KAILASH CHANDRA PILLAI Vs. STATE OF M P

JUDGEMENT

(1.) This Court has issued notices of this writ petition to the respondents and a return has been filed. The only controversy involved in the present writ petition is whether the period of suspension of the petitioner with effect from 27.03.2008 to 31.01.2009 is to be treated as leave period as directed by the order impugned dated 08.06.2009 or not. It appears that the petitioner was transferred from Jabalpur to Khandwa vide order dated 10.07.2006. On account of some difficulties, the petitioner though was relieved on 22.07.2006 could not joined at Khandwa. However, for a good period of almost 20 months no action was taken in that respect and on 20.03.2008, the petitioner was placed under suspension and departmental enquiry was initiated against him. The order of suspension was revoked on 31.01.2009 considering the fact that the daughter of the petitioner was suffering from kidney trouble and was being treated at Jabalpur, therefore, the posting of petitioner at Jabalpur was necessary. Only on this consideration the petitioner was posted at Jabalpur circle. After the departmental enquiry a finding was given that the petitioner has committed misconduct of not complying the order dated 10.07.2006. However, the charge No. 2 with respect to not receiving the Government orders and communication was not found proved. The disciplinary authority thereafter passed the order on 08.06.2009 keeping in view the fact that in the enquiry it was found that the daughter of the petitioner was in fact suffering from renal disease and was being treated at Jabalpur. No penalty whatsoever was imposed on the petitioner, on the other hand it was directed that the period of suspension w.e.f. 27.03.2008 to 31.01.2009 be regularized by obtaining leave application from the petitioner.

(2.) It is contended by learned counsel for the petitioner that if no penalty whatsoever was imposed on the petitioner, under the provisions of fundamental Rules, the period of suspension of the petitioner was required to be regularized either as duty period or as period spent on suspension, but the same cannot be treated as a period of leave. It is contended that specifically the circulars have been issued by the State Government in General Administration Department wherein it is prescribed that in case misconduct is not found proved or if it is found that a minor punishment for any proved misconduct is to be imposed. The period of suspension should be regularized treating as duty period for all purposes, under the provisions of Fundamental Rule 54(b). It is contended that the law is well settled in this respect as in one of the case this Court has held that regularizing the period of suspension in such manner is not permissible as has been done by the respondents.

(3.) Per contra it is contended by learned counsel for the respondents that since the petitioner was absent from duty, he has not carried out the order of superior authorities inasmuch as he has not joined on the transferred place instead of imposing a punishment for such proved misconduct, a lenient view was taken and period of suspension is regularized by granting leave to the petitioner and, therefore, no claim is made out as set-forth in the writ petition which deserves to be dismissed.