been filed against petitioners, inasmuch as there is no allegation of their tampering with evidence or there being any likelihood of their causing obstacles in conclusion of trial and charges have not yet been framed against them and there is no reasonable justification having come forward and being available for respondents to continue the petitioners under suspension for indefinite period particularly when department has not at all initiated disciplinary proceedings against them and a criminal case instituted would take its own time for its conclusion; how far it will be justified to continue the petitioners under suspension. Counsel further submits that in the alleged FIR after investigation while matter came up for consideration to accord sanction of their prosecution, matter was examined at administrative level and at that point of time Conservator of Forest after examining statements recorded in course of investigation besides other material on record had opined vide letter dt.07/03/06 (Ann.2) that very complaint on which FIR was registered against petitioners appears CW 5350/06 //4// to be doubtful and its report was sent to Chief Conservator of Forest who also endorsed with such report and referred the matter to Principal Chief Conservator of Forest as is evident from Ann.3 dt.23/03/06. However, the authority finally accorded sanction for prosecution of petitioners. Counsel submits that once at one stage, after investigation while matter was examined at administrative level and the authority has found very allegations, on which FIR was registered, to be suspicious and was endorsed by Chief Conservator of Forest to the State Government and any how finally sanction for their prosecution was accorded but that would not rule out the fact that very institution of criminal case was founded suspicious at one stage and what will be the ultimate fate, may take its own time; however, to continue petitioners under suspension will in no manner will be justified. In their reply, respondents have inter- alia averred that petitioner were placed under suspension only because of registration of criminal case and since it pertains to commission of criminal offence under Prevention of Corruption Act; as per Circular dt.10/08/01, petitioners cannot be reinstated till they are CW 5350/06 //5// acquitted by a competent court of jurisdiction. However, this fact has not been disputed in their reply that after petitioners were placed under suspension in August, 2004, it has never been reviewed at any later stage in exercise of powers U/r 13(5)of CCA Rules, when charges have not yet been framed in criminal case pending against them. I have considered rival contentions of Counsel for parties and with their assistance, pondered over material on record. Respondents would have been justified in placing petitioners under suspension at relevant point of time on criminal case being registered against them in exercise of powers U/s 13 of CCA Rules, 1958. However, question arises for consideration as to whether a prolonged suspension for last 4 years & six months where no progress in criminal case has taken place after challan having been filed, when no disciplinary proceedings were initiated and indisputably respondents failed to exercise powers U/r 13(5) of CCA Rules which empowers the authority to review its decision about continuance of suspension of Government servant; can in such circumstances, action of respondents continuing suspension for indefinite period, require interference in writ jurisdiction of CW 5350/06 //6// this Court. It is trite that an order of suspension is not an order inflicting punishment upon a person found to be guilty. It is an order made before he is found guilty to ensure smooth disposal of disciplinary proceedings or criminal case as the case may be, initiated against him; but at the same time, proceedings should be completed expeditiously in public interest and also in the interest of Government servant. It is always said that suspension cannot be considered to be punishment but this also cannot be disputed that it certainly causes real hardship to a Government servant and the stigma attached thereto cannot be ignored. Object in placing a Government servant under suspension in course of inquiry being contemplated or instituted is to enable the administration to conduct proceedings smoothly with a view to establish allegations or the charge against delinquent and if allowed to continue on duty, there may be occasion for tampering with evidence so as to enable the investigation to conduct successfully. However, at the same time, there is no reason to continue a Government servant under suspension indefinitely on the premise that CW 5350/06 //7// Government Circular dt.10/08/01 curtails powers of competent authority to review its decision in exercise of powers conferred under statutory CCA Rules. Principles of natural justice also demand that proceedings initiated against delinquent should be concluded with diligent and within reasonable period of time. If such principle is not to be recognised, it would imply that the executive is vested with a totally arbitrary and unfettered power of placing its officer under disability and distress for an indefinite period. Very word, “prolonged” means beyond normal requisite period. “Prolonged suspension” means suspension in absence of inquiry for the period beyond normal duration. However, no period of suspension has been defined under Rules but the Government issued Circular dt.17/03/1960 where disciplinary proceedings are initiated against civil servant/officer allowing the time schedule in which it has to be finalised in cases where employees are under suspension. Under Circular No.F.16633/F.19(27)Apptts.(A)/60, dt.17th March, 1960, the time schedule was revised as under:- (1) Completion of preliminary enquiry and submission of its report to the Disciplinary Authority along with draft statements of allegations and charges. 3 months CW 5350/06 //8// (2) Examination of Preliminary Enquiry Report 1 month and service of charge-sheet on the delinquents. (3) Submission of written statements by the Minim. 2 months Delinquents. Minim. 3 weeks (4) Examination of written statements and 2 weeks appointment of Enquiry Officer. (5) Completion of Departmental Enquiry. 3 months (6) Examination of Enquiry Report. 2 weeks. (7) Issue of Show Cause Notice. 2 weeks (8) Submission of reply to the show cause 3 weeks notice by the delinquent. (9) Examination of reply to the Show Cause 1 Week Notice and issue of final orders But where criminal cases are instituted no such circular has been placed before this Court which may allow time schedule while contrarily, a specific stand of State Government even in the reply and so also statement made during arguments is only one that reinstatement cannot be considered by State Government atleast in cases where FIRs are registered under Prevention of Corruption Act in view of Circular dt. 10/08/01. Rule 13(1) of CCA Rules empowers the authority to place government servant under suspension where disciplinary proceedings against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation or trial. However, after Government servant being placed under suspension U/r 13(1) of CCA Rules, the authority U/r 13(5) is under obligation to CW 5350/06 //9// review its decision at a later stage; and to examine independently as to whether it would be appropriate in public interest to continue employee under suspension any further but the discretion vested has to be judiciously exercised and administrative circular dt. 10/08/01 cannot over-reach statutory power of the authority vested U/r 13(5) of CCA Rules, 1958 and it has been considered by Co-ordinate Bench of this Court in Prem Pr.Mathur Vs State (2005(9) RDD 3962 (Raj.) and while considering suspension of a Government servant against whom a criminal case for offence U/Ss 5(1)(d)(2) of the Prevention of Corruption Act, 1947 & U/Ss 420, 467, 468, 471 & S.120-B, IPC was under trial, observed ad infra:- 7. “It is well settled that an order of suspension is not an order imposing punishment on a person but is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. The proceedings so initiated should be completed expeditiously. In event the disciplinary proceedings or the criminal trial, as the case may be do not reach to their logical consequence within a reasonable period then tit is required that the appointing authority or the authority competent to place public servant under suspension should review the decision to continue such servant under suspension.” 8. “In the present case there is no allegation against the petitioner that he has in any way delayed the trial of criminal case. The only reason given by the respondents is that the circular dated 10.08.2001 restrains reinstatement of a Government servant by revoking his suspension till he gets acquittal from the criminal charges. In my considered CW 5350/06 //10// opinion the circular dated 10.08.2001 cannot curtail the discretion vested with the appointing authority with regard to placing, continuing or revoking suspension of a Government servant. The appointing authority or the authority competent under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal), Rules, 1958 is required to exercise the powers vested with him independently by taking into consideration all the facts, circumstances and the legal position existing.” In Jai Prakash Soni Vs. State (CWP- 6492/06 decided vide order dt.17/12/07 at principal seat Jodhpur), involving likewise controversy raised where pendente criminal proceedings, suspension stood prolonged, as to how far it would be proper for State Government to continue suspension for indefinite period, this Court observed ad infra: “Without commenting on the merits of the case pending against the present petitioner, this Court is of opinion that when there has not been even a remote allegation against the petitioner that the had in any manner delayed the progress of the criminal case of that his suspension was requisite for a fair trail of the case; and further more, when no departmental proceedings have at all been initiated against him, it would have been discreet and reasonable if the Department itself had revoked his suspension. AS noticed above, from the month of February 2005 when the challan was put up, till 13.06.2007, the petitioner has continuously attended every date of hearing before the court concerned and then seems to have developed cardiac problems and had undergone angioplasty on 20.10.2007. Even the charges in the criminal case have not been framed so far; and then, the petitioner is due for retirement on 31.12.2007. There appears no reason or justification from any angle that the petitioner is required to be continued on suspension. Ordinarily, this Court wold have remitted the matter to the authorities for reconsideration for the purpose of revocation of the suspension order but in view of the fact that the petitioner is due for retirement by the end of this month itself, it appears CW 5350/06 //11// appropriate to direct the respondents to pass a revocation of the suspension of the petitioner within seven days from today.” Now adverting to merits of instant case, in the opinion of this Court, 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 CCA 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. Consequently, writ petition succeeds and is hereby allowed. Continuance of suspension any further vide order dt.07/08/04 (Ann.1) with regard to petitioners is declared to be illegal CW 5350/06 //12// from the date of its order, itself. Respondents are directed to reinstate the petitioners in service within one month from submission of certified copy of this order. However, treatment of the period of suspension be awaited till final outcome of criminal case and necessary orders in this regard may be passed by authority subsequently at appropriate stage. No costs. (Ajay Rastogi), J. K.Khatri/p.12/5350CW06(2)Rsr23Jn.doc