P. Viswanathan v. S. Mohandass — 1995 DIGILAW 26 (CAL)

Judgment Bhagabati Prosad Banerjee, J.: 1. This is an application for stay of the operation of Judgment and order dated 21st December, 1994 passed by the learned Trial Judge in the Circuit Bench at Port Blair in C.A. 101(W) of 1994. The writ application was filed by one Mohan Das inter alia for a writ of quo-warranto against the appellant P. Viswanathan, Deputy Superintendent of Police, Andaman & Nicobar Island Police and for other relieves. The writ petitioner alleged that the appellant had initiated several criminal investigations against him and stated the appellant against whom criminal case was under investigation was placed under suspension by the Disciplinary' Authority but for some reasons or others the order of suspension was not given effect to and as such he was interested to see the implementation of the order of suspension, suspending the appellant from the service which was already passed. The writ application was allowed and the appellant was restrained from functioning pertaining to the Office of Dy. Superintendent of Police, South' Andaman & Nicobar and the other authorities of the Andaman Administration were also directed to implement the order of suspension dated 4th March, 1994. The learned Trial Judge stayed the operation of the Judgment for a period of 3 weeks from the date. The appellant contended before us that the appellant had a brilliant service and for rendering meritorious services, he was awarded President's Police Medal and that the criminal investigation that was stated in respect of the alleged acquisition of wealth disproportionate to his known sources of income and the business undertaken by his wife was because of a mechanicious move on the part of the authorities concerned. It was alleged that the criminal investigation that was started had no actual or factual basis that an FIR was lodged in respect of the alleged offences committed by the petitioner under the provisions of Prevention and Corruption Act on 21.10.93. It was alleged that the criminal investigation that was started had no actual or factual basis that an FIR was lodged in respect of the alleged offences committed by the petitioner under the provisions of Prevention and Corruption Act on 21.10.93. Thereafter, the writ application was moved by the petitioner in the High Court at Calcutta and not at the Circuit Bench at the Port Blair challenging the validity and or legality of the lodging of the FIR and criminal investigation whereupon A.N. Ray J. passed an order on 15th March, 1994 to the extent that there will be an interim order to the effect that the respondents or anyone of them shall not place the petitioner under the suspension during the pendency of the rule without obtaining leave from this Court for which liberty' is specifically reserved in favour of the respondents". It is not in dispute that the order of suspension was passed by the Govt. of India on 4th March, 1994 but it was alleged that the said order of suspension was not communicated to the appellant petitioner before 29th of April, 1994 when there was an injunction order passed by A N. Ray, J. on 15th March, 1994. It was also alleged that challenging the validity of the order of suspension a petition was filed before the Central Administrative Tribunal by the appellant whereupon the Central Administrative Tribunal had passed an order for maintaining status quo in view of the interim order of injunction passed by A.N. Ray, J. on 15th March, 1994. It also appears that on the writ application filed by Mohan Das which was made absolute by the learned Trial Judge and which is the subject matter of the appeal before us, Samaresh Banerjee, J. passed an order on September 27, 1994 restraining the appellant from doing anything either directly or indirectly in the matter of investigation pending against the writ petitioner and His Lordship also directed the respondent authority to investigate or to enquire for the purpose of ascertaining on which date the order of suspension dated 4.3.94 was communicated from Delhi and was actually sent out by way of fax or by way of speed post or otherwise both to authorities as well as the appellant. The learned Trial Judge also took notice of the fact that an immediately after the FIR was lodged against the appellant, the appellant filed an application for anticipatory bail and that the learned SDJM allowed the petition for anticipatory bail with the condition that "in the event of his arrest, the petitioner would be granted bail on condition that he will not go beyond Port Blair without the permission of learned CJM Port Blair and meet I.O. of this case as and when necessary". It is an admitted position that the appellant petitioner in violation of the said condition of the anticipatory bail, went out of the Andaman without obtaining permission from the CJM and went to Calcutta for the purpose of filing the writ application whereupon A. N. Ray, J. passed an order dated 15th March, 1994. 2. Mr. S. C. Bose, learned Counsel appearing on behalf of the appellant petitioner submitted that the learned Trial Judge could not direct giving effect to the order of suspension and could not make the rule absolute, in view of the fact that by order dated 15th March, 1994 passed by A.N. Ray, J. authorities concerned have been restraining from passing any order of suspension without obtaining the leave from the Court and that further the Central Administrative Tribunal also passed an order dated 27th November, 1994 for maintaing status-quo until the admission of the petition filed before the said Central Administrative Tribunal was taken up for hearing. Mr. Bose further submitted that the order of suspension could not be given effect to as the same was not communicated to the petitioner before 15th March, 1994 but as a matter of fact it was actually served upon the appellant petitioner on 24th April, 1994. It was further stated that the Inspector General of Police subsequently decided to give any effect to the order of suspension in view of the order passed by A. N. Ray, J. on 15th March, 199~ Mr. It was further stated that the Inspector General of Police subsequently decided to give any effect to the order of suspension in view of the order passed by A. N. Ray, J. on 15th March, 199~ Mr. Bose further relying upon the decision of the Supreme Court in a case of Pratap Singh vs. State of Punjab, reported in AIR 1964 SC 72 as well as the decision of the Supreme Court in the case of State of Punjab vs. Kehmiram, reported in AIR 1970 SC 214 that except in cases where officers concerned were on leave preparatory to retirement or otherwise the order of suspension order to be effective must be actually served upon the incumbent officers. Earlier the Supreme Court in the case of Bachitra Singh vs. State of Punjab, reported in AIR 1963 SC 395 held that an order in order to be effective must be served upon the officers concerned. Pratap Singh's case was subsequently considered by the Supreme Court in the case of State of Punjab vs. Kehmiram. In the later case the Supreme Court directly considered the question whether communicating the order means order actually received by the concerned Govt. servant or not and held that once an order is issued and is sent out to the concerned Govt. servant it must be held to have been communicated to him, no matter when he actually received it. The Learned fudges of the Supreme Court felt it difficult to pursuade themselves to accept the view that it is only from the date on which actually received by him that order becomes effective. It was held that if that be the true meaning of communication it would be possible for the Govt. servant to effectively the art and order by avoiding receipt of it by one method or other till after the date of his retirement even though such an order is passed and despatched to him before such date. The position was made further clear by the Supreme Court in the case of B.J. Shelat vs. The State of Gujrat, reported in AIR 1978 SC 1109 wherein the Supreme Court observed it is not necessary that the communication should reach the Govt. servant. The position was made further clear by the Supreme Court in the case of B.J. Shelat vs. The State of Gujrat, reported in AIR 1978 SC 1109 wherein the Supreme Court observed it is not necessary that the communication should reach the Govt. servant. As held by this Court in State of Punjab vs. Kehmiram (1970) 2 SCR 637: AIR 1970 SC 214 it would be sufficient if such an order is sent out and goes out of control of the appointing authority before the relevant date. After referring to earlier decision the Court held that actual knowledge by the Govt. servant of an order of dismissal may perhaps become necessary because of the consequences of which the decision in the State of Punjab vs. Amar Singh Harixa, reported in AIR 1966 SC 1313 contemplated but an order of suspension when once issued and sent out to the concerned Govt. servant must be held to have been communicated, no matter when he actually received it. The later judgment of the Supreme Court in B.J. Shalet's case had considered the earlier decisions of the Supreme Court and made the position clear that at least in case of an order of suspension it would be effective when the order has been issued and despatched, no matter whether the order had actually received or reached in the hand of the Govt. servant. On the basis of the materials on record, it appears to us that and as contended by the learned counsel appearing on behalf of the respondent that the reason for moving the Calcutta High Court on 15th March, 1994 was because of the issue of an order of suspension on 4th March, 1994 in view of the fact that if the petitioner was really aggrieved and wanted to challenge the criminal investigation in that event the petitioner should not have waited from 21st October, 1993 till Court at Calcutta when the Circuit Bench was not sitting as the Circuit Bench seats for 15 days in each month. The petitioner could not wait for few days for moving the writ application in this Circuit Bench as the order of suspension had already been issued and perhaps come to the knowledge of the petitioner who was holding a very high post and further the administration also allowed him to go to the Calcutta violating the order of CJM, A & N Port Blair who had imposed the restriction on his movement in connection with the anticipatory bail matter that he should not leave the Port Blair without obtaining the leave of the Court and further it appears that the learned Trial Judge had taken serious exception to this aspect of the matter that the CBI nor the A & N Administration had drawn the attention of the cm for violation of the terms and conditions, anticipatory bail and/or revocation of the order passed by the CJM and further because of violation of the condition, the anticipatory bail order should have been revoked and he should have taken in custody, had the administration was serious about it? 3. Mr. Bose submitted that the Central Administrative Tribunal had alone jurisdiction to deal with an order of suspension in view of the provisions of the Administrative Tribunal Act, 1985. Reading the provisions of Ss. 14 and 15 of the said Act there is no doubt in our mind that the Central Administrative Tribunal is the appropriate authority to deal with such service matter in view of the fact that s. 15 of the said Act II service matters connected with the affairs of the employees of Union Territory concerned, High Court Jurisdiction has been taken away. Suspension is certainly a service matter and it is well settled principles that power of suspension is an inherent power of the employer whether such order of suspension has been conferred specifically by the statute or not. In the instant case the order of suspension was passed under s. 10 of the Central Civil Services (Classification Control and Appeal) Rules, 1965 provides such power upon the appointing authority' to pass such an order of suspension. In the instant case, the order of suspension has been passed in exercise of the power conferred upon appointing authority where a case against the employee in respect of the Criminal offence is 'under investigation, enquiry or trial'. Mr. In the instant case, the order of suspension has been passed in exercise of the power conferred upon appointing authority where a case against the employee in respect of the Criminal offence is 'under investigation, enquiry or trial'. Mr. Bose seriously contended that writ application filed by Mohan Das was not maintainable as the validity of an order of suspension could only be adjudged by the Central Administrative Tribunal and not by this Court. In this connection it was alleged by Mr. Dipak Kundu, learned Counsel appearing on behalf of the writ petitioner opposite party and the learned counsel appearing for the Administration as well as CBI that in the instant case the appellant moved the High Court alleging that an order of suspension was going to be served upon him in connection with the criminal investigation and though in that writ application the subject matter was challenged was not the order of suspension and an order restraining the respondents from passing any order of suspension was prayed and granted by A.N. Ray, J. on March 15, 1994. The said writ application was moved at the Calcutta High Court and for that purpose the petitioner went out of Andaman Islands in violation of the order passed by the learned CJM and accordingly it was submitted by the learned advocate appearing for the respondent that when the petitioner has moved the Calcutta High Court and obtained a relief against the order of suspension. He was not aware that the High Court had no jurisdiction but the Central Administrative Tribunal had alone the jurisdiction in the matter. The appellant moved before the Central Administrative Tribunal subsequently against the order of suspension and the Tribunal had passed an order only on 27.11.94 for maintaining status-quo in view of the order passed by the High Court on 15th March, 1994, till the admission case was heard by the Tribunal. In this case the Tribunal had passed an order for maintaining status-quo in view of the order of the High Court before the Tribunal had passed an order for maintaining status-quo. It appears that the Tribunal had passed such an order in this matter without going into the merit of this case. On the contrary, Mr. In this case the Tribunal had passed an order for maintaining status-quo in view of the order of the High Court before the Tribunal had passed an order for maintaining status-quo. It appears that the Tribunal had passed such an order in this matter without going into the merit of this case. On the contrary, Mr. Bose has contended that when the Central Administrative Tribunal which was the appropriate authority and when that authority passed an order that must prevail which could not be touched by this Court. Secondly, it was submitted by Mr. Bose that an order of suspension had not been challenged by the appellant before the Calcutta High Court but that was an accidental or anciliary to the main relief which the petitioner tried to obtain in that writ application wherein the validity) of the Criminal investigation initiated on the basis of the FIR was under challenge. In this connection our attention was drawn to the fact that in the writ application which was filed in the Calcutta High Court not before the Circuit Bench the Union of India was not made a party. The Union of India had made a party through the Govt. advocate whose office was situated at 4, K.S. Roy Road, Calcutta. Under the writ Rules of the Calcutta High Court, the Central Govt. can only be made a party through the Secretary of the Ministry concerned. Secondly, CBI which was initiated and investigating the Criminal case was not made a party'. Thirdly, the Andaman & Nicobar Administration was not made properly a party. Andaman & Nicobar Administration was made a party through its Liaison Officer whose office was situated at Calcutta. Liaison Officer cannot represent the Andaman & Nicobar Administration. It may be that for the purpose of attracting the jurisdiction of the Calcutta High Court such a course of action was adopted. Secondly it was submitted by Mr. Andaman & Nicobar Administration was made a party through its Liaison Officer whose office was situated at Calcutta. Liaison Officer cannot represent the Andaman & Nicobar Administration. It may be that for the purpose of attracting the jurisdiction of the Calcutta High Court such a course of action was adopted. Secondly it was submitted by Mr. Kundu, learned advocate appearing on behalf of the writ petitioner opposite party that course of action was deliberately taken so as to mislead the authorities concerned and another serious aspect of the matter is that under the rules framed by the Calcutta High Court in the Full Court all matters pertaining to Andaman & Nicobar has to be moved in the Circuit Bench, Calcutta High Court at Andaman & Nicobar and that in case when the Circuit Bench was not sitting (Circuit Bench seats 15 days in every month) and in case there is urgency in that event such an urgent matter could only be moved in the Calcutta High Court with the leave and permission of the Learned Chief Justice. In the instant case, it appears that no leave was obtained from the Chief Justice but an order was passed and the learned Trial Judge who passed an order directed that the matter to be transferred to the Island in the next Circuit Bench. After the FIR was lodged and criminal investigation was started on and from 21st October, 1993, several Circuit Benches were available in this Islands but the appellant did not consider it necessary to challenge the said criminal investigation immediately after 21st October, 1993, and waited till 15th March, 1994 when the order of suspension was actually issued by the Govt. of India and it was despatched to the appellant for service. The petitioner being in a very high post in this Island might have been aware of the same and that was possibly the only reason the matter becomes very urgent to the petitioner for moving in the High Court at Calcutta at that time. of India and it was despatched to the appellant for service. The petitioner being in a very high post in this Island might have been aware of the same and that was possibly the only reason the matter becomes very urgent to the petitioner for moving in the High Court at Calcutta at that time. At this stage before going into the merits of the rival contentions of the parties, we are of the view that when the order of suspension has been passed by the appropriate authority in accordance with the provisions of the Rule 10 of the relevant Rules and such a power has been exercised in view of the pendency of the criminal investigation against the petitioner and further the order of A.N. Ray, J. had not stayed the order of suspension already passed on 4th March, 1994 but restrained the appointing authority from passing any order of suspension. In the instant case an order of suspension was passed by A. N. Ray, J. on 15th March, 1994, the question is whether the said order had become effective before the order passed by Mr. A.N. Ray, J. or not. The order dated 15th March, 1994 had not stayed the operation of the order of suspension which was already passed but restrained the authority concerned from passing an order, in other words the respondents were restrained from passing any order in future without obtaining leave from the Court and the order restrained the future course of, action and the said order cannot be said to act restrospectively to make the order of suspension already passed inactive and that before the learned Trial Judge A.N. Ray, J. it was not stated in so many clear words that the order of suspension had already been passed. In that petition it was only stated that the appellant was apprehending to get suspended from services by the authorities concerned at any moment although no opportunity of hearing had so far been{ given by the authorities concerned to the appellant. In that petition it was only stated that the appellant was apprehending to get suspended from services by the authorities concerned at any moment although no opportunity of hearing had so far been{ given by the authorities concerned to the appellant. This perhaps may be interpreted as the petitioner had aware of the same otherwise the question of giving hearing before an order of suspension could not be contemplated and that the appellant was more concerned with the suspend from service than the criminal investigation which was pending] for several months and that it appears that the appellant had not preferred an appeal for not issuing an order staying the criminal investigation. Since the Central Administrative Tribunal is the only appropriate authority to deal with all service matters which includes an order of suspension, Central Administrative Tribunal has not yet entertained the petition filed before that authority but passed an order for maintaining status-quo in view of the order of injunction passed by A.N. Ray, J. Now the question is whether this order for maintaining status-quo could be interpretated to mean that the order of suspension had been stayed and/or made ineffective. In our view prima facie it appears to us that if the order of suspension has become effective in view of the principles laid down by the Supreme Court as mentioned above, in that event, status-quo would only mean that state of affair after the issue of the order of suspension should continue. It is an admitted position that before moving the Calcutta High Court on, 15th March, 1994, the order of suspension was passed and issued and/or despatched but for some mysterious reasons it could not be served because of the fact that the said order was kept in abeyance because of the interim order passed by the Calcutta High Court. Prima facie in our view when the order of suspension has been passed by the appointing authority and the same had been despatched for service, it took effect and the Inspector General of Police or for that purpose Andaman & Nicobar Administration had no volition in the matter and by their overt acts, an order validly passed cannot be invalidated or stated. Accordingly, prima facie in our view the situation that has emerged is that the order of suspension appears to have taken effect long before the order dated 15th March, 1994 and that in any event an order passed by Mr. A.N. Ray, J. did not stay or suspend the order of suspension which was earlier passed but only restrained the authorities from passing any order in future and the Central Administrative Tribunal's order for maintaining status-quo did not and could not be interpreted by us to mean that the order of suspension has been stayed or made inoperative. The said order of status-quo was passed apparently in the circumstances where the order of suspension became operative. If it was the intention of the Central Administrative Tribunal to stay the operation of the order of suspension, they could have done so but they had chosen not to do so and that point of time ultimately an order of, suspension was known to the appellant. Of course we are not entering into the merits of this case, yet we intend to keep on record the submissions made by the learned advocate appearing on behalf of the CBI. The learned counsel stated the reasons for which the order of suspension had been passed that the appellant was holding a very high post and unless he was suspended, investigation could not be continued and in this connection it was stated that one Mr. A. Sahai, DSP who was making: the investigation of, the case was involved in a case under s. 380 read with s. 323 IPC which started at the instance of the appellant and as such it was the view of the CBI that unless the appellant is suspended, criminal investigation could not be carried on and concluded effectively in this Island. Of course Mr. [Bose submitted that the said criminal case against the said Officer was not started by the appellant but the learned counsel appearing on behalf of CBI has stated that officers of the CBI has become scared to come to this Island and to make investigation against the appellant, unless the appellant is suspended. Of course Mr. [Bose submitted that the said criminal case against the said Officer was not started by the appellant but the learned counsel appearing on behalf of CBI has stated that officers of the CBI has become scared to come to this Island and to make investigation against the appellant, unless the appellant is suspended. It was further stated that CBI had requested the Andaman & Nicobar Administration to put the appellant out of Island but that was not done so and that under the peculiar circumstances it was felt necessary to suspend him under a compelling circumstances and the order of suspension, headquarters of the Island have been made at New Delhi perhaps because of this peculiar circumstances and apprehension as stated by the learned counsel appearing on behalf of the CBI. For this reason, we are prima facie of the view that it is not a fit and proper case where we should grant an interim order of stay which would have the effect of keeping the order of suspension in abeyance or ineffective. It is for the Central Administrative Tribunal to pass order regarding the said order of suspension and we make it abundantly clear that it would be within the exclusive jurisdiction of the said Tribunal to pass any order in the matter as the said authority may deem fit and proper without taking into consideration of. any order passed by the High Court in the matter but we make it clear that we are not adjudicating any of the points on its merits which are left open to be decided at the time of hearing and any observation made by us in our order should not be taken into consideration while disposing of the appeal and this order is passed without the prejudice to the rights and contentions of the parties. 4. On the prayer of the learned advocate appearing on behalf of the appellant petitioner let there be stay of the operation of this order for a period of three weeks from today as the learned advocated appearing on behalf of the appellant petitioner states on instruction that his client intends to go to the Supreme Court against this order passed by us. 5. Let a certified xerox copy of this order be given to the learned advocate for the parties on the usual undertakings. Sudhendu Nath Mallick, J.: I agree. Application dismissed.