=» ^o--- v^" ^. IN THE HIGH COURT OFJUDICATURE AT BILASPURfC.G.) WRFT PETITION No.4'2-8/2006. SSIIflSQ' S30Cl PETITIONER K\ 1\* RESPONDENTS Uttar Kumar Bhoi (Assistant Teacher), S/o. Malikrara, Aged about- 43 years, R/o. Village- Kamharpali, Tehsil- Saraipali, Distt; Mahassimund (C.G.). VERSUS 1. State of Chhattisgarh, i^ Through : The Secretary, Education Department, D.K.S. Bhawan- Raipur (C.G.). 2. The District Education Officer, Mahasamund, District.- Mahasamund (C.G.). 3. The Naib Tehsildar, Saraipali, District.- Mahasamund (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA. The above named petitioner humbly and respectfully begs to submit as under: - 26 HIGH COURT OF CHHATT-ISQARH : BILASPUR WRiT PETTT-ION N0. 428 OF 3006 Uttar Kumar Bltoi Vs. State of Chttattisgarh & Others O RU E R (Dated 30th Jaauar?. 20061 1——'-—— — - —————jy —.•—•y /^ ;i t!I^tlu aal^imSKSil^ai!ilMfe«ABi»M^EimU»UUI^AU- m 7 HIGH COURT OF CHHATTISGARH : BILASPUR WRI'T PETi'TION N0. 428 OF 2006 Uttar Kumar Baol Vs. State of cahattisgarh SB Others .rrcseact :- Slirl Pushpeudra Kuiuar Patel, couiisel for the peuuouer. Shri A.S. Kachliawaha., Dy. Govt. Advocate for fhe -Sts.te of CliIis.ttissfSTli, O RD B R 'Dated 30th Jaauar'n', 2.0061 Per Hon'ble Siu-i FaKhruddla, J Hearcl. •^.. By Uus penuon Lmcler Article '2:2bj'££l ot ttte Constitution of India the petitioner chalienges the order dated 2-1-2006 (Annexure-P/1) passed by respondent No.2/'The District Education Officer, Mahasamund, whereby the District Education Officer has suspended fhe petitioner from. his semces. 3. Leanied counsel tbr fhe petitioner subnuts tnat ffae petitioner is worlang as aa Assistaat 'l'eacJier ui Uoverruaent Primaiy School, Baajibahal, Block Saraipali, District Mahasamund. He further submits ffaat fhere is aa auegation ^aiust ttie petitioner that tie encroacned upon Uie Govenuiient land and for this Nayab Tehsitdar, Saraipali registered a case agauist fhe petitioner bearing case No.49- A/68/2004 and passed aa order dated 11-4-2005 whereby the ^ 28 ft- Nayab Tehsildar imposed fiae ofRs.500/- upon tlie petitioner under Section 248 of fhe M.P./C.G. Laad Revenue Code. Leamed counsel subinits that against fhe order dated 11-4-2005, 'fhe petitioner preferred aa appeal before the Sub Divisional Officer, Saraipali, which is registered as Revenue Appeal No.lOy-A/68/2004-2005 aad the same is pendiag for consideration. He also subinits fhat fhe District Education Officer issued the suspension order dated 2-1-2006 on fhe ground fbat fhe petitioner has not paid the tine aoiouat of Rs.500/- in compliance of order dated 11-4-2005 passed by the Nayab Tehsudar, aad ignored fhe order of Nayab Tehsudar aad also violated titie C.G. Civil Services (Classification, Control aad Appeal) Rules, 1966. 4. The contention of leamed coiinsel appearing for the petitioner is that the petitioner has preferred statutor^7 appeal before fhe Sub Divisional Officer alongwith an appUcation for grant of stay. Leamed coiuisel furuier subaiits that since fhe petitioner preferred an appeal which came up for hearing on 9-6-2005, on fhat date the record was called for and date was piven for 11-7-2005. On 11-7-2005 the matter was fixed for 30-11-2005. On 30-11-2005 counsel was present and fhe case could not be taken up as the Sub Divisional Officer was busy and the Diatter was uxed tbr 12-1-2006. Leamed counsel submits that before fhat on 2-1-2006 fhe District ^Sducation Ofiicer passed the iiapugned suspension order. ^•^B—NBIIIuttoixw.'Sllg^ft.a!* 29 5. The suspension order has been passed as a resmt of 'suspension syndroiae'. It has to be issued in accordance with Rule 9(1) of the C.G. CivU Services (Classification, Conti'ol and Appeal) Riiles, 1966. 6. Leamed counsel appearing for the petitioner referred to Rule 9(1) of the C.G. Civil Services (Classification, Control aad Appeal'j Rules, 1966, which is relevant and quoted below : "9(1) The appointing authoritv' or any authoritv to which it is subordinate or the disclplinary authority or anv other authoritv' empo'.vered in that behalf by the Govemor by general or special order, may pl.ace a Goverrunent servant under suspension - (a! wnere a aisciplmary proceecling against him is contemplated or is pending, or (b) where a case against hini in respect of any crmiinal offence is under investigation, uiqiitry or tnal: lfProvided that a Goveniment Servant shaU invariably be placed under suspension when a cnallan tor a criminal oflence involvins corruption or othcr moral turpitudc is fllcd against him:1 Rrovided furtlier tnat where fhe order of suspension is made by an authority lower than the appotntuig authority, such aumority shau forthwiui report to Uie appoiiiting authority the which the oraer was made. £3. .<Tiir><~*i Ti-m e<+<~»·*~>/^><s£^ •i-»-i iC ^li^LLLU.StcLLA^C& iijl r suspension bv an f2'| A Govemnient servant shaU be deemed to have been placed iinder order of appouiting aufhority - fa') with effect froin the date of his detention, tained in custody whether on a if he is detained cruntnal charge or othenvise for a period cxcccding foily-cight hours; f'b) with effect from. the date of his conviction, tf, in the event of a conviction for an offence, he is sentenced to a term of unprisoniaent exceeding fort^'-eight hours and is not forthwifh dismissed or removed or compulsorily rettred consequent to such conviction." ^ 7. Leamed counsel for the petiuoner placed reUance upon the decision of Supreme Court rendered in fhe case Stcste of Ortssa fThroush its Principal Secretani, Hom.e Dept.) vs. Btmcil^Kumaf^MohanSy reported in (1994] 4 SCC 126. He referred to para 13 of the judgment, which is relevant and quoted below: "13. It is thus settled law fhat noroiallv when appouiting aufhorit'y or the disciplinarv' authoritv seeks to suspend an employee, pciiding m^uiij- OA coAiT.cinpis.i.eci inc^uiijf Ox pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension Vvould be passed after taktng iuto consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placcd bcforc fhc appointing authority and on application of the mtnd by disciplinan' authority. Appointing /ii fi-in^t-r^-^T .iUl LLy disciplinary aufhority should consider ftie above aspects and decide whether it is expedient to keep an employee under suspcnsion pcndtng aforcsald action. It would not be as an administrative routine or an autoinatic order to suspend an employee. It should be on consideration of the gravit-y' of the aUeged mijconduct or the natiire of fhe allegations imputed to fhe delinquent employee. The Court or the Tribunal must consicicr cs.eu cs.se ou ITS GWII IQCT-S suci. uo general law could be laid down in that behalf. Suspension is not a punishinent but is onlv one of forbidding or disabling an employee to discharge the duties of ofilce or post held by hiia. In ofher words it is to refrain him to avail furfher opportunity to i- perpetrate fhe atleged misconduct or to remove the unpression among .the members of service fhat dereliction of duty would pay fruits and the oflFending employee could get away even pencling mquiry wittiout any unpediment or to prevent an opportunity to fhe delinquent of&cer to scuttle fhe inQuiry •i-r^Tr^c^^-i/lf/Ti+t/^f-i /-iv ^~/^ TTTi-ri /^TT'^-V +^-»^& TTT^^y^.^c^c^i^ac^ C-£?LliS.CXLl.kJlJ. \Ji \AJ W 111 VJVd U-ii./ VvAU.Ad5>£>Co or the delinquent having had the opportunity >fR +1-1. ->f +h, in oiiice T-G uupecie uie pxogrcss 01 i/ue investlgation or tnqutry etc. But as stated carlicr, cach casc must bc considcrcd depending on the nature of the allegations, gravity of the sitLiation and fhe indelible impact it creates on the service for the conT.uiusnce 01 me a.euuc^ueiiL euipioyee 111 service penduig inquu-y or contemplated inquiry or invcstigation. It would bc anotfacr thtng if the action is actiiated by raala. fides, sTDiLraxy Oi ior uircrioF purpGse< i ue suspension must be a step in aid to the ultimate resiilt of the investigation or inqutry. The authority also shomd keep tn i-i-n/1 "tiT-tl^/' •Sn+^ayo^-i- n-F •*-T-i^ •!m-""/'+ /^f •i-'h^ J-JU-UXl^ 1-llLV-l^oL L/i- LJ.IC' AXllJJCL'^L U-i. Ll^V-- deiinquent's continuance in office while is.cing Q.cpsxTUiciiTsj. inc^uiry GT m&i 01 a. criminal cnarge." 8. Learaed counsel for fhe petitioner furtfaer placed reliance upon the decision of Supreine Court rendered tn the case of Ccwt. M. Paul Anthonff vs. Bharcet Gold Jiaznes Ltd. cmd anotfeer reported in f2993j ^SCC 679. i-le reterred to para ^y ot me luctgment, wmcn is quotect Delow : "29. Exercise of right to suspend an eniployee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by % 'suspension syndrome' and the employees have been found to be placed under suspension tust for nothing. It is their irritability rather than the employee's trivial lapse wnicn nas otten resulted ui suspension. Suspension notwithstandtng, non-payment of subsistence allowance is an "V^S^^^^^ iahuman act whlch has an iinpropitious effect on fhe life of an employee. 'vVhen the employee is placed iinder suspension, he is 1-1 < •l^.'t^ demobilised and the salarv' is LIIC ssjL&ry is 8ji.so psjiG. T.G hun at a reduced rate under fhe nicknaBie ol 'subsistence allowance', so fhat fhe employee may sustain hiinself. This Court, in O.P. dupta v. Unwn of India10 made fhe fouowins observations with regard to subsistence allowance : fS?CC p. 340, para 15) 'An order ot suspension ot a govemment servant does not put an end to his service under fhe Goveminent. He continues to be a member of the service in spite of fhe order of suspension. The real effect of suspension as explatned bv this Court in Khem Chand v. Unian of India1' is uiat iie continues to be a member ot the govemnient service but is not permitted to work and furfher dunng the period of suspension he is paid only sorae allowance - generaBy called subsistence ailowance - which is normailv less fhan the salary instead of fhe pay and aUowances he 'vvould have been entitled to tf he had not been suspended. There is no doubt fhat an order of suspension, unless the deparfaiiental enquiry is concluded 'vvifhin a reasonable tiine, affects a sovermnent seryant iniunously. 'me VQTy GXIpTGSStSTi S'Ul}Si3tGTiCS GliOlUCSTiCG has an undeniable pencd sicinificance. The dictionary meanvig of the word. 'siibsist' as ffiven in Shorter Oxford English Dictionary, Vol. II at p. 2171 is 'to remain alive as on food; to conttnue to exist'. 'Subsistence' meosis - means ofsupporting Ufe, especially a minim.um livelihood.' (emphasis supplied')" 9. Leamed counsel for the petitioner also placed reliance upon the decision of Supreme Court rendered in the case ot K.^ulchendar Reddu vs. Stafe ofA.P.cinS arwtner reported in {19991 6 SCC 257. He referred to ^S^i^S^^^^r~: !sfeN«iB»K''NBeffi»»»' •Sj3 J3 paras 6 & 8 of fhe said judgment, which are quoted below: "6. The appellant was placed under suspension on 6-2-1997 by an order passed by fhe Chief Secretary to the Govemment of Andhra Pradesh 'under sub-rule (1) of Rule 3 tul fhe com.pletion of the disciplinary proceedings against him.. This order v»'as subsequenUy replaced by another order passcd on 12-3-1997, in which it was clcarly spelt out fhat disciplinary proceedmgs against the appeHant were not at all contemplated, but since he was tnvolved tn CTime Case No. 327 of 1996 registered under sections 468, 471, etc. by Anakaplli Town Police Station, he v»Tas bein^ placed under suspension. T'his matter is stiU i.1nder investigation by the CID and a charge sheet has not yet been med m fhe case. 8. We, therefore, ailow this appeal and set aside the suspension order dated 12-3-1997 witfa me au-ecuon mat me appeuant snau be put back to duty and shaU. be paid att his arrears of salarv up to date minus the suspension allowance, if any, already paid to htm, leavuig it open to the State Govemment consider fhe feasibility ofpl; f placing the appellant under suspension, if and when a charge-sheet is filcd by CID." 10. Leamed counsel specificallv stated fhat fhe order does not comes iinder Rule 9 |1| oftlie C.G. CivU Services (Classification, Control and Appeal) Rules, 1966 and apart from that tfae petitioner has not been convicted for any crmiuial oitence. 11. It is bome out from the record fhat the petitioner has been suspended for non-payment of fine as imposed by the Nayab TehsUdar, but that is not fhe dut\' of the .District Education Officer to collect fine amoiint. So far t '7~-^^-:i;^sas"^^^^^^^®3^^^^^^^ 34 as non-payment of fine is concemed, fhe Courts are competent enough to deal wifh fhe matter. The suspension order passed by fhe Dista'ict Education Officer is not sustainable. It is wholly arbitrary and such arbitrarmess cannot be allowed. l'2. J-laving considerea me lacts ana cu'cumstances ot fhe case, matenal on record and m view of tbe law laid down bv Uie Supreme Court ta fhe aforesaid decisions and furfher the fact that the suspension order has been issued by fhe District Education Officer only on the ground of non-payment offme ofRs.SOO/'-as imposed by the Mayab Tehsuctar m. case No.49-A/68/2004, in encroachraent matter against which the appeal is stiU pending and the fact that fhe suspension order does not fall into any categor^' uader Rule 9 of tfae C.G. Civu Services (Classification, Control and Appeal') Rules 1966, the suspension order issued by fhe Dista'ict Education Ofllcer on 2-1-2006 ('Annexure-P/1) is not sustainable ana is accordingly quasiied. Accordinglv, the petition is allowed. uown' Sd/- Fakhrucfdin Judge .- x ^6--?-^,1?^^^^ •^-s-Ea^fiSS^if. "^?E^^^^t<^W*-^^M^uk '•'<^."Hrii33K