L B SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petition filed under Article 226 of the Constitution of India, the petitioner seeks an order setting aside the order passed by the State Government dated 27th November, 1998.

(2.) THE facts that are material and relevant for deciding the present petition are as follows:-The petitioner is in service of the State of Maharashtra and was working as Inspector of Police. On 17-8-1997 a trap was led by the Anti-Corruption Bureau, in which the petitioner was apprehended accepting cash of Rs. 50,000/ -. By an order dated 19-8-1997, passed by the Commissioner of Police, Mumbai, who admittedly is the appointing authority of the petitioner, the petitioner was placed under suspension with effect from 17-8-1997. It appears that thereafter the petitioner made a representation to the Chief Secretary of the Government of Maharashtra dated 18-9-1997 for revoking the order placing him under suspension. On 4-4-1998, the Additional Director General of Police passed an order according sanction for prosecution of the petitioner under the provisions of the Prevention of Corruption Act. On 14-8-1998 charge sheet has been filed in the Competent Court, wherein, prosecution against the petitioner is pending. It further appears that on 16-6-1998 pursuant to a representation made by the petitioner to the State Government, the Minister of State in the Department of Home made an order directing the Director General of Police to revoke the order of suspension of the petitioner. Pursuant to that order, communication dated 24-6-1998 was addressed by the Section Officer in Department of Home, Government of Maharashtra to the Director General of Police to reinstate the petitioner in service pending criminal prosecution launched against him. It appears that a copy of this letter of the State Government was forwarded to the Commissioner of Police, Gr. Bombay for information and proper action. It is clear from the letter of the State Government dated 24-6-1998 that the order placing the petitioner under suspension was not revoked or cancelled by the State Government, but the Government issued a direction to the Director General of Police to make an order reinstating the petitioner in service. As neither the Director General of Police nor the Commissioner of Police issued any order reinstating the petitioner in service, the petitioner approached the Maharashtra Administrative Tribunal by filing Original Application No. 403 of 1998 seeking a direction from the tribunal for compliance with the order of the State Government dated 24-6-1998. The original application, it appears, was disposed of by the Maharashtra Administrative Tribunal by order dated 6-8-1998 directing the State Government to decide the representation made by the petitioner dated 30-6-1998 within a period of 2 weeks. It appears that thereafter the petitioner filed a writ petition on the Appellate Side of this Court, which was registered as Writ Petition No. 5211 of 1998 seeking a writ of mandamus from this Court directing the Director General of Police, State of Maharashtra and the Commissioner of Police, Mumbai to issue an order reinstating the petitioner in service. According to the averments made in this petition, when that petition came for hearing before the Court a statement was made on behalf of the State Government that the State Government has made an order on 27th November, 1998 for continuing the petitioner under suspension. It is this order of the State Government which is challenged in the present petition. In the affidavit filed on behalf of the respondent, it is stated that the Government addressed a letter dated 24-6-1998 to the Director General of Police for reinstatement in service of the petitioner pursuant to an order made on his representation by the Minister of State in the Department of Home. It is further stated that the Director General of Police after receiving that letter on 26-6-1998 addressed a letter to the State Government to reconsider its order directing the Director General of Police and the Commissioner of Police to make order for reinstatement in service of the petitioner. According to the State Government, on the letter addressed by the Director General of Police to the State Government for reconsideration of its order, on 26-11-1998 the Deputy Chief Minister, who is also Cabinet Minister in the Department of Home passed an order directing that the petitioner should continue under suspension and therefore on 27-11-1998 the State Government issued a letter to the Director General of Police stating therein that the petitioner should continue to be under suspension pending his trial.

(3.) THE learned Counsel for the petitioner, firstly, submitted that the order placing the petitioner under suspension is liable to be revoked in view of the circular of the State Government dated 18th September, 1974. He also relied on two judgments of this Court (i) in the case of (Khushal Janbaji Gaidhane v. State of Maharashtra), 1986 Mh. L. J. 235 : 1986 (I) S. L. R. 763 and (II) in the case of (Namdeo G. Kalwale v. State of Maharashtra), 1998 (3) Bom. C. R. 305 : 1998 (I) Mh. L. J. 909. Now so far as this submission of the learned Counsel for the petitioner is concerned, perusal of the circular dated 18th September, 1974 shows that it deals with the period of suspension from service of a Government servant pending investigation against him by police and it lays down that the Government servant against whom criminal prosecution is contemplated can be continued under suspension for a period of six months during the pendency of the investigation and the period of suspension can be extended by further period of three months with the sanction of the Chief Secretary. The circulation does not deal with the period of suspension in cases where the charge sheet has been filed. Perusal of the judgment of this Court in Khushals case referred to above does not show that the Court has directed the State Government to implement its circular dated 18th September, 1974 after charge sheet is filed. The Court in that case was dealing with suspension where investigation is pending. The Court has observed thus: the principle underlying the circular seems to be that the investigation agency should move as expeditiously as possible in the matter of investigation particularly when an employee is under suspension. " in that case, the Court found that the petitioner was under suspension for 17 months and the Government Pleader was not in a position to inform the Court as to how much more time is likely to be taken for completing the investigation. It is thus clear that the Court in Khushals case was not dealing with the case of suspension where the charge sheet has already been filed after completion of the investigation. So far as the present case is concerned, the investigation against the petitioner started on 17-8-1997 when there was the raid of the Anti Corruption Bureau and the charge sheet has been filed on 18-4-1998. It is thus clear that the charge sheet in the present case has been filed within a period of 9 months from the date on which the investigation started which according to the circular referred to above is the maximum period for which a Government servant can continue under suspension during the pendency of the investigation by the police. Therefore, in our opinion, the case of the petitioner would not be governed by the circular dated 18th September 1974. So far the judgment of this Court in Namdeo Kalwale is concerned, in that case the Court was considering the case of a Government servant placed under suspension pending departmental inquiry against him and not criminal prosecution, and therefore, in our opinion, the judgment is not relevant for deciding the controversy that falls for consideration in the present case. The Rule framed by the State Government in exercise of its power to regulate the conditions of service of its employees empower the appointing authority to place a Government servant, who is facing a criminal charge, under suspension pending the completion of the criminal prosecution. The petitioner has been placed under suspension by appropriate authority because he is being prosecuted under the Prevention of Corruption Act. Considering the serious nature of the charge against the petitioner and extremely responsible and sensitive post that he holds in our opinion no exception can be taken to the decision of his employer to place him under suspension and to continue him under suspension till his trial is complete.