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2009 DIGILAW 526 (GAU)

Amoy Morang v. State of Arunachal Pradesh

2009-08-05

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. This writ petition is directed against the Order No. SUD/E-136/2004/263-283 dated 31st August, 2005 issued by the Chief Secretary to the Government of Arunachal Pradesh placing the petitioner under suspension with immediate effect consequent upon the institution of a vigilance inquiry by the Government against him. The petitioner initially joined in 1987 as Assistant Town Planner under the Public Works Department and he was promoted to the rank of Town Planner in the year 1994 under the administrative control of the Chief Engineer, Public Works Department, Western Zone. The Government of Arunachal Pradesh created the Urban Development Department in the year 1995 and the office of the Town Planner and Director of Housing was amalgamated into the Directorate of Urban Development and Local Self Government and the same was placed under the administrative control of the Commissioner and Secretary, Urban Development and Local Self Govt. The petitioner by virtue of his qualification, status and service rendered by him was designated as Director of Urban Development vide Govt. order under Memo No. COM (UD) 1/96/Pt/384-91 dated 28th August, 1996. Accordingly, he took over charge and has been serving as Director of the said new department. 2. While he was functioning as Director of the said department, the petitioner issued an advertisement on 4th September, 2002 for filling up the various posts of Assistant Urban Programme Officer, Group-C (Tech.), Architectural Assistant, Group-C (Tech.), D/man Grade-II, Group-C (Tech.), D/man Grade-III, Group-C (Tech.), Stenographer Grade-III, Group-C (Tech.), Surveyor, Group-C (Tech.), Lower Division Clerk, Group-C (Ministerial), Urban programme Inspector, Group-C (Tech.), Driver, Group-C (Tech.), Peon, Group-D (Ministerial) and Chowkidar, Group-C (Ministerial) in the Urban Development Department and the said posts were filled up through open competition and as per the existing procedure. But some of the unsuccessful candidates lodged a complaint against the writ petitioner alleging inter alia, nepotism, favouritism and exercising excess power in making the appointments. Based on the said complaint, the vigilance department initiated inquiry against the petitioner and the aforementioned impugned order placing the petitioner under suspension was issued. Against the said impugned order, the petitioner made representation before the Govt. for revocation of the suspension order but the said prayer of the petitioner was rejected by the respondents-Chief Secretary vide order No. SUD/PF/AM/2005/695-702 dated Itanagar 24th April, 2008 and ordered that the petitioner shall continue to be under suspension. Against the said impugned order, the petitioner made representation before the Govt. for revocation of the suspension order but the said prayer of the petitioner was rejected by the respondents-Chief Secretary vide order No. SUD/PF/AM/2005/695-702 dated Itanagar 24th April, 2008 and ordered that the petitioner shall continue to be under suspension. The petitioner is still under suspension till this date without initiation of any departmental proceeding. 3. Heard Mr. T. Son, learned Counsel for the writ petitioner and also heard Ms. G. Deka, learned Additional senior Govt. Advocate, appearing on behalf of the respondents. 4. Mr. T. Son, learned Counsel for the petitioner submits that the impugned order placing the petitioner under suspension for an indefinite period is violative of provision under Rule 27(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 inasmuch as suspension order should not be valid after the expiry of 90 days unless it is extended after review for a further period before expiry of 90 days. The respondent authorities neither constituted a review committee nor any order has been passed by the competent authority for extension of the suspension period. The period of suspension of an employee, even after extension, cannot be beyond 180 days in total but in the instant case, the suspension has been continuing for a period of about 4 years. He also submits that the respondent authorities failed to take necessary steps for extension of suspension of the petitioner beyond 90 days as per the procedure laid down under Rule 10(6) and (7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and as such, the action of the respondent authorities in placing the petitioner under suspension beyond 180 days, which is now about 4 years and going to be for a indefinite period causing immense suffering, both financial and mental, to the petitioner. The act of placing the petitioner under suspension for an indefinite period is unauthorised and illegal as he has been made to suffer due to non completion of trial of the criminal proceeding against him. The respondent authorities claim that the investigating agency has already filed charge-sheet against he petitioner and the prosecution sanction from the Govt. has been obtained but the trial is yet to be commenced and it has become uncertain as to when the same would come to a conclusion. Under such circumstances, Mr. The respondent authorities claim that the investigating agency has already filed charge-sheet against he petitioner and the prosecution sanction from the Govt. has been obtained but the trial is yet to be commenced and it has become uncertain as to when the same would come to a conclusion. Under such circumstances, Mr. Son, learned Counsel for the petitioner submits that an appropriate direction may be issued to the respondent authorities to revoke the suspension order forthwith. In support of his submissions. Mr. Son, learned Counsel for the petitioner puts reliance on the following decisions rendered in Darshan Singh v. State of Arunachal Pradesh and Ors. reported in (1997) 1 GLT 30, Secretary to Government and Anr. v. K. Munniappan reported in (1997) 4 SCC 255, State of Rajasthan v. B.K. Meena and Ors. reported in (1996) 6 SCC 417 , Union of India and Ors. v. Raj Kishore Parija reported in 1995 Supp (4) SCC 235, P.L. Shah v. Union of India and Anr. reported in (1989) SCC 546, K. Sukhendar Reddy v. State of A.P. and Anr. reported in (1999) 6 SCC 257 and A. Biren Singh and Ors. v. State of Manipur and Ors. reported in (2007) 2 GLT 105. 5. Ms. G. Deka, learned Addl. Senior Govt. Advocate submits that the respondent authorities are not in a position to do anything for early disposal of the criminal case which is pending before the Designated Court, Yupia and unless the trial of the criminal case comes to a conclusion, the suspension order of the petitioner cannot be revoked. The Govt. has considered and found from the inquiry report submitted by the DSP (Vig.), Govt. of Arunachal Pradesh, Itanagar that the petitioner is involving in serious offence for which charge-sheet has been submitted and the matter is lying with the appropriate Criminal Court for trial and adjudication. There is no scope for revocation of the suspension order during pendency of trial of the criminal case and as such, the Govt. has taken a correct decision rejecting the petitioner's appeal for revocation of the suspension order under the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In support of her submissions, Mr. Deka, relies upon the rulings of the Apex Court in the following cases: (1) Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and Ors. In support of her submissions, Mr. Deka, relies upon the rulings of the Apex Court in the following cases: (1) Director General and Inspector General of Police, Andhra Pradesh, Hyderabad and Ors. v. K. Ratnagiri reported in (1990) 3 SCC 60 , (2) Secretary to Government Prohibition and Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157 , (3) Punjab National Bank and Ors. v. Jagdish Singh reported in (1998) 9 SCC 265 , (4) Union of India v. Rajiv Kumar reported in (2003) 6 SCC 516 , (5) Registrar of Cooperative Societies Madras and Anr. v. F.X. Fernando reported in (1994) 2 SCC 746 , and (6) State of Orissa through its Principal Secretary, Home Department v. Bimal Kumar Mohanty reported in (1994) 4 SCC 126 . 6. In Darshan Singh case (supra), in para 13 it is held by this Court that an order of suspension is not an order imposing punishment on a delinquent servant, found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him and such proceedings must be expeditiously concluded both in the interest of the public services of the Government as also the Government servant. The said decision was rendered relying on the Apex Court's decision enunciated in P.L. Shah v. Union of India AIR 1989 SC 985 . It is also held that although it is not a punishment under the civil service rules yet it should not be lightly passed in a routine manner. The delinquent in the Darshan Singh case (supra), was placed under suspension due to alleged misconduct and a departmental proceeding was initiated against him but there was no criminal case against him and as such, I am afraid that the law laid down in the Darshan Singh case (supra), would be applicable to the present case. 7. The case of Munniappan (supra), is connected with departmental enquiry due to embezzlement of huge amount by the delinquent and there was no criminal case or trial against him. There was a considerable delay in completing the departmental enquiry and it was held in that case that it was difficult to blame departmental authorities for not completing the investigation expeditiously in a case involving embezzlement of huge amount of Rs. 7.82 crores. There was a considerable delay in completing the departmental enquiry and it was held in that case that it was difficult to blame departmental authorities for not completing the investigation expeditiously in a case involving embezzlement of huge amount of Rs. 7.82 crores. It was however, directed by the Apex Court for expeditious competition of the departmental enquiry. I fail to understand how the aforesaid case would help the petitioner. The case of Parija (supra), is also related to departmental enquiry, which was not completed even after 5 years and the delinquent officer was placed under suspension. There was no criminal proceeding against him and it was directed that enquiry be completed within six months. 8. In the case of Snkhendar (supra), the delinquent was initially placed under suspension in contemplation of departmental enquiry. He was also found prima facie involved in a criminal case. In the said criminal case, some more IAS officers were found to be involved and the investigation could not be completed during two and half years long period and there was no information as to how long it would continue further. In such circumstances, the Court ordered reinstatement of the delinquent officer with full back wages and the suspension order was held illegal. The case of Sukhendar (supra), is not similar to the present case inasmuch as, in the present case, the charge-sheet has been submitted by the investigating agency and the trial is pending before the appropriate Criminal Court. In the case of B.K. Meena (supra), the Central Administrative Tribunal stayed the departmental enquiry on the ground that the criminal trial and the departmental enquiry being based on the same facts and allegations, the disclosure of his defence at that stage could prejudice he delinquent's defence in the criminal trial and the Apex Court Could held that such order of the Central Administrative Tribunal is unsustainable both in law and on facts. The question of revocation of suspension order has not been addressed in the judgment of the aforesaid case and the said case is of no assistance to the petitioner. The last case cited by the learned Counsel for the petitioner, A. Biren Singh (supra), is connected with the disciplinary proceeding and the suspension of the delinquent. There was no criminal proceeding initiated or pending against the delinquent. The last case cited by the learned Counsel for the petitioner, A. Biren Singh (supra), is connected with the disciplinary proceeding and the suspension of the delinquent. There was no criminal proceeding initiated or pending against the delinquent. Referring to various decisions of the Supreme Court, it has been held in the said case that the State has not been vested with the unfettered power to place an employee under suspension for an indefinite period and it would not be proper to interfere with the suspension merely because there is delay in submission of charge-sheet or initiation of any disciplinary proceeding. However, in the aforesaid . case," the Court issued direction to complete the disciplinary proceeding expeditiously. It is beyond comprehension how the Biren Singh case (supra), would rescue the petitioner and justify demand for revocation of suspension order. 9. Without considering all the cases referred to by the learned Additional Senior Govt. Advocate representing the State authorities, I propose to deal with few of them only. In Srinivasan's case (supra), the delinquent was placed under suspension pending enquiry into charges of embezzlement and fabrication of records. The charge-sheet was filed and the criminal trial was pending for prosecution of the delinquent. On his approach made, the Tamil Nadu Administrative Tribunal quashed the suspension order as well as the charges at that stage. The Apex Court interfered with the said order of the tribunal and held that it was a grossest error on the part of the Administrative Tribunal in its exercise of judicial review inasmuch as the member of the Administrative Tribunal exercised power as if he were an appellate forum de hors the limitations of judicial review in P.L. Shah case (supra), the delinquent was placed under suspension pending criminal case and the suspension continued about 13 years. The delinquent in that case approached the Administrative Tribunal for payment of subsistence allowance and his petition was dismissed as being time barred. The revocation of suspension order is not the issue involved in the aforesaid case but it has been observed in para 6 of the judgment that an order of suspension is not an order imposing punishment on a delinquent servant, found to be guilty. The revocation of suspension order is not the issue involved in the aforesaid case but it has been observed in para 6 of the judgment that an order of suspension is not an order imposing punishment on a delinquent servant, found to be guilty. It is an order made against him before He is found guilty to ensure smooth disposal of the proceedings initiated against him and such proceedings must be expeditiously concluded both in the interest of the public services of the Government as also the Government servant concerned. 10. It is stated at the Bar that the petitioner is being paid the subsistence allowance as per his entitlement under the Rules and he has no more grievance in this regard. As stated earlier, in the aforesaid cited case, the delinquent did not ask for revocation of suspension order for long 13 years but in the present case, the petitioner has approached this Court for revocation of his suspension order in 4 years. In the present case, it is found that the Government has not initiated any departmental proceeding against the petitioner. He was placed under suspension due to the criminal proceeding against him. It is also found that the Investigating Agency has completed the enquiry and submitted charge-sheet and the matter is pending for trial before the Designated Court. It is correct that when the proceeding is pending before the Criminal Court, the respondent authorities have no role to play for completing the said proceeding and in such case the department or the respondent-Govt. are not to blame. 11. Considering the above facts and circumstances of the case and the position of law as discussed above, I find no scope, as the present stage, to interfere with or set aside the impugned orders dated 31.8.2005 and 24.4.2008 placing the petitioner under suspension and/or to issue any direction to reinstate him in service. There is also no scope for this Court to issue any direction to the Criminal Court to expedite hearing and adjudication of the pending criminal case in exercising jurisdiction under Article 226 of the Constitution of India. For such relief, the petitioner is to approach the appropriate forum. No relief, as prayed for, by the petitioner could be granted at this stage and accordingly, the instant writ petition is liable to be dismissed, which I do hereby. 12. For such relief, the petitioner is to approach the appropriate forum. No relief, as prayed for, by the petitioner could be granted at this stage and accordingly, the instant writ petition is liable to be dismissed, which I do hereby. 12. It may, however, be made clear that the respondent authorities may reconsider/review the entire matter as to whether the impugned orders dated 31.8.2005 and 24.4.2008 placing the petitioner under suspension could be revoked and whether to not he may be taken back to service in the interest of public without any prejudice to the criminal case pending against him or any departmental proceeding that may be taken up against him. 13. There shall be no order as to costs.