«-;ff?y's^ /^^-^. '"^. 1» HIGH COURT OF CHHATTISGARH: BU-ASPUR Wrjt Petition (S) No. 6996 of 2007 Petitioner : Ashok Kumar Bhosley Versus Respondents : State of Chhattisgarh and others Post for order on 1& -2-2008 AP-^ Sd/- Satish K. Agnihotri Jiidge wS :'7' ^-° "•=7'i": ^ ^^ fflGH COURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRIT PETITION (S) No. 6996 of2007 Ashok Kumar Bhosley, S/o late Shri Rameshwar Laxman Bhosley, aged about 54 years, Office Assistant Grade-II, OfEce of the Transport Commissioner, Raipur (CG). VERSUS : 1. State of Chhattisgarh, through the Secretary, Transport Department, Mantralaya, D.K.S. Bhavan, Raipur (CG) 2. Secretary, Department ofTransport, Govemment of Chhattisgarh, Mantralaya, D.K.S. Bhawan, Raipur (CG) 3. Transport Commissioner, Govemment of Chhattisgarh, Bus Stand Pandri, Raipur (CG) 4. Additional Transport Commissioner, Govemment ofChhattisgarh, Bus Stand Pandri, Raipur (CG) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Single Bench Honlble_Shri_Satish K. Agnih_otri^J, Present: Shri Utkarsh Venna, Advocates for the petitioner. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondents. ORDER (Passed on ...f.g1*-. day ofFebroary, 2008) 1. The petitioner, by this petition filed under Article 226 ofthe Constitution of India challenges the validity of the communication dated 15.11.2007 (Annexure P/4), whereby the petitioner was informed that the decision on his representation dated 14.11.2007 would be taken after the receipt ofthe departmental enquiry report. The petitioner sought for a further direction to the respondents to permit the petitioner to join the post and further payment ofback wages with interest. 2. The indisputable facts, in nutshell, are that the petitioner is an Assistant Orade-II employee, working in the office of the Transport Commissioner, Chhattisgarh, Raipur. The petitioner was placed under suspension vide order dated 9.10.2006 (Annexure P/l) on the ground that 43 original forged I: ;^ challan, with regard to the payment of monthly tax by the owner of the passengers vehicle, were missing from fhe office. The petitioner was served a charge sheet on 15.12.2006 (Annexure P/2). According to leamed counsel appearing for the petitioner, the charge sheet dated 15.12.2006, which was served on the petitioner on 2.1.2007, was beyond limitation of45 days, as the suspension order dated 9.10.2006 stands revoked after completion of45 days period, in accordance with the Rule 9(2-a) and 9(5)(a) of the Chhattisgarh Civil Services (Classification, Conta-ol and Appeal) Rules, 1966 (hereinafter referred to as 'the Rules,1966'). The petitioner submitted a letter to permit the petitioner to join the office on 14.11.2007 (Annexure P/3) on the ground that since the charge sheet was not served within a period of 45 days, therefore, the suspension is automatically revoked. The petitioner be permitted to join the office. The Additional Transport Commissioner, in the office of the Transport Commissioner Chhattisgarh, Raipur, informed to the petitioner vide communication dated 15.11.2007(Annexure P/4) that the application dated 14.11.2007 cannotbe decided in absence ofthe departmental enquiry report. The petitioner by his application dated 7.12.2007 (I.A.No.2) fiirther brought into the notice of the Court that the application of the petitioner regarding pennission to join duties as fhe suspension stands revoked beyond 45 days of the order of suspension, was subsequently rejected by the Regional Transport Officer, Raipur vide order dated 1.12.2007 (Annexure A). Thus, this petition. Shri Utkarsh Verma, leamed counsel appearing for the petitioner would submit that the letter dated 15.11.2007 (Annexure P/4) as well as the order dated 1.12.2007 (Annexure A) are bad as the letter dated 14.11.2007 was not for fhe purpose of revocation of the suspension but for the piirpose of 53 6. joining the service after suspension prder automatically stood revoked in terms of Rule 9(5)(a) ofthe Rules, 1966. Thus, leamed counsel seeks for quashing ofthe impugned communication dated 15.11.2007 (Annexure P/4) and order dated 1.1 2.2007 (Annexure A) on the ground that once suspension stands revoked with the passage oftime, the petitioner cannot be kept under suspension till the report of the departmental enquiry is submitted. He further submits that the stand of the respondent No.4 is contrary to the cannons of the well established principles of law on suspension, as well as in contravention ofthe Rule 9(2)(a) and 9(5)(a) ofthe Rules, 1966. Per contra, Shri Ajay Dwivedi, leamed Deputy Govt. Advocate appearing for the respondents/State would submit that under proviso to Rule 9 (2-a) of the Rules, 1966, where the disciplinary authority is the State Govemment, the copies ofthe charges and other documents shall be issued or shall be caused to be issued to such employee within a period 90 days from the date of the order of suspension. It was farther submitted that since the order has been passed by the Additional Chief Secretary, the limitation for serving charge sheet is 90 days, not 45 days from the date of the order of suspension. It was next contended that after deemed revocation ofthe suspension order the petitioner had submitted his joining after a lapse of 11 months, without assigning any reason. Thus, the petitioner does not deserve any sympathy. The interpretation of the petitioner that».the Additional Chief Secretary has not issued a suspension order or on behalf of the Govemor under Article 166 ofthe Constitution oflndia is without any basis. The charges are serious therefore the suspension cannot be deemed to have been revoked after completion ofthe 45/90 days from the date ofthe order ofsuspension. .V- ?" Co I have heard leamed counsel for the parties, perused the pleadings and the documents, appended thereto. For ready reference Section 9(1), 9(2-a) and 9(5)(a) are quoted here under:- 9(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Govemor by general or special order, may place a Govemment servant under suspension— (a) where a disciplinary proceedmg against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial; Provided that a Government servant shall invariably be placed under suspension when a challan for a criminal offence involving con-uption or other moral turpitude is filed against him. Provided further that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. 9(2-a). Where a Govemment servant is placed under suspension under clause (a) of sub-rule (1), the order of suspension shall contam the reasons for making such order and where it is proposed to hold an enquiry against such Govemment servant under Rule 14, a copy ofthe articles of charges, the statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained shall be issued or caused to be issued by the disciplinary authority to such Govermnent servant as required by sub-rule(4) ofRule 14, witMn a period of45 days from the date oforder ofsuspension: Provided that where the disciplinary authority is the State Govemment or the High Court, the copy of charges and other documents mentioned above shall be issued or caused to be issued to such Govemment servant within a period of 90 days from the date of order of suspension. ^- 9(5)(a). An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the aufhority competent to do so: Provided fhat the order of suspension shall stand revoked on expiry of the period of forty-five days from the date of order of suspension in case a copy of charges and other documents referred to in sub-rule (2-a) are not issued to such Govemment servant by the disciplinary authority (if it is not the State Govemment) without obtaining the orders ofthe State Govemment for extension ofthe period for issue ofthe said documents, as required under sub-rule (2-b): Provided further that the order of suspension shall stand revoked on expiry of the period of 90 days from the date of order of suspension, in case the copy ofcharges and other documents referred to in sub-rule (2-a) are not issued to such Govemment servant. 9. The suspension order was issued by the Transport Commissioner who happens to be in the rank of the Additional Chief Secretary. The order was not issued on behalf of the Govemment in the name of the Govemor under Article 166 of the Constitution. Thus, the contention of the respondent that since the order of suspension was issued by the State Govemment, under proviso to Rule 9(2-a), the limitation is 90 days deserves to be rejected. The contention of leamed counsel appearing for the respondents/State is conta-ary to the facts on records and the provisions of law. 10. The next contention made by leamed counsel appearing for the respondents/State that the petitioner has failed to join the duty, immediately after completion of 45 days, is also not relevant for the purpose of declaring the suspension order as deemed revoked. Whether or not charge sheet was served within 45 days from fhe date ofthe order of suspension, has no basis. -. 11, 12. So far as the revocation of the suspension after a period of 45 days is concemed, the suspension is deemed to have been revoked on completion of 45 days from the date ofthe order of suspension. The impugned order dated 15.11.2007 (Annexure P/4) appears to have been passed without applying mind as the representation dated 14.11.2007 (Armexure P/3) of the petitioner states that the petitioner's suspension stands revoked, therefore, the petitioner be pennitted to join the office. The subsequent order dated 1.12.2007 (Annexure 'A'), rejecting the application of the petitioner for joining the office is also without any basis, as however serious the charge may be, if fhe petitioner is not served charge sheet within the limitation period prescribed under the provisions of Rule 9(2-a) of the Rules, 1966, the suspension order stands revoked automatically. The concemed officers have not been carefal in serving the charge sheet within a period of45 days, thus the continuation of suspension beyond 45 days of the order of suspension is in contravention of the provisions of Rule 9(2-a) and 9 (5)(a) oftheRules,1966. Hon'ble the Supreme Court in the matter uf State of M. P. Vs. L. P. Tiwari observed as under: "The object appears to be that the competent authority having placed a delinquent officer under suspension, caimot sit over the case without prompt follow-up action of conducting an inquiry into the alleged misconduct. The dereliction thereof entails the aufhority with denuding the pq.wer to continue fhe officer under suspension, though the power of enquiry subsists". Applying the well established principle of law to the facts of the case, the petitioner was placed under suspension on 9.10.2006, the charge sheet was prepared on 15.12.2006 and the same was served to the petitioner on " ' (1994)48cc 468 ^S^^B^,s;,^^CT^;g; ys1^ 13. 2.1.2007. The date of suspension order i.e. 9.10.2006 and the date of preparation of the charge sheet i.e. 15.12.2006 are relevant dates, not the date of service of the charge sheet on the petitioner. From the date of suspension order 45 days comes to an end on 23 November, 2006 and the charge sheet was prepared after completion of the 45 days. Thus, the suspension order dated 9.10.2006 stands revoked after completion of 45 days. Consequently, the communication dated 15.11.2007 (Annexure P/4) and the order dated 1.12.2007 (Annexure A) are also quashed. The petitioner is entitled to all consequential benefits flowing from this order. The petition is accordingly allowed. No order asto costs. Sd/- SatishK. Agnihotri Judge Thakur