N.N. Mathur, R.P. Vyas, J. - (1.) We have heard the learned counsel for the parties. The appellant holding the post of District Probation Cum Social Welfare Officer posted at Nagaur has been put under suspension. It appears that a complaint has been filed by Smt. Narayani @ Sudarshna, which is under investigation by the police. The learned Single Judge while considering the application under Section 438 of the Code of Criminal Procedure has scrutinised the allegations and while granting the bail has made observations which has some bearing on the seriousness of the alleged misconduct of the appellant. It is well settled law that an appointing authority or disciplinary authority while exercising powers to suspend an employee pending enquiry or investigation must look into the seriousness of the charges alleged. A suspension order cannot be passed in a routine manner. The State Government has also issued guidelines in this regard. It is of-course true that the Government has a right to suspend an employee pending departmental enquiry or pending c0minal investigation, but. it is also equally true that such power of suspension cannot he exercised arbitrarily and without any reasonable ground. The power r;f suspension is to be exercised sparingly and it should not be exercised in vindictive manner and it is expected of authority passing the order to take into account all the relevant material, nature of charge, the attending circumstances and the necessity or desirability of placing a public servant under suspension. If an order of suspension is passed without any strong reason, a public office is kept vacant causing inconvenience to the public at large.
(2.) A perusal of the order of the learned Single Judge speaks much on the credibility of the complaint under investigation. The order of the learned Single Judge is extracted as follows : "It is contended by the learned senior counsel for the petitioner that the complainant earlier married to one Heeralal, however, subsequently, she filed a petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage solemnized with Heeralal. The District Judge, Bhilwara by judgment and decree dated 22.4.1998 in Civil Misc. Case No. 108/97 dissolved the marriage of the complainant solemnized with Heeralal. The judgment and decree has been placed on record. Learned counsel further submits that thereafter the complainant married to the petitioner according to Hindu rites by performing Saptpadi. This fact has been stated by the complainant in an affidavit filed by her dated 6.11.1998, wherein she categorically deposed that on 26.2.1998, she married to petitioner Ramlal according to Hindu rites after performing the Saptpadi. In the said affidavit, she has also deposed that before marrying with the petitioner, she was made aware that the petitioner was earlier married having three children. She has named the children of the petitioner from his earlier marriage. Apart from voluntarily terminating his pregnancy in order to go for higher education, she stated that she has been residing with the petitioner as his wife. The complainant also filed an application before the Rajasthan Housing Board, Bikaner for allotment of house showing her name Smt. Sudarshna Singh Meena W/o Ramlal Meena affixing her own photo as also photo of the petitioner on the application form. A house, on the basis of her application, was said to have been allotted to the complainant, in which, according to learned counsel, she is presently residing. She has executed an agreement for purchase of the house wherein also it has been categorically stated that she is wife of the petitioner. In almost, all documents including the affidavit filed by her duly attested by notary public on 29.3.2005, she has shown herself to be the wife of the petitioner. There are indemnity bond, undertaking and power of attorney etc. on record wherein she has herself shown to be the wife of the petitioner. The complainant is about 26 years of age and according to her statement, it appears that she is graduate. In her statement she stated that she is B.A., LL.B., that shows that the complainant is graduate in Arts and Law. Since February 1998, she has been living with the petitioner as his wife. Even in the affidavit she has deposed that she herself voluntarily terminated the pregnancy in order to go for higher education. Keeping in view the evidence available on police investigation diary, it appears that since February 1998 for last about seven years, she has been living with the petitioner as his wife. Even in her statement under Section 164 Cr.PC. she has stated that she has married to the petitioner. Learned senior counsel for the petitioner submits that in view of the admitted statement of the complainant, the offence punishable under Section 376 1PC cannot be made out. For all purpose, the complainant is wife of the petitioner and, therefore, even if the petitioner had a sexual intercourse with her being his wife, it cannot amount to a sexual intercourse against her will and without consent. So far as threatening to terminate pregnancy is concerned, on earlier occasion, she clearly deposed in the affidavit that she at her own, terminated the pregnancy in order to go for higher education. Thus, there cannot be any threat to terminate the pregnancy, on the contrary, the petitioner wished that the complainant should not terminate the pregnancy. Looking to the facts and circumstances of the case and having considered the oral arguments advanced by the parties and keeping in view the material placed on record as noticed above, I consider it just and proper to allow the bail application filed by the petitioner under Section 438 Cr.PC."
(3.) Considering the facts and circumstances, pending the special appeal, we direct the second respondent Director, Social Welfare Department, Government of Rajasthan, Jaipur to review order of suspension keeping in view the observations made above and the order of the learned Single Judge as extracted. The authority has to consider if it is at all expedient to continue the appellant under suspension. The decision shall be taken within a period of two weeks. List after three weeks. Matter directed to be posts after three weeks.;