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1991 DIGILAW 178 (GAU)

Pannalal Ganguli v. State of Tripura

1991-10-10

M.SHARMA, R.K.MANISANA SINGH

body1991
R. K. Manisana, J.— In this application under Article 226 of the Consti­tution of India, the petitioner has challenged the order of 14.3.91 of the Government of Tripura placing the petitioner under suspension. The impugned order of suspension runs follows : "Whereas a disciplinary proceeding against Slid P. L. Ganguly, Superintending Engineer, PHE Circle, Government of Tripura, Agartala is contemplated. Now, therefore, the Governor, in exercise of powers conferred by sub-rule (1) of Rules 10 of the Central Civil Services (Classification, Control and Appeal) Rules,1965 hereby placed the said Shri P.L.Ganguly, SE, PHE Circle under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force the headquarters of Shri P.L. Ganguly will be at Agartala and the said Shri Ganguly shall not leave the Headquarters without obtaining previous permission of the undersigned. By order and in the name of Governor (SS Sharma) Chief Secretary, Tripura" 2. Mr. G.C. Chakravorty, learned counsel for the State of Tripura has raised an objection that the writ petition is not maintainable as statutory remedy provided under Rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for short, the Rules as adopted in State of Tripura, has not been exhausted. 3. Under Rule 23 of the Rules, subject to provisions of Rule 22 of the Rules, a Government servant may prefer an appeal against an order of sus­pension made under Rule 10. Under Rule 22, no appeal shall lie against any order made by the Governor. The above order was made under Rule 10 and was expressed to be made in the name of the Governor. Under Article 166 (2) and (3) of the Constitution, Rules called the Rules of Executive Business of the Government of Tripura have been made by the Governor. Under Rule 4 of the Rules of Executive Business, the business of the Government shall be transacted in the Departments specified in the First Schedule, and shall be classified and distributed between those Departments as laid down therein. Under Rule 4 of the Rules of Executive Business, the Governor shall on the advice of the Chief Minister allot among the Ministers the business of the Government by assigning one or more Departments to the charge of a Minister. Under Rule 4 of the Rules of Executive Business, the Governor shall on the advice of the Chief Minister allot among the Ministers the business of the Government by assigning one or more Departments to the charge of a Minister. Rule 11 of the Rules of Executive Business provides that all orders or instru­ments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor. 4. In Samsher Singh vs. State of Punjab, AIR 1974 SC 2192 , the Supreme Court has held that the Article 166 (3) of the Constitution of India does not provide for any delegation and the decision of any Minister under rules of business made under Article 166 (3) is the decision of the Governor. A perusal of the relevant file indicates that the decision for placing the peti­tioner under suspension was made by the Chief Minister (Minister in-charge) and, therefore, applying the principle laid down by the Supreme Court, the decision of the Chief Minister was the decision of the Governor of Tripura. The order also has been expressed in the name of the Governor in terms of the Rule 11. This being the situation the contention of Mr. Chakraborty cannot be accepted. 4A. Mr. J.P. Bhattacharjee, learned counsel for the petitioner, has challe­nged the impugned order of suspension on the ground of non-application of mind for the order was not based on the relevant facts and circumstances. 5. Rule h.(1) (a) provides that the appointing authority or any authority to which it is subordinate may place a Government servant under suspension where a disciplinary proceeding against him is contemplated or is pending, Therefore, for suspension of a Government servant, initiation of a disciplinary proceeding, or contemplation of disciplinary proceeding, is condition precedent ie, the appointing authority, or the authority to which it is subordinate, is empowered to suspend a Government servant only when a disciplinary proceed­ing is contemplated or is pending. It may be mentioned here that in R.P. Nayak vs. Union of India, AIR 1972 SC 550, a Seven-Judge Bench of the Supreme Court observed : '-There is no gain saying that there is no inherent power of suspension postulated by the fundamental rules or any other rules governing the appellant's conditions of service." 6. It may be mentioned here that in R.P. Nayak vs. Union of India, AIR 1972 SC 550, a Seven-Judge Bench of the Supreme Court observed : '-There is no gain saying that there is no inherent power of suspension postulated by the fundamental rules or any other rules governing the appellant's conditions of service." 6. With regard to the expression "disciplinary proceeding is contemplated" the Allahabad High Court (Full Beach) in State of UP vs. Jai Singh, 1975 (2) SLR 754 has held that whenever it is in the mind of the appointing authority that in due course a formal departmental enquiry shall be held or there exists contingency for such an enquiry, one can say that a formal departmental enquiry is contemplated. It is, however, necessary that there should be applica­tion of mind in the eye of law, in good faith and not arbitrarily. Therefore, suspension can be ordered at any stage prior to framing of charges, when on objective consideration the authority concerned is of the view that a formal departmental inquiry is expected. We respectfully agree with the decision of the Allahabad High Court. We are, however, add that the meaning which can be assigned to the expression "disciplinary proceeding is contemplated" is that the thought of initiation of disciplinary proceeding is in the mind of the disciplinary authority. That thought is the impelling cause of suspension in those cases only in which the person empowered to suspend is possessed of sufficient materials whether after preliminary enquiry or otherwise. Therefore, the materials must exist for formation of the opinion; otherwise the decision or opinion would not only be arbitrary but also violative of the principles of natural justice and Article 14 of the Constitution. 7. In respect of suspension, although suspension is not a punishment under the Rules, an order of suspension puts a civil servant in a disadvantageous position and has an impact on his reputation. He shall not be entitled to his full pay. There are executive instructions issued by the Government for placing a Government servant under suspension (see Chaudhuri's compilation of Civil Service Regulations, Vol III, 13th Edition, Appendix 16). The instructions may not have statutory force, but they are meant for guidance of the authority concerned and the authority has a duty of seeing to them. There are executive instructions issued by the Government for placing a Government servant under suspension (see Chaudhuri's compilation of Civil Service Regulations, Vol III, 13th Edition, Appendix 16). The instructions may not have statutory force, but they are meant for guidance of the authority concerned and the authority has a duty of seeing to them. A perusal of the Rules and the guidelines indicates that it is not obligatory on the disciplinary authority to suspend a person even though a departmental enquiry is contemplated or is pending. Whether it is necessary or desirable to place an officer under suspension before definite charges have been framed would depend on the circumstances of each case and the view taken by the disciplinary authority. 8. The question which, therefore, arises for consideration is whether the order of suspension has to be made by complying with the principles of natural justice. The basic concept of natural justice is fair play in action ( administrative, judicial or quasi-judicial ). The phrase "natural justice" is not capable of a precise meaning. The phrase has many facets. In S.N. Mukherjee vs. Union of India, (1990) 4 SCC 594 , the Supreme Court has held: "Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authority. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory frame work whereunder jurisdiction has been conferred on the administrative authority." (emphasis sur plied). In S.N. Mnkherjee's case (Supra),the Supreme Court has also held that recording of reasons by administrative authority serves a salutary purpose, namely, it excludes chance of arbitrariness and ensures s degree of fairness in the process of decision making. However, it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of reason would depend upon the facts and circumstances of each particular case. 9. Let us also examine the frame work of Rule 10 (1). However, it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of reason would depend upon the facts and circumstances of each particular case. 9. Let us also examine the frame work of Rule 10 (1). Upon the proviso to Rule 10 (1) as already stated, if the order of suspension was made by the authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. The rule, therfore, shows that there must be circumstance for placing an officer under suspension and there should be an objective consideration of the circumstances. Under Rule 23,as already stated, except the order passed by the Governor, an order of suspension is appealable. As there is a provision for appeal against the order of suspension, it is imperative that the order must in a nutshell record the relevant reasons which were taken into consideration by the suspending authority in coming to conclusion, thereby enabling both the party seeking justice as well as the appellate authority to know the mind of the suspending authority and the reason for its finding (see V.V. Saraf vs. New Education Institute, AIR 1986 SC 2105 ). Therefore, recording of reasons which are taken into consideration by the authority in coming to final conclusion for suspension is in consonance with the principles of natural justice, t sat is to say, while passing suspension order the principle of natural justice shall be complied with. 10. Coming to the case on hand, the allegations against the petitioner, inter alia, is commission of criminal misconduct (corruption) in the matter of purchase of CI pipes for the Government of Tripura. During the argument, there was much discussion about the existence and non-existence of facts and circumstances which would suggest an inference of contemplation of depart­mental proceeding and requirement of suspension of the petitioner. Our attention was drawn to the documents on record, statements made in the affidavits and counter-affidavits, the authority to place the order for supply of materials in question, budgetary provision, etc in support of their respective contentions. Our attention was drawn to the documents on record, statements made in the affidavits and counter-affidavits, the authority to place the order for supply of materials in question, budgetary provision, etc in support of their respective contentions. We decline to deal with the factual position of the case in detail, except those facts and circumstances which had been placed before the Chief Minister at the time of passing the order of suspension, as it would cause prejudice to any of the parties if any departmental proceeding is initiated. 11. The note in the relevant file indicates that the facts and circumstances, which were placed before the Chief Minister by the Chief Secretary, were that the allegations against the petitioner were grave and there was a strong prima facie case; and that there was apprehension of tampering with evidence for the defiance of the general orders of the Government and instructions or orders of his superior officers as stated in the note. It has been concluded that the thought of initiation of disciplinary proceeding is the impelling cause of suspension. From the facts stated above, it is clear that the thought of initiation of disciplinary proceeding was in the mind of the disciplinary authority while taking the decision for suspension, viz disciplinary proceeding was contemplated, and the ground of suspension was tampering with evidence. Apprehension of tampering with the evidence is a guiding factor in deciding to place a Government servant under suspension under the guidelines referred to above. The reasons for suspen­sion have also been recorded and the decision or order was communicated to the petitioner expressing in the name of the Governor in terms of rule 11. For these reasons, we are of the opinion that principles of natural justice have been complied with while taking the decision for suspension; and that the decision was taken basing on the relevant facts and circumstances and, therefore, it cannot be said that there was non-application of mind. However, we make it clear that we shall not be presumed to have expressed our opinion about the correctness of the facts and circumstances. On the view of the case which we have found, we are not considering the decisions referred to us by the learned counsel for the parties. 12. It may be noted here that the suspension order was made on 14.3. On the view of the case which we have found, we are not considering the decisions referred to us by the learned counsel for the parties. 12. It may be noted here that the suspension order was made on 14.3. 91 and this Court stayed the order of suspension on 27.3. 91. There­fore, the suspension order was not given effect to. 13. For the foregoing reasons, the writ petition is dismissed. The interim order staying the order of suspension stands vacated. However, it is directed that the departmental proceeding shall be initiated within a period of three (3) months from today. No costs.