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2006 DIGILAW 544 (UTT)

T. S. Bora v. Kumaon Mandai Vikas Nigam Ltd.

2006-09-22

J.C.S.RAWAT, RAJEEV GUPTA

body2006
Judgment J.C.S. Rawat, J 1 . By means of this writ petition under Article 226 of the Constitution of ~ndia, the petitioner has sought the following reliefs: "(i) To issue a writ or direction in the nature of certiorari calling for the records and quashing the impugned order of suspension dated 13-06-2006 (Annexure No.4 to this writ petition), passed by Managing Director, Kumaon Mandai Vikas Nigam Ltd., Nainital-respondent No.2. (ii) To pass any order and further orders which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (Hi) To award the cost of the writ petition to the petitioner." 2. The petitioner had been working as a Divisional Manager (Mining) in the Kumaon Mandai Vikas Nigam Ltd. (hereinafter referred as 'Corporation'). He received an application of Udyog Bharti for mining of the sand. The said application of Udhyog Bharti was rejected by the petitioner vide order dated 04-02-2006 (Annexure NO.1 to the petition) on the ground that Udhyog Bharti was not fulfilling the required formalities for the same. Thereafter on 12-06-2006, Udhyog Bharti made a complaint to the Managing Director of the Corporation/respondent No.2, alleging therein that the petitioner had taken an illegal gratification of Rs. 25,0001- from him for registration and the petitioner had not issued any receipt to him and further he was demanding a sum of Rs.1 lakh from him in addition to Rs. 25,0001-. It was also alleged in the complaint that the petitioner had given the work of mining of sand to other persons only after taking heavy amount of illegal gratification. The complainant further prayed to the Respondent No.2 in the complaint that a sum of Rs.25,000/-; which was given by him, may be 'returned to him from the petitioner. On 12-06-2006, the complainant vide its letter (Annexure-3 to the petition) informed the Managing Director 1 respondent No.2 that the aforesaid amount of Rs. 25,000/-, had been returned by M.C. Pant, Cashier at the behest of the petitioner. The Managing Director 1 respondent No.2 passed the impugned order placing the petitioner under suspension on the ground that a disciplinary proceedings was contemplated against the petitioner on the basis of a complaint submitted by the complainant-Udyog Bharti. The petitioner submitted his reply before the Managing Director of the Corporation (respondent No.2) denying the charges levelled against him. The Managing Director 1 respondent No.2 passed the impugned order placing the petitioner under suspension on the ground that a disciplinary proceedings was contemplated against the petitioner on the basis of a complaint submitted by the complainant-Udyog Bharti. The petitioner submitted his reply before the Managing Director of the Corporation (respondent No.2) denying the charges levelled against him. He had categorically denied that he had received any money from the complainant-Udyog Bharti. It was further alleged in the reply that the complainant-Udyog Bharti had given a sum of Rs. 25,000/- to M.C. Pant, Cashier and later on the said money had been returned by M.C. Pant, Cashier. It was further alleged in the reply that he had not received any money from the complainant nor he had returned the said money to the complainant and he prayed that the suspension order passed by the Managing Director of the Corporation/ respondent NO.2 may be revoked. When the respondent no.2-Managing Director did not revoke the suspension order passed against the petitioner, the present writ petition has been filed. 3. The respondent had filed the counter affidavit in which it has been admitted that the petitioner was working as Divisional Manager (Mining) in the Corporation. The respondent nO.2Managing Director received a complaint against the petitioner as mentioned above. The respondents had denied that the petitioner had made any order on 04-02-2006 by which the application of Udhog Bharti was rejected by the petitioner. The respondents made an inquiry from all the concerned staff working under the petitioner in the Mining and Gas Division and all of them had informed that no such order dated 4-2-2006 was ever communicated to them nor they had any knowledge of such application. It was further alleged in the counter affidavit that the order dated 04-02-2006 (Annexure-I to the writ petition) filed by the petitioner is false and concocted one. The petitioner had himself admitted in his letter dated 12-06-2006 of taking Rs. 25,000/- from one-Lalit Karnataka and he had admitted in the letter that he directed the cashier M.C. Pant to keep the said amount with him. He had further admitted in the aforesaid letter that the receipt thereof was not issued nor the said amount was accounted in the records. 25,000/- from one-Lalit Karnataka and he had admitted in the letter that he directed the cashier M.C. Pant to keep the said amount with him. He had further admitted in the aforesaid letter that the receipt thereof was not issued nor the said amount was accounted in the records. It was further alleged in the counter affidavit that the petitioner while working as Factory Manager of Parvat Plastic has been charged with the financial irregularities amounting to Rs. 1,29,930/- vide order dated 18-09-2000. The petitioner had also been charged vide order dated 19-04-2006 for sending the vehicles of the Corporation for repairs without obtaining sanction from the competent authority and not discharging his function & duties as such with due diligence. 4. We have heard Sri L.P. Naithani learned senior counsel for the petitioner and Sri U.K. Uniyallearned senior counsel for the respondents. 5. Learned senior counsel for the petitioner contended that the petitioner neither received any money nor the money was returned by him. The said money of Rs. 25,000/- was accepted by the Cashier, M.C. Pant and the said money was returned by Cashier, M.C. Pant to the complainant. The complainant, Udyog Bharti had submitted one affidavit on 14-06-2006 after the suspension order to respondent NO.2 stating therein that he had never made any complaint against the petitioner. It was further contended by the learned senior counsel for the petitioner that vide letter dated 14-06-2006 written by the complainant to respondent NO.2 had disowned the complainant. Thus there is no material or basis whatsoever for placing the petitioner under suspension. Learned senior counsel for the petitioner further contended that the complaint has not been submitted by the complainant-Udhog Bharti. The alleged complaint has been given by one-Lalit Karnataka on behalf of Udhog Bharti and the complaint did not bear the signature of Udhog Bharti. It was further contended that the petitioner had already rejected the application of Udhog Bharti for mining of sand vide order dated 04-02-2006 and the petitioner had no occasion to take money or to demand any money from the complainant. It was further contended that the complainant had already received the alleged money from the cashier M.C. Pant prior to passing the suspension order. As such, the suspension order was bad in law. It was further contended that the complainant had already received the alleged money from the cashier M.C. Pant prior to passing the suspension order. As such, the suspension order was bad in law. Learned senior counsel for the respondents refuted the contention and contended that there was no application or letter addressed to Divisional Manager, Marketing made by Udhog Bharti for seeking registration for mining the sand nor there was any order dated 4-22006 passed by the petitioner as divisional manager. It was further contended that on being made inquiry from tt1e office it was revealed that no such order was ever communicated to any of the employee working under him and nor they had any knowledge of such application. The perusal of the record reveals that the respondents had alleged in the counter affidavit that there was neither any letter nor any application addressed to the Divisional Manager Marketing made by the complainant Udhog Bharti nor there was any order dated 04-02-2006 was passed by the petitioner as Divisional Manager. The said order was addressed to one Mr. Pant. There are three 'Pants' in the respondents' department and the respondent had enquired from all these Pants with regard to the said application and order passed by the petitioner. They had stated that no such order was ever communicated to them nor they had are knowledge of such application. The respondents have categorically alleged in the counter affidavit that the said letter dated 04-02-2006 (Annexure-I to the writ petition) filed by the petitioner is false and concocted one. Thus, it is a question of fact which can only be ascertained during the inquiry. At this stage, It is also well settled position of law that when an appointing authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts or 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 the appointing authority. Thus, the question with regard to the genuineness of the aforesaid letter dated 04-02-2006 would only be decided by the Inquiry Officer. 6. Thus, the question with regard to the genuineness of the aforesaid letter dated 04-02-2006 would only be decided by the Inquiry Officer. 6. It is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The court may interfere where authority held the proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice. 7. It is also well settled position of law that when an appointing authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts or 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 the appointing authority. It has been held by the Hon'ble Supreme Court in U.P. Rajya Krishi Utpadan Mandi Parishad and others Vs. Sanjiv Rajan, 1993 Supp (3) SCC p/483, ordinarily when there is an accusation of defalcation of monies the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceedings to continue unhindered. From the chargesheet it is clear that the allegations against the first respondent are grave in as much as they indicate that the amounts mentioned therein are not deposited in the bank and forged entries have been made in the pass-book and the amounts are shown as having been deposited. From the chargesheet it is clear that the allegations against the first respondent are grave in as much as they indicate that the amounts mentioned therein are not deposited in the bank and forged entries have been made in the pass-book and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. In matters of this kind, it is advisable that the concerned employees are kept out of the mischiefs range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. 8. Rule 4 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999 provides as under :"4. Suspension.- (1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily want major penalty: Provided further that concerned Head of the Department empowered by the Governor by an order in this behalf may place a Government Servant or class of Government Servants belonging to Group )!\' and 'B' posts under suspension under this rule: Provided also that in the case of any Government Servant or class of Government Servant belonging to Group 'C' and '0' posts, the Appointing Authority may delegate its power under this rule to the next lower authority. " 9. A perusal of the aforesaid Rule reveals that the suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty. In the case in hand, there was a complaint against the petitioner that he had taken an illegal gratification of Rs. 25,000/- from the complainant for the registration and he was also demanding a sum of Rs. 1 lac in addition to Rs. 25000/-. The petitioner had admitted in his letter dated 12-06-2006 for taking Rs. In the case in hand, there was a complaint against the petitioner that he had taken an illegal gratification of Rs. 25,000/- from the complainant for the registration and he was also demanding a sum of Rs. 1 lac in addition to Rs. 25000/-. The petitioner had admitted in his letter dated 12-06-2006 for taking Rs. 25000/ - from one-Lalit Karnataka and further admitted that he directed the cashier M.C. Pant to keep the said money with him and it was also admitted that no receipt thereof was issued and the said money was not accounted in the record. Thus, the petitioner was neither authorized to direct the cashier to keep the money without giving any receipt nor he was competent to give such direction to the cashier for keeping the unaccounted money. It is also on record that the said money was returned to the complainant on 12-06-2006 at the behest of respondents. Thus the allegation against the petitioner are of serious nature. 10. It was further pointed out that the order of suspension visits the employee with serious evil consequences including the monetary loss and the loss of reputation. But if a transfer would be sufficient for the said purpose the disciplinary authority may not place him under suspension. It was further pointed out by the learned senior counsel for the petitioner that the respondents should have considered that the continuance of the employee in the same place or post was not desirable. The disciplinary authority had two options either to place him under suspension pending the inquiry or to transfer him to another post or place. If a transfer would be sufficient to ensure the proper and fair disciplinary proceeding the appointing authority after transfer of the employee may not place him under suspension. Learned counsel has relied upon the judgment of this Court delivered in the case of Islam Khan Vs. State of Uttaranchal reported in 2005(2) U.D. p/291. The learned senior counsel for the respondents refuted the contention and contended that the transfer would not be sufficient in this case. It is not disputed to the petitioner that he had been charged with the financial irregularities found during the audit carried out by the auditor general and the departmental proceedings are going on against the petitioner. The learned senior counsel for the respondents refuted the contention and contended that the transfer would not be sufficient in this case. It is not disputed to the petitioner that he had been charged with the financial irregularities found during the audit carried out by the auditor general and the departmental proceedings are going on against the petitioner. The petitioner had stated that the charges levelled in the chargesheet dated 18-09-2000 is without any substance and it is a total malafide action. He only disputed that the inquiry is pending since long and it had not been concluded so far. It is also admitted to the petitioner that another departmental inquiry has been initiated against him on 19-042006 for sending the vehicles of the Corporation for the purpose of repairs without any sanction as well as being not vigilant in discharging the duties. This is the third inquiry in which the petitioner is involved. Thus, the petitioner had not been suspended for the earlier inquiries and he had been making defalcation and committing irregularities repeatedly. As such, only the transfer of the petitioner would not be sufficient in such circumstances. In the case in hand the petitioner had been charged for taking illegal money without being accounted in the record and he demanded Rs. 1 lac in addition to Rs. 25,0001- as bribe. If the charges are established, it would warrant major penalty. In view of the foregoing discussion and Rule 4 of the U.P. Government Servant (Discipline & Appeal) Rules, 1999, the ruling cited by the learned 'counsel for the petitioner is not applicable in the facts and circumstances of this case. 11. The learned senior counsel for the petitioner further relied upon the judgment of the Hon'ble Supreme Court in State of Orrisa Vs. Simal Kumar Mohanty, (1994) 4 SCC P/ 126 in which the respondent-Bimal Kumar Mohanty was working as Manager of Orrisa Guest House, audit reports noted serious financial irregularities, fabrication of records and vouchers and misappropriation of amounts. Thereafter, certain other financial irregularities relating to purchase of woolen carpets apart from suppression of audit reports for certain earlier years, pointing out similar objections, came to light. The appointing authority after considering the entire record passed an order directing an inquiry into the irregularities and also decided to keep the respondent under suspension pending further action. Thereafter, certain other financial irregularities relating to purchase of woolen carpets apart from suppression of audit reports for certain earlier years, pointing out similar objections, came to light. The appointing authority after considering the entire record passed an order directing an inquiry into the irregularities and also decided to keep the respondent under suspension pending further action. On the same day, the State Administrative Tribunal, by an interim order, directed not to suspend the respondent. On 3-.91993 the vigilance department searched the respondent's house and after finding him in possession of disproportionate assets to the tune of Rs. 11.44 lakhs. Accordingly the case was registered under section 13(1) of the Prevention of Corruption Act. On consideration of the material, the Government suspended the respondent from service. The respondent again preferred a petition before the Tribunal and the Tribunal suspended the said suspension order. When the matter came before the Hon'ble Supreme Court it was observed by the Hon'ble Apex Court that since serious allegations of misconduct have been alleged against the respondent, the Tribunal was quite unjustified in interfering with the orders of suspension. It was further observed that the tribunal appears to have proceeded in haste in passing the orders even before the ink is dried on the orders of suspension passed by the appointing authority. 12. The ratio of the said case does not help the petitioner, but at the same time it reveals that if the allegations are serious in nature the suspension order should not be interfered by the court. 13. It was brought to our notice that Udhog Bharti had disowned the complaint on the basis of which the disciplinary proceedings were initiated against the petitioner. It was further pointed out that the complainant-Udhog Bharti had submitted an affidavit dated 14-062006 to the managing director stating therein that he had never made any complaint against the petitioner. These subsequent developments after passing the suspension order can only be considered by the competent authority. As we have already pointed out that this Court while exercising power of judicial review under Article 226 of the Constitution cannot act as an appellate authority, this Court has no power of judicial review to come to the conclusion that the disciplinary authority had given this finding erroneously. Even if the findings of facts are not correct this Court while exercising power of judicial review cannot interfere with such findings. Even if the findings of facts are not correct this Court while exercising power of judicial review cannot interfere with such findings. The court may interfere where authority held the proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice. 14. In the light of the above background, it would not be open to this Court to analyse the affidavit and the letter written by the complainant to the Managing Director of the Corporation that he had not made any complaint against the petitioner. The disciplinary authority is the appropriate authority to consider the revocation of the suspension order on the subsequent material and development available on due consideration. We, however, deem it just and proper to direct the disciplinary authority to consider the petitioner's request for revocation of suspension order of the petitioner afresh on the basis of subsequent developments in the matter. In view of the facts and circumstances, it would be just and proper to direct the inquiry officer and the disciplinary authority to conclude the inquiry against the petitioner expeditiously. 15. In view of the foregoing discussion, we are of the considered view that the suspension order passed by the disciplinary authority does not suffer from any infirmity and deserves to be maintained. However, it is made clear that the disciplinary authority shall consider the petitioner's request of revocation of suspension of the petitioner afresh within a period of two months from the date of receipt of copy of this order in the light of the subsequent development as stated above. The disciplinary authority is directed to conclude the inquiry against the petitioner within a period of four months from the date of receipt of copy of this order. The petition is disposed of accordingly. 16. Consequently the interim order dated 23-06-2006 stands vacated automatically. 17. The parties shall bear their own costs.