BEFORETHEHIGH COURT OF CHHATTISGARHAT BILASPUR (C.G.l ^s) WRIT >.§q- ^ V Shiydayal Paikara, S/o Shri Vansh Kumar Paikara, Aged about 40 years, By occupation Block Education Officer, Ramanuj Nagar, District Sarguja (C.G.l. A77 PETITIONER 0<f •°/^? ^x^/ ^i^ ??.' ^l ^.7 1. &' 12. A ,€?.<£> Jr".<^3- ^-'s' The State of Chhattisgarh, Through: The Secretary, Department of Scheduled Castes, Scheduled Tribes and O.B.C. Development, Mantralaya, Raipur (C.G.). Collector; . Sarguja-Ambikapur (C.G-). Shri S.S.Nawarji, Incharge,Block Education OffiGer', Bhanupratappur, District Kanker (C.G.). Shri G.Toppo, Principal, Government High School, Changori Bahar, Block-Kansabel, District Jaspur (C.G.). WMT PETITION UNDERARTICLE 226/227 OF THE CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONER As given in the cause title aboye. ^:..- HIGH COURT OF CHMATTISGARH : BILASPUR Writ P6tition (S) No.27 of2008 Shivdayal Paikara Versus The State of Chhattisgarh & Others Post for pronouncement of the judgment and order on^-3-2009 Sd/- Satish K. Agnihotri Judge -^ ^f' PETITIONER MIGHCOURTOFCMHATTISGARH:BILASPUR Writ Petition (S) No.27 of 2008 Shivdayal Paikara, S/o Shri Vansh Kumar Paikara, aged about 40 years, By occupatioh Block Education Officer, Ramanuj Nagar, District Sarguja (CG). RESPONDENTS Versus 1. The State of Chhattisgarh, through the Secretary, Department of Scheduled Castes, Scheduled Tribes and O.B.C. Development, Mantralaya, Raipur (CG). 2. Collector, Sarguja, Ambikapur (CG). 3. Shri S.S. Nawarji, Incharge Block Education Officer, Bhanupratappur, District Kanker (CG). 4. Shri G. Toppo, Principa), Government 1-ligh Schobl, Changori Bahar, Block Kansabel, District Jashpur(CG). (Writ petitionunder Article 226/227 ofthe Constitution of India) Single Bench : Hon'bleShri Satish K. Agnihotri,'J. Present:- Shri Amit Kumar Sharma, counsel forthe petitioner. Shri Arun Sao, Govt. Advocate for the State. ORDER (Passed on this ^3r'dav of March, 2009) Challenge in this petition is to the suspension order dated 6-10-2007 (Annexure - P/6) and charge sheet dated 30-10-2007 (Annexure - P/7). Alternatively for quashing of promotion list dated 8-11-2007 (Annexure— P/10). ' ^ 2) The facts, in nutshell, as projected by the petitioher, are that the petitioner was promoted for the post of Lecturer, Migher Secondary School (Class—II Gazetted Officer) and posted at Odgi, DistrictSarguja by order dated 30-7-1991 (Annexure- P/1).Thereafter, thepetitioner wasassigned the charge of Block Education Officer, Sonhat, District Koriya temporarily by order dated 23-12-2002 (Annexure - P/2). Subsequently, on 28-6-2006 (Annexure - P/3) the petitioner was transferred from Block Education T 1sI(t'"CTS;':t"*E^CT"'u aHin5<«£wui»aS^^i ^^^S^^^ i ii]i1: W ' !:-:' a ; 31;' ';'"%13|!B!^B S'S'^^ffS 1 •I •14 I1 "('pt' i!ta|i^[i;EJ 2 Officer, Sonhat to Block Education Officer, Ramanujnagar, District Sarguja. During his posting at Ramanujnagara noticedated 27-9-2007 (Annexure - P/4) was issued by the Gollector on the basis of preliminary enquiry finding that there was certain irregularities. Having found the irregularities with the funds of T.L.E. Scheme the petitioner was placed under suspension by order dated 6-10-2007 (Annexure - P/6) by the Collector, Sarguja, Ambikapur. Thereafter, charge sheet has been issued by the Collector on 30-10-2007 (Annexure - P/7), which is pending consideration. Thus, this petition impugning the suspension order as well as the charge sheet. 3) Shri Sharma, learned counsel appearing for the petitioner does not press any other point except that suspension is illegal, as the same is not issued byacompetentOfficer.Thepetitionerisa class I] gazetted officer and the appointing/disciplinary authority is the State Government through ComrnissiOner, Tribal Welfare, Shri Sharma relies on the provisions of Section 9 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short "the Rules, 1966") and submits that the su.spension order can be by appointing authority or any authority to which it is subordinate or the disciplinary authority or any other aufhority empowered in that behalf by the Governor by general or special order. The Collector has not been authorized by general or special order by the Governor to suspend class II gazetted officer in exercise of power under Section 9 of the Rules, 1966. Thus, the suspension order is void afi inifio. 4) Per contra, Shri Sao, learned coun'sel appearing for the State submits that the suspension order issued by the Collector is legal, as the same has been confirmed by the State Government by order dated 20-11-2007 (Annexure - R/1). The charge sheethas been issued and departmental enquiry is pending consideration. With regard to promotion, the same cannot be agitated in this petition. Even otherwise, the promotion was made strictly in accordancewith law. S) 1 have heard learned counsel appearingfor the parties, perused the pleadings and the documents appehded thereto. As the petitioner has given up other reliefs with regard to quashment of charge sheet or promotion order, 1 am consideringthe question of issue of suspension order alone. Even otherwise, the petitioner has not raised any ground in fhe petition with regard to promotion except tHat juniors have been promoted. The. petitioner hasnot made out a case for any interference on the ground that there was any discrimination, arbitraririess orviolation of rules and clli llf)U; itEa^t-iiaiaimKBKKS ^i^ii«^ssK»!U5tHsaKiai!«taa <S^iniK^jaffi^3^SBBS@a^^Bi^3 •••'-•-^l--.:^^'-..^y^i\^^?^^t^^-y£^^^^-^^^ regulations. Once charge sheet has been issued that cannot b.e interfered with atthis stage when the disciplinary enquiry is in progress. 6) Rule 9 (1) ofthe Rules, 1966 reads as under: "9. (1) The appointing authority or any authority to which if 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 oris pending, or (b) where a case against him in respect of criminal offence is under investigation, inquiry or trial: Provided thata Governmentshall invariably be placed under suspension when a challan for a criminal offence involvihg corrupfion or other moral turpitude is filed against him. Provided further that where the order of suspensionis made byan authority lowerthan the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made." 7) Second proviso of Rule 9 (1) of the Rules, 1966 provides that where the order of suspension is made by an authority low6r than the appointing authority, sueh authority shall forthwith report to tHe appointing authority the circumstances in which the order was rrlade. Admittedly, after the suspension order Was passed during contemplation of enquiry it was reported to the State GOvernment and the State Government by order dated 20-11-2007 (Annexure - R/1) has confirmed the suspension order dated 6-10-2007. Thus, the suspension order dated 6-10-2007 cannot be held as bad and illegal. Reliance of the petitioner on the order issued by fhe General Administration Department, Government of Madhya Pradesh to the effect thatsuspension must be ordered by the authority empowered in fhis behalf, subsequent authorization cannot cure the initial infirmity, is 6f no help to the petitioner, as a provision under the statutory rules, canhdt be supplanted orsuperceded by an order. - The Supreme Court in P.L. Shah vs. Union oflndia and anotner , observed as under: "6. An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proGeedings initiated against him......." 1 (1989)~1 SCC 546 Kla 9) The Supreme Court in State of Orissa througH its PrinGipal Secretary, Home Dept. vs. Bimal KumarlVIohanty , dbserved asunder: "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 misccinduct 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 miSGOnduct sought to be inquired into or investigated and the nature of the evidenceplaced before the appointing authority and on application of the mind by disciplinary authority. Appointing authority 6r disciplinary authority should consider the aboveaspects and decide whether it is expedient to keep an employee urider 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 ah employee to discharge the dutiesof 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 6f service that dereliction 6f duty would pay fruits and the offending employee could get away even pending inquiry without any impediment orto prevent an opportunity to fhe delinquerit officerto scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impedethe progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending pn the nature of the allegations, gravity of the situation and the indelibte impact it creates on theservice for the continuance of the delinquent employee in service pending inquiry or contemplated inquiryor investigation. It 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." ^w. iiSSi&iiul 10) The identical question came up for consideration before this Court in the matter of U.K. Pambhoi vs. State of C.G. & Others , wherein it was observed as under: "16. It 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 Sen/ant, he is not permitted to workkeeping in view pendency of departmental enquiry to avoid undue influence in the proceedings of departmental enquiry and likely tampering with on records. At thjs stageit 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....." 11) Applying the well settled law to the facts of the present case and for the reasons mentioned hereinabove, the petition is liable t6 be dismissed and it is herebydismissed. However, without expressing any opinion on the promotion order, liberty is reserved to the petitioner to challenge the promotion order, if so advised, in accordancewithlaw, as the same was an alternative prayer in this case. No order asto costs. y^ ^ 12) Consequently, interim reliefgranted earlierstandsdischarged. »AL^»WV Gowri- $^^Se ^f^ 2006 (1) CGLJ 229