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Md. Nasib Ali v/s The State of Manipur, Represented by the Additional Chief Secretary (Works), Manipur & Another

    W.P.(C) No. 413 of 2021

    Decided On, 10 November 2021

    At, High Court of Manipur

    By, THE HONOURABLE MR. JUSTICE M.V. MURALIDARAN

    For the Petitioner: N. Jotendro, Sr. Advocate. For the Respondents: Shyam Sharma, GA.



Judgment Text

CAV Judgment

1. This writ petition has been filed by the petitioner seeking a writ of certiorarified mandamus to quash the suspension order dated 25.9.2012 issued by the second respondent.

[2] Heard Mr. N. Jotendra, learned senior counsel, appearing for the petitioner and Mr. Shyam, learned Government Advocate.

[3] The case of the petitioner is that while he was working as Barkandaz in Electrical Division No.1, PWD, Manipur, the petitioner was placed under suspension by an order dated 25.9.2012 of the second respondent under Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in connection with FIR No.138(8)2012 registered under Sections 468, 471 and 420 IPC. According to the petitioner, the said FIR was registered in connection with a complaint dated 27.8.2012 lodged by the then Superintending Engineer, Electrical Circle, PWD, Manipur for the alleged withdrawal of Rs.5,39,174/- fraudulently from the Account No.32178814953 of State Bank of India, Manipur University Branch by using forged office orders, certificates, bill vouchers and other fake documents in the name of one fictitious person namely Keisham Biren Singh, S.O., Grade-I as provisional gratuity in the month of March, 2012 in which the petitioner was also put as one of the accused along with seven others in the said FIR.

[4] Further case of the petitioner is that a cognizance was taken up and the case was registered before the Learned Chief Judicial Magistrate, Imphal West. In the said criminal case, the petitioner was arrayed as accused No.2. The State, after investigation filed the charge-sheet before the Learned Chief Judicial Magistrate and upon hearing on the charges, by the order dated 20.8.2019, the petitioner was discharged from the offences, which are charged against him. The said order of acquittal was also communicated to the Department by the petitioner through a representation dated 3.9.2019.

[5] According to the petitioner, the petitioner was receiving the subsistence allowance as admissible under the Rule till date with effect from 27.10.2015. Since the petitioner acquitted and is also on the verge of retirement from his service, he had made several representations to the concerned authorities praying for revocation of the suspension order dated 25.9.2012 issued by the second respondent. The suspension order is required to be reviewed within a period of 90 days. However, the respondent authorities failed to review the same. Hence, the petitioner has filed the present writ petition.

[6] No affidavit-in-opposition has been filed by the respondents even after several adjournments were given.

[7] Assailing the impugned order of suspension, the learned senior counsel for the petitioner submitted that immediately after discharge/acquittal from the criminal case, the petitioner has made a representation by enclosing the copy of judgment of the acquittal requesting the authorities to revoke the suspension order dated 25.9.2012, followed with subsequent representations also. However, the same are not considered and disposed of till date for the best reason known to them.

[8] The learned senior counsel further submitted that in response to one of the representations preferred by the petitioner, the Under Secretary (Works), Government of Manipur forwarded a letter on 15.6.2020 to the second respondent to do the needful action for revocation of the suspension order. Despite the direction of the Under Secretary, the second respondent has not revoked the suspension order, which culminated the petitioner in sending another representation dated 10.2.2021 to the first respondent requesting for revocation of the suspension order dated 25.9.2012 as the suspension order is illegal and the petitioner is victim of circumstances by dragging his name in the FIR No.138(8)2012 for which he was suspended and as such since the suspension order was not yet reviewed, the same is required to be reviewed within a period of 90 days on the principle laid down by the Hon’ble Supreme Court as well as by this Court so as to enable the petitioner to continue to discharge his duties to his former post of Barkandaz, Electrical Division No.I, PWD, Manipur. In support, the learned counsel placed reliance upon the judgment and order of this Court dated 27.1.2020 passed in W.P.(C) No.838 of 2016 [Md. Yahiya Khan v. The State of Manipur, rep. by the Additional Chief Secretary (Home), Government of Manipur and others].

[9] Heard Mr. Shyam Sharma, the learned Government Advocate appearing for the respondents and he denied the submissions made by the learned senior counsel for the petitioner.

[10] This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record.

[11] The grievance of the petitioner is that though he was acquitted from the charges levelled against him by the Learned Chief Judicial Magistrate, Imphal West and the said order of the Learned Chief Judicial Magistrate has been duly communicated to the second respondent for revocation of the suspension order dated 25.9.2012, till date the respondent authorities have not revoked the suspension order. The specific case of the petitioner is that it is the bounden duty of the respondents to review such suspension order within a period of 90 days, however, in the case on hand, such suspension order has not been reviewed by the respondents. Thus, the impugned suspension order being prolonging in nature and is therefore liable to be set aside.

[12] It appears that the petitioner was suspended from service by the impugned order dated 25.9.2012 passed by the second respondent on the ground that an investigation against him in FIR No.138(8)2012 under Sections 468, 471, 420 IPC of City Police Station, Imphal was contemplated. It also appears that the Criminal Petition Case No.157 of 2017 in connection with FIR No.138(8)2012 of City PS and FIR No.275(9)2012 of LPS were taken up by the Learned Chief Judicial Magistrate, Imphal West and in the said case, the petitioner herein was arrayed as an accused No.2.

[13] As could be seen from the records produced before this Court, during investigation, on interrogation, the petitioner as accused No.2 stated that the crime was committed by one Md. Abdul Matlip Shah, accused No.1 with the assistance of his brother Md. Abdul Rahim (accused No.4) and also Md. Azad Ali (accused No.3). The petitioner, during interrogation further stated that he passed the provisional gratuity bill amounting to Rs.5,39,174/- in the name of one Keisam Biren Singh as directed by accused No.1 being known to him that the said bill will be easily passed without delay as the staff of Treasury Officer are all acquainted of him.

[14] The charge against the petitioner and the other accused before the criminal court is that the bill was brought to the Treasury Officer, Imphal West by the petitioner, who was working in the office of the Superintending Engineer, Electrical Circle, PWD, Manipur which was given to him by accused No.1 Md. Abdul Matlip and accused Nos.5 to 8, who are staff of the Treasury Office, Imphal West passed the bill without proper verification, as the petitioner is the regular person bringing bills for the said office and suspecting the same to be genuine and after due checking.

[15] Upon perusal of the materials produced before the Learned Chief Judicial Magistrate, Imphal West and upon hearing the respective counsel, the Learned Chief Judicial Magistrate was of the view that Bank Account No.32178814593 was opened by accused No.1 with his own photograph in the name of Keisam Biren Singh and it is accused No.1 who prepared and made all the bills and related documents regarding the provisional gratuity bill for the said Keisam Biren Singh which was handed over by him to accused No.2 for taking it and having it passed by the office of the Treasury, Imphal West, who passed it after checking. Thus, based on the materials exist, it was accused No.1 had made the forged bills and documents and Bank Account and fraudulently withdrawn the said amount of Rs.5,39,174/- from the account of the State and transferred to Account No.31178814953 of Keitham Biren Singh at SBI, Manipur University Branch. It is also the finding of the Learned Chief Judicial Magistrate that there exist no materials to suggest accused No.2 (petitioner herein) that he has conspired with accused No.1 to prepare the forged bills and documents or is involved in its preparation. Arriving at such findings, the Learned Chief Judicial Magistrate, finally, in his order dated 20.8.2019, held as under:

“10. In the light of the above discussions, I am of the considered opinion that there exist no sufficient material to make out the necessary ingredients for the offence u/s 120-B/420/468/471 IPC against the accused Nos.2 to 4, and u/S 471/34 IPC against the accused Nos.5 to 8. However, the prosecution materials are sufficient to satisfy the ingredients of the offence u/s 420/468/471 IPC against the accused No.1 9Md.Abdul Matlip Shah).

Hence, it is ordered the framing of charges u/S 420/468/471 IPC against accused No.1 (Md.Abdul Matlip Shah). The accused Nos.2 to 8 namely, Md.Nasib Ali, Md.Azad Ali, Md.Abdul Rahim @ Abdul, Laishram (N) Ahongsangbam (O) Jamuna Devi, R.K.Ushakiran Devi, Waikhom Pramo Devi and Lohru Nemo Joseh respectively are discharged from all liabilities of the case for offence u/S 120-B/420/468/471/34 IPC, which are charged against them. All bonds executed by them in the case are discharged and cancelled.”

[16] Admittedly, as against the order of the Learned Chief Judicial Magistrate dated 20.8.2019 discharging the accused except accused No.1, no appeal and/or revision was preferred by the State.

[17] After discharge from the charge, the petitioner submitted a representation dated 3.9.2019 to the second respondent by enclosing the order of the Learned Chief Judicial Magistrate, Imphal West praying to revoke the suspension order bearing Office Order No.158, dated 25.9.2012 and allowed him to resume his service along with his entitled and consequential benefits of service. Since the second respondent has not acted on the representation of the petitioner dated 3.9.2019, the petitioner again on 20.5.2020 submitted another representation to the second respondent praying to revoke the suspension order and allowed to resume and join the service without any further delay. It is submitted by the learned counsel for the petitioner that the said representation dated 20.5.2020 was also forwarded to the first respondent.

[18] Pursuant to the representation dated 22.2.2020, on 15.6.2020, the Under Secretary (Works), Government of Manipur addressed a letter to the second respondent to do the needful so as to avoid future legal complicacies.

Since the second respondent has not considered the revocation of suspension, on 10.2.2021, the petitioner submitted a representation to the Additional Chief Secretary (Works), Government of Manipur requesting the said authority to look into the matter to redress his sufferings. Since the Additional Chief Secretary (Works) has also not acted on the representation of the petitioner, the petitioner has filed the present writ petition.

[19] The learned counsel for the petitioner submitted that as per the decision of the Hon’ble Supreme Court in the case of Union of India and others v. Deepak Mali, reported in (2010) 2 SCC 222 and in the case of Md. Yahiya Khan v. The State of Manipur and others, W.P.(C) No.838 of 2016, decided on 27.1.2020, the suspension order dated 25.9.2012 is liable to be quashed.

[20] In Deepak Mali (supra), the Hon’ble Supreme Court held that having regard to the amended provisions of sub-rule (6) and (7) of Rule 10, the review for modification or revocation of the order of suspension was required to be done before the expiry of 90 days from the date of order of suspension and as categorically provided under sub-rule (7), the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days.

[21] Thus, it is clear that the review for modification or revocation of the order of suspension is required to be done before the expiry of 90 days from the date of suspension and sub-rule (7) of Rule 10 of CCS (CCA) Rules, 1965 clearly provided that the order of suspension made or deemed would not be valid after a period of 90 days unless it was extended after review for a further period of 90 days. Admittedly, it is not the case of the respondents that the suspension of the petitioner was extended after review. Thus, there is merit in the submission of the learned senior counsel for the petitioner that the suspension order has not been reviewed by the respondent authorities and as such the suspension order dated 25.9.2012 being prolonging in nature and is liable to be quashed.

[22] In Md. Yahiya Khan (supra), this Court held that sub-rule (7) prescribes that order of suspension made under sub-rule (1) of Rule 10 shall not be valid after a period of 90 days unless extended after a review for a further period before expiry of 90 days from the effective date of suspension and applying the decision of the Hon’ble Supreme Court in the case of Deepak Mali (supra), this Court set aside the suspension order dated 23.5.2015 impugned therein.

[23] This Court finds that the decision in the case of Deepak Mali (supra) and the decision of this Court in the case of Md. Yahiya Khan (supra) are squarely applicable to the case on hand. It is reiterated that the suspension order dated 25.9.2012 is required to be reviewed within a period of 90 days on the principle laid down by the Hon’ble Supreme Court.

[24] As could be seen from the materials produced before this Court, despite the petitioner bringing to the knowledge of the respondent authorities that he was discharged from the criminal charge levelled against him through several representations and lastly on 10.2.2021, the respondent authorities failed to consider the case of the petitioner. In fact, in the representation dated 3.9.2020, by enclosing the discharge order of the Learned Chief Judicial Magistrate, the petitioner prayed for revocation of the suspension order and allowed him to resume his service. As rightly argued by the learned senior counsel for the petitioner, the representations of the petitioner have not been considered and disposed of by the respondent authorities till date for the best reason known to them.

[25] The learned senior counsel at this juncture submitted that the petitioner is also on the verge of retirement age within a period of three years and all his fellow and senior employees were got promotion during the suspension period of the petitioner. Though this Court finds some force in the said submission, the same cannot be dealt with in this petition.

[26] As stated supra, review for modification or revocation of the order of suspension is requir

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ed to be done before the expiry of 90 days from the date of suspension and in the instant case, nothing has been produced by the respondent authorities to show that the suspension order has been reviewed before expiry of 90 days or after review, it was extended for a further period of 90 days. Therefore, this Court is of the view that keeping the impugned suspension order dated 25.9.2012 pending alive is against the relevant provisions of law and therefore, the same is liable to be quashed. [27] Since the petitioner has made out a case for revocation of the suspension order and no proper and satisfactory explanation forthcoming from the side of the respondent authorities that the petitioner is not entitled to seek revocation of the impugned suspension order and applying the ratio of the Hon’ble Supreme Court in the case of Deepak Mali (supra), this Court is of the view that the impugned suspension order dated 25.9.2012 is liable to be quashed and also the respondent are to be directed to allow the petitioner to resume his service. [28] In the result, a) the writ petition is allowed; b) the impugned order of suspension dated 25.9.2012 passed by the second respondent is set aside; c) consequently, the respondent authorities are directed to allow the petitioner to resume his service along with his entitled and consequential benefits of service, if any payable, as expeditiously as possible; & d) preferably within a period of four weeks from the date of receipt of a copy of this order. No costs. [29] Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.
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