RAM NARESH TIWARI Vs. STATE OF M P

JUDGEMENT

(1.) This writ petition is heard along with W.P. No.1219/2012, which has been allowed and disposed of today.

(2.) In this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 22.03.2012 by which the petitioner has been placed under suspension under Rule 9 of the Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 (herein after referred to as 'Rules') because a departmental enquiry is initiated against the petitioner. By the order of the even date, the respondent No.3 has been given the charge of the post of the petitioner during the suspension of the petitioner. It is contended that in fact an order of transfer was issued on 17.01.2012, which order the petitioner has called in question in W.P. No.1219/2012. This Court has entertained the writ petition of the petitioner and has granted an interim stay. It is contended that to circumvent the order of this Court, the petitioner has been placed under suspension by the impugned order and again the charge of the post has been delivered to the same person, who was directed to be posted in place of the petitioner by the order of transfer dated 17.01.2012. It is stated that since the order of transfer of the petitioner and posting of respondent No.3 both were stayed by this Court, virtually because of malafide, the petitioner has been placed under suspension. It is contended that in such circumstances, the petitioner is left with no option but to file the writ petition before this Court instead of filing an appeal as provided under the Rules. The relief is, thus, claimed for quashment of the order of suspension.

(3.) This Court while entertaining the writ petition has passed the order on 28.03.2012 directing issuance of the notice to the respondents of the writ petition and the interim prayer and has categorically granted an interim stay of the suspension order as also the order passed in favour of respondent No.3 once again. The return has been filed by the respondents. It is contended by the respondents that soon after posting of the petitioner as Regional Additional Director, Higher Education, Rewa, reports were received that the working of the petitioner was not proper. He was not discharging the duties of his post. Certain writ petitions were filed before this Court, in which despite the notice, returns were not filed by the petitioner as a result, ex parte orders were passed against the State. This being a serious misconduct of the petitioner, lapse of discharge of duties, a decision was taken to initiate a departmental enquiry against him and for that reason the order of suspension was issued. It is contended that the writ petition filed against the order of suspension is, thus, liable to be dismissed. Vehemently it is contended in the return that the order of suspension is appealable under Rule 23 of the Rules. Since the statutory remedy of appeal is provided under the Rules, a writ petition under Article 226 of the Constitution of India is not maintainable. It is contended that the petitioner has not resorted to the remedy of appeal and straightway has rushed to this Court, therefore, the writ petition is liable to be dismissed on this count alone. It is further submitted that after suspension of the petitioner, a charge-sheet has been issued against him levelling allegations against him and thereby a departmental enquiry is initiated. It is the choice of the departmental authority to place any delinquent employee/officer under suspension during the pendency of the departmental enquiry. Even before initiation of departmental enquiry, order of suspension can be issued. For the purposes of conducting a fair and free departmental enquiry, suspension of the petitioner was necessary and, therefore, the order has been issued. It is contended that allegations of malafide are not born out from the record and as such the writ petition is liable to be dismissed.