Partly allowed

Surendra Kumar Meena S/O Shri Jawan Singh Meena v. State of Rajasthan

Rajasthan HC7 Apr 2021CW/430/2021

Case brief

AI extract

What is this about?

Petitioner challenged quashing of charge-sheets and suspension order via writ petition. Court dismissed petition as most prayer relied on alternative remedy. However, court quashed specific charge-sheet issued by District Collector as authority lacked jurisdiction and acted with malice.

What did the court decide?

Chargesheet dated 22/12/2020 issued by District Collector Dausa quashed and set aside. Writ petition otherwise dismissed on ground of alternative remedy.

Surendra Kumar Meena S/O Shri Jawan Singh Meena Vs… — Service and Employment | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 430/2021

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Surendra Kumar Meena S/o Shri Jawan Singh Meena, Aged About 28 Years, Resident Of Village And Post Nithar, Th. Ware, District Bharatpur

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Department Of Local Self Government Of Rajasthan

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The Director Cum Joint Secretary, Department Of Local Self, Jaipur

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The Municipal Board, Nagar Parishad, Dausa Through Its Chairman

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The Divisional Commissioner Jaipur, Division Jaipur

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District Collector Dausa, Dausa

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----Respondents

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For Petitioner(s) : Mr. K.K.Sharma, Senior Counsel with Mr. Akhil Simlote and Mr. Asad Ali For Respondent(s) : Mr. Anil Mehta, AAG with Ms. Archana, Adv. Mr. Virendra Lodha, Sr. Adv. with Mr. Gaurav Sharma, Adv. for respondent No.3.

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment / Order Reserved on 01/03/2021 Pronounced on 07/04/2021

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Petitioner has preferred this writ petition with the prayer to quash the charge-sheets dated 03/07/2020, 16/12/2020 & 22/12/2020 (Anx. 10, 12 and 15) respectively as well as the order dated 07/01/2021 (Anx.17) whereby he has been placed under suspension under Rule 13 of the Rajasthan Civil Services (CCA) Rules, 1958.

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(2 of 12)

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[CW-430/2021]

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The facts, which have been stated by the petitioner, in brief, are that he was posted as an Executive Officer, Nagar Palika, Mahua (Dausa) in November, 2016 and thereafter was transferred to Aameth (Rajsamand) and was relieved from Mahua (Dausa) on 08/11/2017. On the next day i.e. on 09/11/2017, he was placed under Awaiting Posting Orders (APO) and thereafter on 15/11/2017, he was posted as Executive Officer, Municipal Board, Nadbai (Bharatpur). On 21/11/2017, he was transferred to Nagar Palika, Bhiwadi as Commissioner and was again placed APO on 21/12/2017 and was thereafter again posted on 22/12/2017 as Executive Officer, Municipal Board, Lalsot (Dausa). On 11/01/2019, he was placed under APO and on 13/02/2019 was posted as Commissioner, Municipal Board, Pratapgarh. On 19/09/2019, he was again placed under APO and on 30/09/2019, was posted as Commissioner, Municipal Board, Dausa. On 06/03/2020, the petitioner was again placed under APO and was relieved from his post. Vide order dated 13/03/2020 another person was posted in place of the petitioner as Commissioner, Municipal Council, Dausa.

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The petitioner preferred a writ petition bearing No.4680/2020 wherein notices have been issued and in the meanwhile, the effect and operation of the order dated 06/03/2020 placing the petitioner under APO was stayed with the direction that the petitioner shall be allowed to continue as Commissioner, Municipal Council, Dausa.

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The petitioner was thereafter served with a chargesheet on 03/07/2020 alleging that while being posted as Executive Officer, Municipal Board, Mahua (Dausa) in the

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(3 of 12)

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[CW-430/2021]

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year 2017, the petitioner had passed unwanted and negative comments against the then Parliamentary Secretary and the then MLA. The petitioner submitted reply to the charge-sheet with supporting documents denying the allegations.

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Another charge-sheet was served upon the petitioner on 16/12/2020 and the petitioner has not submitted reply to the charge-sheet. On 16/12/2020, the Divisional Commissioner, Jaipur Division, Jaipur is said to have inspected office of Municipal Council, Dausa and the petitioner has alleged that the officers misbehaved with the staff which resulted in the staff submitting complaint regard their misbehavior which was informed to the District Collector. The District Collector issued a charge-sheet on 22/12/2020 on the basis of the said inspection report prepared by the Divisional Commissioner. It is stated that the contents of the inspection report were false and the contents of the charge-sheet were also false. It is further stated that the District Collector could not have issued charge-sheet to the petitioner under Rule 17 of the Rajasthan Civil Services (CCA) Rules, 1958 as he is not appointing authority of the petitioner. It is stated that in this manner, the respondents, in order to come out of the interim order passed by the Court and shift the petitioner from Dausa, on 05/01/2021 one Dilip Kumar Sharma was posted and the petitioner was placed under suspension. 2. Learned counsel for the petitioner submitted that the suspension order is effected on account of malice and the petitioner has been made a victim on account of the

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(4 of 12)

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[CW-430/2021]

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concerned MLA having made complaint against the petitioner wrongfully. It is submitted that the allegations are false. The charge-sheet issued to the petitioner relates to an alleged incident of 2017 and the allegations are totally false as the petitioner did not possess an android phone at that relevant time and was not having any face book account. Learned counsel relies on a judgment delivered by the Supreme Court in Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha: (2012) 11 SCC 565 to submit that the charge-sheet dated 22/12/2020 (Anx.15) has been issued by the authority who is not competent to issue the same. He also submitted that the charge-sheet can also be quashed on account of having been issued with malice and for a remote incident.

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Learned counsel for the petitioner further submitted that the entire action has been taken because the petitioner had undertaken a drive for removing encroachments in the city of Dausa which created anger and several political leaders including the then MLA had decided to take cudgels. It is stated that even the earlier Commissioner, who was also not ready to compromise with the political leaders, had been placed under APO and ultimately shifted.

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Per-contra, learned counsel for the respondents submitted that the charge-sheets have been issued to the petitioner and he has been placed under suspension as the allegations are of serious nature and the enquiry requires to be conducted. The petitioner is not holding the post of Commissioner but is of a substantive rank of Executive Engineer. The petitioner cannot claim reinstatement on the

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(5 of 12)

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[CW-430/2021]

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post of Commissioner in view of the observations made by the Principal Seat of this Court at Jodhpur vide order dated 15/02/2021 in SB Civil Writ Petition No.2185/2021 , Shrawan Ram & Ors. Vs. State of Rajasthan & Anr. wherein the State has been restrained from posting or passing any order of giving charge of Commissioner, Municipality to any person who is not a Commissioner as per Rajasthan Municipal Service (Administrative & Technical) Rules, 1963. It is further submitted that appeal lies against the order of suspension. The petitioner has not filed reply to the other two charge-sheets. It is for the authority concerned to examine the reply in terms of Rule 16 of the CCA Rules, 1958 and take a decision thereto. Learned counsel relies on a judgment rendered by the Apex Court in Union of India & Anr. Vs. Ashok Kumar Aggrawal: (2013) 16 SCC 147 to submit that suspension is an interim measure. He also relies on an another judgment rendered by the Apex Court in Union of India & Anr. Vs. Kunisetty Satyanarayana:(2006) 12 SCC 28 in support of his submissions.

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I have considered the submissions.

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In Union of India & Anr. Vs. Kunisetty

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Satyanarayana (supra), the Apex Court held as under:-

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"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or showcause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any

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(6 of 12)

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[CW-430/2021]

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party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

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15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

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16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

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In Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha (supra), the Supreme Court

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held as under:-

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"8. The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide: State of Madhya

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(7 of 12)

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[CW-430/2021]

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Pradesh Vs. Bani Singh & Anr., AIR 1990 SC 1308; State of Punjab & Ors. V. Chaman Lal Goyal, (1995) 2 SCC 570; Deputy Registrar, Cooperative Societies, Faizabad Vs. Sachindra Nath Pandey & Ors., (1995) 3 SCC 134; Union of India & Anr. v. Ashok Kacker, 1995 Supp (1) SCC 180; Secretary to Government, Prohibi8tion & Excise Department Vs. L. Srinivasan , (1996) 3 SCC 157; State of Andhra Pradesh Vs. N. Radhakishan, AIR 1998 SC 1833; Food Corporation of India & Anr. V. V.P. Bhatia, (1998) 9 SCC 131; Additional Supdt. of Police Vs. T. Natarajan , 1999 SCC (L&S) 646; M.V. Bijlani Vs. Union of India & Ors., AIR 2006 SC 3475; P..D. Agarwal V. State Bank of India & Ors., AIR 2006 SC 2064; and Government of A.P. & Ors. V. V. Appala Swamy, (2007) 14 SCC 49).

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9. In Forest Department & Ors. v. Abdur Rasul Chowdhury, (2009) 7 SCC 305, this Court dealt with the issue and observed that delay in concluding the domestic enquiry is not always fatal. It depends upon the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should not (sic) be permitted to continue.

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10. Ordinarily a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P.

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(8 of 12)

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[CW-430/2021]

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V. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State HOusing Board V. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. V. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. Vs. Kunisetty Satyanarayana, AIR 2007 SC 906).

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11. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a charge-sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also: Union of India & Ors. V. Upendra Singh, (1994) 3 SCC 357.)

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12. Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."

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In Union of India & Anr. Vs. Ashok Kumar

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Aggrawal: (2013) 16 SCC 147 (supra), the Apex Court held as under:-

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"22. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of

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(9 of 12)

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[CW-430/2021]

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omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee’s continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank etc.

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27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. More so, at this stage, it is not desirable that the court may find out as which version is true when there are claims and counter claims on factual issues. The court cannot act as if it an appellate forum de hors the powers of judicial review.

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29. The Vigilance Manual issued by CVC on 12th January, 2005 specifically deals with suspension of a public servant. Clause 5.13 thereof provides that Commission can lay down the guidelines for suspension of a government servant. However, if the CBI has recommended suspension of a public servant and the competent authority does not propose to accept the said recommendation, the matter may be referred to the CVC for its advice. The CBI may be consulted if the administrative authority proposes to revoke the suspension order. Clause 6.1 read with Clause 6.3.2 thereof provide that suspension is an executive order only to prevent the delinquent employee to perform his duties during the period of suspension. However, as the suspension order constitutes a great hardship to the person

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(10 of 12)

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[CW-430/2021]

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concerned as it leads to reduction in emoluments, adversely affects his prospects of promotion and also carried a stigma, an order of suspension should not be made in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account."

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From the aforesaid judgments, this Court can reasonably sum up that in ordinary course, charge-sheet or show cause notice ought not be interfered with at the initial stage and such a stage is premature to reach to any conclusion regarding factual aspects. The suspension although causes a social stigma and hardship on a person as he is made to face embarrassment and it also affects other emoluments and pay fixations but the purpose of suspension is to keep the concerned person away from the place of his functioning so that the enquiry may be conducted without any fear or favour. The reasons for suspension are always subjective. The order of suspension is essentially based on the charges and its gravity. The appointing authority has to take a decision on the basis thereto. However, as held by the Supreme Court in Union of India & Anr. Vs. Ashok Kumar Aggrawal (supra),

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the suspension should not be made in a perfunctory or route manner and cannot be actuated on account of malice or bias. It cannot be used as a tool to punish an employee and due care and caution ought to be taken before placing a person under suspension.

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In view of above, if the facts of the present case are examined, this Court notices that the charge-sheet has not been replied.

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(11 of 12)

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[CW-430/2021]

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Rules 22 and 23 of the Rajasthan Civil Services (CCA) Rules, 1958 provide a forum of preferring an appeal against the order of suspension and against the order passed in departmental enquiry. Since the petitioner has not availed the statutory remedy of filing of an appeal against the order of suspension, the present writ petition seeking quashing of suspension order dated 07/01/2021 is dismissed on the ground of alternative remedy under the Rules.

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So far as the prayer for quashing charge-sheet is concerned, the petitioner has already filed reply to the first charge-sheet while to the second charge-sheet he has yet to file reply. It is at initial stage. This Court would not at this stage take into consideration the factual aspects of the charge-sheet. It is for the competent disciplinary authority to examine the factual aspects keeping in view the reply filed by the petitioner and take a decision. At this stage, the competent authority is empowered to drop the charge-sheet or it may appoint an enquiry officer to further conduct enquiry thereto. However, this Court would not interfere with the charge-sheets in view of the law laid down as noted above. No person has been impleaded as party against whom the allegations of malice or bias have been levelled. In absence thereof, the said aspects cannot be examined. 12. As regards the charge-sheet issued by the District Collector is concerned, admittedly, the District Collector is neither the appointing authority nor controlling authority of the petitioner. The charge-sheet could not have been issued by the District Collector to the petitioner. Moreover, as the allegations levelled by the petitioner are against the SDM as

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(12 of 12)

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[CW-430/2021]

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well as Divisional Commissioner and as the Divisional Commissioner, who is senior to the Collector and is immediate superior authority, therefore, the charge-sheet issued by the District Collector suffers from malice in law and is also found to be issued by an incompetent authority. 13. In view thereof, the said charge-sheet dated 22/12/2020 issued by the District Collector, Dausa is quashed and set aside. The matter is left open for the Principal Secretary, Department of Local Self Government, Govt. of Rajasthan to examine the aspects raised by the petitioner who, without prejudice, shall examine the reply filed by the petitioner, all the aspects thereto and take a decision independently at his own level.

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The writ petition stands disposed of in the terms as aforesaid. No order as to costs. All pending applications also stand disposed of.

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(SANJEEV PRAKASH SHARMA),J

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Raghu/

Surendra Kumar Meena S/O Shri Jawan Singh Meena v. State of Rajasthan

Case brief

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Surendra Kumar Meena S/O Shri Jawan Singh Meena v. State of Rajasthan

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