SHETHNA, J. - (1.) THIS appeal is arising out of the judgment and order dated 7. 8. 2000 passed by the learned Single Judge of this dismissing the writ petition No. 2454/2000 filed by the appellant/petitioner challenging the impugned order dated 15. 7. 2000 passed by the respondent No. 3 placing him under suspension with effect from 22. 11. 99, the date on which he was taken into custody, for remaining in custody for more than 48 hours.
(2.) THE original petitioner was appointed as Teacher Grade-III in December, 1982. An incident took place between two grounds of the village on 9. 11. 99 for which cross cases have been registered against both the sides. General allegations were made in the F. I. R. filed by Pabu Dan against several accused persons including the original petitioner/appellant for the offence punishable under Secs. 147, 148, 149, 447, 323, 324 & 436 I. P. C. Similar offences were registered against the other side. No specific role is attributed to any of the accused including the present appellant in that F. I. R. After lapse of 13 days, the petitioner was arrested on 22. 11. 99. He was released on bail on 8. 12. 99. Thus, he remained in custody from 22. 11. 99 to 8. 12. 99 i. e. for a period of nearly 16 days which is admittedly more than 48 hours. As soon as he was bailed out, he informed about the incident to the higher authorities on 9. 12. 99. He reported on duty but unfortunately, he was not given salary from November, 99. He made several requests to the department by way of representations but the same were not considered and at last he filed an appeal before the Rajasthan Civil Services Appellate Tribunal for issuing direction to the respondents regarding his salary. THE said appeal was admitted on 26. 6. 2000. It clearly appears that annoyed with this, the respondents passed an order dated 15. 7. 2000 (Annex. 6 to the writ petition) placing him under suspension with effect from 22. 11. 99, the day on which he was arrested and kept in custody. He challenged the said order of suspension before this Court by way of writ petition which was dismissed by the learned Single Judge on 7. 8. 2000 on the ground of alternate remedy available to the petitioner under Rule 13 (5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short `the Rules') with a request to the competent authority to consider his application for revocation of the suspension order within four weeks from the date of such representation. Learned counsel Mr. Purohit for the appellant submitted that the learned Single Judge committed a serious error in dismissing the writ petition on the ground of better, alternate and efficacious remedy of making representation to the authority under Rule 13 (5) of the Rules. He submitted that that cannot be said to be a better, alternate and efficacious remedy. He further submitted that the impugned order of suspension was passed with a malafide intention to frustrate the appeal filed by him before the Service Appellate Tribunal. He further submitted that the impugned order of suspension is passed without application of mind only on the basis of the F. I. R. registered against him. As against that learned counsel Mr. Singh for the respondents vehemently submitted that the day on which the appellant was arrested and taken into custody, he was to be treated as under suspension as soon as 48 hours of his detention in the custody were over in view of the provisions of Rule 13 (2) of the Rules. He further submitted that there was no malafide intention on the part of the authority and as soon as it was brought to the notice of the authority, the formal order of suspension was passed on 15. 7. 2000. It is true that under Rule 13 (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. However, Mr. Singh has overlooked the provisions of Rule 13 (1) (b) of the Rules. Under Rule 13 (1), the appointing authority has got power to place a person under suspension. It states that 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. Thus, from Rule 13 (1), it is clear that it is not necessary that in every case where a disciplinary proceedings against him is contemplated or is pending, or where a case against him in respect of any criminal offence is under investigation or trial, he is to be placed under suspension. The word used in Rule 13 (1) is `may' and not `must'. Thus, while passing an order of suspension, the authority has to apply its mind to the facts of each and every case and only after satisfying the gravity of mis-conduct or the offences alleged to have been committed by a person, he may be placed under suspension and otherwise not. Where a government servant who has committed serious offence involving moral turpitude then certainly he should be placed under suspension immediately as soon as he detained in custody for more than 48 hours but where an allegation is made against him that he has committed an offence like Section 323 I. P. C. etc which is not of moral turpitude, then certainly, he cannot be placed under suspension if such an offence is committed in his private or individual capacity and not in his capacity as a Government servant. There is a pari materia provision under Section 38 (4) of the Rajasthan Panchayati Raj Act, 1994 where also the word `may' is used and not `must' for placing the person under suspension. The same was considered by one of us (Hon'ble Mr. B. J. Shethna, J.) in case of Kanakmal vs. State & Ors. (1), wherein it has been held that "it is not necessary that in each and every case, where an enquiry is initiated against a person, he should be invariably placed under suspension. One can proceed by way of a regular enquiry against such person even without placing him or her under suspension. It depends upon the facts of each case. The main purpose of placing a person under suspension is that he should not indulge himself in similar type of activities till the regular enquiry against him for the similar purpose is concluded. But there should be a reasonable nexus with the charges or the allegations levelled against the person. " It must be stated that the appellant was bailed out way back on 8. 12. 99 after he was arrested and kept in custody from 22. 11. 99. After being bailed out, he immediately on 9. 12. 99 i. e. on the next day, he informed about the incident to the authority and also joined his duty. Unfortunately, he was not given salary for months together. Therefore, he go on making representation and finally he approached the Service Appellate Tribunal only in June, 2000. Thus, if he can continue as a Teacher for all this period after he was arrested and bailed out by remaining in custody for more than 48 hours, then there was no earthly reason for the respondents to pass the impugned order dated 15. 7. 2000 placing him under suspension with retrospective effect i. e. from the date when he was arrested and taken into custody.
(3.) FROM the facts narrated hereinabove, it appears to be clear case of victimisation and arbitrary exercise of power on the part of the authority while passing the impugned order dt. 15. 7. 2000 whereas it is established that the impugned order under suspension is ex-facie bad, then there was no question of asking the appellant to avail of alternate remedy of making a representation for revocation of the suspension order. With respect to our learned brother Judge, it was not a case of alternate remedy. Once the suspension order is passed, then it is open to the person to approach whether this Court or the State Government. If he has chosen this forum, then certainly, this Court cannot deny him an audience and refuse to decide on merits only on the ground that he could approach the State Government for revocation of the suspension order. In view of the above discussion, this appeal is allowed, the impugned judgment and order dated 7. 8. 2000 dismissing the writ petition No. 2454/2000 filed by the appellant/petitioner is hereby quashed and set aside, the writ petition is accepted and the impugned order of suspension dated 15. 7. 2000 placing the appellant/petitioner under suspension with effect from 22. 11. 99 is hereby quashed and set aside. The respondents shall now permit the appellant to discharge his duties as Teacher as if he was never placed under suspension and to pay all the arrears of his salary during suspension period, forthwith, and in any case not later than 31. 10. 2000. .;