IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1462 of 2006 (S/S) Kunwar Singh Danu S/o Sri Mohan Singh Danu ..……… Petitioner Versus State of Uttarakhand and others ……… Respondents Shri M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner Mr. Subhash Upadhyaya, the learned Brief Holder for the respondents. Hon’ble Tarun Agarwala, J. The petitioner was appointed as a Peon in the Government High School, Baghar, Bageshwar in the year 1990. The petitioner applied for a housing loan and was sanctioned a sum of Rs.50,000/- towards housing loan in the year 1990. It is alleged that the petitioner manipulated the sanctioned order and instead of withdrawing a sum of Rs.50,000/-, a sum of Rs. 3,50,000/- was withdrawn. When the correct facts were found out, the District Inspector of Schools issued an order dated 06/11/1999 directing the recovery of Rs. 3.50 lacs in 270 monthly instalments of Rs. 1500/- from February, 2000 onwards. The petitioner, being aggrieved by the said order, filed a writ petition No. 1952 (S/S) of 2001 in which an interim order dated 18/11/1999 was passed staying the recovery of the entire amount. The Court, however, directed that deduction @ Rs. 1500/- per month will be made from the salary of the petitioner. Based on the aforesaid mis- demeanour, the petitioner was suspended by an order dated 31/12/1999. The petitioner filed writ petition No.1201 of 2000 questioning the suspension order which was dismissed by an order dated 12th January, 2000. The Court, while dismissing the writ petition, directed the authority to complete the inquiry within three months. Based on the aforesaid order, the petitioner was 2 chargesheeted and the inquiry was completed and the disciplinary authority passed an order of punishment dated 11/11/2000. By the said order, the suspension order was revoked. It was found that the petitioner had wrongly taken a loan of 3.50 lacs instead of taking a loan of Rs. 50,000/- and, consequently, directed that the recovery of the amount would be made by a deduction of Rs.1500/- per month from the salary of the petitioner. Before the order of punishment could be passed, a criminal complaint dated 10th June, 2000 was also lodged by the employers before the police station with regard to the aforesaid charge of Rs.3.50 lacs as well as other charges. Based on the investigation made by the police authority, the petitioner was arrested on 8th July, 2001 and detained in jail for more than 48 hours, as a result of which, the petitioner was again suspended by an order dated 13th July, 2001. The employers, after considering the matter, passed an order dated 21/01/2001 holding that the petitioner would continue to remain under suspension and that the final order would be passed after the disposal of the criminal case and that the recovery would also be made after the orders of the criminal court was passed. It may be stated here that against the recovery order issued by the District Inspector of School, the petitioner had filed writ petition No.1952 of 2001 in which an interim order was passed on 18/11/1999. The writ court made the interim order absolute by its order dated 20th March, 2006 and disposed of the writ petition accordingly. In the light of the aforesaid factual position, the petitioner preferred the present writ petition praying for the quashing of the suspension order dated 13th July, 2001. The contention of the 3 learned counsel for the petitioner is, that he has been suspended twice on the same charge and that on the same charge, an order of punishment had already been passed which has become final and, therefore, on the same charge, the second suspension order could not be passed. Heard Shri M.C. Kandpal, the learned Senior Counsel duly assisted by Mr. S.S. Chaudhary, the learned counsel for the petitioner and Mr. Subhash Upadhyaya, the learned Brief Holder for the respondents. The submission of the learned counsel for the petitioner that the petitioner cannot be suspended again on the same charge seems to attractive in the first flush, but on a closer scrutiny, the Court finds that the submission of the learned counsel for the petitioner cannot be accepted. The reason is that the petitioner was initially suspended for defrauding the respondents by withdrawing the housing loan of Rs. 3.5 lacs whereas only a sum of Rs. 50,000/- was sanctioned. The petitioner was suspended again for the second time on the basis of the complaint dated 10th June, 2000 in which the charges are not only against the withdrawal of Rs. 3.50 lacs towards the housing loan but also relates to forgery and other charges. Based on this complaint and, after investigation, Criminal Case No.1 of 2000 u/S 420, 467, 468 and 471 I.P.C. was registered. The matter is pending consideration before the Criminal Court. Consequently, the Court is of the opinion that the second suspension made against the petitioner did not relate to the same charges on the basis of which the petitioner was suspended initially. The submission of the learned counsel for the petitioner cannot be accepted. 4 Admittedly, the proceedings under the criminal case before the criminal Court is going on and it is not known as to when the criminal case would conclude. The question that comes up for consideration is, whether the suspension order should be allowed to continue indefinitely, especially, when it is not known when the criminal proceedings would attain finality. The relevant Rules under which the petitioner was suspended is the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Rule 4 (2) and 4 (3) sub-clause (a) and (b) are relevant for the purpose of deciding the present controversy. For facility, the said provision is extracted below:- “4. (2) A Government Servant in respect of, or against whom an investigation, inquiry or trial relating to a criminal charge, which is connected with his position as a Government Servant or which is likely to embarrass him in the discharge of his duties or which involves moral turpitude, is pending, may, at the discretion of the Appointing Authority or the Authority to whom the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to that charge. (3) (a) A Government Servant shall be deemed to have been placed or, as the case may be, continued to be placed under suspension by an order of the Authority competent to suspend, with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise, period exceeding forty eight hours. (b) The aforesaid Government Servant shall, after the release from the custody, inform in writing to the Competent Authority about his detention and may also make representation against the deemed suspension. The 5 Competent Authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provisions contained in this rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it. The said provision is more or less pari materia to Rule 49-A of U.P. Civil Services (Classification, Control and Appeal) Rules, 1930. For facility, the said provision is extracted below:- “49-A. (1) A Government servant against whose conduct an inquiry is contemplated or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the appointing authority : Provided that in the case of any Government servant or class of Government servants not belonging to State service, the appointing authority may delegate its power under this sub-rule to the next lower authority: Provided further that any other authority empowered by the Governor by general or special order in this behalf, may place a Government servant under suspension under this sub-rule: Provided also that in the case of a member of a judicial service (within the meaning of Article 236 of the Constitution), the Governor may delegate his powers under this sub-rule to the High Court. (1-A) A Government servant in respect of or against whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the appointing authority under whom he is serving, be placed under suspension until the termination of all proceedings 6 relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. (2) A Government servant shall be deemed to have been placed, or as the case may be, continued to be placed, under suspension by an order of the appointing authority - (a) with effect from the date of his detention, if he is detained in custody whether the detention is on criminal charge or otherwise, for a period exceeding forty-eight hours; and (b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. 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, intermittent periods of imprisonment, if any, shall be taken into account. (5) (a) Any suspension ordered or deemed to have been ordered or to have continued in force under this rule shall continue to remain inforce until it is modified or revoked by any authority specified in sub-rule (1). (b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection, with any disciplinary proceedings or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, directed that the 7 Government servant shall continue to be under suspension till the termination of all or any of such proceedings. ” A Full Bench of the Allahabad High Court in the case of C.S. Saxena Vs. Director of Education (Basic) U.P., Lucknow and another, [(1997) 1 UPLBEC 165], after analyzing the aforesaid provision of Rule 49-A held as under :- “27. We have considered all the cases cited by the learned counsel for parties. However, we do not find anything on which basis the view we have expressed above may be doubted or shaken. Our conclusions and answer to the questions referred to us are as under:- (A) Sub-clause (a) of sub-rule (2) of Rule 49- A of Civil Services (Classification, Control and Appeal)Rules, 1930, as applicable in Uttar Pradesh, is not violative of Article 14 and 21 of the Constitution of India as held in case of Jagjit Singh Vs. State of U.P., reported in (1996) 1 UPLBEC 405 and the judgment is here by over-ruled. (B) The legal fiction envisaged under sub- rule (2) (a) and (b) of Rule 49-A shall come into play and a deemed suspension by an order of the appointing authority shall come into existence if the Government servant is detained in custody for more than forty-eight hours even in absence of any order in writing passed by the appointing authority. (C) The deemed suspension provided under sub-rule (2) of Rule 49-A shall be continued to the period of detention in custody and not beyond that. (D) The deemed suspension by an order of the appointing authority under the legal fiction 8 provided in sub-rule (2) may be continued after release by the appointing authority by passing an express order taking into account the guidelines provided in other sub-rule of Rule 49-A according to the facts and circumstances of the case. (E) The deemed suspension under sub-rule (2) of Rule 49-A may be modified or revoked by the appointing authority on a representation made by the Government servant which shall be considered and decided taking into consideration the guidelines provided in sub-rules (1) and (1-A) of Rule 49-A.” From the aforesaid, it is clear that the suspension order on the ground that the petitioner was detained in custody for more than 48 hours could continue by passing an express order by the appointing authority taking into account the guidelines provided in Sub-Rule (1) and (1-A) of Rules, 49-A which contemplates that the charge is connected with his position as a Government Servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. The provision of Rule 49-A of CCA Rules is pari materia to Rule 4 (2) and 4 (3) of Rules, 1999. The judgment of the Full Bench of the Allahabad High Court in the case of C.S. Saxena (Supra) is squarely applicable. Therefore, under the Rules of 1999, if a Government servant is detained in custody for more than 48 hours, he is deemed to be under suspension by a deeming fiction, and that, the appointing authority, can continue the suspension by passing an express order, if it is of the opinion that the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or it involves moral turpitude. 9 In the light of the aforesaid, the impugned order dated 20/10/2001 is required to be considered. The authority allowed the suspension order to continue on the ground that final orders on the mis-demeanour of the petitioner would be passed after the final orders are passed by the criminal court and, that the recovery would be made as per the orders of the criminal court. The court finds that the guidelines provided under Rule 4 (2) of the Rules of 1999 has not been considered. Consequently, the continuance of the suspension order till the disposal of the criminal case does not appear to be justified. There is another aspect which is required to be considered. The disciplinary authority while passing the order dated 20/10/2001 had itself stayed the recovery of the amount. If the petitioner continues to remain under suspension, the recovery of Rs. 3.50 lacs in monthly instalments cannot be recovered. Consequently, it is in the interest of the employers that the petitioner is reinstated and is paid full wages so that the recovery of the amount is made from his salary in monthly instalments. In the light of the aforesaid, the suspension order dated 13th July, 2001 is quashed. The writ petition is allowed. The petitioner shall be reinstated and shall be allowed to work and should be paid the wages that is due and payable to him. It would be open to the employers to recover the amount of Rs. 3.50 lacs in monthly instalments @ Rs. 1500/- per month as per the order dated 11/11/2000. In so far as the wages or subsistence allowance for the period 13th July, 2001 till the date of the passing of this order is concerned, it has come on record that the petitioner did not report and continue to remain absent. Consequently, the subsistence 10 allowance or the salary for this period would be subject to the final order that would be passed by the employers after the disposal of the criminal case. In the facts and circumstances of the case, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 18.03.2010 Shiv