Vijay Kumar Jain vs The State of M.P. and Others

Sujoy Paul, J.—Since these matters were linked on the request of arties and parties prayed for analogous hearing, matters were analogously heard and decided by this common order.

W.P. No. 2788/2006

The petitioner''s parent department is Public Health and Family Welfare Department. The petitioner was transferred to J.A. Hospital, Gwalior by order dated 11.10.2009. Admittedly, at that point of time, the said hospital was a Government hospital. However, later on the said hospital became autonomous hospital. By-laws of autonomous body were framed which are placed on record as Annexure P/3. The petitioner submitted his option for absorption in the autonomous hospital / society. The respondents without taking a decision on the said option, relieved / transferred the petitioner by order dated 19.02.2003. The petitioner assailed this order in WP No. 583/2003 which was decided on 28.01.2005 (Annexure P/9). This Court set aside the impugned order and directed respondents to take a decision on the option submitted by the petition. No view on merits was expressed by this Court. In turn, respondents by order dated 31st December, 2005 (Annexure P/1) rejected the prayer of absorption on the ground that only the employees of Medical Education Department are entitled to be absorbed. The petitioner being an employee of Public Health and Family Welfare Department, is not entitled for absorption in J.A. Hospital. The respondents stand in the return is inconfirmity with stand taken in Annexure P/1.

Shri Kamal Jain, G.A. for State relied on the conditions mentioned in By-laws (Annexure P/3) and the rules prepared for autonomous colleges (Annexure R/1).

WP No. 200 / 2015

In this petition, the petitioner has challenged the order dated 17.12.2014 (Annexure P/1) whereby in consonance with order dated 12.12.2015 passed by Medical Education Department Mantralaya the petitioner is repatriated to his parent Department. In this matter, Shri M.P.S. Raghuvanshi urged that respondents on their own sent a letter to petitioner on 22.04.2010 (Annexure P/6). The petitioner''s option for absorption was again called for. In turn, petitioner submitted his option on 03.04.2010 (Annexure P/7). Respondents have not taken any decision on this representation / option and repatriated the petitioner which is bad in law.

The stand of Shri Kamal Jain, learned Govt. Advocate is same. He submits that once as a policy it is decided that petitioner is not covered / entitled for absorption as per governing provision, even if the letter Annexure P/6 is erroneously written to him that will not give him any fresh right.

The pivotal question in WP No. 2788/2006 and WP No. 200/2015 is that whether petitioner, an employee of Public Health and Welfare Department, is entitled to get benefit of absorption in J.A. Hospital, an autonomous body? Since no other point is pressed in these petitions, I deem it apposite to deal with this aspect after reproducing the relevant provisions which deals with this aspect. In By-laws (Annexure-P/3) made by Medical Education Department clause 12 (4) is inserted which reads as under:--

"12(4). Existing staff of the institutions will be given a choice to opt for the service of a society instead of the state Government. These who opt for society services shall remain employee of the society and will be entitled for all the benefits including promotion etc. on post available with the society. The employees who does not opt for the society (where they are posted) shall remain state Government employees and will be transferred to a pool from which they will be posted in different Government and Autonomous Institutions."

Similarly, the Rules namely contained following provisions:--

A plain reading of aforesaid provision makes it clear that option for absorption is available to the employees of Medical Education Department. Shri Raghuvanshi has not shown any other provision pursuant to which it can be held that petitioner was entitled for absorption.

In Dr. S.M.P. Sharma and Another Vs. State of M.P. and Another, a Division Bench of this Court opined that parent department always have a right to recall the services of its employees send on deputation. Mere proposal for absorption, even if it is true, cannot come in the way of recalling the services of an employee at any time before absorption. This Court followed the judgment of Supreme Court passed in Kunal Nanda Vs. Union of India and Another, in this respect. Another Division Bench judgment in Dr. Madhubala Sharma and Others Vs. Union of India and Others, opined as under:--

"12. In the present case no statutory Rules, Regulation and Order is being pointed out giving any right to the petitioner for being absorbed. Mere correspondence without there being any order for absorption cannot come in the way of the State Government which is the leading department for recalling the service of the petitioner from the borrowing department. We find no malafides or arbitrariness in issuance of the order by the State Government for recalling of the petitioner''s service. On the other hand, we find that there exists a justified reason for issuing order of repatriation which as is clear from the order is shortage of staff in State Government services. 13. In this view of the matter and the clear legal position in our considered view the learned Single Judge has committed no error in upholding the decision of the State Government to repatriate the services of the petitioner and denying the petitioner the relief of declaring her to be absorbed in the borrowing department. No case for interference in this intra Court appeal is made out."

(Emphasis supplied)

In the present case also no governing provision is pointed giving right to the petitioner for being absorbed. Thus, I find no illegalities in the orders impugned in the present petitions. Petitions are accordingly dismissed.

WP. No. 6187/2014

The Petitioner was placed under suspension on 27.02.2013 by Commissioner, Revenue Division, Gwalior. One of the ground of challenge was that the petitioner is an employee of autonomous body. Since the petitions aforesaid claiming benefit of absorption are dismissed, I am unable to hold that Commissioner, Revenue Division, Gwalior is not competent to place him under suspension. There exists a notification under the M.P. Civil Services (CCA) Rules, 1966 where in Commissioner Revenue Division is given power to initiate minor penalty proceedings and place Class-I and Class-II employees under suspension. Hence, no interference can be made on the ground of competence. The petitioner is suspended on that ground that one patient asked certain information about some Doctor and petitioner misbehaved and used unparliamentary language with him. On this ground, he is under suspension since February, 2013. His appeal is also dismissed on 05 September, 2014. Shri Raghuvanshi submits that petitioner was called only once in the departmental enquiry. Enquiry Officer recorded his statement wherein he denied the allegations. Thereafter no enquiry has been conducted and petitioner is still under suspension for no valid reason. Petitioner''s counsel relied on a judgment reported in Ajay Kumar Choudhary Vs. Union of India (UOI) and Others .

Shri Kamal Jain, learned Govt. Advocate submits that appellate order is also in consonance with law. Mrs. Nidhi Patnkar, learned counsel for the Hospital also supported the orders.

No other point is pressed by learned counsel for the parties.

I have heard the parties at length.

The Apex Court in Ajay Kumar (supra) opined as under:--

"Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. It is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his Department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence.

We, therefore, direct that the currency of a Suspension order should not extend beyond three months if within this period the Memorandum of Charges/Charge-sheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Charge-sheet is served a reasoned order must be passed for the 4 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."

It is seen that allegations against the petitioner are not connected with any moral turpitude nor it involve any allegation of misappropriation, embezzlement or corruption. The Apex Court in Ajay Kumar opined that long and continuous suspension is not in consonance with the principles flowing from Article 21 of the Constitution. Respondents are not able to show that suspension is still required in the facts and circumstances of the present case.

Resultantly, I deem it proper to set aside the order dated 05 September, 2014 and direct the appellate authority to reconsider the appeal of the petitioner by taking into account the judgment of Ajay Kumar (supra) and pass a fresh order. Learned appellate authority shall also take into account the progress of the enquiry. It will be open for him to consider whether petitioner is cooperating with the enquiry or not. Appellate authority shall pass a fresh order, without getting influenced by earlier order dated 05 September, 2014, within three weeks from the date of communication of this order.

WP No. 6187/2014 is disposed of with aforesaid observations.

The Registry is directed to keep a true copy of this order in all the connected petitions.