HIRALAL SHARMA Vs. REGISTRAR RAJASTHAN HIGH COURT JODHPUR

JUDGEMENT

(1.) PETITIONER Hiralal Sharma has filed this review application praying that the direction in the main judgment, reproduced below about emoluments during the earlier suspension should be recalled. "question of payment of emoluments during all this period to the petitioner, would be decided at the time of the final order by the disciplinary authority. The petitioner would of course, be paid subsistence allowance under the rules which is required to be paid to a suspended employee from the date of this judgement to the date of final order of the disciplinary authority, which should not take more than one year normally from today. "

(2.) MR. MRidul learned counsel for the petitioner has invited my attention to rule 13 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 (hereinafter called 'the Rules') and the sub-clauses (3) and (4) of the same. Sub-clauses (3) and (4) of rule 13 are as under:- " (3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government Servant (under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations in which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. " He has also invited my attention to the judgment of Om Prakash Gupta vs. State of Uttar Pradesh (1) and Jaiwant Rao vs. State of Rajasthan (2 ). According to him the combined effect of rule 13 of the above Rules along with rule 53 of the Rajasthan Service Rules interpreted in the light of the observations of the Hon'ble Supreme Court and this Court in the above cases, is that whenever a dismissal is set aside and denovo enquiry is conducted, the order of suspension which was in existence earlier to order of dismissal, which has been set aside, also stands quashed because it merges in the order of dismissal, which has been quashed and set aside by this court. In view of this argument, MR. MRidul states that the petitioner Hiralal Sharma is entitled to reinstatement and will get all the salary and emoluments from the date of suspension to the date of dismissal, which has been set-aside. It was pointed out that the judgment of this court has been given and the above direction has been given by this court under ignorance of rule 13 (4) and if rule 13 (4) have been pointed out or looked into by the Court, then the above direction could not have been given.

(3.) MOREOVER, the present one is a serious case of embezzlement and other allegations of tempering of the government record by an employee in the judicial court. The dismissal order has been set aside on the ground that he was not allowed the proper opportunity to defend himself because the prayer for permitting his representation was unlawfully disallowed, so far as examination of some witnesses is concerned. In the operative part of my judgment I have mentioned that the petitioner may be kept under suspension during the enquiry, as he is facing a charge-sheet of serious allegation of 'abuse and misuse' of the government funds and misappropriation, manipulation of the records and accounts, alterations and forgeries etc. In view of the seriousness of the allegations, the direction given by this Court, which is sought to be reviewed, is in consonance with equity and justice also. I am further of the opinion that under Article 226 of the Constitution, it is discretionary with the Court to issue such directions on the basis of the peculiar facts and circumstances of each case, and rule 13 cannot be treated as a rider on Article 226 of the Constitution.