| SooperKanoon Citation | sooperkanoon.com/438990 |
| Subject | Service;Constitution |
| Court | Andhra Pradesh High Court |
| Decided On | Jul-24-2001 |
| Case Number | WP No. 23394 of 2000 |
| Judge | S.B. Sinha, C.J. and ;V.V.S. Rao, J. |
| Reported in | 2001(5)ALD290 |
| Acts | Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rules 10(1) and 27; Indian Penal Code (IPC), 1860 - Sections 494 and 498-A; Constitution of India - Articles 226 and 309 |
| Appellant | P. Rajender |
| Respondent | Union of India and Another |
| Appellant Advocate | Mr. Pratap Narayan Sanghi, Adv. |
| Respondent Advocate | Mr. L. Narasimha Reddy, ;SC for Central Government |
| Disposition | Writ petition allowed |
S.B. Sinha, C.J.
1. The validity of order of suspension passed as far back on 15-5-1999 against the petitioner, a Junior Checker in Security Printing Press, Hyderabad is in question in this writ petition.
2. In short, the facts of the matter are as under:
The petitioner was married to one Smt. Radha Rajender on 21-6-1987 and differences arose between them leading to Radha Rajender leaving the matrimonial home on 21-4-1997. She lodged a complaint against the petitioner on 24-9-1998 for alleged commission of offences punishable under Sections 494 and 498A IPC and a charge-sheet in respect thereof was filed on 24-11-1998 in Criminal Case No.1583 of 1998 on the file of the Court of Additional Judicial First Class Magistrate, East and North at Kothapet, Rangareddy District.
3. The 2nd respondent by reason of the proceedings dated 15-5-1999 placed the petitioner under suspension. The petitioner made a representation on 20-5-1999 to the 2nd respondent narrating the complete facts of the case. As there was no response to the same, he approached the Central Administrative Tribunal, Hyderabad Bench in OA No.843 of 1999 which was disposed of on 4-6-1999 directing him to prefer an appeal. Pursuant to the said directions, he filed an appeal on 11-6-1999, which was disposed of by the 1st respondent - appellate authority on 30-7-1999 by remanding thematter to the 2nd respondent to reconsider the order of suspension. Petitioner also filed OA No. 1646 of 1999 before the Tribunal which was again disposed of on 4-11-1999 directing the 2nd respondent to consider revoking of the order of suspension. Petitioner also made representation to the 2nd respondent on 13-11-1999. By order dated 23-11-1999 the 2nd respondent refused to interfere with the order of suspension. The petitioner made further representation on 29-11-1999 and the 2nd respondent by order dated 4-12-1999 directed that the order of suspension shall remain in operation till the disposal of the criminal case which was challenged before the Tribunal in OA No.1946 of 1999 which was disposed of on 9-6-2000 directing the appellate authority to consider whether suspension of the applicant from service was justified and warranted in the circumstances available in the case within a period of fifteen days from the date of receipt of a copy of the said order. The 2nd respondent once again by proceedings dated 15-7-2000 declined to review the suspension. Aggrieved by the same, the petitioner filed OA No. 1030 of 2000 before the Tribunal and the Tribunal by the impugned order dated 13-11-2000 declined to interfere with the matter.
4. Mr. P.N. Sanghi, the learned Counsel appearing on behalf of the petitioner, inter alia, submitted that from the fact that the order of suspension was reiterated in the order dated 4-12-1999 without any fresh grounds despite several orders passed by the Tribunal would clearly go to show that the impugned order suffers from non-application of mind. The learned Counsel would contend that by reason of such order of suspension, no public purpose is served and as such the order is against public interest. In a situation of this nature, the learned Counsel would contend, the authorities should have assigned sufficient and cogent reasons in support of the order but as the impugned order is a non-speakingone, the same cannot be sustained. It was further submitted that, in any event, the impugned order must be held to be arbitrary as for no reason the petitioner has been directed to remain under suspension. In support of the aforementioned contentions, reliance has been placed on the decisions of the Apex Court in O.P. Gupta v. Union of India, : (1988)ILLJ453SC and State of Orissa v. Bimal Kumar Mohanty, : (1995)ILLJ568SC and a decision of the learned single Judge of this Court in P. Lingamurthy v. Government of Andhra Pradesh, : 1998(6)ALD784 .
5. Mr. Narasimhareddy, learned Counsel appearing for the respondents, on the other, would submit that Rule 10(1)(b) of Central Civil Services (Classification, Control and Appeal) Rules clearly postulates the jurisdiction of the authority in placing the petitioner under suspension. The learned Counsel would contend that the power under the aforesaid rule is of wide amplitude and irrespective of the stage of the proceedings in a criminal case; a delinquent employee can be placed under suspension. Our attention in this connection has been drawn to a decision of the Apex Court in D.D. Suri v. A.K. Arren, 1976 (1) SLR 529.
6. It is not in dispute that the conditions of service of the petitioner are governed by a statute. An employee while holding an office or post under the Government acquires a status and thus his services are no longer determined by any contract or by consent of the parties. Rule 10(1)(b) of the CCS Rules reads as under:
Suspension: (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is ending; or
(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(c) where a case against him in respectof any criminal offence is under investigation, inquiry or trial;
XX XX XX XX
7. By reason of an order of suspension, an employee is temporarily debarred from his employment for the time being from performing his official functions or enjoying of certain privileges (See P.R. Nayak v. Union of India, : (1972)ILLJ535SC ).
8. Suspension pending investigation, inquiry or trial is interim in nature. The aforementioned rule clearly suggests that an order of suspension is not required to be passed only because it will be lawful to do so. An application of mind on the part of the competent authority is sine qua non for passing such order of suspension. Before passing of an order of suspension, therefore, it is expected that the appropriate authority shall not only take into consideration the public interest but shall also take into consideration the relevant facts and attendant circumstances as to how far and to what extent the public interest may suffer if the delinquent officer is not placed under suspension.
9. An order of suspension, in such cases, may have to be considered upon taking into consideration the relevant facts. The authority empowered to place an employee under suspension, must, therefore, pose to itself a correct question and answer it having regard to the material on record. InDr. Shyamanand Singh v. State of Bihar, 1978 PLJR 588. Sanvar Ali, J., speaking for the Bench stated the law thus:
Learned Counsel for the State contended that the order of suspension is passed on subjective satisfaction of the State Government. Such an order was not justiciable. We do not think that this argument can be accepted, contrary as it is to the decision of the Supreme Court. (See Barium Chemicals Ltd. and another v. Company Law Board and others, : [1967]1SCR898 ). Had there been factual foundation on the basis of which reasonable conclusion could be arrived at that the petitioners were guilty of actual misappropriation it would have been a different matter. Here it appears that the authority passing the impugned order did not ask itself the right question and take reasonable step to acquaint itself with the relevant information to enable it to answer it correctly. This amounts to misdirection in law. See Secretary of State v. Tameside, 1976 (3) All. ER 665, per Lord Diplock.
10. Furthermore, Rule 10(1)(b) contemplates application of mind at different stages. The impugned order of suspension was passed seven months after the charge-sheet was filed. Despite the fact that the charge-sheet was filed, the said order of suspension stated:
Whereas a case against Sri P. Rajender T.No. 455, Junior Checker in respect of a criminal offence is under investigation /enquiry/trial, under Section 494 and 498-A Indian Penal Code, as per intimation received from the A.P. Police Department.
Now, therefore, the undersigned in exercise of the powers conferred by sub-rule (1)(b) of Rule 10 of the CCS (CC&A;) Rules, 1965, hereby place the said Sri P. Rajender, T.No.455, JuniorChecker under suspension with immediateeffect i.e., 15-5-1999 afternoon.
It is further ordered that during the period that this order shall remain in force the headquarters of Sri P. Rajender, T.No.455, Junior Checker should be Hyderabad and the said Sri P. Rajender shall not leave the headquarters without obtaining the previous permission of the undersigned.
11. As noticed hereinbefore, the alleged complaint was lodged against the petitioner on 24-9-1998 and by the time the order of suspension was passed, the charge-sheet had already been filed. The said order, therefore, suffer from a total non-application of mind inasmuch as the said order was made without indicating as to what is the stage of investigation or inquiry or trial of the case. The mechanical reproduction of the statute in the order clearly goes to show that there was non-application of mind on the part of the authority in passing the order of suspension.
12. The question as to when the petitioner had undertaken the second marriage and whether it had any impact on the petitioner's continuing to work in public service despite the fact that investigation had ready been completed and charge-sheet had also been filed in a case filed by the petitioner's wife, were relevant factors to be taken into consideration at the time of passing the order.
13. In Appropriate Authority v. R.C. Chawla, : [2001]249ITR450(SC) , the Apex Court dealing with a case under Section 269-UD of the Income Tax Act observed:
Even assuming, for the sake of argument, that the valuation assigned by the Appropriate Authority to the property in question is correct, one important factor has been ignored by the Appropriate Authority, namely, that the property wasunder litigation and proceedings were still pending in the Court of law at the time when the sale was sought to be made and the Additional District Judge in fact had issued an injunction on 27-5-1994 restraining the same (sic sale), transfer or parting with the possession of the property. The department brushed aside this important factor as regards pending litigation, which had been initiated by the step-brother of the transferor in which the title of the transferor had been challenged. In those circumstances, the High Court felt that the pending litigation altogether cannot be ignored while determining the fair market value on the ground that the transferor had agreed to indemnify the transferee or that in the long run the litigation will fair. Whatever may be the other argument that had been addressed by the parties concerned, it is clear that the pending litigation assumed sufficient importance in the matter.
14. Non-application of mind with regard to such relevant factors, as noticed hereinabove, may vitiate an order of suspension as has been held by the Patna High Court in Dr. Shyamanand Singh's case (supra).
15. In O.P. Gupta's case (supra), it was held :
We have set out the facts insufficient detail to show that there is no presumption that the Government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting him to harassment. The charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not ina position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service inspite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand v. Union of India, : (1959)ILLJ167SC , is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol. 11 at P. 2171 is 'to remain alive as on food; to continue to exist'. 'Subsistence' means - means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the Government servant. In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, : (1983)ILLJ1SC the Court held that the expression 'life' does not merely connote animal existence or a continued drudgery through life. The expression 'life' has a much wider meaning suspension in acase like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fairplay in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.
16. In State of Orissa v. Bimal Kumar Mohanty (supra), the Apex Court held:
It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct of defalcation of funds or serious acts of omission and commission the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automaticorder to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation would be another thing if the action is by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result. The authority also in mind a public interest of the impact of the deliquent's continuance in office while facing departmental enquiry or trial of a criminal charge.
17. In P. Lingamurthy v. Government of Andhra Pradesh (supra), a learned single Judge of this Court held:
The power of the management of SETWIN to place the petitioner under suspension in contemplation of and/or pending departmental enquiry is notcontested before the Court. The power of suspension or to extend the period of suspension has to be exercised with circumspection, care and after application of mind. The employer must make a fair and proper assessment of the matter in the given circumstances and carefully scrutinise that prima facie there exists grave and compelling circumstances which in the light of the material available and collected during the preliminary or investigation would lead to the likelihood of the removal or dismissal of the employee from service. Although suspension of an employee in contemplation of or pending enquiry as such does not violate any of his legal right, it should not be forgotten that the suspended employee is subjected to social ridicule, condemnation and humiliation; he is looked down by colleagues, friends, kith and kin and he lives a life of tarnished image, infamy and agony. A proper judgment exercised would prevent unnecessary harassment and humiliation of suspension. Suspension should not be resorted to as a matter of course unless the allegations against the employee are serious. The employer, before resorting to suspension, shall consider whether the continuation of the delinquent would be detrimental to public interest or would hamper the enquiry or whether the delinquent, if continued in the post is likely to tamper with official records relating to the allegation or charge or influencing the witnesses. If there are no such facts, suspension of delinquent will not be justified. The Calcutta High Court, in the case of U.S. Singh v. Coal India Limited, 1994 (2) SLR Cal. 77, held that an order of suspension shall not be made in an arbitrary manner and any order of suspensions, if casually made, will cause harm and suffering to the concerned employee. If after suspension enquiry is unduly delayed or prolonged, then, it will be an indication to show that thesuspension is not bona fide. An employee who is placed under suspension in contemplation of enquiry or pending enquiry is entitled to ask on suspension that the matter should be investigated within the reasonable period time, and if such a principle of natural justice is not recognised, then, it would imply that the employer is vested with a totally arbitrary and unfettered power of placing its employees under disability and distress for an indefinite duration. The suspension order is bad if it is not followed by the charge-sheet within reasonable time. It is unjust on the part of the employer to pass an order of suspension and then not to take any further action for years.
18. The decision of the Apex Court in D.D. Suri's case upon which Sri Narasimha Reddy, has placed reliance, in our view, is not opposite. In that case, Untwalia, J., speaking for a three Judge Bench, categorically held that the expression 'investigation', 'inquiry' or 'trial' are well known in the realm of the criminal law under the Code of Criminal Procedure which clearly goes to show that the stage at which the case is pending may also assume importance. By reason of Rule 10(i)(b), the authorities have been empowered to pass an order of suspension even at a later stage. Similarly, they can also revoke an order of suspension having regarding to the materials, which might be collected during investigation despite the fact that a charge-sheet has been filed. All the stages in criminal cases do not stand on the same footing although an argument to the contrary has been advanced by Mr. Narasimha Reddy despite the decision of the Apex Court in D.D. Suri's case.
19. It is, therefore, incumbent on the part of the appropriate authority to apply its mind as regards the stage of the matter in which the criminal case is pending. InD.D. Suri's case, the Apex Court was considering a case where the delinquent officer was charged with acts of corruption and misuse of his official position.
20. There is lot of difference between a case where the Government servant is charged with allegations of corruption and misuse of official position and where an employee is charged of offences in relation to a private dispute.
21. The decision of the Apex Court inPunjab National Bank v. D.M. Amarnath, 2000 SCC (L&S;) 420, relied upon by Mr. Narasimha Reddy has also no application in the instant case inasmuch therein although no reason was disclosed for passing an order of suspension, the same was available in the note file.
22. The contention of Mr. Narasimha Reddy that even the subsequent orders passed by the authorities would clearly go to show that there had been an application of mind cannot be accepted. Even in the order dated 30-7-1999 which was passed by the appellate authority pursuant to the observations made by the Tribunal in OA No.843 of 1999 dated 4-6-1999, no reason has been assigned nor any discussion has been made as regards the points raised by the petitioner. The order reads thus:
In exercise of the powers vested under Rule 27 of the CCS (CCA) Rules, 1965, the undersigned, as Appellate Authority having considered the appeal of Shri P. Rajender and other circumstances of the case, has come to the conclusion that the decision of the Disciplinary Authority is correct and therefore there is no need to interfere with the decision of the Disciplinary Authority.
The GM, SPP, is however, to considerthe matter again since more than three months have elapsed and decide whether the continued suspension is necessary.
23. Strangely enough, despite the observations made therein that the General Manager, Security Printing Press may consider the matter after three months, it has yielded no result. On 23-11-1999, the Administrative Officer of the Printing Press issued a memo, which reads thus:
With reference to his representation dated 13-11-1999 Sri P. Rajender, T.No.455, Junior Checker is hereby directed to submit a copy of the Court judgment to ensure whether the Criminal Case No.258 of 1999 initiated against him by the Women Police Station, Saroor Nagar, RR district, Hyderabad has been finally disposed, as he had stated in his above representation that 'the investigation in the criminal case is completed and there is no reason to continue him under suspension''. Such copy of the Court judgment should reach this office before 29-11-1999, failing which it will be treated that the criminal case against him is still pending in the concerned Court for disposal and action will be taken accordingly as per the rules.
24. The said order again demonstrates the total non-application of mind on the part of the authority concerned.
25. Completion of investigation does not mean end of the criminal case. What all the petitioner intended in his representation was that as the investigation was complete, there is no chance of his tampering with the evidence and, therefore, the order of suspension may be reviewed. The authorities have not considered the matter in that perspective.
26. The order dated 4-12-1999, which was the subject-matter of challenge before the Tribunal, is in the following terms:
Sri. P. Rajender, T.No. 455, Junior Checker is hereby informed that as perthe orders dated 4-11-1999 of the Hon'ble Administrative Tribunal, Hyderabad in OA No. 1646 of 1999 the case relating to his suspension has been reviewed and based on the information received from the Women Police Station, Saroornagar, Hyderabad as well as the reply letter dated 29-11-1999 submitted by the Govt. servant is observed that the criminal proceedings in Criminal Case No.1583 of 1988, under Section 494 and 498-A, are still pending trial in the Hon'ble Court of Additional Judicial First Class Magistrate, East and North at Kothapet, Ranga Reddy district, and accordingly the suspension of Sri P. Rajender, as ordered vide this Department Order No.SPP/A1/PF/99/BQO, dated 15-5-1999 remains in operation till the receipt of final judgment of the above Hon'ble Court.
27. Again, neither the observations made by the Tribunal nor the observations made by the appellate authority had been taken into consideration. The factor that a person should not be kept under suspension for a long time has also been ignored.
28. Yet again in the order dated 15-7-2000, the General Manager stated:
As per the directions of the Hon'ble Central Administrative Tribunal, Hyderabad dated 9-6-2000 in OA No. 1946 of 1999 filed by Sri P. Rajender, T.No. 455, Junior Checker (under suspension) is hereby informed as under:
I. The issue regarding suspension of Sri P. Rajender, T.No. 455, Jr. Checker with effect from 15-5-1999 as ordered vide Order No. SPP/A1/PF/455/99/800 dated 15-5-1999 was held to be in order and found justified by the Appellate Authority i.e., Joint Secretary, Govt. of India, Ministry of Finance vide Memorandum No. 3/9/99-Cy.I (SPP) dated 30-7-1999 as also conveyed to Sri P. Rajender, T.No. 455, vide SPP Memo No. SPP/ A1/455/99/2328, dated 3-8-1999.
2. As regards the need to continue the suspension it is intimated the suspension will continue till the receipt of final judgment of the Hon'ble Court of Addl. J.F.C.M., East and North at Kothapet, RR district in the Criminal Case No. 1583/1998 as also informed vide this Office Memo No. SPP/A1/ PF/455/99/4685, dated 4-12-1999 issued to Sri P. Rajender, T.No. 455.
29. Neither the need to continue the said order has been mentioned nor any reason has been recorded therein. A statutory authority must exercise its statutory function reasonably and bona fide and having regard to the powers delegated to him under the rules.
30. It is appropriate at this stage to quota what the Apex Court has observed in K.I. Shephard v. Union of India, : (1988)ILLJ162SC .
It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.
31. This aspect of the matter has also been considered recently by this Court in WP No.17358 of 1999 dated 28-3-2001 (Kattika Koteswahara Rao v. State of A. P.)
32. Having regard to the facts and circumstances of this case and keeping in view the attitude of the respondents, we are of the opinion that the petitioner need not be kept under suspension any further. Although this Court, while exercising the jurisdiction under Article 226 of the Constitution of India, may not ordinarily interfere in such matters, but, having regard to the peculiar facts and circumstances ofthis case and keeping in view the conclusions arrived at, we are of the opinion that it is a fit case where this Court should interfere in the matter.
33. Accordingly, the writ petition is allowed and the impugned orderof the Tribunal as well as the order dated 15-7-2000 of the 2nd respondent are set aside. The petitioner shall be reinstated into service forthwith pending disposal of the criminal case. There shall be no order as to costs.