PANWAR,j. - (1.) HEARD learned counsel for the petitioner.
(2.) BY the instant writ petition, petitioner has challenged the order dt. 8. 4. 2003 by which he was suspended. Nothing was contemplated and during the enquiry, he was suspended. Suspension cannot be said to be a punishment. The petitioner is facing enquiry relating to matter in which the FIR was lodged by Anti Corruption Bureau. It is settled legal proposition that during suspension, relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot be treated as a punishment even by stretch of imagination in strict legal sense. A Constitution Bench of the Supreme Court in R. P. Kapur vs. Union of India & Ors. (1), observed that the Authority entitled to appoint a public servant would be entitled to suspend him during pendency of the departmental enquiry into his conduct or pending a criminal case. In Management of Hostel Imperial, New Delhi vs. Hotel Workers Union (2), T. Cajee vs. Jormik Sienu (3), and V. P. Gindroniya vs. State of M. P. (4), the Hon'ble Apex Court held that putting a Government servant under suspension during the pendency of Departmental Proceedings or Criminal trial, means that the Government merely issued a direction that he must not do any thing in discharge of the duties of his office and the employee is bound by the said order. The scope of interference by the Court with the order of suspension in the case where a delinquent employee faces the criminal charge has been examined by this Court in D. R. Kalla vs. State of Rajasthan & Ors. (5), wherein reliance has been placed on a large number of judgments of the Hon'ble Supreme Court, particularly in State of M. P. vs. Sardul Singh (6), E. V. Srinivas Shastri vs. Comptroller & Auditor General of India (7), Inspector General of Police & Anr. vs. Thavasiappan (8), Director General, ESI & Anr. vs. E. Abdul Razak (9), Scientific Adviser to the Ministry of Defence vs. S. Denial etc. (10), Kusheshwar Dubey vs. M/s Bharat Cooking Coal Ltd. & Ors. (11), Delhi Cloth General Mills vs. Kushan Bhan (12), U. P. Krishi Utpadan Mandi Parishad vs. Sanjeev Rajan (13), State of Rajasthan vs. B. K. Meena & Ors. (14), and Secretary to Govt. , Prohibition and Excise Department vs. L. Srinivasan (15), and came to the conclusion that even if a criminal trial takes a long time, it is not open to the Court to interfere in case of suspension as it is the exclusive domain of the competent authority who can always review its order of suspension as it is an inherent power conferred upon him by the provisions of Article 21 of the General Clauses Act, 1897 and while exercising such a power, the authority can consider the case of an employee for revoking the suspension order, if satisfied that the criminal case would be concluded after an unusual delay for no fault of the employee concerned.
(3.) IN State of Orissa vs. Vimal Kumar Mohanty (17), the Hon'ble Supreme Court observed as under:- ". . . . . . when an appointing authority or the disciplinary authority seeks to suspend the employee. . . the order of suspension would be passed taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the deliquent employee. The Court or the Tribunal must consider each case on its own facts and no general law should be laid down in that behalf. . . . . . IN other words, it is to refrain him to avail further opportunity to perpetuate the alleged misconduct or to remove the impression among the members of service that dereliction of duty will pay fruits and the offending employee may get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation to win over the other witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuation of the delinquent employee in service pending inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by malafide, arbitrarily or for ulterior purpose. The suspension must be a step in add to the ultimate result of the investigation or inquiry. The Authority also should keep in mind public interest of the impact of the delinquent's continuation in office while facing departmental inquiry or a trial of a criminal charge. " In Allahabad Bank & Anr. vs. Deepak Kumar Bhola (17), the Hon'ble Supreme Court held that in case involving serious charges, for which the sanction of the prosecution in a criminal court has been obtained, suspension order should not generally be interfered. However, the decision of the competent authority should be based on material collected during investigation/ inquiry. Since in the facts and circumstances of the case, the petitioner is facing trial for the offences under the provisions of Prevention of Corruption Act and sanction to prosecute him has been accorded by the State Government, it is not a fit case where suspension order warrants interference. ;