Dismissed

Ravi Meena S/O Sh. Bharat Lal Meena v. State of Rajasthan

Rajasthan HC22 Jul 2022CW/9464/2022

Case brief

AI extract

What is this about?

The High Court bench held that since the petitioner admitted the existence of an alternative remedy via appeal before the Rajasthan Civil Services Appellate Tribunal, it was not inclined to exercise extraordinary writ jurisdiction under Article 226 to exercise judicial review over the suspension order.

What did the court decide?

The writ petition was dismissed as the petitioner had an available alternative remedy of appeal before the Tribunal.

Ravi Meena S/O Sh. Bharat Lal Meena Vs… — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 9464/2022

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Ravi Meena S/o Sh. Bharat Lal Meena, Aged About 37 Years, Resident Of F-5, 2Nd Floor, Somya Sky Crown, Near Akshay Patra, Jagatpura, Jaipur (Raj.)

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----Petitioner

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Versus

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State Of Rajasthan, Through Secretary, Department Of Personnel, Govt. Of Rajasthan, Govt. Secretariat, Jaipur

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Department Of Higher Education, Govt Of Rajasthan Through Its Secretary, Govt. Secretariat, Jaipur

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Department Of College Education, Govt Of Rajasthan Through Its Commissioner, Registered Office- Dr. S. Radhakrishnan Shiksha Sankul, Jawahar Lal Nehru Marg, Jaipur-302006.

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Deputy Secretary (A-3/complaint) Department Of Personnel, Govt. Secretariat, Jaipur

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Joint Secretary, Department Of Personnel, Govt. Secretariat, Jaipur ----Respondents

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For Petitioner(s) : Mr. Mohit Khandelwal For Respondent(s) :

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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22/07/2022

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This writ petition has been filed by the petitioner with the following prayer:-

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“It is, therefore, humbly prayed that your Lordships may graciously be pleased to accept and allow this Writ Petition and further be pleased to issue appropriate writ/order/direction to the respondents to the following effect a) To quash and set aside the Impugned order dated 26.05.2022 (Annexure No 11) passed by the Respondent No. 5.

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(2 of 9)

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b) To quash and set aside the Impugned order dated 26.07.2021 (Annexure No. 5) passed by Respondent No. 1.

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c) To direct to the respondents to revoke suspension order of the petitioner with immediate effect by re-instating him in service treating as continuing gain service with all consequential benefit.

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d) To pass any other order or direction which this Hon’ble court deems just and proper may also be passed in favour of the petitioner.”

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The petitioner was placed under suspension vide order dated 26.07.2021. In the first round of litigation, the petitioner approached this court by filing S.B. Civil Writ Petition No.36/2022 for revocation of his suspension order dated 26.07.2021. The said writ petition alongwith connected matters was decided by the Coordinate Bench of this court vide order dated 14.02.2022 granting liberty to assail order of suspension under Rule 22 of the Rules, 1958. The said provisions provides remedy to the government servant of filing appeal against the order of suspension to the concerned authority. Pursuant to the liberty granted to the petitioner vide order dated 14.02.2022, the petitioner filed appeal before the authority, which has been dismissed vide order dated 26.05.2022. In the present writ petition, the petitioner has assailed both the orders dated 26.07.2021 and 26.05.2022.

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Counsel relied upon the judgment passed by the Division Bench of this court in the matter of Jahangir Ali Khan Vs. State of Rajasthan & Anr. (D.B. Special Appeal (Writ) No.662/2022 in S.B. Civil Writ Petition No.4064/2022) decided on 25.05.2022 wherein it has been held as under:-

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(3 of 9)

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“With the consent of the parties, as Mr. S.S. Raghav, Additional Advocate General has entered appearance on behalf of the respondents, we have heard the case finally.

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Challenge to the order passed by the Ld. Single Judge is based on the ground that Ld. Single Judge while setting aside the order of stay of suspension did not apply the law laid down by the Supreme Court in the case of A jay Kumar Choudhary Vs. Union of India & Others reported in (2015) 7 SCC 291, wherein it has been authoritatively pronounced by the Supreme Court that where after suspension, memorandum of charges/charge sheet has not been issued within the period of three months, the same shall result in automatic revocation of the suspension order. Learned Senior Counsel has argued that though ordinarily an order of suspension may not be stayed but the facts of the present case are extra-ordinary as continuance of the suspension order would be against the law declared under Article 141 of the Constitution of India by the Supreme Court. Therefore, the order passed by the Learned Single Judge deserves to be set aside and the order of the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as “the Tribunal”) may be restored.

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On the other hand, learned Additional Advocate General would argue that the suspension order was passed on 17.03.2021 against which writ petition was filed before this Court and the appellant was allowed to make representation. Upon due consideration, the representation of the appellant was rejected. Against the rejection order, there was statutory efficacious remedy of appeal provided under Rule 22 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”) but the appellant-employee rushed to file appeal before the Tribunal and the Tribunal even without giving any notice and opportunity of hearing has passed an order staying the order of

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suspension.

He would also submit that in any case the Tribunal does not have jurisdiction to entertain the dispute arising out of the order of suspension as the same is not covered under the expression “Service Matter” as provided under sub-section (f) of Section 2 of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 (hereinafter referred to as “the Act of 1976”).

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We have heard the counsel for both the parties, perused the material available on record and the order passed by the Ld. Single Judge.

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The first contention of the learned Additional Advocate General that the Tribunal had no jurisdiction to entertain the dispute regarding the validity of an order of suspension, cannot be accepted in view of wide definition of expression “Service matter” given under Section 2 (f) of the Act of 1976.

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Section 2, sub-section (f), being relevant, is extracted hereinbelow:-

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“(f) "Service matter" means any one or more than one of the following matters relating to a Government Servant:-

(i) Seniority;

(ii) Promotion;

(iii) Confirmation;

(iv) Fixation of pay;

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(v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government Servant, otherwise than as a penalty;

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(vi) Cases of reversion while officiating in a higher service, grade or post to lower service, grade or post other-wise than as a penalty;

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(vii) Withholding the pension or denying the maximum pension other-wise than as the penalty;

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(viii) Any other matter notified by the Government.”

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Clause (v) of sub-section (f) of Section 2 of the Act of 1976 is very wide. It reads that an order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government Servant, other-wise than as a penalty would be covered under the expression “Service matter”. The expression “any other service conditions to the disadvantage of a Government Servant” would obviously include the dispute arising on account of an action of suspending an employee under the service Rules. Given the wide definition under sub-section (f) as aforesaid, we have no reason to hold that it excludes suspension issue. Therefore, the contention of Ld. Additional Advocate General with regard to jurisdiction on this aspect cannot be accepted and therefore rejected.

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The other argument that the Tribunal, in view of Section 4(A) of the Act of 1976, could not have admitted the appeal as there is in existence an alternative remedy, is not a rule of thumb. As the provision itself reads, the Tribunal shall not ordinarily admit an appeal unless it is satisfied that appellant had availed all the remedies available to him under the relevant service Rules as to redressal of grievances.

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On rational, logical and fair interpretation of this provision, though ordinarily, such remedy would not be available to approach before the Tribunal unless the statutory remedy provided under the service Rule is availed, the use of expression “Ordinarily” is clearly indicative of intention to confer jurisdiction to entertain cases of exceptional nature.

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The question as to whether present is a case of exceptional nature, should not detain us any more because of authoritative pronouncement by the Supreme Court in the case of Ajay Kumar Choudhary (supra). Evolving service jurisprudence in the matter of

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(6 of 9)

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continuance of suspension order even without issuance of memorandum of charges either in the departmental enquiry or filing of the charge sheet in the criminal case, their Lordships in the Supreme Court authoritatively held as below:-

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“13. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v. State of Bihar MANU/SC/0199/1986 : 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Code of Criminal Procedure 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Code of Criminal Procedure postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on

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the same pedestal.

We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

¶59

The law declared by the Supreme Court, binding under Article 141 of the Constitution of India on all Courts and the Tribunals, is that the suspension order should not extend beyond three months if within this period, the memorandum of charges/charge sheet is not served on

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the delinquent employee. If on facts it is found that charge sheet has not been filed in criminal case or memorandum of charges, in the event the department decides to hold departmental inquiry, has not been issued within three months, the suspension order would come to an automatic end.

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On facts of the present case, it is clear that initially the suspension order was issued on 31.03.2021, declaring deemed suspension w.e.f. 17.03.2021 on account of arrest and detention for more than 48 hours. The same was challenged before this Court and the appellant was allowed to make representation. The representation was rejected on 10.01.2022 i.e. almost after ten months of the deemed suspension. The order nowhere refers to issuance of any memorandum of charges in any departmental enquiry initiated by the department much less filing of charge sheet in the Criminal Court relating to the offences in connection with which deemed suspension had taken place.

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On aforesaid factual aspects, which are not in dispute, the law declared by the Supreme Court in the case of Ajay Kumar Choudhary (supra) does not warrant continuance of the order of suspension.

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This extra-ordinary situation was taken into consideration by the Tribunal to stay the order of suspension. All the Courts and Tribunals are bound by the law declared by the Supreme Court under Article 141 of the Constitution of India. Since the order passed by the Tribunal is based on the Supreme Court’s judgment in Ajay Kumar Choudhary’s case, we find that the order could not be interfered with only on the ground that it was ex parte or passed 10 months after the suspension order was issued.

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In view of above, we are inclined to set aside the order passed by the Ld. Single Judge and the same is set aside.

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We would, however, direct the Tribunal to dispose off the matter within a

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period of 45 days from the next date of hearing before the Tribunal.

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The appeal is accordingly allowed.”

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Heard counsel for the petitioner and perused the record. Admittedly, the petitioner is having alternative remedy of appeal against the order dated 26.05.2022 before the Rajasthan Civil Services Appellate Tribunal, therefore, in the facts and circumstances of the present case, I am not inclined to exercise the extraordinary justification of this court under Article 226 of the Constitution of India.

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Hence, this writ petition stands dismissed.

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(INDERJEET SINGH),J

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JYOTI /144

Ravi Meena S/O Sh. Bharat Lal Meena v. State of Rajasthan

Case brief

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Ravi Meena S/O Sh. Bharat Lal Meena v. State of Rajasthan

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