W IN THE HON'BLE HIGH CGURT OF CHHATHSGARH AT BILASPUR WRIT PETITION (S) N039? OF 2011 PETITIONER /§ra1<ash Chandra Pandey, S/o. 51m Shri Motilal Pandey, Aged about 56 years) R/o Mangal Chowk, Nand Vihar,(Behind Narmada Nagar) Quarter No.1, District-Bilaspux (C.G.) VERSUS RESPONDENTS 1. , State of Chhattisgarh Through Secretary Department of Cooperative Society, Mantralaya, D.K.S.Bhawan, Raipur (C.G.) CG. State Cooperative Marketing Federation Ltd, through Secretary, CG. State Cooperative Marketing Federation Ltd, 880— Civil Lines, Head Office, Raipur (C.G.). Managing Director, C.G. State Cooperative Marketing Federation Ltd, 880- Civil Lines, Head Office, Raipur (C.G.) Chief General Manager (Marketing), C.G.‘ State Cooperative Marketing Federation Ltd, 880~ Civil Lines, Head Office, Raipur (C.G.) 5. District Marketing Officer, C.G. State Cooperative Marketing Federation Ltd, Bilaspur, District-Bilaspur (C.G.) @@ } THE CONSTITUTION OF WRIT PETITION UNDER ARTICLE 226 OF WEIA . HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1214 of2011 (7Q PETITIONER : Mahmood Khan. VERSUS RESPONDENTS : State of Chhattisgarh & Others WRIT PETITION (S) No. 1215 0f2011 PETITIONER : Lalit Kumar Soni. ‘ VERSUS RESPONDENTS : State of Chhattisgarh & Others s WRIT PETITION (S) No.1216 of2011 PETITIONER z Ashwani Thakur VERSUS RESPONDENTS ': State of Chhattisgarh & Others WRIT PETITION (S) N0. 1218 of2011 Nand Kumar Chandrakar VERSUS : State of Chhattisgarh & Others WRIT PETITION (S) No. 1219 of2011 : Rajendra Prasad Mishra. VERSUS v : State of Chhattisarh & Others WRIT PETITION (S) No. 1220 of 2011 z Prakash Chandra Pandey. VERSUS : State of Chhattisgarh & Others RESPONDENTS WRIT PETITION (S) No. 1221 of 2011 : Virendra Bahadur Singh Dhruv VERSS : State ofChhattisgarh & Others PETITIONER RESPONDENTS PETITIONER RESPONDENTS g PETITIONER PETITIONER U __ _ RESPONDENTS 2 WRIT PETITION S No. 1222 of 2011 PETITIONER : Heera Ram Chandrakar. VERSUS RFSPONDENTS : State of Chhattisgarh & Others WRIT PETITION gS) No. 1224 of 2011 PETITIONER : B .S.Chandel VERSUS RFSPONDENTS : State of Chhattisgarh & Others WRIT PETITION £3) No. 1225 of 2011 PETITIONEII : Prakash Chandrakar VERSUS RFSPONDENTS : State of Chhattisgarh & Others w»; WRIT PETITION gSl No. 1223 of 2011 PETITIONER : Panna Lal Kashyap VERSUS RFSPONDENTS : State of Chhattisgarh & Others WRIT PETITION gS) No. 1226 of 2011 PETITIONER : Mahendra Kumar Say VERSUS RESPONDENTS : State of Chhattisgarh & Others WRIT PETITION gS) N0. 1227 0f2011 PETITIONER : Sukhdev Prasad Yadu VERSUS RESPONDENTS : State of Chhattisgarh & Others WRIT PETITION $S) No. 1228 of 2011 PETITIONER : Firanta Lal Chandrakar VERSUS RESPONDENTS z State of Chhattisgarh & Others WRIT PETITION (S) No. 1229 of 2011 : Uday Ram Sahu. VERSUS RESPONDENTS : State of Chhattisgarh & Others WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Chandresh Shrivastava, Advocate for the petitioners. Shri Y.S.Thakur, Deputy Advocate General for the State/respondent No. 1 . ORDER ORAL (Passed on 05 day ofMarch, 201 1) Since W.P.(S) N0. 1214, 1215, 1216, 1218, 1219, 1220, 1221, 1222, 1224, 1225, 1223, 1226, 1227, 1228 and 1229 of 2011 involve common facts and common question of law, thus, they are being disposed of by this common order. 2. Challenge in these petitions is to the orders dated 07.02.2011 (Annexure P/l) passed by the respondent No. 2 i.e. Managing Director, Chhattisgarh State Cooperative Marketing Federation Ltd., whereby the petitioners, working on the post of Senior Assistant, Paddy Storage Centre, Basna, Mahasamund, Area Assistant, Paddy Storage Centre, Fundabhata, Durg, Area Assistant, Paddy Storage Centre, Dabrabhata, Kawardha,Senior Assistant, Pady Storage Centre, Mahasamund, Assistant Manager, Paddy Storage Centre, Bagbahra, Mahasamund, Area Assistant, Paddy Storage Centre, Lormi Open, Bilaspur, Senior Assistant, Paddy Storage Centre, Bharni Open, Bilaspur, Assistant Manager, Paddy Storage Centre, Pithora, Mahasamund, Assistant Manager, Paddy Storage Centre, Jagtara, Durg, Area Assistant, Paddy ,\ \ Storage Centre, Dharsiwa, Raipur, Area Assistant, Paddy Storage Centre, Saraipali, Mahasmund, Area Assistant, Paddy Storage Centre, Kharara, Raipur, Senior Assistant, Paddy Storage Centre, Jevra Sirsa, Durg, Senior Assistant, Paddy Storage Centre, Karanja Bhilai, Durg, and Assistant Manager, Paddy Storage Centre, Bijabhata, Durg, respectively, have been placed under suspension under the provisions of Rule 27(1) of the Chhattisgarh State Cooperative Marketing Federation Service Rules, 2007 (for short ‘the Rides, 2007') stating that for the Kharif Marketing Year 2009- 2010, there has been a loss in storage and disposal of paddy and further, that a decision has been taken for initiating disciplinary action against the petitioners. Shri Chandresh Shrivastava, learned counsel appearing for the respective petitioners submits that during the posting of the petitioners at their respective paddy storage centre, proper record of the paddy was maintained and the directions issued by their superior authorities were strictly followed. However, even after making several requests, the petitioners were not provided proper infrastructure for proper storage, collection and disposal of paddy. The duty and liability of the petitioners was to the extent of making favourable conditions for storage of paddy and iiirther to make arrangement for disposal of the paddy from their respective storage centers. Since the paddy could not be disposed of, there was an average loss‘ 0f5.ll%, 4%, 6.55%, 4.12%, 4.13%, 4.59%, 5.16%, 5.24%, 6.34%, 5.87%, 4.94%, 4.20%, 6.18%, 4.53% and 5.59% of paddy in case of the Paddy Storage Centers of the petitioners, respectively. For the said loss, the respondent No. 3 issued a show X( éQ \ cause notice to the petitioners on 18.11.2010 (Annexure P/6 to W.P.(S) No. 1214/2011) which was duly replied to by the respective petitioners. Shri Shrivastava further submits that the action of the respondent authorities by placing the petitioners under suspension is arbitrary, illegal and discriminatory as no action has been taken against the head of those paddy storage centers where the loss is more than 1%. Shri Shrivastava further submits that under the provisions of Rule g7(2A) of the Rules, 2007 and the circular dated 23.11.2010 (Annexure P/14 to W.P.(S) No. 1214/2011), the impugned suspension orders could have been passed only after specifying reason. Further, the reply filed by the petitioners have also not been taken into consideration while passing the impugned orders. Heard learned counsel appearing for the petitioner, perused the pleadings and documents appended thereto. Rule 27(1) of the Rules, 2007 reads as under: "$‘%$F— 27 W — (1) Mien um In yea W W Wanwmmmy et— WWW mawaftm Wetmsiammmamet ria'an‘arle‘mmmmnitma} Weimmml mammals? mmwwwmmwettm WMmu—q‘amatmm metatwma’mmmwm Wanamamwm%mt¥qm Wmua‘amwtml” 7. Thus, the requirement to place an employee under suspension under the provisions of the aforesaid rules is that the appointing authority or the Managing Director may place an employee under a— wmmwmmm$ Q? 6 suspension if there is a contemplation or pendency of a G departmental enquiry against the employee. On perusal of the suspension orders, it is clear that the Managing Director has recorded reasons that that because of irregularity in storage and disposal of rice, it had been decided to initiate a departmental enquiry against the petitioners Accordingly, the petitioners were placed under suspension under the provisions of Rule 27(1) ofthe Rules, 2007. It is further evident that the legal requirement for placing an employee under suspension is firstly, contemplation of a disciplinary enquiry or pendnency of enquiry and secondly, if any criminal case is pending investigation, enquiry or trial. The petitioners were placed under suspension under the provisions of Rule 27(l)(a) of the Rules, 2007. 10. Reliance of the petitioners on a circular dated 23.11.2010 (Annexure P/14 to W.P.(S) No. 1214/2011) of the State Government, wherein it is provided that before placing an employee under suspension, the gravity and nature of the charge is to be examined, is not applicable to the cases of the petitioners i.e. the employees of the respondent-Federation, as in the said circular itself, it is indicated that suspension under Rule (9) of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966, the guidelines issued by the State in the circular should be considered. Cases of the petitioners are not governed under the Rules, 1966 but under the provisions of the Rules, 2007. Even otherwise, the executive memo/instructions cannot supplant the provisions of the statutory rules. 7 11. The Supreme Coutt, in P.L.Shah v. Union of Indial, has considered the nature of suspension and held 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 proceedings initiated against him. Such proceedings should be completed expeditiously in the public interest and also in the interest of the Government servant concerned...” 12. In State Bank of India & Others v. Harbans Lal2, the Supreme Court observed as under: l3. “2. The short question that arises in this case is whether the ap ellant Bank could have suspended the the respondent Sastry award. efore Para issuing 52 (10)(b) a charge-sheet of the' as Sastry per Award reads as under: “Pending such inquiry he may be suspended, but if on the conclusion of the inquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all the other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a correspondent (sic corresponding) portion of the wages, allowances, etc.” 4. By the aforesaid clause 12(iiz’), the ex ression “pendin c arlfle and such further inquiry’: modified in to para the effect 521(10 at b) where was disci linary action is proposed or contemplated, an emp oyee can be suspended and there is no need for issue of any charge-sheet. This being the legal position, the appellant Bank was within its rights and power to suspend the respondent when a gepartmental 1m. enquiry was contemplated against The ratio laid down in State of Orissa, through its Principal Secretary, Home Dept. v. Bimal Kumar Mohanty‘l, relied on by the petitioners is not applicable to the facts of the present cases as the facts in that case was such wherein on suspension being stayed by the State Administrative Tribunal, the house of the respondent was searched by vigilance and further, in the cases on hand, there is no 1546 \ 5,04 \6 \ Amit allegation that the suspension orders were actuated by malaflde 01' for ulterior purpose. 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 an employee, he is not permitted to work keeping in View pendency of departmental enquiry to avoidwndue influence in the proceedings of departmental enquiry and likely tampering with on records. 15. Thus, the petitions are bereft of merit and are accordingly dismissed. Sd/- SATISH K. ANGNIHORI Judge l4.