- (1.) AN application has been moved by the respondents under Article 226 (3) of the Constitution of India in which prayer has been made that the stay order granted by this court on 26. 05. 1982 may be vacated. The arguments of both the learned counsel for the parties have been heard.
(2.) THE submission of Mr. Mahendra Singh on behalf of the petitioner is that the application under Article 226 (3) of the Constitution is not maintainable since a wrong fact has been mentioned that the service has not been effected on the respondent. It has been submitted that the stay application is also not maintainable is no reason has been given to vacate this stay order except that no notice was received by the respondent. It has further been submitted that the petiiioner cannot be suspended as the matter relates to the work done during the period of 4. 03. 1988 to 25. 06. 1988. It is further submitted that the application under Article 226 (3) cannot be filed during the vacation before the Vacation Judge. It is also submitted that the petitioner is entitled only to 3/4 of the salary and that before passing an order of suspension, the gravity of allegation, nature of evidence and the likely effect on the inquiry are the factors which should have been considered and they have not been considered. THE petitioner has voluntarily stopped the payment in respect of the bills passed and the action of suspension is malafide affecting the dignity of the petitioner and his client cannot be made to suffer in the facts and circumstances of the case. It has also been prayed that in case the application under Article 226 (3) is, accepted and the stay is vacated, the writ petition may also be disposed of on the basis of these arguments and no further arguments are required in the matter. The submission of Mr. Bhandari on behalf of the respondent is that the Irrigation Department has appointed it's panel lawyers/standing counsel and the Government Advocate are not dealing with the cases in the High Court. The notices of the writ petition and the stay application have not served upon the department or the advocate appointed by it and the service on the Government Advocate is not a proper service. It is further submitted that the suspension is not a punishment and reliance has been placed on the decision of Jammu& Kashmir High Court, in the case of D. N. Ganju Vs. State of J&k (1), wherein it has been held that the suspension cannot be treated either dismissal, discharge or reduction in rank. The order of suspension pending inquiry merely amounts to the debarring a member of the service from performing his duties temporarily and cannot in any sense of the term amounts to dismissal, or discharge so as to attract the provisions of the Constitution. It has been held that such an order cannot be amenable to writ jurisdiction. It has also been submitted that there was a fabrication of record and the last page of the measurement book were utilised for preparing the forged bills and an inquiry is in progress in the matter. I have considered over the matter. The effect of suspension order is that a person continues to be a member of Government service though he is not permitted to work and further during the period of suspension he is paid subsistence allowances. The suspension is an interim measure in aid of disciplinary proceedings. The order of suspension is, therefore, an interlocutory order against which no writ petition is normally entertainable except in the circumstances namely, where the order of suspension is passed by an authority which has no jurisdiction and where there is abnormal delay in concluding the inquiry or where the order of suspension is malafide could be challenged. None of these grounds have been alleged or pressed before me except that the order is malafide. I am of the view that it would not be proper at this stage to give any decision on merit in respect of various submissions made by both the parties. The inquiry is in process and has to be concluded within a reasonable time. The Government has to act in just and fair manner and has to conclude the inquiry in accordance with the procedure laid down under the rules. The suspension order is like an interlocutory order which does not deals with final right of the parties. As a matter of procedure for completion of the inquiry which is pending against a particular officer, the employer has always a right over his servant not to render any service without assigning any reason and the only exception to this right is that it should not be by way of punishment. If after completion of the inquiry it is found that the employee has not committed any misconduct, the order of suspension is liable to be revoked and in that case, the employee is entitled for all the backwages and the benefits. If it is found that the employee has committed misconduct, then the punishment has to be accorded looking to the nature of the misconduct and in that case, if the employee is not satisfied, the said order can be challenged by way of appeal and such other legal remedies which are available under the Act could be taken. It is only after the inquiry is completed, a final order is passed and the right accrues to the employee only at that stage. The order of suspension can be passed only when a disciplinary proceeding is pending or is contemplated against an employee or where the employee is facing some investigation in a criminal offence or has been convicted on a criminal charge or for the reasons which are provided under the Rajasthan Civil Service (Safeguarding of National Security Rules) etc. Under rule 22 of CCA Rules, a government servant may appeal against an order or suspension to the authorities to which the authority which made or deemed to have been made the order is immediately subordinate. No action has been taken unless the rules nor any reason have been shown as to why this remedy which was provided under the rules has not been availed of. The objection of the learned counsel for the petitioner is that a vacation Judge has no jurisdiction to hear the application under Article 226 (3) of the Constitution has no substance. A Vacation Judge has all the powers of the Single Judge as well as of the Division Bench and can here the application for vacating the stay which has been granted. The only thing for hearing the petition during vacation is that the matter should be of urgent nature and the Vacation Judge must be satisfied to this effect. In the present case, I am satisfied that the matter was of an urgent nature and the circumstances existed where the hearing on the stay granted was necessary. Regarding the submission of the learned counsel for the petitioner is that the order is malafide, but no documents have been produced or it has been proved from the record that there was any malafide on the part of the respondents in suspending the petitioner. The quest on as to whether the work was actually done during the period from 4. 3. 1988 to 26. 5. 1988 or was not done or the bills which have been verified by the petitioner were forged bills to the knowledge of the petitioner or he was expected to exercise due care and caution while passing the bills or his negligence in discharging his duties or action of the petitioner amounted to misconduct so as to liable for any punishment are the matters on which the inquiry is pending and it would not be proper at this stage to consider the merits of the case. The bills in this case were passed on 2. 11. 1991 and it is alleged that the payment was stopped on 4 11. 1991. On this point also I would not like to say anything at this stage as this act of the stoppage of payment may go in favour or against the petitioner. It is only after the inquiry is made that the facts will come on record. It is however, observed that the Bank which has made payment of the bills on 7. 11. 91 inspite of the stoppage of the payment should be liable for such payment and negligence in the matter. The submission of the learned counsel for the petitioner is that the reasons for vacation of the stay has not been given in the application has also no substance. The case was argued at length by both the parties and the arguments raised have been considered in the judgment. It is held that it is inherent power of the employer to suspend an employee pending inquiry and this court has no jurisdiction as neither the order have been shown to have been without jurisdiction nor it has been shown that there was any abnormal delay in conducting inquiry nor any malafides have been proved and in these circumstances, the stay granted on 26. 5. 1992 is vacated.
(3.) SINCE the learned counsel for the petitioner has prayed that in case the stay granted is vacated, then the writ petition should also be considered to have been decided as rejected. This prayer of the learned counsel is accepted and in view of the rejection of the stay application and for the reason that the arguments have been restricted only on the points raised above and no further arguments have been submitted on merits, the writ petition also shall stand dismissed. 8. No order as to costs. .;