Jagdish Kumar Marai v. State Of Chhattisgarh And ORS.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 2005 of 2015 • Jagdish Kumar Marai S/o Shri Prem Kumar Marai Aged About 30 years Posted At Patwari Halka No. 51, Tehsil Lormi District Mungeli, R/o Permanent, Daupara Andrejward Behind Of Old Insurance Office Mungeli Police Station & Tahsil Mungeli, District Mungeli Chhattisgarh ---- Petitioner

Versus

1. State Of Chhattisgarh Through Its Secretary Department Of Panchayat & Rural Development, Mantralaya, Mahanadi Bhawan, Naya Raipur, P.S. Rakhi, District Raipur Chhattisgarh

2. Collector Mungeli, Chhattisgarh

3. Sub Divisional Officer (Revenue) Lormi, District Mungeli, Chhattisgarh ---- Respondents For Petitioner Shri Y.C. Sharma, Advocate with Ms. Anita Suryavanshi, Advocate For Respondent/State Shri Sangharsh Pandey, Dy. GA Hon'ble Shri Justice Prashant Kumar Mishra Order On Board By 20/07/2015 1.

With the consent of the learned counsel for the parties, the matter is heard finally.

2.

Petitioner has assailed the said part of the impugned order whereby, while revoking his suspension and reinstating him, he has been posted at a place different than the one where he was posted at the time of passing the order of suspension.

3.

The petitioner, who is working as Patwari at Patwari Halka No.51, was suspended on 29.04.2015. At that time, his headquarter during suspension period was fixed at Tahsil Office Lormi. Subsequently, charge sheet was issued against the petitioner and a departmental enquiry has been constituted.

4.

The Sub Divisional Officer (Revenew), Lormi by the impugned order dated 08.05.2015 has revoked the order of suspension, however, the petitioner has now been posted in Patwari Halka No.34. 5.

Learned counsel for the petitioner would submit that when an employee is suspended from a particular place of posting he retains the lien on the said post, therefore, on revocation of order of suspension the employee is required to be posted at the same place. 6.

Learned counsel for the State would submit that even if the lien is maintained at the same place, the competent authority is entitled to transfer and post the petitioner at any other place, depending upon the administrative exigency, therefore, there is no illegality. 7.

The issue fallen for consideration has been decided by the Division Bench of the High Court of Madhya Pradesh in Kendriya Vidyalaya Sangthan and others v. Dr. R.K. Shahstri and another 1, wherein the following has been held :

"The order dated 6/8-7-2002 is not passed by the authority who passed the order of suspension, but by the Appellate Authority in exercise of appellate power, while dealing with an appeal filed by the employee. While exercising the appellate power under Rule 23 read with Rule 27 (1), the Appellate Authority can either confirm the suspension or revoke the suspension. Therefore the second respondent while passing the order dated 6/8-72002, could not have transferred the employee or make the revocation of 2005 (4) MPHT 352 (DB)

suspension subject to the employee reporting at the place of transfer. The order of the Appellate Authority to the extent it subjects the revocation of suspension conditional to reporting to duty at K.V., Karimganj is therefore illegal and inoperative.

It is well settled that when an employee is kept under suspension pending enquiry, he retains his lien over the post from which he is suspended. It is also a settled position that the station of posting immediately before suspension would be the headquarter vis-a-vis the suspended employee, unless the Competent Authority changes the headquarter of the suspended employee in public interest. It is also well settled that any vacanycy caused on account of suspension pending enquiry, is to be filled by a reservist and where a reservist is not available by officiating appointment. Therefore on revocation of suspension, the employee becomes entitled to report back to his place of posting from where he was suspended. Once he reports back to duty, the employer may, in exercise of power of transfer, transfer him.

Therefore, we agree with the finding of the Tribunal that the order of the Appellate Authority dated 6/8-7-2002 to the extent it posts the first respondent to Karimganj and makes the revocation of suspension effective from the date of reporting at K.V., Karimganj, is invalid and liable to be quashed.

Emphasis supplied 8.

In the case at hand, on the date of suspension the petitioner was posted at Patwari Halka No.51, Lormi and his headquarter during the period of suspension was fixed at the Tehsil Office, Lormi, however, while revoking the suspension order he has been assigned the new place of posting, which is other than the place of original posting or his headquarter during the period of suspension.

9.

In view of the observation made by the Division Bench of the High Court of Madhya Pradesh in Dr. R.K. Shahstri (supra), such recourse is not available to the authority who has revoked the suspension. 10.

Accordingly, such part of the impugned order whereby the petitioner has been posted in the Patwari Halka No.34, Lormi, is quashed.

However, the respondents would be at liberty to pass fresh order with regard to petitioner's posting depending upon the administrative exigency.

11.

As a sequel, the writ petition is allowed to the extent indicated above. No order as to costs.

Sd/- Judge Prashant Kumar Mishra Nirala