<;: 1 ft 1, ^- ^ ^/^ \iii) ^%-'^K. ^yyy^ ?>M// - %w /w ^ IN THE fflGH OOURT OFGHHATTBGARHAT BILAS'UR TOitPetaion.No.^T°/2005 ' ? 1 PETITIONER : U. K. Pambhai, S/o Stiri R R Pambhoi, Aged about 45yearai, Chief Execuyve Qfficar, Jaryad Pandhffyat Darth^, Tahal- J^dalpur, , DSstEfct-Baster(CG). - Vefsns- : l.StaiBofQihattisgath, Ttutnag^iSec:petMy,SdieduledCaste& Sdiedulea'I'Ea^ahdTnbalVNfare DepatehMtf;;&totria-al^ai,D.K.S. awan, Siustri Ghowk Raipur(CG). 2. GoUeistoi, Baster(CG). 3. 2alaP»lctwya<:Baster, Tlmwighxt's Chief B(ac(rtive Qfficer, Bastea-(Ca). 4. Assistant 6westigationCffioer, ' OiBceof&eAssistantCamn'nsaoner, TribalWdfar^, JagdaIptB", Basta-(CG.). PETmQNUNDERARTICLE 226/227 OF THE ONS'nTUTION OF 1NDIA FOORISSI3AMG®OF A WRiT I N^TORE QI?^MftN]3Ans. V RE^ IQ^RI E^.OfejaR' ^€)T§^S_mREGNQN ER TO DO JUSTIGE INTHEMftTT®?. Details afthe petiUcn. .-^( ifs7'"^t4i^s^-, 1 ,Otfie8°ftl?er%Sti'sgar'': —.-^L^-jcy^^o^n.i;>-^.^^~*:stf^-.c, -;•-•: OR BiS u ^ HIGH COURT OFJUDIGATUREATBILASPUR::CHHATTISGARH W.P.No.2190of2005 U.K.Pambhoi Versus State of Chhattisgarh & Othere O RD ER Postfor_£_/07/2005 Sd/- Satish K. Agnihotri ^-- Judge •-»' HK3H COURT OF JUUCATURE AT BLASPUR:: GHHATTISeARH W.P. N0^190 <rf2006 U.K.Pambhoi Versus State of ChhatUsgarh & Othere Present Mr. Saryay K. Agranaal.Advocate wBh Mr. Saurabh Sharma, teamedcounselforlhe p^foner. Mr. Pankaj Shrivastava, toamed Panel Lawyer for the State of ChtaUsgarti. ORDER (Passed on -s-A July, 2005) The present petitfon fited under Arfcte 226 of the Con^lution of India impugnes the onter dated 27.05^005 passed ty the Gcvemment of ChhatB^arh, Scheduled Castes & Schedutes Tribes and Tribd Wetfare Department suspending the petiUoner. 2. The(actsrelevantft>rdlsposalofthispetition»ettiattiep^Uoner was appointed as ChW ExecuUve Qffica-<3rcle Oigardzer m the yror 1982. The petitioner was posted as Ghtef ExecuBve CTfcer, Janpad Panchayat, Jagdalpur during the period 2W1-02. The petBfoner was assigned the powere of Pariyo^ia AcBlilcari, ZUa Panchayat lUUnl Jal Grahan Kshetra also. In No mber,2004, the pdifionw was Iransferred from the post of ChieS ExBcuBve OfBcer, Janpad Panchayat, Jagdalpur to the post of Chief Executive Officer, Janpad Pancha^it, Darbha. Ashow cause notice was issued by the Chtef ExecuUve Offfcer, ZUa Panchayat, Bastar agalnsttte petiUoner on 28.02J004 (AnnewireP-^ tosubmit Ws explanatlon tothe altegattore that on enquiiy ttwas found ttat when U» p^Uoner was looking alter tt»wortc of Mtoi.terf Grahan Itthatra as 2>r <!.- •t. Pariyojna Adhlkari, Ja®dalpur, IrregulariBes have been committod in purchases and planUng of brees. tt was turBier found in <he enquiry that several plants have not been planted as such the GovBmment had suffered a toss of Rs.3.00 lakhs. The p^iUoner has committed gross irregularities and misconduct in performance of this duty. A reply Was submltted by the p^lttoner to the said show causs nottee on 26.04^004 stating that the petitfoner was not responsibte fbr the work as ttie same was executed bythe Micro Waterehed CommUee. 3. On 05.08.2004, the Secretary to the Stsrte Govemment, Scheduled Castes & Scheduted Tribes and Tribsri Welfare Department issued one more show cause notice (Annexure P-5) ftat during the period from August, 2002 to 2003, the seedlingsrf Cashew nuts were not ptanted properiy and had been found dead causing a loss of Rs.10.00 lakhs to the State Exchequer.other seedlingswere also notplanted as such causing a loss of Rs.30.00 lakhs, as to why the peUConer be not put under suspensfon dunng ttie period of departeiental enqulry. Replytothe sald show cause n<rtice was also submitted by the p^Woner in Aigust, 2004 itself (Annexure P-4) stating that he was not responslbte for the ptantation and the entire work was executed by the Committee under the superviskm oftheCollector. 4. tt appeare that after consktering the rqriy submitted by the peUtioner to the Ghief Executroe OIBcer, Zila Panchayat, Bastar and to the Secretary, Scheduted Castas & Scheduted Tribesand Tribal WeWare Ctepartment, the petMoner was suspended on the ground that the petttioner has committed financial irregularities inplantationof ca|shew nut ptante and has faited to petform Ws dufies property, vide order dated 27.05.2005 (Annexure P-C) in aceordance with RutoS <rf the ChtKrtUsgarh •- 1 a^ -< .-•^ CivB Senrices (ClassificaBon, Control & ^apeaQ, Rutes, 1966 (herein srfter referred to as"the Rules, 1866"). 5. Mr. Sanjay K. Agrawal, Isamed Advocate with Mr. Saurabh Shanna, teamed Advocate appearing for the peUfioner contended ttatthe Rides, 1966 framed under Uie provtso to Article 309 oflhe ConsBtuUon of India are statutory and the sakl Rutes, 1966 be treatedas part ofthe Act. In support of his contenfion, he cited the deciston of fte Supreme Court in State of U.P. vs. Babu Ram reported in AIR 1961 SC 751 . 6. Leamed counsel for th® respondents does not dfepute this proposlUon that the rules made under statute must be treated fbr aU purposes of constructfon / obligatfon exacfly as if they were in the Act and are to be ofthe same effect as cortained in the Acfc 7. Thisisawellsettledposltionoflaw. 8. Leamed counsel fbr the pettioner ftirther subnrfts that Iftere is a violaUon of provisions of Rute 9 of the Rules, 1966. ContenUon of the learned counsel for the petiUoner is thatthe respondent No.1 while placing the peUtioner under suspension, has not recorded reasore as tp why the suspension of the peUtfoner is necessary to conduct enqiriiy.when the petitioneris posted at some ottier place far away from the place where alleged irregulartUes have been committed and as sueh the Imfxigned order is Ul^al and inwiltel. Itwas (urthwcontended hytte teaned couhsd for the petitionsr that no reasons have been recorded in the impuyred order andas such theonter of suspenskm Is iltogal. The teamed counsel relies on Ihe decislons of the Supreme Court in the cases <rf lUnfon of India vs. M.L. Capoor & Others repoited In AIR 1974 SC 87;|Unton of Ipdia & Others vs. E.G. Namtwidiri reported In (1991) 3 SCC 38; The ";:BKaa3=^aes'A££^£££E^:.. I. 1 4 •sac State ofMysore vs. M.H. Bellary rqaorted in AIR 1968 SC 868; Vidya Dhar Pande vs. Wdyut Grih Siksha Samiti & Othera reported in AIR 1989 SC 341; Nikka Ram Shanha vs. Central Social Mtelfare Board & Others reported tn 199<K4) SLR 407; Kheinchand vs. Unfon of India reported in AIR 1963 SC 687; P.L. Shah vs. Unlon oflndia reported in AIR1989SC985. 9. Leamed counsel for the peUUoner next submits that in ttw present case there was nrt even a contemplatfon about initiating a departmental enquiiy before placing the petitfoner under suspensfon wi Ihat ground also the suspensfon orcter is invalld and desaves to be quashed. Leamed counsel relies on the deciston of the Supreme Court in the case of Managing Director, U.P. Wareshousing Corporatton vs. Vljay Narayan Bajpai reported in AIR 1980 SC 840. The last contenBon of fte teamed counsel for 1he petttioner was thd Uie reasons must be recoreted befwe placing an employee under suspenston and in absence of ttiatthe order. becomes Iltegal. A refiance was placed by ths iMmed counsel for the petiUoner in the case of D. Srinlvas lyer vs. State of Mysore reported in 1971SLR202. 10. On the quesfion of availabiljty of altemaUve remedy.the contentfon of the teamed counsel forttie petiUoner fethat since thesuspension oreter was passed in ttie name of the Govemor, there is no questton <rf availaMIBy of appeal against the order of suspendon and as such no altemafive remedy is availabte. Learned counsel for the peUtioner refers to a decision of the Supreme Court in the casa of L Hirday Naraln vs. Income-Tax Officer, Bareilly reported in1970(2) SCC 366. !sssws&StiSSS£S^!^S':. 1^1 985 <«. ^ ^ 11. On the contrary, Mr. PankaJ Shrivastava, leamed counsel fbr the respondents submitted that before suspension the petiUoner was gh/en two show cause notices, one l^ ttie Zila F'anchayat, Bastar and tte second by the Secretary to the Govemment, Scheduted Castes & Scheduted Tribes and Tribal Wetfare Department, Ralpur, wherein itwas cleariy indicated as to why tha petUioner be not put under suspenskm pending departmental enquhy. Therdore, submission of the teamed counsel for thepetitioner that there was no contemplatfon ofdepartmental enquiry as prescribed uncter Rule9(1) is misteading. The peUBoner was righUy suspended because there is a clear contemplafion of depwtmental enquiiy. It was further contended byleamed counsel for the respondents that reasons are clearty recorded in the order of suspaisionthat sertous financial irregutarities causing loss tothe Govemment Exchequer has been committed bythe petih'oner by notpurehasing and plandngcashew nut seedlings properiy. Leamed counsel appearing ftn- tte responctents (urthersubmits thatthe rsasonsln detail need not be necessarily recorded while passing the order of suspension because this does not amount to punishment with chril consequences. The Rules, 1966 provkles for 90 days tfme for the State Govemment to supjrfy G<W o^ chaiges and other documenls from the date of onter of suspension under proviso to Sub-rute (2-a) <rf Rule 9 of the Rutes, 1966. The present petlUon fited by the peUttoner is premature anclcleserves to be dfemissed. Leamedcounsel for the respondents placed a reliance on the dedsions of the Supreme Court in State of Orissa ttirough Us Princlpal Secretary, Home Department vs. Blmal Kumar Mohanty reported in 1994(4) SCC 126; and in State Bank of India & Others vs. Harbanslal reported in 2000(6) SCC504. •- 1 91 <A 12. After having heard leamedGounsel for <he parUes and perusing the records tt fe found that there is no VKriaUon of provfeions<rf Rute 9 of the Rutes, 1966 befbre passing the order of suspenston on 27.052005. Ride 9 ofthe Rutes, 1966 reads as under: "SUSPENSION 9. (1) The appointing authority or any authorify to whfch ttfe subordinate or the discipllnary authorfty or any other authority empowered In that behaK by the Govemor by general or special order, may place a Govemmsnt swvant under suspensfon- (a) wherea dfeciplinary proceetfmg agatnsthim is contemplated or ispending, or (b) where a case againat hlm in respert of any criminal offence is under invenUlatkai. incpliry oftrial: provided that a Govemment Servant shall bwariably be placed under suspension when a challan for a criminal dfence invoh/ing comi|A>n or other moral turpitude is filed againsthim:] Provided ftirther thatwhsre the oTderofsuspensiwi is made by an authority lower ttian the appCTnUng authorily, such authority shall forthwtth report to the appomtir^i authority th8 circumstances In whichlheorderwas made. (2) A Govemment servant shall be deemed to have been placed under suspehsionby anoTder ofanxtinting authority- (a) vnUi efliectfrom thedate of hisdrtenUon, if he is delalned incustodywhetherbn acriminalcha^e or oittierwiseforap8riode)a»edingforty<uhthours; (b) wMft effectfrom thedate ofhisconvlction.if, h ttieevsntofconytetkmforanoffenoB.heissentenced loatermofimprisonmentexceecnngforty-eighthours and is not forthwith dlsmissed or remowed or compulsorily retiredconsequent to such convicfion. Explanation:-The pertod offorty-ejght hoursreferred to in dause (b) ofthls sub-rule shall be Gomputad from the commencement of the impriswiment aftw tte convteUon and <br thls purpose, intermittent periods of imprisonment, If any, shatl be taken into account. [(2-a) Where a Govemment seivant fe placad under suspenston under Gtaiis®^O of sub-ruls (1), ttw onter|<rf suspension idiafl contaln ttre reaswis for makir^ such order and where it is proposed to hold an »K|ui(yagainst such u J.LJ 1 A.il ••.» ax 7 ,.^ A. Govemment servant under rute 14, a copy of the arficles of chaiges, the statement <rf imputations of misconduct or misbehaviour and a li^ of docy»nente and witnesses by whteh each articte of chaige fe proposed to be su^ained shall be issued or caused fo be issued by the discipHnary authority to such Govemment servant as required l^ sut>- rute (4) of Rute 14,within aperiodof^ days from <he date oforderofsuspensfon: — Provided that where the disciplinary authorily ts the State Govemment, the ccw rt chaqies and other ckicumentsmenfionedatooveshanbeissuedorcausedtobe issued to such Govemment servant within a psriod of 90 daysfrom the date oforder ofsuspenston.] (2-b) Where the dlsciplinary authorty fauls to issue to the Govemment seivart, a copy pf ttie chaiges and other ckxuments referred to in sub-rulep-sO wBhin a period cf 45 days, the cliscipllnaiyauthority shall, brfore expiry ofthe said period, obtain orders in wrlting of <hs State Govemment for extensiw ofthe sakl period of suspensfon: Provided thsrt the period of suspenskm shall m no case be enhanced beyond a period of 90 days from the date of the wder of suspension. (3) Where a penaBy <rf (Vsmissal, renrovat or compulsofy reBrement from sen^ impwed upon a Govemment serwmt und<ar siKpenskm, is srt askte in appeal or on review undBT thwe utes a^ the case Is remittecl for further inquiry or acBon or wtti any other directfons, the order of hfe suspenshin shall be daemed to have condnued m foree on and from the date of oliginal order of dismissal, removal or compulsory rdirement and shall remain in foree unfil fttrther orders. (4) Where a penalfy of dismlssal, removal or compulsory retlrement from sennce imposed upon a Govemment servant, is set aslde or dedared or rendwed void In consequencs oforbya declsion ofacourt rftaw and Ihe discipfinary authortty, on a conadwatkm of the cireumstences of the case, decKfes to hold a ftirther inquhry against him on the alte^itions on whteh ths penalty of dismtssal, removal or cwnpulsory retlrement was origtnally imposed.the Govemment servant shall be deemed to have been placed under suspensfon by the appolnting aythority from <he dato of the or^inal order of dismissal, removal or compulsoiry r^rement arKl shaH contanue to FBnain un^ suspenston untll furiher ordere. I ' ' 1 (5)(a) An orcler <rfsysp9nsfon made or deemed to have been inadeunclerlhferule.shallcontinuetoremalnin force unUI it is modined or revoked by the auth<»rity competentto do so: IBIOUBUU ipsBaiie sift joj Aiinbue |etU9Ui|jBdap p|oq 01 pssodojd semi! teifl sgiiou asneo MOMS ai|} ui pa)eo!pu! <|ieepse }| •jeuojijied ein ^o uoneuqtlxs atfl Buuapisuoo jaye pessed SGMSOOZ'SO'ZZ PS»®P japjo uojsugdsns ai<i "jsuoi)t»eidaqip uoReueidxeBupises ^ooz'90'SO puefoOZ'ZO'SZ pStBpssoBOU a^neo woys psnssi aAeq s»U9puodsajsqi J-pspjoosjsq o»suosBei jo^ apeui lueuju.ieAOQaiBJo jepio UB Aq ideaxa p8i|o/ ii aq }ou tiei|s 6 9|m fo ((.) e|ru-qns 01 osiAojd isjy aqi japun epeui uoisuadsngjo jspjo ueieift pspuuMd] •sieuipjoqns si Aujoqine teift qaiqM o( Aiuoinne Aue Aq jo jspjosiii apeiu 9ABi| o»peiueep s!Joepeut(p!L|m^|iioiflne8t|tAqp8i|OAai jo paiflpoui aq siuit Aue ye ABUI 9|m aqt japun speui uwq aAeq 01 peuiasp jo epeui uoisuedsns^o jepjo uy [(p)] •sBuipaeaGKdtpns^oAuBJoiiB^pua^uiuuei etB inun uojsuadsns japun sq 01 anuBuoa j|Bt|s 'tueAjes lueunusAog atff i^^wejip ^B(H(UW ui u^^ eq o» aioa^» jc^ 'AeSi uojsuadsris jspun luiq soeid 01 }ueiediao3 Aiyoqine9(R 'uoi^iedsns )Bt(i y> eouenusuoo ai|i Buunp wiq isuiete pTOusiuiuoo si Byipeeoojd Aieutidiosip jeino Aue pue eswMeiflo JO Buipaeaud AiBuiidiosip Aue i|t!» uojpeuuoo ui. jeiflBi| ) 'pepuedsns ueaq eAeq otpsiusap si jio pepuedsns si tueAjasiueijuujaAOQ e SJSMAA K3)] {•IU114 6»penssi uaeq SAey 'f I. s|"J y> (lcNm-qns Aq pajinbaj se 'siueuinoop jeiflo puesaBjei<3 jo Adoo e wye uoisuedsns japun uitii aoe^l 'op 01 os lueipadxs sjspreuoo l! K 'ABIU tueisduipo AuioiflnB eqi (e) esneto jb psiAtud puooes 10 isjy 9i|t (flun souepjoaoe ui pe5|OA8J PUB(S uoisuedsns ^o siapjo esoqm 'IUBAISS vjeuiujaAOo e ^o tosdssj U| (q)] [•1UBA.18S lU9UIUJ8AOS40nS 0» penssiiou SJB (e-z) 9|iu-qns ui ot peueje^ siusuinoop jsiflo pue se6jet(3jo Adoo eift aseoui 'uoisuadsnsjojspjojo e(Ep sifl uioj»sAep 06 *o poped aiBjo Aiidxe uo pai|OA8j pueis ||et<s uoisusdais ^o jspjo aiB leqi jei(pn( papiAOJd :(q-^9|lu-qnsjepunpej!nbej se 'siueiunoop pies eqi y> snssi-jo} poyod aiRjouoisuapo joiiuauiujaAOQ aieiS sift ^o siepio aift BuiujBiqo ino>fljM 6li8luuJeA09 eieis Stfl tou s! t! j|) Atuoinne Ajeuiidosip sin Aq IUBAISS luauuuaAOQ qons oi panssi )ou aie (&-z) siru-qns ui o} paue^j siuguinoop jsiflo pue se&iBi|3jo Adoo BOSBO ui uoisuedsns y> jepjo jo aiep eifl urojt sfep aA^-Ayoi jo poyad ei(( (o Aiidxe uo pei|OA8J pueis ||a<s uoisuadsns jo jepjo BIB ieqi pepiAOJcfl "t>- fp 'tSSK t -« '•^s^ 1 ;^t=AiU- v-w '^ irregulariUes and derelicUon of duty commttted by the peUtioner, therefore, content'on crfttie teamed counsel for the petifioner cannot be accepted that there was no contemplatlon of departmentatenquiry and as such Vne suspension order was lllegal. Wrthregard to the contenUon ofthe leamed counsel for ttie peCUoner that the reasonswere notrecorded in the order, it is deariy found in the order of suspension dated27.05.2005 (Annexure P^) that the reasons to the extant that ttie petitioner had failed to perform his duties in purchaslng and plantingof cashew nut planls in Jamabada Micro Watershed and committed financlal irregularWes by causing financial loss to the State Exchequer. On perusfng the nottce dated 28.02.2004, replydated 26.04.2005, show cause nrttee dated 05.M.2004 and reply to that inthe monthofAugust,2004, It is deariyestablishedthat the departmental enquiry was under contemplation as prescribed under Rule 9(1)(a), therefore, the Impugned order islegal and valkl. 13. On the next submission i.e. detailed reasons have not been. recorded, therefore, tte suspenston order was illegal. St does notstand on the ground in view of the above stated facts. Reliance of the toamed counsel for the petitipner on the above cited decisions of UieSupreme Court Is not in the case of suspension but it was the case of expuncUon of adverse CRs. In <he case of Union of India & Others vs. E.G. Nambudiri (supra) tfie Supreme Ctiurt has observed as under: "6. - - - - --.-.. ff the statutory rutos require communteation of reasons, the same must be communiKrted but in the absence of any such provision absence of communlcationof reasons do n<A affect the valhtity of the order." In the present case there was no requirementundsr Rules, 1966 to communicate ttie reasons whteh are apparent In the ncSce antl reply to e peUUoner. In the case of State of Mysore Vs. M.H. Bellary (supra) ye 10 \»s. •"'\ and in Vidya Dhar Pande vs. Vidyut Grih Siksha Samjd & Others (supra) questlon of terminatlon was uncter conskleratfon inwriving punishment with civil consequences. The Supreme Court in P.L. Shah vs. Union of India (supra) hasconsiderad nature of suspenston and held as under: "6. An order of suspension is not an orderimposing punishment on a pereon found to be guitty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings iniUated agalnst him. Such proceedings should be completed expedWously in Uie public interest and also in the interest of the Govemment servant concemed. xxx xxx xxx" 14. Argument of the leamsd counsel for ttie p^Uoner is ttiat the petitioner is not posted at the ptace where the all^ed Irregularities and misconduct was committed and as such suspenslon is not necessary for smootti conduct of dei^irtmental enqulry is n<* acceptable. The petlUoner holding the same office in other place may Influencs and tamper withthe records at Janpad Panchayat, Jagdalpur. There may be an apprehension that the petiUoner holding office of the Chlef ExecuBve CTflcer may tamper with the record or Ukely to tamper wlth the record or may influence the enquiiy. 15. It is not necessary to go Into the questton of avallabitity of altemative remedy as the matter has been consklered on merits. 16. It is well settled principle of law that <he suqaension is temporary and ttdoes not involve punishment wfth civtl consequences. Suspenslon means a temporary deprivafion of the fiinctrons not amounting to any reducflon of his rank or his status. The emptoyee under su^>ension continues to be aGoivernment Servant, he is not permUted to work keeping in view pendency of departmentat enquiry to avdki undue 11 Kf, Sarma influence in the proceedin^of departmentd enqulryand likely tampering with on records. At this stage it is not necessary to go into the Ghaiges tevelted agai'nst the petlUoner because it may prejudtee the case (rfthe parties wherein the respondente are likety to initiat®the-departmental enqulry. Impugned order was passed on 27.(B.2005 by Uw State Govemment, the State Govemment has to submtt charge sheet and retevant documents under proviso to Sub-Rute (2-a) of Rute 9 of the Rutes, 1966 within 90 days. 17. In view of the foregoing, the suspension onter is valid and writ petition Is djsmissed accordingly. No order as to cosls. Sd/- Satish K. Agnihotri ^-"- Judge riBn'i