[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. Dr. Girish Agarwal vs. The State of Rajasthan & Ors. (S.B. CIVIL WRIT PETITION NO.6253/2005) Date of Order:19/08/2008 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Bipin Gupta, for the petitioner(s). Ms. Parnitoo Jain Dy. G.A., for the respondent(s). By the Court (Oral). The petitioner in this case has challenged the order of suspension dated 23.5.03 passed by the Deputy Secretary, Department of Personnel, Government of Rajasthan. It has been prayed that the impugned order of suspension be quashed and set-aside and the petitioner be reinstated in service with all consequential benefits. 2. Briefly stated, the facts of the case are that in the month of March 2003 there were certain complaints against the non qualified medical practitioners in District of Kota, alleging that some of them are not having the requisite degrees and there are others who are having fictitious certificates. Some others are having licenses which had not been renewed. In this regard, Deputy Superintendent of Police (Rural) had also made complaint to the petitioner, vide letter dated 11/03/2003. The petitioner was reported that the Registered Medical Practitioners had not been getting their license renewed since long and there had been complaint against them as well as certain nursing homes for committing irregularities in their work. The public had also raised grievance in respect of the [2] subject of the aforesaid complaints. The petitioner had also issued a press note on 08/03/2003 wherein it was mentioned that the inspection of nursing homes shall be continued as per the directions of the State Government and the Registered Medical Practitioners have already been inspected and legal action would be taken if required. The said press note was published in the daily newspaper. 3. In view of the above, the petitioner issued instructions and took action against those who were defaulters and had not complied with the directions/instructions of the State Government. The Deputy Superintendent of Police, Kota (Rural) had initiated two enquiries against Shakir Mohammed son of Ali Mohammed resident of Karwad. The petitioner had also made an enqiry regarding qualifications and thereafter a notice was given to Shakir Mohammed and two other similar persons. Deputy Superintendent of Police sent a list of registered Medical Practitioners, to the petitioner asking as to whether such practitioners could work on the basis of the certificate held by them. In this light, the petitioner also made enquiries against such like persons. 4. Therefore, nursing home and registered medical practitioners joined hands and hatched conspiracy against the petitioner who was being considered as a hurdle. In furtherance thereof, a conspiracy was hatched wherein Shri Abdul Khalil Ansari was made a tool and a false, fictitious and concocted report was sent to Anti Corruption Bureau, Out Post, Kota on [3] 13/04/2003. 5. It is the case of the petitioner that he has neither demanded any amount from any person nor accepted the same from anyone. The report lodged against him was malafide and mischievous to implicate him in a false and fictitious case. According to the petitioner, all through out his tenure of service, he had worked sincerely, honestly, strictly and in accordance with the directions of the State of Government and never before during his service period any complaint was lodged against him. 6. The instant report was lodged by one Abdul Khalil Ansari against the petitioner and Abdul Hakim for the offence under Section 7, 13(1)(d) of the Prevention of Corruption Act and the Anti Corruption Bureau, Kota. It was alleged in the report that the petitioner had demanded bribe. Then the petitioner was suspended on 23/05/2003 (Annexure/1) on the ground that the petitioner is an accused in the first information report (99/03) registered by Anti Corruption Bureau, Outpost Kota, and the trial of the case is still pending. The said order was passed in exercise of the powers of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. 7. The trial in the case is continuing and so also the order of suspension of the petitioner. The petitioner then made a representation, by way of a notice for demand of justice, to the respondents for revoking the impugned order of [4] suspension. But no reply to the said notice was received by the petitioner. Thereafter, the petitioner also filed an appeal under Rule 22 of the Rajasthan Civil Service (Discipline and Appeal) Rules on 21/07/2005 wherein it was prayed that the appeal may be allowed and the order of suspension dated 23.05.2005 may kindly be reviewed. But no decision whatsoever had been received by the petitioner. It is to be noted that the petitioner is due to retire on 08/12/2008. Apart from the impugned suspension, according to the petitioner, there is no enquiry whatsoever pending against him. It has also been submitted by the petitioner that no departmental enquiry is pending against him, in respect of instant first information report lodged on 19/04/2003. 8. The respondents have contested the petition by filing a reply to the same. It has been stated by the respondents that the petitioner was posted as Chief Medical and Health Officer, Kota. He had inspected a clinic Ansaroosifa, that of one Shri Abdul Khalil Ansari and threatened him for lodging a police case and getting his clinic closed down. It has also been stated that the petitioner demanded a some of Rs. 25,000/- as a bribe and the said amount was received by him through a multi purpose worker Shri Abdul Hakim who was working in the office of Chief Medical and Health Officer, Kota. It is the case of the respondents that Shri Abdul Hakim received a some of Rs. 25, 000/- and was caught red-handed. Further, it is stated that a complaint was made by Abdul khalil Ansari on 13/04/2003 in the office of Bureau Anti Corruption, Kota with the averments that [5] he is having a clinic situated in Hiranmagri Market, Kota. The petitioner, posted as CMHO, inspected the clinic and gave threatening to lodge a police case and also demanded a sum of Rs. 25,000/-. Thereafter, Bureau of Anti Corruption laid a trap in which Abdul Hakim received a sum of Rs. 25,000/- from Shri Abdul Khalil Ansari and thereafter both had gone to meet the petitioner and while returning from his house the complainant gave signal to the trap party and Shri Abdul Hakim was caught red-handed. The amount was recovered from the almirha at his residence. However, Abdul Hakim and the petitioner were arrested and thereafter released on bail. It is the case of the respondents that the petitioner had demanded and for receiving the amount, he used Abdul Hakim as a tool. Therefore, according to the respondents the petitioner was prima facie found involved in a criminal case and in exercise of powers confirmed in Rule 13 of the CCA Rules, he was placed under suspension on 23/05/2003. It is also stated by the respondents that a sanction for prosecution of the petitioner had been issued on 13/12/2005. 9. Learned counsel for the petitioner has submitted that the petitioner has been suspended by the impugned order dated 23/03/2003, on the ground that he is involved in the criminal case. He has further submitted that the petitioner had filed an appeal against the order of suspension from the Rule of 22 of the Rajasthan Civil Service (Discipline and Appeal) on 21/07/2005 with the request that the order of suspension may be reviewed. But till date he has not received any information [6] with regard to the decision of said appeal. Further , the learned counsel has submitted that the petitioner was suspended on the ground that a criminal case was registered against him along with one another namely, Abdul Hakim on 19/04/2003 but the said criminal case is still pending trial. It has also been submitted that after lodging of the first information report no departmental enquiry was initiated against the petitioner. On the aforesaid premise, the learned counsel for the petitioner submits that the continuation of suspension of the petitioner is a share abuse of power under law which has certainly prejudiced and infringed the rights of the petitioner on account of prolonged suspension. It has also been submitted that the petitioner is under suspension since 23/05/2003 and till date i.e. upto the month of August, 2008 the respondents have not reviewed the order of suspension, which certainly amounts to arbitrariness and unreasonableness on their part. Learned counsel has submitted that the petitioner had served the respondents during the prime period of his life and he is now due to retire on 08/12/2008. His service career had been free from any compliant, much less to say any enquiry initiated against him. In these circumstances, the continuation of the petitioner under suspension since 23/05/2003, at the fag end of his service tenure, is wholly unjustified and unreasonable and the same cannot be said to be valid, under any cannons of law. The learned counsel for the petitioner has relied upon the judgment in the case of Shri Vallabh Sharma versus State of Rajasthan & Ors., 1991 (1) WLC (Rajasthan) 508, Lajpat Rai Gogna versus State of Rajasthan & Ors. 1992 [7] (1) RLR 619, Prem Prakash Mathur vs. State of Rajasthan & Ors. 2005 (9) RDD 3962 (Raj.) and the case of Jai Prakash Soni versus State of Rajasthan & Anr., S.B. Civil Writ Petition No. 6492/06 decided on 17/12/2007. On the strength of the said judgments, the learned counsel for the petitioner has submitted that the impugned order of suspension is illegal and invalid which deserves to be quashed and set- aside. 10. On the other hand, learned counsel for the respondents have reiterated the averments made in the reply and stated that the petitioner is involved in a criminal case (99/03) registered under Section 7, 13(1), (2) (7) (ii) of the Prevention of Corruption Act, 1988. Further, that the petitioner was arrested in the said case and then he was enlarged on bail on the same day. It has also been stated by the learned counsel for the respondents that the petitioner had demanded bribe and to receive the said amount, he used Abdul Hakim as a tool. It has been submitted by the learned counsel for the respondents that the order of suspension against the petitioner was passed in exercise of powers under Rule 13 conferred under the CCA Rules and there is no provision under the said Rules for filing of appeal by an officer against the order of the State Government. It was submitted by the respondents that therefore the appeal filed by the petitioner under Rule 22 of the CCA Rules was not maintainable. Learned counsel for the respondents have submitted that therefore the petitioner has been rightly put under suspension, as per the circular of the State Government [8] dated 10/08/2001 and the same cannot be revoked until or unless the petitioner is honorably acquitted by the criminal court. Therefore, according to the learned counsel for the respondents the order of suspension passed by the State Government is in accordance to law and the writ petition has no substance. 11. The facts and circumstances of the case and the rival submissions of the parties has been thoroughly considered and taken note of by the Court. This Court has also carefully gone through the relevant case law on the point involved in this case. 12. Before proceeding on the merits of the case, in view of the facts and circumstances of the present case, it would be relevant to consider the provision for suspension as well as the principles of law on the point as laid down by the courts. Rule 13 of the CCA Rules reads as under: “Rule 13. Suspension- (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the government in that behalf may place a Government servant under suspension. (a) where a disciplinary proceedings against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence is under investigation or trial: Provided 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 [9] circumstances in which the order was made. (2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the Appointing Authority and shall remain under suspension until further orders. (3) Where a penalty of dismissal, removal or compulsory retirement from Service imposed upon a government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations in which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (5) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order by any authority to which that authority is subordinate.” [10] 13. An order of suspension of a government employee had come up for consideration before the courts many a time. In the case of B.K. Sharma versus State of Rajasthan, 1979 (29) I.L.R. 515, the concept of suspension and its implication had been discussed at length by the High Court. That was the case of prolonged suspension and the court observed that:- “It should not be forgotten that suspension has got adverse implication as it has serious demoralising effect on a civil servant, as he is looked with contempt amongst his brother employees and also in the society. It is expected of the State functionaries that they should resort to it only when the case and the subject matter of chargesheet, which is being enquired into is extremely of serious type where by permitting a civil servant to work during that period would result in serious impediment in the inquiry itself or any other adverse effect in the department. In other words, there must be compelling reason for the disciplinary authority, which of course, cannot be tested on the test of objectivity by the courts, but , it should be of such serious magnitude that the disciplinary authority should feel compelled to take extreme step of suspension. Suspension should not be made a rule and should be used sparingly, cautiously and with great restraint.” 14. A Division Bench of this Court had also considered the provisions of suspension under Rule 13 and the extent of power of suspension, in the case of Ashok Gaur versus State of Rajasthan, 1987(5) SLR 547 and held that:- “From the above discussions, it is apparent that an order of suspension should not be passed by invoking power under Rule 13 simply because a disciplinary proceeding is contemplated, or criminal case is under investigation or trial against Government servant. The Appointing Authority has to exercise his discretion [11] in this regard. A Government servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross misconduct or corruption which, if approved, will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for a longer period, or where there are reasons to believe that a Government servant if allowed to continue in active service, might tamper with the evidence he may be suspended or, in cases Government is facing trial in criminal court he should be suspended, if he has been refused bail and committed to prison.” 15. Later on, in the case of Nand Lal Verma versus State of Rajasthan, 1989 (1) RLR 601, a Division Bench observed that:- “It is true that the Government has a right to suspend its employees in contemplation of departmental proceedings or pending investigation, After the service of the charge sheet if the charges are of a serious nature a Government employee may be suspended pending enquiry. It is now well settled principle that suspension connotes temporary cessation of right to work or temporary deprivation of the office, position or privilege. The real effect of the order of suspension is that though an employee continues to be in service he is not permitted to work and during the period of his suspension he is paid only some allowance which is generally called subsistence allowances. Thus, suspension does not dissolve 'vinoulam juris” of the employment relationship government has right to suspend an employee pending departmental enquiry or pending criminal investigation. But it is also equally true that such power of suspension cannot be exercised arbitrarily and without any reasonable ground. The power of suspension is to [12] be sparingly exercised and should not be exercised in vindictive manner and it is expected of an authority passing the order to take into account all the relevant materials, nature of the charge, the attendant circumstances and the necessity or desirability of placing the public servant under suspension. The Government is also conscious of the fact that the power of suspension should not be exercised in an arbitrary manner and without any reasonable grounds, therefore, guidelines have been laid down by the Government.” 16. The Hon'ble Supreme Court in the case of P.L Shah versus Union of India & Ors. (1989) 1 SCC 546 had made a notable observations:- “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 the interest of the government servant concerned.” 17. In the case of Kuldeep Singh Dhillon versus State of Rajasthan, S.B. Civil Writ Petition No.3174/88, decided on 13/12/1990, the Court had struck down the suspension on the ground that inquiry had not been initiated for long time after the petitioner had been placed under suspension. 18. Similarly, in the case of Dr. B.M. Bohara versus State of Rajasthan, S.B.Civil Writ Petition No.6558/1991 (decided on 18/02/1991), the Court, after a detailed examination of the concept of suspension and after [13] consideration of the various circulars of the Government as well as the decisions of the courts, held that no absolute power vests with the government or competent authorities under the Rule of 1958 to place a government servant under suspension. It has also been held that if there is a wholesale violation in the administratire circulars issued by the government it may in a given case be sufficient to vitiate the order of suspension. 19. In Shri Vallabh Sharma versus State of Rajasthan & Ors., 1991 (1) WLC (Rajasthan) 508, the High Court had again made a detailed examination of suspension of a Government servant and also considered various instructions, circulars and guidelines laid by the State Government for exercise of power of the suspension. The Court held as under:- “Rule 13 of 1958 Rules confers power on the competent authorities to place a government servant under suspension in contemplation or during pendency of inquiry. Suspension can also be ordered during the investigation or trial of a criminal case against the government servant. However, the power of suspension is not absolute one. The power has to be exercised in bonafide manner and after application of mind. The Government has issued instructions from time to time by which it has laid down guidelines for exercise of the power of suspension. It has been emphasized that suspension of a government servant should not be prolonged for long time and the departmental inquiry must be held expeditiously. It would be appropriate to quote the earliest and latest circulars of the Government issued in the matter of departmental inquiries. The same is as under:- Circular No. F.16633/F.19(27) Apptts. (A)/60, Dated 17th March, 1960, [14] it was decided to revise the time- schedules as under:- (1) Completion of preliminary enquiry and 3 months submission of its report to the Disciplinary Authority along with draft statements of allegations and charges. (2) Examination of Preliminary Enquiry Report 1 month and service of charge-sheet on the delinquents. (3) Submission of written statements by the Minim.2 months. Delinquents. Minim.3 weeks (4) Examination of written statements and 2 weeks. appointment of Enquiry Officer. (5) Completion of Departmental Enquiry. 3 months. (6) Examination of Enquiry Report. 2 weeks. (7) Issue of Show Cause Notice. 2 weeks. (8) Submission of reply to the show cause 3 weeks notice by the delinquent. (9) Examination of reply to the Show Cause 1 Week. Notice and issue of final orders. D.O.P. (A-III) Circular No. F. 1(39) Karmik/A-III/73, dated 16.10.1975. “The wide time-lag between the issue of suspension orders and the service of charge sheet on an officer under suspension in accordance with the provisions of rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 has been a matter of increasing anxiety to the Government for some time past. The major bottle nech, it has been noticed is mostly due to the long time taken by the Administrative Departments/Head of Departments in preparing the drafts of charge sheets and statement of allegations and furnishing them to the Department of Personnel. It need hardly be pointed out that this function has, of necessary, to be performed by Administrative Department/Head of Department and the latter should see to it that these drafts are expeditiously sent. Unfortunately there is little awareness of this responsibility on the part of the Administrative Departments/Head of Departments. (2) This matter has, therefore, been examined once again in the light of experience gained in this connection and it has been considered necessary to prescribe an outer limit of three months for the [15] supply of required drafts of charge sheet and statement of allegation in respect of an officer under suspension and in the event of delay beyond three months the Secretary/Head of Department would state reasons for delay and the same would have to be submitted to the Chief Secretary/Chief Minister for their information. In case the delay is attributable to certain omission or negligence on the part of a departmental officer in not complying with the detailed instructions laid down in this Department Circular No. F.7(36) Karmik/A-III/74, dated 22.5.74, the Secretary/Head of Department will also propose disciplinary action against such defaulting officer along with necessary draft charge sheet and statement of allegations against such an officer. The drafts have to be such as will not seriously hamper scrutinizing in the Department of Personnel (A-III) due to non-availability of sufficient facts involved in the allegations. (3) It has also been the experience of this Department that the Administrative Departments Head of Departments quite often make a recommendation of placing an officer under suspension even when the suspension is uncalled for as neither the nature of allegations is such which would warrant a