IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 28162/2019 (S-RES) BETWEEN:
DR. LOKESH M.N S/O NAGARAJ.M AGED ABOUT 47 YEARS, WORKING AS HEALTH OFFICER, BBMP, IN-CHARGE CHIEF HEALTH OFFICER (PUBLIC HEALTH), R/AT NO.7, 19TH MAIN, IV SECTOR, HSR LAYOUT, BANALORE-560 102.
... PETITIONER (BY SRI. V LAKSHMINARAYANA, SENIOR COUNSEL FOR MS. CHAITHANYA S, ADVOCATE) AND:
1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BANGALORE-560 001, REP BY ITS PRINCIPAL SECRETARY.
2. BRUHATH BENGALURU MAHANAGARA PALIKE REP BY ITS COMMISSIONER, BENGALURU-560 002.
3. DEPUTY COMMISSIONER (ADMINISTRATION), HEAD OFFICE, NR SQUARE, BRUHAT BENGALURU MAHANAGARA PALIKE, BENGALURU-560 002.
... RESPONDENTS (BY SRI. M V RAMESH JOIS, AGA FOR R1;
SRI. D NANJUNDA REDDY, SENIOR COUNSEL FOR SRI. B S GAUTHAM, ADVOCATE FOR R2 &3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE SUSPENSION ORDER DTED 26.06.2019 AS PER ANNEXURE-M AS IT IS ARBITRARY, ILLEGAL, UNCONSTITUTIONAL, VIOLATIVE OF ARTICLES 14 AND 16 OF THE CONSTITUTION OF INDIA, AND IS NON-EST AND WITHOUT JURISDICTION, LIABLE TO BE QUASHED; AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Shorn off the lengthy pleadings and the prayer in this writ petition, essentially the grievance of the petitioner is against the continued suspension that is perpetuated indefinitely. After service of notice, the first respondent has entered appearance through Mr. Jois, learned Addl. Govt. Advocate; and respondents 2 & 3 have entered appearance through their Panel Counsel Sri V.S.Gautham, on whose behalf the learned Sr. Advocate Mr.Nanjunda Reddy appears and resists the writ petition.
2. Having heard the learned Sr. Advocate Mr.V.Lakshminarayana for the petitioner and the learned Sr.Advocate Mr.Nanjunda Reddy for respondents 2 & 3, this Court is of considered opinion that the grievance of the petitioner needs to be granted redressal in view of Apex Court decision in the case of AJAY KUMAR CHOUDHARY vs. UNION OF INDIA, (2015) 7 SCC 291 wherein paragraphs 20 and 21 read as under:
“20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.
21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us”.
In the above circumstances, this writ petition succeeds; a Writ of Mandamus issues to respondents 2 & 3 to rescind the suspension of the petitioner forthwith and to permit him to report for duty immediately.
It is needless to mention that this order shall not come in the way of contemplated disciplinary proceedings against the petitioner.
No costs.
Sd/- JUDGE Snb/