IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 72 of 2009 (S/S) Chandra Pal Singh S/o Sri Ratan Singh ..……… Petitioner Versus State of Uttarakhand and others ……… Respondents Shri D.S. Patni, Advocate for the petitioner. Shri Subhash Upadhyaya, the learned Brief Holder for the respondents. Hon’ble Tarun Agarwala, J. The petitioner was appointed as a Patwari in the year 1982 and was arrested by a trap team of the Vigilance Deptt. on 13th September, 2007 when a sum of Rs. 5,000/- was recovered from his possession. Based on the said recovery, a first information report was lodged, on the basis of which, an investigation was made and, now a criminal case is pending before the Criminal Court against the petitioner. In the meanwhile, since, the petitioner was detained in custody for more than 48 hours, the petitioner was suspended by an order dated 25th September, 2007. Subsequently, an inquiry was initiated and, based on the inquiry report, the disciplinary authority issued an order dated 08/12/2008 revoking the inquiry proceedings and directed that a final decision would be taken after the disposal of the criminal case by the criminal court and, that the petitioner would remain under suspension till the completion of the criminal trial. The petitioner, being aggrieved by the order of suspension dated 25th September, 2007, as well as by the order dated 08/12/2008 has filed the present writ petition. Heard Shri D.S. Patni, the learned counsel for the petitioner and Shri Subhash Upadhyaya, the learned Brief Holder for the respondents. 2 The learned counsel for the petitioner submitted that once the domestic inquiry proceedings has been revoked, there was no contemplation of an inquiry and, consequently, the petitioner cannot remain under suspension any longer. The learned counsel for the petitioner submitted that an employee could be suspended in exceptional cases where disciplinary proceedings are contemplated. The learned counsel submitted that in the present case, the inquiry proceedings has been revoked and, therefore, the continuance of the suspension order is patently illegal. In support of his submission, the learned counsel placed reliance upon a decision of this Court in the case of S.K. Goel Vs. State of Uttaranchal and another, 2005 (2) U.D. 11, wherein the Court held that it was not necessary that an employee should be suspended in every case where disciplinary proceedings are contemplated. In my opinion, the said judgment is not applicable, in as much as, the petitioner was initially suspended under contemplation of an inquiry but, subsequently, the inquiry proceeding was revoked on the ground that on identical charges, the criminal case was pending and the employers thought that it would be proper to await the result of the criminal proceedings. The impugned order dated 08/12/2008 was passed in accordance with the Rule 4 (2) of the Uttaranchal Government Servant (Discipline and Appeal ) Rules, 2003 which provides for suspension of an employee during the pendency of the criminal trial. The learned counsel for the petitioner submitted that even Rule 4(2) of Rules, 2003 are not applicable and that the necessary ingredients provided therein have not been taken into consideration and. consequently, the suspension under Rule 4 (2) is also bad in law. In support of his submission, the learned counsel for the petitioner also placed reliance upon a decision of 3 this Court in the case of Abid Hussain Vs. State of Uttaranchal and another decided on 13th November, 2009 in WP No.381 of 2009 (S/S). Having heard the learned counsel for the parties, the court finds that the judgment cited aforesaid in the case of Abid Hussain (Supra) is distinguishable and, consequently, not applicable. In the aforesaid case, the court found that the necessary ingredients contemplated under Rule 4 (2) had not been considered by the appointing authority and, therefore, the discretion exercised by the appointing authority in allowing the employee to continue under suspension was illegal. In order to elucidate this aspect of the matter, Rule 4 (2) and (3) of the Rules, 2003 are extracted below for facility:- (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 Competent Authority 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 4 Competent Authority about his detention and may also make representation against the deemed suspension. The 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 5 under suspension until the termination of all proceedings 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 6 to be recorded by him in writing, directed that the 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 7 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. In the light of the aforesaid, the Court has perused the impugned order dated 08/12/2008 and finds that the disciplinary 8 authority has placed the petitioner under suspension on the ground that it will cause a lot of embarrassment, if the petitioner is allowed to continue to perform his duties, especially, when the confidence and faith of the public at large has eroded. In my view, the ingredients specified under Rule 4 (2) of Rules, 2003 has been considered and the authority has exercised its discretion. This Court does not find any error in the discretion which has been validly exercised by the disciplinary authority. In the light of the aforesaid, this Court does not find any error in the suspension order at this stage. Consequently, the writ petition fails and is dismissed. However, if the criminal proceedings pending before the criminal court is not disposed of expeditiously and the petitioner’s suspension order is allowed to continue indefinitely, it would be open to the petitioner to apply afresh before the authority concerned for the revocation of his suspension order. (Tarun Agarwala, J.) Dated 18.03.2010 Shiv