HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No. 4206 of 2008 Petitioner V.K. Chaturvedi Versus Respondents Post for pronouncement of the Judgment and Order on lg ~08-2008 Sdl— .Satish K. Agnihotri , Jixde g State of hhattisgarh & Another C HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No. 4206 of'zoos Petitioner V.K. Chaturvedi, S/o Shri Ramashankar Chaturvedi, aged about 46 years, Occupation Service, Presently posted as Deputy Director (Horticulture), Bilaspur (Chhattisgarh). Versus espondents 1. State of Chhattisgarh, through the Secretary, Department of Agricuiture (Horticulture), Mantralaya, D.K.S. Bhawan, Raipur (Chhattisgarh). 2. Director (Horticulture), Chhattisgarh, Mantralaya, D.K. S. Bhawan, Raipur (Chhattisgarh). (Writ petition under Article 226 of the Constitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J Present; Shri Manindra Shrivastava, Sr. Advocate with Shri Ashish Shrivastava, Advocate for the petitioner. Shri Arun Sac, Govt. Advocate for the State/respondent (Passed on this Ia “day of August, zoos) The petitioner, by this petition, challenges the legality and validity of the impugned order dated 22-7~2008 (Annexure—P/1) whereby he has been placed under suspension under the provisions of Rule 9 (1) (a) of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short ”the Rules, 1966”). The facts, in brief, as projected by the petitioner, are that the petitioner working as Deputy Director (Horticulture) was placed under suspension by the impugned order dated 22-7-2008 for alleged financial irregularities and acquisition of disproportionate movable & immovable '\,\ properties. R 3) Shri Shrivastava, learned senior counsel appearing on behalf of the petitioner, would submit that firstly; the impugned suspension order is bad in law, as the petitioner was promoted from the post of Assistant Director (Horticulture) to the post of DepUty Director (Horticulture) on 25-2-2008 (Annexure-P/10), therefore, all the irregularities alleged to have been committed in the light of notice dated 29-11-2006 (Annexure—P/2) stands waived, as the petitioner, thereafter, was promoted from the post of Assistant Director (Horticulture) to the post of Deputy Director (Horticulture) on 25-2-2008; secondly, the impugned suspension order does not assign any reasons for placing the petitioner under suspension, as required under the provisions of Rule 9 (1) (a) of the Rules, 1966 and; thirdly, the petitioner was not afforded any opportunity of hearing before the impugned suspension order was passed. 4) Learned senior counsel further submits that the notice was issued on 29-11-2006 on account of some complaints with regard to acquisition of movable & immovable properties. A detailed reply was submitted by the petitioner on 4-12-2006 (Annexure-P/3). Thereafter, certain more informations were sought from the petitioner. Pursuant to memo/letter dated 14—12-2006 (Annexure-P/4), the petitioner again submitted a detailed reply on 4-1-2007 (Annexdre-P/5). One more memo/letter was issued on 27-6-2007 (Annexure-P/8). Detailed reply thereto was also filed by the petitioner on 5-7-2007 (Annexure-P/Q). Thus, the impugned suspension order without considering replies of the petitioner is bad in law. 5) initially the suspension order dated 22—7—2008 (Annexure-P/1) menoned the designation of the petitioner as Assistant Director ti (Horticulture), Durg, which was subsequently, amended bycorrigendum dated 24-7—2008 (Annexure-R/1) correcting the designation of the petitioner as the then Assistant Director (Horticulture), Durg, at the relevant time. 6) i have heard learned counsel for the petitioner, perused the pleadings and the documents appended thereto. 7) The first contention of the petitioner that all the irregularities & illegalities have been waived when the petitioner was promoted to the post of Deputy Director (Horticulture) on 25-2—2008 (Annexure-P/1 0) does not merit acceptance. The petitioner has produced a copy of minutes dated 14—12—2007 whereunder the petitioner along with other similarly situated officers were considered on the basis of seniority as on 1-4-2006. Subsequent events were not taken into consideration when the petitioner was found fit in the Departmental Promotion Committee and was accordingly promoted as Deputy Director (Horticulture). 8) Be that as it may, this is a subject matter of charge sheet and enquiry, which are not under challenge in the case on hand. Thus, the issue on merit cannot be considered in this petition wherein the suspension order dated 22-7-2008 alone is under challenge. 9) So far as the second contention with regard to assigning reasons in the impugned suspension order is concerned, it is clear from perusal of the impugned order dated 22-7-2008 wherein in categorical terms the reasons for suspension have been recorded i.e. acquisition of disproportionate property more than his income and financial irregularities in conduct of his works. Keeping in view it was contemplated to hold a departmental enquiry against the petitioner, therefore, the contention that reasons were not recorded is without any basis and deserves to be \\ ’ rejected . \ 10) As far as the third contention that no opportunity of hearing was afforded before passing the impugned order is concerned, the rules do no require notice before passing the order, the suspension order is passed under the provisions of Rule 9 (1) (a) of the Rules, 1966 which is not vitiated. 11) In the case of Union of lndia and others vs. E.G.'Nambudiri1, the Hon’bie Supreme Court observed as under : “6 ..... if the statutory rules require communication of reasons, the same must be communicated but in the absence of any such provision absence of communication of reasons do not affect the validity of the order.” 12) The Supreme Court in the matter of P.L. Shah vs. Union of India and anotherz, observed as under : “6. An order of suspension is not an order imposing punishment on a person found to be guilty. lt is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him ....... " 13) The Supreme Court in the matter of State of Orissa through its Principal Secretary, Home Dept. vs. Bimal Kumar Mohanty3, observed as under: “13.....It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the" appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is 1(1991) 3scc 38 2 (1989) 1 SCC 546 \ \30994) 4 scc 126 expedient to keep an empioyee under suspension pending aforesaid action. it would not be as an administrative routine or an automatic order to suspend an employee. it should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. lt would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.” 14) The identical question came up for consideration before this Court inthe matter of U.K. Pambhoi vs. State of C.G. & Others", wherein it was observed as under : “16. lt is well settled principle of law that the suspension is temporary and it does not involve punishment with civil consequences. Suspension means a temporary deprivation of the functions not amounting to any reduction of his rank or his status. The employee under suspension continues to be a Government Servant, he is not permitted to work keeping in view pendency of departmental enquiry to avoid . 4 2006 (1) CGLJ 229 undue influence in the proceedings of departmental enquiry and likely tampering with on records. At this stage it is not necessary to go into the charges levelled against the petitioner because it may prejudice the case of the parties wherein the respondents are likely to initiate the department enquiry. impugned order was passed on 27-5-2005 by the State Government ..... " 15) Rules 9 (1) (a), 2 & (2-a) ofthe Rules, 1966 read as under: “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 (b) .where a case against him in respect of criminal offence is under investigation, inquiry or trial : Provided that a Government shall invariably be placed under suspension when a challan for a criminal offence involving corruption or other moral turpitude is filed against'him. pending, or Provided further 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 saspension (a) with effect from the date of his detention, if he is detained in custody otherwise for a period exceeding forty- (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. v by an order of appointing authority-- whether on a criminal charge or eight hours; 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, intermittentperiods 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